Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 107916 February 20, 1997

PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners,

vs.
COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN
DEL SUR AND MUNICIPALITY OF BUNAWAN, respondents.

ROMERO, J.:

The main issue presented in this case is whether a municipality may expropriate private property by virtue of a
municipal resolution which was disapproved by the Sangguniang Panlalawigan. Petitioner seeks the reversal of the
Court of Appeals decision and resolution, promulgated on July 15, 1992 and October 22, 1992 respectively,   and a
1

declaration that Municipal Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void.

On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No.
43-89, "Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot
No. 6138-Pls-4 Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and
Other Government Sports Facilities."  2

In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the
Sangguniang Panlalawigan for its approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved
said Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still
available lots in Bunawan for the establishment of the government center."  3

The Municipality of Bunawan, herein public respondent, subsequently filed a petition for Eminent Domain against
petitioner Percival Moday before the Regional Trial Court at Prosperidad, Agusan del Sur.   The complaint was later
4

amended to include the registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party
defendants.

On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon the Possession of Subject
Matter of This Case stating that it had already deposited with the municipal treasurer the necessary amount in
accordance with Section 2, Rule 67 of the Revised Rules of Court and that it would be in the government's best
interest for public respondent to be allowed to take possession of the property.

Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court granted respondent
municipality's motion to take possession of the land. The lower court held that the Sangguniang Panlalawigan's
failure to declare the resolution invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan
is merely to review the ordinances and resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P.
Blg. 337, old Local Government Code and that the exercise of eminent domain is not one of the two acts enumerated
in Section 19 thereof requiring the approval of the Sangguniang Panlalawigan.   The dispositive portion of the lower
5

court's Order dated July 2, 1991 reads:

WHEREFORE, it appearing that the amount of P632.39 had been deposited as per Official Receipt
No. 5379647 on December 12, 1989 which this Court now determines as the provisional value of
the land, the Motion to Take or Enter Upon the Possession of the Property filed by petitioner
through counsel is hereby GRANTED. The Sheriff of this Court is ordered to forthwith place the
plaintiff in possession of the property involved.
 Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose of
ascertaining the just compensation or fair market value of the property sought to be taken, with
notice to all the parties concerned.

SO ORDERED.  6

Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991.

Petitioners elevated the case in a petition for certiorari  alleging grave abuse of discretion on the part of the trial court,
but the same was dismissed by respondent appellate court on July 15, 1992.   The Court of Appeals held that the
7

public purpose for the expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan
of Agusan del Sur did not declare Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed.

Respondent appellate court also denied petitioners' motion for reconsideration on October 22, 1992.  8

Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of
Barangay Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal
Gymnasium, which is made of concrete.

In the instant petition for review filed on November 23, 1992, petitioner seeks the reversal of the decision and
resolution of the Court of Appeals and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null
and void.

On December 8, 1993, the Court issued a temporary restraining order enjoining and restraining public respondent
Judge Evangeline Yuipco from enforcing her July 2, 1991 Order and respondent municipality from using and
occupying all the buildings constructed and from further constructing any building on the land subject of this petition.  9

Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a
Resolution on March 15, 1995, citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to
pay the fine and to demolish the "blocktiendas" which were built in violation of the restraining order.  10

Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8, 1995 election.   The 11

incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate
Dissolution of the Temporary Restraining Order" and Memorandum on June 11, 1996 for the Municipality of
Bunawan.  12

Petitioners contend that the Court of Appeals erred in upholding the legality of the condemnation proceedings
initiated by the municipality. According to petitioners, the expropriation was politically motivated and Resolution No.
43-89 was correctly disapproved by the Sangguniang Panlalawigan, there being other municipal properties available
for the purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo be ordered to pay damages for
insisting on the enforcement of a void municipal resolution.

The Court of Appeals declared that the Sangguniang Panlalawigan's reason for disapproving the resolution "could be
baseless, because it failed to point out which and where are those available lots.'" Respondent court also concluded
that since the Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid, expropriation of
petitioners' property could
proceed.  13

The Court finds no merit in the petition and affirms the decision of the Court of Appeals.

Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State
power that is inseparable from sovereignty.   It is government's right to appropriate, in the nature of a compulsory
14

sale to the State, private property for public use or purpose.   Inherently possessed by the national legislature, the
15

power of eminent domain may be validly delegated to local governments, other public entities and public
utilities.   For the taking of private property by the government to be valid, the taking must be for public use and there
16

must be just compensation.  17

The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly
provided for in Batas Pambansa Blg. 337, the local Government Code   in force at the time expropriation proceedings
18

were initiated. Section 9 of said law states:

Sec. 9. Eminent Domain. — A local government unit may, through its head and acting pursuant
to a resolution of its sanggunian, exercise the right of eminent domain and institute condemnation
proceedings for public use or purpose.

What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang
Panlalawigan disapproved Resolution No. 43-89.

Section 153 of B.P. Blg. 337 provides:

Sec. 153. Sangguniang Panlalawigan Review. — (1) Within thirty days after receiving copies of
approved ordinances, resolutions and executive orders promulgated by the municipal mayor, the
sangguniang panlalawigan shall examine the documents or transmit them to the provincial
attorney, or if there be none, to the provincial fiscal, who shall examine them promptly and inform
the sangguniang panlalawigan in writing of any defect or impropriety which he may discover therein
and make such comments or recommendations as shall appear to him proper.

(2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive
order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare
such ordinance, resolution or executive order invalid in whole or in part, entering its actions upon
the minutes and advising the proper municipal authorities thereof. The effect of such an action shall
be to annul the ordinance, resolution or executive order in question in whole or in part. The action
of the sangguniang panlalawigan shall be final.

xxx xxx xxx (Emphasis supplied.)

The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not
render said resolution null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang
Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the
Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual milieu
then obtaining, the Court's pronouncements in Velazco v. Blas,   where we cited significant early jurisprudence, are
19

applicable to the case at bar.

The only ground upon which a provincial board may declare any municipal resolution, ordinance, or
order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the
council or president making the same." Absolutely no other ground is recognized by the law. A
strictly legal question is before the provincial board in its consideration of a municipal resolution,
ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must
be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope
of the legal powers conferred by law. If a provincial board passes these limits, it usurps the
legislative function of the municipal council or president. Such has been the consistent course of
executive authority.  20

Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the
Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan
the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it
follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the
condemnation of petitioners' property.

As regards the accusation of political oppression, it is alleged that Percival Moday incurred the ire of then Mayor
Anuncio C. Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners
claim that then incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there
were other properties belonging to the municipality and available for the purpose. Specifically, they allege that the
municipality owns a vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch plan.  21
The limitations on the power of eminent domain are that the use must be public, compensation must be made and
due process of law must be
observed.   The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of
22

the taking and the public use character or the purpose of the taking,   has ruled that the necessity of exercising
23

eminent domain must be genuine and of a public character.   Government may not capriciously choose what private
24

property should be taken.

After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations.
The uncertified photocopy of the sketch plan does not conclusively prove that the municipality does own vacant land
adjacent to petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent
appellate court similarly held that the pleadings and documents on record have not pointed out any of respondent
municipality's "other available properties available for the same purpose."   The accusations of political reprisal are
25

likewise unsupported by competent evidence. Consequently, the Court holds that petitioners' demand that the former
municipal mayor be personally liable for damages is without basis.

WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and Resolution of the Court of
Appeals in the case of "Percival Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are
AFFIRMED. The Temporary Restraining Order issued by the Court on December 8, 1993 is LIFTED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6690             March 29, 1912

SILVESTRA TENORIO Y VILLAMIL, plaintiff-appellee,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

Jose Robles Lahesa and O'Brien and DeWitt for appellant.

A. B. Ritchey for appellee.

CARSON, J.:

This is an action to recover damages for the alleged unlawful detention and occupation by defendant of a small parcel
of land, the property of the plaintiff, situated near the railroad station in Dagupan in the Province of Pangasinan.

Plaintiff alleges that the land in question, some 1,219 square meters in extent, is worth P7,314.40; that before it was
entered upon by the defendant, two small houses erected thereon brought her a rental at the rate of P280 per annum,
of which she has been deprived by defendant since the month of March, 1907; that the defendant company
compelled her to move three buildings from the land taken by it, whereby shall had suffered damages in the sum of
P400 and that as a result of the unlawful occupation of this tract of land by the defendant company she had suffered
further damages to the extent of P250 from the accumulation of water on an adjoining parcel of land of which she is
the owner.

Defendant company answering, admits that it has taken and is now occupying a small part of the land in question,
314 meters in extent; but alleges that it is now and always has been ready and willing to pay the plaintiff a fair price
for the land thus taken and all damages to the remainder of her land resulting therefrom.

In explanation of the fact that it took possession of and continues to occupy this part of the land in question without
the express consent of the plaintiff and without having made payment therefor, defendant company alleges that the
land taken is a part of certain lands described in condemnation proceedings instituted in the Court of First Instance of
the Province of Pangasinan, whereby, by virtue of the authority lawfully conferred upon defendant company, it sought
to have the land in question, and other lands in that province, condemned for use as a roadbed; and while the facts
are not fully developed in the record, it does appear condemnation proceedings were regularly instituted for the
purposes indicated, and there are indications in the record that the land in question was included in the lands sought
to be condemned therein, but that in those proceedings it was described as the property of one Silvino Tenorio,
although the name of the true owner, the plaintiff in this action, is, as she alleges, Silvestra Tenorio.

The defendant company both by demurrer and answer, undertook in the court below to question plaintiff's right to
maintain this action (which is an ordinary action for damages for trespass on plaintiff's land) on the ground that under
the statutory provisions for the condemnation of lands by virtue of which defendant company had already instituted
proceedings looking to the condemnation of the land in question, it was the duty of the plaintiff to seek redress in
those proceedings. But while we agree with counsel for defendant company that, had the defendant company before
entering upon and taking possession of the land in question, proceeded in accordance with the provisions of law
touching condemnation proceedings, by virtue of which it claims to have been acting, in that event the plaintiff would
not be entitled to bring a separate action; we are of opinion that in the absence of proof of a substantial compliance
with the provisions of law touching such proceedings the plaintiff was clearly entitled to institute any appropriate
action to recover the damages which she may have suffered as a result of an unauthorized and unlawful seizure and
occupation of her property.

The mode in which and maybe condemned and the steps to be taken for that purpose are prescribed either
by the statute or charter conferring the right of eminent domain or by a general law. The remedy so provided
is exclusive, and as a general rule the steps prescribed by the statute must be followed or the proceedings
will be void. Since these statutes are in derogation of general right and of common-law modes of procedure,
they must be strictly construed in favor of the landowner, and must be at least substantially or as sometimes
said, "fully and fairly" complied with. Indeed the general rule in the absence of statutory provision to the
contrary, is that they must be strictly complied with. . . . Thus the statutes must be complied with as to filing
and contents of petition or application, . . . notice to the landowner and other persons interested in the
property, . . . and all other conditions precedent prescribed by the statute. (Cyclopedia of Law and
Procedure, vol. 15, pp. 815-817, and cases cited. See also American and English Encyclopedia of Law, vol.
10, p. 1054, and cases cited.)

The mode in which the defendant company was authorized to exercise the power of eminent domain is to be found in
various Acts of the Commission of which the following are pertinent citations:

The Government of the Philippine Islands, or of any province or department thereof, or of any municipality,
and any person, or public or private corporation having by law the right to condemn private property for
public use, shall exercise that right in the manner hereinafter prescribed. (Act No. 190 of the Philippine
Commission, sec. 241.)

The complaint in condemnation proceedings shall state with certainty the right of condemnation, and
describe the property sought to be condemned, showing the interest of each defendant separately. (Act No.
190, sec. 242.)

In addition to the method of procedure authorized for the exercise of the power of eminent domain by
sections two hundred and forty-one to two hundred and fifty-three, inclusive, of Act Numbered One hundred
and ninety, entitled "An Act providing a Code of Procedure in civil actions and special proceedings in the
Philippine Islands," the procedure in this Act provided may be adopted whenever a railroad corporation
seeks to appropriate land for the construction, extension, or operation of its railroad line. (Act No. 1258, sec.
1.)

Whenever a railroad corporation is authorized by its charter, or by general law, to exercise the power of
eminent domain in the city of Manila or in any province, and has not obtained by agreement with the owners
thereof the lands necessary for its purposes as authorized by law, it may in its complaint, . . . in the Court of
First Instance of the province where the land is situated, join as defendants all persons owning or claiming to
own, or occupying, any of the lands sought to be condemned, or any interest therein, within the city to
province, respectively, showing, so far as practicable, the interest of each defendant and stating with
certainty the right of condemnation, and describing the property sought to be condemned. Process requiring
the defendants to appear in answer to the complaint shall be served upon all occupants of the land sought
to be condemned, and upon the owners and all persons claiming therein, so far as known. If the title to any
lands sough to be condemned appears to be in the Insular Government, although the lands are occupied by
private individuals, or if it is uncertain whether the title is in the Insular Government or in private individuals,
or if the title is otherwise so obscure or doubtful that the company can not with accuracy or certainty specify
 who are the real owners, averment may be made by the company in its complaint to the effect. Process shall
be served upon residents and nonresidents in the same manner as provided therefor in Act Numbered One
hundred and ninety, . . . . (Act No. 1258, sec. 3.)

. . . The provisions . . . as to persons not notified of the condemnation proceedings, shall be as such as are
defined in sections 248 to 253, inclusive, of Act No. 190. (Act No. 1258, sec. 5, last five lines.)

Nothing herein contained shall be construed so as to injure, prejudice, defeat, or destroy the estate, right, or
title of any person claiming land or any part thereof, or any interest therein, who was not made a party
defendant to the condemnation proceeding and did not have actual or constructive notice  of the proceeding
in such manner as the law requires. (Act No. 190, sec. 253.)

The record wholly fails to disclose that process requiring the plaintiff to appear and answer the complaint filed in the
condemnation proceedings was served upon her, or upon any of the occupants of the land; and this, notwithstanding
the fact, as found by the trial court and practically conceded by counsel for defendant, that she was the known owner
of the land in question.

The statute authorizing the defendant company to exercise power of eminent domain, being in derogation of general
right and conferring upon it exceptional privileges with regard to the property of others of which it may have need,
should be construed strictly in favor of landowners whose property is affected by its terms. Hence before any right to
take possession of land under this statute could have been lawfully exercised by the company, the provisions of the
statute must have been "fully and fairly" complied with. Manifestly, the seizure and occupation of property without first
serving process on the owners or occupants is so gross a violation of one of the most essential conditions precedent
prescribed by the statute, that no claim by the company that it is acting or desires to act under the authority of its
charter in taking possession of this property can be heard by way of defense to an action for damages for the
unlawful trespass. The right to take such land, over the objection of the owner, and to have a fair valuation placed
thereon in special proceedings prescribed by law for that purpose, is made to depend upon the compliance by the
company with certain conditions precedent, and of course no rights can or do arise unless such conditions are fully
and fairly complied with. Not only did the defendant company fail to prove in the lower court that it had served
process on the owner and the occupants of the land, but it did not even claim to have done so when its counsel
undertook to introduce in evidence the record in the pending condemnation proceedings. And, indeed, no such claim
has at any time been made on its behalf.

Plaintiff's evidence as to the value of the land appropriated is not wholly satisfactory but in the absence of any
evidence whatever, worthy of the name, to put in doubt the testimony of her witnesses, we do not think that we would
be justified in reversing the findings of fact by the trial judge who arrived at his conclusions after seeing and hearing
these witnesses testify.

Counsel for defendant company assigns among other errors the action of the trial judge in excluding certain
testimony and insists that the exclusion of these witnesses justifies and requires the reversal of the judgment of the
court below and the return of the record for a new trial. But while we agree with counsel that the trial judge erred in
excluding certain evidence offered by the defendant, we are satisfied upon a review of the whole record that the
result would not have been otherwise had this evidence been admitted, and we do not think that a reversal should be
granted for error of this character.

We think that the evidence of defendant, including the map, whereby counsel undertook to show the exact amount of
the land of the plaintiff occupied by the roadbed of the railroad; as also the evidence offered touching the assessed
valuation of the land of the plaintiff should have been admitted for what it was worth. But we do not think that had this
evidence been admitted, and granting that it would have been the effect claimed for it by the counsel for the
defendant, that the result would have been different.

The conclusion of the trial judge from the evidence before him was that the entire tract mentioned in his judgment had
been rendered substantially worthless to the plaintiff by the unauthorized occupation of a part of it by the defendant
company, and we do not think that the evidence on which he based this conclusion would be affected by proof that
only a part of the tract was actually occupied and retained in possession. The theory on which the trial judge correctly
proceeded was that defendant company having unlawfully taken possession of a part of the tract of land in question,
and by its operations thereon rendered the whole tract worthless to the plaintiff, plaintiff is entitled to abandon the
entire tract, and recover damages for its full value. So also proof of the assessed valuation of the land in question,
while proper and competent evidence in a case of this character, is at best of but very little value in a judicial inquiry
as to its actual market. We do not believe that the weight to be given the practically undisputed testimony of the
witnesses for the plaintiff as to the actual market value of the land in question would have been materially affected by
proof that this land was assessed at a valuation greatly less than that placed upon it by the trial judge.

The judgment appealed from should be and is hereby affirmed with the costs of this instance against the appellant.

Torres, Mapa, Johnson and Moreland, JJ., concur.

G.R. No. 125218 January 23, 1998

FILSTREAM INTERNATIONAL INCORPORATED, Petitioner, vs. COURT OF APPEALS, JUDGE FELIPE S. TONGCO

and THE CITY OF MANILA, Respondents.

G.R. No. 128077 January 23, 1998

FILSTREAM INTERNATIONAL INCORPORATED, Petitioner, vs. COURT OF APPEALS, ORLANDO MALIT, ANTONIO

CAGUIAT, ALICIA CABRERA, ARMANDO LACHICA, JACINTO CAGUIAT, GLORIA ANTONIO, ELIZALDE NAVARRA,
DOLORES FUENTES, SUSANA ROY, ANTONIO IBANEZ, BENIGNO BASILIO, LUCERIA DEMATULAC, FLORENCIA
GOMEZ, LAZARO GOMEZ, JOSE GOMEZ VENANCIO MANALOTO, CRISTINO UMALI, DEMETRIA GATUS,
PRISCILLA MALONG, DOMINGO AGUILA, RAMON SAN AGUSTIN, JULIAN FERRER, JR., FRANCISCO GALANG,
FLORENTINO MALIWAT, SEVERINA VILLAR, TRINIDAD NAGUIT, JOSE NAGUIT, FORTUNATO AGUSTIN
CABRERA, GAUDENCIO INTAL, DANILO DAVID, ENRIQUE DAVID, VICENTE DE GUZMAN, POLICARPIO LUMBA,
BELEN PALMA, ELEN SOMVILLO, LEONARDO MANICAD, OPRENG MICLAT, BENITA MATA, GREGORIO LOPEZ,
MARCELINA SAPNO, JESUS MERCADO and CALIXTO GOMEZ, Respondents.

FRANCISCO, J.:

In resolving the instant petitions, the Court is tasked to strike a balance between the contending interests when the state
exercises its power of eminent domain. On one side we have the owners of the property to be expropriated who must be
duly compensated for the loss of their property, while on the other is the State which must take the property for public
use.

Petitioner, Filstream International, Inc., is the registered owner of the properties subject of this dispute consisting of
adjacent parcels of land situated in Antonio Rivera Street, Tondo II, Manila, with a total area of 3,571.10 square meters
and covered by T.C.T. Nos. 203937, 203936, 169198, 169199, 169200 and 169202 of the Register of Deeds of Manila.

On January 7, 1993, petitioner filed an ejectment suit before the Metropolitan Trial Court of Manila (Branch 15) docketed
as Civil Case No. 140817-CV against the occupants of the abovementioned parcels of land (herein private respondents in
G. R. No. 128077) on the grounds of termination of the lease contract and non-payment of rentals. Judgment was
rendered by the MTC on September 14, 1993 ordering private respondents to vacate the premises and pay back rentals to
petitioner. 1

Not satisfied, private respondents appealed the decision to the Regional Trial Court of Manila, Branch 4 (Civil Case No. 93-
68130) which in turn affirmed the decision of the MTC in its decision dated February 22, 1994. Still not content, private
respondents proceeded to the Court of Appeals via a petition for review (CA-G.R. SP No. 33714). The result however
remained the same as the CA affirmed the decision of the RTC in its decision dated August 25, 1994.  2 Thereafter, no
further action was taken by the private respondents, as a result of which the decision in the ejectment suit became final
and executory.

However, it appeared that during the pendency of the ejectment proceedings private respondents filed on May 25, 1993, a
complaint for Annulment of Deed of Exchange against petitioner Filstream which was docketed in Civil Case No. 93-66059
before the RTC of Manila, Branch 43. It was at this stage that respondent City of Manila came into the picture when the
city government approved Ordinance No. 7813 3 on November 5, 1993, authorizing Mayor Alfredo S. Lim to initiate the
acquisition by negotiation, expropriation, purchase, or other legal means certain parcels of land registered under T.C.T.
Nos. 169193, 169198, 169190, 169200, 169202 and 169192 of the Registry of Deeds of Manila which formed part of the
properties of petitioner then occupied by private respondents. Subsequently, the City of Manila approved Ordinance No.
7855 4 declaring the expropriation of certain parcels of land situated along Antonio Rivera and Fernando Ma. Guerrero
streets in Tondo, Manila which were owned by Mr. Enrique Quijano Gutierrez, petitioner's predecessor-in-interest. The said
properties were to be sold and distributed to qualified tenants of the area pursuant to the Land Use Development Program
of the City of Manila.
On May 23, 1994, respondent City of Manila filed a complaint for eminent domain (Civil Case No. 94-70560) before the
RTC of Manila, Branch 42, 5 seeking to expropriate the aforecited parcels of land owned by petitioner Filstream which are
situated at Antonio Rivera Street, Tondo II, Manila.  6

Pursuant to the complaint filed by respondent City of Manila, the trial court issued a Writ of Possession 7 in favor of the
former which ordered the transfer of possession over the disputed premises to the City of Manila.

At this juncture, petitioner Filstream filed a motion to dismiss the complaint for eminent domain as well as a motion to
quash the writ of possession. The motion to dismiss was premised on the following grounds: no valid cause of action; the
petition does not satisfy the requirements of public use and a mere clandestine maneuver to circumvent the writ of
execution issued by the RTC of Manila, Branch 4 in the ejectment suit; violation of the constitutional guarantee against
non-impairment of obligations and contracts; price offered was too low hence violative of the just compensation provision
of the constitution and the said amount is without the certification of the City Treasurer for availability of funds.  8 With
respect to the motion to quash the writ of possession, petitioner raised the following objections: failure to comply with
Section 2 of Rule 67 of the Rules of Court, Ordinance No. 7813 is a void enactment for it was approved without a public
hearing and violative of the constitutional guarantee against impairment of obligations and contracts; the price is too low
and unconscionable violating the just compensation provision of the constitution, and the said writ is tainted with infirmity
considering the absence of a certification from the City of Manila that there is an immediately available fund for the subject
expropriation. 9

Respondent City of Manila filed its opposition 10 to petitioner Filstream's two motions and to which petitioner accordingly
filed a reply. 11 On September 30, 1994, the RTC of Manila, Branch 42, issued an order denying petitioner Filstream's
motion to dismiss and the motion to quash the Writ of Possession and declared as follows:

IN FINE, the defendant's motion to dismiss and motion to quash writ of possession are both without merit and are hereby
DENIED and the subject parcels of lands covered by TCT Nos. 203937, 203936, 169198, 169199, 169200 and 169202 (of
the Register of Deeds of Manila) located at Antonio Rivera Street, Tondo II, Manila with a total area of 3,571.10 square
meters are hereby declared CONDEMNED in favor of the City of Manila for distribution and resale to all poor and landless
qualified residents/tenants in the said area under the city's "land-for-the landless" program upon payment of just
compensation which is yet to be determined by this Court. 12

Petitioner filed a motion for reconsideration 13 as well as a supplemental motion for reconsideration 14 seeking the reversal
of the above-quoted order but the same were denied. 15 Still, petitioner filed a subsequent motion to be allowed to file a
second motion for reconsideration but it was also denied.

Aggrieved, petitioner filed on March 31, 1996, a Petition for Certiorari with the Court of Appeals (CA-G.R. SP No. 36904)
seeking to set aside the September 30, 1994 order of the RTC of Manila, Branch 42. However, on March 18, 1996,
respondent CA issued a resolution dismissing the petition in this wise:

It appearing that the above-entitled petition is insufficient in form and substance - it does not comply with Section 2(a),
Rule 6 of the Revised Internal Rules of the Court of Appeals which requires that the "petition shall be . . . accompanied by .
. . other pertinent documents and papers," aside from the fact that copies of the pleadings attached to the petition are
blurred and unreadable - this Court resolved to summarily DISMISS the same (petition).  16

Petitioner filed a motion for reconsideration and attached clearer copies of the pertinent documents and papers pursuant to
Section 2(a), Rule 6 of the Revised Internal Rules of the Court of Appeals. But on May 20, 1996, respondent CA issued a
resolution denying the motion as petitioner failed to submit clearer and readable copies of the pleadings. 17 This prompted
petitioner to proceed to this Court giving rise to the instant petition for review on certiorari under Rule 45 and docketed
herein as G.R. No. 125218, assailing the dismissal of its petition by the CA in its resolution dated March 18, 1996 as well
as that of its motion for reconsideration in the resolution dated May 20, 1996.

Meanwhile, owing to the finality of the decision in the ejectment suit (Civil Case No. 140817-CV), the MTC of Manila,
Branch 15, upon motion of petitioner Filstream, issued a Writ of Execution as well as a Notice to Vacate the disputed
premises. 18 Private respondents filed a Motion to Recall/Quash the Writ of Execution and Notice to Vacate 19 alleging the
existence of a supervening event in that the properties subject of the dispute have already been ordered condemned in an
expropriation proceeding in favor of the City of Manila for the benefit of the qualified occupants thereof, thus execution
shall be stayed. Petitioner opposed the motion, reiterating that the decision in the ejectment case is already final and
executory and disputed private respondents' right to interpose the expropriation proceedings as a defense because the
latter were not parties to the same.

For its part, the City of Manila filed on March 13, 1996, a motion for intervention with prayer to stay/quash the writ of
execution on the ground that it is the present possessor of the property subject of execution.
In its order dated March 14, 1996, the MTC of Manila, Branch 14, denied private respondents' motion as it found the
allegations therein bereft of merit and upheld the issuance of the Writ of Execution and Notice to Vacate in petitioner's
favor. 20 Subsequently, the trial court also denied the motion filed by the City of Manila.

On April 22, 1996, the trial court issued an order commanding the demolition of the structure erected on the disputed
premises. To avert the demolition, private respondents filed before the RTC of Manila, Branch 14, a Petition
for Certiorari and Prohibition with prayer for the issuance of a temporary restraining order and preliminary injunction
(docketed as Civil Case No. 96-78098). On April 29, 1996, the RTC of Manila, Branch 33, issued a TRO enjoining the
execution of the writ issued in Civil Case No. 140817-CV by the MTC of Manila, Branch 14. 21 Subsequently, the RTC issued
a writ of preliminary injunction on May 14, 1996. 22

On May 15, 1996, the City of Manila filed its Petition for Certiorari and Prohibition with prayer for the issuance of a
temporary restraining order and preliminary injunction which was raffled to Branch 23 of the RTC of Manila (docketed as
Civil Case No. 96-78382), seeking the reversal of the orders issued by the MTC of Manila, Branch 14, which denied its
motion to intervene and quash the writ of execution in Civil Case No. 140817-CV.

Thereafter, upon motion filed by the City of Manila, an order was issued by the RTC of Manila, Branch 10, ordering the
consolidation of Civil Case No. 96-78382 with Civil Case No. 96-78098 pending before Branch 14 of the RTC of
Manila. 23 On May 21, 1996, the RTC of Manila, Branch 14, issued an injunction in Civil Case No. 96-78098 enjoining the
implementation of the writ of execution until further orders from the court. 24 Petitioner Filstream filed a Motion to Dissolve
the Writ of Preliminary Injunction and to be allowed to post a counter-bond but the trial court denied the same. Filstream
then filed a motion for reconsideration from the order of denial but pending resolution of this motion, it filed a motion for
voluntary inhibition of the presiding judge of the RTC of Manila, Branch 14. The motion for inhibition was granted 25 and as
a result, the consolidated cases (Civil Case No. 96-78382 and 96-78098) were re-raffled to the RTC of Manila, Branch 33.

During the proceedings before the RTC of Manila, Branch 33, petitioner Filstream moved for the dismissal of the
consolidated cases (Civil Case No. 96-78382 and No. 96-78098) for violation of Supreme Court Circular No. 04-94 (forum
shopping) because the same parties, causes of action and subject matter involved therein have already been disposed of in
the decision in the ejectment case (Civil Case No. 140817) which has already became final and executory prior to the filing
of these consolidated cases.

On December 9, 1996, an order was issued by the RTC of Manila, Branch 33, ordering the dismissal of Civil Case Nos. 96-
78382 and 96-78098 for violation of Supreme Court Circular No. 04-94. 26 Immediately thereafter, petitioner Filstream
filed an Ex-parte Motion for Issuance of an Alias Writ of Demolition and Ejectment and a supplemental motion to the same
dated January 10 and 13, 1997, respectively, 27 before the MTC of Manila, Branch 15, which promulgated the decision in
the ejectment suit (Civil Case No. 140817-CV). On January 23, 1997, the court granted the motion and issued the
corresponding writ of demolition.

As a consequence of the dismissal of the consolidated cases, herein private respondents filed a Petition for Certiorari and
Prohibition with prayer for the issuance of a temporary restraining order and preliminary injunction before the Court of
Appeals (docketed as CA-G.R. SP No. 43101) 28 assailing the above-mentioned order of dismissal by the RTC of Manila,
Branch 33, as having been issued with grave abuse of discretion tantamount to lack or in excess of jurisdiction.

In a resolution dated January 28, 1997, the Court of Appeals granted herein private respondents prayer for the issuance of
a temporary restraining order and directed the MTC of Manila, Branch 15, to desist from implementing the order of
demolition dated January 23, 1997, unless otherwise directed. 29

At the conclusion of the hearing for the issuance of a writ of preliminary injunction, the Court of Appeals, in its resolution
dated February 18, 1997, found merit in private respondents' allegations in support of their application of the issuance of
the writ and granted the same, to wit:

Finding that the enforcement or implementation of the writ of execution and notice to vacate issued in Civil Case No.
140817-CV, the ejectment case before respondent Judge Jiro, during the pendency of the instant petition, would probably
be in violation of petitioners' right, and would tend to render the judgment in the instant case ineffectual, and probably
work injustice to the petitioners, the application for the issuance of a writ of preliminary injunction is hereby GRANTED.

WHEREFORE, upon the filing of a bond in the amount of P150,000.00, let a writ of preliminary injunction be issued
enjoining respondents, their employees, agents, representatives and anyone acting in their behalf from enforcing or
executing the writ of execution and notice to vacate issued in Civil Case No. 140817-CV of the court of respondent Judge
Jiro, or otherwise disturbing the status quo, until further orders of this Court.  30

In turn, petitioner Filstream is now before this Court via a Petition for Certiorari under Rule 65 (G.R. No. 128077), seeking
to nullify the Resolutions of the Court of Appeals dated January 28, 1997 and February 18, 1997 which granted herein
private respondents' prayer for a TRO and Writ of Preliminary Injunction, the same being null and void for having been
issued in grave abuse of discretion.
Upon motion filed by petitioner Filstream, in order to avoid any conflicting decisions on the legal issues raised in the
petitions, the Court ordered that the later petition, G.R. No. 128077 be consolidated with G.R. No. 128077 in the resolution
of March 5, 1997. 31

The issue raised in G.R. No. 125218 is purely a procedural and technical matter. Petitioner takes exception to the
resolutions of respondent CA dated March 18, 1996 and May 20, 1996 which ordered the dismissal of its Petition
for Certiorari  for non-compliance with Sec. 2(a) of Rule 6 of the Revised Internal Rules of the Court of Appeals by failing to
attach to its petition other pertinent documents and papers and for attaching copies of pleadings which are blurred and
unreadable. Petitioner argues that respondent appellate court seriously erred in giving more premium to form rather than
substance.

We agree with the petitioner. A strict adherence to the technical and procedural rules in this case would defeat rather than
meet the ends of justice as it would result in the violation of the substantial rights of petitioner. At stake in the appeal filed
by petitioner before the CA is the exercise of their property rights over the disputed premises which have been
expropriated and have in fact been ordered condemned in favor of the City of Manila. In effect, the dismissal of their
appeal in the expropriation proceedings based on the aforementioned grounds is tantamount to a deprivation of property
without due process of law as it would automatically validate the expropriation proceedings which the petitioner is still
disputing. It must be emphasized that where substantial rights are affected, as in this case, the stringent application of
procedural rules may be relaxed if only to meet the ends of substantial justice.

In these instances, respondent CA can exercise its discretion to suspend its internal rules and allow the parties to present
and litigate their causes of action so that the Court can make an actual and complete disposition of the issues presented in
the case. Rather than simply dismissing the petition summarily for non-compliance with respondent court's internal rules,
respondent CA should have instead entertained petitioner Filstream's petition for review on certiorari, and ordered
petitioner to submit the corresponding pleadings which it deems relevant and replace those which are unreadable. This
leniency could not have caused any prejudice to the rights of the other parties.

With regard to the other petition, G.R. No. 128077, petitioner Filstream objects to the issuance by respondent CA of the
restraining order and the preliminary injunction enjoining the execution of the writ of demolition issued in the ejectment
suit (Civil Case No. 140817-CV) as an incident to private respondents' pending petition assailing the dismissal by the RTC
of Manila, Branch 33, of the consolidated petitions for certiorari filed by private respondents and the City of Manila on the
ground of forum shopping.

The propriety of the issuance of the restraining order and the writ of preliminary injunction is but a mere incident to the
actual controversy which is rooted in the assertion of the conflicting rights of the parties in this case over the disputed
premises. In order to determine whether private respondents are entitled to the injunctive reliefs granted by respondent
CA, we deemed it proper to extract the source of discord.

Petitioner Filstream anchors its claim by virtue of its ownership over the properties and the existence of a final and
executory judgment against private respondents ordering the latter's ejectment from the premises (Civil Case No. 140817-
CV).

Private respondents' claim on the other hand hinges on an alleged supervening event which has rendered the enforcement
of petitioner's rights moot, that is, the expropriation proceedings (Civil Case No. 94-70560) undertaken by the City of
Manila over the disputed premises for the benefit of herein private respondents. For its part, the City of Manila is merely
exercising its power of eminent domain within its jurisdiction by expropriating petitioner's properties for public use.

There is no dispute as to the existence of a final and executory judgment in favor of petitioner Filstream ordering the
ejectment of private respondents from the properties subject of this dispute. The judgment in the ejectment suit became
final and executory after private respondents failed to interpose any appeal from the adverse decision of the Court of
Appeals dated August 25, 1994 in CA-G.R. SP No. 33714. Thus, petitioner has every right to assert the execution of this
decision as it had already become final and executory.

However, it must also be conceded that the City of Manila has an undeniable right to exercise its power of eminent domain
within its jurisdiction. The right to expropriate private property for public use is expressly granted to it under Section 19 of
the 1991 Local Government Code, to wit:

Sec. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless,
upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however,
That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made
to the owner, and such offer was not accepted; Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the expropriation proceedings and upon
making a deposit with the proper court of at least fifteen (15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of
the property. (Emphasis supplied).

More specifically, the City of Manila has the power to expropriate private property in the pursuit of its urban land reform
and housing program as explicitly laid out in the Revised Charter of the City of Manila (R.A. No. 409) as follows:

General powers. - The city may have a common seal and alter the same at pleasure, and may take, purchase, receive,
hold, lease, convey, and dispose of real and personal property for the general interest of the city, condemn private
property for public use, contract and be contracted with, sue and be sued, and prosecute and defend to final judgment and
execution, and exercise all the powers hereinafter conferred. (R.A. 409, Sec. 3; Emphasis supplied).

xxx xxx xxx

Sec. 100. The City of Manila is authorized to acquire private lands in the city and to subdivide the same into home lots for
sale on easy terms to city residents, giving first priority to the bona fide tenants or occupants of said lands, and second
priority to laborers and low-salaried employees. For the purpose of this section, the city may raise the necessary funds by
appropriations of general funds, by securing loans or by issuing bonds, and, if necessary, may acquire the lands through
expropriation proceedings in accordance with law, with the approval of the President . . . . (Emphasis supplied).

In fact, the City of Manila's right to exercise these prerogatives notwithstanding the existence of a final and executory
judgment over the property to be expropriated has been upheld by this Court in the case of Philippine Columbian
Association vs. Panis, G.R. No. 106528, December 21, 1993. 32 Relying on the aforementioned provisions of the Revised
Charter of the City of Manila, the Court declared that:

The City of Manila, acting through its legislative branch, has the express power to acquire private lands in the city and
subdivide these lands into home lots for sale to bona-fide tenants or occupants thereof, and to laborers and low-salaried
employees of the city.

That only a few could actually benefit from the expropriation of the property does not diminish its public use character. It
is simply not possible to provide all at once land and shelter for all who need them (Sumulong v. Guerrero, 154 SCRA 461
[1987]).

Corollary to the expanded notion of public use, expropriation is not anymore confined to vast tracts of land and landed
estates (Province of Camarines Sur v. Court of Appeals, G. R. No. 103125, May 17, 1993; J. M. Tuason and Co., Inc. v.
Land Tenure Administration, 31 SCRA 413 [1970]). It is therefore of no moment that the land sought to be expropriated in
this case is less than half a hectare only (Pulido v. Court of Appeals, 122 SCRA 63 [1983]).

Through the years, the public use requirement in eminent domain has evolved into a flexible concept, influenced by
changing conditions (Sumulong v. Guerrero, supra; Manotok v. National Housing Authority, 150 SCRA 89 [1987]; Heirs of
Juancho Ardona v. Reyes, 125 SCRA 220 [1983]). Public use now includes the broader notion of indirect public benefit or
advantage, including in particular, urban land reform and housing.  33

We take judicial notice of the fact that urban land reform has become a paramount task in view of the acute shortage of
decent housing in urban areas particularly in Metro Manila. Nevertheless, despite the existence of a serious dilemma, local
government units are not given an unbridled authority when exercising their power of eminent domain in pursuit of
solutions to these problems. The basic rules still have to be followed, which are as follows: "no person shall be deprived of
life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws (Art. 3,
Sec. 1, 1987 Constitution); private property shall not be taken for public use without just compensation (Art. 3, Section 9,
1987 Constitution)". Thus, the exercise by local government units of the power of eminent domain is not without
limitations. Even Section 19 of the 1991 Local Government Code is very explicit that it must comply with the provisions of
the Constitution and pertinent laws, to wit:

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

The governing law that deals with the subject of expropriation for purposes of urban land reform and housing is Republic
Act No. 7279 (Urban Development and Housing Act of 1992) and Sections 9 and 10 of which specifically provide as follows:

Sec. 9. Priorities in the acquisition of Land. - Lands for socialized housing shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned
or controlled corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

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

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

(f) Privately-owned lands.

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

Sec. 10. Modes of Land Acquisition. - The modes of acquiring lands for purposes of this Act shall include, among
others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government,
joint-venture agreement, negotiated purchase, and expropriation.  Provided, however, That expropriation shall be resorted
to only when other modes of acquisition have been exhausted.  Provided further, That where expropriation is resorted to,
parcels of land owned by small property owners shall be exempted for purposes of this Act. Provided, finally, That
abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the
procedure laid down in Rule 91 of the Rules of Court.

For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by the local
government units, or by the National Housing Authority primarily through negotiated purchase: Provided, That  qualified
beneficiaries who are actual occupants of the land shall be given the right of first refusal. (Emphasis supplied).

Very clear from the abovequoted provisions are the limitations with respect to the order of priority in acquiring private
lands and in resorting to expropriation proceedings as a means to acquire the same. Private lands rank last in the order of
priority for purposes of socialized housing. In the same vein, expropriation proceedings are to be resorted to only when the
other modes of acquisition have been exhausted. Compliance with these conditions must be deemed mandatory because
these are the only safeguards in securing the right of owners of private property to due process when their property is
expropriated for public use.

Proceeding from the parameters laid out in the above disquisitions, we now pose the crucial question: Did the City of
Manila comply with the abovementioned conditions when it expropriated petitioner Filstream's properties? We have
carefully scrutinized the records of this case and found nothing that would indicate that respondent City of Manila complied
with Sec. 9 and Sec. 10 of R.A. 7279. Petitioner Filstream's properties were expropriated and ordered condemned in favor
of the City of Manila sans any showing that resort to the acquisition of other lands listed under Sec. 9 of RA 7279 have
proved futile. Evidently, there was a violation of petitioner Filstream's right to due process which must accordingly be
rectified.

Indeed, it must be emphasized that the State has a paramount interest in exercising its power of eminent domain for the
general good considering that the right of the State to expropriate private property as long as it is for public use always
takes precedence over the interest of private property owners. However we must not lose sight of the fact that the
individual rights affected by the exercise of such right are also entitled to protection, bearing in mind that the exercise of
this superior right cannot override the guarantee of due process extended by the law to owners of the property to be
expropriated. In this regard, vigilance over compliance with the due process requirements is in order.

WHEREFORE, the petitions are hereby GRANTED. In G.R. 125218, the resolutions of the Court of Appeals in CA-G. R. SP
NO. 36904 dated March 18, 1996 and May 20, 1996 are hereby REVERSED and SET ASIDE. In G.R. No. 128077, the
resolution of the Court of Appeals in CA-G.R. SP No. 43101 dated January 28, 1997 and February 18, 1997 are REVERSED
and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Romero, Melo and Panganiban, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14355             October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.

City Fiscal Diaz for appellant.

Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and Ramon Salinas for
appellees.

JOHNSON, J.:

The important question presented by this appeal is: In expropriation proceedings by the city of Manila, may the courts
inquire into, and hear proof upon, the necessity of the expropriation?

That question arose in the following manner:

On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First Instance of said city,
praying that certain lands, therein particularly described, be expropriated for the purpose of constructing a public
improvement. The petitioner, in the second paragraph of the petition, alleged:

That for the purpose of constructing a public improvement, namely, the extension of Rizal Avenue, Manila, it
is necessary for the plaintiff to acquire ownership in fee simple  of certain parcels of land situated in the
district of Binondo of said city within Block 83 of said district, and within the jurisdiction of this court.

The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of the
plaintiff, alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine
Islands, having for its purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it
was the owner of parcels one and two of the land described in paragraph 2 of the complaint; that it denied that it
was either necessary or expedient that the said parcels be expropriated for street purposes; that existing street and
roads furnished ample means of communication for the public in the district covered by such proposed expropriation;
that if the construction of the street or road should be considered a public necessity, other routes were available,
which would fully satisfy the plaintiff's purposes, at much less expense and without disturbing the resting places of the
dead; that it had a Torrens title for the lands in question; that the lands in question had been used by the defendant
for cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said expropriation be
carried into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of
money in the transfer or removal of the bodies to some other place or site and in the purchase of such new sites,
would involve the destruction of existing monuments and the erection of new monuments in their stead, and would
create irreparable loss and injury to the defendant and to all those persons owning and interested in the graves and
monuments which would have to be destroyed; that the plaintiff was without right or authority to expropriate said
cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a
public improvement.

The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of the complaint, and
alleged that said expropriation was not a public improvement; that it was not necessary  for the plaintiff to acquire the
parcels of land in question; that a portion of the lands in question was used as a cemetery in which were the graves
of his ancestors; that monuments and tombstones of great value were found thereon; that the land had
become quasi-public property  of a benevolent association, dedicated and used for the burial of the dead and that
many dead were buried there; that if the plaintiff deemed it necessary to extend Rizal Avenue, he had offered and still
offers to grant a right of way for the said extension over other land, without cost to the plaintiff, in order that the
sepulchers, chapels and graves of his ancestors may not be disturbed; that the land so offered, free of charge, would
answer every public necessity  on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of the other
defendants, answering separately, presented substantially the same defense as that presented by the Comunidad de
Chinos de Manila and Ildefonso Tambunting above referred to.

The foregoing parts of the defense presented by the defendants have been inserted in order to show the general
character of the defenses presented by each of the defendants. The plaintiff alleged that the expropriation was
necessary. The defendants each alleged (a) that no necessity existed for said expropriation and (b) that the land in
question was a cemetery, which had been used as such for many years, and was covered with sepulchres and
monuments, and that the same should not be converted into a street for public purposes.

Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judge, in
a very elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that
there was no necessity  for the expropriation of the particular strip of land in question, and absolved each and all of
the defendants from all liability under the complaint, without any finding as to costs.

From that judgment the plaintiff appealed and presented the above question as its principal ground of appeal.

The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate
land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain
the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible
purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that
the courts  are mere appraisers  of the land involved in expropriation proceedings, and, when the value of the land is
fixed by the method adopted by the law, to render a judgment in favor of the defendant for its value.

That the city of Manila has authority to expropriate private lands for public  purposes, is not denied. Section 2429 of
Act No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn private  property
for public use."

The Charter of the city of Manila contains no procedure by which the said authority may be carried into effect. We are
driven, therefore, to the procedure marked out by Act No. 190 to ascertain how the said authority may be exercised.
From an examination of Act No. 190, in its section 241, we find how the right of eminent domain may be exercised.
Said section 241 provides that, "The Government of the Philippine Islands, or of any province or department thereof,
or of any municipality, and any person, or public or private corporation having, by law,  the right  to condemn private
property for public use, shall exercise that right in the manner hereinafter prescribed."

Section 242 provides that a complaint in expropriation proceeding shall be presented; that the complaint shall state
with certainty the right of condemnation, with a description of the property sought to be condemned together with the
interest of each defendant separately.

Section 243 provides that if the court shall find upon  trial that the right to expropriate the land in question exists, it
shall then appoint commissioners.

Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provides for
an appeal from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the
Supreme Court authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on
appeal shall determine that no right of expropriation existed, it shall remand the cause to the Court of First Instance
with a mandate that the defendant be replaced in the possession of the property and that he recover whatever
damages he may have sustained by reason of the possession of the plaintiff.

It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the right  to
expropriate exists," means simply that, if the court finds that there is  some law  authorizing the plaintiff to expropriate,
then the courts have no other function than to authorize the expropriation and to proceed to ascertain the value of the
land involved; that the necessity for the expropriation is a legislative and not a judicial question.
Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene
except for the purpose of determining the value of the land in question, there is much legal legislature. Much has
been written upon both sides of that question. A careful examination of the discussions pro  and con  will disclose the
fact that the decisions depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the
legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some
specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to
expropriate private land  for public  purposes, we think the courts have ample authority in this jurisdiction, under the
provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or
not the lands were private and whether the purpose was, in fact, public. In other words, have no the courts in this
jurisdiction the right, inasmuch as the questions relating to expropriation must be referred to them (sec. 241, Act No.
190) for final decision, to ask whether or not the law has been complied with? Suppose in a particular case, it should
be denied that the property is not private  property but public, may not the courts hear proof upon that question? Or,
suppose the defense is, that the purpose of the expropriation is not public but private, or that there exists no public
purpose at all, may not the courts make inquiry and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for public purposes. Can it be possible that said
authority confers the right to determine for itself that the land is private and that the purpose is public, and that the
people of the city of Manila who pay the taxes for its support, especially those who are directly affected, may not
question one or the other, or both, of these questions? Can it be successfully contended that the phrase used in Act
No. 190, "and if the court upon trial shall find that such right  exists," means simply that the court shall examine
the  statutes simply  for the purpose of ascertaining whether a law exists authorizing the petitioner to exercise the right
of eminent domain? Or, when the case arrives in the Supreme Court, can it be possible that the phrase, "if the
Supreme Court shall determine that no right  of expropriation exists," that that simply means that the Supreme Court
shall also examine the enactments of the legislature for the purpose of determining whether or not a law exists
permitting the plaintiff to expropriate?

We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an
inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the
power upon it. When the courts come to determine the question, they must only find (a) that a law or authority exists
for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance
with the law. In the present case there are two conditions imposed upon the authority conceded to the City of
Manila: First, the land must be private; and, second, the purpose must be public. If the court, upon trial, finds that
neither of these conditions exists or that either one of them fails, certainly it cannot be contended that the right is
being exercised in accordance with law.

Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. Whether the land
is public, is a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine
Islands the right to ascertain upon  trial whether the right  exists for the exercise of eminent domain, it intended that
the courts should inquire into, and hear proof upon, those questions. Is it possible that the owner of valuable land in
this jurisdiction is compelled to stand mute while his land is being expropriated for a use not public, with the right
simply to beg the city of Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities
to expropriate lands, without question, simply for the purpose of satisfying the aesthetic sense of those who happen
for the time being to be in authority? Expropriation of lands usually calls for public expense. The taxpayers are called
upon to pay the costs. Cannot the owners of land question the public use  or the public necessity?

As was said above, there is a wide divergence of opinion upon the authority of the court to question the necessity or
advisability of the exercise of the right of eminent domain. The divergence is usually found to depend upon particular
statutory or constitutional provisions.

It has been contended — and many cases are cited in support of that contention, and section 158 of volume 10 of
Ruling Case Law is cited as conclusive — that the necessity for taking property under the right of eminent domain is
not a judicial question. But those who cited said section evidently overlooked the section immediately following (sec.
159), which adds: "But it is obvious that if the property is taken in the ostensible behalf of a public improvement  which
it can never by any possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for
protection by the courts. While many courts have used sweeping expression in the decisions in which they have
disclaimed the power of supervising the power of supervising the selection of the sites of public improvements, it may
be safely said that the courts of the various states would feel bound to interfere to prevent an abuse of the discretion
delegated by the legislature, by an attempted appropriation of land in utter disregard of the possible necessity of its
use, or when the alleged purpose was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St.,
368; State vs. Stewart, 74 Wis., 620.)

Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention of the appellant,
says:

The legislature, in providing for the exercise of the power of eminent domain,  may directly determine the
necessity for appropriating private property for a particular improvement for public use, and it may select the
exact location of the improvement. In such a case, it is well settled that the utility of the proposed
improvement, the extent of the public necessity for its construction, the expediency of constructing it, the
suitableness of the location selected and the consequent necessity of taking the land selected for its site,
are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to
substitute their own views for those of the representatives of the people.

Practically every case cited in support of the above doctrine has been examined, and we are justified in making the
statement that in each case the legislature directly determined the necessity for the exercise of the right of eminent
domain in the particular case. It is not denied that if the necessity for the exercise of the right of eminent domain is
presented to the legislative department of the government and that department decides that there exists a necessity
for the exercise of the right in a particular case, that then and in that case, the courts will not go behind the action of
the legislature and make inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo,
Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the doctrine laid down in
section 158 above quoted, the court said:

But when the statute does not designate the property to be taken nor how may be taken, then the necessity
of taking particular property  is a question for the courts. Where the application to condemn or appropriate is
made directly to the court, the question (of necessity) should be raised and decided in limene.

The legislative department of the government was rarely undertakes to designate the precise property which should
be taken for public use. It has generally, like in the present case, merely conferred general authority to take land for
public use when a necessity exists therefor. We believe that it can be confidently asserted that, under such statute,
the allegation of the necessity for the appropriation is an issuable allegation which it is competent for the courts to
decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)

There is a wide distinction between a legislative declaration that a municipality is given authority to exercise the right
of eminent domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a
particular case. The first is a declaration simply that there exist reasons why the right should be conferred upon
municipal corporation, while the second is the application of the right to a particular case. Certainly, the legislative
declaration relating to the advisability of granting the power cannot be converted into a declaration that a necessity
exists for its exercise in a particular case, and especially so when, perhaps, the land in question was not within the
territorial authority was granted.

Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the right of eminent
domain, is a question with which the courts are not concerned. But when that right or authority is exercised for the
purpose of depriving citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to
hear proof upon the necessity in the particular case, and not the general authority.

Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive authority upon
the question that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial
question. Cyclopedia, at the page stated, says:

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency  of

exercising the right of eminent domain are questions essentially political and not judicial in their character.
The determination of those questions (the necessity and the expediency) belongs to the sovereign power;
the legislative department is final and conclusive, and the courts have no power to review it (the necessity
and the expediency) . . . . It (the legislature) may designate the particular property to be condemned, and its
determination in this respect cannot be reviewed by the courts.
The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted. While time has not
permitted an examination of all of said citations, many of them have been examined, and it can be confidently
asserted that said cases which are cited in support of the assertion that, "the necessity and expediency of exercising
the right of eminent domain are questions essentially political and not judicial," show clearly and invariably that in
each case the legislature itself usually, by a special law, designated the particular case in which the right of eminent
domain might be exercised by the particular municipal corporation or entity within the state. (Eastern R.
Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6
Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S.,
390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668;
Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)

In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United States said: "It is
erroneous to suppose that the legislature is beyond the control of the courts in exercising the power of eminent
domain, either as to the nature of the use or the necessity to the use of any particular property. For if the use be not
public or no necessity for the taking exists, the legislature cannot authorize the taking of private property against the
will of the owner, notwithstanding compensation may be required."

In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339, 356), we find the Supreme Court of Porto
Rico, speaking through Justice MacLeary, quoting approvingly the following, upon the question which we are
discussing: "It is well settled that although the legislature must necessarily determine in the first instance whether the
use for which they (municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities, etc.)
determination is not final, but is subject to correction by the courts, who may undoubtedly declare the statute
unconstitutional, if it shall clearly appear that the use for which it is proposed to authorize the taking of private
property is in reality not public but private." Many cases are cited in support of that doctrine.

Later, in the same decision, we find the Supreme Court of Porto Rico says: "At any rate, the rule is quite well settled
that in the cases under consideration the determination of the necessity of taking a particular piece or a certain
amount of land rests ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .

In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court
of Connecticut approvingly quoted the following doctrine from Lewis on Eminent Domain (3d ed.), section 599: "In all
such cases the necessity of public utility of the proposed work or improvement is a judicial question. In all such cases,
where the authority is to take property necessary for the purpose, the necessity of taking particular property for a
particular purpose is a judicial one, upon which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71
S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390, 403.)

The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of
the state, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to
delegate. (Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc.
Co. vs. Ely, etc. Co., 132 Ky., 692, 697.)

In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of the State of
Maryland, discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain)
where the legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the
purpose of the incorporation, as in this case, the party claiming the right to the exercise of the power should be
required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large
and almost indiscriminate delegation of the right to corporations, would likely lead to oppression and the sacrifice of
private right to corporate power."

In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is not a
general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to
exist. Such necessity must appear upon the face of the petition to condemn. If the necessary is denied the burden is
upon the company (municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856;
Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137
Am. St. Rep. 338].)

It is true that naby decisions may be found asserting that what is a public use is a legislative question, and many
other decisions declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or
statutory provision denying the right to take land for any use other than a public use, it occurs to us that the question
whether any particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is
true, in effect declare certain uses to be public, and, under the operation of the well-known rule that a statute will not
be declared to be unconstitutional except in a case free, or comparatively free, from doubt, the courts will certainly
sustain the action of the legislature unless it appears that the particular use is clearly not of a public nature. The
decisions must be understood with this limitation; for, certainly, no court of last resort will be willing to declare that any
and every purpose which the legislative might happen to designate as a public use shall be conclusively held to be
so, irrespective of the purpose in question and of its manifestly private character Blackstone in his Commentaries on
the English Law remarks that, so great is the regard of the law for private property that it will not authorize the least
violation of it, even for the public good, unless there exists a very great necessity therefor.

In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of the United States said: "That
government can scarcely be deemed free where the rights of property are left solely defendant on the legislative
body, without restraint. The fundamental maxims of free government seem to require that the rights of personal liberty
and private property should be held sacred. At least no court of justice in this country would be warranted in
assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice
and civil liberty — lurked in any general grant of legislature authority, or ought to be implied from any general
expression of the people. The people ought no to be presumed to part with rights so vital to their security and well-
being without very strong and direct expression of such intention." (Lewis on Eminent Domain, sec. 603;
Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann., 182.)

Blackstone, in his Commentaries on the English Law said that the right to own and possess land — a place to live
separate and apart from others — to retain it as a home for the family in a way not to be molested by others — is one
of the most sacred rights that men are heirs to. That right has been written into the organic law of every civilized
nation. The Acts of Congress of July 1, 1902, and of August 29, 1916, which provide that "no law shall be enacted in
the Philippine Islands which shall deprive any person of his property without due process of law," are but a
restatement of the time-honored protection of the absolute right of the individual to his property. Neither did said Acts
of Congress add anything to the law already existing in the Philippine Islands. The Spaniard fully recognized the
principle and adequately protected the inhabitants of the Philippine Islands against the encroachment upon the
private property of the individual. Article 349 of the Civil Code provides that: "No one may be deprived of his property
unless it be by competent authority, for some purpose of  proven  public utility, and after payment of the proper
compensation Unless this requisite (proven public utility and payment) has been complied with, it shall be the  duty of
the courts to protect the owner of such property in its possession or to restore its possession to him , as the case
may be."

The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily
in derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of
property is held by individuals with greater tenacity, and none is guarded by the constitution and laws more
sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right, and, for greater
public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be
enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec.,
576].)

The statutory power of taking property from the owner without his consent is one of the most delicate exercise of
government authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the
inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict
observance of the substantial provisions of the law which are  prescribed  as modes of the exercise of the power, and
to protect it from abuse. Not only must the authority of municipal corporations to take property be expressly conferred
and the use for which it is taken specified, but the power, with all constitutional limitation and  directions for its
exercise, must be strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited;
Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

It can scarcely be contended that a municipality would be permitted to take property for some public use unless some
public necessity existed therefor. The right to take private property for public use originates in the necessity, and the
taking must be limited by such necessity. The appellant contends that inasmuch as the legislature has given it
general authority to take private property for public use, that the legislature has, therefore, settled the question of the
necessity in every case and that the courts are closed to the owners of the property upon that question. Can it be
imagined, when the legislature adopted section 2429 of Act No. 2711, that it thereby declared that it was necessary to
appropriate the property of Juan de la Cruz, whose property, perhaps, was not within the city limits at the time the law
was adopted? The legislature, then, not having declared the necessity, can it be contemplated that it intended that a
municipality should be the sole judge of the necessity in every case, and that the courts, in the face of the provision
that "if upon trial they shall find that a right exists," cannot in that trial inquire into and hear proof upon the necessity
for the appropriation in a particular case?

The Charter of the city of Manila authorizes the taking of  private  property for public use. Suppose the owner of the
property denies and successfully proves that the taking of his property serves no public use: Would the courts not be
justified in inquiring into that question and in finally denying the petition if no public purpose was proved? Can it be
denied that the courts have a right to inquire into that question? If the courts can ask questions and decide, upon an
issue properly presented, whether the use is public or not, is not that tantamount to permitting the courts to inquire
into the necessity of the appropriation? If there is no public use, then there is no necessity, and if there is no
necessity, it is difficult to understand how a public use can necessarily exist. If the courts can inquire into the question
whether a public use exists or not, then it seems that it must follow that they can examine into the question of the
necessity.

The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a
public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R.
Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in
a  particular case. The power of the legislature to confer, upon municipal corporations and other entities within the
State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general
authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The
moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the
conditions accompanying the authority. The necessity  for conferring the authority upon a municipal corporation to
exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the
municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general
authority, is a question which the courts have the right to inquire into.

The  conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain
is purely legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing the
exercise of the right of eminent domain instead of in the question of the right to exercise it in a particular case.
(Creston Waterworks Co. vs. McGrath, 89 Iowa, 502.)

By the weight of authorities, the courts have the power of restricting the exercise of eminent domain to the actual
reasonable necessities of the case and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48
Minn., 540.)

And, moreover, the record does not show conclusively that the plaintiff has definitely decided that their exists a
necessity for the appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate
that the municipal board believed at one time that other land might be used for the proposed improvement, thereby
avoiding the necessity of distributing the quiet resting place of the dead.

Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend that
the street in question should not be opened through the cemetery. One of the defendants alleges that said cemetery
is  public  property. If that allegations is true, then, of course, the city of Manila cannot appropriate it for public use.
The city of Manila can only expropriate private property.

It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general
community, or neighborhood, or church, while the latter is used only by a family, or a small portion of the community
or neighborhood. (11 C. J., 50.)

Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses
under a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good
faith for future use. (Lewis on Eminent Domain, sec. 434, and cases cited.)

The cemetery in question seems to have been established under governmental authority. The Spanish Governor-
General, in an order creating the same, used the following language:
 The cemetery and general hospital for indigent Chinese having been founded and maintained by the
spontaneous and fraternal contribution of their protector, merchants and industrials, benefactors of mankind,
in consideration of their services to the Government of the Islands its internal administration, government
and regime must necessarily be adjusted to the taste and traditional practices of those born and educated in
China in order that the sentiments which animated the founders may be perpetually effectuated.

It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which
fact, in the general acceptation of the definition of a public cemetery, would make the cemetery in question public
property. If that is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of
Manila has no authority or right under the law to expropriate public property.

But, whether or not the cemetery is public or private property, its appropriation for the uses of a public street,
especially during the lifetime of those specially interested in its maintenance as a cemetery, should be a question of
great concern, and its appropriation should not be made for such purposes until it is fully established that the greatest
necessity exists therefor.

While we do not contend that the dead must not give place to the living, and while it is a matter of public knowledge
that in the process of time sepulchres may become the seat of cities and cemeteries traversed by streets and daily
trod by the feet of millions of men, yet, nevertheless such sacrifices and such uses of the places of the dead should
not be made unless and until it is fully established that there exists an eminent necessity therefor. While cemeteries
and sepulchres and the places of the burial of the dead are still within
the memory and command of the active care of the living; while they are still devoted to pious uses and sacred
regard, it is difficult to believe that even the legislature would adopt a law expressly providing that such places, under
such circumstances, should be violated.

In such an appropriation, what, we may ask, would be the measure of damages at law, for the wounded sensibilities
of the living, in having the graves of kindred and loved ones blotted out and desecrated by a common highway or
street for public travel? The impossibility of measuring the damage and inadequacy of a remedy at law is too
apparent to admit of argument. To disturb the mortal remains of those endeared to us in life sometimes becomes the
sad duty of the living; but, except in cases of necessity, or for laudable purposes, the sanctity of the grave, the last
resting place of our friends, should be maintained, and the preventative aid of the courts should be invoked for that
object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery Association vs. The City of New
Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.)

In the present case, even granting that a necessity exists for the opening of the street in question, the record contains
no proof of the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent
lands have been offered to the city free of charge, which will answer every purpose of the plaintiff.

For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is hereby affirmed,
with costs against the appellant. So ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Separate Opinions

.
 FIRST DIVISION

[G.R. No. 15870. December 3, 1919. ]

VISAYAN REFINING COMPANY, DEAN C. WORCESTER, and FRED A.

LEAS, Petitioners, v. HON. MANUEL CAMUS, Judge of the Court of First Instance of the
Province of Rizal and HON. QUINTIN PAREDES, Attorney-General of the Philippine
Islands, Respondents.

Kincaid & Perkins for petitioner

Assistant Attorney-General Reyes for Respondents.

SYLLABUS

1. EMINENT DOMAIN; PUBLIC USE; MILITARY AND AVIATION PURPOSES. — The

use of land by the Government for military and aviation purposes is a public use within the
meaning of the provisions of law authorizing the Government of the Philippine Islands to acquire
real estate for public uses by the exercise of the right of eminent domain.

2. ID.; JUDICIAL PROCEEDINGS; AUTHORITY OF GOVERNOR-GENERAL TO DIRECT

INSTITUTION OF PROCEEDINGS. — Judicial proceedings for the condemnation of land for
public use can be maintained in the name of the Government of the Philippine Islands pursuant
to the directions of the Governor-General, without any other special legislative authority than
that expressed in subsection (h) of section 64 of the Administrative Code, in relation with section
3 of the Jones Act.

3. ID.; ID.; LEGISLATIVE APPROPRIATION. — The existence of a legislative appropriation

especially destined to pay for land to be acquired by the Government through the exercise of the
power of eminent domain is not an essential prerequisite to the institution and maintenance of
judicial proceedings for the expropriation of such land. All that can be required of the
Government is that it should comply with the conditions laid down by law as and when
those conditions arise.

4. ID.; RIGHT TO EXERCISE POWER; INHERENT IN SOVEREIGNTY. — The power of

eminent domain is inseparable from sovereignty, being essential to the existence of the State and
inherent in government even in its most primitive forms. No law, therefore, is ever necessary to
confer this right upon sovereignty or upon any Government exercising sovereign or quasi-
sovereign powers.

5. ID.; ID.; DUE PROCESS OF LAW JUST COMPENSATION. — The power of eminent
domain, with respect to the conditions under which the property is taken, must be exercised in
subjection to the restraints imposed by constitutional or organic law, and in these Islands
especially with reference to section 3 of the Jones Act which declares that no law shall be
enacted which shall deprive any person of property without due process of law and that private
property shall not be taken for public use without just compensation.
 6. ID.; ID.; METHOD OF EXPROPRIATION. — If the Legislature prescribes a method of
expropriation which provides for the payment of just compensation and such method is so
conceived and adapted as to fulfill the constitutional requisite of due process of law, any
expropriation accomplished in conformity with that method is valid.

7. ID.; ID.; ID.; PAYMENT OF COMPENSATION. — There is no organic or constitutional

provision in force in these Islands requiring that compensation shall actually be paid prior to the
judgment of condemnation.

8. ID.; ID.; ID.; PAYMENT OF COMPENSATION AS PREREQUISITE TO ACQUISITION

OF PROPERTY. — The system of expropriation prescribed by laws in force in these Islands
affords absolute assurance that no piece of land can be finally and irrevocably taken from an
unwilling owner until compensation is paid. In this connection our courts are directed to make
such final order and judgment as shall secure just compensation for the land taken, and the right
of the expropriator is finally made absolutely dependent upon the payment of compensation by
him.

9. ID.; ID.; GIVING OF PROVISIONAL POSSESSION TO GOVERNMENT; OFFICE OF

PRELIMINARY DEPOSIT. — Where provisional possession is given to the Government in an
expropriation proceeding, upon the making of the deposit required by Act No. 2826 of the
Philippine Legislature, the owner of the land is fully protected from any loss that might result
from the temporary occupation of the land by the Government in the event that the Legislature
should finally fail to appropriate any additional amount necessary to satisfy the award of the
court; for such preliminary deposit serves the double purpose of prepayment upon the value of
the property, if finally expropriated, and as an indemnity against damage in the eventuality that
the proceeding should fail of consummation.

DECISION

STREET, J.  :

This is an original petition, directed to the Supreme Court, containing an alternative prayer for a writ
of certiorari or prohibition, as the facts may warrant, to stop certain condemnation proceedings
instituted by the Government of the Philippine Islands, and now pending in the Court of First Instance
of the Province of Rizal. The respondents have interposed what is called an answer, but which is in
legal effect merely a demurrer, challenging the sufficiency of the allegations of the petition. The
matter having been submitted upon oral argument, the cause is now before us for the decision of the
question thus presented.

It appears that upon September 13, 1919, the Governor-General directed the Attorney-General to
cause condemnation proceedings to be begun for the purpose of expropriating a tract of land of an
area of about 1,100,463 square meters, commonly known as the site of Camp Tomas Claudio. Said
land is located in the municipality of Parañaque, Province of Rizal, and lies along the water front of
Manila Bay, a few miles south of the city of Manila. It is stated in communication of the Governor-
General that the property in question is desired by the Government of the Philippine Islands for
military and aviation purposes.
In conformity with the instructions of the Governor-General, condemnation proceedings were begun
by the Attorney-General on September 15, 1919, by filing a complaint in the name of the Government
of the Philippine Islands in the Court of First Instance of the Province of Rizal. Numerous persons are
named in the complaint as defendants because of their supposed ownership of portions of the property
intended to be expropriated. In the list of persons thus impleaded appear the names of the three
petitioners herein, namely, the Visayan Refining Co., Dean C. Worcester, and Fred A. Leas, who are
severally owners of different portions of the property in question.

In the communication of the Governor-General, the Attorney-General was directed immediately upon
filing the complaint to ask the court to give the Government the possession of the land to be
expropriated, after the necessary deposit should be made as provided by law. Accordingly in the
complaint itself the Attorney-General prayed the court promptly and provisionally to fix the sum of
P600,000 as the total value of the property and to put the Government in immediate possession when
said sum should be placed at the disposition of the court. An order was accordingly made on
September 15, 1919, by the Honorable Judge Manuel Camus, of the Court of First Instance of the
Province of Rizal, fixing the value of the property provisionally at the amount stated and ordering that
the plaintiff be placed in possession, it being made to appear that a certificate of deposit for the
amount stated had been delivered to the provincial treasurer.

At this stage of the proceedings in the Court of First Instance the three respondents already
mentioned, to wit, the Visayan Refining Co., Dean C. Worcester, and Fred A. Leas, interposed a
demurrer, questioning the validity of the proceedings on the ground that there is no Act of the
Philippine Legislature authorizing the exercise of the power of eminent domain to acquire land for
military or aviation purposes.

Contemporaneously with the filing of their demurrer, the same parties moved the Court of First
Instance to revoke its order of September 15, giving the plaintiff provisional possession. This motion is
based substantially on the same ground as the demurrer, that is, the lack of legislative authority for
the proposed expropriation, but it contains one additional allegation to the effect that the deposit in
court of the sum of P600,000, had been made without authority of law. In support of this contention it
was shown, by means of an informal communication from the Insular Auditor, that the money in
question had been taken from the unexpended balance of the funds appropriated by Acts Nos. 2784
and 2785 of the Philippine Legislature for the use of the Militia Commission. This appropriation
showed, upon the date said deposit of P600,000 was made, an unexpended balance of P1,144,672.83

On October 3, 1919, the Judge of the Court of First Instance overruled the demurrer interposed by the
three parties mentioned and denied their motion to vacate the order granting possession to the
Government. The present proceeding was thereupon instituted in this Court in the manner and for the
purpose already stated.

General authority to exercise the power of eminent domain is expressly conferred on the Government
of the Philippine Islands, as now constituted, by section 63 of the Philippine Bill, which reads as
follows:
jgc:chanrobles.com.ph

"That the Government of the Philippine Islands is hereby authorized, subject to the limitation and
conditions prescribed in this Act to acquire, receive, hold, maintain, and convey title to real and
personal property, and may acquire real estate for public uses by the exercise of the right of eminent
domain." (Act of Congress of July 1, 1902.)

Section 3 of the Jones Act contains the further provision that "private property shall not be taken for
public use without just compensation." In addition to this there is found in the same section the
familiar provision, already expressed in section 5 of the Philippine Bill, that no law shall be enacted
which shall deprive any person of property without due process of law, or deny any person the equal
protection of the laws. (Act of Congress of August 29, 1916, sec. 3.)

Section 64 of the Administrative Code of the Philippine Islands (Act No. 2711) expressly confers on the
Governor-General the power, among others: jgc:chanrobles.com.ph

"To determine when it is necessary or advantageous to exercise the right of eminent domain in behalf
of the Government of the Philippine Islands; and to direct the Attorney-General, where such act is
deemed advisable, to cause the condemnation proceedings to be begun in the court having proper
jurisdiction." cralaw virtua1aw library

The procedural provisions relative to the conduct of expropriation proceedings are contained in
sections 241 to 253, inclusive, of the Code of Civil Procedure, supplemented as they are by various
later Acts of the Legislature. Among the salient features of the scheme of expropriation thus created
are these: (1) If the court is of the opinion that the right of expropriation exists, three commissioners
are appointed to hear the parties, view the premises, and assess the damages to be paid for the
condemnation (sec. 243 Code Civ. Proc.); (2) after hearing the evidence submitted by the parties and
assessing the damages in the manner prescribed by law (sec. 244), the commissioners make their
report to the court, setting forth all their proceedings; and it is expressly declared that "none of their
proceedings shall be effectual to bind the property or the parties until the court shall have accepted
their report and rendered judgment in accordance with its recommendations" (sec. 245); (3) the court
then acts upon the report, accepting the same in whole or in part, or rejecting, recommitting, or
setting aside the same, as it sees fit (sec. 246). It is further declared in section 246 that —

"The court . . . may make such final order and judgment as shall secure to the plaintiff the property
essential to the exercise of his rights under the law, and to the defendant just compensation for the
land so taken; and the judgment shall require payment of the sum awarded as provided in the next
section (i. e., sec. 247) before the plaintiff can enter upon the ground and appropriate it to the public
use."cralaw virtua1aw library

Sections 247 and 251 of the same Code are of sufficient importance in this connection to warrant
quotation in their entirety. They are as follows: jgc:chanrobles.com.ph

"SEC. 247. Rights of Plaintiff After the Judgment. — Upon payment by the plaintiff to the defendant of
compensation as fixed by the judgment, or after tender to him of the amount so fixed and payment of
the costs, the plaintiff shall have the right to enter in and upon the land so condemned, to appropriate
the same to the public use defined in the judgment. In case the defendant and his attorney absent
themselves from the court or decline to receive the same, payment may be made to the clerk of the
court for him, and such officer shall be responsible on his bond therefor and shall be compelled to
receive it." cralaw virtua1aw library

"SEC. 251. Final Judgment, Its Record and Effect. — The record of the final judgment in such action
shall state definitely by metes and bounds and adequate description. the particular land or interest in
land condemned to the public use, and the nature of the public use. A certified copy of the record of
the judgment shall be recorded in the office of the registrar of deeds for the province in which the
estate is situated, and its effect shall be to vest in the plaintiff for the public use stated the land and
estate so described." cralaw virtua1aw library

The provisions which deal with the giving of immediate possession when the Government of the
Philippine Islands is the plaintiff are found in Act No. 2826, which is in part as follows: jgc:chanrobles.com.ph

"SEC. 2. When condemnation proceedings are instituted by or in favor of the Insular Government . . .
in any competent court of the Philippines, the plaintiff shall be entitled to enter immediately upon the
land covered by such proceedings, after depositing with the provincial treasurer the value of said land
in cash, as previously and promptly determined and fixed by the competent court, which money the
provincial treasurer shall retain subject to the order and final decision of the court: Provided, however,
That the court may permit that in lieu of cash, there may be deposited with the provincial treasurer a
certificate of deposit of any depository of the Government of the Philippine Islands, payable to the
provincial treasurer on sight, for the sum ordered deposited by the court. The certificate and the sums
represented by it shall be subject to the order and final decision of the court, and the court shall have
authority to place said plaintiff in possession of the land, upon such deposit being made, by the proper
orders and a mandate, if necessary.

"SEC. 3. . . . Upon the payment by the plaintiff to the defendants of the compensation awarded by the
sentence, or after the tender of said sum to the defendants, and the payment of the costs, or in case
the court orders the price to be paid into court, the plaintiff shall be entitled to appropriate the land so
condemned to the public use specified in the sentence. In case payment is made to the court, the
clerk of the same shall be liable on his bond for the sum so paid and shall be obliged to receive the
same." cralaw virtua1aw library

In connection with the foregoing provisions found in laws enacted under the American regime is to be
considered the following provision of the Civil Code:jgc:chanrobles.com.ph

"ART. 349 No one may be deprived of his property unless it be by competent authority for some
purpose of proven public utility and after payment of the proper compensation.

"Unless this requisite has been complied with, it shall be the duty of the court to protect the owner of
such property in its possession or to restore its possession to him, as the case may be." cralaw virtua1aw library

Taken together the laws mentioned supply a very complete scheme of judicial expropriation, deducing
the authority from its ultimate source in sovereignty, providing in detail for the manner of its exercise,
and making the right of the expropriator finally dependent upon payment of the amount awarded by
the court.

As has already been indicated the petition before us proceeds on the idea that the expropriation
proceedings in question cannot be maintained by the Philippine Government in the absence of a
statute authorizing the exercise of the power of eminent domain for military and aviation purposes;
and while it is not urged that a special legislative Act must be passed every time any particular parcel
of property is to be expropriated, it is claimed — and this really amounts to the same thing — that the
Government cannot institute and prosecute expropriation proceedings unless there is already in
existence a legislative appropriation especially destined to pay for the land to be taken.

We are of the opinion that the contentions of the petitioners, in whatever way they may be understood
or expressed, are not well founded. There is one point at least on which all must agree, namely, that if
land can be taken by the Government for a public use at all, the use intended to be made of the land
now in question, that is, for military and aviation purposes, is a public use. It is undeniable that a
military establishment is essential to the maintenance of organized society, and the courts will take
judicial notice of the recent progress of the military and naval arts resulting from the development of
aeronautics.

The question as to the abstract authority of the Government to maintain expropriation proceedings
upon the initiative of the Governor-General should not be confused with that which has reference to
the necessity for a legislative appropriation. They really involve different problems and will be
separately considered.

Upon the first, we are of the opinion that in this jurisdiction at least expropriation proceedings may be
maintained upon the exclusive initiative of the Governor-General, without the aid of any special
legislative authority other than that already on the statute books. Furthermore if the Government
complies with the requirements of law relative to the making of a deposit in court, provisional
possession of the property may be at once given to it, just as is permitted in the case of any other
person or entity authorized by law to exercise the power of eminent domain Special legislative
authority for the buying of a piece of land by the Government is no more necessary than for buying a
paper of pins; and in the case of a forced taking of property against the will of the owner, all that can
be required of the government is that it should be able to comply with the conditions laid down by law
as and when those conditions arise.

The contention that the authority to maintain such a proceeding cannot be delegated by the
Legislature to the Chief Executive, is in our opinion wholly erroneous and apparently has its basis in a
misconception of fundamentals It is recognized by all writers that the power of eminent domain is
inseparable from sovereignty being essential to the existence of the State and inherent in government
even in its most primitive forms. Philosophers and legists may differ as to the grounds upon which the
exercise of this high power is to be justified, but no one can question its existence. No law, therefore,
is ever necessary to confer this right upon sovereignty or upon any government exercising sovereign
or quasi-sovereign powers.
As is well said by the author of the article on Eminent Domain in the encyclopaedic treatise Ruling
Case Law.

"The power of eminent domain does not depend for its existence on a specific grant in the
constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it
in the constitution. The provisions found in most of the state constitutions relating to the taking of
property for the public use do not by implication grant the power to the government of the state, but
limit a power which would otherwise be without limit." (10, R. C. L., pp. 11, 12.)

In other words, the provisions now generally found in the modern laws or constitutions of civilized
countries to the effect that private property shall not be taken for public use without compensation
have their origin in the recognition of a necessity for restraining the sovereign and protecting the
individual. Moreover, as will be at once apparent, the performance of the administrative acts
necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition
in the Sovereign or other Chief Executive. Therefore, when the Philippine Legislature declared in
section 64 of the Administrative Code, that the Governor-General, who exercises supreme executive
power in these Islands (sec. 21, Jones Act), should be the person to direct the initiation of
expropriation proceedings, it placed the authority exactly where one would expect to find it, and we
can conceive of no ground upon which the efficacy of the statute can reasonably be questioned.

We would not of course pretend that, under our modern system of Government, in which the
Legislature plays so important a role, the executive department could, without the authority of some
statute, proceed to condemn property for its own uses; because the traditional prerogatives of the
sovereign are not often recognized nowadays as a valid source of power, at least in countries
organized under republican forms of government. Nevertheless it may be observed that the real check
which the modern Legislature exerts over the Executive Department, in such a matter as this, lies not
so much in the extinction of the prerogative as in the fact that the hands of the Executive can always
be paralyzed by lack of money — something which is ordinarily supplied only by the Legislature.

At any rate the conclusion is irresistible that where the Legislature has expressly conferred the
authority to maintain expropriation proceedings upon the Chief Executive, the right of the latter to
proceed therein is clear. As is said by the author of the article from which we have already quoted,
"Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly
legislative. The executive authorities may then decide whether the power will be invoked and to what
extent." (10 R. C. L., p. 14.)

The power of eminent domain, with respect to the conditions under which the property is taken, must
of course be exercised in subjection to all the restraints imposed by constitutional or organic law. The
two provisions by which the exercise of this power is chiefly limited in this jurisdiction are found in the
third section of the Jones Act, already mentioned, which among other things declares (1) that no law
shall be enacted which shall deprive any person of property without due process of law and (2) that
private property shall not be taken for public use without just compensation. The latter of these
provisions is directly aimed at the taking of property under the exercise of the power of eminent
domain; and as this requirement, in connection with the statutes enacted to make sure the payment
of compensation, usually affords all the protection that the owner of property can claim, it results that
the due process clause is rarely invoked by the owner in expropriation proceedings.

Nevertheless it should be noted that the whole problem of expropriation is resolvable in its ultimate
analysis into a constitutional question of due process of law. The specific provisions that just
compensation shall be made is merely in the nature of a superadded requirement to be taken into
account by the Legislature in prescribing the method of expropriation. Even were there no organic or
constitutional provision in force requiring compensation to be paid, the seizure of one’s property
without payment, even though intended for a public use, would undoubtedly be held to be a taking
without due process of law and a denial of the equal protection of the laws.

This point is not merely an academic one, as might superficially seem. On the contrary it has a
practical bearing on the problem before us, which may be expressed by saying that, if the Legislature
has prescribed a method of expropriation which provides for the payment of just compensation, and
such method is so conceived and adapted as to fulfill the constitutional requisite of due process of law,
any proceeding conducted in conformity with that method must be valid.

These considerations are especially important to be borne in mind in connection with the second
contention made by counsel for the petitioners, namely, that land cannot be expropriated by the
Government in the absence of a legislative appropriation especially destined to pay for the land to be
taken. To this question we now address ourselves; and while we bear in mind the cardinal fact that
just compensation must be made, the further fact must not be overlooked that there is no organic or
constitutional provision in force in these Islands requiring that compensation shall actually be paid
prior to the judgment of condemnation.

If the laws which we have exhibited or cited in the preceding discussion are attentively examined it
will be apparent that the method of expropriation adopted in this jurisdiction is such as to afford
absolute assurance that no piece of land can be finally and irrevocably taken from an unwilling owner
until compensation is paid. It is true that in rare instances the proceedings may be voluntarily
abandoned before the expropriation is complete or the proceedings may fail because the expropriator
becomes insolvent, in either of which cases the owner retains the property; and if possession has been
prematurely obtained by the plaintiff in the proceedings, it must be restored. It will be noted that the
title does not actually pass to the expropriator until a certified copy of the record of the judgment is
recorded in the office of the register of deeds (sec. 251, Code Civ. Proc.) . Before this stage of the
proceedings is reached the compensation is supposed to have been paid; and the court is plainly
directed to make such final order and judgment as shall secure to the defendant just compensation for
the land taken. (Sec. 246, Code Civ. Proc.) . Furthermore, the right of the expropriator is finally made
dependent absolutely upon the payment of compensation by him. (Sec. 3, Act No. 2826; sec. 247,
Code Civ. Proc.) .

It will be observed that the scheme of expropriation exemplified in our statutes does not primarily
contemplate the giving of a personal judgment for the amount of the award against the expropriator:
the idea is rather to protect the owner by requiring payment as a condition precedent to the
acquisition of the property by the other party. The power of the court to enter a judgment for the
money and to issue execution thereon against the plaintiff is, however, unquestioned; and the court
can without doubt proceed in either way. But whatever course be pursued the owner is completely
protected from the possibility of losing his property without compensation.

When the Government is plaintiff the judgment will naturally take the form of an order merely
requiring the payment of the award as a condition precedent to the transfer of the title, as a personal
judgment against the Government could not be realized upon execution. It is presumed that by
appearing as plaintiff in condemnation proceedings, the Government submits itself to the jurisdiction
of the court and thereby waives its immunity from suit. As a consequence it would be theoretically
subject to the same liability as any other expropriator. Nevertheless, the entering of a personal
judgment against it would be an unnecessary, as well as profitless formality.

In the face of the elaborate safeguards provided in our procedure, it is frivolous to speculate upon the
possibility that the Legislature may finally refuse to appropriate any additional amount, over and
above the provisional deposit, that may be necessary to pay the award. That it may do. But the
Government can not keep the land and dishonor the judgment. Moreover, in the eventuality that the
expropriation shall not be consummated, the owners will be protected by the deposit from any danger
of loss resulting from the temporary occupation of the land by the Government; for it is obvious that
this preliminary deposit serves the double purpose of a prepayment upon the value of the property, if
finally expropriated, and as an indemnity against damage in the eventuality that the proceedings
should fail of consummation.

It appears that the money represented by the certificate of deposit which was placed at the disposal of
the lower court, pursuant to the requirements of section 2 of Act No. 2826, was taken from certain
appropriations under the control of the Militia Commission, a body created by section 29 of Act No.
2715, for the purpose, among others, of advising the Governor-General upon measures relative to the
organization, equipment, and government of the National Guard and reserve militia. Counsel for the
petitioners say that money appropriated for the purposes of the Militia Commission cannot be lawfully
used to acquire the land which is now the subject of expropriation, because no authority for the
exercise of the power of eminent domain is to be found in any of the Acts appropriating money for
said Commission; from whence it is argued that the certificate of deposit affords no protection to the
owners of property.

The point appears to be one of little general importance, and we will not multiply words over it. Suffice
it to say that in our opinion the Insular Auditor was acting within his authority when he let this money
out of the Insular Treasury; and being now within the control of the lower court, it will doubtless in
due time be applied to the purpose for which the deposit was made.

From the foregoing discussion it is apparent that the action taken by the lower court in the
condemnation proceedings aforesaid was in all respects regular and within the jurisdiction of the court.
The writ prayed for in the petition before us, therefore, can not be issued. The application is
accordingly denied, with costs against ,the petitioners.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Johnson, J., reserves the right to prepare a separate opinion.

Separate Opinions

MALCOLM, J., concurring: chanrob1es virtual 1aw library

I agree with the conclusion arrived at in the majority decision. I am clearly of the opinion that the
alternative application for a writ of certiorari or prohibition should not be granted. An analysis into
their simplest elements of the various questions presented may easily be made as follows: 1. The
power of the Philippine Government in eminent domain; 2. The constitutional prohibition that (A)
private property (E) shall not be taken for public use (C) without just compensation; and 3. The
constitutional prohibition that no money shall be paid out of the treasury except in pursuance of an
appropriation by law.

1. The power of eminent domain is expressly vested in the Government of the Philippine Islands by
section 63 of the Act of Congress of July 1, 1902, commonly known as the Philippine Bill. The
Philippine Legislature has, in turn by section 64 (h) of the Administrative Code of 1917, expressly
delegated to the Governor-General the specific power and duty to determine when it is necessary or
advantageous to exercise the right of eminent domain in behalf of the Government of the Philippine
Islands. This delegation of legislative power to the Governor-General was authorized in view of the
nature of eminent domain, which necessitates administrative agents for its execution, in view of the
previous attitude assumed by the Judiciary with relation to similar delegations of power, and in view of
the undeniable fact that the Governor-General is a part of the same Government of the Philippine
Islands to which was transferred the right of eminent domain by the Congress of the United States.
(See Government of the Philippine Islands v. Municipality of Binangonan [1916], 34 Phil. 518.) When;
therefore, the Governor-General directed the Attorney-General to cause condemnation proceedings to
be begun in the Court of First Instance of Rizal with the object of having the Government obtain title
to the site commonly known as "Camp Tomas Claudio," the Governor-General was merely acting as a
mouthpiece of American sovereignty, pursuant to a delegated power transmitted by the Congress of
the United States to the Government of the Philippine Islands and lodged by this latter Government in
the Chief Executive. Any other holding would mean that section 64 (h) of the Administrative Code is
invalid, a result to be avoided.

2. In the existing Philippine Bill of Rights (last sentence, paragraph 1, section 3, Act of Congress of
August 29, 1916) is a provision that "private property shall not be taken for public use without just
compensation." It seems undeniable (A) that Camp Claudio was "private property," and (B) that it was
being "taken for public use," namely, for military and aviation purposes. The only remaining point
concerns "just compensation," which can better be discussed under our division 3.

3. Another provision of the Philippine Bill of Rights (paragraph 15, section 3, Act of Congress of August
29, 1916) is, "that no money shall be paid out of the treasury except in pursuance of an appropriation
by law." The same Organic Act provides (paragraph 1, section 24) for an Auditor who shall "audit, in
accordance with law and administrative regulations, all expenditure of funds or property pertaining to,
or hela in trust, by the Government." His administrative jurisdiction is made "exclusive." The Philippine
Legislature could, of course, have specifically appropriated an amount for the purchase of the Camp
Claudio site just as it could have specifically enacted a law for the condemnation of such site, but
instead it preferred to include in the general Appropriation Acts, under the heads of The Philippine
National Guard or Philippine Militia, a large amount to be expended in the discretion of the Militia
Commission, which may "use the funds appropriated for other purposes, as the efficiency of the
service may require." This transfer of power to the Militia Commission, like the delegation of some of
the general legislative power to the Governor-General, raises no constitutional bar. The Insular Auditor
has stated that there is in the treasury over a million pesos available for the condemnation of Camp
Claudio, and this decision for present purposes must be taken as final and conclusive. The six hundred
thousand pesos deposit is merely the provisional determination of the value of the land by the
competent court, and in no way jeopardizes the financial interests of the owners of the property. No
additional security is required since the sovereign power has waived its right to be sued, has pledged
the public faith, and cannot obtain title until the owners receive just compensation for their property.
(See Sweet v. Rechel [1895], 159 U. S., 380.)

In resume, therefore, the Governor-General of the Philippine Islands had the right to authorize the
condemnation of this land for military and aviation purposes, and no constitutional provision has been
violated. The Court of First Instance of Rizal has merely acted in strict accord with law, and its action
should, consequently, be sustained.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14355             October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.

City Fiscal Diaz for appellant.

Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and Ramon Salinas for
appellees.

JOHNSON, J.:

The important question presented by this appeal is: In expropriation proceedings by the city of Manila, may the courts
inquire into, and hear proof upon, the necessity of the expropriation?

That question arose in the following manner:

On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First Instance of said city,
praying that certain lands, therein particularly described, be expropriated for the purpose of constructing a public
improvement. The petitioner, in the second paragraph of the petition, alleged:

That for the purpose of constructing a public improvement, namely, the extension of Rizal Avenue, Manila, it
is necessary for the plaintiff to acquire ownership in fee simple  of certain parcels of land situated in the
district of Binondo of said city within Block 83 of said district, and within the jurisdiction of this court.

The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of the
plaintiff, alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine
Islands, having for its purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it
was the owner of parcels one and two of the land described in paragraph 2 of the complaint; that it denied that it
was either necessary or expedient that the said parcels be expropriated for street purposes; that existing street and
roads furnished ample means of communication for the public in the district covered by such proposed expropriation;
that if the construction of the street or road should be considered a public necessity, other routes were available,
which would fully satisfy the plaintiff's purposes, at much less expense and without disturbing the resting places of the
dead; that it had a Torrens title for the lands in question; that the lands in question had been used by the defendant
for cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said expropriation be
carried into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of
money in the transfer or removal of the bodies to some other place or site and in the purchase of such new sites,
would involve the destruction of existing monuments and the erection of new monuments in their stead, and would
create irreparable loss and injury to the defendant and to all those persons owning and interested in the graves and
monuments which would have to be destroyed; that the plaintiff was without right or authority to expropriate said
cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a
public improvement.

The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of the complaint, and
alleged that said expropriation was not a public improvement; that it was not necessary  for the plaintiff to acquire the
parcels of land in question; that a portion of the lands in question was used as a cemetery in which were the graves
of his ancestors; that monuments and tombstones of great value were found thereon; that the land had
become quasi-public property  of a benevolent association, dedicated and used for the burial of the dead and that
many dead were buried there; that if the plaintiff deemed it necessary to extend Rizal Avenue, he had offered and still
offers to grant a right of way for the said extension over other land, without cost to the plaintiff, in order that the
sepulchers, chapels and graves of his ancestors may not be disturbed; that the land so offered, free of charge, would
answer every public necessity  on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of the other
defendants, answering separately, presented substantially the same defense as that presented by the Comunidad de
Chinos de Manila and Ildefonso Tambunting above referred to.

The foregoing parts of the defense presented by the defendants have been inserted in order to show the general
character of the defenses presented by each of the defendants. The plaintiff alleged that the expropriation was
necessary. The defendants each alleged (a) that no necessity existed for said expropriation and (b) that the land in
question was a cemetery, which had been used as such for many years, and was covered with sepulchres and
monuments, and that the same should not be converted into a street for public purposes.

Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judge, in
a very elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that
there was no necessity  for the expropriation of the particular strip of land in question, and absolved each and all of
the defendants from all liability under the complaint, without any finding as to costs.

From that judgment the plaintiff appealed and presented the above question as its principal ground of appeal.

The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate
land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain
the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible
purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that
the courts  are mere appraisers  of the land involved in expropriation proceedings, and, when the value of the land is
fixed by the method adopted by the law, to render a judgment in favor of the defendant for its value.
That the city of Manila has authority to expropriate private lands for public  purposes, is not denied. Section 2429 of
Act No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn private  property
for public use."

The Charter of the city of Manila contains no procedure by which the said authority may be carried into effect. We are
driven, therefore, to the procedure marked out by Act No. 190 to ascertain how the said authority may be exercised.
From an examination of Act No. 190, in its section 241, we find how the right of eminent domain may be exercised.
Said section 241 provides that, "The Government of the Philippine Islands, or of any province or department thereof,
or of any municipality, and any person, or public or private corporation having, by law,  the right  to condemn private
property for public use, shall exercise that right in the manner hereinafter prescribed."

Section 242 provides that a complaint in expropriation proceeding shall be presented; that the complaint shall state
with certainty the right of condemnation, with a description of the property sought to be condemned together with the
interest of each defendant separately.

Section 243 provides that if the court shall find upon  trial that the right to expropriate the land in question exists, it
shall then appoint commissioners.

Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provides for
an appeal from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the
Supreme Court authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on
appeal shall determine that no right of expropriation existed, it shall remand the cause to the Court of First Instance
with a mandate that the defendant be replaced in the possession of the property and that he recover whatever
damages he may have sustained by reason of the possession of the plaintiff.

It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the right  to
expropriate exists," means simply that, if the court finds that there is  some law  authorizing the plaintiff to expropriate,
then the courts have no other function than to authorize the expropriation and to proceed to ascertain the value of the
land involved; that the necessity for the expropriation is a legislative and not a judicial question.

Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene
except for the purpose of determining the value of the land in question, there is much legal legislature. Much has
been written upon both sides of that question. A careful examination of the discussions pro  and con  will disclose the
fact that the decisions depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the
legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some
specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to
expropriate private land  for public  purposes, we think the courts have ample authority in this jurisdiction, under the
provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or
not the lands were private and whether the purpose was, in fact, public. In other words, have no the courts in this
jurisdiction the right, inasmuch as the questions relating to expropriation must be referred to them (sec. 241, Act No.
190) for final decision, to ask whether or not the law has been complied with? Suppose in a particular case, it should
be denied that the property is not private  property but public, may not the courts hear proof upon that question? Or,
suppose the defense is, that the purpose of the expropriation is not public but private, or that there exists no public
purpose at all, may not the courts make inquiry and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for public purposes. Can it be possible that said
authority confers the right to determine for itself that the land is private and that the purpose is public, and that the
people of the city of Manila who pay the taxes for its support, especially those who are directly affected, may not
question one or the other, or both, of these questions? Can it be successfully contended that the phrase used in Act
No. 190, "and if the court upon trial shall find that such right  exists," means simply that the court shall examine
the  statutes simply  for the purpose of ascertaining whether a law exists authorizing the petitioner to exercise the right
of eminent domain? Or, when the case arrives in the Supreme Court, can it be possible that the phrase, "if the
Supreme Court shall determine that no right  of expropriation exists," that that simply means that the Supreme Court
shall also examine the enactments of the legislature for the purpose of determining whether or not a law exists
permitting the plaintiff to expropriate?
We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an
inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the
power upon it. When the courts come to determine the question, they must only find (a) that a law or authority exists
for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance
with the law. In the present case there are two conditions imposed upon the authority conceded to the City of
Manila: First, the land must be private; and, second, the purpose must be public. If the court, upon trial, finds that
neither of these conditions exists or that either one of them fails, certainly it cannot be contended that the right is
being exercised in accordance with law.

Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. Whether the land
is public, is a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine
Islands the right to ascertain upon  trial whether the right  exists for the exercise of eminent domain, it intended that
the courts should inquire into, and hear proof upon, those questions. Is it possible that the owner of valuable land in
this jurisdiction is compelled to stand mute while his land is being expropriated for a use not public, with the right
simply to beg the city of Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities
to expropriate lands, without question, simply for the purpose of satisfying the aesthetic sense of those who happen
for the time being to be in authority? Expropriation of lands usually calls for public expense. The taxpayers are called
upon to pay the costs. Cannot the owners of land question the public use  or the public necessity?

As was said above, there is a wide divergence of opinion upon the authority of the court to question the necessity or
advisability of the exercise of the right of eminent domain. The divergence is usually found to depend upon particular
statutory or constitutional provisions.

It has been contended — and many cases are cited in support of that contention, and section 158 of volume 10 of
Ruling Case Law is cited as conclusive — that the necessity for taking property under the right of eminent domain is
not a judicial question. But those who cited said section evidently overlooked the section immediately following (sec.
159), which adds: "But it is obvious that if the property is taken in the ostensible behalf of a public improvement  which
it can never by any possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for
protection by the courts. While many courts have used sweeping expression in the decisions in which they have
disclaimed the power of supervising the power of supervising the selection of the sites of public improvements, it may
be safely said that the courts of the various states would feel bound to interfere to prevent an abuse of the discretion
delegated by the legislature, by an attempted appropriation of land in utter disregard of the possible necessity of its
use, or when the alleged purpose was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St.,
368; State vs. Stewart, 74 Wis., 620.)

Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention of the appellant,
says:

The legislature, in providing for the exercise of the power of eminent domain,  may directly determine the
necessity for appropriating private property for a particular improvement for public use, and it may select the
exact location of the improvement. In such a case, it is well settled that the utility of the proposed
improvement, the extent of the public necessity for its construction, the expediency of constructing it, the
suitableness of the location selected and the consequent necessity of taking the land selected for its site,
are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to
substitute their own views for those of the representatives of the people.

Practically every case cited in support of the above doctrine has been examined, and we are justified in making the
statement that in each case the legislature directly determined the necessity for the exercise of the right of eminent
domain in the particular case. It is not denied that if the necessity for the exercise of the right of eminent domain is
presented to the legislative department of the government and that department decides that there exists a necessity
for the exercise of the right in a particular case, that then and in that case, the courts will not go behind the action of
the legislature and make inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo,
Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the doctrine laid down in
section 158 above quoted, the court said:

But when the statute does not designate the property to be taken nor how may be taken, then the necessity
of taking particular property  is a question for the courts. Where the application to condemn or appropriate is
made directly to the court, the question (of necessity) should be raised and decided in limene.
The legislative department of the government was rarely undertakes to designate the precise property which should
be taken for public use. It has generally, like in the present case, merely conferred general authority to take land for
public use when a necessity exists therefor. We believe that it can be confidently asserted that, under such statute,
the allegation of the necessity for the appropriation is an issuable allegation which it is competent for the courts to
decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)

There is a wide distinction between a legislative declaration that a municipality is given authority to exercise the right
of eminent domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a
particular case. The first is a declaration simply that there exist reasons why the right should be conferred upon
municipal corporation, while the second is the application of the right to a particular case. Certainly, the legislative
declaration relating to the advisability of granting the power cannot be converted into a declaration that a necessity
exists for its exercise in a particular case, and especially so when, perhaps, the land in question was not within the
territorial authority was granted.

Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the right of eminent
domain, is a question with which the courts are not concerned. But when that right or authority is exercised for the
purpose of depriving citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to
hear proof upon the necessity in the particular case, and not the general authority.

Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive authority upon
the question that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial
question. Cyclopedia, at the page stated, says:

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency  of

exercising the right of eminent domain are questions essentially political and not judicial in their character.
The determination of those questions (the necessity and the expediency) belongs to the sovereign power;
the legislative department is final and conclusive, and the courts have no power to review it (the necessity
and the expediency) . . . . It (the legislature) may designate the particular property to be condemned, and its
determination in this respect cannot be reviewed by the courts.

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted. While time has not
permitted an examination of all of said citations, many of them have been examined, and it can be confidently
asserted that said cases which are cited in support of the assertion that, "the necessity and expediency of exercising
the right of eminent domain are questions essentially political and not judicial," show clearly and invariably that in
each case the legislature itself usually, by a special law, designated the particular case in which the right of eminent
domain might be exercised by the particular municipal corporation or entity within the state. (Eastern R.
Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6
Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S.,
390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668;
Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)

In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United States said: "It is
erroneous to suppose that the legislature is beyond the control of the courts in exercising the power of eminent
domain, either as to the nature of the use or the necessity to the use of any particular property. For if the use be not
public or no necessity for the taking exists, the legislature cannot authorize the taking of private property against the
will of the owner, notwithstanding compensation may be required."

In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339, 356), we find the Supreme Court of Porto
Rico, speaking through Justice MacLeary, quoting approvingly the following, upon the question which we are
discussing: "It is well settled that although the legislature must necessarily determine in the first instance whether the
use for which they (municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities, etc.)
determination is not final, but is subject to correction by the courts, who may undoubtedly declare the statute
unconstitutional, if it shall clearly appear that the use for which it is proposed to authorize the taking of private
property is in reality not public but private." Many cases are cited in support of that doctrine.

Later, in the same decision, we find the Supreme Court of Porto Rico says: "At any rate, the rule is quite well settled
that in the cases under consideration the determination of the necessity of taking a particular piece or a certain
amount of land rests ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court
of Connecticut approvingly quoted the following doctrine from Lewis on Eminent Domain (3d ed.), section 599: "In all
such cases the necessity of public utility of the proposed work or improvement is a judicial question. In all such cases,
where the authority is to take property necessary for the purpose, the necessity of taking particular property for a
particular purpose is a judicial one, upon which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71
S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390, 403.)

The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of
the state, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to
delegate. (Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc.
Co. vs. Ely, etc. Co., 132 Ky., 692, 697.)

In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of the State of
Maryland, discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain)
where the legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the
purpose of the incorporation, as in this case, the party claiming the right to the exercise of the power should be
required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large
and almost indiscriminate delegation of the right to corporations, would likely lead to oppression and the sacrifice of
private right to corporate power."

In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is not a
general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to
exist. Such necessity must appear upon the face of the petition to condemn. If the necessary is denied the burden is
upon the company (municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856;
Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137
Am. St. Rep. 338].)

It is true that naby decisions may be found asserting that what is a public use is a legislative question, and many
other decisions declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or
statutory provision denying the right to take land for any use other than a public use, it occurs to us that the question
whether any particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is
true, in effect declare certain uses to be public, and, under the operation of the well-known rule that a statute will not
be declared to be unconstitutional except in a case free, or comparatively free, from doubt, the courts will certainly
sustain the action of the legislature unless it appears that the particular use is clearly not of a public nature. The
decisions must be understood with this limitation; for, certainly, no court of last resort will be willing to declare that any
and every purpose which the legislative might happen to designate as a public use shall be conclusively held to be
so, irrespective of the purpose in question and of its manifestly private character Blackstone in his Commentaries on
the English Law remarks that, so great is the regard of the law for private property that it will not authorize the least
violation of it, even for the public good, unless there exists a very great necessity therefor.

In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of the United States said: "That
government can scarcely be deemed free where the rights of property are left solely defendant on the legislative
body, without restraint. The fundamental maxims of free government seem to require that the rights of personal liberty
and private property should be held sacred. At least no court of justice in this country would be warranted in
assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice
and civil liberty — lurked in any general grant of legislature authority, or ought to be implied from any general
expression of the people. The people ought no to be presumed to part with rights so vital to their security and well-
being without very strong and direct expression of such intention." (Lewis on Eminent Domain, sec. 603;
Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann., 182.)

Blackstone, in his Commentaries on the English Law said that the right to own and possess land — a place to live
separate and apart from others — to retain it as a home for the family in a way not to be molested by others — is one
of the most sacred rights that men are heirs to. That right has been written into the organic law of every civilized
nation. The Acts of Congress of July 1, 1902, and of August 29, 1916, which provide that "no law shall be enacted in
the Philippine Islands which shall deprive any person of his property without due process of law," are but a
restatement of the time-honored protection of the absolute right of the individual to his property. Neither did said Acts
of Congress add anything to the law already existing in the Philippine Islands. The Spaniard fully recognized the
principle and adequately protected the inhabitants of the Philippine Islands against the encroachment upon the
private property of the individual. Article 349 of the Civil Code provides that: "No one may be deprived of his property
unless it be by competent authority, for some purpose of  proven  public utility, and after payment of the proper
compensation Unless this requisite (proven public utility and payment) has been complied with, it shall be the  duty of
the courts to protect the owner of such property in its possession or to restore its possession to him , as the case
may be."

The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily
in derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of
property is held by individuals with greater tenacity, and none is guarded by the constitution and laws more
sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right, and, for greater
public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be
enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec.,
576].)

The statutory power of taking property from the owner without his consent is one of the most delicate exercise of
government authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the
inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict
observance of the substantial provisions of the law which are  prescribed  as modes of the exercise of the power, and
to protect it from abuse. Not only must the authority of municipal corporations to take property be expressly conferred
and the use for which it is taken specified, but the power, with all constitutional limitation and  directions for its
exercise, must be strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited;
Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

It can scarcely be contended that a municipality would be permitted to take property for some public use unless some
public necessity existed therefor. The right to take private property for public use originates in the necessity, and the
taking must be limited by such necessity. The appellant contends that inasmuch as the legislature has given it
general authority to take private property for public use, that the legislature has, therefore, settled the question of the
necessity in every case and that the courts are closed to the owners of the property upon that question. Can it be
imagined, when the legislature adopted section 2429 of Act No. 2711, that it thereby declared that it was necessary to
appropriate the property of Juan de la Cruz, whose property, perhaps, was not within the city limits at the time the law
was adopted? The legislature, then, not having declared the necessity, can it be contemplated that it intended that a
municipality should be the sole judge of the necessity in every case, and that the courts, in the face of the provision
that "if upon trial they shall find that a right exists," cannot in that trial inquire into and hear proof upon the necessity
for the appropriation in a particular case?

The Charter of the city of Manila authorizes the taking of  private  property for public use. Suppose the owner of the
property denies and successfully proves that the taking of his property serves no public use: Would the courts not be
justified in inquiring into that question and in finally denying the petition if no public purpose was proved? Can it be
denied that the courts have a right to inquire into that question? If the courts can ask questions and decide, upon an
issue properly presented, whether the use is public or not, is not that tantamount to permitting the courts to inquire
into the necessity of the appropriation? If there is no public use, then there is no necessity, and if there is no
necessity, it is difficult to understand how a public use can necessarily exist. If the courts can inquire into the question
whether a public use exists or not, then it seems that it must follow that they can examine into the question of the
necessity.

The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a
public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R.
Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in
a  particular case. The power of the legislature to confer, upon municipal corporations and other entities within the
State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general
authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The
moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the
conditions accompanying the authority. The necessity  for conferring the authority upon a municipal corporation to
exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the
municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general
authority, is a question which the courts have the right to inquire into.

The  conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain
is purely legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing the
exercise of the right of eminent domain instead of in the question of the right to exercise it in a particular case.
(Creston Waterworks Co. vs. McGrath, 89 Iowa, 502.)

By the weight of authorities, the courts have the power of restricting the exercise of eminent domain to the actual
reasonable necessities of the case and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48
Minn., 540.)

And, moreover, the record does not show conclusively that the plaintiff has definitely decided that their exists a
necessity for the appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate
that the municipal board believed at one time that other land might be used for the proposed improvement, thereby
avoiding the necessity of distributing the quiet resting place of the dead.

Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend that
the street in question should not be opened through the cemetery. One of the defendants alleges that said cemetery
is  public  property. If that allegations is true, then, of course, the city of Manila cannot appropriate it for public use.
The city of Manila can only expropriate private property.

It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general
community, or neighborhood, or church, while the latter is used only by a family, or a small portion of the community
or neighborhood. (11 C. J., 50.)

Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses
under a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good
faith for future use. (Lewis on Eminent Domain, sec. 434, and cases cited.)

The cemetery in question seems to have been established under governmental authority. The Spanish Governor-
General, in an order creating the same, used the following language:

The cemetery and general hospital for indigent Chinese having been founded and maintained by the
spontaneous and fraternal contribution of their protector, merchants and industrials, benefactors of mankind,
in consideration of their services to the Government of the Islands its internal administration, government
and regime must necessarily be adjusted to the taste and traditional practices of those born and educated in
China in order that the sentiments which animated the founders may be perpetually effectuated.

It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which
fact, in the general acceptation of the definition of a public cemetery, would make the cemetery in question public
property. If that is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of
Manila has no authority or right under the law to expropriate public property.

But, whether or not the cemetery is public or private property, its appropriation for the uses of a public street,
especially during the lifetime of those specially interested in its maintenance as a cemetery, should be a question of
great concern, and its appropriation should not be made for such purposes until it is fully established that the greatest
necessity exists therefor.

While we do not contend that the dead must not give place to the living, and while it is a matter of public knowledge
that in the process of time sepulchres may become the seat of cities and cemeteries traversed by streets and daily
trod by the feet of millions of men, yet, nevertheless such sacrifices and such uses of the places of the dead should
not be made unless and until it is fully established that there exists an eminent necessity therefor. While cemeteries
and sepulchres and the places of the burial of the dead are still within
the memory and command of the active care of the living; while they are still devoted to pious uses and sacred
regard, it is difficult to believe that even the legislature would adopt a law expressly providing that such places, under
such circumstances, should be violated.

In such an appropriation, what, we may ask, would be the measure of damages at law, for the wounded sensibilities
of the living, in having the graves of kindred and loved ones blotted out and desecrated by a common highway or
street for public travel? The impossibility of measuring the damage and inadequacy of a remedy at law is too
apparent to admit of argument. To disturb the mortal remains of those endeared to us in life sometimes becomes the
sad duty of the living; but, except in cases of necessity, or for laudable purposes, the sanctity of the grave, the last
resting place of our friends, should be maintained, and the preventative aid of the courts should be invoked for that
object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery Association vs. The City of New
Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.)

In the present case, even granting that a necessity exists for the opening of the street in question, the record contains
no proof of the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent
lands have been offered to the city free of charge, which will answer every purpose of the plaintiff.

For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is hereby affirmed,
with costs against the appellant. So ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Separate Opinions

MALCOLM, J.,  concurring:

The Government of the Philippine Islands is authorized by the Philippine Bill to acquire real estate for public use by
the exercise of the right of eminent domain. (Act of Congress of July 1, 1902, sec. 63.) A portion of this power has
been delegated by the Philippine Legislature to the city of Manila, which is permitted to "condemn private property for
public use." (Administrative Code of 1917, sec. 2429.) The Code of Civil Procedure, in prescribing how the right of
eminent domain may be exercised, also limits the condemnation to "private property for public use." (Sec. 241.) As
under the facts actually presented, there can be no question that a public street constitutes a public use, the only
remaining question is whether or not the Chinese Cemetery and the other property here sought to be taken by the
exercise of the right of eminent domain is "private property."

As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public and private. A public
cemetery is one used by the general community, or neighborhood, or church; while a private cemetery is one used
only by a family, or small portion of a community. (Lay vs. State, 12 Ind. App., 362; Cemetery
Association vs. Meninger [1875], 14 Kan., 312.) Our specific question, then, is, whether the Chinese Cemetery in the
city of Manila is a public, or a private graveyard. If it be found to be the former, it is not subject to condemnation by
the city of Manila; if it be found to be the latter, it is subject to condemnation.

The Chinese Cemetery of Manila was established during the Spanish administration in the Philippines by public
spirited Chinese. The order of the Governor-General giving governmental recognition to the cemetery reads as
follows: "The cemetery and general hospital for indigent Chinese having been founded and maintained by the
spontaneous and fraternal contribution of their protectors, merchants and industrials, benefactors of mankind, in
consideration of their services to the Government of the Islands, its internal administration, government and regime,
must necessarily be adjusted to the taste and traditional practices of those born and educated in China in order that
the sentiments which animated the founders may be perpetually effectuated." Sometimes after the inauguration of the
new regime in the Philippines, a corporation was organized to control the cemetery, and a Torrens title for the lands
in question was obtained.

From the time of its creation until the present the cemetery has been used by the Chinese community for the burial of
their dead. It is said that not less than four hundred graves, many of them with handsome monuments, would be
destroyed by the proposed street. This desecration is attempted as to the las t resting places of the dead of a people
who, because of their peculiar and ingrained ancestral workship, retain more than the usual reverence for the
departed. These facts lead us straight to the conclusion that the Chinese Cemetery is not used by a family or a small
portion of a community but by a particular race long existing in the country and of considerable numbers. The case,
then, is one of where the city of Manila, under a general authority permitting it to condemn private property for public
use, is attempting to convert a property already dedicated to a public use to an entirely different public use; and this,
not directly pursuant to legislative authority, but primarily through the sole advice of the consulting architect.

Two well considered decisions coming from the American state courts on almost identical facts are worthy of our
consideration. The first is the case of The Evergreen Cemetery Association vs. The City of New Haven ([1875], 43
Conn., 234), of cited by other courts. Here the City of New Haven, Connecticut, under the general power conferred
upon it to lay out, construct, and maintain all necessary highways within its limits, proceeded to widen and straighten
one of its streets and in so doing took a small piece of land belonging to the Evergreen Cemetery Association. This
association was incorporated under the general statute. The city had no special power to take any part of the
cemetery for such purposes. It was found that the land taken was needed for the purposes of the cemetery and was
not needed for the purpose of widening and straightening the avenue. The court said that it is unquestionable that the
Legislature has the power to authorize the taking of land already applied to one public use and devote it to another.
When the power is granted to municipal or private corporations in express words, no question can arise. But, it was
added, "The same land cannot properly be used for burial lots and for a public highway at the same time. . . . Land
therefore applied to one use should not be taken for the other except in cases on necessity. . . . There is no difficulty
in effecting the desired improvement by taking land on the other side of the street. . . . The idea of running a public
street, regardless of graves, monuments, and the feelings of the living, through one of our public cemeteries, would
be shocking to the moral sense of the community, and would not be tolerated except upon the direst necessity." It
was then held that land already devoted to a public use cannot be taken by the public for another use which is
inconsistent with the first, without special authority from the Legislature, or authority granted by necessary and
reasonable implication.

The second decision is that of Memphis State Line Railroad Company vs. Forest Hill Cemetery Co. ([1906], 116
Tenn., 400.) Here the purpose of the proceedings was to condemn a right of way for the railway company through the
Forest Hill Cemetery. The railroad proposed to run through the southeast corner of the cemetery where no bodies
were interred. The cemetery had been in use for about eight years, and during this period thirteen hundred bodies
had been buried therein. The cemetery was under the control of a corporation which, by its character, held itself out
as being willing to sell lots to any one who applies therefor and pays the price demanded, except to members of the
Negro race. 1awph!l.net

It was found that there were two other routes along which the railroad might be located without touching the
cemetery, while the present line might be pursued without interfering with Forest Hill Cemetery by making a curve
around it. In the court below the railroad was granted the right of condemnation through the cemetery and damages
were assessed. On appeal, the certiorari applied for was granted, and the supersedeas awarded. The court, in effect,
found that the land of the Cemetery Company was devoted to a public purpose, and that under the general language
of the Tennessee statute of eminent domain it could not be taken for another public purpose. The court said that in
process of time the sepulchres of the dead "are made the seats of cities, and are traversed by streets, and daily
trodden by the feet of man. This is inevitable in the course of ages. But while these places are yet within the memory
and under the active care of the living, while they are still devoted to pious uses, they are sacred, and we cannot
suppose that the legislature intended that they should be violated, in the absence of special provisions upon the
subject authorizing such invasion, and indicating a method for the disinterment, removal, and reinterment of the
bodies buried, and directing how the expense thereof shall be borne." Two members of the court, delivering a
separate concurring opinion, concluded with this significant and eloquent sentence: "The wheels of commerce must
stop at the grave."

For the foregoing reasons, and for others which are stated in the principal decision, I am of the opinion that the
judgment of the lower court should be affirmed.

STREET, J.,  dissenting:

It may be admitted that, upon the evidence before us, the projected condemnation of the Chinese Cemetery is
unnecessary and perhaps ill-considered. Nevertheless I concur with Justice Moir in the view that the authorities of the
city of Manila are the proper judges of the propriety of the condemnation and that this Court should have nothing to
do with the question of the necessity of the taking.

MOIR, J.,  dissenting:

I dissent from the majority opinion in this case, which has not yet been written, and because of the importance of the
question involved, present my dissent for the record.
This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue north. The petition
for condemnation was opposed by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and various
other who obtained permission of the trial court to intervene in the case.

All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts through a part of the
Chinese Cemetery, North of Manila, and necessitates the destruction of many monuments and the removal of many
graves.

The Court of First Instance of Manila, Honorable S. del Rosario, judge after hearing the parties, decided that there
was no need for constructing the street as and where proposed by the city, and dismissed the petition.

The plaintiff appealed and sets up the following errors:

1. The court erred in deciding that the determination of the necessity and convenience of the expropriation of
the lands of the defendants lies with the court and not with the Municipal Board of the city of Manila.

2. The court erred in permitting the presentation of proofs over the objection and exception of the plaintiff
tending to demonstrate the lack of necessity of the projected street and the need of the lands in question.

3. The court erred in declaring that the plaintiff had no right to expropriate the lands in question.

4. The court erred in dismissing the complaint.

The right of the plaintiff to expropriate property for public use cannot be denied. The "right of eminent domain is
inherent in all sovereignties and therefore would exist without any constitutional recognition . . . . The right of eminent
domain antedates constitutions . . . . The right can only be denied or restricted by  fundamental  law and is right
inherent in society." (15 Cyc., pp. 557-8.) .

This general right was recognized in the Philippine Code of Civil Procedure effective October 1st, 1901, which
prescribed the manner of exercising the right. (Sections 241 et seq.)

It was further recognized in the Organic Act of July 1st, 1902, which provides in section 74 "that the Government of
the Philippine Islands may grant  franchises . . . including the authority to exercise the right of eminent domain for the
construction and operation of works of public utility and service, and may authorize said works to be constructed and
maintained over and across the public property of the United States including  . . . reservations." This provisions is
repeated in the Jones Law of August, 1916.

The legislature of the Islands conferred the right on the city of Manila. (Section 2429, Administrative Code of 1917;
section 2402, Administrative Code of 1916.)

Clearly having the right of expropriation, the city of Manila selected the line of its street and asked the court by proper
order to place the plaintiff in possession of the land described in the complaint, and to appoint Commissioners to
inspect the property, appraise the value, and assess the damages. Instead of doing so, the court entered upon the
question of the right of the city to take the property and the necessity for the taking.

The court says:

The controversy relates to whether or not the Chinese Cemetery, where a great majority of this race is
buried and other persons belonging to other nationalities have been formerly inhumed, is  private  or public;
whether or not said cemetery, in case it is public, would be susceptible to expropriation for the purpose of
public improvements proposed  by the city of Manila; whether or not the latter is justified of the necessity and
expediency of similar expropriation before its right to the same would be upheld by the courts of justice; and
whether or not the appreciation of said necessity pertains to the legislative or the judicial department before
which the expropriation proceedings have been brought.

Relative to the first point, it is not necessary for the court to pass upon its consideration, in view of the
conclusion it has arrived at the appreciation of the other points connected with each other.
 From the testimony of two reputable engineers produced by some of the defendants, it appears that the land
chosen by the plaintiff for the extension of Rizal Avenue to the municipality of Caloocan is not the best or the
less expensive, although upon it there may be constructed a straight road, without curves or winding; but
that in order to construct said road upon said land, the city of Manila would have to remove and transfer to
other places about four hundred graves and monuments, make some grubbings, undergo some leveling and
build some bridges — the works thereon, together with the construction of the road and the value of the
lands expropriated, would mean an expenditure which will not be less than P180,000.

Beside that considerable amount, the road would have a declivity of 3 per cent which, in order to cover a
distance of one kilometer, would require an energy equivalent to that which would be expanded in covering
a distance of two and one-half kilometers upon a level road.

On the other hand, if the road would be constructed with the deviation proposed by Ildefonso Tambunting,
one of the defendants, who even offered to donate gratuitously to the city of Manila part of the land upon
which said road will have to be constructed, the plaintiff entity would be able to save more than hundreds of
thousand of pesos, which can be invested in other improvements of greater pressure and necessity for the
benefit of the taxpayers; and it will not have to employ more time and incur greater expenditures in the
removal and transfer of the remains buried in the land of the Chinese Community and of Sr. Tambunting,
although with the insignificant disadvantage that the road would be little longer by a still more insignificant
extension of 426 meters and 55 centimeters less than one-half kilometer, according to the plan included in
the records; but it would offer a better panorama to those who would use it, and who would not have to
traverse in their necessary or pleasure-making trips or walks any cemetery which, on account of its nature,
always deserves the respect of the travellers. It should be observed that the proposed straight road over the
cemetery, which the city of Manila is proposing to expropriate, does not lead to any commercial, industrial,
or agricultural center, and if with said road it is endeavored to benefit some community or created interest,
the same object may be obtained by the proposed deviation of the road by the defendants. The road traced
by the plaintiffs has the disadvantage that the lands on both sides thereof would not serve for residential
purposes, for the reason that no one has the pleasure to construct buildings upon cemeteries, unless it be in
very overcrowded cities, so exhausted of land that every inch thereof represents a dwelling house.

And it is against the ruling, that it lies with the court to determine the necessity of the proposed street and not with the
municipal board, that the appellant directs its first assignment of error.

It is a right of the city government to determine whether or not it will construct streets and where, and the court's sole
duty was to see that the value of the property was paid the owners after proper legal proceedings ascertaining the
value.

The law gives the city the right to take  private property for public use. It is assumed it is unnecessary to argue that a
public road is a public use.

But it is argued that plaintiff must show that it is necessary  to take this land for a public improvement. The law does
not so read, and it is believed that the great weight of authority, including the United States Supreme Court, is against
the contention.

The question of necessity is distinct from the question of public use, and former question is exclusively for
the legislature, except that if the constitution or statute authorizes the taking of property only in cases of
necessity, then the necessity  becomes a judicial question. (McQuillen Municipal Corporations, Vol. IV, pp.
3090-3091.)

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of
exercising the right of eminent domain are questions essentially political and not judicial in their character.
The determination of those questions belongs to the sovereign power; the legislative determination is final
and conclusive, and the courts have no power to review it. It rests with the legislature not only to determine
when the power of eminent domain may be exercised, but also the character, quality, method, and extent of
such exercise. And this power is unqualified, other than by the necessity of providing that compensation
shall be made. Nevertheless, under the express provisions of the constitution of some states  the question of
necessity is made a judicial one, to be determined by the courts and not by the legislature.
 While the legislature may itself exercise the right of determining the necessity for the exercise of the power
of eminent domain, it may, unless prohibited by the constitution, delegate this power to public officers or to
private corporations established to carry on enterprises in which the public are interested, and their
determination that a necessity for the exercise of the power exists is conclusive. There is no restraint upon
the power except that requiring compensation to be made. And when the power has been so delegated it is
a subject of legislative discretion to determine what prudential regulations shall be established to secure a
discreet and judicious exercise of the authority. It has been held that in the absence of any statutory
provision submitting the matter to a court or jury the decision  of the question of necessity lies with the body
of individuals to whom the state has delegated the authority to take, and the legislature may be express
provision confer this power on a corporation to whom the power of eminent domain is delegated unless
prohibited by the constitution. It is of course competent for the legislature to declare that the question shall
be a judicial one, in which case the court and not the corporation determines the question of necessity. (15
Cyc., pp. 629-632.)

To the same effect is Lewis on Eminen Domain (3d Edition, section 597).

I quote from the notes to Vol. 5, Encyclopedia of United States Supreme Court Reports, p. 762, as follows:

Neither can it be said that there is any fundamental right secured by the constitution of the United States to
have the questions of compensation and necessity both passed upon by one and the same jury. In many
states the question of necessity is never submitted to the jury which passes upon the question of
compensation. It is either settled affirmatively by the legislature, or left to the judgment of the corporation
invested with the right to take property by condemnation. The question of necessity is not one of a judicial
character, but rather one for determination by the lawmaking branch of the government. (Boom
Co. vs. Patterson, 98 U.S., 403, 406 [25 L. ed., 206]; United States vs. Jones, 109 U.S., 513 [27 L. ed.,
1015]; Backus vs. Fort Street Union Depot Co., 169 U.S., 557, 568 [42 L. ed., 853].)

Speaking generally, it is for the state primarily and exclusively, to declare for what local public purposes
private property, within its limits may be taken upon compensation to the owner, as well as to prescribe a
mode in which it may be condemned and taken. (Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S.,
239, 252 [49 L. ed., 462].)

Courts have no power to control the legislative authority in the exercise of their right to determine when it is
necessary or expedient to condemn a specific piece of property for public purposes. (Adirondack R.
Co. vs. New York States, 176 U.S., 335 [44 L. ed., 492].)

10 R. C. L. (p. 183), states the law as follows:

158. Necessity for taking ordinarily not judicial question. — The legislature, in providing for the exercise the
power of eminent domain, may directly determine the necessity for appropriating private property for a
particular improvement or public use, and it may select the exact location of the improvement. In such a
case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its
construction, the expediency of constructing it, the suitableness of the location selected and the consequent
necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine,
and the courts have no power to interfere, or to substitute their own views for these  of the representatives of
the people. Similarly, when the legislature has delegated the power of eminent domain to municipal or public
service corporation or other tribunals or bodies, and has given them discretion as to when the power is to be
called into exercise and to what extent, the court will not inquire into the necessity or propriety of the taking.

The United States Supreme Court recently said:

The uses to which this land are to be put are undeniably public uses. When that is the case the propriety or
expediency of the appropriation cannot be called in question by any other authority. (Cinnati vs. S. & N. R.
R. Co., 223 U.S., 390, quoting U.S. vs. Jones, 109, U.S., 519.)

And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:
 Plaintiff contends that the ordinance is void because the general statute which authorized the appropriation
violates both Article 1, paragraph 10, of the Federal Constitution, and the Fourteenth Amendment, in that it
authorizes the municipality to determine the necessity for the taking of private property without the owners
having an opportunity to be hear as to such necessity; that in fact no necessity existed for any taking which
would interfere with the company's project; since the city might have taken water from the Little Cuyahoga or
the Tuscarawas rivers; and furthermore, that it has taken ten times as much water as it can legitimately use.
It is well settled that while the question whether the purpose of a taking is a public one is judicial
(Hairston vs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. Cas.,
1008]), the necessity and the proper extent of a taking is a legislative question. (Shoemaker vs. United
States, 147 U.S., 282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United States vs. Gettysburg
Electric R. Co., 160 U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-
Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup. Ct. Rep., 667].)

I think the case should be decided in accordance with foregoing citations, but one other point has been argued so
extensively that it ought to be considered.

It is contended for the defense that this Chinese Cemetery is a public cemetery and that it cannot therefore be taken
for public use. In its answer the "Comunidad de Chinos de Manila" says it is "a corporation organized and existing
under and by virtue of the laws of the Philippine Islands," and that it owns the land which plaintiff seeks to acquire.
The facts that it is private corporation owning land would seem of necessity to make the land it owns private land. The
fact that it belongs to the Chinese community deprives it of any public character.

But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the city of Manila,
can it not be taken for public use? Must we let the reverence we feel for the dead and the sanctity of their final
resting-place obstruct the progress of the living? It will be instructive to inquire what other jurisdictions have held on
that point.

On the Application of Board of Street Openings of New York City to acquire St. Johns Cemetery (133 N.Y., 329) the
court of appeal said:

. . . The board instituted this proceeding under the act to acquire for park purposes the title to land below
One Hundred and Fifty-fifth street known as St. John's cemetery which belonged to a religious corporation in
the city of New York, commonly called Trinity Church. It was established as a cemetery as early as 1801,
and used for that purpose until 1839, during which time about ten thousand human bodies had been buried
therein. In 1839 an ordinance was passed by the city of New York forbidding interments south of Eighty-sixth
street, and since that time no interments have been made in the cemetery, but Trinity Church has preserved
and kept it in order and prevented any disturbance thereof.

It is contended on behalf of Trinity Church that under the general authority given by statute of 1887, this land
which had been devoted to cemetery purposes could not be taken for a park. The authority conferred upon
the board by the act is broad and general. It is authorized to take for park purposes any land south of One
Hundred and Fifty-fifth street. . . . .

The fact that lands have previously been devoted to cemetery purposes does not place them beyond the
reach of the power of eminent domain. That is an absolute transcendent power belonging to the sovereign
which can be exercised for the public welfare whenever the sovereign authority shall determine that a
necessity for its exercise exists. By its existence the homes and the dwellings of the living, and the resting-
places of the dead may be alike condemned.

It seems always to have been recognized in the laws of this state, that under the general laws streets and
highways could be laid out through cemeteries, in the absence of special limitation or prohibition. . . .

In Re  Opening of Twenty-second Street (102 Penn. State Reports, 108) the Supreme Court of the State said:

This was an action for the opening of a street through a cemetery in the City of Philadelphia. It was
contended for the United American Mechanics and United Daughters of America Cemetery Association that
by an act of the legislature of the State approved March 20th, 1849, they were forever exempt from the
taking of any their property for streets, roads or alleys and this Act was formally accepted by the Cemetery
Company on April 9th, 1849, and there was, therefore, a contract between the Cemetery Company and the
 State of Pennsylvania, which would be violated by the taking of any part of their property for street purposes.
It was further contended that there were 11,000 persons buried in the cemetery.

The court held that property and contracts of all kinds must yield to the demand of the sovereign and that
under the power of eminent domain all properties could be taken, and that if there was a contract between
the State of Pennsylvania and the Cemetery Association, the contract itself could be taken for public use,
and ordered the opening of the street through the cemetery.

In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it is said:

Although it has been held, that where a state has delegated the power of eminent domain to a person or
corporation and where by its exercise lands have been subject to a public use, they cannot be applied to
another public use without specific authority expressed or implied to that effect, yet, the general rule seems
to be that the fact that property is already devoted to a public use, does not exempt it from being
appropriated under the right of eminent domain but it may be so taken for a use which is clearly superior or
paramount to the one to which it is already devoted. (Citing many United States Supreme Court decisions.)

A few cases have been cited where the courts refused to allow the opening of streets through cemeteries, but in my
opinion they are not as well considered as the cases and authorities relied upon herein.

The holding of this court in this case reverses well settled principles of law of long standing and almost universal
acceptance.

The other assignments of error need not be considered as they are involved in the foregoing.

The decision should be reversed and the record returned to the Court of First Instance with instructions to proceed
with the case in accordance with this decision.

THIRD DIVISION

[G.R. No. 135087. March 14, 2000.]

HEIRS OF ALBERTO SUGUITAN, Petitioner, v. CITY OF MANDALUYONG, Respondent.

DECISION

GONZAGA-REYES, J.:

In this petition for review on certiorari under Rule 45, petitioners 1 pray for the reversal of the Order
dated July 28, 1998 issued by Branch 155 of the Regional Trial Court of Pasig in SCA No. 875 entitled
"City of Mandaluyong v. Alberto S. Suguitan, the dispositive portion of which reads as follows: chanrob1es virtual 1aw library

WHEREFORE, in view of the foregoing, the instant Motion to Dismiss is hereby DENIED and an ORDER
OF CONDEMNATION is hereby issued declaring that the plaintiff, City of Mandaluyong, has a lawful
right to take the subject parcel of land together with existing improvements thereon more specifically
covered by Transfer Certificate Of Title No. 56264 of the Registry of Deeds for Metro Manila District II
for the public use or purpose as stated in the Complaint, upon payment of just compensation.

Accordingly, in order to ascertain the just compensation, the parties are hereby directed to submit to
the Court within fifteen (15) days from notice hereof, a list of independent appraisers from which the
Court will select three (3) to be appointed as Commissioners, pursuant to Section 5, Rule 67, Rules of
Court. chanrobles virtuallawlibrary

SO ORDERED. 2
It is undisputed by the parties that on October 13, 1994, the Sangguniang Panlungsod of
Mandaluyong City issued Resolution No. 396, S-1994 3 authorizing then Mayor Benjamin S. Abalos to
institute expropriation proceedings over the property of Alberto Suguitan located at Boni Avenue and
Sto. Rosario streets in Mandaluyong City with an area of 414 square meters and more particularly
described under Transfer Certificate of Title No. 56264 of the Registry of Deeds of Metro Manila
District II. The intended purpose of the expropriation was the expansion of the Mandaluyong Medical
Center.

Mayor Benjamin Abalos wrote Alberto Suguitan a letter dated January 20, 1995 offering to buy his
property, but Suguitan refused to sell. 4 Consequently, on March 13, 1995, the city of Mandaluyong
filed a complaint 5 for expropriation with the Regional Trial Court of Pasig. The case was docketed as
SCA No. 875.

Suguitan filed a motion to dismiss 6 the complaint based on the following grounds — (1) the power of
eminent domain is not being exercised in accordance with law; (2) there is no public necessity to
warrant expropriation of subject property; (3) the City of Mandaluyong seeks to expropriate the said
property without payment of just compensation; (4) the City of Mandaluyong has no budget and
appropriation for the payment of the property being expropriated; and (5) expropriation of Suguitan’s
property is but a ploy of Mayor Benjamin Abalos to acquire the same for his personal use. Respondent
filed its comment and Opposition to the motion. On October 24, 1995, the trial court denied
Suguitan’s motion to dismiss. 7

On November 14, 1995, acting upon a motion filed by the respondent, the trial court issued an order
allowing the City of Mandaluyong to take immediate possession of Suguitan’s property upon the
deposit of P621,000 representing 15% of the fair market value of the subject property based upon the
current tax declaration of such property. On December 15, 1995, the City of Mandaluyong assumed
possession of the subject property by virtue of a writ of possession issued by the trial court on
December 14, 1995. 8 On July 28, 1998, the court granted the assailed order of expropriation.

Petitioners assert that the city of Mandaluyong may only exercise its delegated power of eminent
domain by means of an ordinance as required by section 19 of Republic Act (RA) No. 7160, 9 and not
by means of a mere resolution. 10 Respondent contends, however, that it validly and legally exercised
its power of eminent domain; that pursuant to article 36, Rule VI of the Implementing Rules and
Regulations (IRR) of RA 7160, a resolution is a sufficient antecedent for the filing of expropriation
proceedings with the Regional Trial Court. Respondent’s position, which was upheld by the trial court,
was explained, thus: 11

. . . in the exercise of the respondent City of Mandaluyong’s power of eminent domain, a "resolution"
empowering the City Mayor to initiate such expropriation proceedings and thereafter when the court
has already determine[d] with certainty the amount of just compensation to be paid for the property
expropriated, then follows an Ordinance of the Sanggunian Panlungsod appropriating funds for the
payment of the expropriated property. Admittedly, title to the property expropriated shall pass from
the owner to the expropriator only upon full payment of the just compensation. 12

Petitioners refute respondent’s contention that only a resolution is necessary upon the initiation of
expropriation proceedings and that an ordinance is required only in order to appropriate the funds for
the payment of just compensation, explaining that the resolution mentioned in article 36 of the IRR is
for purposes of granting administrative authority to the local chief executive to file the expropriation
case in court and to represent the local government unit in such case, but does not dispense with the
necessity of an ordinance for the exercise of the power of eminent domain under section 19 of the
Code. 13

The petition is imbued with merit. chanrobles.com : virtual law library

Eminent domain is the right or power of a sovereign state to appropriate private property to particular
uses to promote public welfare. 14 It is an indispensable attribute of sovereignty; a power grounded in
the primary duty of government to serve the common need and advance the general welfare. 15
Thus, the right of eminent domain appertains to every independent government without the necessity
for constitutional recognition. 16 The provisions found in modern constitutions of civilized countries
relating to the taking of property for the public use do not by implication grant the power to the
government, but limit a power which would otherwise be without limit. 17 Thus, our own Constitution
provides that" [p]rivate property shall not be taken for public use without just compensation." 18
Furthermore, the due process and equal protection clauses 19 act as additional safeguards against the
arbitrary exercise of this governmental power.

Since the exercise of the power of eminent domain affects an individual’s right to private property, a
constitutionally-protected right necessary for the preservation and enhancement of personal dignity
and intimately connected with the rights to life and liberty, 20 the need for its circumspect operation
cannot be overemphasized. In City of Manila v. Chinese Community of Manila we said: 21

The exercise of the right of eminent domain, whether directly by the State, or by its authorized
agents, is necessarily in derogation of private rights, and the rule in that case is that the authority
must be strictly construed. No species of property is held by individuals with greater tenacity, and
none is guarded by the constitution and the laws more sedulously, than the right to the freehold of
inhabitants. When the legislature interferes with that right, and, for greater public purposes,
appropriates the land of an individual without his consent, the plain meaning of the law should not be
enlarged by doubt[ful] interpretation. (Bensley v. Mountainlake Water Co., 13 Cal., 306 and cases
cited [73 Am. Dec., 576].)

The statutory power of taking property from the owner without his consent is one of the most delicate
exercise of governmental authority. It is to be watched with jealous scrutiny. Important as the power
may be to the government, the inviolable sanctity which all free constitutions attach to the right of
property of the citizens, constrains the strict observance of the substantial provisions of the law which
are prescribed as modes of the exercise of the power, and to protect it from abuse. . . . (Dillon on
Municipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio v. Manila Railroad Co., 22 Phil.,
411.)

The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that
such power may be validly delegated to local government units, other public entities and public
utilities, although the scope of this delegated legislative power is necessarily narrower than that of the
delegating authority and may only be exercised in strict compliance with the terms of the delegating
law. 22

The basis for the exercise of the power of eminent domain by local government units is section 19 of
RA 7160 which provides that: chanrob1es virtual 1aw library

A local government unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, purpose, or welfare for the benefits of the poor
and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution
and pertinent laws; Provided, however, That the power of eminent domain may not be exercised
unless a valid and definite offer has been previously made to the owner, and such offer was not
accepted; Provided, further, That the local government unit may immediately take possession of the
property upon the filing of the expropriation proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair market value of the property based on the current
tax declaration of the property to be expropriated; Provided, finally, That the amount to be paid for
the expropriated property shall be determined by the proper court, based on the fair market value at
the time of the taking of the property. chanrobles.com.ph:red

Despite the existence of this legislative grant in favor of local governments, it is still the duty of the
courts to determine whether the power of eminent domain is being exercised in accordance with the
delegating law. 23 In fact, the courts have adopted a more censorious attitude in resolving questions
involving the proper exercise of this delegated power by local bodies, as compared to instances when
it is directly exercised by the national legislature. 24

The courts have the obligation to determine whether the following requisites have been complied with
by the local government unit concerned: chanrob1es virtual 1aw library

1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in
behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property.

2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of
the poor and the landless.

3. There is payment of just compensation, as required under Section 9, Article III of the Constitution,
and other pertinent laws.

4. A valid and definite offer has been previously made to the owner of the property sought to be
expropriated, but said offer was not accepted.25 cralaw:red

In the present case, the City of Mandaluyong seeks to exercise the power of eminent domain over
petitioners’ property by means of a resolution, in contravention of the first requisite. The law in this
case is clear and free from ambiguity. Section 19 of the Code requires an ordinance, not a resolution,
for the exercise of the power of eminent domain. We reiterate our ruling in Municipality of Parañaque
v. V .M . Realty Corporation 26 regarding the distinction between an ordinance and a resolution. In
that 1998 case we held that: chanrob1es virtual 1aw library

We are not convinced by petitioner’s insistence that the terms "resolution" and "ordinance" are
synonymous. A municipal ordinance is different from a resolution. An ordinance is a law, but a
resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific
matter. An ordinance possesses a general and permanent character, but a resolution is temporary in
nature. Additionally, the two are enacted differently — a third reading is necessary for an ordinance,
but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

We cannot uphold respondent’s contention that an ordinance is needed only to appropriate funds after
the court has determined the amount of just compensation. An examination of the applicable law will
show that an ordinance is necessary to authorize the filing of a complaint with the proper court since,
beginning at this point, the power of eminent domain is already being exercised.

Rule 67 of the 1997 Revised Rules of Court reveals that expropriation proceedings are comprised of
two stages: chanroblesvirtuallawlibrary

(1) the first is concerned with the determination of the authority of the plaintiff to exercise the power
of eminent domain and the propriety of its exercise in the context of the facts involved in the suit; it
ends with an order, if not in a dismissal of the action, of condemnation declaring that the plaintiff has
a lawful right to take the property sought to be condemned, for the public use or purpose described in
the complaint, upon the payment of just compensation to be determined as of the date of the filing of
the complaint;

(2) the second phase is concerned with the determination by the court of the just compensation for
the property sought to be taken; this is done by the court with the assistance of not more than three
(3) commissioners. 27

Clearly, although the determination and award of just compensation to the defendant is indispensable
to the transfer of ownership in favor of the plaintiff, it is but the last stage of the expropriation
proceedings, which cannot be arrived at without an initial finding by the court that the plaintiff has a
lawful right to take the property sought to be expropriated, for the public use or purpose described in
the complaint. An order of condemnation or dismissal at this stage would be final, resolving the
question of whether or not the plaintiff has properly and legally exercised its power of eminent
domain.

Also, it is noted that as soon as the complaint is filed the plaintiff shall already have the right to enter
upon the possession of the real property involved upon depositing with the court at least fifteen
percent (15%) of the fair market value of the property based on the current tax declaration of the
property to be expropriated. 28 Therefore, an ordinance promulgated by the local legislative body
authorizing its local chief executive to exercise the power of eminent domain is necessary prior to the
filing by the latter of the complaint with the proper court, and not only after the court has determined
the amount of just compensation to which the defendant is entitled.

Neither is respondent’s position improved by its reliance upon Article 36 (a), RuleVI of the IRR which
provides that: chanrob1es virtual 1aw library

If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, LGU
may expropriate said property through a resolution of the sanggunian authorizing its chief executive
to initiate expropriation proceedings.

The Court has already discussed this inconsistency between the Code and the IRR, which is more
apparent than real, in Municipality of Parañaque v. V .M . Realty Corporation, 29 which we quote
hereunder: chanrob1es virtual 1aw library

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to
authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section 19 of RA
7160, the law itself, surely prevails over said rule which merely seeks to implement it. It is axiomatic
that the clear letter of the law is controlling and cannot be amended by a mere administrative rule
issued for its implementation. Besides, what the discrepancy seems to indicate is a mere oversight in
the wording of the implementing rules, since Article 32, Rule VI thereof, also requires that, in
exercising the power of eminent domain, the chief executive of the LGU must act pursuant to an
ordinance.

Therefore, while we remain conscious of the constitutional policy of promoting local autonomy, we
cannot grant judicial sanction to a local government unit’s exercise of its delegated power of eminent
domain in contravention of the very law giving it such power.

It should be noted, however, that our ruling in this case will not preclude the City of Mandaluyong
from enacting the necessary ordinance and thereafter reinstituting expropriation proceedings, for so
long as it has complied with all other legal requirements. 30

WHEREFORE, the petition is hereby GRANTED. The July 28, 1998 decision of Branch 155 of the
Regional Trial Court of Pasig in SCA No. 875 is hereby REVERSED and SET ASIDE. chanrobles.com : virtuallawlibrary

SO ORDERED.

Melo, Vitug, Panganiban and Purisima, JJ., concur.

Endnotes:

1. Alberto Suguitan passed away on October 2, 1998. On November 25, 1998 the Court allowed the
heirs of Alberto Saguitan to substitute the latter as petitioner.

2. Rollo, 17-18.

3.

REPUBLIKA NG PILIPINAS

SANGGUNIANG PANLUNGSOD

Lungsod Ng Mandaluyong

RESOLUTION NO. 396, S-1994

RESOLUTION AUTHORIZING MAYOR BENJAMIN S. ABALOS TO INITIATE AND INSTITUTE

APPROPRIATE STEPS TO EFFECT THE EXPROPRIATION OF THAT PARCEL OF LAND COVERED BY
TRANSFER CERTIFICATE OF TITLE NO. 56264.

BE IT APPROVED by the Sangguniang Panlungsod of the City of Mandaluyong in session assembled:

library
chanrob1es virtual 1aw

WHEREAS, the daily influx of patients to the Mandaluyong Medical Center has considerably increased
to a point that it could not accommodate some more.

WHEREAS, as the Mandaluyong Medical Center is the only institution that delivers health and medical
services for free to the less fortunate residents of the City of Mandaluyong, it is imperative that
appropriate steps be undertaken in order that those that need its services may be accommodated.

WHEREAS, adjacent to the Mandaluyong Medical Center is a two storey building erected on aparcel of
land covered by Transfer Certificate of Title No. 56264 of the Registry of Deeds for Mandaluyong
Branch.

WHEREAS, above structure and the land upon which the same is erected is very ideal for the projected
expansion of the Mandaluyong Medical Center in order that it may continue to serve a greater number
of less fortunate residents of the City.

WHEREAS, and it appearing that the owner of the above property is not desirous of selling the same
even under reasonable terms and conditions, there is a need that the power of eminent domain be
exercised by the City Government in order that public health and welfare may continuously be served
in a proper and suitable manner.

NOW, THEREFORE, upon motion duly seconded, the Sangguniang Panlungsod, RESOLVED,as it hereby
RESOLVES, to authorize, as Mayor Benjamin S. Abalos is hereby authorized, to initiate and institute
appropriate action for the expropriation of the property covered by Transfer Certificate of Title No.
56264 of the Registry of Deeds for Mandaluyong Branch, including the improvements erected thereon
in order that the proposed expansion of the Mandaluyong Medical Center maybe implemented.

ADOPTED on this 13th day of October, 1994, at the City of Mandaluyong.

I HEREBY CERTIFY THAT THE FOREGOING RESOLUTION WAS ADOPTED AND APPROVED BY THE
SANGGUNIANG PANLUNGSOD OF MANDALUYONG IN REGULAR SESSION HELD ON THE DATE AND
PLACE FIRST ABOVE GIVEN.

(sgd.)

WILLIARD S. WONG

Sanggunian Secretary

ATTESTED: APPROVED

FIRST DIVISION

G.R. No. 127820 July 20, 1998

MUNICIPALITY OF PARAÑAQUE, Petitioner, v. V.M. REALTY CORPORATION, Respondent.

PANGANIBAN, J.:

A local government unit (LGU), like the Municipality of Parañaque, cannot authorize an expropriation of private property
through a mere resolution of its lawmaking body. The Local Government Code expressly and clearly requires an ordinance
or a local law for the purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not
suffice. On the other hand, the principle of res judicata does not bar subsequent proceedings for the expropriation of the
same property when all the legal requirements for its valid exercise are complied with.
 Statement of the Case

These principles are applied by this Court in resolving this petition for review on certiorari of the July 22, 1996 Decision 1 of
the Court of Appeals 2 in CA GR CV No. 48048, which affirmed in toto 3 the Regional Trial Court's August 9, 1994
Resolution. 4 The trial court dismissed the expropriation suit as follows:

The right of the plaintiff to exercise the power of eminent domain is not disputed. However, such right may be exercised
only pursuant to an Ordinance (Sec. 19, R.A No. 7160). In the instant case, there is no such ordinance passed by the
Municipal Council of Parañaque enabling the Municipality, thru its Chief Executive, to exercise the power of eminent
domain. The complaint, therefore, states no cause of action.

Assuming that plaintiff has a cause of action, the same is barred by a prior judgment. On September 29, 1987, the plaintiff
filed a complaint for expropriation involving the same parcels of land which was docketed as Civil Case No. 17939 of this
Court (page 26, record). Said case was dismissed with prejudice on May 18, 1988 (page 39, record). The order of
dismissal was not appealed, hence, the same became final. The plaintiff can not be allowed to pursue the present action
without violating the principle of [r]es [j]udicata. While defendant in Civil Case No. 17939 was Limpan Investment
Corporation, the doctrine of res judicata still applies because the judgment in said case (C.C. No. 17939) is conclusive
between the parties and their successors-in-interest (Vda. de Buncio vs. Estate of the late Anita de Leon). The herein
defendant is the successor-in-interest of Limpan Investment Corporation as shown by the "Deed of Assignment Exchange"
executed on June 13, 1990.

WHEREFORE, defendant's motion for reconsideration is hereby granted. The order dated February 4, 1994 is vacated and
set aside.

This case is hereby dismissed. No pronouncement as to costs.

SO ORDERED. 5

Factual Antecedents

Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, 6 the Municipality of Parañaque filed on September
20, 1993, a Complaint for expropriation 7 against Private Respondent V.M. Realty Corporation over two parcels of land
(Lots 2-A-2 and 2-B-1 of Subdivision Plan Psd-17917), with a combined area of about 10,000 square meters, located at
Wakas, San Dionisio, Parañaque, Metro Manila, and covered by Torrens Certificate of Title No. 48700. Allegedly, the
complaint was filed "for the purpose of alleviating the living conditions of the underprivileged by providing homes for the
homeless through a socialized housing project." 8 Parenthetically, it was also for this stated purpose that petitioner,
pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, 9 previously made an offer to enter into a
negotiated sale of the property with private respondent, which the latter did not accept. 10

Finding the Complaint sufficient in form and substance, the Regional Trial Court of Makati, Branch 134, issued an Order
dated January 10, 1994, 11 giving it due course. Acting on petitioner's motion, said court issued an Order dated February 4,
1994, 12 authorizing petitioner to take possession of the subject property upon deposit with its clerk of court of an amount
equivalent to 15 percent of its fair market value based on its current tax declaration.

On February 21, 1994, private respondent filed its Answer containing affirmative defenses and a counterclaim, 13 alleging
in the main that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to
an ordinance as required by RA 7160 (the Local Government Code); and (b) the cause of action, if any, was barred by a
prior judgment or res judicata. On private respondent's motion, its Answer was treated as a motion to dismiss. 14 On March
24, 1991, 15 petitioner filed its opposition, stressing that the trial court's Order dated February 4, 1994 was in accord with
Section 19 of RA 7160, and that the principle of res judicata was not applicable.

Thereafter, the trial court issued its August 9, 1994 Resolution 16 nullifying its February 4, 1994 Order and dismissing the
case. Petitioner's motions for reconsideration and transfer of venue were denied by the trial court in a Resolution dated
December 2, 1994. 17 Petitioner then appealed to Respondent Court, raising the following issues:

1. Whether or not the Resolution of the Parañaque Municipal Council No. 93-95, Series of 1993 is a substantial compliance
of the statutory requirement of Section 19, R.A. 7180 [sic] in the exercise of the power of eminent domain by the plaintiff-
appellant.

2. Whether or not the complaint in this case states no cause of action.

3. Whether or not the strict adherence to the literal observance to the rule of procedure resulted in technicality standing in
the way of substantial justice.
4. Whether or not the principle of res judicata is applicable to the present case. 18

As previously mentioned, the Court of Appeals affirmed in toto the trial court's Decision. Respondent Court, in its assailed
Resolution promulgated on January 8, 1997, 19 denied petitioner's Motion for Reconsideration for lack of merit.

Hence, this appeal. 20

The Issues

Before this Court, petitioner posits two issues, viz.:

1. A resolution duly approved by the municipal council has the same force and effect of an ordinance and will not deprive
an expropriation case of a valid cause of action.

2. The principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily
involved. 21

The Court's Ruling

The petition is not meritorious.

First Issue:

Resolution Different from an Ordinance

Petitioner contends that a resolution approved by the municipal council for the purpose of initiating an expropriation case
"substantially complies with the requirements of the law" 22 because the terms "ordinance" and "resolution" are
synonymous for "the purpose of bestowing authority [on] the local government unit through its chief executive to initiate
the expropriation proceedings in court in the exercise of the power of eminent domain." 23 Petitioner seeks to bolster this
contention by citing Article 36, Rule VI of the Rules and Regulations Implementing the Local Government Code, which
provides. "If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU may
expropriate said property through a resolution of the Sanggunian authorizing its chief executive to initiate expropriation
proceedings." 24 (Emphasis supplied.)

The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate
the exercise thereof to LGUs, other public entities and public utilities. 25 An LGU may therefore exercise the power to
expropriate private property only when authorized by Congress and subject to the latter's control and restraints, imposed
"through the law conferring the power or in other legislations." 26 In this case, Section 19 of RA 7160, which delegates to
LGUs the power of eminent domain, also lays down the parameters for its exercise. It provides as follows:

Sec. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless,
upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however,
That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the
owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take
possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be
determined by the proper court, based on the fair market value at the time of the taking of the property. (Emphasis
supplied)

Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain:

1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to
exercise the power of eminent domain or pursue expropriation proceedings over a particular private property.

2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the
landless.

3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent
laws.
4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said
offer was not accepted. 27

In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the
municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an
ordinance. Petitioner cites Camarines Sur vs. Court of Appeals 28 to show that a resolution may suffice to support the
exercise of eminent domain by an LGU. 29 This case, however, is not in point because the applicable law at that time was
BP 337, 30 the previous Local Government Code, which had provided that a mere resolution would enable an LGU to
exercise eminent domain. In contrast, RA 7160, 31 the present Local Government Code which was already in force when
the Complaint for expropriation was filed, explicitly required an ordinance for this purpose.

We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. A municipal
ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or
opinion of a lawmaking body on a specific matter. 32 An ordinance possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two are enacted differently - a third reading is necessary for an
ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. 33

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted
the language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local
Government Code, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance.
Indeed, "[l]egislative intent is determined principally from the language of a statute. Where the language of a statute is
clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only
where a literal interpretation would be resorted to only where a literal interpretation would be either impossible or absurd
or would lead to an injustice." 34 In the instant case, there is no reason to depart from this rule, since the law requiring an
ordinance is not at all impossible, absurd, or unjust.

Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the
people. 35 Accordingly, the manifest change in the legislative language - from "resolution" under BP 337 to "ordinance"
under RA 7160 - demands a strict construction. "No species of property is held by individuals with greater tenacity, and is
guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature
interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the
plain meaning of the law should not be enlarged by doubtful interpretation." 36

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to
exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said
rule which merely seeks to implement it. 37 It is axiomatic that the clear letter of the law is controlling and cannot be
amended by a mere administrative rule issued for its implementation. Besides, what the discrepancy seems to indicate is a
mere oversight in the wording of the implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising
the power of eminent domain, the chief executive of the LGU act pursuant to an ordinance.

In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the Constitution, which provides
that "territorial and political subdivisions shall enjoy local autonomy." It merely upholds the law as worded in RA 7160. We
stress that an LGU is created by law and all its powers and rights are sourced therefrom. It has therefore no power to
amend or act beyond the authority given and the limitations imposed on it by law. Strictly speaking, the power of eminent
domain delegated to an LGU is in reality not eminent but "inferior" domain, since it must conform to the limits imposed by
the delegation, and thus partakes only of a share in eminent domain. 38 Indeed, "the national legislature is still the
principal of the local government units, which cannot defy its will or modify or violate it." 39

Complaint Does Not

State a Cause of Action

In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan passed an ordinance on October
11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the
subject expropriation. 40

This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it did
not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact,
it was mentioned by private respondent, and only in passing. 41 In any event, this allegation does not cure the inherent
defect of petitioner's Complaint for expropriation filed on September 23, 1993. It is hornbook doctrine that

. . . in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted
before the court for determination is the sufficiency of the allegations in the complaint itself. Whether those allegations are
true or not is beside the point, for their truth is hypothetically admitted by the motion. The issue rather is: admitting them
to be true, may the court render a valid judgment in accordance with the prayer of the complaint? 42
The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a
mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently,
the Court of Appeals committed no reversible error in affirming the trial court's Decision which dismissed the expropriation
suit.

Second Issue:

Eminent Domain Not Barred by Res Judicata

As correctly found by the Court of Appeals 43 and the trial court, 44 all the requisites for the application of res judicata are
present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical
interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it.

Be that as it may, the Court holds that the principle of res judicata, which finds application in generally all cases and
proceedings, 45 cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent
domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even
by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can "reach every form
of property which the State might need for public use." 46 "All separate interests of individuals in property are held of the
government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent
domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people
in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest
requires it." 47 Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone
of previous non-compliance with any legal requirement.

While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to
specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground
that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent
from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent
domain over the same property. 48 By the same token, our ruling that petitioner cannot exercise its delegated power of
eminent domain through a mere resolution will not bar it from reinstituting similar proceedings, once the said legal
requirement and, for that matter, all others are properly complied with. Parenthetically and by parity of reasoning, the
same is also true of the principle of "law of the case." In Republic vs. De Knecht, 49 the Court ruled that the power of the
State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the
property to be expropriated has become the law of the case as to the parties. The State or its authorized agent may still
subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule
otherwise will not only improperly diminish the power of eminent domain, but also clearly defeat social justice.

WHEREFORE, the petition is hereby DENIED without prejudice to petitioner's proper exercise of its power of eminent
domain over subject property. Costs against petitioner.

SO ORDERED.

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

Endnotes:

Republic of the Philippines

SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 156684               April 6, 2011

SPOUSES ANTONIO and FE YUSAY, Petitioners,

vs.
COURT OF APPEALS, CITY MAYOR and CITY COUNCIL OF MANDALUYONG CITY, Respondents.
 RESOLUTION

BERSAMIN, J.:

The petitioners appeal the adverse decision promulgated on October 18, 20021 and resolution promulgated on
January 17, 2003,2 whereby the Court of Appeals (CA) reversed and set aside the order issued in their favor on
February 19, 2002 by the Regional Trial Court, Branch 214, in Mandaluyong City (RTC).3 Thereby, the CA upheld
Resolution No. 552, Series of 1997, adopted by the City of Mandaluyong (City) authorizing its then City Mayor to take
the necessary legal steps for the expropriation of the parcel of land registered in the names of the petitioners.

We affirm the CA.

Antecedents

The petitioners owned a parcel of land with an area of 1,044 square meters situated between Nueve de Febrero
Street and Fernandez Street in Barangay Mauway, Mandaluyong City. Half of their land they used as their residence,
and the rest they rented out to nine other families. Allegedly, the land was their only property and only source of
income.

On October 2, 1997, the Sangguniang Panglungsod of Mandaluyong City adopted Resolution No. 552, Series of
1997, to authorize then City Mayor Benjamin S. Abalos, Sr. to take the necessary legal steps for the expropriation of
the land of the petitioners for the purpose of developing it for low cost housing for the less privileged but deserving
city inhabitants. The resolution reads as follows:

RESOLUTION NO. 552, S-19974

RESOLUTION AUTHORIZING HON. BENJAMIN S. ABALOS TO TAKE THE NECESSARY LEGAL STEPS FOR
THE EXPROPRIATION OF A PARCEL OF LAND SITUATED ALONG DR. JOSE FERNANDEZ STREET,
BARANGAY MAUWAY, CITY OF MANDALUYONG, OWNED BY MR. ANTONIO YUSAY

WHEREAS, there is a parcel of land situated along Dr. Jose Fernandez Street, Barangay Mauway, City of
Mandaluyong, owned and registered in the name of MR. ANTONIO YUSAY;

WHEREAS, this piece of land have been occupied for about ten (10) years by many financially hard-up families which
the City Government of Mandaluyong desires, among other things, to provide modest and decent dwelling;

WHEREAS, the said families have already negotiated to acquire this land but was refused by the above-named
owner in total disregard to the City Government’s effort of providing land for the landless;

WHEREAS, the expropriation of said land would certainly benefit public interest, let alone, a step towards the
implementation of social justice and urban land reform in this City;

WHEREAS, under the present situation, the City Council deems it necessary to authorize Hon. Mayor BENJAMIN S.
ABALOS to institute expropriation proceedings to achieve the noble purpose of the City Government of Mandaluyong.

NOW, THEREFORE, upon motion duly seconded, the City Council of Mandaluyong, in session assembled,
RESOLVED, as it hereby RESOLVES, to authorize, as it is hereby authorizing, Hon. Mayor BENJAMIN S. ABALOS,
to institute expropriation proceedings against the above-named registered owner of that parcel of land situated along
Dr. Jose Fernandez Street, Barangay Mauway, City of Mandaluyong, (f)or the purpose of developing it to a low-cost
housing project for the less privileged but deserving constituents of this City.

ADOPTED on this 2nd day of October 1997 at the City of Mandaluyong.

Sgd. Adventor R. Delos Santos

Acting Sanggunian Secretary
 Attested: Approved:

Sgd. Roberto J. Francisco Sgd. Benjamin S. Abalos

City Councilor & Acting City Mayor Presiding Officer

Notwithstanding that the enactment of Resolution No. 552 was but the initial step in the City’s exercise of its power of
eminent domain granted under Section 19 of the Local Government Code of 1991, the petitioners became alarmed,
and filed a petition for certiorari and prohibition in the RTC, praying for the annulment of Resolution No. 552 due to its
being unconstitutional, confiscatory, improper, and without force and effect.

The City countered that Resolution No. 552 was a mere authorization given to the City Mayor to initiate the legal
steps towards expropriation, which included making a definite offer to purchase the property of the petitioners; hence,
the suit of the petitioners was premature.

On January 31, 2001, the RTC ruled in favor of the City and dismissed the petition for lack of merit, opining that
certiorari did not lie against a legislative act of the City Government, because the special civil action of certiorari was
only available to assail judicial or quasi-judicial acts done without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; that the special civil action of prohibition did not also lie under
the circumstances considering that the act of passing the resolution was not a judicial, or quasi-judicial, or ministerial
act; and that notwithstanding the issuance of Resolution No. 552, the City had yet to commit acts of encroachment,
excess, or usurpation, or had yet to act without or in excess of jurisdiction or with grave abuse of discretion
amounting lack or in excess of jurisdiction.

However, on February 19, 2002, the RTC, acting upon the petitioners’ motion for reconsideration, set aside its
decision and declared that Resolution No. 552 was null and void. The RTC held that the petition was not premature
because the passage of Resolution No. 552 would already pave the way for the City to deprive the petitioners and
their heirs of their only property; that there was no due process in the passage of Resolution No. 552 because the
petitioners had not been invited to the subsequent hearings on the resolution to enable them to ventilate their
opposition; and that the purpose for the expropriation was not for public use and the expropriation would not benefit
the greater number of inhabitants.

Aggrieved, the City appealed to the CA.

In its decision promulgated on October 18, 2002, the CA concluded that the reversal of the January 31, 2001 decision
by the RTC was not justified because Resolution No. 552 deserved to be accorded the benefit of the presumption of
regularity and validity absent any sufficient showing to the contrary; that notice to the petitioners (Spouses Yusay) of
the succeeding hearings conducted by the City was not a part of due process, for it was enough that their views had
been consulted and that they had been given the full opportunity to voice their protest; that to rule otherwise would be
to give every affected resident effective veto powers in law-making by a local government unit; and that a public
hearing, although necessary at times, was not indispensable and merely aided in law-making.

The CA disposed as follows:

WHEREFORE, premises considered, the questioned order of the Regional Trial Court, Branch 214, Mandaluyong
City dated February 19, 2002 in SCA Case No. 15-MD, which declared Resolution No. 552, Series of 1997 of the City
of Mandaluyong null and void, is hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.5

The petitioners moved for reconsideration, but the CA denied their motion. Thus, they appeal to the Court, posing the
following issues, namely:

1. Can the validity of Resolution No. 552 be assailed even before its implementation?
 2. Must a citizen await the takeover and possession of his property by the local government before he can
go to court to nullify an unjust expropriation?

Before resolving these issues, however, the Court considers it necessary to first determine whether or not the action
for certiorari and prohibition commenced by the petitioners in the RTC was a proper recourse of the petitioners.

Ruling

We deny the petition for review, and find that certiorari and prohibition were not available to the petitioners under the
circumstances. Thus, we sustain, albeit upon different grounds, the result announced by the CA, and declare that the
RTC gravely erred in giving due course to the petition for certiorari and prohibition.

1.

Certiorari does not lie to assail the issuance of

a resolution by the Sanggunian Panglungsod

The special civil action for certiorari is governed by Rule 65 of the 1997 Rules of Civil Procedure, whose Section 1
provides:

Section 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.

xxx

For certiorari to prosper, therefore, the petitioner must allege and establish the concurrence of the following
requisites, namely:

(a) The writ is directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions;

(b) Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and

(c) There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.6

It is further emphasized that a petition for certiorari seeks solely to correct defects in jurisdiction,7 and does not correct
just any error or mistake committed by a court, board, or officer exercising judicial or quasi-judicial functions unless
such court, board, or officer thereby acts without jurisdiction or in excess of jurisdiction or with such grave abuse of
discretion amounting to lack of jurisdiction.8

The first requisite is that the respondent tribunal, board, or officer must be exercising judicial or quasi-judicial
functions. Judicial function, according to Bouvier,9 is the exercise of the judicial faculty or office; it also means the
capacity to act in a specific way which appertains to the judicial power, as one of the powers of government. "The
term," Bouvier continues,10 "is used to describe generally those modes of action which appertain to the judiciary as a
department of organized government, and through and by means of which it accomplishes its purpose and exercises
its peculiar powers."

Based on the foregoing, certiorari did not lie against the Sangguniang Panglungsod, which was not a part of the
Judiciary settling an actual controversy involving legally demandable and enforceable rights when it adopted
Resolution No. 552, but a legislative and policy-making body declaring its sentiment or opinion.
Nor did the Sangguniang Panglungsod abuse its discretion in adopting Resolution No. 552. To demonstrate the
absence of abuse of discretion, it is well to differentiate between a resolution and an ordinance. The first is upon a
specific matter of a temporary nature while the latter is a law that is permanent in character.11 No rights can be
conferred by and be inferred from a resolution, which is nothing but an embodiment of what the lawmaking body has
to say in the light of attendant circumstances. In simply expressing its sentiment or opinion through the resolution,
therefore, the Sangguniang Panglungsod in no way abused its discretion, least of all gravely, for its expression of
sentiment or opinion was a constitutionally protected right.

Moreover, Republic Act No. 7160 (The Local Government Code) required the City to pass an ordinance, not adopt a
resolution, for the purpose of initiating an expropriation proceeding. In this regard, Section 19 of The Local
Government Code clearly provides, viz:

Section 19. Eminent Domain. – A local government unit may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and
the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and such offer was not accepted: Provided, further, That the local government
unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon
making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking
of the property.

A resolution like Resolution No. 552 that merely expresses the sentiment of the Sangguniang Panglungsod is not
sufficient for the purpose of initiating an expropriation proceeding. Indeed, in Municipality of Parañaque v. V.M. Realty
Corporation,12 a case in which the Municipality of Parañaque based its complaint for expropriation on a resolution, not
an ordinance, the Court ruled so:

The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise
thereof to LGUs, other public entities and public utilities. An LGU may therefore exercise the power to expropriate
private property only when authorized by Congress and subject to the latter’s control and restraints, imposed "through
the law conferring the power or in other legislations." In this case, Section 19 of RA 7160, which delegates to LGUs
the power of eminent domain, also lays down the parameters for its exercise. It provides as follows:

"Section 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and
the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and such offer was not accepted: Provided, further, That the local government
unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon
making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking
of the property." (Emphasis supplied)

Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain:

1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of
the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular
private property.

2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor
and the landless.

3. There is payment of just compensation, as required under Section 9 Article III of the Constitution and
other pertinent laws.

4. A valid and definite offer has been previously made to the owner of the property sought to be
expropriated, but said offer was not accepted.
In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution
of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through
an ordinance. Petitioner cites Camarines Sur vs. Court of Appeals to show that a resolution may suffice to support the
exercise of eminent domain by an LGU. This case, however, is not in point because the applicable law at that time
was BP 337, the previous Local Government Code, which had provided that a mere resolution would enable an LGU
to exercise eminent domain. In contrast, RA 7160, the present Local Government Code which was already in force
when the Complaint for expropriation was filed, explicitly required an ordinance for this purpose.

We are not convinced by petitioner’s insistence that the terms "resolution" and "ordinance" are synonymous. A
municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of
the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent
character, but a resolution is temporary in nature. Additionally, the two are enacted differently -- a third reading is
necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian
members.

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply
adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from the
previous Local Government Code, Section 19 of RA 7160 categorically requires that the local chief executive act
pursuant to an ordinance. Indeed, "[l]egislative intent is determined principally from the language of a statute. Where
the language of a statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would
lead to an injustice." In the instant case, there is no reason to depart from this rule, since the law requiring an
ordinance is not at all impossible, absurd, or unjust.

Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the
people. Accordingly, the manifest change in the legislative language – from "resolution" under BP 337 to "ordinance"
under RA 7160 – demands a strict construction. "No species of property is held by individuals with greater tenacity,
and is guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the
legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his
consent, the plain meaning of the law should not be enlarged by doubtful interpretation."

xxx

In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan passed an ordinance on
October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor
regarding the subject expropriation.

This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it
did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court.
In fact, it was mentioned by private respondent, and only in passing. In any event, this allegation does not cure the
inherent defect of petitioner’s Complaint for expropriation filed on September 23, 1993. It is hornbook doctrine that:

" x x x in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question
submitted before the court for determination is the sufficiency of the allegations in the complaint itself. Whether those
allegations are true or not is beside the point, for their truth is hypothetically admitted by the motion. The issue rather
is: admitting them to be true, may the court render a valid judgment in accordance with the prayer of the complaint?"

The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based
on a mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action.
Consequently, the Court of Appeals committed no reversible error in affirming the trial court’s Decision which
dismissed the expropriation suit.13 (Emphasis supplied)

In view of the absence of the proper expropriation ordinance authorizing and providing for the expropriation, the
petition for certiorari filed in the RTC was dismissible for lack of cause of action.

2.

Prohibition does not lie against expropriation

The special civil action for prohibition is governed also by Section 2 of Rule 65 of the 1997 Rules of Civil Procedure,
which states:

Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent
to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental
reliefs as law and justice may require.

xxx

The function of prohibition is to prevent the unlawful and oppressive exercise of legal authority and to provide for a
fair and orderly administration of justice.14 The writ of prohibition is directed against proceedings that are done without
or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy and
adequate remedy in the ordinary course of law.15 For grave abuse of discretion to be a ground for prohibition, the
petitioner must first demonstrate that the tribunal, corporation, board, officer, or person, whether exercising judicial,
quasi-judicial or ministerial functions, has exercised its or his power in an arbitrary or despotic manner, by reason of
passion or personal hostility, which must be so patent and gross as would amount to an evasion, or to a virtual
refusal to perform the duty enjoined or to act in contemplation of law.16 On the other hand, the term excess of
jurisdiction signifies that the court, board, or officer has jurisdiction over a case but has transcended such jurisdiction
or acted without any authority.17

The petitioner must further allege in the petition and establish facts to show that any other existing remedy is not
speedy or adequate.18 A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the
injurious effects of that judgment and the acts of the tribunal or inferior court.19
1avvphi1

The rule and relevant jurisprudence indicate that prohibition was not available to the petitioners as a remedy against
the adoption of Resolution No. 552, for the Sangguniang Panglungsod, by such adoption, was not exercising judicial,
quasi-judicial or ministerial functions, but only expressing its collective sentiment or opinion.

Verily, there can be no prohibition against a procedure whereby the immediate possession of the land under
expropriation proceedings may be taken, provided always that due provision is made to secure the prompt
adjudication and payment of just compensation to the owner. 20 This bar against prohibition comes from the nature of
the power of eminent domain as necessitating the taking of private land intended for public use,21 and the interest of
the affected landowner is thus made subordinate to the power of the State. Once the State decides to exercise its
power of eminent domain, the power of judicial review becomes limited in scope, and the courts will be left to
determine the appropriate amount of just compensation to be paid to the affected landowners. Only when the
landowners are not given their just compensation for the taking of their property or when there has been no
agreement on the amount of just compensation may the remedy of prohibition become available.

Here, however, the remedy of prohibition was not called for, considering that only a resolution expressing the desire
of the Sangguniang Panglungsod to expropriate the petitioners’ property was issued. As of then, it was premature for
the petitioners to mount any judicial challenge, for the

power of eminent domain could be exercised by the City only through the filing of a verified complaint in the proper
court.22 Before the City as the expropriating authority filed such verified complaint, no expropriation proceeding could
be said to exist. Until then, the petitioners as the owners could not also be deprived of their property under the power
of eminent domain.23

WHEREFORE, we affirm the decision promulgated on October 18, 2002 in CA-G.R. SP No. 70618.

Costs to be paid by the petitioners.

SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

ARTURO D. BRION MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

FIRST DIVISION

[G.R. NO. 153974 : August 7, 2006]

MIGUEL BELUSO, NATIVIDAD BELUSO, PEDRO BELUSO,

ANGELITA BELUSO, RAMON BELUSO, and AMADA DANIEL,
substituted by her heirs represented by TERESITA
ARROBANG, Petitioners, v. THE MUNICIPALITY OF PANAY
(CAPIZ), represented by its Mayor, VICENTE B.
BERMEJO, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review questioning the
Decision 1 of the Court of Appeals (CA) dated March 20, 2002 in CA-
G.R. SP No. 47052, as well the Resolution 2 dated June 11, 2002
denying petitioners' Motion for Reconsideration thereof.

The facts are as follows:

Petitioners are owners of parcels of land with a total area of about

20,424 square meters, covered by Free Patent Nos. 7265, 7266,
7267, 7268, 7269, and 7270.3 On November 8, 1995,
the Sangguniang Bayan  of the Municipality of Panay issued
Resolution No. 95-29 authorizing the municipal government through
the mayor to initiate expropriation proceedings.4 A petition for
expropriation was thereafter filed on April 14, 1997 by the
Municipality of Panay (respondent) before the Regional Trial Court
(RTC), Branch 18 of Roxas City, docketed as Civil Case No. V-6958.5

Petitioners filed a Motion to Dismiss alleging that the taking is not

for public use but only for the benefit of certain individuals; that it is
politically motivated because petitioners voted against the
incumbent mayor and vice-mayor; and that some of the supposed
beneficiaries of the land sought to be expropriated have not actually
signed a petition asking for the property but their signatures were
forged or they were misled into signing the same.6

On July 31, 1997, the trial court denied petitioners' Motion to

Dismiss and declared that the expropriation in this case is for
"public use" and the respondent has the lawful right to take the
property upon payment of just compensation.7

Petitioners filed an Answer on August 12, 1997 reasserting the

issues they raised in their Motion to Dismiss.8

On October 1, 1997, the trial court issued an Order appointing three

persons as Commissioners to ascertain the amount of just
compensation for the property.9 Petitioners filed a "Motion to Hold in
Abeyance the Hearing of the Court Appointed Commissioners to
Determine Just Compensation and for Clarification of the Court's
Order dated October 1, 1997" which was denied by the trial court on
November 3, 1997.10 Petitioners' Motion for Reconsideration was
also denied on December 9, 1997.11

Petitioners then filed on March 2, 1998 a Petition

for Certiorari before the CA claiming that they were denied due
process when the trial court declared that the taking was for public
purpose without receiving evidence on petitioners' claim that the
Mayor of Panay was motivated by politics in expropriating their
property and in denying their Motion to Hold in Abeyance the
Hearing of the Court Appointed Commissioners; and that the trial
court also committed grave abuse of discretion when it disregarded
the affidavits of persons denying that they signed a petition
addressed to the municipal government of Panay.12 On January 17,
2001, petitioners filed a Motion to Admit Attached Memorandum and
the Memorandum itself where they argued that based on the
Petition for Expropriation filed by respondent, such expropriation
was based only on a resolution and not on an ordinance contrary to
Sec. 19 of Republic Act (R.A.) No. 7160; there was also no valid and
definite offer to buy the property as the price offered by respondent
to the petitioners was very low.13

On March 20, 2002, the CA rendered its Decision dismissing the

Petition for Certiorari. It held that the petitioners were not denied
due process as they were able to file an answer to the complaint
and were able to adduce their defenses therein; and that the
purpose of the taking in this case constitutes "public
use".14 Petitioners filed a Motion for Reconsideration which was
denied on June 11, 2002.15

Thus, the present petition claiming that:

A. RESPONDENT IS WITHOUT, LACKS AND DOES NOT HAVE THE

LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT
PROPERTIES THROUGH EMINENT DOMAIN, IT BEING EXERCISED BY
MEANS OF A MERE RESOLUTION, AND NOT THROUGH AN
ORDINANCE AS REQUIRED BY LAW AND APPLICABLE
JURISPRUDENCE;

B. RESPONDENT IS LIKEWISE WITHOUT, LACKS AND DOES NOT

HAVE THE LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE
SUBJECT PROPERTIES THROUGH EMINENT DOMAIN, ITS PREVIOUS
OFFER TO BUY THEM BEING NOT VALID; and cralawlibrary

C. IT WAS A SERIOUS ERROR ON THE PART OF THE HONORABLE

COURT OF APPEALS NOT TO DISCUSS, MUCH LESS RULE ON, BOTH
IN ITS QUESTIONED DECISION AND ITS RESOLUTION
PROMULGATED ON 11 JUNE 2002 PETITIONERS' ARGUMENTS THAT
RESPONDENT IS WITHOUT, LACKS AND DOES NOT HAVE THE
LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT
PROPERTIES THROUGH EMINENT DOMAIN, IT BEING EXERCISED BY
MEANS OF A MERE RESOLUTION, AND NOT THROUGH AN
ORDINANCE AS REQUIRED BY LAW AND APPLICABLE
JURISPRUDENCE, AND ITS PREVIOUS OFFER TO BUY THEM BEING
NOT VALID, DESPITE THE FACT THAT THESE OBJECTIONS WERE
PROPERLY PLEADED IN PETITIONERS' MEMORANDUM WHICH WAS
DULY ADMITTED IN ITS RESOLUTION PROMULGATED ON 29
JANUARY 2001; and cralawlibrary

D. PETITIONERS WERE UTTERLY DENIED PROCEDURAL DUE

PROCESS OF LAW BY THE COURT A QUO, WHEN IT SIMPLY
DECLARED IN ITS ORDER DATED 31 JULY 1997 THAT THE TAKING
BY RESPONDENT OF PETITIONERS' PROPERTIES IS PURPORTEDLY
FOR PUBLIC PURPOSE WITHOUT RECEIVING EVIDENCE ON THEIR
ASSERTED CLAIM THAT RESPONDENT'S MUNICIPAL MAYOR WAS
POLITICALLY MOTIVATED IN SEEKING THE EXPROPRIATION OF
THEIR PROPERTIES AND NOT FOR PUBLIC PURPOSE.16

Petitioners argue that: contrary to Sec. 19 of R.A. No. 7160 of the

Local Government Code, which provides that a local government
may exercise the power of eminent domain only by "ordinance,"
respondent's expropriation in this case is based merely on a
"resolution"; while objection on this ground was neither raised by
petitioners in their Motion to Dismiss nor in their Answer, such
objection may still be considered by this Court since the fact upon
which it is based is apparent from the petition for expropriation
itself; a defense may be favorably considered even if not raised in
an appropriate pleading so long as the facts upon which it is based
are undisputed; courts have also adopted a more censorious
attitude in resolving questions involving the proper exercise of local
bodies of the delegated power of expropriation, as compared to
instances when it is directly exercised by the national legislature;
respondent failed to give, prior to the petition for expropriation, a
previous valid and definite offer to petitioners as the amount offered
in this case was only P10.00 per square meter, when the properties
are residential in nature and command a much higher price; the CA
failed to discuss and rule upon the arguments raised by petitioners
in their Memorandum; attached to the Motion to Dismiss were
affidavits and death certificates showing that there were people
whose names were in the supposed petition asking respondent for
land, but who did not actually sign the same, thus showing that the
present expropriation was not for a public purpose but was merely
politically motivated; considering the conflicting claims regarding
the purpose for which the properties are being expropriated and
inasmuch as said issue may not be rightfully ruled upon merely on
the basis of petitioners' Motion to Dismiss and Answer as well as
respondent's Petition for Expropriation, what should have been done
was for the RTC to conduct hearing where each party is given ample
opportunity to prove its claim.17

Respondent for its part contends that its power to acquire private
property for public use upon payment of just compensation was
correctly upheld by the trial court; that the CA was correct in finding
that the petitioners were not denied due process, even though no
hearing was conducted in the trial court, as petitioners were still
able to adduce their objections and defenses therein; and that
petitioners' arguments have been passed upon by both the trial
court and the CA and were all denied for lack of substantial merit.18

Respondent filed a Memorandum quoting at length the decision of

the CA to support its position.19 Petitioners meanwhile opted to have
the case resolved based on the pleadings already filed.20

We find the petition to be impressed with merit.

Eminent domain, which is the power of a sovereign state to

appropriate private property to particular uses to promote public
welfare, is essentially lodged in the legislature.21 While such power
may be validly delegated to local government units (LGUs), other
public entities and public utilities the exercise of such power by the
delegated entities is not absolute.22 In fact, the scope of delegated
legislative power is narrower than that of the delegating authority
and such entities may exercise the power to expropriate private
property only when authorized by Congress and subject to its
control and restraints imposed through the law conferring the power
or in other legislations.23 Indeed, LGUs by themselves have no
inherent power of eminent domain.24 Thus, strictly speaking, the
power of eminent domain delegated to an LGU is in reality not
eminent but "inferior" since it must conform to the limits imposed
by the delegation and thus partakes only of a share in eminent
domain.25 The national legislature is still the principal of the LGUs
and the latter cannot go against the principal's will or modify the
same.26

The exercise of the power of eminent domain necessarily involves a

derogation of a fundamental right.27 It greatly affects a landowner's
right to private property which is a constitutionally protected right
necessary for the preservation and enhancement of personal dignity
and is intimately connected with the rights to life and liberty.28 Thus,
whether such power is exercised directly by the State or by its
authorized agents, the exercise of such power must undergo
painstaking scrutiny.29

Indeed, despite the existence of legislative grant in favor of local

governments, it is still the duty of the courts to determine whether
the power of eminent domain is being exercised in accordance with
the delegating law.

Sec. 19 of R.A. No. 7160, which delegates to LGUs the power of

eminent domain expressly provides:

SEC. 19. Eminent Domain. - A local government unit may, through

its chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, or purpose, or welfare for
the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and
pertinent laws: Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That, the amount to
be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the
taking of the property.

It is clear therefore that several requisites must concur before an

LGU can exercise the power of eminent domain, to wit:

1. An ordinance is enacted by the local legislative council

authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain or
pursue expropriation proceedings over a particular private property.

2. The power of eminent domain is exercised for public use, purpose

or welfare, or for the benefit of the poor and the landless.

3. There is payment of just compensation, as required under

Section 9, Article III of the Constitution, and other pertinent laws.

4. A valid and definite offer has been previously made to the owner
of the property sought to be expropriated, but said offer was not
accepted.30

The Court in no uncertain terms have pronounced that a local

government unit cannot authorize an expropriation of private
property through a mere resolution of its lawmaking body.31 R.A.
No. 7160 otherwise known as the Local Government Code expressly
requires an ordinance for the purpose and a resolution that merely
expresses the sentiment of the municipal council will not suffice.32

A resolution will not suffice for an LGU to be able to expropriate

private property; and the reason for this is settled:

x x x A municipal ordinance is different from a resolution. An

ordinance is a law, but a resolution is merely a declaration of the
sentiment or opinion of a lawmaking body on a specific matter. An
ordinance possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two are enacted
differently - - a third reading is necessary for an ordinance, but not
for a resolution, unless decided otherwise by a majority of all
the Sanggunian members.

If Congress intended to allow LGUs to exercise eminent domain

through a mere resolution, it would have simply adopted the
language of the previous Local Government Code. But Congress did
not. In a clear divergence from the previous Local Government
Code, Sec. 19 of R.A. [No.] 7160 categorically requires that the
local chief executive act pursuant to an ordinance. x x x 33

As respondent's expropriation in this case was based merely on a

resolution, such expropriation is clearly defective. While the Court is
aware of the constitutional policy promoting local autonomy, the
court cannot grant judicial sanction to an LGU's exercise of its
delegated power of eminent domain in contravention of the very law
giving it such power.34

The Court notes that petitioners failed to raise this point at the
earliest opportunity. Still, we are not precluded from considering the
same. This Court will not hesitate to consider matters even those
raised for the first time on appeal in clearly meritorious
situations, 35 such as in this case.

Thus, the Court finds it unnecessary to resolve the other issues

raised by petitioners.

It is well to mention however that despite our ruling in this case

respondent is not barred from instituting similar proceedings in the
future, provided that it complies with all legal requirements.36

WHEREFORE, the petition is GRANTED. The decision of the Court

of Appeals in CA-G.R. SP No. 47052 is REVERSED and SET ASIDE.
The Complaint in Civil Action No. V-6958 is DISMISSED without
prejudice.

No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 175983               April 16, 2009

METROPOLITAN CEBU WATER DISTRICT (MCWD), Petitioner,

vs.
J. KING AND SONS COMPANY, INC., Respondent.

DECISION

TINGA, J.:

Before us is a Rule 45 petition1 which seeks the reversal of the decision2 and resolution3 of the Court of Appeals in
CA-G.R. CEB-SP No. 00810. The Court of Appeals’ decision nullified the orders4 and the writ of possession5 issued
by the Regional Trial Court (RTC) of Cebu City, Branch 23, allowing petitioner to take possession of respondent’s
property.

Petitioner Metropolitan Cebu Water District is a government-owned and controlled corporation created pursuant to
Presidential Decree No. 198, as amended. Among its purposes are to acquire, install, improve, maintain and operate
water supply and distribution systems within the boundaries of the District.6

Petitioner wanted to acquire a five (5)-square meter lot occupied by its production well. The lot is part of respondent’s
property covered by TCT No. 168605 and located in Banilad, Cebu City. Petitioner initiated negotiations7 with
respondent J. King and Sons Company, Inc. for the voluntary sale of the latter’s property. Respondent did not
acquiesce to petitioner’s proposal. After the negotiations had failed, petitioner pursuant to its charter8 initiated

expropriation proceedings through Board Resolution No. 015-20049 which was duly approved by the Local Water
Utilities Administration (LWUA).10 On 10 November 2004, petitioner filed a complaint11 to expropriate the five (5)-
square meter portion of respondent’s property.

On 7 February 2005, petitioner filed a motion12 for the issuance of a writ of possession. Petitioner wanted to tender
the amount to respondent during a rescheduled hearing which petitioner’s counsel had failed to attend.13 Petitioner
deposited14 with the Clerk of Court the amount of ₱17,500.00 equivalent to one hundred percent (100%) of the current
zonal value of the property which the Bureau of Internal Revenue had pegged at ₱3,500.00 per square
meter.15 Subsequently, the trial court granted the motion16 and issued the writ of possession.17 Respondent moved for
reconsideration but the motion was denied.18

Respondent filed a petition19 for certiorari under Rule 65 with the Court of Appeals. It sought the issuance of a
temporary restraining order (TRO) which the Court of Appeals granted.20 Thus, petitioner was not able to gain entry to
the lot.21

On 26 July 2006, the Court of Appeals rendered the assailed decision22 granting respondent’s petition. It ruled that the
board resolution which authorized the filing of the expropriation complaint lacked exactitude and particularity which
made it invalid; that there was no genuine necessity for the expropriation of the five (5)-square meter lot and; that the
reliance on Republic Act (R.A.) No. 8974 in fixing the value of the property contravenes the judicial determination of
just compensation. Petitioner moved23 for reconsideration but the motion was rejected.24

Hence, this petition.

The issues raised by petitioner can be summarized as follows:

 1. Whether there was sufficient authority from the petitioner’s board of directors to institute the expropriation
complaint; and

2. Whether the procedure in obtaining a writ of possession was properly observed.

Eminent domain is the right of the state to acquire private property for public use upon payment of just
compensation.25 The power of eminent domain is inseparable in sovereignty being essential to the existence of the
State and inherent in government. Its exercise is proscribed by only two Constitutional requirements: first, that there
must be just compensation, and second, that no person shall be deprived of life, liberty or property without due
process of law26 .

As an inherent sovereign prerogative, the power to expropriate pertains to the legislature. However, Congress may,
as in fact it often does, delegate the exercise of the power to government agencies, public officials and quasi-public
entities. Petitioner is one of the numerous government offices so empowered. Under its charter, P.D. No. 198, as
amended,27 petitioner is explicitly granted the power of eminent domain.

On 7 November 2000, Congress enacted R.A. No. 8974, entitled "An Act To Facilitate The Acquisition Of Right-Of-
Way, Site Or Location For National Government Infrastructure Projects And For Other Purposes." Section 2 thereof
defines national government projects as follows:

Sec. 2. National Government Projects.—The term "national government projects" shall refer to all national
government infrastructure, engineering works and service contracts, including projects undertaken by government-
owned and -controlled corporations, all projects covered by Republic Act No. 6957, as amended by Republic Act No.
7718, otherwise known as the Build-Operate-and-Transfer Law, and other related and necessary activities, such as
site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion,
operation, maintenance, improvement, repair and rehabilitation, regardless of source of funding." (emphasis ours)

R.A. No. 8974 includes projects undertaken by government owned and controlled corporations,28 such as petitioner.
Moreover, the Implementing Rules and Regulations of R.A. No. 8974 explicitly includes water supply, sewerage, and
waste management facilities among the national government projects covered by the law.29 It is beyond question,
therefore, that R.A. No. 8974 applies to the expropriation subject of this case.

The Court of Appeals held that the board resolution authorizing the expropriation lacked exactitude and particularity.
It described the board resolution as akin to a general warrant in criminal law and as such declared it invalid.
Respondent reiterates the same argument in its comment and adds that petitioner’s exercise of the power of eminent
domain was not reviewed by the LWUA.

A corporation does not have powers beyond those expressly conferred upon it by its enabling law. Petitioner’s charter
provides that it has the powers, rights and privileges given to private corporations under existing laws, in addition to
the powers granted in it.30 All the powers, privileges, and duties of the district shall be exercised and performed by
and through the board and that any executive, administrative or ministerial power may be delegated and redelegated
by the board to any of its officers or agents for such

purpose.31 Being a corporation, petitioner can exercise its powers only through its board of directors.

For petitioner to exercise its power of eminent domain, two requirements should be met, namely: first, its board of
directors passed a resolution authorizing the expropriation, and; second, the exercise of the power of eminent domain
was subjected to review by the LWUA. In this case, petitioner’s board of directors approved on 27 February 2004,
Board Resolution No. 015-200432 authorizing its general manager to file expropriation and other cases. Moreover, the
LWUA did review and gave its stamp of approval to the filing of a complaint for the expropriation of respondent’s lot.
Specifically, the LWUA through its Administrator, Lorenzo H. Jamora, wrote petitioner’s manager, Armando H.
Paredes, a letter dated 28 February 200533 authorizing petitioner to file the expropriation case "against the owner of
the five-square meter portion of Lot No. 921-A covered by TCT No. 168805, pursuant to Section 25 of P.D. No. 198,
as amended."

The letter not only explicitly debunks respondent’s claim that there was no authorization from LWUA but it also
identifies the lot sought to be expropriated with sufficient particularity.
It is settled that the validity of a complaint may be questioned immediately upon its filing through a motion to dismiss
or raised thereafter as an affirmative defense. However, there is no need to further belabor the issue since it is
established that petitioner has the legal capacity to institute the expropriation complaint.

Anent the second issue involving the issuance of a writ of possession, a discussion on the various stages in an
expropriation proceeding is necessary.

The general rule is that upon filing of the expropriation complaint, the plaintiff has the right to take or enter into
possession of the real property involved if he deposits with the authorized government depositary an amount
equivalent to the assessed value of the property for purposes of taxation. An exception to this procedure is provided
by R.A. No. 897434 . It requires the payment of one hundred percent (100%) of the zonal value of the property to be
expropriated to entitle the plaintiff to a writ of possession.

In an expropriation proceeding there are two stages, first, is the determination of the validity of the expropriation, and
second is the determination of just compensation.35 In Tan v. Republic,36 we explained the two (2) stages in an
expropriation proceeding to wit:

(1) Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety
of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the
action, with condemnation declaring that the plaintiff has a lawful right to take the property sought to be
condemned for the public use or purpose described in the complaint, upon payment of just compensation.
An order of expropriation is final. An order of dismissal, if this be ordained, would be a final one, as it finally
disposes of the action and leaves nothing more to be done by the courts on the merits. The order of
expropriation would also be a final one for after its issuance, no objection to the right of condemnation shall
be heard. The order of expropriation may be appealed by any party aggrieved thereby by filing a record on
appeal.

(2) Determination by the court of the just compensation for the property sought to be taken with the
assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of
the evidence before the court and findings of the commissioners would likewise be a final one, as it would
leave nothing more to be done by the court regarding the issue. A second and separate appeal may be
taken from this order fixing the just compensation.37

Thus, the determination of the necessity of the expropriation is a justiciable question which can only be resolved
during the first stage of an expropriation proceeding. Respondent’s claim that the expropriated property is too small to
be considered for public use can only be resolved during that stage.

Further, the Court of Appeals ruled that Section 4 of R.A. No. 8974 runs counter to the express mandate of Section 2
of Rule 67.38 It held that the law undermined the principle that the determination of just compensation is a judicial
function. However, this Court has already settled the issue. In Republic v. Gingoyon,39 this Court held that:

It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme of
"immediate payment" in cases involving national government infrastructure projects.

xxx

It likewise bears noting that the appropriate standard of just compensation is a substantive matter. It is well within the
province of the legislature to fix the standard, which it did through the enactment of Rep. Act No. 8974. Specifically,
this prescribes the new standards in determining the amount of just compensation in expropriation cases relating to
national government infrastructure projects, as well as the manner of payment thereof.

At the same time, Section 14 of the Implementing Rules recognizes the continued applicability of Rule 67 on
procedural aspects when it provides "all matters regarding defenses and objections to the complaint, issues on
uncertain ownership and conflicting claims, effects of appeal on the rights of the parties, and such other incidents
affecting the complaint shall be resolved under the provisions on expropriation of Rule 67 of the Rules of Court.40

R.A. No. 8974 does not take away from the courts the power to judicially determine the amount of just compensation.
The law merely sets the minimum price of the property as the provisional value. Thus,
the amount of just compensation must still be determined by the courts according to the standards set forth in Section
541 of R.A. No. 8974.

R.A. No. 8974 provides a different scheme for the obtention of a writ of possession. The law does not require a
deposit with a government bank; instead it requires the government to immediately pay the property owner.42 The
provisional character of this payment means that it is not yet final, yet, sufficient under the law to entitle the
Government to the writ of possession over the expropriated property.43 The provisional payment is a
prerequisite44 and a trigger45 for the issuance of the writ of possession. In Gingoyon,46 we held that:

It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme of
"immediate payment" in cases involving national government infrastructure projects.47

xxx

Rep. Act. No. 8974 is plainly clear in imposing the requirement of immediate prepayment, and no amount of statutory
deconstruction can evade such requisite. It enshrines a new approach towards eminent domain that reconciles the
inherent unease attending expropriation proceedings with a position of fundamental equity. While expropriation
proceedings have always demanded just compensation in exchange for private property, the previous deposit
requirement impeded immediate compensation to the private owner, especially in cases wherein the determination of
the final amount of compensation would prove highly disputed. Under the new modality prescribed by Rep. Act. No.
8974, the private owner sees immediate monetary recompense, with the same degree of speed as the taking of
his/her property.48
1avvphi1

Petitioner was supposed to tender the provisional payment directly to respondent during a hearing which it had failed
to attend. Petitioner, then, deposited the provisional payment with the court. The trial court did not commit an error in
accepting the deposit and in issuing the writ of possession. The deposit of the provisional amount with the court is
equivalent to payment.

Indeed, Section 4 of R.A. No. 8974 is emphatic to the effect that "upon compliance with the guidelines…the court
shall immediately issue to the implementing agency an order to take possession of the property and start the
implementation of the project."49 Under this statutory provision, when the government, its agencies or government-
owned and controlled corporations, make the required provisional payment, the trial court has a ministerial duty to
issue a writ of possession. In Capitol Steel Corporation v. PHIVIDEC Industrial Authority, 50 we held that:

Upon compliance with the requirements, a petitioner in an expropriation case…is entitled to a writ of possession as a
matter of right and it becomes the ministerial duty of the trial court to forthwith issue the writ of possession. No
hearing is required and the court neither exercises its discretion or judgment in determining the amount of the
provisional value of the properties to be expropriated as the legislature has fixed the amount under Section 4 of R.A.
No. 8974.51 (emphasis ours)

It is mandatory on the trial court’s part to issue the writ of possession and on the sheriff’s part to deliver possession of
respondent’s property to petitioner pursuant to the writ.

WHEREFORE, the Court of Appeals’ Decision dated 26 July 2006 and Resolution dated 28 September 2006 are
REVERSED. The ORDERS of the Regional Trial Court dated 01 April 2005 and 9 May 2005 are hereby
REINSTATED. The Regional Trial Court is further DIRECTED to immediately REMIT the amount of ₱17,500.00 to
respondent and to REQUIRE the sheriff to implement the writ of possession. The case is REMANDED to the trial
court for further proceedings.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:
 LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified
that the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice