Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA
MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE
HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.

Gamboa & Hofileña Law Office for petitioners.

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island
of Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985,
Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and
municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the
purpose of stopping respondents Commission on Elections from conducting the plebiscite which,
pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law
provides:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso,
Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern
portion of the Island of Negros, are hereby separated from the province to be known as the Province of
Negros del Norte.

SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the
Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of
the northern portion to the Island of Negros on the west, north and east, comprising a territory of
4,019.95 square kilometers more or less.

SEC. 3. The seat of government of the new province shall be the City of Cadiz.

SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected
within a period of one hundred and twenty days from the approval of this Act. After the ratification of
the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the
President of the Philippines shall appoint the first officials of the province.

SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the
expenses for which shall be charged to local funds.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord
with the Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated
that—

Sec. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or
units affected.

Section 197 of the Local Government Code enumerates the conditions which must exist to provide the
legal basis for the creation of a provincial unit and these requisites are:

SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three
thousand five hundred square kilometers, a population of at least five hundred thousand persons, an
average estimated annual income, as certified by the Ministry of Finance, of not less than ten million
pesos for the last three consecutive years, and its creation shall not reduce the population and income
of the mother province or provinces at the time of said creation to less than the minimum
requirements under this section. The territory need not be contiguous if it comprises two or more
islands.

The average estimated annual income shall include the income alloted for both the general and
infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6)

Due to the constraints brought about by the supervening Christmas holidays during which the Court
was in recess and unable to timely consider the petition, a supplemental pleading was filed by
petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them
was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant
case affecting the legality, constitutionality and validity of such exercise which should properly be
passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del N•rte, namely: the
Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay,
Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters
from the rest of the province of Negros Occidental, petitioners found need to change the prayer of
their petition "to the end that the constitutional issues which they have raised in the action will be
ventilated and given final resolution.'"At the same time, they asked that the effects of the plebiscite
which they sought to stop be suspended until the Supreme Court shall have rendered its decision on
the very fundamental and far-reaching questions that petitioners have brought out.

Acknowledging in their supplemental petition that supervening events rendered moot the prayer in
their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead,
nevertheless, that-

... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from
issuing official proclamation of the results of the plebiscite held on January 3, 1986.
Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental
other than those living within the territory of the new province of Negros del Norte to be not in
accordance with the Constitution, that a writ of mandamus be issued, directed to the respondent
Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters
of the entire Province of Negros Occidental as now existing shall participate, at the same time making
pronouncement that the plebiscite held on January 3, 1986 has no legal effect, being a patent legal
nullity;

And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to
desist from ordering the release of any local funds to answer for expenses incurred in the holding of
such plebiscite until ordered by the Court. (Rollo pp. 9-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official
proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case
(dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former
Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986.

Acting on the petition, as well as on the supplemental petition for prohibition with preliminary
injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due
course to the same, to require respondents to comment, not to file a motion to dismiss. Complying
with said resolution, public respondents, represented by the Office of the Solicitor General, on January
14, 1986, filed their Comment, arguing therein that the challenged statute.-Batas Pambansa 885,
should be accorded the presumption of legality. They submit that the said law is not void on its face
and that the petition does not show a clear, categorical and undeniable demonstration of the
supposed infringement of the Constitution. Respondents state that the powers of the
Batasang-Pambansa to enact the assailed law is beyond question. They claim that Batas Pambansa Big.
885 does not infringe the Constitution because the requisites of the Local Government Code have been
complied with. Furthermore, they submit that this case has now become moot and academic with the
proclamation of the new Province of Negros del Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental
not included in the area of the new Province of Negros del Norte, do not fall within the meaning and
scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On
this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution,
invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary to
the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements
therein, hereunder quoted:

1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable
leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It
is plausible to assert as petitioners do that when certain Barangays are separated from a parent
municipality to form a new one, all the voters therein are affected. It is much more persuasive,
however, to contend as respondents do that the acceptable construction is for those voters, who are
not from the barangays to be separated, should be excluded in the plebiscite.
2. For one thing, it is in accordance with the settled doctrine that between two possible constructions,
one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be
preferred. That which will save, not that which will destroy, commends itself for acceptance. After all,
the basic presumption all these years is one of validity. ...

3. ... Adherence to such philosophy compels the conclusion that when there are indications that the
inhabitants of several barangays are inclined to separate from a parent municipality they should be
allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose.
It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New
burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a
matter of choice-their choice. They should be left alone then to decide for themselves. To allow other
voters to participate will not yield a true expression of their will. They may even frustrate it, That
certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is
not to abide by the fundamental principle of the Constitution to promote local autonomy, the
preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of
constitutional construction, that in ascertaining the meaning of a particular provision that may give rise
to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia.

Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar.
Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the
creation of the new province of Negros del Norte have all been duly complied with, Respondents
discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in
the Local Government Code for a new province to be created has not been satisfied. Petitioners insist
that the area which would comprise the new province of Negros del Norte, would only be about
2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by
the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas
Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros
del Norte comprise an area of 4,019.95 square kilometers, more or less.

As a final argument, respondents insist that instant petition has been rendered moot and academic
considering that a plebiscite has been already conducted on January 3, 1986; that as a result thereof,
the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite,
164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the
affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of
the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte".
Thus, respondents stress the fact that following the proclamation of Negros del Norte province, the
appointments of the officials of said province created were announced. On these considerations,
respondents urge that this case should be dismissed for having been rendered moot and academic as
the creation of the new province is now a "fait accompli."

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by
the parties herein or stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has
not disbursed, nor was required to disburse any public funds in connection with the plebiscite held on
January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial
Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the
petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the release
of any public funds on account of such plebiscite should not longer deserve further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and
the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the
aforementioned Parliamentary Bill, the following:

SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the
Municipality of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries
of the northern portion of the Island of Negros on the West, North and East, containing an area of
285,656 hectares more or less. (Emphasis supplied).

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg.
885, the boundaries of the new Province of Negros del Norte were defined therein and its boundaries
then stated to be as follows:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso,
Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern
portion of the Island of Negros, are hereby separated from the Province of Negros Occidental and
constituted into a new province to be known as the Province of Negros del Norte.

SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the
Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of
the northern portion of the Island of Negros on the West, North and East, comprising a territory of
4,019.95 square kilometers more or less.

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer
Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as
follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros Occidental have the land area as
indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and
Density: 1970, 1975 and 1980 by the National Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

1. Silay City ...................................................................214.8

2. E.B. Magalona............................................................113.3

3. Victorias.....................................................................133.9

4. Manapla......................................................................112.9

5. Cadiz City ..................................................................516.5

6. Sagay .........................................................................389.6

7. Escalante ....................................................................124.0

8. Toboso.......................................................................123.4

9. Calatrava.....................................................................504.5

10. San Carlos City...........................................................451.3

11. Don Salvador Benedicto.................................... (not available)

This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve
him.

(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of
Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don
Salvador municipality, one of the component units of the new province, was derived from the City of
San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion
of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note the
uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia,
Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land
area of Murcia that was added to the portions derived from the land area of Calatrava, Negros
Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2 square
kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers,
representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R.
Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an
area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population,
Land Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see
Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the
original provision in the draft legislation, Parliamentary Bill No. 3644, reads:

SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty
days from the approval of this Act. After the ratification of the creation of the Province of Negros del
Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of
the new province.

However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above
provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the
proposed new province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would
comprise the new province that is assailed by the petitioners as violative of the provisions of our
Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be
held in the unit or units affected by the creation of the new province as a result of the consequent
division of and substantial alteration of the boundaries of the existing province. In this instance, the
voters in the remaining areas of the province of Negros Occidental should have been allowed to
participate in the questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional
requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials
appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of
the existence of this newly proclaimed province which petitioners strongly profess to have been
illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide the very excuse for perpetuation of such
wrong. For this Court to yield to the respondents' urging that, as there has been fait accompli then this
Court should passively accept and accede to the prevailing situation is an unacceptable suggestion.
Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief.
Respondents' submission will create a dangerous precedent. Should this Court decline now to perform
its duty of interpreting and indicating what the law is and should be, this might tempt again those who
strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide
and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this
Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait
accompli.

In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid
creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal
has the duty to repudiate and discourage the commission of acts which run counter to the mandate of
our fundamental law, done by whatever branch of our government. This Court gives notice that it will
not look with favor upon those who may be hereafter inclined to ram through all sorts of legislative
measures and then implement the same with indecent haste, even if such acts would violate the
Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and
deaf to protests on the ground that what is already done is done. To such untenable argument the
reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct and
rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte,
the more significant and pivotal issue in the present case revolves around in the interpretation and
application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and for
convenience, We again quote:

SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or
units affected.

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first
obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a
province is created, divided or merged and there is substantial alteration of the boundaries. It is thus
inescapable to conclude that the boundaries of the existing province of Negros Occidental would
necessarily be substantially altered by the division of its existing boundaries in order that there can be
created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than
that two political units would be affected. The first would be the parent province of Negros Occidental
because its boundaries would be substantially altered. The other affected entity would be composed of
those in the area subtracted from the mother province to constitute the proposed province of Negros
del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional
requirement but eliminates the participation of either of these two component political units. No
amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of
an alleged intent on the part of the authors and implementors of the challenged statute to carry out
what is claimed to be a mandate to guarantee and promote autonomy of local government units. The
alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution
categorically directs to be done or imposes as a requirement must first be observed, respected and
complied with. No one should be allowed to pay homage to a supposed fundamental policy intended
to guarantee and promote autonomy of local government units but at the same time transgress, ignore
and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be
no different from one who hurries to pray at the temple but then spits at the Idol therein.

We find no merit in the submission of the respondents that the petition should be dismissed because
the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point
raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the
Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are
most enlightening and provoking but are factual issues the Court cannot properly pass upon in this
case. Mention by petitioners of the unexplained changes or differences in the proposed Parliamentary
Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage
and approval of said law; the abrupt scheduling of the plebiscite; the reference to news articles
regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as
interesting reading but are not the decisive matters which should be reckoned in the resolution of this
case.

What the Court considers the only significant submissions lending a little support to respondents' case
is their reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo
Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2,
1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new municipality
from existing barangays, this Court upheld the legality of the plebiscite which was participated in
exclusively by the people of the barangay that would constitute the new municipality.

This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly
significant are the prefatory statements therein stating that said case is "one of those cases where the
discretion of the Court is allowed considerable leeway" and that "there is indeed an element of
ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was
based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not
resolve the question of how the pertinent provision of the Constitution should be correctly
interpreted.

The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al.
(supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein
that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a
parent municipality to form a new one, all the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive
Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice
Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We
hereunder quote:

2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the
municipality if the municipality is to be divided such as in the case at bar or an of the people of two or
more municipalities if there be a merger. I see no ambiguity in the Constitutional provision.

This dissenting opinion of Justice Vicente Abad Santos is the— forerunner of the ruling which We now
consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated
by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a referendum
which did not include all the people of Bulacan and Rizal, when such referendum was intended to
ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan
Manila. His dissenting opinion served as a useful guideline in the instant case.

Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The
reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable
because of the views then taken that local autonomy would be better promoted However, even this
consideration no longer retains persuasive value.

The environmental facts in the case before Us readily disclose that the subject matter under
consideration is of greater magnitude with concomitant multifarious complicated problems. In the
earlier case, what was involved was a division of a barangay which is the smallest political unit in the
Local Government Code. Understandably, few and lesser problems are involved. In the case at bar,
creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the
Constitution. To form the new province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros Occidental. This will result in the
removal of approximately 2,768.4 square kilometers from the land area of an existing province whose
boundaries will be consequently substantially altered. It becomes easy to realize that the consequent
effects cf the division of the parent province necessarily will affect all the people living in the separate
areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent
province as well as that of the new province will be inevitably affected, either for the better or for the
worse. Whatever be the case, either or both of these political groups will be affected and they are,
therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be
included in the plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to
doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari
materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del
Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a
period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks
of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite.
Logically, those to be included in such plebiscite would be the people living in the area of the proposed
new province and those living in the parent province. This assumption will be consistent with the
requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was
enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite
"shall be conducted in the proposed new province which are the areas affected." We are not disposed
to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be
diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new
province, thereby ignoring the evident reality that there are other people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa
Blg. 885 betrays their own misgivings. They must have entertained apprehensions that by holding the
plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In
anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore,
deliberately added in the enacted statute a self-serving phrase that the new province constitutes the
area affected. Such additional statement serves no useful purpose for the same is misleading,
erroneous and far from truth. The remaining portion of the parent province is as much an area affected.
The substantial alteration of the boundaries of the parent province, not to mention the other adverse
economic effects it might suffer, eloquently argue the points raised by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the
province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San
Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners'
assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656
hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole
province. In the language of petitioners, "to create Negros del Norte, the existing territory and political
subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved
was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was
involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution
anticipates, a substantial alteration of boundary.

As contended by petitioners,—

Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do
not contemplate distinct situation isolated from the mutually exclusive to each other. A Province
maybe created where an existing province is divided or two provinces merged. Such cases necessarily
will involve existing unit or units abolished and definitely the boundary being substantially altered.

It would thus be inaccurate to state that where an existing political unit is divided or its boundary
substantially altered, as the Constitution provides, only some and not all the voters in the whole unit
which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the
contrary is true.
It is also Our considered view that even hypothetically assuming that the merits of this case can
depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners' case
that deserve to be favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the
adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already
here express, We now state that the ruling in the two mentioned cases sanctioning the exclusion of the
voters belonging to an existing political unit from which the new political unit will be derived, from
participating in the plebiscite conducted for the purpose of determining the formation of another new
political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of
mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of
another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now
existing shall participate and that this Court make a pronouncement that the plebiscite held on January
3, 1986 has no legal effect for being a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and
violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed
to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional
infirmity attaching to the subject Batas Pambansa Big. 885 and also because the creation of the new
province of Negros del Norte is not in accordance with the criteria established in the Local Government
Code, the factual and legal basis for the creation of such new province which should justify the holding
of another plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province of
Negros del Norte because of the appointment of the officials thereof, must now be erased. That
Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as
quickly as possible, if only to settle the complications currently attending to its creation. As has been
manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit
filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte),
docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the
parent province to the new province, in an amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del
Norte is the significant fact that this created province does not even satisfy the area requirement
prescribed in Section 197 of the Local Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the
petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95
square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that
the land area of the new province cannot be more than 3,500 square kilometers because its land area
would, at most, be only about 2,856 square kilometers, taking into account government statistics
relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents
insist that when Section 197 of the Local Government Code speaks of the territory of the province to
be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is
not only the land area but also the land and water over which the said province has jurisdiction and
control. It is even the submission of the respondents that in this regard the marginal sea within the
three mile limit should be considered in determining the extent of the territory of the new province.
Such an interpretation is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein
the "territory need not be contiguous if it comprises two or more islands." The use of the
word territory in this particular provision of the Local Government Code and in the very last sentence
thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and
excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical
contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in the above sentence,
is only used when it describes physical contact, or a touching of sides of two solid masses of matter.
The meaning of particular terms in a statute may be ascertained by reference to words associated with
or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in
the context of the sentence above, what need not be "contiguous" is the "territory" the physical mass
of land area. There would arise no need for the legislators to use the word contiguous if they had
intended that the term "territory" embrace not only land area but also territorial waters. It can be
safely concluded that the word territory in the first paragraph of Section 197 is meant to be
synonymous with "land area" only. The words and phrases used in a statute should be given the
meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used
furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or strained
construction of the disputed provision whereby the words of the statute are arrested from their plain
and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust
result. The plain meaning in the language in a statute is the safest guide to follow in construing the
statute. A construction based on a forced or artificial meaning of its words and out of harmony of the
statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which has a long,
narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a
land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first
mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty tricks",
in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister
designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply
demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of
a local strongman" (Rollo, p. 43; emphasis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case can be
resolved without need of ascertaining the real motives and wisdom in the making of the questioned
law. No proper challenge on those grounds can also be made by petitioners in this proceeding. Neither
may this Court venture to guess the motives or wisdom in the exercise of legislative powers.
Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as
recent events have shown, on the electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros
Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to
institute this case in order to preserve the continued existence of their historic province. They were
inspired undoubtedly by their faithful commitment to our Constitution which they wish to be
respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them,
they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as
long as among our people there would be exemplary citizens such as the petitioners herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the
new province of Negros del Norte, as well as the appointment of the officials thereof are also declared
null and void.

SO ORDERED.

FIRST DIVISION

[G.R. No. L-55230. November 8, 1988.]

HON. RICHARD J. GORDON, in his capacity as City Mayor of Olongapo, Petitioner, v. JUDGE REGINO T.
VERIDIANO II and Spouses EDUARDO and ROSALINDA YAMBAO, Respondents.
 SYLLABUS

1. ADMINISTRATIVE LAW; FOOD AND DRUG ADMINISTRATION; VESTED WITH ALL DRUG INSPECTION
FUNCTIONS AND APPROVAL OF APPLICATION FOR AUTHORITY TO OPERATE OR ESTABLISH A DRUG
ESTABLISHMENT. — The authorization to operate issued by the FDA is a condition precedent to the
grant of a mayor’s permit to the drug store seeking to operate within the limits of the city. This
requirement is imperative. The power to determine if the opening of the drug store is conformable to
the national policy and the laws on the regulation of drug sales belongs to the FDA. Hence, a permit
issued by the mayor to a drug store not previously cleared with and licensed by the said agency will be
a nullity.

2. ID.; CHARTER OF OLONGAPO CITY; EMPOWERS CITY MAYOR TO GRANT OR REFUSE MUNICIPAL
LICENSES TO OPERATE OR PERMITS OF ALL CLASSES AND TO REVOKE THE SAME. — The petitioner
traces his authority to the charter of Olongapo City, R.A. No. 4645, which inter alia empowers the city
mayor under Section 10 thereof to grant or refuse municipal licenses to operate or permits of all
classes and to revoke the same for violation of the conditions upon which they were granted.

3. ID.; ID.; ID.; POWER TO APPROVE A LICENSE INCLUDE BY IMPLICATION, THE POWER TO REVOKE. —
The power to approve a license includes by implication, even if not expressly granted, the power to
revoke it. By extension, the power to revoke is limited by the authority to grant the license, from which
it is derived in the first place. Thus, if the FDA grants a license upon its finding that the applicant drug
store has complied with the requirements of the general laws and the implementing administrative
rules and regulations, it is only for their violation that the FDA may revoke the said license. By the same
token, having granted the permit upon his ascertainment that the conditions thereof as applied
particularly to Olongapo City have been complied with, it is only for the violation of such conditions
that the mayor may revoke the said permit.

4. ID.; FOOD AND DRUG ADMINISTRATION; ORDER OF CLOSURE OF A DRUG STORE FOR VIOLATION OF
ITS CONDITIONS; GROUND NOT AVAILABLE AS A GROUND FOR REVOCATION OF THE MAYOR’S PERMIT
OF THE SAME STORE. — In the present case, the closure of the San Sebastian Drug Store was ordered
by the FDA for violation of its own conditions, which it certainly had the primary power to enforce. By
revoking the mayor’s permit on the same ground for which the San Sebastian Drug Store had already
been penalized by the FDA, the mayor was in effect reversing the decision of the latter on a matter
that came under its jurisdiction. As the infraction involved the pharmacy and drug laws which the FDA
had the direct responsibility to execute, the mayor had no authority to interpose his own findings on
the matter and substitute them for the decision already made by the FDA.

5. ID.; FACTUAL FINDINGS OF ADMINISTRATIVE AUTHORITIES, ACCORDED GREAT RESPECT. — The

indefinite suspension of the mayor’s permit for Olongapo City Drug Store was based on the transfer
thereof to the site of the San Sebastian Drug Store as approved by the FDA but without permission
from the petitioner. On this matter, the Court believes that the final decision rested with the mayor.
The condition violated related more to the location in Olongapo City of business establishments in
general than to the regulation of drug stores in particular. It therefore came under the petitioner’s
jurisdiction.
 DECISION

CRUZ, J.:

The issue before the Court is the conflict between the Food and Drug Administration and the mayor of
Olongapo City over the power to grant and revoke licenses for the operation of drug stores in the said
city. While conceding that the FDA possesses such power, the mayor claims he may nevertheless, in
the exercise of his own power, prevent the operation of drug stores previously permitted by the
former.

There are two drug stores involved in this dispute, to wit, the San Sebastian Drug Store and the
Olongapo City Drug Store, both owned by private respondent Rosalinda Yambao. 1 They are located a
few meters from each other in the same building on Hospital Road, Olongapo City. 2 They were
covered by Mayor’s Permits Nos. 1954 and 1955, respectively, issued for the year 1980, 3 and licenses
to operate issued by the FDA for the same year. 4

This case arose when on March 21, 1980, at about 5:00 o’clock in the afternoon, a joint team
composed of agents from the FDA and narcotics agents from the Philippine Constabulary conducted a
"test buy" at San Sebastian Drug Store and was sold 200 tablets of Valium, 10 mg. worth P410.00
without a doctor’s prescription. 5

A report on the operation was submitted to the petitioner, as mayor of Olongapo City, on April 9, 1980.
6 On April 17, 1980, he issued a letter summarily revoking Mayor’s Permit No. 1954, effective April 18,
1980, "for rampant violation of R.A. 5921, otherwise known as the Pharmacy Law and R.A. 6425 or the
Dangerous Drugs Act of 1972." 7 Later, when the petitioner went to Singapore, Vice-Mayor Alfredo T.
de Perio, Jr. caused the posting of a signboard at the San Sebastian Drug Store announcing its
permanent closure. 8

Acting on the same investigation report of the "test-buy," and after hearing, FDA Administrator Arsenio
Regala, on April 25, 1980, directed the closure of the drug store for three days and its payment of a
P100.00 fine for violation of R.A. No. 3720. He also issued a stern warning to Yambao against a
repetition of the infraction. 9 On April 29, 1980, the FDA lifted its closure order after noting that the
penalties imposed had already been discharged and allowed the drug store to resume operations. 10

On April 30, 1980, Yambao, through her counsel, wrote a letter to the petitioner seeking
reconsideration of the revocation of Mayor’s Permit No. 1954. 11 On May 7, 1980, having received on
reply, she and her husband filed with the Regional Trial Court of Olongapo City a complaint for
mandamus and damages, with a prayer for a writ of preliminary injunction, against the petitioner and
Vice-Mayor de Perio. 12

On the same date, Yambao requested permission from the FDA to exchange the locations of the San
Sebastian Drug Store and the Olongapo City Drug Store for reasons of "business preference." 13
The request was granted. 14 But when informed to this action, the petitioner, in a letter to the private
respondent dated May 13, 1980, disapproved the transfers and suspended Mayor’s Permit No. 1955
for the Olongapo City Drug Store. 15

The Yambaos then filed on May 15, 1980, a supplemental complaint questioning the said suspension
and praying for the issuance of a preliminary writ of prohibitory injunction. 16 On the same day, the
respondent judge issued an order directing the maintenance of the status quo with respect to the
Olongapo City Drug Store pending resolution of the issues. 17

On May 21, 1980, the petitioner wrote the FDA requesting reconsideration of its order of April 29,
1980, allowing resumption of the operation of the San Sebastian Drug Store. 18 The request was
denied by the FDA in its reply dated May 27, 1980. 19

A motion for reconsideration of the status quo order had earlier been filed on May 1, 1980 by the
petitioner. After a joint hearing and an exchange of memoranda thereon, the respondent judge issued
an order on July 16, 1980, 20 the dispositive portion of which read as follows:jgc:chanrobles.com.ph

"WHEREFORE, the defendants’ motion for reconsideration of the status quo order dated May 15, 1980,
is hereby DENIED and the letter of the defendant city mayor dated April 17, 1980, for the revocation of
Mayor’s Permit No. 1954 for the San Sebastian Drug Store is declared null and void.

"Accordingly, a writ of preliminary prohibitory injunction is heretofore issued enjoining defendants

from doing acts directed towards the closure of the San Sebastian Drug Store and the suspension of
the Olongapo City Drug Store both situated at Hospital Road, Olongapo City. Further, the signboard
posted at San Sebastian Drug Store by the defendants is ordered removed in order that the said drug
store will resume its normal business operation.

"The hearing of the main petition for damages is set on August 14, 1980, at 1:30 o’clock in the
afternoon."cralaw virtua1aw library

The petitioner’s motion for reconsideration of the above-stated order was denied in an order dated
September 4, 1980. 21 The petitioner thereupon came to this Court in this petition for certiorari and
prohibition with preliminary injunction, to challenge the aforesaid orders.

We issued a temporary restraining order against the respondent judge on October 27, 1980, 22 but
lifted it on December 10, 1980, for failure of the petitioner to file his comment on the private
respondents’ motion to lift the said order and/or for issuance of a counter restraining order. 23

First, let us compare the bases of the powers and functions respectively claimed by the FDA and the
petitioner as mayor of Olongapo City.

The task of drug inspection was originally lodged with the Board of Pharmaceutical Examiners pursuant
to Act 2762, as amended by Act 4162. By virtue of Executive Order No. 392 dated January 1, 1951
(mandating reorganization of various departments and agencies), this was assumed by the Department
of Health and exercised through an office in the Bureau of Health known as the Drug Inspection
Section. This section was empowered "to authorize the opening of pharmacies, drug stores and
dispensaries, and similar establishments after inspection by persons authorized by law."cralaw
virtua1aw library

The Food and Drug Administration was created under R.A. No. 3720 (otherwise known as the Food,
Drug and Cosmetic Act), approved on June 22, 1963, and vested with all drug inspection functions in
line with "the policy of the State to insure safe and good quality supply of food, drug and cosmetics,
and to regulate the production, sale and traffic of the same to protect the health of the people."
Section 5 of this Act specifically empowers it:jgc:chanrobles.com.ph

"(e) to issue certificates of compliance with technical requirements to serve as basis for the issuance of
license and spotcheck for compliance with regulations regarding operation of food, drug and cosmetic
manufacturers and establishments."cralaw virtua1aw library

For a more effective exercise of this function, the Department of Health issued on March 5, 1968,
Administrative Order No. 60, series of 1968, laying down the requirements for the application to be
filed with the FDA for authorization to operate or establish a drug establishment. The order provides
that upon approval of the application, the FDA shall issue to the owner or administrator of the drug
store or similar establishment a "License to Operate" which "shall be renewed within the first 3 months
of each year upon payment of the required fees." This license contains the following
reservation:jgc:chanrobles.com.ph

"However, should during the period of issue, a violation of any provisions of the Food, Drug and
Cosmetic Act and/or the regulations issued thereunder be committed, this License shall be subject to
suspension or revocation."cralaw virtua1aw library

When the drug addiction problem continued to aggravate, P.D. No. 280 was promulgated on August 27,
1973, to give more teeth to the powers of the FDA, thus:jgc:chanrobles.com.ph

"Section 1. Any provision of law to the contrary notwithstanding, the Food and Drug Administrator is
hereby authorized to order the closure, or suspend or revoke the license of any drug establishment
which after administrative investigation is found guilty of selling or dispensing drugs, medicines and
other similar substances in violation of the Food, Drug and Cosmetic Act, and Dangerous Drugs Act of
1972, or other laws regulating the sale or dispensation of drugs, or rules and regulations issued
pursuant thereto.

"Sec. 2. The administrative investigation shall be summary in character. The owner of the drug store
shall be given an Opportunity to be heard." (P.D. 280, Emphasis supplied.)

For his part, the petitioner, traces his authority to the charter of Olongapo City, R.A. No. 4645, which
inter alia empowers the city mayor under Section 10 thereof:jgc:chanrobles.com.ph

"k. to grant or refuse municipal licenses to operate or permits of all classes and to revoke the same for
violation of the conditions upon which they were granted, or if acts prohibited by law or city
ordinances are being committed under protection of such licenses or in the premises in which the
business for which the same have been granted is carried on, or for any other good reason of general
interest."cralaw virtua1aw library
The charter also provides, in connection with the powers of the city health officer,
that:jgc:chanrobles.com.ph

"Sec. 6(k). He and his representatives shall have the power to arrest violators of health laws,
ordinances, rules and regulations and to recommend the revocation or suspension of the permits of
the different establishments to the City Mayor for violation of health laws, ordinances, rules and
regulations." (Emphasis supplied.)

An application to establish a drug store in Olongapo City must be filed with the Office of the Mayor and
must show that the applicant has complied with the existing ordinances on health and sanitation,
location or zoning, fire or building, and other local requirements. If the application is approved, the
applicant is granted what is denominated a "Mayor’s Permit" providing inter alia that it "is valid only at
the place stated above and until (date), unless sooner revoked for cause." 24

Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile
the same instead of declaring outright the invalidity of one as against the other. Such alacrity should be
avoided. The wise policy is for the judge to harmonize them if this is possible, bearing in mind that they
are equally the handiwork of the same legislature, and so give effect to both while at the same time
also according due respect to a coordinate department of the government. It is this policy the Court
will apply in arriving at the interpretation of the laws above-cited and the conclusions that should
follow therefrom.

A study of the said laws will show that the authorization to operate issued by the FDA is a condition
precedent to the grant of a mayor’s permit to the drug store seeking to operate within the limits of the
city. This requirement is imperative. The power to determine if the opening of the drug store is
conformable to the national policy and the laws on the regulation of drug sales belongs to the FDA.
Hence, a permit issued by the mayor to a drug store not previously cleared with and licensed by the
said agency will be a nullity.

This is not to say, however, that the issuance of the mayor’s permit is mandatory once it is shown that
the FDA has licensed the operation of the applicant drug store. This is not a necessary consequence.
For while it may appear that the applicant has complied with the pertinent national laws and policies,
this fact alone will not signify compliance with the particular conditions laid down by the local
authorities like zoning, building, health, sanitation, and safety regulations, and other municipal
ordinances enacted under the general welfare clause. This compliance still has to be ascertained by the
mayor if the permit is to be issued by his office. Should he find that the local requirements have not
been observed, the mayor must then, in the exercise of his own authority under the charter, refuse to
grant the permit sought.

The power to approve a license includes by implication, even if not expressly granted, the power to
revoke it. By extension, the power to revoke is limited by the authority to grant the license, from which
it is derived in the first place. Thus, if the FDA grants a license upon its finding that the applicant drug
store has complied with the requirements of the general laws and the implementing administrative
rules and regulations, it is only for their violation that the FDA may revoke the said license. By the same
token, having granted the permit upon his ascertainment that the conditions thereof as applied
particularly to Olongapo City have been complied with, it is only for the violation of such conditions
that the mayor may revoke the said permit.
Conversely, the mayor may not revoke his own permit on the ground that the compliance with the
conditions laid down and found satisfactory by the FDA when it issued its license is in his own view not
acceptable. This very same principle also operates on the FDA. The FDA may not revoke its license on
the ground that the conditions laid down in the mayor’s permit have been violated notwithstanding
that no such finding has been made by the mayor.

In the present case, the closure of the San Sebastian Drug Store was ordered by the FDA for violation of
its own conditions, which it certainly had the primary power to enforce. By revoking the mayor’s
permit on the same ground for which the San Sebastian Drug Store had already been penalized by the
FDA, the mayor was in effect reversing the decision of the latter on a matter that came under its
jurisdiction. As the infraction involved the pharmacy and drug laws which the FDA had the direct
responsibility to execute, the mayor had no authority to interpose his own findings on the matter and
substitute them for the decision already made by the FDA.

It would have been different if the offense condoned by the FDA was a violation of, say, a city
ordinance requiring buildings to be provided with safety devices or equipment, like fire extinguishers.
The city executive may ignore such condonation and revoke the mayor’s permit just the same. In this
situation, he would be acting properly because the enforcement of the city ordinance is his own
prerogative. In the present case, however, the condition allegedly violated related to a national law,
not to a matter of merely local concern, and so came under the jurisdiction of the FDA.

Settled is the rule that the factual findings of administrative authorities are accorded great respect
because of their acknowledged expertise in the fields of specialization to which they are assigned. 25
Even the courts of justice, including this Court, are concluded by such findings in the absence of a clear
showing of a grave abuse of discretion, which is not present in the case at bar. For all his experience in
the enforcement of city ordinances, the petitioner cannot claim the superior aptitudes of the FDA in
the enforcement of the pharmacy and drug addiction laws. He should therefore also be prepared, like
the courts of justice themselves, to accept its decisions on this matter.

The petitioner magnifies the infraction committed by the San Sebastian Drug Store but the FDA
minimizes it. According to the FDA Administrator, Valium is not even a prohibited drug, which is why
the penalty imposed was only a 3-day closure of the drug store and a fine of P100.00. 26 Notably, the
criminal charges filed against the private respondent for the questioned transaction were dismissed by
the fiscal’s office. 27

It is also worth noting that the San Sebastian Drug Store was penalized by the FDA only after a hearing
held on April 25, 1980, at which private respondent Yambao, assisted by her lawyer-husband,
appeared and testified. 28 By contrast, the revocation of the mayor’s permit was communicated to her
in a letter 29 reading simply as follows:chanrob1es virtual 1aw library

April 17, 1980

Rosalinda Yambao

c/o San Sebastian Drug Store

Hospital Road, Olongapo City

Madame:chanrob1es virtual 1aw library

Based on a report submitted by PC Major Virtus V. Gil, Chief 3 RFO, Dis. B, Task Force `Bagong Buhay,’
you are rampantly violating the provisions of Republic Act 5921 otherwise known as the `Pharmacy
Law.’

Aside from this, there is evidence that you are dispensing regulated drugs contrary to the provisions of
R.A. 6425 otherwise known as the Dangerous Drugs Act of 1972.

In view of the above, Mayor’s Permit No. 1954 heretofore issued in your name for the operation of a
drug store (San Sebastian) at the Annex Building of the Fil-Am (IYC),along Hospital Road, this City, is
REVOKED effective April 18, 1980.

PLEASE BE GUIDED ACCORDINGLY.

Very truly yours,

(SGD.) RICHARD J. GORDON

City Mayor

If only for the violation of due process which is manifest from this letter, the mayor’s arbitrary action
can be annulled.

The indefinite suspension of the mayor’s permit for Olongapo City Drug Store was based on the
transfer thereof to the site of the San Sebastian Drug Store as approved by the FDA but without
permission from the petitioner. On this matter, the Court believes that the final decision rested with
the mayor. The condition violated related more to the location in Olongapo City of business
establishments in general than to the regulation of drug stores in particular. It therefore came under
the petitioner’s jurisdiction.

The FDA would have the right to disapprove the site of the drug store only if it would impair the health
or other interests of the customers in contravention of the national laws or policies, as where the drug
store is located in an unsanitary site. But the local executive would have reason to object to the
location, even if approved by the FDA, where it does not conform to, say, a zoning ordinance intended
to promote the comfort and convenience of the city residents.

The reason given by the petitioner in disapproving the transfer was violation of Mayor’s Permit No.
1955, which by its terms was valid only at the place stated therein. In the letter of May 13, 1980, 30 the
private respondent was clearly informed that for violation of the condition of Mayor’s Permit No. 1955
granting her the privilege of operating the Olongapo City Drug Store at No. 1-B Fil-Am Bldg., Hospital
Road, the said permit was "hereby suspended." We find that reason was valid enough. The permit
clearly allowed the drug store to operate in the address given and not elsewhere. No hearing was
necessary because the transfer without the mayor’s permission is not disputed and was in fact
impliedly admitted by the private Respondent.
If the private respondent wanted to transfer her drug store, what she should have done was to secure
the approval not only of the FDA but also, and especially, of the mayor. Merely notifying the petitioner
of the change in the location of her drug stores as allowed by the FDA was not enough. The FDA had no
authority to revoke that particular condition of the mayor’s permits indicating the sites of the two drug
stores as approved by the mayor in the light of the needs of the city. Only the mayor could.

We assume that Mayor’s Permit No. 1954 could also have been validly suspended for the same reason
(as the sites of the two drug stores were exchanged without amendment of their respective permits)
were it not for the fact that such permit was revoked by the petitioner on the more serious ground of
violation of the Pharmacy Law and the Dangerous Drugs Act of 1972.

It is understood, however, that the suspension should be deemed valid only as the two drug stores
have not returned to their original sites as specified in their respective permits. Indefinite suspension
will amount to a permanent revocation, which will not be a commensurate penalty with the degree of
the violation being penalized.

The Court adds that denial of the request for transfer, if properly made by the private respondents,
may not be validly denied by the judge in the absence of a clear showing that the transfer sought will
prejudice the residents of the city. As the two drug stores are only a few meters from each other, and
in the same building, there would seem to be no reason why the mere exchange of their locations
should not be permitted. Notably, the location of the two drug stores had previously been approved in
Mayor’s Permit Nos. 1954 and 1955.

Our holding is that the petitioner acted invalidly in revoking Mayor’s Permit No. 1954 after the FDA had
authorized the resumption of operations of the San Sebastian Drug Store following the enforcement of
the penalties imposed upon it. However, it was competent for the petitioner to suspend Mayor’s
Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the permit. Such
suspension should nevertheless be effective only pending the return of the drug store to its authorized
original site or the eventual approval by the mayor of the requested transfer if found to be warranted.

The petitioner is to be commended for his zeal in the promotion of the campaign against drug
addiction, which has sapped the vigor and blighted the future of many of our people, especially the
youth. The legal presumption is that he acted in good faith and was motivated only by his concern for
the residents of Olongapo City when he directed the closure of the first drug store and the suspension
of the permit of the other drug store. It appears, though, that he may have overreacted and was for
this reason properly restrained by the respondent judge.

WHEREFORE, the challenged Orders of July 6, 1980 and September 4, 1980, ate MODIFIED in the sense
that the suspension of Mayor’s Permit No. 1955 shall be considered valid but only until the San
Sebastian Drug Store and the Olongapo City Drug Store return to their original sites as specified in the
FDA licenses and the mayor’s permits or until the request for transfer, if made by the private
respondents, is approved but the petitioner. The rest of the said Orders are AFFIRMED, with costs
against the petitioner.

SO ORDERED
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-53487 May 25, 1981

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEÑA, NICETAS DAGAR and JESUS
EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, Ormoc City
Branch V, BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO,
Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO NAVARRO, Barangay
Secretary CONCHITA MARAYA and Barangay Treasurer LUCENA BALTAZAR, respondents.

AQUINO, J.:1äwphï1.ñët

This case is about the constitutionality of four resolutions of the barangay council of Valencia, Ormoc
City, regarding the acquisition of the wooden image of San Vicente Ferrer to be used in the celebration
of his annual feast day. That issue was spawned by the controversy as to whether the parish priest or a
layman should have the custody of the image.

On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional
socio-religious celebration" every fifth day of April "of the feast day of Señor San Vicente Ferrer, the
patron saint of Valencia".

That resolution designated the members of nine committees who would take charge of the 1976
festivity. lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the construction
of a waiting shed as the barangay's projects. Funds for the two projects would be obtained through the
selling of tickets and cash donations " (Exh A or 6).

On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance
with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman or hermano mayor of
the fiesta, would be the caretaker of the image of San Vicente Ferrer and that the image would remain
in his residence for one year and until the election of his successor as chairman of the next feast day.

It was further provided in the resolution that the image would be made available to the Catholic parish
church during the celebration of the saint's feast day (Exh. B or 7).

Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay general
assembly on March 26, 1976. Two hundred seventy-two voters ratified the two resolutions (Exh. 2 and
5).

Funds were raised by means of solicitations0 and cash donations of the barangay residents and those
of the neighboring places of Valencia. With those funds, the waiting shed was constructed and the
wooden image of San Vicente Ferrer was acquired in Cebu City by the barangay council for four
hundred pesos (Exh. F-l, 3 and 4).

On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay
Valencia so that the devotees could worship the saint during the mass for the fiesta.

A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña refused to
return that image to the barangay council on the pretext that it was the property of the church
because church funds were used for its acquisition.

Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father
Osmeña allegedly uttered defamatory remarks against the barangay captain, Manuel C. Veloso,
apparently in connection with the disputed image. That incident provoked Veloso to file against Father
Osmeña in the city court of Ormoc City a charge for grave oral defamation.

Father Osmeña retaliated by filing administrative complaints against Veloso with the city mayor's office
and the Department of Local Government and Community Development on the grounds of immorality,
grave abuse of authority, acts unbecoming a public official and ignorance of the law.

Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because
Father Osmeña did not accede to the request of Cabatingan to have custody of the image and
"maliciously ignored" the council's Resolution No. 6, the council enacted on May 12, 1976 Resolution
No. 10, authorizing the hiring of a lawyer to file a replevin case against Father Osmeña for the recovery
of the image (Exh. C or 8). On June 14, 1976, the barangay council passed Resolution No. 12,
appointing Veloso as its representative in the replevin case (Exh. D or 9).

The replevin case was filed in the city court of Ormoc City against Father Osmeña and Bishop Cipriano
Urgel (Exh. F). After the barangay council had posted a cash bond of eight hundred pesos, Father
Osmeña turned over the image to the council (p. 10, Rollo). ln his answer to the complaint for replevin,
he assailed the constitutionality of the said resolutions (Exh. F-1).

Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic
laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its members
(excluding two members) a complaint in the Court of First Instance at Ormoc City, praying for the
annulment of the said resolutions (Civil Case No. 1680-0).

The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners
appealed under Republic Act No. 5440. The petitioners contend that the barangay council was not duly
constituted because lsidoro M. Mañago, Jr., the chairman of the kabataang barangay, was not allowed
to participate in its sessions.

Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A).
Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L, directed that
all barrios should be known as barangays and adopted the Revised Barrio Charter as the Barangay
Charter.

Barrios are units of municipalities or municipal districts in which they are situated. They are
quasi-municipal corporations endowed with such powers" as are provided by law "for the performance
of particular government functions, to be exercised by and through their respective barrio
governments in conformity with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).

The barrio assembly consists of all persons who are residents of the barrio for at least six months,
eighteen years of age or over and Filipino citizens duly registered in the list kept by the barrio secretary
(Sec. 4, Ibid).

The barrio council, now barangay council, is composed of the barangay captain and six councilmen (Sec.
7, Ibid). Section 3 of Presidential Decree No. 684, which took effect on April 15, 1975, provides that
"the barangay youth chairman shall be an ex-officio member of the barangay council", having the same
powers and functions as a barangay councilman.

In this case, Mañago, the barangay youth chairman, was notified of the sessions of the barangay
council to be held on March 23 and 26, 1976 but he was not able to attend those sessions because he
was working with a construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).

Mañago's absence from the sessions of the barangay council did not render the said resolutions void.
There was a quorum when the said resolutions were passed.

The other contention of the petitioners is that the resolutions contravene the constitutional provisions
that "no law shall be made respecting an establishment of religion" and that "no public money or
property shall ever be appropriated, applied, paid, or used, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such.
except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII,
Constitution).

That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly
establish any religion, nor abridge religious liberty, nor appropriate public money or property for the
benefit of any sect, priest or clergyman. The image was purchased with private funds, not with tax
money. The construction of a waiting shed is entirely a secular matter.

Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Catholic
religion by using the funds raised by solicitations and donations for the purchase of the patron saint's
wooden image and making the image available to the Catholic church.

The preposterousness of that argument is rendered more evident by the fact that counsel advanced
that argument in behalf of the petitioner, Father Osmeña the parish priest.

The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the
patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with
religious matters or the religious beliefs of the barrio residents. One of the highlights of the fiesta was
the mass. Consequently, the image of the patron saint had to be placed in the church when the mass
was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio,
then any activity intended to facilitate the worship of the patron saint (such as the acquisition and
display of his image) cannot be branded as illegal.

As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained
tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the
masses.

The barangay council designated a layman as the custodian of the wooden image in order to forestall
any suspicion that it is favoring the Catholic church. A more practical reason for that arrangement
would be that the image, if placed in a layman's custody, could easily be made available to any family
desiring to borrow the image in connection with prayers and novenas.

The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore
that the said resolutions favored the Catholic church. On the other hand, petitioners Dagar and
Edullantes swore that the resolutions prejudiced the Catholics because they could see the image in the
church only once a year or during the fiesta (Exh. H and J).

We find that the momentous issues of separation of church and state, freedom of religion annd the
use of public money to favor any sect or church are not involved at all in this case even remotely or
indirectly. lt is not a microcosmic test case on those issues.

This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties
had been more diplomatic and tactful and if Father Osmeña had taken the trouble of causing
contributions to be solicited from his own parishioners for the purchase of another image of San
Vicente Ferrer to be installed in his church.

There can be no question that the image in question belongs to the barangay council. Father Osmeña
claim that it belongs to his church is wrong. The barangay council, as owner of the image, has the right
to determine who should have custody thereof.

If it chooses to change its mind and decides to give the image to the Catholic church. that action would
not violate the Constitution because the image was acquired with private funds and is its private
property.

The council has the right to take measures to recover possession of the image by enacting Resolutions
Nos. 10 and 12.

Not every governmental activity which involves the expenditure of public funds and which has some
religious tint is violative of the constitutional provisions regarding separation of church and state,
freedom of worship and banning the use of public money or property.

In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty
thousand pesos for the cost of plates and the printing of postage stamps with new designs. Under the
law, the Director of Posts, with the approval of the Department Head and the President of the
Philippines, issued in 1936 postage stamps to commemorate the celebration in Manila of the 33rd
International Eucharistic Congress sponsored by the Catholic Church.
The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the
stamps showed a map of the Philippines and nothing about the Catholic Church. No religious purpose
was intended.

Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought to
enjoin the sale of those commemorative postage stamps.

It was held that the issuance of the stamps, while linked inseparably with an event of a religious
character, was not designed as a propaganda for the Catholic Church. Aglipay's prohibition suit was
dismissed.

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil. 307,
where a religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for the purpose
of raising funds to meet the expenses for the annual fiesta in honor of the Most Holy Sacrament and
the Virgin Lady of Guadalupe, was held accountable for the funds which it held as trustee. 0

Finding that the petitioners have no cause of action for the annulment of the barangay resolutions, the
lower court's judgment dismissing their amended petition is affirmed. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

[G.R. No. L-14322. February 25, 1960.]

In the matter of the TESTATE ESTATE of PETRONILA TAMPOY, deceased, v. DIOSDADA ALBERASTINE,
petitioner and Appellant.

Agustin Y. Kintanar for Appellant.

SYLLABUS

1. WILLS; TESTATRIX’S FAILURE TO SIGN LEFT MARGIN. — Where a will consist of two pages and the
last page had been duly signed by the testatrix and the three testimonial witnesses who also signed the
first page but the testatrix failed to sign the left margin of the first page, Held: that the will was not
executed in accordance with law. Section 618 of Act 190, as amended, requires that the testator sign
the will and each and every page thereof in the presence of the testator and of each other, which
requirement should be expressed in the attestation clause. This requirement is mandatory, for failure
to comply with it is fatal to the validity of the will (Rodriguez v. Alcala, 55 Phil., 150). It has been held
that "statutes prescribing the formalities to be observed in the execution of wills are very strictly
construed.

DECISION

BAUTISTA ANGELO, J.:

This concerns the probate of a document which purports to be the last will and testament of one
Petronila Tampoy. After the petition was published in accordance with law and petitioner had
presented oral and documentary evidence, the trial court denied the petition on the ground that the
left hand margin of the first page of the will does not bear the thumbmark of the testatrix. Petitioner
appealed from this ruling but the Court of Appeals certified the case to us because it involves purely a
question of law.

The facts of this case as found by the trial court are as follows:jgc:chanrobles.com.ph
"De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogó a Bonifacio Miñoza que la
leyera el testamento Exhibito A y la explicara su contenido en su casa en la calle San Miguel, del
municipio de Argao, provincia de Cebú, en 19 de noviembre de 1939, y asi lo hizo Bonifacio Miñoza en
presencia de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Peña y Simeona Omboy, y
después de conformarse con el contendido del testamento, ella rogó a Bonifacio Miñoza, que
escribiera su nombre al pie del testamento, en la pagina segunda, y asi lo hizo Bonifacio Miñoza, y
después ella estampó su marca digital entra su nombre y apellido en presencia de todos y cada uno de
los tres testigos instrumentales, Rosario K. Chan, Mauricio da la Peña y Simeon Omboy y de Bonifacio
Miñoza, y después, Bonifacio Miñoza firmó también al pie del testamento, en la pagina 2, en presencia
de la testadora y da todos y cada uno de los tres testigos arriba nombrados. La testadora asi como
Bonifacio Miñoza no firmaron, sin embargo, en la margen izquierda ni en ninguna parte de la primera
pagina del testamento que se halla compuesto de dos paginas. Todos y cada uno de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Peña y Simeon Omboy, firmaron al pie de la clausula de
atestiguamiento que esta escrita en la pagina segunda del testamento y en la margen izquierda de la
misma pagina 2 y de la pagina primera en presencia de la testadora, de Bonifacio Miñoza, del abogado
Kintanar y de todos y cada uno de ellos. El testamento fué otorgado por la testadora libre y
expontaneamente. sin haber sido amenazada, forzada o intimidada, y sin haberse ejercido sobre ella
influencia indebida, estando la misma en pleno uso de sus facultades mentales y disfrutando de buena
salud. La testadora falleció en su casa en Argao en 22 de febrero de 1957 (Véase certificado de
defunción Exhibito B). La heredera instituida en el testamento, Carman Alberastine, murió dos
semanas después que la testadora, o sea en 7 de Marzo de 1957, dejando a su madre, la solicitante
Diosdada Alberastine."cralaw virtua1aw library

The above facts are not controverted, there being no opposition to the probate of the will. However,
the trial court denied the petition on the ground that the first page of the will does not bear the
thumbmark of the testatrix. Petitioner now prays that this ruling be set aside for the reason that,
although the first page of the will does not bear the thumbmark of the testatrix, the same however
expresses her true intention to give the property to her whose claims remains undisputed. She wishes
to emphasize that no one has filed any opposition to the probate of the will and that while the first
page does not bear the thumbmark of the testatrix, the second however bears her thumbmark and
both pages were signed by the three testimonial witnesses. Moreover, despite the fact that the
petition for probate is unopposed, the three testimonial witnesses testified and manifested to the
court that the document expresses the true and voluntary will of the deceased.

This contention cannot be sustained as it runs counter to the express provision of the law. Thus,
Section 618 of Act 190, as amended, requires that the testator sign the will and each and every page
thereof in the presence of the witnesses, and that the latter sign the will and each and every page
thereof in the presence of the testator and of each other, which requirement should be expressed in
the attestation clause. This requirement is mandatory, for failure to comply with it is fatal to the
validity of the will (Rodriguez v. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes prescribing
the formalities to be observed in the execution of wills are very strictly construed. As stated in 40 Cyc.,
at page 1097, ‘A will must be executed in accordance with the statutory requirements; otherwise it is
entirely void.’ All these requirements stand as of equal importance and must be observed, and courts
cannot supply the defective execution of a will. No power or discretion is vested in them, either to
superadd other conditions or dispense with those enumerated in the statutes" (Uy Coque v. Navas L.
Sioca, 43 Phil., 405, 407; See also Saño v. Quintana, 48 Phil., 506; Gumban v. Gorecho 50 Phil., 30;
Quinto v. Morata, 54 Phil., 481).
Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the
testatrix on its first page even if it bears the signature of the three instrumental witnesses, we cannot
escape the conclusion that the same fails to comply with the law and therefore, cannot be admitted to
probate.

Wherefore, the order appealed from is affirmed, without pronouncement as to costs.

he reason that, although the first page of the will does not bear the thumbmark of the testatrix, the
same however expresses her true intention to givethe property to her whose claims remains
undisputed. She wishes to emphasize that no one has filed any to the opposition to the probate of the
will and that while the first page does not bear the thumbmark of the testatrix, the second however
bears her thumbmark and both pages were signed by the three testimonial witnesses. Moreover,
despite the fact that the petition for probate is unoppossed, the three testimonial witnesses testified
and manifested to the court that the document expresses the true and voluntary will of the deceased.

This contention cannot be sustained as it runs counter to the express provision of the law. Thus,
Section 618 of Act 190, as amended, requires that the testator sign the will and each and every page
thereof in the presence of the witnesses, and that the latter sign the will and each and every page
thereof in the presence of the testator and of each other, which requirement should be expressed in
the attestation clause. This requirement is mandatory, for failure to comply with it is fatal to the
validity of the will (Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes prescribing
the formalities to be observed in the execution of wills are very strictly construed. As stated in 40 Cyc.,
at page 1097, 'A will must be executed in accordance with the statutory requirements; otherwise it is
entirely void.' All these requirements stand as of equal importance and must be observed, and courts
cannot supply the defective execution of a will. No power or discretion is vested in them, either to
superadd other conditions or dispence with those enumerated in the statutes" (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 407; See also Saño vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30;
Quinto vs. Morata, 54 Phil., 481).

Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the
testatrix on its first page even if it bears the signature of the three instrumental witnesses, we cannot
escape the conclusion that the same fails to comply with the law and therefore, cannot be admitted to
probate.

Wherefore, the order appealed from is affirmed, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.B.L., Endencia, Barrera and
Gutierrez, David, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in
CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod
City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla,
to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,
855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said
Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court
of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla
resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002 (10942), which is registered in my name according to the records of the
Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the
rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the
children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge
Rabadilla shall have already received the ownership of the said Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also
at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge
 Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina
Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs
of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the
obligation to still give yearly, the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on the month of December of each
year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one
to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this
said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and
deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza,
on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command in this my addition (Codicil),
Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my
heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the
latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until
Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and
his heirs of this Lot No. 1392, that they will obey and follow that should they decide to
sell, lease, mortgage, they cannot negotiate with others than my near descendants and
my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner),
Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as
Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the
above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in
disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants
and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar
(75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza
from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite
repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the
sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the
obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot
No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name
of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the
surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order
of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs,
arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to
deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be
delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central;
and, this is considered compliance of the annuity as mentioned, and in the same manner will
compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking
into consideration the composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable
on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial
delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and
disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed
as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe
the non-performance of the command as mandated exaction from them simply because they are the
children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of
the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of
the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the
heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without
prejudice.

SO ORDERED."6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of
sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja
Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985;
and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it
proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the
estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open
Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja
Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of
100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its
fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of
Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in
ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview
of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article
882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the
absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find
application as there was no modal institution and the testatrix intended a mere simple substitution - i.e.
the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants"
should the obligation to deliver the fruits to herein private respondent be not complied with. And since
the testatrix died single and without issue, there can be no valid substitution and such testamentary
provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the
substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants"
without a definite identity or reference as to who are the "near descendants" and therefore, under
Articles 8438 and 8459 of the New Civil Code, the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals
deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on
the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found
that the private respondent had a cause of action against the petitioner. The disquisition made on
modal institution was, precisely, to stress that the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in
accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the
moment of death of the decedent10 and compulsory heirs are called to succeed by operation of law.
The legitimate children and descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs.11 Thus, the petitioner, his mother and sisters, as compulsory heirs of
the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of
further proceedings, and the successional rights were transmitted to them from the moment of death
of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of
a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue
of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations
not extinguished by death also form part of the estate of the decedent; corollarily, the obligations
imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his
compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered to the herein private respondent every year.
Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the
said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved
to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the
right of private respondent over the usufruct, the fulfillment or performance of which is now being
demanded by the latter through the institution of the case at bar. Therefore, private respondent has a
cause of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable
because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by
the testatrix's near descendants should there be noncompliance with the obligation to deliver the
piculs of sugar to private respondent.
Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or
heirs first instituted. Under substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case the original heir should die before
him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution,12 or (2)
leave his/her property to one person with the express charge that it be transmitted subsequently to
another or others, as in a fideicommissary substitution.13 The Codicil sued upon contemplates neither
of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.14 In the case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that,
should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property
referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.15 In the case under consideration, the instituted heir is in
fact allowed under the Codicil to alienate the property provided the negotiation is with the near
descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to preserve clearly imposed
by the testator in his will, there is no fideicommissary substitution."16 Also, the near descendants' right
to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863,
the second heir or the fideicommissary to whom the property is transmitted must not be beyond one
degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first
heir is not related by first degree to the second heir.17 In the case under scrutiny, the near descendants
are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil
is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision
of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the
testator, or the charge imposed on him, shall not be considered as a condition unless it appears that
such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of the testator and for the return of anything he or
they may receive, together with its fruits and interests, if he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator, it shall be complied with in a manner most
analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator states
(1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3)
the charge imposed by the testator upon the heir.18 A "mode" imposes an obligation upon the heir or
legatee but it does not affect the efficacy of his rights to the succession.19 On the other hand, in a
conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends but does not obligate; and the mode
obligates but does not suspend.20 To some extent, it is similar to a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix
intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the
testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one
hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the
lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is
clear, though, that should the obligation be not complied with, the property shall be turned over to the
testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
evidently modal in nature because it imposes a charge upon the instituted heir without, however,
affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon
the heir should not be considered a condition unless it clearly appears from the Will itself that such
was the intention of the testator. In case of doubt, the institution should be considered as modal and
not conditional.22

Neither is there tenability in the other contention of petitioner that the private respondent has only a
right of usufruct but not the right to seize the property itself from the instituted heir because the right
to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application
of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking
into consideration the circumstances under which it was made.23 Such construction as will sustain and
uphold the Will in all its parts must be adopted.24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs
of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr.
Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or
otherwise negotiate the property involved. The Codicil further provides that in the event that the
obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and
turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with
the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since
the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his
successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said
obligation should equally apply to the instituted heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said
obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner
had become the obligation of the lessee; that petitioner is deemed to have made a substantial and
constructive compliance of his obligation through the consummated settlement between the lessee
and the private respondent, and having consummated a settlement with the petitioner, the recourse
of the private respondent is the fulfillment of the obligation under the amicable settlement and not the
seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of
his property, to take effect after his death.25 Since the Will expresses the manner in which a person
intends how his properties be disposed, the wishes and desires of the testator must be strictly
followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat
the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated
December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.

Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.

LAUREL, J.:

The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks
the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from
issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic
Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues
of postage stamps commemorating the celebration in the City of Manila of the Thirty-third
international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the
fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the
Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the
petitioner's attorney, the respondent publicly announced having sent to the United States the designs
of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue,
green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6,
16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater part
thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the
petitioner herein.

The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant
case, although he admits that the writ may properly restrain ministerial functions. While, generally,
prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other
than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by
statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons,
whether excercising functions judicial or ministerial, which are without or in excess of the jurisdiction
of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The
terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly
comprehensive and include the challenged act of the respondent Director of Posts in the present case,
which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . .
jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not
confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and
to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in
appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not
infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to
prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of
actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)

The more important question raised refers to the alleged violation of the Constitution by the
respondent in issuing and selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of
section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of
religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or leprosarium.

The prohibition herein expressed is a direct corollary of the principle of separation of church and state.
Without the necessity of adverting to the historical background of this principle in our country, it is
sufficient to say that our history, not to speak of the history of mankind, has taught us that the union
of church and state is prejudicial to both, for ocassions might arise when the estate will use the church,
and the church the state, as a weapon in the furtherance of their recognized this principle of
separation of church and state in the early stages of our constitutional development; it was inserted in
the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President
McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in
the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the
supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy
both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in
taking their oath to support and defend the constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and recognized implications.
It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious
toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for
religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the
Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order
to establish a government that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy," they thereby manifested reliance
upon Him who guides the destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately
accorded to religious sects and denominations. Our Constitution and laws exempt from taxation
properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the
Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm.
Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or
dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium
9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public
schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation
to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their
observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are considered crimes against the fundamental
laws of the state (see arts. 132 and 133, Revised Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in
question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:

No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME
AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE
COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled
and by the authority of the same:

SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available
out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing
of postage stamps with new designs, and other expenses incident thereto.

SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications,
is hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the
manner indicated and as often as may be deemed advantageous to the Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

SEC. 4. This act shall take effect on its approval.

Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and
printing of postage stamps with new designs and other expenses incident thereto, and authorizes the
Director of Posts, with the approval of the Secretary of Public Works and Communications, to dispose
of the amount appropriated in the manner indicated and "as often as may be deemed advantageous to
the Government". The printing and issuance of the postage stamps in question appears to have been
approved by authority of the President of the Philippines in a letter dated September 1, 1936, made
part of the respondent's memorandum as Exhibit A. The respondent alleges that the Government of
the Philippines would suffer losses if the writ prayed for is granted. He estimates the revenue to be
derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still
remain to be sold stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the
discretionary power to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase "advantageous to the Government" does
not authorize the violation of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or support of a particular sect or church. In
the present case, however, the issuance of the postage stamps in question by the Director of Posts and
the Secretary of Public Works and Communications was not inspired by any sectarian denomination.
The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money
derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of
the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the
only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more
tourist to this country." The officials concerned merely, took advantage of an event considered of
international importance "to give publicity to the Philippines and its people" (Letter of the
Undersecretary of Public Works and Communications to the President of the Philippines, June 9, 1936;
p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed
(Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the
Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII
International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress
itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the
issuance and sale of the stamps in question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not
the aim and purpose of the Government. We are of the opinion that the Government should not be
embarassed in its activities simply because of incidental results, more or less religious in character, if
the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The
main purpose should not be frustrated by its subordinate to mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate
the complete separation of church and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the Government is taking sides or favoring a
particular religious sect or institution. But, upon very serious reflection, examination of Act No. 4052,
and scrutiny of the attending circumstances, we have come to the conclusion that there has been no
constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval
of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the Government." Even if we were to assume
that these officials made use of a poor judgment in issuing and selling the postage stamps in question
still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment
and the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in
setting aside the official act assailed as coming within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-23052 January 29, 1968

CITY OF MANILA, petitioner,

vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.

Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P.
Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down
town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As
he stepped down from the curb to board the jeepney, and took a few steps, he fell inside an uncovered
and unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the
manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of
the manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were
treated, after which he was taken home. In addition to the lacerated wound in his left upper eyelid,
Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart
from an abrasion on the right infra-patella region. These injuries and the allergic eruption caused by
anti-tetanus injections administered to him in the hospital, required further medical treatment by a
private practitioner who charged therefor P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila,
a complaint — which was, subsequently, amended — for damages against the City of Manila, its mayor,
city engineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial
court, and quoted with approval by the Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor
at the University of the East. He held responsible positions in various business firms like the Philippine
Merchandising Co., the A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere
Packing Corporation. He was also associated with several civic organizations such as the Wack Wack
Golf Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knights of
Rizal. As a result of the incident, plaintiff was prevented from engaging in his customary occupation for
twenty days. Plaintiff has lost a daily income of about P50.00 during his incapacity to work. Because of
the incident, he was subjected to humiliation and ridicule by his business associates and friends. During
the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor
children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to
pay his counsel the sum of P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm
Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a
catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the
same was covered on the same day (Exhibit 4); that again the iron cover of the same catch basin was
reported missing on January 30, 1958, but the said cover was replaced the next day (Exhibit 5); that the
Office of the City Engineer never received any report to the effect that the catchbasin in question was
not covered between January 25 and 29, 1968; that it has always been a policy of the said office, which
is charged with the duty of installation, repair and care of storm drains in the City of Manila, that
whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is
immediately attended to, either by immediately replacing the missing cover or covering the catchbasin
with steel matting that because of the lucrative scrap iron business then prevailing, stealing of iron
catchbasin covers was rampant; that the Office of the City Engineer has filed complaints in court
resulting from theft of said iron covers; that in order to prevent such thefts, the city government has
changed the position and layout of catchbasins in the City by constructing them under the sidewalks
with concrete cement covers and openings on the side of the gutter; and that these changes had been
undertaken by the city from time to time whenever funds were available.

After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned
decision sustaining the theory of the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the
City of Manila is concerned, which was sentenced to pay damages in the aggregate sum of
P6,750.00. 1 Hence, this appeal by the City of Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act
No. 409 (Charter of the City of Manila) reading:

The city shall not be liable or held for damages or injuries to persons or property arising from the
failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this
chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other
officers while enforcing or attempting to enforce said provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by,
any person by reason of defective conditions of road, streets, bridges, public buildings, and other
public works under their control or supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is
a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law,
applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar
as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a
general legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of
Republic Act 409 establishes a general rule regulating the liability of the City of Manila for: "damages or
injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said
Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other
officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of
the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . .
liable for damages for the death of, or injury suffered by any person by reason" — specifically — "of
the defective condition of roads, streets, bridges, public buildings, and other-public works under their
control or supervision." In other words, said section 4 refers to liability arising from negligence, in
general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective
streets," in particular. Since the present action is based upon the alleged defective condition of a road,
said Article 2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident
involving him took place in a national highway; and 2) because the City of Manila has not been
negligent in connection therewith.

As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of
the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his
injuries were due to the defective condition of a street which is "under the supervision and control" of
the City. In its answer to the amended complaint, the City, in turn, alleged that "the streets
aforementioned were and have been constantly kept in good condition and regularly inspected and the
storm drains and manholes thereof covered by the defendant City and the officers concerned" who
"have been ever vigilant and zealous in the performance of their respective functions and duties as
imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and
is under its control and supervision.

Moreover, the assertion to the effect that said Avenue is a national highway was made, for
the first time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion
raised, therefore, a question of fact, which had not been put in issue in the trial court, and cannot be
set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court,
in a motion for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established
to attach that the defective roads or streets belong to the province, city or municipality from which
responsibility is exacted. What said article requires is that the province, city or municipality have either
"control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a national
highway, this circumstance would not necessarily detract from its "control or supervision" by the City
of Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

xxx xxx xxx

(x) Subject to the provisions of existing law to provide for the laying out, construction and improvement,
and to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and
other public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to
provide for the inspection of, fix the license fees for and regulate the openings in the same for the
laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and
all structures in and under the same and the erecting of poles and the stringing of wires therein;
to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales
upon the streets and other public places; to provide for the abatement of nuisances in the same and
punish the authors or owners thereof; to provide for the construction and maintenance, and regulate
the use, of bridges, viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling,
and other amusements which may annoy persons using the streets and public places, or frighten horses
or other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars,
and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel
any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require
railroad companies to fence their property, or any part thereof, to provide suitable protection against
injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and
under their tracks, so that the natural drainage of the streets and adjacent property shall not be
obstructed.

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order
No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or
appropriation of the highway funds and the giving of aid to provinces, chartered cities and
municipalities in the construction of roads and streets within their respective boundaries, and
Executive Order No. 113 merely implements the provisions of said Republic Act No. 917, concerning
the disposition and appropriation of the highway funds. Moreover, it provides that "the
construction, maintenance and improvement of national primary, national secondary and national aid
provincial and city roads shall be accomplished by the Highway District Engineers and
Highway City Engineers under the supervision of the Commissioner of Public Highways and shall be
financed from such appropriations as may be authorized by the Republic of the Philippines in annual or
special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision
of the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance
of said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the
findings of said Court thereon are not subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City
of Manila. It is so ordered.1äwphï1.ñët