City Council of Cebu vs Cuizon, 47 SCRA 325 F: The plaintiffs are majority members of the city of Cebu praying

that the contract entered into on February 5, 1966 by and between defendant, ayor Cui!on on behalf of the city for the purchase of road construction e"uipment from Tropical be declared as null and #oid ab initio$ %ecause the contract was without the necessary authority and appro#al of the city council, and that the city treasurer had not certified to the city mayor, as re"uired by section 6&' of the (e#ised )dministrati#e Code that funds ha#e been duly appropriated for the said contract and that the amount necessary to co#er the contract was a#ailable for e*penditure on account thereof$ The City Council appro#ed (esolution +o$ 16,- authori!ing the City ayor, for and in behalf of the City of Cebu, to negotiate and to contract for, by public bidding, on deferred payment plan and by lot bid, .$/$ or 0uropean made road construction e"uipments for the City of Cebu and authori!ing him for this purposes, to sign the corresponding contract and other pertinent papers$ 1t also appro#ed (esolution +o$ 1-21, authori!ing the City ayor, in connection with the authority granted him under (esolution +o$ 16,-, current series, to utili!e the Time 3eposit of the City of Cebu with the 4hilippine +ational %an5, as %ond guarantee in the opening of a 6etter of Credit in connection with the City of Cebu7s application to directly purchase road construction e"uipments from abroad, to the e*tent of the amount that the 6etter of Credit may re"uire$ %y reason of the fact that the call to bid by the defendant City ayor Carlos 8$ Cui!on were for bidders who should be e*clusi#e distributors of the e"uipments being bidded and the said supplier must ha#e a sales and ser#ice outlet in the City of Cebu, the other bidders then became dis"ualified and the bid was awarded to the only bidder, the defendant Tropical Commercial Co$, 1nc$ 9ence, on 8anuary :&, 1966, the City Council appro#ed (esolution +o$ 1::, to re"uest the )ward Committee to forward to this %ody the pertinent papers in connection with the bidding for two ;:< complements of light and hea#y e"uipments to be used by the City 0ngineering 3epartment for ratification by this %ody$ +otwithstanding the re"uest contained in (esolution +o$ 1::, the defendant City ayor, Carlos 8$ Cui!on, without ha#ing been duly authori!ed thru proper resolution of the City Council, and without compliance with (esolution +o$ 1::, signed a contract with the Tropical Commercial Co$, 1nc$ for the ac"uisition of the hea#y e"uipments on February 5, 1966$ The City Council, without 5nowledge that the contract had already been signed by defendant City ayor Carlos 8$ Cui!on and the Tropical Commercial Co$, 1nc$ and re#o5ed prior resolutions$ The presiding officer of the City Council, City Councilor Florencio /$ .rot, sent a telegram to the anager of the 4hilippine +ational %an5$ The defendant )cting City Treasurer, 8esus 0$ =abate, sent a reply to the )sst$ >ice?4resident of the defendant 4hilippine +ational %an5 in Cebu City refusing the re"uest of the 4hilippine +ational %an5 ;to withhold 42,&&&,&&&$&& from the time deposit of the City of Cebu< on the ground that no appropriation for the purchase of hea#y e"uipments was made by the City Council$ That notwithstanding the 5nowledge of the re#ocation by (esolution +o$ ,'2 of (esolution +o$ 16,- and (esolution +o$ 1-21, series of 1965 of the City Council of Cebu City, the said City ayor, Carlos 8$ Cui!on, continued with the transaction by placing the order with the 0"uipment 3i#ision of the Continental @re

Corporation of +ew Aor5 .$/$)$ for the purchase of the said hea#y e"uipment$ 9ence, plaintiffs?appellants filed their complaint against defendants?appellees$ The lower court dismissed the appeal$ I: B@+ City of Cebu is e*empted and the same not liable for any and all obligations to the defendant 4hilippine +ational %an5 H: 1$ 1t seems clearly self?e#ident from the foregoing recitation of the undisputed antecedents and factual bac5ground that the lower court gra#ely erred in issuing its dismissal order on the ground of plaintiffs7 alleged lac5 of interest or legal standing as city councilors or as ta*payers to maintain the case at bar$ The lower court7s fundamental error was in treating plaintiffs7 complaint as a personal suit on their own behalf and applying the test in such cases that plaintiffs should show personal interest as parties who would be benefited or injured by the judgment sought$ 4laintiffs7 suit is patently not a personal suit$ 4laintiffs clearly and by the e*press terms of their complaint filed the suit as a representati#e suit on behalf and for the benefit of the city of Cebu$The appeal at bar must therefore be granted and the case ordered remanded to the lower court where the parties may be properly gi#en the opportunity at the trial to present e#idence in support of their respecti#e contentions for disposition and judgment on the merits$ :$ The lower court entirely missed the point that the action filed by plaintiffs? appellants as city councilors ;composing practically the entire city council, at that< and as city ta*payers is to declare null and #oid the 42?million contract e*ecuted by defendant city mayor for the purchase of road construction e"uipment purportedly on behalf of the city from its co?defendant Tropical and to declare e"ually null and #oid the corresponding letters of credit opened with the ban5 by defendant mayor and to pre#ent the disbursement of any city funds therefor and toe*empt the City of Cebu and hold it not liable for any obligation arising from such contract and letters of credit specifically and precisely "uestioned in the complaint filed by plaintiffs on behalf of the City as ha#ing beene*ecuted without authority and contrary to law$ 4laintiffs7 suit is clearly not one brought by them in their personal capacity for the annulment of a particular contract entered into between two other contracting parties, in which situation )rticle 129' of the Ci#il Code may rightfully be in#o5ed to "uestion their legal capacity or interest to file the action, since they are not in such case in anyway obliged thereby principally or subsidiarily$ @n the contrary, plaintiffs7 suit is one filed on behalf of the City of Cebu, instituted by them in pursuance of their prerogati#e and duty as city councilors and ta*payers, in order to "uestion and declare null and #oid a contract which according to their complaint was e*ecuted by defendant city mayor purportedly on behalf of the city without #alid authority and which had been e*pressly declared by the )uditor?Ceneral to be null and #oid ab initio and therefore could not gi#e rise to any #alid or allowable monetary claims against the city$ 2$ 4laintiffs7 right and legal interest as ta*payers to file the suit below and see5 judicial assistance to pre#ent what they belie#e to be an attempt to unlawfully disburse public funds of the city and to contest the e*penditure of public funds under contracts and commitments with defendants ban5 and Tropical which they

assert to ha#e been entered into by the mayor without legal authority and against the e*press prohibition of law ha#e long recei#ed the Court7s sanction and recognition$ 0#en defendant Tropical so understood that plaintiffs7 suit was a representati#e suit in behalf of the City of Cebu, hence their counterclaim in their answer, should the lower court uphold plaintiffs7 Dcapacity or interest to bring this suit in behalf of the City of Cebu,D for judgment against the City of Cebu for the repayment with legal interest of ban5 charges in the total sum of 4:,:,929$9& which it had ad#anced on the letters of credit opened by the defendant ban5 at the mayor7s instance in fa#or of its .$/$ supplier, supra$D 4arenthetically, it may be noted with reference to said letters of credit opened by the ban5 at the mayor7s instance, that the same were caused by the mayor to be established, according to the allegations of the complaint, notwithstanding the mayor7s 5nowledge and notice of the city council ha#ing re#o5ed by its resolution +o$ ,'2 on arch 1&, 1966 its pre#ious resolutions authori!ing him to enter into the transaction$ ,$ 4laintiffs7 right and legal interest as city councilors to file the suit below and to pre#ent what they belie#e to be unlawful disbursements of city funds by #irtue of the "uestioned contracts and commitments entered into by the defendant city mayor notwithstanding the city council7s re#ocation of his authority with due notice thereof to defendant ban5 must li5ewise be recogni!ed$ The lower court7s narrow construction of the city charter, (epublic )ct +o$ 2-5', that under section :& ;c< thereof, it is only the city mayor who is empowered Dto cause to be instituted judicial proceedings to reco#er properties and funds of the city where#er found and cause to be defended all suits against the city,D and that plaintiffs7 suit must therefore fail since Dthere is no pro#ision in the said charter which authori!es e*pressly or impliedly the city council or its members to bring an action in behalf of the cityD cannot recei#e the Court7s sanction$ The case at bar shows the manifest untenability of such a narrow construction$ 9ere where the defendant city mayor7s acts and contracts purportedly entered into on behalf of the city are precisely "uestioned as unlawful, ultra #ires and beyond the scope of his authority, and the city should therefore not be bound thereby nor incur any liability on account thereof, the city mayor would be the last person to file such a suit on behalf of the city, since he precisely maintains the contrary position that his acts ha#e been lawful and duly bind the city$ To adhere to the lower court7s narrow and unrealistic interpretation would mean that no action against a city mayor7s actuations and contract in the name and on behalf of the city could e#er be "uestioned in court and subjected to judicial action for a declaration of nullity and in#alidity, since no city mayor would file such an action on behalf of the city to "uestion, much less nullify, contracts e*ecuted by him on behalf of the city and which he naturally belie#es to be #alid and within his authority$ 5$ /ection :& ;c< of the city charter in#o5ed by the lower court, howe#er, has no applicability to the present suit, which is not one to reco#er properties and funds of the city or a suit against the city, but rather a representati#esuit on behalf of and purportedly for the benefit of the city, which the city mayor is howe#er loath to institute$ .nder such circumstances, in the same manner that a stoc5holder of a corporation is permitted to institute deri#ati#e or representati#e suits as nominal

party plaintiff for the benefit of the corporation which is the real party in interest, more so may plaintiffs as city councilors e*clusi#ely empowered by the city charter to Dma5e all appropriations for the e*penses of the go#ernment of the cityD 21 and who were the #ery source of the authority granted to the city mayor to enter into the "uestioned transactions which authority was later re#o5ed by them, as per the allegations of the complaint at bar, be deemed to possess the necessary authority, and interest, if not duty, to file the present suit on behalf of the City and to pre#ent the disbursement of city funds under contracts impugned by them to ha#e been entered into by the city mayor without lawful authority and in #iolation of law$ )CC@(31+C6A, the order appealed from is hereby set aside and the lower court is ordered to proceed with the trial and disposition of the case below on its merits$ +o costs$ /o ordered$ Ramos vs CA, 2 ! SCRA 34 F" @n )pril 1-, 199&, petitioners )ntonio C$ (amos, (osalinda $ 4ere!, +orma C$ Castillo, and the %aliuag ar5et >endors )ssociation, 1nc$ filed a petition for the 3eclaration of +ullity of unicipal @rdinances +o$ 91 ;19'6< and +o$ ' ;199&< and the contract of lease o#er a commercial arcade to be constructed in the municipality of %aliuag, %ulacan$ The 4ro#incial Fiscal appeared as counsel for respondent unicipality of %aliuag, which opposed the petition$ 4etitioners "uestioned the personality of )tty$ (oberto (omanillos to appear as counsel for the respondent municipality, and to declare null and #oid the proceedings participated and underta5en by )tty$ (omanillos$ 3uring the hearing on )ugust 1&, 199&, petitioners "uestioned the personality of )tty$ (omanillos to appear as counsel of ;sic< the respondent municipality, which opposition was reiterated on )ugust 15, 199&, and was put in writing in petitioners7 motion of )ugust :&, 199& to dis"ualify )tty$ (omanillos from appearing as counsel for respondent municipality and to declare null and #oid the proceedings participated in and underta5en by )tty$ (omanillos$ The respondent 8udge issued the @rder now being assailed which, as already stated, denied petitioners7 motion to dis"ualify )tty$ (omanillos as counsel for respondent municipality and to declare null and #oid the proceedings participated in by )tty$ (omanillosE and on the other hand, granted )tty$ (egalado7s motion 7to formally adopt the entire proceedings including the formal offer of e#idence7$ 1n support of his foregoing action, respondent 8udge reasoned: 74etitioners7 motion for the dis"ualification of )tty$ (omanillos as respondent municipality7s counsel is deemed moot and academic in #iew of his withdrawal as counsel of said municipality pursuant to a joint motion dated )ugust ::, 199&, although he shall remain as counsel on record of pri#ate respondent Fristi Corporation$ )tty$ @li#iano (egalado under the same joint motion mo#ed for the adoption of the entire proceedings conducted by collaborating counsel, )tty$ (omanillos$ 1t is noted that )tty$ (omanillos initially entered his appearance as collaborating counsel of the 4ro#incial 4rosecutor and the 4ro#incial )ttorney when he filed a motion to dissol#e injunction under motion dated ay 2&, 199& and since then

despite his acti#e participation in the proceedings, the opposing counsel has ne#er "uestioned his appearance until after he made a formal offer of e#idence for the respondents$ The ac"uiescence of petitioners,7 counsel of his appearance is tantamount to a wai#er and petitioners are, therefore, estopped to "uestion the same$ 1n all the pleadings made by )tty$ (omanillos, it was clearly indicated that he was appearing as the collaborating counsel of the 4ro#incial )ttorney$ 4etitioners7 motion for reconsideration of the foregoing @rder was denied by respondent 8udge in his @rder dated @ctober 19, 199&, the second @rder now being assailed$ (espondent 8udge reiterated the obser#ations which he made in the @rder of /eptember 19, 199& that )tty$ (omanillos, while acti#ely handling the said case was merely appearing as the collaborating counsel of both the 4ro#incial 4rosecutor and the 4ro#incial )ttorney of %ulacanE that )tty$ (omanillos7 appearance was 7ne#er impugned by petitioners7 and was only "uestioned after his ;)tty$ (omanillos7< submission of the formal offer of e#idence for respondentE and that therefore, said court proceedings 7is a fait accompli'$ Court of )ppeals dismissed the petition and denied the motion for reconsideration$ 9ence this recourse$ I # R"

may act for and in behalf of public entities and that public funds should not be e*pended to hire pri#ate lawyers$

(b)

0ffect on 4roceedings by )doption of .nauthori!ed (epresentation

This Court belie#es that conferring legitimacy to the appearance of )tty$ (omanillos would not cause substantial prejudice on petitioners$ (e"uiring new trial on the mere legal technicality that the municipality was not represented by a legally authori!ed counsel would not ser#e the interest of justice$ )fter all, this Court does not see any injustice committed against petitioners by the adoption of the wor5 of pri#ate counsel nor any interest of justice being ser#ed by re"uiring retrial of the case by the duly authori!ed legal representati#e of the town$ 1n sum, although a municipality may not hire a pri#ate lawyer to represent it in litigations, in the interest of substantial justice howe#er, we hold that a municipality may adopt the wor5 already performed in good faith by such pri#ate lawyer, which wor5 is beneficial to it ;1< pro#ided that no injustice is thereby heaped on the ad#erse party and ;:< pro#ided further that no compensation in any guise is paid therefore by said municipality to the pri#ate lawyer$ .nless so e*pressly adopted, the pri#ate lawyer7s wor5 cannot bind the municipality$ Rabuco vs$ %ille&as, 55 SCRA 5

(a)

Bho 1s )uthori!ed to (epresent a

unicipality in 1ts 6awsuitsG

/ection 16-2$ Duty of fiscal to represent provinces and provincial subdivisions in litigation$ H The pro#incial fiscal shall represent the pro#ince and any municipality or municipal district thereof in any court, e*cept in cases whereof ;sic< original jurisdiction is #ested in the /upreme Court or in cases where the municipality or municipal district in "uestion is a party ad#erse to the pro#incial go#ernment or to some other municipality or municipal district in the same pro#ince$ Bhen the interests of a pro#incial go#ernment and of any political di#ision thereof are opposed, the pro#incial fiscal shall act on behalf of the pro#ince$ Bhen the pro#incial fiscal is dis"ualified to ser#e any municipality or other political subdi#ision of a pro#ince, a special attorney may be employed by its council$ .nder the abo#e pro#ision, complemented by /ection 2, (epublic )ct +o$ ::6,, the 6ocal )utonomy 6aw, only the pro#incial fiscal and the municipal attorney can represent a pro#ince or municipality in their lawsuits$ The pro#ision is mandatory$ The municipality7s authority to employ a pri#ate lawyer is e*pressly limited only to situations where the pro#incial fiscal is dis"ualified to represent it$ 1t may be said that )tty$ (omanillos appeared for respondent municipality inasmuch as he was already counsel of Fristi Corporation which was sued with respondent municipality in this same case$ The fact that the municipal attorney and the fiscal are supposed to collaborate with a pri#ate law firm does not legali!e the latter7s representation of the municipality of 9agonoy in Ci#il Case +o$ 5&95? $ Bhile a pri#ate prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in ci#il cases wherein a municipality is the plaintiff$D )s already stated, pri#ate lawyers may not represent municipalities on their own$ +either may they do so e#en in collaboration with authori!ed go#ernment lawyers$ This is anchored on the principle that only accountable public officers

F: The origin and bac5ground of the cases at bar which deal with the decisi#e issue of constitutionality of (epublic )ct 21:& enacted on June 17, 1961, as raised by respondent mayor of anila in resisting petitioners7 pleas that respondent mayor not only lac5s the authority to demolish their houses or eject them as tenants and bona fide occupants of a parcel of land in /an )ndres, alate 2 but is also e*pressly prohibited from doing so by section : of the )ct, may be summari!ed from the Court of )ppeals7 3 certification of resolution of ay 21, 1965 as follows$ The two cases were ordered Dconsolidated into oneD since they were Duna#oidably interlaced$D The appellate court, finding that the constitutionality of (epublic )ct 21:& was Dthe dominant and ine*tricable issue in the appealD o#er which it had no jurisdiction and that the trial court incorrectly Dsidetrac5edD the issue, thereafter certified the said cases to this Court$ The constitutionality of (epublic )ct +o$ 21:& need not be passed upon as the principal "uestion in issue is whether the houses of the petitioners are public nuisances, which the court resol#ed in the affirmati#e$ )s a matter of fact e#en if the petitioners were already the owners of the land on which their respected houses are erected, the respondent city officials could cause the remo#al thereof as they were constructed in #iolation of city ordinances and constitute public nuisance$ Case L-2 661 for the continuation and maintenance of the writ of preliminary injunction pre#iously issued by the Court of )ppeals for preser#ation of the status !uo was filed by petitioners directly with this Court on 8une :1, 1965, pending transmittal of the records of Cases 6?:,915 and 6?:,916 to this Court as certified by the Court of )ppeals which declared itself without jurisdiction o#er the principal and decisi#e issue of constitutionality of (epublic )ct 21:&$

1n the early morning of )pril 19, 19'&, a large fire of undetermined origin gutted the alate area including the lot on which petitioners had built their homes and dwellings$ (espondents city officials then too5 o#er the lot and 5ept petitioners from reconstructing or repairing their burned dwellings$ )t petitioners7 instance, the Court issued on 8une 1', 19'& a temporary restraining order enjoining respondents city officials Dfrom performing any act constituting an interference in or disturbance of herein petitioners7 possession of 6ot +o$ :1?%, %loc5 +o$ 61&, of the Cadastral /ur#ey of the City of anilaD as safeguarded them under the Court7s subsisting preliminary injunction of )ugust 1', 1965$ The Ddominant and ine*tricable issueD at bar, as correctly percei#ed by the appellate court is the constitutionality of (epublic )ct 21:& whereby Congress con#erted the lot in "uestion together with another lot in /an )ndres, alate Dwhich are reser#ed as communal propertyD into Ddisposable or alienable lands of the /tate to be placed under the administration and disposal of the 6and Tenure )dministrationD for subdi#ision into small lots not e*ceeding 1:& s"uare meters per lot for sale on installment basis to the tenants or bona fide occupants thereof and e*pressly prohibited ejectment and demolition of petitioners7 homes under section : of the )ct as "uoted in the appellate court7s certification resolution$ The incidental issue sei!ed upon by the trial court as a main issue for Dsidetrac5ingD the decisi#e issue of constitutionality, to wit, that petitioners7 houses as they stood at the time of its judgment in 1965 Dwere constructed in #iolation of city ordinances and constituted public nuisancesD whose remo#al could be ordered De#en if petitioners were already the owners of the land on which their respecti#e houses are erectedD has become moot with the burning down of the petitioners7 houses in the fire of )pril 19, 19'&$ I: B@+ the )ct is in#alid and unconstitutional for constituting depri#ation of property without due process of law and without just compensation as contended by respondents city officials H: (espondents city officials7 contention that the )ct must be stric5en down as unconstitutional for depri#ing the city of anila of the lots in "uestion and pro#iding for their sale in subdi#ided small lots to bona fide occupants or tenants without payment of just compensation is untenable and without basis, since the lots in "uestion are manifestly owned by the city in its public and governmental capacity and are therefore public property o#er which Congress had absolute control as distinguished from patrimonial property owned by it in its private or proprietary capacity of which it could not be depri#ed without due process and without just compensation$ 9ere, (epublic )ct 21:& e*pressly declared that the properties were Dreserved as communal propertyD and ordered their con#ersion into Ddisposable and alienable lands of the /tateD for sale in small lots to the bona fide occupants thereof$ 1t is established doctrine that the act of classifying /tate property calls for the e*ercise of wide discretionary legislati#e power which will not be interfered with by the courts$ (egardless of the source or classification of land in the possession of a municipality, e"cepting those ac"uired with its own funds in its pri#ate or

corporate capacity, such property is held in trust for the /tate for the benefit of its inhabitants, whether it be for go#ernmental or proprietary purposes$ 1t holds such lands subject to the paramount po#er of t$e legislature to dispose of the same, for after all it owes its creation to it as an agent for the performance of a part of its public #or%, the municipality being but a subdi#ision or instrumentality thereof for purposes of local administration$ )ccordingly, the legal situation is the same as if the /tate itself holds the property and puts it to a different use$ There as here, the Court holds that the )cts in "uestion ;(epublic )cts ,11in &alas and (epublic )ct 21:& in the case at bar< were intended to implement the social justice policy of the Constitution and the go#ernment program of land for the landless and that they were not Dintended to e*propriate the property in#ol#ed but merely to confirm its character as communal land of the /tate and to ma5e it a#ailable for disposition by the +ational Co#ernment$ /ince the challenge of respondents city officials against the constitutionality of (epublic )ct 21:& must fail as the City was not depri#ed thereby of anything it owns by ac"uisition with its pri#ate or corporate funds either under the due process clause or under the eminent domain pro#isions of the Constitution, the pro#isions of said )ct must be enforced and petitioners are entitled to the injunction as prayed for implementing the )ct7s prohibition against their ejectment and demolition of their houses$ B90(0F@(0, the appealed decision of the lower court is hereby set aside$ %illanueva vs$ Castane'a, 154 SCRA 142 F: There is in the #icinity of the public mar5et of /an Fernando, 4ampanga, along ercado /treet, a strip of land measuring 1: by '' meters on which stands a conglomeration of #endors stalls together forming what is commonly 5nown as a talipapa$ This is the subject of the herein petition$ The petitioners claim they ha#e a right to remain in and conduct business in this area by #irtue of a pre#ious authori!ation granted to them by the municipal go#ernment$ The respondents deny this and justify the demolition of their stalls as illegal constructions on public property$ )t the petitionersI behest, we ha#e issued a temporary restraining order to preser#e the status "uo between the parties pending our decision$ This dispute goes bac5 to +o#ember ', 1961, when the municipal council of /an Fernando adopted (esolution +o$ :1- authori!ing some :, members of the Fernandino .nited erchants and Traders )ssociation to construct permanent stalls and sell in the abo#e?mentioned place$ The action was protested on +o#ember 1&, 1961, in Ci#il Case +o$ :&,&, where the Court of First 1nstance of 4ampanga, %ranch :, issued a writ of preliminary injunction that pre#ented the defendants from constructing the said stalls until final resolution of the contro#ersy$ @n 8anuary 1-, 196,, while this case was pending, the municipal council of /an Fernando adopted (esolution +o$ :9, which declared the subject area as Jthe par5ing place and as the public pla!a of the municipality,K thereby impliedly re#o5ing (esolution +o$ :1-, series of 1961$ Four years later, on +o#ember :, 196-, 8udge )ndres C$ )guilar decided the aforesaid case and held that the land occupied by the petitioners, being public in nature, was beyond the commerce of man and therefore could not be the subject of pri#ate occupancy$ The writ of preliminary injunction was made permanent$

I: B@+ petitioners ha#e the right to occupy the subject land$ H" ) public pla!a is beyond the commerce of man, and cannot be the subject of lease or other contractual underta5ing$ )nd, e#en assuming the e*istence of a #alid lease of the public pla!a or part thereof, the municipal resolution effecti#ely terminated the agreement, for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract$ 0#en assuming a #alid lease of the property in dispute, the resolution could ha#e effecti#ely terminated the agreement for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract$ 1n fact, e#ery contract affecting the public interest suffers a congenital infirmity in that it contains an implied reser#ation of the police power as a postulate of the e*isting legal order$ This power can be acti#ated at any time to change the pro#isions of the contract, or e#en abrogate it entirely, for the promotion or protection of the general welfare$ /uch an act will not militate against the impairment clause, which is subject to and limited by the paramount police power$ Be hold that the respondent judge did not commit gra#e abuse of discretion in denying the petition for prohibition$ @n the contrary, he acted correctly in sustaining the right and responsibility of the mayor to e#ict the petitioners from the disputed area and clear it of all the structures illegally constructed therein$ City of An&eles vs$ CA, 2 1 SCRA !( F: 1n a series of 3eed of 3onation, pri#ate respondent donated to the City of )ngeles, 51 parcels of land situated in %arrio 4ampang, City of )ngeles, with an aggregate area of 5&,6'6 s"uare meters, more or less, part of a bigger area also belonging to pri#ate respondent$ This is for the site of the )ngeles City /ports Center and that no commercial building, commercial comple*, mar5et or any other similar comple*, mass or tenament ;sic< housingLbuildings;s< shall be constructed in the properties donated nor shall coc5fighting, be allowed in the premises$ )ny substantial breach of the foregoing pro#isos shall entitle the 3@+@( to re#o5e or rescind this 3eed of 3onation, and in such e#entuality, the 3@+00 agrees to #acate and return the premises, together with all impro#ements, to the 3@+@( peacefully without necessity of judicial action$K 4etitioners started the construction of a drug rehabilitation center on a portion of the donated land$ .pon learning thereof, pri#ate respondent protested such action for being #iolati#e of the terms and conditions of the amended deed and prejudicial to its interest and to those of its clients and residents$ 4ri#ate respondent also offered another site for the rehabilitation center$ 9owe#er, petitioners ignored the protest, maintaining that the construction was not #iolati#e of the terms of the donation$ The alternati#e site was rejected because, according to petitioners, the site was too isolated and had no electric and water facilities$ 4ri#ate respondent filed a complaint with the (egional Trial Court, alleging breach of the conditions imposed in the amended deed of donation and see5ing the re#ocation of the donation and damages, with preliminary injunction andLor temporary restraining order to halt the construction of the said center$

The trial court issued a temporary restraining order to enjoin the petitioners from further proceeding with the construction of the center, which at that time was already ,&M complete$ 9owe#er, the trial court denied the prayer for preliminary injunction based on the prohibition in 4residential 3ecree +o$ 1-1-$ 4ri#ate respondent filed a otion for 4artial /ummary 8udgment on the ground that the main defense of the petitioners was anchored on a pure "uestion of law and that their legal position was untenable$ I # R" Developer Legally Bound to Donate Open Space : 1t is clear that it is no longer optional on the part of the subdi#ision ownerLde#eloper to donate the open space for par5s and playgroundsE rather there is now a legal obligation to donate the same$ )lthough there is a proviso that the donation of the par5s and playgrounds may be made to the homeowners association of the project with the consent of the city of municipality concerned, nonetheless, the ownerLde#eloper is still obligated under the law to donate$ /uch option does not change the mandatory character of the pro#ision$ The donation has to be made regardless of which donee is pic5ed by the ownerLde#eloper$ The consent re"uirement before the same can be donated to the homeownersI association emphasi!es this point$ Percentage of Area for Parks and Playgrounds: The language of /ection 21 of 4$3$ 95' as amended by /ection : of 4$3$ 1:16 is wanting in clarity and e*actitude, but it can be easily inferred that the phrase Jgross areaK refers to the entire subdi#ision area$ The phrase J2&M of the gross areaK refers to the total area of the subdi#ision, not of the open space$ @therwise, the definition of Jopen spaceK would be circular$ Thus, logic dictates that the same basis be applied in the succeeding instances where the phrase Jopen spaceK is used, i'e$, J9M of gross area $ $ $ 'M of gross area $ $ $ 2$5M of gross area $ $ $K oreo#er, we agree with petitioners that construing the 2$5M to 9M as applying to the totality of t$e open space would result in far too small an area being de#oted for par5s, playgrounds, etc$, thus rendering meaningless and defeating the purpose of the statute$ This becomes clear when #iewed in the light of the original re"uirement of 4$3$ 952 ;J(e"uiring the 4lanting of Trees in Certain 4laces, etc$K<, it is clear that 4$3$ 1:16 was an attempt to achie#e a happy compromise and a realistic balance between the imperati#es of en#ironmental planning and the need to maintain economic feasibility in subdi#ision and housing de#elopment, by reducing the re"uired area for par5s, playgrounds and recreational uses from thirty percent ;2&M< to only 2$5M ? 9M of the entire area of t$e subdivision' Imposition of Conditions in Donation of Open Space: 1n regard to donations of open spaces, 4$3$ 1:16 itself re"uires among other things that the recreational areas to be donated be based, as aforementioned, on a percentage ;2$5M, 'M, or 9M< of the total area of the subdi#ision depending on whether the subdi#ision is low ?, medium ?, or high?density$ 1t further declares that such open space de#oted to par5s, playgrounds and recreational areas are non?alienable public land and non?buildable$ 9owe#er, there is no pro$ibition in either 4$3$ 95' or 4$3$ 1:16 against imposing conditions on such donation$Be hold that any condition may be imposed in the donation, so long as the same is not contrary to law, morals, good customs, public order or public policy$ 1n the case at bar, one of the conditions imposed in the )mended 3eed of 3onation is that the donee should build a sports comple* on the donated land$ /ince 4$3$ 1:16 clearly re"uires that the 2$5M to 9M of the gross area allotted for par5s and playgrounds

is Jnon?buildable,K then the ob#ious "uestion arises whether or not such condition was #alidly imposed and is binding on the donee$ 1t is clear that the Jnon?buildableK character applies only to the 2$5M to 9M area set by law$ 1f there is any e*cess land o#er and abo#e the 2$5M to 9M re"uired by the decree, which is also used or allocated for par5s, playgrounds and recreational purposes, it is ob#ious that such e*cess area is not co#ered by the non?buildability restriction$ 1n the instant case, if there be an e*cess, then the donee would not be barred from de#eloping and operating a sports comple* thereon, and the condition in the amended deed would then be considered #alid and binding$ Injunction vs Construction of t!e Drug "e!a#ilitation Center: 1n light of /ec$ 21 of 4$3$ 95', as amended, declaring the open space for par5s, playgrounds and recreational area as non?buildable, it appears indubitable that the construction and operation of a drug rehabilitation center on the land in "uestion is a continuing #iolation of the law and thus should be enjoined$ Furthermore, the factual bac5ground of this case warrants that this Court rule against petitioners on this issue$ Be agree with and affirm the respondent CourtIs finding that petitioners committed acts moc5ing the judicial system$ "evocation of a $andatory Donation Because of %on&compliance 'it! an Illegal Condition: %oth petitioners and pri#ate respondents are in #iolation of 4$3$ 95' as amended, for donating and accepting a donation of open space less than that re"uired by law, and for agreeing to build and operate a sports comple* on the non?buildable open space so donatedE and petitioners, for constructing a drug rehabilitation center on the same non?buildable area$ "emoval(Demolition of Drug "e!a#ilitation Center : 1nasmuch as the construction and operation of the drug rehabilitation center has been established to be contrary to law, the said center should be remo#ed or demolished$ )t this juncture, we hasten to add that this Court is and has always been four?s"uare behind the go#ernmentIs efforts to eradicate the drug scourge in this country$ %ut the end ne#er justifies the means, and howe#er laudable the purpose of the construction in "uestion, this Court cannot and will not countenance an outright and continuing #iolation of the laws of the land, especially when committed by public officials$ 3ecision of C) is modified$ )uezon City vs *e+be,, Inc$ , -R .o$ 141 1 , /a,$ 15, 2((1 F: ) Tri?4artite emorandum of )greement was drawn between petitioner City of Nue!on, represented by its then ayor %rigido ($ /imon, 8r$, respondent 6e*ber, 1nc$ and the then unicipality of )ntipolo, whereby a :6,&1& s"uare meter parcel of land located in )ntipolo was to be used as a garbage dumping site by petitioner and other etro anila cities or municipalities authori!ed by the latter, for a 5?year period commencing in 8anuary 1991 to 3ecember 1995$ 4art of the agreement was that the landowner, represented by respondent 6e*ber, shall be hired as the e*clusi#e supplier of manpower, hea#y e"uipment and engineering ser#ices for the dumpsite and shall also ha#e the right of first refusal for contracting such ser#ices$ This led to the drawing of the first negotiated contract between petitioner, represented by ayor /imon, and respondent 6e*ber, whereby the latter was engaged to construct the necessary infrastructure at the dumpsite, designated as the Nue!on City /anitary 6andfill, for the contract price of 4,,2-1,&69$&&$ Construction of said infrastructure was completed by respondent

6e*ber on +o#ember :5, 1991, and the contract price agreed upon was accordingly paid to it by petitioner$ eanwhile, a second negotiated contract was entered into by respondent 6e*ber with petitioner, again represented by ayor /imon, whereby it was agreed that respondent 6e*ber shall pro#ide maintenance ser#ices in the form of manpower, e"uipment and engineering operations for the dumpsite for the contract price of 41,526,'96$&& monthly$ 1t was further agreed that petitioner shall pay respondent 6e*ber a reduced fee of fifty percent ;5&M< of the monthly contract price, or 4'6-,,92$&&, in the e#ent petitioner fails to dump the agreed #olume of 5,,&&& cubic meters of garbage for any gi#en month$ @n 3ecember 11, 1991, respondent was notified by petitioner, through the City 0ngineer, )lfredo acapugay, 4roject anager, (ene 6a!aro and ayor /imon to commence maintenance and dumping operations at the site starting on 3ecember 15, 1991$ (espondent 6e*ber alleged that petitioner immediately commenced dumping garbage on the landfill site continuously from 3ecember 1991 until ay 199:$ Thereafter, petitioner ceased to dump garbage on the said site for reasons not made 5nown to respondent 6e*ber$ Conse"uently, e#en while the dumpsite remained unused, respondent 6e*ber claimed it was entitled to payment for its ser#ices as stipulated in the second negotiated contract$ (espondentIs counsel sent a demand letter to petitioner demanding the payment of at least 5&M of its ser#ice fee under the said contract, in the total amount of 49,9-9,1',$&&$ 1n #iew of the idle state of the dumpsite for more than a year, respondent also sought a clarification from petitioner regarding its intention on the dumpsite project, considering the waste of e"uipment and manpower in the meantime, as well as its loss of opportunity for the property$ 4etitioner, this time acting through ayor 1smael )$ athay, 8r$ who succeeded ayor /imon in the interim, denied any liability under the contract on the ground that the same was in#alid and unenforceable$ )ccording to ayor athay, the subject contract was signed only by ayor /imon and had neither the appro#al nor ratification of the City Council, and it lac5ed the re"uired budget appropriation$ Thus, a complaint for %reach of Contract, /pecific 4erformance or (escission of Contract and 3amages was filed by respondent 6e*ber against petitioner on February :1, 199, before the (egional Trial Court of Nue!on City$ (espondent 6e*ber a#erred that because petitioner stopped dumping garbage on the dumpsite after ay 199:, 6e*berIs e"uipment and personnel were idle to its damage and prejudice$ (espondent prayed that petitioner be ordered to comply with its obligations under the subject contract or, in the alternati#e, that the said contract be rescinded and petitioner be ordered to pay damages$ 6ower Court fa#ored respondents$ I" B@+ the subject negotiated contract is null and #oid ab initio H: There is no denying that /ections -5 and -6 of 4$3$ 1,,5 ;)uditing Code of the 4hilippines< pro#ide that contracts in#ol#ing e*penditure of public funds: 1< can be entered into only when there is an appropriation thereforE and :< must be certified by the proper accounting officialLagency that funds ha#e been duly appropriated for the purpose, which certification shall be attached to and become an integral part of the proposed contact$ 9owe#er, the #ery same 4residential 3ecree +o$ 1,,5, which is the cornerstone of petitionerIs arguments, does not pro#ide that the absence of an appropriation

law ipso facto ma5es a contract entered into by a local go#ernment unit null and #oid$ (e#enue funds shall not be paid out of any public treasury or depository e*cept in pursuance of an appropriation law or other specific statutory authority$ Conse"uently, public funds may be disbursed not only pursuant to an appropriation law, but also in pursuance of other specific statutory authority, i'e', /ection -, of 43 1,,5$ Thus, when a contract is entered into by a city mayor pursuant to specific statutory authority, the law, i'e', 43 1,,5 allows the disbursement of funds from any public treasury or depository therefor$ 1t can thus be plainly seen that the law in#o5ed by petitioner Nue!on City itself pro#ides that an appropriation law is not the only authority upon which public funds shall be disbursed$ Furthermore, then ayor %rigido /imon, 8r$ did not enter into the subject contract without legal authority$ .nder %$4$ %lg$ 22', while the city mayor has no power to appropriate funds to support the contracts, neither does said law prohibit him from entering into contracts unless and until funds are appropriated therefor$ 1n fact, it is his bounden duty to so represent the city in all its business transactions$ %y entering into the two contracts, ayor /imon did not usurp the city councilIs power to pro#ide for the proper disposal of garbage and to appropriate funds therefor$ The e*ecution of contracts to address such a need is his statutory duty, just as it is the city councilIs duty to pro#ide for said ser#ices$ There is no pro#ision in %$4$ %lg$ 22', howe#er, that prohibits the city mayor from entering into contracts for the public welfare, unless and until there is prior authority from the city council$ This re"uirement was imposed much later by ($)$ +o$ '16&, long after the contracts had already been e*ecuted and implemented$ Bhile the powers and duties of the ayor and the City Council are clearly delineated, there is nothing in the cited pro#isions, nor e#en in the statute itself, that re"uires Jprior authori!ation by the city council by proper enactment of an ordinanceK before the City ayor can enter into contracts$ 1t must be noted that the +egotiated Contract dated +o#ember -, 199& is not ipso facto absolutely null and void$ The subject thereof is perfectly within the authority of the city go#ernment$ 1t is pursuant to the Tripartite )greement entered into between the plaintiff, the defendant, and the unicipality of )ntipolo$ The plaintiff was gi#en the e*clusi#e right to e*ercise acts stated in the two negotiated contracts, which are entered into to further carry out and implement the pro#isions of the Tripartite )greement$ The foregoing authorities therefore fully clothed ayor %rigido /imon, 8r$ with the authority to enter and sign the subject contract for and in behalf of the city go#ernment e#en without e*press authority from the City Council$ There was, thus, no justifiable reason for petitioner not to allocate or appropriate funds at the start of each fiscal year considering that a trust fund had been established to pay for Jthe effecti#e deli#ery of basic urban ser#ices re"uiring coordination,K foremost of which is the collection and disposal of garbage$

There is also no merit in petitionerIs claim that there was no appropriation therefor, for it is e#ident that e#en as early as )pril ,, 1991, funds which were certified to as a#ailable had been allocated for use in the first few months operation of the sanitary landfill$ The problem arose only because the new administration unjustifiably refused to abide by the stipulations in the second negotiated contract$ 9ence, petitionerIs arguments on this issue fail to con#ince this Court that the second negotiated contract was null and #oid ab initio for lac5 of prior appropriation or authority on the part of ayor %rigido /imon, 8r$ Cranting but without conceding that ayor %rigido /imon, 8r$ needs to secure prior authori!ation from the City Council for the enforceability of the contracts entered into in the name of the City go#ernment, which he failed to do according to the appellant, Be belie#e that such will not affect the enforceability of the contract because of the subse"uent ratification made by the City go#ernment$ Thus, when appellant City go#ernment, after the construction by the appellee of the dumpsite structure in accordance with the contract plans and specifications, started to dump garbage collected in the City and conse"uently paid the appellee for the ser#ices rendered, such acts produce and constitute a ratification and appro#al of the negotiated contract and necessarily should imply its wai#er of the right to assail the contractIs enforceability$ %e that as it may, it cannot be denied that there was constructi#e ratification on the part of petitioner$ The records show that upon completion of the infrastructure and other facilities, petitioner, albeit still under the administration of ayor %rigido /imon, 8r$, started to dump garbage in the premises$ The records also re#eal that petitioner issued 3isbursement >ouchers of #arious amounts co#ering the period between arch 1, 199: to )pril 2&, 199: for the ser#ices rendered by the ud (egal Croup, 1ncorporated to haul garbage to the sanitary landfill$ The said disbursement #ouchers were passed in audit and duly appro#ed and paid by petitioner$ These are facts and circumstances on record which led the trial court, the appellate court, and this Court to affirm the conclusion that petitioner had actually ratified the subject contract$ 1t is e#ident that petitioner dealt unfairly with respondent 6e*ber$ %y the mere prete*t that the subject contract was not appro#ed nor ratified by the city council, petitioner refused to perform its obligations under the subject contract$ >erily, the same was entered into pursuant to law or specific statutory authority, funds therefor were initially a#ailable and allocated, and petitioner used the sanitary landfill for se#eral months$ The present leadership cannot unilaterally decide to disregard the subject contract to the detriment of respondent 6e*ber$ The mere fact that petitioner later refused to continue dumping garbage on the sanitary landfill does not necessarily pro#e that it did not benefit at the e*pense of respondent 6e*ber$ Bhether or not garbage was actually dumped is of no moment, for respondent 6e*berIs underta5ing was to ma5e a#ailable to petitioner the landfill site and to pro#ide the manpower and machinery to maintain the facility$ 4etitioner, by refusing to abide by its obligations as stipulated in the subject negotiated contract, should be held liable to respondent 6e*ber in accordance with the terms of the subject contract$ 4etitionerIs refusal to abide by its commitments ga#e rise to an untenable situation wherein petitioner effecti#ely denied the e*istence and #alidity of the

subject contract e#en while respondent 6e*ber was still bound by it$ This situation is inconsistent with the principle that obligations arising from contracts ha#e the force of law between the contracting parties and each party is bound to fulfill what has been e*pressly stipulated therein$ O25P @nly respondent 6e*ber was bound by the contract while petitioner acted as if it were free therefrom$ Clearly then, the contract entered into by the former ayor 3uterte was #oid from the #ery beginning since the agreed cost for the project ;4-,26-,9:&$&&< was way beyond the appropriated amount ;45,,19,1-&$&&< as certified by the City Treasurer$ %esides, neither the petitioner nor 9FCC1 "uestioned the ruling of C@) declaring the in#alidity of the abattoir contract, thereby resulting in its finality e#en before the ci#il case was instituted$ 4etitioner could ha#e brought the case to the /upreme Court on a petition for certiorari within thirty days from receipt of a copy of the C@) decision in the manner pro#ided by law and the (ules of Court$ ) decision of the Commission or any of its )uditor not appealed within the period pro#ided by law, shall be final and e*ecutor$ 4ublic bidding may ha#e been dispensed with, not only because Jtime is of the essenceK but in recognition of the reality that offering property to be used as a dumpsite is not an attracti#e nor lucrati#e option for property owners$ This reality is all the more glaring in the current situation where etro anila local go#ernment units are seemingly unable to cope with the disastrous lac5 of garbage dumping sites$ ) major part of the problem is that no one wants to be the dumping ground of someone elseIs garbage$ This problem is compounded by recent e#ents where tragedy has befallen sca#engers and residents in a Nue!on City dumpsite that should ha#e been closed years ago$ 1t would no longer be prophetic to say that had Nue!on City used the subject dumpsite and discontinued the use of the 4ayatas dumpsite way bac5 in 1991, tragedy therein would ha#e been a#erted$

appeal, ruled that the City of anila should pay damages to Teotico$ The City of anila assailed the decision of the C) on the ground that the charter of anila states that it shall not be liable for damages caused by the negligence of the city officers in enforcing the charterE that the charter is a special law and shall pre#ail o#er the Ci#il Code which is a general lawE and that the accident happened in national highway$ I" B@+ City of anila is liable in the case at bar$

H" Aes$ 1t is true that in case of conflict, a special law pre#ails o#er a general lawE that the charter of anila is a special law and that the Ci#il Code is a general law$ 9owe#er, loo5ing at the particular pro#isions of each law concerned, the pro#ision of the anila Charter e*empting it from liability caused by the negligence of its officers is a general law in the sense that it e*empts the city from negligence of its officers in general$ There is no particular e*emption but merely a general e*emption$ @n the other hand, )rticle :1-9 of the Ci#il Code pro#ides a particular prescription to the effect that it ma5es pro#inces, cities, and municipalities liable for the damages caused to a certain person by reason of the JQdefective condition of roads, streets, bridges, public buildings, and ot$erpublic #or%s under t$eir control or supervision$K 1t is not necessary for the liability therein established to attach that the defecti#e roads or streets belong to the pro#ince, city or municipality from which responsibility is e*acted$ Bhat said article re"uires is that the pro#ince, city or municipality ha#e either Dcontrol or super#isionD o#er said street or road$ 0#en if 4$ %urgos )#enue were, therefore, a national highway, this circumstance would not necessarily detract from the City7s Dcontrol or super#ision$D

The allegation that the incident happened in a national highway was only raised for the first time in the CityIs motion for reconsideration in the Court of )ppeals, hence it cannot be gi#en due weight$ )t any rate, e#en though it is a national highway, the law contemplates that regardless if whether or not the road is national, pro#incial, city, or municipal, so long as it is under the CityIs control and Finally, petitionerIs refusal to honor the contract is not only contrary to law, super#ision, it shall be responsible for damages by reason of the defecti#e but also grossly unfair to respondent 6e*ber$ 1t was petitioner that first offered conditions thereof$ 1n the case at bar, the City admitted they ha#e control and and later persuaded respondent 6e*ber to con#ert the latterIs property into a super#ision o#er the road where Teotico fell when the City alleged that it has sanitary landfill for petitionerIs e*clusi#e use$ Bhile the property could ha#e been doing constant and regular inspection of the cityIs roads, 4$ %urgos been used for other more lucrati#e and pleasant purposes, petitioner con#inced included$ respondent 6e*ber by its assurances and stipulations in the contract$ 1n turn, respondent 6e*ber relied on petitioner to abide by their contract, only to be 1imenez vs$ City of /anila, 15( SCRA 51( rebuffed after petitioner had already ta5en initial ad#antage of the facilities$ %y #irtue of the infrastructure intended for the sanitary landfill that was erected F: 8imene! bought bagoong at the /anta )na public mar5et at the time that it thereon, respondent 6e*ber could not di#ert its use to other purposes$ 1t is but was flooded with an5le?deep water$ )s he turned around to go home, he stepped fair that respondent 6e*ber be compensated for the financial losses it has on an unco#ered opening wLc could not be seen because of dirty rainwater$ ) incurred in accordance with the obligation of petitioner as stipulated in the dirty and rusty ,?inch nail, stuc5 inside the unco#ered opening, pierced his left second negotiated contract$ 4etition is denied$ leg to a depth of 1R inches$ 9is left leg swelled and he de#eloped fe#er$ 9e was City of /anila vs 0eotico, 22 SCRA 2 7 F: 1n 8anuary 195-, at about -pm, Teotico was about to board a jeepney in 4$ %urgos, anila when he fell into an unco#ered manhole$ This caused injuries upon him$ Thereafter he sued for damages under )rticle :1-9 of the Ci#il Code the City of anila, the mayor, the city engineer, the city health officer, the city treasurer, and the chief of police$ CF1 anila ruled against Teotico$ The C), on confined for :& days, wal5ed wL crutches for 15 days and could not operate his school buses$ 9e sued City of anila and )siatic 1ntegrated Corp under whose administration the /ta$ )na had been placed by #irtue of anagement and @perating Contract$TC found for respondent$ C) re#ersed and held )siatec liable and absol#ed City of anila$ I: B@+ City of anila should be jointly and solidarily liable with )siatec

H: A0/$ 1n the City of anila # Teotico case, it was held that )rt 1, /ec , of () ,&9, which City of anila is in#o5ing in this case, establishes a general rule regulating the liability of City @f anila while )rt :1-9 CC go#erns the liability due to Jdefecti#e streets, public buildings and other public wor5sK in particular and is therefore decisi#e in this case$ 1t was also held that for liability under :1-9 to attach, control and super#ision by the pro#ince, city or municipality o#er the defecti#e public building in "uestion is enough$ 1t is not necessary that suchbelongs to such pro#ince, city or municipality$ 1n the case at bar, there is no "uestion that /ta$ )na public mar5et remained under the control of the City as e#idenced by: 1$ The contract bet )siatec and City which e*plicitly states that Jprior appro#alK of the City is still needed in the operations$ :$ ayor %agatsing of anila admitted such control and super#ision in his letter to Finance /ec$ >irata ;JThe City retains the power of super#ision and control o#er its public mar5etsQ< 2$ City employed a mar5et master for the /ta$ )na public ar5et whose primary duty is to ta5e direct super#ision and control of that particular public mar5et ,$ /ec$ 2& of Ta* Code JThe treasurer shall e*ercise direct and immediate super#ision, administration and control o#er public mar5etsQK 1t is thus the duty of the City to e*ercise reasonable care to 5eep the public mar5et reasonably safe for people fre"uenting the place for their mar5eting needs$ @rdinary precautions could ha#e been ta5en during good weather to minimi!e danger to life and limb$ The drainage hole could ha#e been placed under the stalls rather than the passageways$ The City should ha#e seen to it that the openings were co#ered$ 1t was e#ident that the certain opening was already unco#ered, and 5 months after this incident it was still unco#ered$ There were also findings that during floods, #endors would remo#e the iron grills to hasten the flow of water$ /uch acts were not prohibited nor penali!ed by the City$ +o warning sign of impending danger was e#ident$ 4etitioner had the right to assume there were no openings in the middle of the passageways and if any, that they were ade"uately co#ered$ 9ad it been co#ered, petitioner would not ha#e fallen into it$ Thus the negligence of the City is the pro*imate cause of the injury suffered$ )siatec and City are joint tort feasors and are solidarily liable$