article 3 secs. 6 7 8 9

37
SECTION 6 ZACARIAS VILLAVICENCIO, ET AL v. JUSTO LUKBAN FACTS: Justo Lukban as Manila City's Mayor together with Anton Hohmann, the city's Chief of Police, took custody of about 170 women at the night of October 25, 1918 beyond the women‘s consent and knowledge. Said women are inmates of the houses of prostitution situated in Gardenia Street, in the district of Sampaloc, Manila. Thereafter the women were shipped to Mindanao specifically in Davao where they were signed as laborers. The purpose of sending this women to davao is to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years. That when the women, its relative and lawyers filed for habeas corpus, the City of Manila Mayor and police moved to dismiss the case saying that those women were already out of their jurisdiction and that , it should be filed in the city of Davao instead. ISSUE RELEVANT TO SECTION 1 ARTICLE II of the Constitution 1. WHETHER OR NOT MAYOR LUKBAN WHO IS AN OFFICER OF THE STATE, TO ERADICATE VICES IN ITS CITY HAVE THE RIGHT TO DEPORT SAID WOMEN OF ILL-REPUTE? OTHER ISSUE 2. WHETHER OR NOT THE CITY OF MANILA DOES NOT HAVE A JURISDICTION TO ISSUE A WRIT OF HABEAS CORPUS TO DAVAO CITY TO PRODUCE THE BODY OF THE WOMEN SINCE IT IS OUT OF THEIR JURISDICTION AND THUS, DISOBEYING THE WRIT ISSUED BY THE COURT TO PRODUCE THE BODY OF THE WOMEN? HELD: · The petition was granted. Respondent Lukban is found in contempt of court for not following the order of the court to produce the body of the women and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100) RATIO: 1. On the first issue, the court‘s decision is based on the principle of Republicanism wherein ―Ours is a government of laws and not of men‖ Law defines power. Centuries ago Magna Charta decreed that”No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors 2. On the second issue, the court believed that the true principle should be that, if the respondent (Mayor Lukban) is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. 3. In other words, If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. NOTE: HABEAS CORPUS as defined by the Black Law Dictionary Literally means- “That you have the body” - It is a writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal. - In addition to being used to test the legality of the arrest or commitment, the writ maybe used to obtain review of (1) the regularity of the extradition process (2) the right to or amount of bail or (3) the jurisdiction of a court that has imposed a criminal sentence. - In other words, it is a writ which compel someone to produce the body of the person under the name of the law. MANOTOC v. CA Facts: Criminal complaints were filed by some clients of the Manotoc Securities, Inc., to which petitioner Ricardo Manotoc, Jr. is a principal stockholder, after the torrens title submitted to and accepted by the same were suspected to be fake. The cases were assigned to different trial courts. In all cases, petitioner has been admitted to bail, with FGU Instance Corporation as Surety. Petitioner then filed motion for permission to leave the country in each trial courts stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities.". His motion was denied thus he elevated his petition to the Court of Appeals. Petitioner contends that having been admitted to bail as a matter of right, the courts which granted him bail could not prevent him from exercising his constitutional right to travel.The same was denied hence this petition for review on certiorari. Issue:

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SECTION 6

ZACARIAS VILLAVICENCIO, ET AL v. JUSTO LUKBAN

FACTS:

Justo Lukban as Manila City's Mayor together with

Anton Hohmann, the city's Chief of Police, took

custody of about 170 women at the night of October

25, 1918 beyond the women‘s consent and

knowledge.

Said women are inmates of the houses of prostitution

situated in Gardenia Street, in the district of Sampaloc,

Manila.

Thereafter the women were shipped to

Mindanao specifically in Davao where they were

signed as laborers.

The purpose of sending this women to davao is to

exterminate vice, ordered the segregated district for

women of ill repute, which had been permitted for a

number of years.

That when the women, its relative and lawyers filed for

habeas corpus, the City of Manila Mayor and police

moved to dismiss the case saying that those women

were already out of their jurisdiction and that , it should

be filed in the city of Davao instead.

ISSUE RELEVANT TO SECTION 1 ARTICLE II of the

Constitution

1. WHETHER OR NOT MAYOR LUKBAN WHO IS AN OFFICER

OF THE STATE, TO ERADICATE VICES IN ITS CITY HAVE

THE RIGHT TO DEPORT SAID WOMEN OF ILL-REPUTE?

OTHER ISSUE

2. WHETHER OR NOT THE CITY OF MANILA DOES NOT

HAVE A JURISDICTION TO ISSUE A WRIT OF HABEAS

CORPUS TO DAVAO CITY TO PRODUCE THE BODY OF THE

WOMEN SINCE IT IS OUT OF THEIR JURISDICTION AND

THUS, DISOBEYING THE WRIT ISSUED BY THE COURT TO

PRODUCE THE BODY OF THE WOMEN?

HELD:

· The petition was granted. Respondent Lukban is found in

contempt of court for not following the order of the court to

produce the body of the women and shall pay into the office of the

clerk of the Supreme Court within five days the sum of one

hundred pesos (P100)

RATIO:

1. On the first issue, the court‘s decision is based on the

principle of Republicanism wherein ―Ours is a government of laws

and not of men‖

Law defines power. Centuries ago Magna Charta decreed that”No

freeman shall be taken, or imprisoned, or be disseized of his

freehold, or liberties, or free customs, or be outlawed, or exiled, or

any other wise destroyed; nor will we pass upon him nor condemn

him, but by lawful judgment of his peers or by the law of the land.

No official, no matter how high, is above the law. The courts

are the forum which functionate to safeguard individual

liberty and to punish official transgressors

2. On the second issue, the court believed that the true

principle should be that, if the respondent (Mayor Lukban) is

within the jurisdiction of the court and has it in his power to obey

the order of the court and thus to undo the wrong that he has

inflicted, he should be compelled to do so. The writ of habeas

corpus was devised and exists as a speedy and effectual remedy

to relieve persons from unlawful restraint, and as the best and

only sufficient defense of personal freedom. Any further rights of

the parties are left untouched by decision on the writ, whose

principal purpose is to set the individual at liberty.

3. In other words, If the mayor and the chief of police, acting

under no authority of law, could deport these women from

the city of Manila to Davao, the same officials must

necessarily have the same means to return them from Davao

to Manila. The respondents, within the reach of process, may

not be permitted to restrain a fellow citizen of her liberty by

forcing her to change her domicile and to avow the act with

impunity in the courts, while the person who has lost her

birthright of liberty has no effective recourse. The great writ

of liberty may not thus be easily evaded.

NOTE:

HABEAS CORPUS as defined by the Black Law Dictionary

Literally means- “That you have the body”

- It is a writ employed to bring a person before a court,

most frequently to ensure that the party’s imprisonment or

detention is not illegal.

- In addition to being used to test the legality of the arrest

or commitment, the writ maybe used to obtain review of (1)

the regularity of the extradition process (2) the right to or

amount of bail or (3) the jurisdiction of a court that has

imposed a criminal sentence.

- In other words, it is a writ which compel someone to

produce the body of the person under the name of the law.

MANOTOC v. CA

Facts:

Criminal complaints were filed by some clients of the Manotoc

Securities, Inc., to which petitioner Ricardo Manotoc, Jr. is a

principal stockholder, after the torrens title submitted to and

accepted by the same were suspected to be fake. The cases

were assigned to different trial courts. In all cases, petitioner has

been admitted to bail, with FGU Instance Corporation as Surety.

Petitioner then filed motion for permission to leave the country in

each trial courts stating as ground therefor his desire to go to the

United States, "relative to his business transactions and

opportunities.". His motion was denied thus he elevated his

petition to the Court of Appeals. Petitioner contends that having

been admitted to bail as a matter of right, the courts which

granted him bail could not prevent him from exercising his

constitutional right to travel.The same was denied hence this

petition for review on certiorari.

Issue:

Does a person facing a criminal indictment and provisionally

released on bail, has an unrestricted right to travel?

Held:

Petitioner's contention is untenable. A court has the power to

prohibit a person admitted to bail from leaving the Philippines.

This is a necessary consequence of the nature and function of a

bail bond. Rule 114, Section 1 of the Rules of Court defines bail

as the security required and given for the release of a person who

is in the custody of the law, that he will appear before any court in

which his appearance may be required as stipulated in the bail

bond or recognizance. The condition imposed upon petitioner to

make himself available at all times whenever the court requires

his presence operates as a valid restriction on his right to travel.

The constitutional right to travel being invoked by petitioner is not

an absolute right. Section 5, Article IV of the 1973 Constitution

states that ―The liberty of abode and of travel shall not be

impaired except upon lawful order of the court, or when necessary

in the interest of national security, public safety or public health.‖

The order of the trial court releasing petitioner on bail constitutes

such lawful order as contemplated by the said constitutional

provision

MANOTOC VS. COURT OF APPEALS

Facts: Petitioner was charged with estafa. He posted bail.

Petitioner filed before each of the trial courts a motion entitled,

"motion for permission to leave the country," stating as ground

therefor his desire to go to the United States, "relative to his

business transactions and opportunities." The prosecution

opposed said motion and after due hearing, both trial judges

denied the same. Petitioner thus filed a petition for certiorari and

mandamus before the then Court of Appeals seeking to annul the

orders dated March 9 and 26, 1982, of Judges Camilon and

Pronove, respectively, as well as the communication-request of

the Securities and Exchange Commission, denying his leave to

travel abroad. He likewise prayed for the issuance of the

appropriate writ commanding the Immigration Commissioner and

the Chief of the Aviation Security Command (AVSECOM) to clear

him for departure. The Court of Appeals denied the petition.

Petitioner contends that having been admitted to bail as a matter

of right, neither the courts which granted him bail nor the

Securities and Exchange Commission which has no jurisdiction

over his liberty could prevent him from exercising his

constitutional right to travel.

Issue: Whether or Not his constitutional right to travel has been

violated.

Held: A court has the power to prohibit a person admitted to bail

from leaving the Philippines. This is a necessary consequence of

the nature and function of a bail bond. The condition imposed

upon petitioner to make himself available at all times whenever

the court requires his presence operates as a valid restriction on

his right to travel. Indeed, if the accused were allowed to leave the

Philippines without sufficient reason, he may be placed beyond

the reach of the courts. Petitioner has not shown the necessity for

his travel abroad. There is no indication that the business

transactions cannot be undertaken by any other person in his

behalf.

SILVERIO VS. COURT OF APPEALS

Facts: Petitioner was charged with violation of Section 2 (4) of the

revised securities act. Respondent filed to cancel the passport of

the petitioner and to issue a hold departure order. The RTC

ordered the DFA to cancel petitioner‘s passport, based on the

finding that the petitioner has not been arraigned and there was

evidence to show that the accused has left the country with out

the knowledge and the permission of the court.

Issue: Whether or Not the right to travel may be impaired by order

of the court.

Held: The bail bond posted by petitioner has been cancelled and

warrant of arrest has been issued by reason that he failed to

appear at his arraignments. There is a valid restriction on the right

to travel, it is imposed that the accused must make himself

available whenever the court requires his presence. A person

facing criminal charges may be restrained by the Court from

leaving the country or, if abroad, compelled to return

(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it

is also that "An accused released on bail may be re-arrested

without the necessity of a warrant if he attempts to depart from

the Philippines without prior permission of the Court where the

case is pending (ibid., Sec. 20 [2nd par. ]). Article III, Section 6 of

the 1987 Constitution should be interpreted to mean that while the

liberty of travel may be impaired even without Court Order, the

appropriate executive officers or administrative authorities are not

armed with arbitrary discretion to impose limitations. They can

impose limits only on the basis of "national security, public safety,

or public health" and "as may be provided by law," a limitive

phrase which did not appear in the 1973 text (The Constitution,

Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263).

Apparently, the phraseology in the 1987 Constitution was a

reaction to the ban on international travel imposed under the

previous regime when there was a Travel Processing Center,

which issued certificates of eligibility to travel upon application of

an interested party (See Salonga vs. Hermoso & Travel

Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).

Holding an accused in a criminal case within the reach of the

Courts by preventing his departure from the Philippines must be

considered as a valid restriction on his right to travel so that he

may be dealt with in accordance with law. The offended party in

any criminal proceeding is the People of the Philippines. It is to

their best interest that criminal prosecutions should run their

course and proceed to finality without undue delay, with an

accused holding himself amenable at all times to Court Orders

and processes

RICARDO C. SILVERIO, petitioner, vs. THE COURT OF

APPEALS

This is a Petition for Review on Certiorari under Rule 45 of the

Rules of Court praying that the Decision of respondent Court of

Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio

vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990,

as well as the Resolution of 29 June 1990 denying

reconsideration, be set aside.

On 14 October 1985, Petitioner was charged with violation of

Section 20 (4) of the Revised Securities Act in Criminal Case No.

CBU-6304 of the Regional Trial Court of Cebu. In due time, he

posted bail for his provisional liberty.

On 26 January 1988, or more than two (2) years after the filing of

the Information, respondent People of the Philippines filed an

Urgent ex parte Motion to cancel the passport of and to issue a

hold-departure Order against accused-petitioner on the ground

that he had gone abroad several times without the necessary

Court approval resulting in postponements of the arraignment and

scheduled hearings.

Overruling opposition, the Regional Trial Court, on 4 April 1988,

issued an Order directing the Department of Foreign Affairs to

cancel Petitioner's passport or to deny his application therefor,

and the Commission on Immigration to prevent Petitioner from

leaving the country. This order was based primarily on the Trial

Court's finding that since the filing of the Information on 14

October 1985, "the accused has not yet been arraigned because

he has never appeared in Court on the dates scheduled for his

arraignment and there is evidence to show that accused Ricardo

C. Silverio, Sr. has left the country and has gone abroad without

the knowledge and permission of this Court" (Rollo, p. 45).

Petitioner's Motion for Reconsideration was denied on 28 July

1988.

Petitioner's Certiorari Petition before the Court of Appeals met a

similar fate on 31 January 1990. Hence, this Petition for Review

filed on 30 July 1990.

After the respective pleadings required by the Court were filed, we

resolved to give due course and to decide the case.

Petitioner contends that respondent Court of Appeals erred in not

finding that the Trial Court committed grave abuse of discretion

amounting to lack of jurisdiction in issuing its Orders, dated 4 April

and 28 July 1988, (1) on the basis of facts allegedly patently

erroneous, claiming that the scheduled arraignments could not be

held because there was a pending Motion to Quash the

Information; and (2) finding that the right to travel can be impaired

upon lawful order of the Court, even on grounds other than the

"interest of national security, public safety or public health."

We perceive no reversible error.

1) Although the date of the filing of the Motion to Quash has been

omitted by Petitioner, it is apparent that it was filed long after the

filing of the Information in 1985 and only after several

arraignments had already been scheduled and cancelled due to

Petitioner's non-appearance. In fact, said Motion to Quash was

set for hearing only on 19 February 1988. Convincingly shown by

the Trial Court and conformed to by respondent Appellate Court is

the concurrence of the following circumstances:

1. The records will show that the information was filed on October

14, 1985. Until this date (28 July 1988), the case had yet to be

arraigned. Several scheduled arraignments were cancelled and

reset, mostly due to the failure of accused Silverio to appear. The

reason for accused Silverio's failure to appear had invariably been

because he is abroad in the United States of America;

2. Since the information was filed, until this date, accused Silverio

had never appeared in person before the Court;

3. The bond posted by accused Silverio had been cancelled twice

and warrants of arrest had been issued against him all for the

same reason –– failure to appear at scheduled arraignments.

In all candidness, the Court makes the observation that it has

given accused Silverio more than enough consideration. The limit

had long been reached (Order, 28 July 1988, Crim. Case No.

CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).

Patently, therefore, the questioned RTC Orders, dated 4 April

1988 and 28 July 1988, were not based on erroneous facts, as

Petitioner would want this Court to believe. To all appearances,

the pendency of a Motion to Quash came about only after several

settings for arraignment had been scheduled and cancelled by

reason of Petitioner's non-appearance.

2) Petitioner's further submission is that respondent Appellate

Court "glaringly erred" in finding that the right to travel can be

impaired upon lawful order of the Court, even on grounds other

than the "interest of national security, public safety or public

health."

To start with, and this has not been controverted by Petitioner, the

bail bond he had posted had been cancelled and Warrants of

Arrest had been issued against him by reason, in both instances,

of his failure to appear at scheduled arraignments. Warrants of

Arrest having been issued against him for violation of the

conditions of his bail bond, he should be taken into custody. "Bail

is the security given for the release of a person in custody of the

law, furnished by him or a bondsman, conditioned upon his

appearance before any court when so required by the Court or

the Rules (1985 Rules on Criminal Procedure, as amended, Rule

114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make

himself available at all times whenever the Court requires his

presence operates as a valid restriction of his right to travel

(Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May

1986, 142 SCRA 149). A person facing criminal charges may be

restrained by the Court from leaving the country or, if abroad,

compelled to return (Constitutional Law, Cruz, Isagani A., 1987

Edition, p. 138). So it is also that "An accused released on bail

may be re-arrested without the necessity of a warrant if he

attempts to depart from the Philippines without prior permission of

the Court where the case is pending (ibid., Sec. 20 [2nd

par. ]).

Petitioner takes the posture, however, that while the 1987

Constitution recognizes the power of the Courts to curtail the

liberty of abode within the limits prescribed by law, it restricts the

allowable impairment of the right to travel only on grounds of

interest of national security, public safety or public health, as

compared to the provisions on freedom of movement in the 1935

and 1973 Constitutions.

Under the 1935 Constitution, the liberty of abode and of travel

were treated under one provision. Article III, Section 1(4) thereof

reads:

The liberty of abode and of changing the same within the limits

prescribed by law shall not be impaired.

The 1973 Constitution altered the 1935 text by explicitly including

the liberty of travel, thus:

The liberty of abode and of travel shall not be impaired except

upon lawful order of the court or when necessary in the interest of

national security, public safety, or public health (Article IV, Section

5).

The 1987 Constitution has split the two freedoms into two distinct

sentences and treats them differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the

limits prescribed by law shall not be impaired except upon lawful

order of the court. Neither shall the right to travel be impaired

except in the interest of national security, public safety, or public

health, as may be provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts

can impair the right to travel only on the grounds of "national

security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted

to mean that while the liberty of travel may be impaired even

without Court Order, the appropriate executive officers or

administrative authorities are not armed with arbitrary discretion to

impose limitations. They can impose limits only on the basis of

"national security, public safety, or public health" and "as may be

provided by law," a limitive phrase which did not appear in the

1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First

Edition, 1987, p. 263). Apparently, the phraseology in the 1987

Constitution was a reaction to the ban on international travel

imposed under the previous regime when there was a Travel

Processing Center, which issued certificates of eligibility to travel

upon application of an interested party (See Salonga vs. Hermoso

& Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA

121).

Article III, Section 6 of the 1987 Constitution should by no means

be construed as delimiting the inherent power of the Courts to use

all means necessary to carry their orders into effect in criminal

cases pending before them. When by law jurisdiction is conferred

on a Court or judicial officer, all auxillary writs, process and other

means necessary to carry it into effect may be employed by such

Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of

Appeals, et al. (supra), to the effect that the condition imposed

upon an accused admitted to bail to make himself available at all

times whenever the Court requires his presence operates as a

valid restriction on the right to travel no longer holds under the

1987 Constitution, is far from tenable. The nature and function of

a bail bond has remained unchanged whether under the 1935, the

1973, or the 1987 Constitution. Besides, the Manotoc ruling on

that point was but a re-affirmation of that laid down long before

in People v. Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has

violated the conditions thereof by failing to appear before the

Court when required. Warrants for his arrest have been issued.

Those orders and processes would be rendered nugatory if an

accused were to be allowed to leave or to remain, at his pleasure,

outside the territorial confines of the country. Holding an accused

in a criminal case within the reach of the Courts by preventing his

departure from the Philippines must be considered as a valid

restriction on his right to travel so that he may be dealt with in

accordance with law. The offended party in any criminal

proceeding is the People of the Philippines. It is to their best

interest that criminal prosecutions should run their course and

proceed to finality without undue delay, with an accused holding

himself amenable at all times to Court Orders and processes.

WHEREFORE, the judgment under review is hereby AFFIRMED.

Costs against petitioner, Ricardo C. Silverio.

SO ORDERED.

SECTION 7

Legaspi v. CSC

Facts:

Petitioner Valentin L. Legaspi against the Civil Service

Commission. The respondent had earlier denied Legaspi‘s

request for information on the civil service eligibilities of certain

persons employed as sanitarians in the Health Department of

Cebu City. These government employees, Julian Sibonghanoy

and Mariano Agas, had allegedly represented themselves as civil

service eligibles who passed the civil service examinations for

sanitarians.

Issue:

whether or not Legaspi‘s request for information on the

civil service eligibilities of certain persons employed must be

granted on the basis of his right to information

Held:

Yes. Article III, Section 7 of the 1987 Constitution reads:

The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents,

and papers pertaining to official acts, transactions, or decisions,

as well as to government research data used as basis. for policy

development, shall be afforded the citizen, subject to such

stations as may be provided by law.

These constitutional provisions are self-executing. They supply

the rules by means of which the right to information may be

enjoyed by guaranteeing the right and mandating the duty to

afford access to sources of information. Hence, the fundamental

right therein recognized may be asserted by the people upon the

ratification of the constitution without need for any ancillary act of

the Legislature. What may be provided for by the Legislature are

reasonable conditions and limitations upon the access to be

afforded which must, of necessity, be consistent with the declared

State policy of full public disclosure of all transactions involving

public interest. However, it cannot be overemphasized that

whatever limitation may be prescribed by the Legislature, the right

and the duty under Art. III Sec. 7 have become operative and

enforceable by virtue of the adoption of the New Charter.

Therefore, the right may be properly invoked in a mandamus

proceeding such as this one.

Government agencies are without discretion in refusing disclosure

of, or access to, information of public concern. This is not to lose

sight of the reasonable regulations which may be imposed by said

agencies in custody of public records on the manner in which the

right to information may be exercised by the public.

The authority to regulate the manner of examining public records

does not carry with it the power to prohibit. A distinction has to be

made between the discretion to refuse outright the disclosure of

or access to a particular information and the authority to regulate

the manner in which the access is to be afforded. The first is a

limitation upon the availability of access to the information sought,

which only the Legislature may impose (Art. III, Sec. 6, 1987

Constitution). The second pertains to the government agency

charged with the custody of public records. Its authority to

regulate access is to be exercised solely to the end that damage

to, or loss of, public records may be avoided, undue interference

with the duties of said agencies may be prevented, and more

importantly, that the exercise of the same constitutional right by

other persons shall be assured.

Thus, while the manner of examining public records may be

subject to reasonable regulation by the government agency in

custody thereof, the duty to disclose the information of public

concern, and to afford access to public records cannot be

discretionary on the part of said agencies. Certainly, its

performance cannot be made contingent upon the discretion of

such agencies.

The constitutional guarantee to information on matters of public

concern is not absolute. It does not open every door to any and all

information. Under the Constitution, access to official records,

papers, etc., are ―subject to limitations as may be provided by

law‖ (Art. III, Sec. 7, second sentence). The law may therefore

exempt certain types of information from public scrutiny, such as

those affecting national security. It follows that, in every case, the

availability of access to a particular public record must be

circumscribed by the nature of the information sought, i.e., (a)

being of public concern or one that involves public interest, and,

(b) not being exempted by law from the operation of the

constitutional guarantee.

Issue:

whether or not petitioner has legal personality to bring

the mandamus suit

Held:

Yes. The petitioner has firmly anchored his case upon

the right of the people to information on matters of public concern,

which, by its very nature, is a public right. When the question is

one of public right and the object of the mandamus is to procure

the enforcement of a public duty, the people are regarded as the

real party in interest and the relator at whose instigation the

proceedings are instituted need not show that he has any legal or

special interest in the result, it being sufficient to show that he is a

citizen and as such interested in the execution of the laws.

When a mandamus proceeding involves the assertion of a public

right, the requirement of personal interest is satisfied by the mere

fact that the petitioner is a citizen, and therefore, part of the

general ―public‖ which possesses the right.

The petitioner, being a citizen who, as such is clothed with

personality to seek redress for the alleged obstruction of the

exercise of the public right.

Issue:

whether or not the information sought is of public

interest or public concern

Held:

The above question is first addressed to the

government agency having custody of the desired information.

However, as already discussed, this does not give the agency

concerned any discretion to grant or deny access. In case of

denial of access, the government agency has the burden of

showing that the information requested is not of public concern,

or, if it is of public concern, that the same has been exempted by

law from the operation of the guarantee. To safeguard the

constitutional right, every denial of access by the government

agency concerned is subject to review by the courts, and in the

proper case, access may be compelled by a writ of Mandamus.

The information sought by the petitioner in this case is the truth of

the claim of certain government employees that they are civil

service eligibles for the positions to which they were appointed.

The Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to

merit and fitness to be determined, as far as practicable, and

except as to positions which are policy determining, primarily

confidential or highly technical, by competitive examination. (Art.

IX, B, Sec. 2.[2]).

But then, it is not enough that the information sought is of public

interest. For mandamus to lie in a given case, the information

must not be among the species exempted by law from the

operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of

eligibility, the respondent has failed to cite any provision in the

Civil Service Law which would limit the petitioner‘s right to know

who are, and who are not, civil service eligibles. The names of

those who pass the civil service examinations, as in bar

examinations and licensure examinations for various professions,

are released to the public. Hence, there is nothing secret about

one‘s civil service eligibility, if actually possessed. Petitioner‘s

request is, therefore, neither unusual nor unreasonable. And

when, as in this case, the government employees concerned

claim to be civil service eligibles, the public, through any citizen,

has a right to verify their professed eligibilities from the Civil

Service Commission.

LEGASPI VS. CIVIL SERVICE COMMISSION (May 29, 1987 )

Facts:

-Civil Service Commission denied Valentin Legaspi‘s (petitioner)

request for information on the civil service eligibilities of 2 people

employed as sanitarians, Julian Sibonghanoy and Mariano Agas,

in the Health Department in Cebu.

-Petitioner claims that his right to information is guaranteed by the

Constitution prays for the issuance of the extraordinary writ of

mandamus to compel the respondent Commission to disclose

said information.

-the Solicitor General challenges the petitioner‘s standing to sue

upon the ground that the latter does not possess any legal right to

be informed of the civil services eligibilities of the government

employees concerned.

-SolGen further argues that there is no ministerial duty on the part

of the Commission to furnish the petitioner with the information he

seeks.

Issue:

WON the petitioner has legal to access government records to

validate the civil service eligibilities of the Health Department

employees.

Held:

Civil Service Commission is ordered to open its register of eligible

for the position of sanitarian, and to confirm or deny, the civil

service eligibility of Julian Sibonghanoy and Mariano Agas, for

said position in the Health Department of Cebu City, as requested

by the petitioner Valentin L. Legaspi.

Ratio:

The petitioner, being a citizen who, as such is clothed with

personality to seek redress for the alleged obstruction of the

exercise of the public right. We find no cogent reason to deny his

standing to bring the present suit.

In recognizing the people's right to be informed, both the 1973

Constitution and the New Charter expressly mandate the duty of

the State and its agents to afford access to official records,

documents, papers and in addition, government research data

used as basis for policy development, subject to such limitations

as may be provided by law.while the manner of examining public

records may be subject to reasonable regulation by the

government agency in custody thereof, the duty to disclose the

information of public concern, and to afford access to public

records cannot be discretionary on the part of said agencies.

Certainly, its performance cannot be made contingent upon the

discretion of such agencies. Otherwise, the enjoyment of the

constitutional right may be rendered nugatory by any whimsical

exercise of agency discretion. The constitutional duty, not being

discretionary, its performance may be compelled by a writ of

mandamus in a proper case.

But the constitutional guarantee to information on matters of

public concern is not absolute. It does not open every door to any

and all information. Under the Constitution, access to official

records, papers, etc., are "subject to limitations as may be

provided by law" (Art. III, Sec. 7, second sentence). The law may

therefore exempt certain types of information from public scrutiny,

such as those affecting national security. It follows that, in every

case, the availability of access to a particular public record must

be circumscribed by the nature of the information sought, i.e., (a)

being of public concern or one that involves public interest, and,

(b) not being exempted by law from the operation of the

constitutional guarantee. case of denial of access, the

government agency has the burden of showing that the

information requested is not of public concern, or, if it is of public

concern, that the same has been exempted by law from the

operation of the guarantee

VALMONTE VS BALMONTE

Facts:Ricardo Valmonte wrote Feliciano Belmonte Jr. on 4 June

1986, requesting to be "furnished with the list of names of

theopposition members of (the) BatasangPambansa who were

able to secure a clean loan of P2 million each on guaranty (sic)of

Mrs.Imelda Marcos" and also to "be furnished with the certified

true copies of the documents evidencing their loan. Expenses

inconnection herewith shall be borne by" Valmonte, et. al. Due

to serious legal implications, President & General Manager

FelicianoBelmonte, Jr. referred the letter to the Deputy General

Counsel of the GSIS, Meynardo A. Tiro. Tiro replied that it is his

opinion"that a confidential relationship exists between the GSIS

and all those who borrow from it, whoever they may be; that the

GSIShas a duty to its customers to preserve this confidentiality;

and that it would not be proper for the GSIS to breach

thisconfidentiality unless so ordered by the courts." On 20 June

1986, apparently not having yet received the reply of

the GovernmentService and Insurance System (GSIS) Deputy

General Counsel, Valmonte wrote Belmonte another letter, saying

that for failure toreceive a reply "(W)e are now considering

ourselves free to do whatever action necessary within the

premises to pursue our

desiredobjective in pursuance of public interest." On 26 June 198

6, Ricardo Valmonte,Oswaldo Carbonell, Doy Del Castillo, Roland

o Bartolome, LeoObligar, Jun Gutierrez, Reynaldo Bagatsing, Jun

"Ninoy" Alba,Percy Lapid, Rommel Corro, and Rolando Fadul

filed a special civil action for mandamus with preliminary

injunction invoke theirright to information and pray that Belmonte

be directed: (a) to furnish Valmonte, et. al. the list of the names of

the BatasangPambansa membersbelonging to the UNIDO

and PDP Laban who were able to secure clean loans immediately

before the February7 election thru the intercession/marginal note

of the then First Lady Imelda Marcos; and/or (b) to furnish

petitioners with certifiedtrue copies of the documents evidencing

their respective loans; and/or (c) to allow petitioners access to the

public records for thesubject information.

Issue:Whether Valmonte, et. al. are entitled as citizens and

taxpayers to inquire upon GSIS records on behest loans given by

the formerFirst Lady Imelda Marcos toBatasang Pambansa

members belonging to the UNIDO and PDP-Laban politicalparties

Held:The GSIS is a trustee of contributions from the government

and its employees and the administrator of various insurance

programsfor the benefit of the latter. Undeniably, its funds assume

a public character. More particularly, Secs. 5(b) and 46of PD

1146, asamended (the Revised Government Service Insurance

Act of 1977),provide for annual appropriations to pay the

contributions,premiums, interest and other amounts payable to

GSIS by the government, as employer, as well as the obligations

which theRepublic of the Philippines assumes or guarantees to

pay. Considering the nature of its funds, the GSIS is expected to

manage itsresources with utmost prudence and in strict

compliance with the pertinent laws or rules and regulations. Thus,

one of the

reasonsthat prompted the revision of the old GSIS law(CA 186, as

amended) was the necessity "to preserve at all times the actuaria

lsolvency of the funds administered by the Systems [Second

Whereas Clause, PD1146.] Consequently, as Feliciano

Belmontehimself admits, the GSIS "is not supposed to grant

'clean loans.'" It is therefore the legitimate concern of the public to

ensure thatthese funds are managed properly with the end in

view of maximizing the benefits that accrue to the

insured governmentemployees. Moreover, the supposed

borrowers were Members of the defunct Batasang Pambansa

who themselves appropriatedfunds for the GSIS and were

therefore expected to be the first to see to it that the

GSIS performed its tasks with the greatest degreeof fidelity and

that all its transactions were above board. In sum, the public

nature of the loanable funds of the GSIS and the publicoffice held

by the alleged borrowers make the information sought clearly a

matter of public interest and concern. Still, Belmontemaintains

that a confidential relationship exists between the GSIS and its

borrowers. It is argued that a policy of confidentialityrestricts the

indiscriminate dissemination of information. Yet, Belmonte has

failed to cite any law granting the GSIS the privilegeof

confidentiality as regards the documents subject of the present

petition. His position is apparently based merely onconsiderations

of policy. The judiciary does not settle policy issues. The Court

can only declare what the law is, and not what thelaw should be.

Under our system of government, policy issues are within the

domain of the political branches of the government,and of the

people themselves as the repository of all State power

AKBAYAN vs. AQUINO

Facts:

Petitioners seek to obtain from respondents the full text of the

Japan-Philippines Economic Partnership Agreement (JPEPA)

including the Philippine and Japanese offers submitted during the

negotiation process and all pertinent attachments and annexes

thereto.The JPEPA, which will be the first bilateral free trade

agreement to be entered into by the Philippines with another

country in the event the Senate grants its consent to it, covers a

broad range of topics which includes trade in goods, rules of

origin, customs procedures, paperless trading, trade in services,

investment, intellectual property rights, government procurement,

movement of natural persons, cooperation, competition policy,

mutual recognition, dispute avoidance and settlement,

improvement of the business environment, and general and final

provisions.

Issues:

a. Whether or not the claim of the petitioners is covered by the

right to information.

b. Whether the executive privilege claimed by the respondents

applies only at certain stages of

the negotiation process.

c. Whether there is sufficient public interest to overcome the claim

of privilege.

d. Whether the Respondents‘ failed to claim executive privilege on

time.

Decision:

Supreme Court dismissed the petition, on the following reasons:

1.To be covered by the right to information, the information sought

must meet the threshold requirement that it be a matter of public

concern.In determining whether or not a particular information is

of public concern there is no rigid test which can be applied.

‗Public concern‘ like ‗public interest‘ is a term that eludes exact

definition. Both terms embrace a broad spectrum of subjects

which the public may want to know, either because these directly

affect their lives, or simply because such matters naturally arouse

the interest of an ordinary citizen. In the final analysis, it is for the

courts to determine on a case by case basis whether the matter at

issue is of interest or importance, as it relates to or affects the

public.

From the nature of the JPEPA as an international trade

agreement, it is evident that the Philippine and Japanese offers

submitted during the negotiations towards its execution are

matters of public concern. This, respondents do not dispute. They

only claim that diplomatic negotiations are covered by the doctrine

of executive privilege, thus constituting an exception to the right to

information and the policy of full public disclosure.

Thus, the Court holds that, in determining whether an information

is covered by the right to information, a specific ―showing of need‖

for such information is not a relevant consideration, but only

whether the same is a matter of public concern. When, however,

the government has claimed executive privilege, and it has

established that the information is indeed covered by the same,

then the party demanding it, if it is to overcome the privilege, must

show that that the information is vital, not simply for the

satisfaction of its curiosity, but for its ability to effectively and

reasonably participate in social, political, and economic decision-

making.

2.Supreme Court stated that the constitutional right to information

includes official information on on-going negotiations before a

final contract. The information, however, must constitute definite

propositions by the government and should not cover recognized

exceptions like privileged information, military and diplomatic

secrets and similar matters affecting national security and public

order.

3.The deliberative process privilege is a qualified privilege and

can be overcome by a sufficient showing of need. This need

determination is to be made flexibly on a case-by-case, ad hoc

basis. "[E]ach time [the deliberative process privilege] is asserted

the district court must undertake a fresh balancing of the

competing interests," taking into account factors such as "the

relevance of the evidence," "the availability of other evidence,"

"the seriousness of the litigation," "the role of the government,"

and the "possibility of future timidity by government employees.

In the case at hand, Petitioners have failed to present the strong

and ―sufficient showing of need‖. The arguments they proffer to

establish their entitlement to the subject documents fall short of

this standard stated in the decided cases.

There is no dispute that the information subject of this case is a

matter of public concern. The Court has earlier concluded that it is

a matter of public concern, not on the basis of any specific need

shown by petitioners, but from the very nature of the JPEPA as an

international trade agreement.

Further, the text of the JPEPA having been published, petitioners

have failed to convince this Court that they will not be able to

meaningfully exercise their right to participate in decision-making

unless the initial offers are also published.

4.When the respondents invoked the privilege for the first time

only in their Comment to the present petition does not mean that

the claim of privilege should not be credited.

Respondents‘ failure to claim the privilege during the House

Committee hearings may not, however, be construed as a waiver

thereof by the Executive branch. What respondents received from

the House Committee and petitioner-Congressman Aguja were

mere requests for information. The House Committee refrained

from pursuing its earlier resolution to issue a subpoena duces

tecum on account of then Speaker Jose de Venecia‘s alleged

request to Committee Chairperson Congressman Teves to hold

the same in abeyance.

While it is a salutary and noble practice for Congress to refrain

from issuing subpoenas to executive officials – out of respect for

their office – until resort to it becomes necessary, the fact remains

that such requests are not a compulsory process. Being mere

requests, they do not strictly call for an assertion of executive

privilege.

AKBAYAN vs. AQUINO

Facts:

· Petitioners, as non-government orgs, congresspersons,

citizens and taxpayers, filed a petition for mandamus and

prohibition seeking to compel respondents, Department of Trade

Industry (DTI) Undersecretary Thomas Aquino, et al., to furnish

petitioners the full text of the Japan-Philippines Economic

Partnership Agreement (JPEPA) including the Philippine and

Japanese offers submitted during the negotiation process and all

pertinent attachments and annexes thereto.

· The JPEPA, which will be the first bilateral free trade

agreement to be entered into by the Philippines with another

country in the event the Senate grants its consent to it, covers a

broad range of topics which includes trade in goods, rules of

origin, customs procedures, paperless trading, trade in services,

investment, intellectual property rights, government procurement,

movement of natural persons, cooperation, competition policy,

mutual recognition, dispute avoidance and settlement,

improvement of the business environment, and general and final

provisions.

· Petitioners emphasize that the refusal of the government to

disclose the said agreement violates their right to information on

matters of public concern and of public interest. That the non-

disclosure of the same documents undermines their right to

effective and reasonable participation in all levels of social,

political and economic decision making.

· Respondent herein invoke executive privilege. They relied

on the ground that the matter sought involves a diplomatic

negotiation then in progress, thus constituting an exception to the

right to information and the policy of full disclosure of matters that

are of public concern like the JPEPA - that diplomatic

negotiations are covered by the doctrine of executive privilege.

Substantive Issues:

1. Whether the claim of the petitioners is covered by the right to

information.

2. Are the documents and information being requested in relation

to the JPEPA exempted from the general rules on transparency

and full public disclosure such that the Philippine government is

justified in denying access thereto (whether they are covered by

the doctrine of executive privilege).

3. Whether the executive privilege claimed by the respondents

applies only at certain stages of the negotiation process.

4. Whether there is sufficient public interest to overcome the claim

of privilege.

5. Whether the Respondents‘ failed to claim executive privilege on

time.

1. YES. To be covered by the right to information, the information

sought must meet the threshold requirement that it be a matter of

public concern. In determining whether or not a particular

information is of public concern there is no rigid test which can be

applied. ‗Public concern‘ and ‗public interest‘ both embrace a

broad spectrum of subjects which the public may want to know,

either because these directly affect their lives, or simply because

such matters naturally arouse the interest of an ordinary citizen. In

the final analysis, it is for the courts to determine on a case by

case basis whether the matter at issue is of interest or

importance, as it relates to or affects the public.

From the nature of the JPEPA as an international trade

agreement, it is evident that the Philippine and Japanese

offers submitted during the negotiations towards its

execution are matters of public concern. This, respondents do

not dispute. They only claim that diplomatic negotiations are

covered by the doctrine of executive privilege, thus constituting an

exception to the right to information and the policy of full public

disclosure.

Thus, the Court holds that, in determining whether an

information is covered by the right to information, a specific

“showing of need” for such information is not a relevant

consideration, but only whether the same is a matter of

public concern. When, however, the government has claimed

executive privilege, and it has established that the information is

indeed covered by the same, then the party demanding it, if it is to

overcome the privilege, must show that that the information is

vital, not simply for the satisfaction of its curiosity, but for its ability

to effectively and reasonably participate in social, political, and

economic decision-making.

Ruling:substantive

2. YES. The Supreme Court Ruled that Diplomatic negotiations,

therefore, are recognized as privileged in this jurisdiction, the

JPEPA negotiations constituting no exception. It bears emphasis,

however, that such privilege is only presumptive. For as Senate v.

Ermita holds, recognizing a type of information as privileged does

not mean that it will be considered privileged in all instances. Only

after a consideration of the context in which the claim is made

may it be determined if there is a public interest that calls for the

disclosure of the desired information, strong enough to overcome

its traditionally privileged status.

The court adopted also the doctrine in PMPF v. Manglapus,

wherein petitioners were seeking information from the President‘s

representatives on the state of the then on-going negotiations of

the RP-US Military Bases Agreement.

The Court held that ―applying the principles adopted in PMPF v.

Manglapus, it is clear that while the final text of the JPEPA may

not be kept perpetually confidential – since there should be

‗ample opportunity for discussion before [a treaty] is approved‘ –

the offers exchanged by the parties during the negotiations

continue to be privileged even after the JPEPA is published. It is

reasonable to conclude that the Japenese representatives

submitted their offers with the understanding that ‗historic

confidentiality‘ would govern the same. Disclosing these offers

could impair the ability of the Philippines to deal not only with

Japan but with other foreign governments in future negotiations.‖

The Court also stressed that ―secrecy of negotiations with foreign

countries is not violative of the constitutional provisions of

freedom of speech or of the press nor of the freedom of access to

information.

It also reasoned out that opening for public scrutiny the Philippine

offers in treaty negotiations would discourage future Philippine

representatives from frankly expressing their views during

negotiations. The Highest Tribunal recognized that treaty

negotiations normally involve a process of quid pro quo, where

negotiators would willingly grant concessions in an area of lesser

importance in order to obtain more favorable terms in an area of

greater national interest.

The Court also addressed the dissent of Chief Justice Reynato S.

Puno by saying: ―We are aware that behind the dissent of the

Chief Justice lies a genuine zeal to protect our people’s right

to information against any abuse of executive privilege. It is a

zeal that We fully share. The Court, however, in its endeavour

to guard against the abuse of executive privilege, should be

careful not to veer towards the opposite extreme, to the point

that it would strike down as invalid even a legitimate exercise

thereof.‖

3. NO. Supreme Court stated that the constitutional right to

information includes official information on on-going negotiations

before a final contract. However,the information must

constitute definite propositions by the government and

should not cover recognized exceptions like privileged

information, military and diplomatic secrets and similar

matters affecting national security and public order.

4. NO. The deliberative process privilege is a qualified privilege

and can be overcome by a sufficient showing of need. This need

determination is to be made flexibly on a case-by-case, ad hoc

basis. ―[E]ach time [the deliberative process privilege] is asserted

the district court must undertake a fresh balancing of the

competing interests,‖ taking into account factors such as ―the

relevance of the evidence,‖ ―the availability of other evidence,‖

―the seriousness of the litigation,‖ ―the role of the government,‖

and the ―possibility of future timidity by government employees.

In the case at hand, Petitioners have failed to present the

strong and “sufficient showing of need”. The arguments they

proffer to establish their entitlement to the subject

documents fall short of this standard stated in the decided

cases.

There is no dispute that the information subject of this case is a

matter of public concern. The Court has earlier concluded that it is

a matter of public concern, not on the basis of any specific need

shown by petitioners, but from the very nature of the JPEPA as an

international trade agreement.

Further, the text of the JPEPA having been published,

petitioners have failed to convince this Court that they will

not be able to meaningfully exercise their right to participate

in decision-making unless the initial offers are also

published.

5. NO. When the respondents invoked the privilege for the first

time only in their Comment to the present petition does not mean

that the claim of privilege should not be credited.

Respondents’ failure to claim the privilege during the House

Committee hearings may not, however, be construed as a

waiver thereof by the Executive branch. What respondents

received from the House Committee and petitioner-Congressman

Aguja were mere requests for information. The House

Committee refrained from pursuing its earlier resolution to issue a

subpoena duces tecum on account of then Speaker Jose de

Venecia‘s alleged request to Committee Chairperson

Congressman Teves to hold the same in abeyance.

While it is a salutary and noble practice for Congress to

refrain from issuing subpoenas to executive officials – out of

respect for their office – until resort to it becomes necessary,

the fact remains that such requests are not a compulsory

process. Being mere requests, they do not strictly call for an

assertion of executive privilege

SECTION 8

UNITED PEPSI-COLA VS. LAGUESMA

FACTS: Petitioner is a union of supervisory employees. It appears

that on March 20, 1995 the union filed a petition for certification

election on behalf of the route managers at Pepsi-Cola Products

Philippines, Inc. However, its petition was denied by the med-

arbiter and, on appeal, by the Secretary of Labor and

Employment, on the ground that the route managers are

managerial employees and, therefore, ineligible for union

membership under the first sentence of Art. 245 of the Labor

Code, which provides:

Ineligibility of managerial employees to join any labor

organization; right of supervisory employees. — Managerial

employees are not eligible to join, assist or form any labor

organization. Supervisory employees shall not be eligible for

membership in a labor organization of the rank-and-file

employees but may join, assist or form separate labor

organizations of their own.

Petitioner brought this suit challenging the validity of the order,

dismissed.

Hence, this petition. Pressing for resolution its contention that the

first sentence of Art. 245 of the Labor Code, so far as it declares

managerial employees to be ineligible to form, assist or join

unions, contravenes Art. III, §8 of the Constitution which provides:

The right of the people, including those employed in the public

and private sectors, to form unions, associations, or societies for

purposes not contrary to law shall not be abridged.

ISSUES:

(1) whether the route managers at Pepsi-Cola Products

Philippines, Inc. are managerial employees and

(2) whether Art. 245, insofar as it prohibits managerial employees

from forming, joining or assisting labor unions, violates Art. III, §8

of the Constitution.

HELD: YES and NO

As a class, managers constitute three levels of a pyramid: (1) Top

management; (2) Middle Management; and (3) First-line

Management [also called supervisors].

FIRST-LINE MANAGERS — The lowest level in an organization

at which individuals are responsible for the work of others is

called first-line or first-level management. First-line managers

direct operating employees only; they do not supervise other

managers. Examples of first-line managers are the ―foreman‖ or

production supervisor in a manufacturing plant, the technical

supervisor in a research department, and the clerical supervisor in

a large office. First-level managers are often called supervisors.

MIDDLE MANAGERS — The term middle management can refer

to more than one level in an organization. Middle managers direct

the activities of other managers and sometimes also those of

operating employees. Middle managers‘ principal responsibilities

are to direct the activities that implement their organizations‘

policies and to balance the demands of their superiors with the

capacities of their subordinates. A plant manager in an electronics

firm is an example of a middle manager.

TOP MANAGERS — Composed of a comparatively small group

of executives, top management is responsible for the overall

management of the organization. It establishes operating policies

and guides the organization‘s interactions with its environment.

Typical titles of top managers are ―chief executive officer,‖

―president,‖ and ―senior vice-president.‖ Actual titles vary from one

organization to another and are not always a reliable guide to

membership in the highest management classification.

A distinction exists between those who have the authority to

devise, implement and control strategic and operational policies

(top and middle managers) and those whose task is simply to

ensure that such policies are carried out by the rank-and-file

employees of an organization (first-level managers/supervisors).

What distinguishes them from the rank-and-file employees is that

they act in the interest of the employer in supervising such rank-

and-file employees.

―Managerial employees‖ may therefore be said to fall into two

distinct categories: the ―managers‖ per se, who compose the

former group described above, and the ―supervisors‖ who form

the latter group.

#1: It appears that this question was the subject of two previous

determinations by the Secretary of Labor and Employment, in

accordance with which this case was decided by the med-arbiter.

To qualify as managerial employee, there must be a clear

showing of the exercise of managerial attributes under paragraph

(m), Article 212 of the Labor Code as amended. Designations or

titles of positions are not controlling. As to the route managers

and accounting manager, we are convinced that they are

managerial employees. Their job descriptions clearly reveal so

(Worker‘s Alliance Trade Union (WATU) v. Pepsi-Cola Products

Philippines, Inc., Nov. 13, 1991)

This finding was reiterated in Case No. OS-A-3-71-92. entitled In

Re: Petition for Direct Certification and/or Certification Election-

Route Managers/Supervisory Employees of Pepsi-Cola Products

Phils.Inc.

* doctrine of res judicata certainly applies to adversary

administrative proceedings

Thus, we have in this case an expert‘s view that the employees

concerned are managerial employees within the purview of Art.

212.

At the very least, the principle of finality of administrative

determination compels respect for the finding of the Secretary of

Labor that route managers are managerial employees as defined

by law in the absence of anything to show that such determination

is without substantial evidence to support it.

The Court now finds that the job evaluation made by the

Secretary of Labor is indeed supported by substantial evidence.

The nature of the job of route managers is given in a four-page

pamphlet, prepared by the company, called ―Route Manager

Position Description,‖ the pertinent parts of which read:

A. BASIC PURPOSE

A Manager achieves objectives through others.

As a Route Manager, your purpose is to meet the sales plan; and

you achieve this objective through the skillful MANAGEMENT OF

YOUR JOB AND THE MANAGEMENT OF YOUR PEOPLE.

These then are your functions as Pepsi-Cola Route Manager.

Within these functions — managing your job and managing your

people — you are accountable to your District Manager for the

execution and completion of various tasks and activities which will

make it possible for you to achieve your sales objectives.

Xxxx

Distinction is evident in the work of the route managers which sets

them apart from supervisors in general. Unlike supervisors who

basically merely direct operating employees in line with set tasks

assigned to them, route managers are responsible for the

success of the company‘s main line of business through

management of their respective sales teams. Such management

necessarily involves the planning, direction, operation and

evaluation of their individual teams and areas which the work of

supervisors does not entail.

The route managers cannot thus possibly be classified as mere

supervisors because their work does not only involve, but goes far

beyond, the simple direction or supervision of operating

employees to accomplish objectives set by those above them.

While route managers do not appear to have the power to hire

and fire people (the evidence shows that they only

―recommended‖ or ―endorsed‖ the taking of disciplinary action

against certain employees), this is because thisis a function of the

Human Resources or Personnel Department of the company.

# 2: Constitutionality of Art. 245

Art.245 is the result of the amendment of the Labor Code in 1989

by R.A. No. 6715, otherwise known as the Herrera-Veloso Law.

Unlike the Industrial Peace Act or the provisions of the Labor

Code which it superseded, R.A. No. 6715 provides separate

definitions of the terms ―managerial‖ and ―supervisory

employees,‖ as follows:

Art. 212. Definitions. . . .

(m) ―managerial employee‖ is one who is vested with powers or

prerogatives to lay down and execute management policies

and/or to hire transfer, suspend, lay off, recall, discharge, assign

or discipline employees. Supervisory employees are those who, in

the interest of the employer, effectively recommend such

managerial actions if the exercise of such authority is not merely

routinary or clerical in nature but requires the use of independent

judgment. All employees not falling within any of the above

definitions are considered rank-and-file employees for purposes

of this Book.

The distinction between top and middle managers, who set

management policy, and front-line supervisors, who are merely

responsible for ensuring that such policies are carried out by the

rank and file, is articulated in the present definition. 30 When read

in relation to this definition in Art. 212(m), it will be seen that Art.

245 faithfully carries out the intent of the Constitutional

Commission in framing Art. III, §8 of the fundamental law.

*Framer‘s Intent: MR. LERUM. My amendment is on Section 7,

page 2, line 19, which is to insert between the words ―people‖ and

―to‖ the following: WHETHER EMPLOYED BY THE STATE OR

PRIVATE ESTABLISHMENTS. In other words, the section will

now read as follows: ―The right of the people WHETHER

EMPLOYED BY THE STATE OR PRIVATE ESTABLISHMENTS

to form associations, unions, or societies for purposes not

contrary to law shall not be abridged.‖

Nor is the guarantee of organizational right in Art. III, §8 infringed

by a ban against managerial employees forming a union. The

right guaranteed in Art. III, §8 is subject to the condition that its

exercise should be for purposes ―not contrary to law.‖ In the case

of Art. 245, there is a rational basis for prohibiting managerial

employees from forming or joining labor organizations.

PETITION is DISMISSED

SECTION 9

Visayan Refining v. Camus, G.R. No. L-15870

FACTS: Upon the direction of the Governor-General, the

Attorney-General filed a complaint with the CFI (Rizal) in the

name of the Government of the Philippines for the condemnation

of a certain tract of land in Paranaque for military and aviation

purposes. The petitioners herein are among the defendants

named. Likewise, it was prayed that the court will give the

Government the possession of the land to be expropriated after

the necessary deposit (provisional) of P600, 000.00 as the total

value of the property. Through the order of the public respondent,

Judge Camus, the prayer was granted.

During the pendency of the proceedings, the petitioners raised a

demurrer questioning the validity of the proceedings on the

ground that there is no law authorizing the exercise of the power

of eminent domain. Likewise, they moved for the revocation of the

order on the same ground stated and with additional allegation

that the deposit had been made without authority of law since the

money was taken from the unexpended balance of the funds

appropriated by previous statutes for the use of the Militia

Commission and the authority for the exercise of the power of

eminent domain could not be found in those statutes. The

demurrer and motion were overruled and denied respectively by

Camus. This prompted the petitioners to file this instant petition to

stop the proceedings in the CFI.

ISSUE: Can the Philippine Government initiate expropriation

proceedings in the absence of a statute authorizing the exercise

of the power of eminent domain?

RULING: Yes, it can. The Philippine Government has the general

authority to exercise the power of eminent domain as expressly

conferred by Section 63 of the Philippine Bill (Act of Congress of

July 1, 1902). It says that the Philippine Government is authorized

"to acquire, receive, hold, maintain, and convey title to real and

personal property, and may acquire real estate for public uses by

the exercise of the right to eminent domain." The same is subject

to the limitation of due process of law. In consonance with this,

Section 64 of the Administrative Code of the Philippine Islands

(Act No. 2711) expressly confers on the Government General the

power "to determine when it is necessary or advantageous to

exercise the right of eminent domain in behalf of the Government

of the Philippine Island; and to direct the Attorney-General, where

such at is deemed advisable, to cause the condemnation

proceedings to be begun in the court having proper jurisdiction."

There is no question as to the Governor General's authority to

exercise this power.

However, this authority is not absolute. It is subject to two

limitations, namely, that the taking shall be for public purpose and

there must be just compensation.

Apparently, the reason behind the taking of the subject land was

for military and aviation purposes. This considered a public

purpose given the importance of the military and aviation in the

operation of the State.

As to the second requirement, it must be remembered that at that

time there was no law requiring that compensation shall actually

be paid prior to the judgment of condemnation. The deposit was

made, despite the absence of said law, to afford absolute

assurance that no piece of land can be finally and irrevocably

taken from an unwilling owner until compensation is paid. This is

in conformity with the just compensation requirement.

Given these reasons, the proceedings were made in accordance

with law.

DISPOSITION

Petition is denied. Proceedings of the lower court were in all

respects regular and within the jurisdiction of the court.

NOTE

The Supreme Court did not elaborate the reason in upholding the

legality of the transfer funds used for the deposit. It only said that

"the Insular Auditor was acting within his authority when he let this

money out of the Insular Treasury

THE CITY OF MANILA,vs. CHINESE COMMUNITY OF

MANILA, ET AL.,

FACTS: The important question presented by this appeal is: In

expropriation proceedings by thecity of Manila, may the courts

inquire into, and hear proof upon, the necessity of

theexpropriation?The City of Manila presented a petition in the

Court of First Instance of said city, prayingthat certain lands,

therein particularly described, be expropriated for the purpose of

constructinga public improvement. The petitioner alleged that for

the purpose of constructing an extension of Rizal Avenue, Manila,

it is necessary for the plaintiff to acquire ownership

of certain parcels of land situated in the district of Binondo.

The defendants – the Chinese Community of Manila,Ildefonso

Tambunting, and Feliza Concepcion de Delgado – alleged in their

Answer

(a) that nonecessity existed for said expropriation and

(b) that the land in question was a cemetery, whichhad been used

as such for many years, and was covered with sepulchres and

monuments, andthat the same should not be converted into a

street for public purposes. One of the defendants,Ildefonso

Tampbunting, offered to grant aright of way for the said extension

over other land,without cost to the plaintiff, in order that

the sepulchers, chapels and graves of his ancestors maynot be

disturbed.The Honorable Simplicio del Rosario, decided that there

was no necessity for theexpropriation of the particular strip of land

in question, and absolved each and all of thedefendants from all

liability under the complaint, without any finding as to costs. On

appeal, the plaintiff contended that the city of Manila has authority

to expropriate private lands for public purposes. Section 2429 of

Act No. 2711 (Charter of the city of Manila) provides that "the

city(Manila) . . . may condemn private property for public use

ISSUE: Whether or not the City of Manila can condemn private

property for public use

HELD No. It is true that Section 2429 of Act No. 2711, or

the Charter of the City of Manilastates that "the city (Manila) . . .

may condemn Private property for public use." But when

thestatute does not designate the property to be taken nor how it

may be taken, the necessity of taking particular property is a

question for the courts. When the application to condemn

or appropriate property is made directly to the court, the question

of necessity should be raised(Wheeling, etc. R. R. Co. vs. Toledo,

Ry, etc., Co.[72 Ohio St., 368]).The necessity for conferring the

authority upon a municipal corporation to exercise the right of

eminent domain isadmittedly within the power of the legislature.

But whether or not the municipal corporation or entity is exercising

the right in a particular case under the conditions imposed by the

generalauthority, is a question which the courts have the right to

inquire into.The impossibility of measuring the damage and

inadequacy of a remedy at law is tooapparent to admit of

argument. To disturb the mortal remains of those endeared to us

in lifesometimes becomes the sad duty of the living; but, except in

cases of necessity , or for laudable purposes, the sanctity of the

grave, the last resting place of our friends, should be

maintained,and the preventative aid of the courts should be

invoked for that object

Whether or not the cemetery is public or private property, its

appropriation for the uses of a public street, especially during the

lifetime of those specially interested in its maintenance as

acemetery, should be a question of great concern, and its

appropriation should not be made for such purposes until it is fully

established that the greatest necessity exists therefor. In the

presentcase, even granting that a necessity exists for the opening

of the street in question, the recordcontains no proof of the

necessity of opening the same through the cemetery. The record

showsthat adjoining and adjacent lands have been offered by

Tambunting to the city free of charge,which will answer every

purpose of the plaintiff.The judgment of the lower court was

affirmed.

RATIO/DOCTRINE[1] The taking of private property for any use,

which is not required by the necessities or convenience of the

inhabitants of the state, is an unreasonable exercise of the right of

eminentdomain, and beyond the power of the legislature to

delegate

To justify the exercise of this extreme power (eminent domain)

where thelegislature has left it to depend upon the necessity that

may be found to exist, in order toaccomplish the purpose of the

incorporation, … the party claiming the right to the exercise of the

power should be required to show at least a reasonable degree of

necessity for its exercise

The general power to exercise the right of eminent domain must

not be confused withthe right to exercise it in aparticular caseThe

power of the legislature to confer, uponmunicipal corporations and

other entities within the State, general authority to exercise the

rightof eminent domain cannot be questioned by the courts, but

that general authority of municipalities or entities must not be

confused with the right to exercise it in particular instances.The

moment the municipal corporation or entity attempts to exercise

the authority conferred, itmust comply with the conditions

accompanying the authority.[3] The right of expropriation is not an

inherent power in a municipal corporation, and before it can

exercise the right some law must exist conferring the power upon

it. When thecourts come to determine the question, they must

only find

(a) that a law or authority exists for the exercise of the right of

eminent domain, but

(b) also that the right or authority is being exercised in accordance

with the law. In the present case there are two conditions imposed

uponthe authority conceded to the City of Manila:

First the land must be private; and, second , the purpose must be

public. If the court, upon trial , finds that neither of these

conditions exists or that either one of them fails, certainly it cannot

be contended that the right is being exercised inaccordance with

law.[4] The exercise of the right of eminent domain, whether

directly by the State, or by itsauthorized agents, is necessarily in

derogation of private rights, and the rule in that case is thatthe

authority must be strictly construed. No species of property is held

by individuals withgreater tenacity, and none is guarded by the

constitution and laws more sedulously, than the rightto the

freehold of inhabitants. When the legislature interferes with that

right, and, for greater public purposes, appropriates the land of

an individual without his consent, the plain meaning of the law

should not be enlarged by doubtly interpretation.

Republic vs. de Knecht [GR 87335, 12 February 1990]

First Division, Gancayco (J): 3 concur

Facts: On 20 February 1979 the Republic of the Philippines filed

in the Court of First Instance (CFI) of Rizal in Pasay City an

expropriation proceedings against the owners of the houses

standing along Fernando ReinDel Pan streets among them

Cristina De Knecht together with Concepcion Cabarrus, and some

15 other defendants (Civil Case 7001-P). On 19 March 1979, de

Knecht filed a motion to dismiss alleging lack of jurisdiction,

pendency of appeal with the President of the Philippines,

prematureness of complaint and arbitrary and erroneous

valuation of the properties. On 29 March 1979 de Knecht filed an

ex parte urgent motion for the issuance by the trial court of a

restraining order to restrain the Republic from proceeding with the

taking of immediate possession and control of the property sought

to be condemned. In June 1979, the Republic filed a motion for

the issuance of a writ of possession of the property to be

expropriated on the ground that it had made the required deposit

with the Philippine National Bank (PNB) of 10% of the amount of

compensation stated in the complaint. In an order dated 14 June

1979 the lower court issued a writ of possession authorizing the

Republic to enter into and take possession of the properties

sought to be condemned, and created a Committee of three to

determine the just compensation for the lands involved in the

proceedings. On 16 July 1979, de Knecht filed with this Court a

petition for certiorari and prohibition (GR No. L-51078) and

directed against the order of the lower court dated 14 June 1979

praying that the Republic be commanded to desist from further

proceeding in the expropriation action and from implementing said

order. On 30 October 1980, the Supreme Court rendered a

decision, granting the petition for certiorari and prohibition and

setting aside the 14 June 1979 order of the Judge Bautista On 8

August 1981, Maria Del Carmen Roxas Vda. de Elizalde,

Francisco Elizalde and Antonio Roxas moved to dismiss the

expropriation action in compliance with the dispositive portion of

the aforesaid decision of the Supreme Court which had become

final and in order to avoid further damage to latter who were

denied possession of their properties. The Republic filed a

manifestation on 7 September 1981 stating, among others, that it

had no objection to the said motion to dismiss as it was in

accordance with the aforestated decision. However, on 2

September 1983, the Republic filed a motion to dismiss said case

due to the enactment of the Batas Pambansa 340 expropriating

the same properties and for the same purpose. The lower court in

an order of 2 September 1983 dismissed the case by reason

of the enactment of the said law. The motion for reconsideration

thereof was denied in the order of the lower court dated 18

December 1986. De Knecht appealed from said order to the Court

of Appeals wherein in due course a decision was rendered on 28

December 1988, setting aside the order appealed from and

dismissing the expropriation proceedings. The Republic filed the

petition for review with the Supreme Court.

Issue: Whether an expropriation proceeding that was determined

by a final judgment of the Supreme Court may be the subject of a

subsequent legislation for expropriation.

Held: While it is true that said final judgment of the Supreme

Court on the subject becomes the law of the case between the

parties, it is equally true that the right of the Republic to take

private properties for public use upon the payment of the just

compensation is so provided in the Constitution and our laws.

Such expropriation proceedings may be undertaken by the

Republic not only by voluntary negotiation with the land owners

but also by taking appropriate court action or by legislation. When

on 17 February 1983 the Batasang Pambansa passed BP 340

expropriating the very properties subject of the present

proceedings, and for the same purpose, it appears that it was

based on supervening events that occurred after the decision of

the Supreme Court was rendered in De Knecht in 1980 justifying

the expropriation through the Fernando ReinDel Pan Streets. The

social impact factor which persuaded the Court to consider this

extension to be arbitrary had disappeared. All residents in the

area have been relocated and duly compensated. 80% of the

EDSA outfall and 30% of the EDSA extension had been

completed. Only De Knecht remains as the solitary obstacle to

this project that will solve not only the drainage and flood control

problem but also minimize the traffic bottleneck in the area.

Moreover, the decision, is no obstacle to the legislative arm of the

Government in thereafter making its own independent

assessment of the circumstances then prevailing as to the

propriety of undertaking the expropriation of the properties in

question and thereafter by enacting the corresponding legislation

as it did in this case. The Court agrees in the wisdom and

necessity of enacting BP 340. Thus the anterior decision of this

Court must yield to this subsequent legislative fiat.

City of Baguio vs. National Waterworks and Sewerage

Authority [GR L-12032, 31 August 1959]

Facts:

The City of Baguio filed on 25 April 1956, in the Court of

First Instance of Baguio, a complaint for declaratory relief against

the National Waterworks and Sewerage Authority (NAWASA), a

public corporationcreated by Republic Act 1383, contending that

said Act does not include within its purview the

BaguioWaterworks System; that assuming that it does, said Act is

unconstitutional because it has the effect of depriving the City of

the ownership, control and operation of said waterworks system

without compensation andwithout due process of law, and that it

is oppressive, unreasonable and unjust to plaintiff and other

cities,municipalities and municipal districts similarly situated. On

22 May 1956, NAWASA filed a motion to dismiss.On 21 June

1956, the Court, acting on the motion to dismiss as well as on the

answer and rejoinder filed by both parties, denied the motion and

ordered NAWASA to file its answer to the complaint. On 6 July

1956, NAWASA filed its answer reiterating and amplifying the

grounds already advanced in its motion to dismiss. On14 August

1956, the parties submitted a written stipulation of facts and filed

written memoranda. And after allowing the City to file a

supplementary complaint, the Court on 5 November 1956,

rendered decision holdingthat the waterworks system of the City

of Baguio falls within the category of ³private property,´

ascontemplated by our Constitution and may not be expropriated

without just compensation. NAWASA filed amotion for

reconsideration, and upon its denial, it took the present appeal.

Issue:

Whether the Baguio Waterworks partakes of the nature of public

property or private/patrimonial propertyof the City.

Held:

The Baguio Waterworks System is not like any public road, park,

street or other public property held intrust by a municipal

corporation for the benefit of the public but it is rather a property

owned by the City in its proprietary character. While the cases

may differ as to the public or private character of waterworks, the

weightof authority as far as the legislature is concerned classes

them as private affairs. (sec. 239, Vol. I, Revised,McQuillin

Municipal Corporations, p. 239; Shrik vs. City of Lancaster, 313

Pa. 158, 169 Atl. 557). And in this jurisdiction, this Court has

already expressed the view that a waterworks system is

patrimonial property of thecity that has established it. (Mendoza

vs. De Leon, 33 Phil. 509). And being owned by a municipal

corporationin a proprietary character, waterworks cannot be taken

away without observing the safeguards set by our Constitution for

the protection of private property. The State may, in the interest of

National welfare, transfer to public ownership any private

enterprise upon payment of just compensation. At the same time,

one has to bear in mind that no person can be deprived of his

property except for public use and upon payment of

justcompensation. Unless the City is given its due compensation,

the City cannot be deprived of its property even if NAWASA

desires to take over its administration in line with the spirit of the

law (Republic Act 1383). The law,insofar as it expropriates the

waterworks in question without providing for an effective payment

of justcompensation, violates our Constitution.

CITY OF BAGUIO V. NAWASA

Facts:

Plaintiff a municipal corporation filed a complaint against

defendant a public corporation, created under Act.1383.It

contends that the said act does not include within its purview the

Baguio Water Works system, assuming that itdoes, is

unconstitutional because it deprives the plaintiff ownership,

control and operation of said water workswithout just

compensation and due process of law. The defendant filed a

motion to dismiss ion the ground that itis not a proper exercise of

police power and eminent domain. The court denied the motion

and ordered thedefendants to file an answer. The court holds that

the water works system of Baguio belongs to private propertyand

cannot be expropriated without just compensation. Sec. 8 of

R.A.1383 provides for the exchange of theNAWASA assets for

the value of the water works system of Baguio is unconstitutional

for this is not justcompensation. Defendants motion for

reconsideration was denied hence this appeal.

Issue:

Whether or Not there is a valid exercise of police power of

eminent domain.

Held:

R.A. 1383 does not constitute a valid exercise of police power.

The act does not confiscate, destroy orappropriate property

belonging to a municipal corporation. It merely directs that all

water works belonging to cities,municipalities and municipal

districts in the Philippines to be transferred to the NAWASA. The

purpose is placingthem under the control and supervision of an

agency with a view to promoting their efficient management, but

inso doing does not confiscate them because it directs that they

be paid with equal value of the assets of NAWASA.The Baguio

water works system is not like a public road, the park, street other

public property held in trust by amunicipal corporation for the

benefit of the public. But it is a property of a municipal

corporation, water workscannot be taken away except for public

use and upon payment of just compensation. Judgment affirmed

THE CITY OF MANILA, plaintiff-appellant, vs. BALBINA

ESTRADA Y SARMIENTO, minor and only heiress of Concepcion

Sarmiento, deceased, and ARISTON ESTRADA, personally, and

as administrator, defendants-appellants.

After a careful examination of the entire record in this case and

the law applicable to the questions raised therein, we are of the

opinion that P10 per square meter is a just compensation for the

land taken. Without prejudice to filing a more extended opinion in

which our reasons will be set forth in full, judgment will be entered

accordingly, without costs. So ordered.

A short opinion was handed down in this case on February 18,

1913, and in accordance with the reservation made therein, the

court now proceeds to write an extended opinion setting forth the

reasons for its judgment in the case.

The city of Manila sought to expropriate an entire parcel of land

with its improvements for use in connection with a new market at

that time being erected in the district of Paco. A complaint was

filed setting forth the necessary allegations, answer joined, and

commissioners were appointed, who, after viewing the premises

and receiving evidence, and being unable to agree, submitted two

reports to the court. The court duly rendered its decision,

confirming the majority report as to the improvements, but

reducing the price of the land from P20 per square meter, as fixed

by the majority report, to P15 per square meter. Motions for a new

trial having been made by both parties and denied by the court,

both parties appealed from that part of the decision fixing the

value of the land at P15 per square meter. The record was

therefore elevated to this court for a review of the evidence and

assigned errors of the parties. This court held that P10 per square

meter was just compensation for the land, and rendered its

decision accordingly.

The court justifies such action, first, upon the ground that the

great preponderance of the evidence submitted to the

commissioners showed that P10 per square meter was just

compensation for the land taken, and, second, upon the power of

the court to revise the report of the commissioners when the

amount awarded is grossly inadequate or grossly excessive.

A brief resume of the evidence in regard to the value of the land

will first be made. The land was bounded by Calle Herran, the

Paco Estero, the market site, and Calle Looban.

The several sessions of the commissioners at which evidence

was heard took place between September 19 and October 3,

1911.

George C. Sellner, a real estate agent, testified that he was

familiar with real estate values in the city of Manila. He stated that

the land in question, fronting as it did on Calles Herran and

Looban and the Paco Estero, was worth 60 per cent more than

other land near by, and placed its value at P10 per square meter.

He stated that he had carried on negotiations with regard to a

parcel of land situated on the opposite side of the estero and

fronting Herran; that he was offering this land for sale at P5.50 per

square meter, but that the owner succeeded in obtaining P6 per

square meter, and that the sale had been consummated only

about thirty days prior to the date of the hearing. The witness

stated that this land was of about the same elevation as the

parcel sought to be expropriated, but that it had no improvements,

being used for the storage of coal.

Enrique Brias, another real estate man, testified that P10 was a

good price for the land. He stated that he was the owner of the

land on the opposite side of the estero which had been sold for

P6 per square meter about one month prior to the hearing, but

that this land was not in such a good commercial location.

Mr. Powell, of the Internal Revenue Bureau, testified that the

Estrada land was appraised for taxation at P6 per square meter;

that prior to 1911 it had been appraised at about P4 per square

meter.

The president of the Municipal Board of the city of Manila testified

that a parcel of land on the opposite side of Calle Herran but on

the same side of the Paco Estero, owned by one Clarke, had

been expropriated by the city in 1908. He stated that

commissioners were appointed who duly rendered their report to

the court, but as it was accepted by both parties, no further

litigation was necessary. In this case it seems that the land

desired by the city was part of a parcel fronting on Calle Herran,

whose other boundaries were the Paco Estero, some private

property, and a small callejon. The portion desired by the city

compromised the entire Herran frontage of the owner. The

commissioners appraised the total area, consisting of 1,399.03

square meters at P6.50 per square meter. The city desired only

353.21 square meters facing on Calle Herran, and the

commissioners therefore found consequential damages to the

remained, due to depriving it of its Herran frontage, to be P4.50

per square meter. These consequential damages were included

in the price paid by the city for the land taken, making the

apparent price of the 353.21 square meters P7,002.05, or P19.85

per square meter.

To the same effect was the testimony of Judge Camus of the

municipal court, who at the time of the Clarke transaction was city

attorney

Ariston Estrada, one of the defendants, testified as follows:

As to the market value of the land (the subject of the present

case), whatever may be its price on the market, in my opinion, by

comparing previous sales of land in the same or similar conditions

and circumstances, and having in mind the only sale which has

been made in twenty years of land equally or similarly situated to

this, I believe that it is all that can serve as a standard to ascertain

the value in the market of the land in question.

xxx xxx xxx

With reference to the land, I believe I am as well as informed as

the witnesses for the plaintiff who have testified, and I estimate

that the land in question should be worth on the market at this

time P25 per square meter for the reason that about P19.85 per

square was paid for Mr. Clarke's land and this was three years

ago; and, on the one hand, property values have increased in the

last three years, and, on other hand, with the opening of the

market, property values along Calles Herran and Looban have

increased.

From the record it appears that the improvements on the land

consisted of a camarin in fairly good condition, appraised at

P4,500; a dwelling house in very bad condition, appraised at

P1,500; the former being occupied by tenants and the latter by

the defendants Estrada and his family. The remaining

improvements consisted of a stone wall surrounding the lot,

appraised at P1,020, and some trees, appraised at P150.

The majority report of the committee, fixing the value of the land

at P20 per square meter, states:

And lastly, with respect to the value of the land, the evidence is

very contradictory. While the evidence of the plaintiff tends to

show that the value of the land does not exceed P10 per square

meter, that of the defendants, on the contrary, maintains that the

value of the land is more than P19.85 per square meter, and it is

contended by the defendants that the true market value of the

land in question is P25 per square meter.

The lower court, in arriving at its decision to reduce the price of

the land to P15, discussed the Clarke transaction at some length

and concluded as follows:

The court therefore understands that the price which the plaintiff

accepted three years ago for a piece of land less suited for

commercial purposes than that in question, without proof that

since then the price of land in the place where the tract here

considered is situated has fallen, ought to serve as criterion for

fixing the value of the land that is the subject matter of the present

expropriation.

xxx xxx xxx

So, the court holds it just and equitable to take as a compromise

between the two conflicting majority and minority opinions of the

three commissioners the average of the two prices they have

fixed per square meter for the land in question, P20 and P10,

respectively, fixing upon P15 per square meter.

From this review of the evidence it appears that two disinterested

witnesses for the plaintiff corporation testified that the land was

worth P10 per square meter, their statements being based upon

the prices obtained for land in the open market in the vicinity. The

defendant Estrada testified that it was worth P25 per square

meter, basing his statement on the price obtained three years

previously by the owner of the parcel on the opposite side of Calle

Herran of P19.85 per square meter. It also clearly appears that

the price fixed in the majority report of the commissioners was

based principally upon this same transaction, and that the

compromise price fixed by the court was based upon the

evidence of this sale and the testimony of the two witnesses for

the plaintiff who fixed the price of P10 per square meter.

Attorney for the plaintiff corporation objected to the introduction of

all evidence with reference to the Clarke transaction, and so much

depending upon it, it is proper to inquire as to its competency and

relevancy.

The general rule that the market value of the land taken is the just

compensation to which the owner of condemned property is

entitled under the law meets with our unqualified approval. Such

was our holding in Manila R. Co. vs. Fabie (17 Phil. Rep., 206).

But as stated in Packard vs. Bergen Neck Ry. Co. (54 N. J. L.,

553; 25 A., 506):

The difficulty is not with the rule, but with its application. For the

determination of the market value of land, which is that sum of

money which a person, desirous but not compelled to buy and an

owner willing but not compelled to sell, would agree on as a price

to be given and received therefore, is beyond doubt difficult. The

test is logically and legally correct, but it cannot be applied to land

with the accuracy with which it can be applied to stocks, bonds,

and personal property generally. Still, it is this test which

admittedly must be applied, even when the value of the land and

the damges are found in separate sums.

It is a very difficult matter to limit the scope of the inquiry as to

what the market value of condemned property is. The market

value of a piece of land is attained by a consideration of all those

facts which make it commercial valuable. Whether evidence

considered by those whose duty it is to appraise the land is of that

nature is often a very difficult matter to decide. The Supreme

Court of the United States, in a carefully worded statement, marks

out the scope of the inquiry as follows:

In determining the value of land appropriated for public purposes,

the same considerations are to be regarded as in a sale of

property between private parties. The inquiry in such cases must

be what is the property worth in the market, viewed not merely

with reference to the uses to which it is at that time applied, but

with reference to the uses to which it is plainly adapted; that is to

say, what is it worth from its availability for valuable uses? . . . As

a general thing, we should say that the compensation to the

owner is to be estimated by reference to the uses for which the

property is suitable, having regard to the existing business or

wants of the community, or such as may be reasonably expected

in the immediate future. (98 U.S. 403; 25 L. ed., 206.)

This passage is quoted with approval in the late case of St. Louis

I. M. & S. R. Co. vs. Theodore Maxfield Co. (94 Ark., 135; 26

L.R.A. (N. S.), 111; 126 S. W., 83) — a very well considered case.

The supreme court of Missouri has also formulated an

exceedingly clear statement of the matter in the Stock Yards case

(120 Mo., 541):

The market value of the property means its actual value,

independent of the location of plaintiff's road thereon, that is, the

fair value of the property as between one who wants to purchase

and one who wants to sell it; not what could be obtained for it in

peculiar circumstances when greater than its fair price could be

obtained; not its speculative value; not the value obtained through

the necessities of another. Nor, on the other hand, is it to be

limited to that price which the property would bring when forced

off at auction under the hammer. The question is, if the defendant

wanted to sell its property, what could be obtained for it upon the

market from the parties who wanted to buy and would give its full

value. (Approved in Met. Street Ry. Co. vs. Walsh, 197 Mo., 392,

418; 94 S. W., 860.)

These views are practically in accord with Lewis on Eminent

Domain (2d ed.), paragraph 478, who state the rule as follows:

The market value of property is the price which it will bring when it

is offered for sale by one who desires, but is not obliged to sell it,

and is brought by one who is under no necessity of having it. In

estimating its value all the capabilities of the property, and all the

uses to which it may be applied or for which it is adapted, are to

be considered, and not merely the condition is it an at the time

and the use to which it is then applied by the owner. It is not a

question of the value of the property to the owner. Nor can the

damages be enhanced by his unwillingness to sell. On the other

hand, the damages cannot be measured by the value of the

property to the party condemning it, nor by its need of the

particular property. All the facts as to the condition of the property

and its surrounding, its improvements and capabilities, may be

shown and considered in estimating its value. (Approved in

Seaboard Air Line vs. Chamblin, 108 Va., 42.

In the practical application of this doctrine, the courts have been

obliged to reject various kinds of evidence which the partisan zeal

of the one side has attempted to introduce in order to swell the

measure of damages, and to approve evidence which the other

side has attempted to discredit in order to reduce the amount to

be realized. Three such questions present themselves in this

case.

First, testimony as to mere offers for the property desired or for

contiguous property is not admissible. Upon this point we quote

from the case of Keller vs. Paine (34 Hun, 167):

Its value depends upon too many circumstances. If evidence of

offers is to be received it will be important to know whether the

offer was made in good faith, by a man of good judgment,

acquainted with the value of the article and of sufficient ability to

pay; also whether the offer was cash, for credit, in exchange, and

whether made with reference to the market value of the article; or

to supply a particular need or to gratify a fancy. Private offers can

be multiplied to any extent for the purposes of a cause, and the

bad faith in which they were made would be difficult to prove. The

reception of evidence of private offers to sell or purchase stands

upon an entirely different footing from evidence of actual sales

between individuals or by public auction, and also upon a different

footing from bids made at auction sales. The reception of this

class of evidence would multiply the issues upon questions of

damages to an extent not to be tolerated by court aiming to

practically administer justice between litigants. (As quoted with

approval in Yellowstone Park R. R. Co. vs. Bridger Coal Co., 34

Mont., 545.)

In the present case, the defendant Estrada testified that upon

learning that the property which was the subject of the present

litigation was to be condemned, he offered to pay a real estate

agent P15 per square meter for a piece of land situated in the

locality with relatively similar commercial location. This was

improper evidence and should not have been considered by the

commissioners. (See also Sherlock vs. Chicago B & Q. R. Co.,

130 Ill., 403; 22 N. E., 844; Winnisimmet Co. vs. Grueby, 111

Mass., 543; Montclair Ry Co. vs. Benson, 36 N. J. L., 557.)

The second point raised by the evidence taken in the present

case is the admission of testimony relative to real estate

transaction in the vicinity of the land desired. The rule which

admits such evidence meets with universal approval, but with

certain reservations.

In Aledo Terminal Ry. Co. vs. Butler (246 Ill., 406; 92 N. E., 909)

the court said:

Evidence of voluntary sales of other lands in the vicinity and

similarly situated is admissible in evidence to aid in estimating the

value of the tract sought to be condemned, but the value of such

testimony depends upon the similarity of the land to that in

question and the time when such sales were made and the

distance such lands are from those the value of which is the

subject of inquiry.

The supreme court of Massachusetts, in Fourth National Bank vs.

Com. (212 Mass., 66; 98 N.E., 86), affirms the rule as follows:

It long has been settled, that in the assessment of damages

where lands are acquired by eminent domain evidence is

admissible of the price received from sale of land similar in

character, and situated in the vicinity, if the transactions are not

so remote in point of time that a fair comparison practically is

impossible.

In Hewitt vs. Price (204 Mo., 31) it was said:

It is sufficient to say upon this proposition that the law is well

settled in this State upon that subject, and while the value of

selling price of similar property may be taken into consideration in

determining the value of the piece of property in litigation, it is

equally true that the location and character of such property

should be similar and the sales of such other property should at

least be reasonably near in point of time to the at which the

inquiry of the value of the property in dispute is directed.

In Laing vs. United New Jersey R. R. & C. Co. (54 N. J. L., 576;

33 Am. St. Rep., 682; 25 A., 409) it was said:

Generally in this and other States evidence of sale of land in the

neighborhood is competent on an inquiry as to the value of land,

and if the purchases or sales were made by the party against

whom the evidence was offered it might stand as an admission.

But such testimony is received only upon the idea that there is

substantial similarity between the properties. The practice does

not extend, and the rule should not be applied, to cases where the

conditions are so dissimilar as not easily to admit of reasonable

comparison, and much must be left to the discretion of the trial

judge in the determination of the preliminary question conditions

are fairly comparable.

In an early case, and which will be referred to again upon another

question, the supreme court of Illinois stated the rule as follows:

The theory upon which evidence of sale of other similar property

in the neighborhood at about the same time, is held to be

admissible is that it tends to show the fair market value of the

property sought to be condemned. And it cannot be doubted that

such sales, when made in a free and open market, where a fair

opportunity for competition has existed, become material and

often very important factors in determining the value of the

particular property in question. (Peoria Gas Light Co. vs. Peoria

Term. Ry. Co., 146 Ill., 372; 21 L. R. A., 373; 34 N. E., 550.)

Even in those States where direct evidence of particular sales is

not allowed, such questions may be directed to witnesses on

cross-examination to test their credibility. This is the position

taken by the supreme court of Pennsylvania in the late cases of

Rea vs. Pittsburg, etc., R. R. Co. (229 Pa., 106) and Brown vs.

City of Scranton (231 Pa., 593; 80 A., 113). See also Oregon R. &

N. Co. vs. Eastlack (54 Ore., 196; 102 Pac., 1011) where this

somewhat technical differences is set forth.

Evidence of other sales is competent if the character of such

parcels as sites for business purposes, dwellings, or for whatever

other use which enhances the pecuniary value of the condemned

land is sufficiently similar to the latter that it may be reasonably

assumed that the price of the condemned land would be

approximately near the price brought by the parcels sold. The

value of such evidence, of course, diminishes as the differences

between the property sold and the condemned land increase. The

property must be in the immediate neighborhood, that is, in the

zone of commercial activity with which the condemned property is

identified, and the sales must be sufficiently coeval with the date

of the condemnation proceedings as to exclude general increases

or decreases in property values due to changed commercial

conditions in the vicinity. No two estates are ever exactly alike,

and as the differences between parcels sold and the land

condemned must necessarily be taken into consideration in

comparing values, we think it much better that those differences

should be shown as part of the evidence of such sales, as is the

practice in Iowa. (Town of Cherokee vs. S. C. & I. F. Town Lot

and Land Co., 52 Iowa, 279, 3 N. W., 42.) And where these

differences are so great that the sales in question can form no

reliable standard for comparison, such evidence should not be

admitted. (Presbrey vs. Old Colony & Newport R. Co., 103 Mass.,

1.)

The testimony as to the sale of a parcel of land on the opposite

side of the stereo from the condemned land at P6 per square

meter we think was properly admitted, and should have been

given much greater weight by the commissioners and the court

below. This was a sale in the open market, just one month prior to

the time of the hearing before the commissioners. It was located

on the same street, Calle Herran, and on the same estero. The

differences between the two parcels as to location was that the

condemned property also had a frontage on Calle Looban and

was on the same side of the estero and immediately in front of the

market site. It is true that the condemned land had improvements

upon it while the parcel was vacant land. But it is also true that the

values of these improvements were estimated as separate and

distinct items, and the value of the land was estimated without

regard to the improvements upon it. A sale of vacant land is

evidence of the value of neighboring land. (O'Malley vs. Com.,

182 Mass., 196; 65 N.E., 30.) Basing their estimate of the value of

the condemned land upon the price obtained for the parcel

mentioned, and estimating the more favored location of the

condemned land as being worth 60 per cent more than the land

on the opposite side of the estero, Sellner and Brias arrived at the

conclusion that P10 per square meter (a difference of more than

66 per cent) was a fair price for the land condemned. These

witnesses were professional real estate agents, both had been

active in the vicinity at about the time they testified before the

commissioners, and were therefore peculiarly qualified to

appraise the land in question. We are inclined to agree with the

opinion expressed in the case of I. I. & M. R. Co. vs. Humiston

(208 Ill., 100; 69 N. E., 880), where it is said:

The fact of salaries is not always the only factor in determining the

weight of the testimony of a witness as to value. A witness may, in

forming his opinion, consider the uses and capabilities of the

property, as well as the prices at which like property in the

neighborhood has been sold. He may also base his opinion of

value upon his knowledge or observation of the growth and

development of towns and cities, a general knowledge of trade

and business, rental value, the interests which the land would pay

upon an investment, its productiveness, ease of cultivation, its

situation in a particular community, and other elements.

These parcels were in the same neighborhood and their

respective locations and surroundings were, with the differences

above named, practically the same. The price which the parcel

sold by Brias brought was therefore of great importance as a

basis for estimating the value of the condemned land.

The next question of evidence, and the most important to this

case, is the admissibility of evidence showing prices paid for

neighboring land under eminent domain proceedings. Is this class

of evidence admissible? The authorities almost with one accord

reply emphatically, No. The rule is so universal that it seems

sufficient to quote from only one or two authorities. Lewis on

Eminent Domain (par. 447) says:

What the party condemning has paid for other property is

incompetent. Such sales are not a fair criterion of value, for the

reason that they are in the nature of a compromise. . . . The fear

of one party or the other to take the risk of legal; proceedings

ordinarily results in the one party paying more or the other party

taking less than is considered to be the fair market value of the

property. For these reasons, such sales would not seem to be

competent evidence of value in any case, whether in a

proceeding by the same condemning party or otherwise.

In the case of Peoria Gas Light Co. vs. Peoria Term. Ry Co. (146

Ill., 372), from which we quoted above sustaining the rule that

sales of property in the vicinity are admissible as evidence, it was

said

But it seems very clear that to have that tendency, they (sales of

adjacent land) must have been made under circumstances where

they are not compulsory, and where the vendor is not compelled

to sell at all events, but is at liberty to invite competition among

those desiring to become purchasers. Accordingly among the

various decisions in this and other States to which our attention

has been called or which our own researches have discovered,

we find none in which the price paid at a forced or compulsory

sale has been admitted as competent evidence of value.

This case is particularly valuable for its review of the authorities

upon this point. Other late cases sustaining the rule are: U.S. vs.

Beaty (198 Fed. Rep., 284); City of San Luis Obispo vs.

Brizzolara (100 Cal., 434; 34 P. 1083); C.& W. I. R. R. Co. vs.

Heidenreich (254 Ill., 231; 98 N.E., 567); Howe vs. Howard (158

Mass., 278); Seaboard Air Line vs. Chamblin (108 Va., 42); O'Day

vs.Meyers (147 Wis., 549; 133 N.W., 605).

It is to be observed that this rule excluding evidence of prices

obtained for neighboring land under eminent domain proceedings

is in the nature of an exception to the rule that sales of such land

may be offered in evidence, and that, speaking briefly, the

underlying reason is that they are not prices obtained "by one who

desires but is not obliged to sell it, and is bought by one who is

under no necessity for having it."

The objection of the plaintiff to the introduction of evidence

showing that Clarke had obtained for his land condemned by the

city on 1908 was well taken. The testimony of Estrada, based, as

he himself admits (see except of his testimony above), upon that

transaction, was valueless, and the commissioners and the lower

court erred in issuing it as a basis for estimating the value of the

condemned land.

But, carrying this discussion perhaps one step further than is

really necessary, we desire to say that even were evidence of the

Clarke transaction admissible in the present case, the use made

of the facts of that case by the witness Estrada, the

commissioners, and the court itself, was clearly erroneous. As

was stated above, the apparent price of P19.85 for the land taken

by the city was in reality made up of P6.50 per square meter for

the land itself and consequential damages to the remaining

portion of Clarke's and at the rate of P4.50 per square meter.

The damage or injury to the remainder of the land on account of

the construction of the railroad is in effect the actual taking of that

much of the remainder of the land, for the diminished market

value of which the owner is entitled to full compensation. (St.

Louis I. M. & S. R. Co. vs. Theodore Maxfield Co., 94 Ark., 135;

26 L. R. A. (N. S.), 1111; 126 S. W., 83.)

The value of the property taken and the damages to the

remainder of the property are two distinct and separate things.

(Louisiana Ry. & Nav. Co. vs. Morere, 116 La., 997; 41 So., 236.)

There were no consequential damages to the defendant in the

present case for the reason that his entire holding was taken. The

market value of the land taken from Clarke did not include the

consequential damages to the remainder. The deed of transfer

(Exhibit 1) was obviously ambiguous when it stated "that in

consideration of the sum of P7,002.05 which the city of Manila

has offered to pay me for the said parcel of land for a sewer

pumping station." This sum included the market value of the land

taken and something more — the consequential damages to

1,045.82 square meters of land remaining at P4.50 per square

meter. The deed so read merely for convenience and brevity. It

was written for the purpose or transferring the land taken and was

not intended to be a record of the expropriation proceedings

which culminated in its execution. It was satisfactorily proven in

the present case that the figures shown in the deed were made

up in the manner we have already described, and manifestly

P19,85 is merely a fictitious value for the land taken, far beyond

its true value.

We have now eliminated the testimony of the defendant Estrada

of his offer to pay P15 per square meter for other land as well

situated as that condemned; and all evidence of the Clarke

transaction in 1908. This leaves as the only evidence of record as

to the value of the condemned land the testimony of Sellner and

Brias, based upon the sale of an adjacent parcel of land, which

evidence we have approved as being relevant, and the testimony

of Mr. Powell to the effect that the land was appraised for taxation

at P6 per square meter, which was also relevant.

The next question which it is necessary to consider is the view of

the premises made by the commissioners. What is the purpose of

this view? An exhaustive search of the authorities has been made

upon this point, and we have come to the conclusion that some of

the statements made in the earlier decisions upon the subject are

not sound law.

They view the premises, and are supposed to exercise their own

judgment to some extent, irrespective of evidence. (Virginia and

Truckee R. Co. vs. Henry, 8 Nev., 165.)

The testimony of witnesses as to value . . . although entitled to

due consideration, is not controlling. (City of St. Louis vs. Lanigan,

97 Mo., 175; 10 S. W., 475.)

They are to be guided largely by their own judgment as they view

the premises. (City of Kingston vs. Terry, 53 N. Y. S., 652.)

They may go and view the premises and upon the knowledge

thus acquired base their award. (Stevens vs. Railroad Co., 8 N. Y.

S., 707.)

That the commissioners had a right to act upon information

derived in part from a personal view of the premises cannot be

questioned. (In re certain lands in the Twelfth Ward, 68 N. Y. S.,

965.)

They are not bound by the testimony of their of these experts, and

may act upon their own personal view. (In re opening Trinity Ave.,

71 N. Y. S., 24.)

Doubtless, in a proceeding of this kind, the commissioners may

act upon their own judgment, disregarding oral testimony.

(Waterford E. Light, Heat & Power Co. vs. Reed, 94 N. Y. S.,

551.)

All of these statements, while made in cases where there was a

conflict of evidence, and wherein the commissioners or jury found

damages within the estimates made by witnesses, if taken at their

face value would allow commissioners or special juries to assess

damages at any sum they pleased. The true rule, as laid down in

the more recent cases is that the view of the premises is made for

the purpose of better enabling the appraisers to understand the

evidence presented by the parties, and giving it its proper weight.

The supreme court of Colorado is substance supports this

principle inDenver Co. vs. Howe (49 Colo., 256;112 P., 779):

The jury viewed the premises and were better able to judge of the

number of acres in each, as well as other conditions affecting the

land. The facts ascertained by the view of the premises are not in

the record, whether they were regarded as so much additional

evidence, or were used to better understand and apply the

evidence adduced at the trial. Keeping in view the evidence

relating to the special value of the building site, the value of

improvements and of the ground, it will be found that the verdict is

within and supported by the values as testified to, and these

values, as fixed by the several witnesses, represented to each the

market value, as conceded by appellants. The verdict is

supported by the evidence of market value and on that ground

would have to be sustained if the matter complained of in the

instruction had been entirely omitted.

In a clear statement of the rule, the supreme court of

Pennsylvania says (Gorgas vs. Railroad Co., 144 Pa., 1;22 A.,

715): "A view may sometimes be of the highest importance,

where there is a conflict of testimony. It may enable the jurors to

see on which side the truth lies. And if the witnesses on the one

side of the other have testified to a state of facts which exists only

in their imagination, as to the location of the property, the manner

in which it is cut by the road, the character of the improvements,

or any other physical fact bearing upon the case, they surely

cannot be expected to ignore the evidence of their senses, and

give weight to testimony which their view shows to be false. . . .

The true rule, in such cases, is believed to be that the jury in

estimating the damages shall consider the testimony as given by

the witnesses, in connection with the facts as they appear upon

the view; and upon the whole case, as thus presented, ascertain

the difference between the market value of the property

immediately before and immediately after the land was taken.

This difference is the proper measure of the damages.

In Close vs. Samm (27 Iowa, 503) it was said: "The question then

arises as to the purpose and intent of this statute. It seems to us

that it was to enable the jury, by the view of the premises or place,

to better understand and comprehended the testimony of the

witnesses respecting the same, and thereby the more intelligently

to apply the testimony to the issues on trial before them, and not

to make them silent witnesses in the case, burdened with

testimony unknown to both parties, and in respect to which no

opportunity for cross-examination or correction of error, if any,

could be afforded either party. If they are thus permitted to include

their personal examination, how could a court ever properly set

side their verdict as being against the evidence, or even refuse to

set aside without knowing the facts ascertained by such personal

examination by the jury? It is a general rule, certainly, if not

universal, that the jury must base their verdict upon the evidence

delivered to them in open court, and they may not take into

consideration facts known to them personally, but outside of the

evidence produced before them in court. If a party would avail

himself of the facts known to a juror, he must have him sworn and

examined as other witnesses." (Approved in the late case of

Guinn vs. Railway Co., 131 Iowa, 680; 109 N. W., 209.)

The doctrine finds favor in Kansas. In C. K. & W. R. Co. vs.

Mouriquand (45 Kan., 170), the court approved of the practice of

instructing the jury that their view of the premises was to be sued

in determining the value of conflicting testimony, saying: "Had the

jury disregarded all the sworn evidence, and returned a verdict

upon their own view of the premises, then it might be said that the

evidence which the jurors acquired from making the view had

been elevated to the character of exclusive and predominating

evidence. This is not allowable. The evidence of the witnesses

introduced in the court on the part of the landowner supports fully

the verdict. If the verdict was not supported by substantial

testimony given by witnesses sworn upon the trial, we would set

aside, but as the jury only took into consideration the result of

their view of the premises, in connection with the sworn evidence

produced before the to connection with the sworn evidence

produced before them, to determine between conflicting evidence,

the instruction was not so erroneous as to require a new trial."

A very clear statement of it is made by Dyer, J., charging a jury, in

Laflin vs. Chicago W. & N. R. Co. (33 Fed. Rep., 415): "You have

been permitted to view the premises in question. The object of

this view was to acquaint you with the physical situation,

condition, and surroundings of the premises, and to enable you

better to understand the evidence on the trial. The knowledge

which you acquired by the view may be used by you in

determining the weight of conflicting testimony respecting value

and damage, but no farther. Your final conclusion must rest on

the evidence here adduced."

In Postal Telegraph-Cable Co. vs. Peyton (124 Ga., 746; 52 S. E.,

803; 3 L. R. A. (N. S.), 333) it was said: "A jury cannot be left to

roam without any evidence in the ascertainment and assessment

of damages. The damages which the law allows to be assessed

in favor of landowners whose property has been taken or

damaged under the right of eminent domain are purely

compensatory. The land actually appropriated by the telegraph

company amounted to only a fraction of an acre; and while it

appeared that the construction and maintenance of the telegraph

line would cause consequential damages to the plaintiff, no proof

was offered from which any fair and reasonable estimate of the

amount of damages thereby sustained could be made. The jury

should have been supplied with the data necessary in arriving at

such an estimate in the absence of this essential proof, a verdict

many times in excess of the highest proved value of the land

actually taken must necessarily be deemed excessive."

The question has often been up in the State of Illinois, and the

rule has been clearly stated there in number of cases. In Sexton

vs. Union Stock Yard Co. (200 Ill., 244;65 N. E., 638), a leading

case, it was said: "The evidence consisted most largely of

opinions of values entertained by the different witnesses. Their

judgment varied widely and their opinions were likewise variant.

The amount allowed, though much less than the estimates of the

witnesses produced in appellant's behalf, is larger than that of the

witnesses produced by the appellate company. We cannot know

the effect which was produced on the minds of the jurors by the

actual inspection of the premises. The rule in such cases as not to

disturb a verdict, if it is within the range of the testimony, unless

we can clearly see that injustice has been done and that passion

and prejudice influenced the action of the jury."

In the very recent case of South Park Comrs. vs. Ayer (245 Ill.,

402; 92 N. E., 274) it was said: "The jury view the premises, and

the law is well settled in this State that in a condemnation

proceeding, where the jury have viewed the premises and where

the evidence is conflicting, and where the amount is within the

range of value as testified to on the trial, and does not appear to

have been the result of prejudice, passion, undue influence, or

other improper cause, the verdict will not be disturbed. (Citing

cases.) It is clear the amount fixed by the jury in this case was

well within the range of the evidence, which was conflicting, and

the verdict should not be set aside unless it appears it was

brought about by some improper ruling of the court upon the trial."

The rule is also stated in Lanquist vs. City of Chicago (200 Ill., 69;

65 N. E., 681); in I. I. & M. R. Co. vs. Humiston (208 Ill., 100; 69

N. E., 880); and in G. & S. R. R. R. Co. vs. Herman (206 Ill., 34;

69 N. E., 36).

In New York, where the question has doubtless been raised more

often than anywhere else, the late cases illustrate the rule

perhaps the most clearly

The appellate division, supreme court, In re Titus Street in City of

New York (123 N. Y. S., 10018), where it appeared that the city's

witnesses testified that the property was worth $9,531 and the

commissioners awarded $2,000 less said: "We do not think this is

meeting the requirements of the law; we do not believe that it is

within the province of the commissioners to arbitrarily set up their

own opinion against that of the witnesses called by the city, and to

award damages largely below the figure at which the moving

party is committed, without something appearing in the record to

justify such action. When a party comes into court and makes an

admission against his interest, no court or judicial tribunal is

justified in assuming that the admission is not true, without at

least pointing out the reason for discrediting it; it carries within the

presumption of truth, and this presumption is not to be overcome

by the mere fact that the commissioners might themselves have

reached a different conclusion upon the viewing of the premises. .

. . This view of the commissioners, it seems to us, is for the

purpose of enabling the commissioners to give proper weight and

effect to the evidence before them, and it might justify them in

giving larger damages than some of the witnesses thought

proper; or even less than some of them declared to be sustained.

But where the evidence produced by the moving party in a

proceeding for taking property for public purposes fixes a sum,

without any disagreement in the testimony on that side, we are of

the opinion that the cases do not justify a holding that the

commissioners are authorized to ignore such testimony and to

substitute their own opinion in such manner as to preclude the

supreme court from reviewing the determination. That is not in

harmony with that due process of law which is always demanded

where rights of property are involved, and would make it possible

for a corrupt commission to entirely disregard the rights of the

individual to the undisturbed enjoyment of his property or its

equivalent."

From these authorizes, and keeping in mind the local law on the

subject, we think the correct rule to be that, if the testimony of

value and damages is conflicting, the commissioners may resort

to their knowledge of the elements which affect the assessment

and which were obtained from a view of the premises, in order to

determine the relative weight of conflicting testimony, but their

award must be supported by the evidence adduced at their

hearings and made of record or it cannot stand; or, in other

words, the view is intended solely for the purposes of better

understanding the evidence submitted. To allow the

commissioners to make up their judgment on their own individual

knowledge of disputed facts material to the case, or upon their

private opinions, would be most dangerous and unjust. It would

deprive the losing party of the right of cross-examination and the

benefit of all the tests of credibility which the law affords. It would

make each commissioners the absolute judge of the accuracy

and value of his own knowledge or opinions and compel the court

to affirm the report on the facts when all of such facts were not

before it. The evidence of such knowledge or of the grounds of

such opinions could not be preserved on a bill of exceptions or

questioned upon appeal.

It those cases where the testimony as to value and damages is

conflicting, the commissioners should always set forth in full their

reasons for accepting the testimony of certain witnesses and

rejecting that of others, especially in those cases where a view of

the premises has been made.

The commissioners, being disinterested landowners of the

province, selected by the court for their ability to arrive at a

judicious decision in the assessment of damages, their report is

entitled to greater weight than that of an ordinary trier of facts. A

mere numerical superiority of the witnesses on the one side or the

other should not be sufficient to overturn the decision arrived at by

the commissioners, as such witnesses are not required to be

either landowners on judicious and disinterested parties, as are

the commissioners. The weight to be given to the testimony of a

witness might be considerable or it might be almost negligible,

according to his standing in the community and his ability and

experience in real estate values. But where experts fixed the

value of the property, the lowest estimate being $5,533 and the

highest $16,000, and the commissioners allowed only $750, the

court held that the award was inadequate. (In re Metropolitan El.

Ry. Co., 27 N. Y. S., 756.) And where a lessee of a building was

allowed damages in an extravagant sum for his unexpired lease,

when compared with the allowance made to the owner of the

property, the award was set aside. (In reManhattan Loop No. 1,

135 N. Y. S., 153). In Palmer vs. Harris Country (29 Tex. Civ.

App., 340, 69S. W., 229) the court said

It may be that jury were influenced by the idea that it might not

have been necessary to use all of the tract sought to be

condemned for the construction of the ditch, but the proceeding

was to condemn the entire tract, and so far as presented by the

record the value of the land might be so affected by the

construction of the ditch as to destroy its use by the appellant for

any purpose. . . . The verdict is so manifestly against the great

preponderance of the evidence that we deem it our duty to set it

aside.

Calor Oil & Gas Co. vs. Withers (141 Ky., 489; 133 S. W., 210)

was an action to condemn a strip of land 27 feet wide and 434

feet long for a pipe line, the said strip lying wholly within a railroad

right of way. The commissioners appointed to assess the

damages fixed them at $16.51. Upon appeal, the damages were

assessed at $750, which was held aside. In Mutual Union

Telegraph Co. vs. Katkamp (103 Ill., 420) it appeared that

telegraph poles were to be set along the line of a railroad right

way, 1 foot from such right of way line, so that there would be

eleven poles on defendant's land. The defendant himself testified

that his land was worth $60 per acre, and that the damage done

would be about $10 per pole. Two other witnesses testified that

$10 per pole would be the amount of defendant's damage. Of

three witnesses for the plaintiff, one testified that the damage

would be 50 cents and two that it would be $1 per pole. As only a

very small fraction of an acre of defendant's land would be taken,

a verdict of $38.50 was held to be manifestly against the weight of

evidence and the judgment was reversed.

The report of the commissioners has also been set a side

because a wrong principle of assessing the damages was used.

Thus, in Waterford E. Light, Heat & Power Co. vs. Reed (94 N. Y.

S., 551), the award was set aside because counsel for the plaintiff

had presented to the commissioners that the plaintiff was only

acquiring the right of flowage in respect to the property in question

and that the defendants, by reason of the execution of a deed,

had lost all but a nominal interest in the question of damages,

both of which theories were untrue, and which resulted in only

nominal damages being awarded to the defendants. In the matter

of Gilroy (85 Hun, 424; 32 N. Y. S., 891) it appeared that the

commissioners erroneously refused to take into consideration the

fact that the property was available for use in connection with the

water supply of the city of New York, in estimating the value of the

property, and the report was for that reason set aside as allowing

insufficient damages. No allowances having been made for

consequential damages, the report of the commissioners was set

aside. (Williamson vs. Read, 106 Va., 453; 56 S. E., 174.) And

where a deed was so construed as embracing more land than it

actually did embrace, resulting in excessive damages being

awarded, the report was set aside. (Morris & Essex R. Co. vs.

Bonnell, 34 N. J. L., 474.) The report has also been set aside for

refusal to consider competent evidence. (State vs. Shuffield &

Thompsonville Bridge Co., 82 Conn., 460; 74 A., 775.)

We come now to a consideration of the amount fixed upon by this

court of P10 per square meter for the condemned lane. We have

already referred to the testimony of the two real estate agents,

Brias and Sellner, which was based upon a sale of similarly

situated land made only thirty days previous to the date of the

hearing; and the assessment of the property for taxation, at P6

per square meter. This was the evidence upon which the

dissenting commissioner predicated his appraisement of the land,

arriving at the same figure as did this Supreme Court of P10 per

square meter. There is a considerable difference between this

valuation and P25 per square meter, as fixed by Estrada, or of the

price fixed by the majority report of the commissioners of P20 per

square meter. It is to be noted that no witnesses other than

Estrada were called who could confirm the higher valuation or

even testify to an intermediate price. The price of P10 per square

meter is 66 per cent greater than that obtained for land on the

opposite side of the estero, and this difference would seem amply

sufficient to compensate for the more favored location of the

condemned land. That P10 per square meter is a just

compensation is shown by a great preponderance of the

evidence.

"Compensation" means an equivalent for the value of the land

(property) taken. Anything beyond that is more and anything short

of that is less than compensation. To compensate is to render

something which is equal to that taken or received. The word

"just" is used to intensify the meaning of the word

"compensation;" to convey the idea that the equivalent to be

rendered for the property taken shall be real, substantial, full,

ample. "Just compensation," therefore, as used in section 246 of

the Code of Civil Procedure , means a fair and full equivalent for

the loss sustained."

The exercise of the power being necessary for the public good,

and all property being held subject to its exercise when, and as

the public good requires it, it would be unjust to the public that it

should be required to pay the owner more than a fair indemnity for

such loss. To arrive at this fair indemnity, the interests of the

public and of the owner and all the circumstance of the particular

appropriation should be taken into consideration. (2 Lewis on Em.

Do., § 562.)

The compensation must be just to the public as well as to the

owners. (Searl vs. School District, 133 U.S., 553; 33 L. ed., 740.)

Section 244 of our code says that:

The commissioners shall assess the value of property taken and

used, and shall also assess the consequential damages to the

property not taken and deduct from such consequential damages

the consequential benefits to be derived by the owners.

"To assess" is to perform a judicial act. The commissioners'

power is limited to assessing the value and to determining the

amount of the damages. There it stops; they can go no further.

The value and damages awarded must be a just compensation

and no more and no less. But in fixing these amounts, the

commissioners are not to act ad libitum. They are to discharge the

trust reposed in them according to well established rules and form

their judgment upon correct legal principles. To deny this is to

place them where no one else in this country is placed: Above the

law and beyond accountability.

This court, after an examination of the evidence, found that the

awards as fixed by the majority of the commissioners and the trial

court were grossly excessive; that a just compensation for the

land taken was P10 per square meter, and, in a short opinion,

rendered judgment accordingly. It was insisted that to so decide

this case would be an conflict with former adjudicated cases by

this court. It now becomes necessary to review these cases.

In City of Manila vs. Tuason, et al. (R. G. No. 3367), decided

March 23, 1907 (unreported), the court of First Instance modified

the report of the commissioners as to some to the items and

confirmed it as to others. On appeal, the Supreme Court

remanded the cause, apparently for the reason that the evidence

taken by the commissioners and the lower court was not before it,

and perhaps also because the commissioners adopted a wrong

principle of assessing damages.

In Manila Railroad Co. vs. Fabie (17 Phil. Rep., 206) the majority

report of the commissioners appraised the land at P56,337.18,

while a dissenting commissioner estimated it at P27,415.92. The

Court of First Instance, after taking additional evidence upon the

consequential benefits to the remainder of defendant's land by the

construction of the railroad, and also as to the rental value of

various pieces of land in the locality, fixed the value of the land at

the sum estimated by the dissenting commissioner. The

defendants appealed to this court. This court remarked that the

only evidence tending to support the majority report of the

commissioners consisted of deeds of transfer of real estate

between parties in that community showing the prices paid by the

vendees in such conveyances. It was held that without its being

shown that such transfer had been made in the ordinary course of

business and competition, and that the prices therein stated were

not fictitious, such deeds were incompetent as evidence of the

value of the condemned land. As to the action of the court in fixing

the price of the land at P27,415.92, the court said:

Conceding, without deciding, that he also had the right to

formulate an opinion his own as to the value of the land in

question, nevertheless, if he formulate such an opinion, he must

be base it upon competent evidence. The difficulty with the case

is that it affirmatively appears from the record on appeal that there

is an entire absence of competent evidence to support the finding

either of the commissioners or of the court, even if the court had a

right to make a finding of his own at all under the circumstances.

In Manila Railroad Co. vs. Attorney-General (22 Phil. Rep., 192)

the only question raised was the value of certain improvements

on the condemned portion of an hacienda, such improvements

consisting mainly of plants and trees and belonging to a lessee of

the premises. The total damages claimed were P24,126.50. The

majority report of the commission allowed P19,478, which amount

was reduced by the Court of First Instance to P16,778. The

plaintiff company, upon appeal to this court, alleged that the

damages allowed were grossly excessive and that the amount

allowed by the commissioners should have been reduced by at

least P17,000; while the defendant urged that the damages as

shown by the record were much greater than those allowed,

either by the commissioners or by the court.

The only ground upon which the plaintiff company bases its

contention that the valuations are excessive is the minority report

of one of the commissioners. The values assigned to some of the

improvements may be excessive but we are not prepared to say

that such is the case. Certainly there is no evidence in the record

which would justify us in holding these values to be grossly

excessive. The commissioners in their report go into rather minute

detail as to the reasons for the conclusions reached and the

valuations fixed for the various items included therein. There was

sufficient evidence before the commissioners to support the

valuations fixed by them except only those later modified by the

court below. The trial court was of opinion that the price of P2

each which was fixed for the orange trees (naranjitos) was

excessive, and this was reduced to P1.50 for each tree; this on

the ground that the evidence discloses that these trees were

comparatively young at the time of the expropriation, and that the

value fixed by the majority report of the commissioners was that

of full-grown or nearly full-grown trees. We are of opinion that this

reduction was just and reasonable. Aside from the evidence taken

into consideration by the trial judge we find no evidence in the

record in support of the contention of the railroad plaintiff that the

valuations fixed in the majority report of the commissioners and

by the trial court are grossly excessive, and plaintiff company

having wholly failed to offer evidence in support of its allegations

in this regard when the opportunity so to do was provided in

accordance with law, it has no standing in this court to demand a

new trial based on its unsupported allegations of grossly

excessive valuation of the property by the commissioners and the

court below.

This court affirmed the findings of damages made by the trial

court with the exception of an item for damages caused by fire to

improvements on lands adjoining those condemned, which was

held not to be a proper matter to be considered in condemnation

proceedings. The court here approved of the action of the Court

of First Instance in reducing the amount of damages fixed by the

commissioners as to the value of the young orange trees on the

strength of the evidence of record.

In Manila Railroad Company vs. Caligsihan (R.G. No. 7932),

decided March 25, 1913 (unreported), it appears that the lower

court approved in toto the report of the commissioners. On

appeal, this Supreme Court reversed the lower court and

remanded the case with orders to appoint new commissioners,

saying:

Under the evidence in this case the award is excessive. Section

246 of the Code of Civil Procedure giving to the court the power to

"make such final order and judgment as shall secure to the party

the property essential to the exercise of his rights under the law,

and to the defendant just compensation for the land so take", we

exercise that right in this case for the purpose of preventing the

defendants from obtaining that which would be more than "just

compensation" under all the evidence of the case.

The judgment is reversed and the cause remanded, with

instructions to the lower court to appoint a new commission and to

proceed from that point de novo.

We will know examine the case (Philippine Railway Co. vs. Solon,

13 Phil. Rep., 34) relied upon to support the proposition that the

courts should not interfere with the report of the commissioners to

correct the amount of damages except in cases of gross error,

showing prejudice or corruption.

In that case the property belonging to the appellant which the

company sought to appropriate was his interest as tenant in a

tract of land belonging to the Government, together with a house

standing thereon and other property belonging to him. He asked

that he be awarded for all the property taken P19,398.42. The

commissioners allowed him P10,745.25. At the hearing had upon

the report, the court reduced this amount and allowed the

appellant P9,637.75. The commissioners took a large amount of

evidence relative to the amount of damages. The testimony was

conflicting as to the value of the house, two witnesses fixing it at

over P12,000; another at over P14,000.00; one at P8,750;

another at P6,250; and another at P7,050.95. The commissioners

fixed the value of the house alone at P9,500, and the court at

P8,792.50. This court said:

Nor do we decide, whether, in a case where the damages

awarded by the commissioners are grossly excessive or grossly

insufficient, the court can, upon the same evidence presented

before the commissioners, itself change the award. We restrict

ourselves to deciding the precise question presented by this case,

in which it is apparent that, in the opinion of the court below, the

damages were not grossly excessive, for its own allowance was

only P10,000 less than the amount allowed by the

commissioners, and the question is whether in such a case the

court can substitute its own opinion upon the evidence presented

before the commissioners for the opinion which the

commissioners themselves formed, not only from the evidence

but also from a view of the premises which by law they were

required to make.

Referring to the manner in which the trial court arrived at its

valuation of the various items, including the house, this court said:

Without considering the correctness of the rule adopted by the

court for determining the value of the property, it is sufficient to

say that the evidence before the commissioners as to the value of

the property taken was contradictory and that their award was not

palpably excessive or inadequate. Under such circumstances, we

are of the opinion of the court had no right to interfere with it.

From the foregoing it is clear that (1) the testimony was

conflicting; (2) that the award as allowed by the commissioners

was well within the amounts fixed by the witnesses; (3) that the

award was not grossly excessive. That it was not grossly

excessive is shown by the difference between the amount fixed

by the commissioners and that fixed by the court, this difference

being P1,117.50, a reduction of a little over 10 per cent.

From the above review of the cases, it will be seen that this court

has not only not decided that the courts cannot interfere with the

report of the commissioners unless prejudice or fraud has been

shown, but the decisions tend to show the contrary; that is, an

award which is grossly excessive or grossly insufficient cannot

stand, although there be nothing which even tends to indicate

prejudice or fraud on the part of the commissioners. The case at

bar is the first one wherein the court changed the award and

rendered a final judgment upon the record. Had the court the

power to thus dispose of the case?

Section 246 of the Code of Civil Procedure reads as follows:

"Upon the filing of such report in court, the court shall, upon

hearing, accept the same and render judgment in accordance

therewith; or for cause shown, it may recommit the report to the

commissioners for further report of facts; or it may set aside the

report and appoint new commissioners; or it may accept the

report in part and reject it in part, and may make such final order

and judgment as shall secure to the plaintiff the property essential

to the exercise of his rights under the law, and to the defendant

just compensation for the land so taken; and the judgment shall

require payment of the sum awarded as provided in the next

section before the plaintiff can enter upon the ground and

appropriate it to the public use."

From this section it clearly appears that the report of the

commissioners is not final. The judgment of the court is necessary

to give to the proceedings. Nor is the report of the commissioners

conclusive, under any circumstance, so that the judgment of the

court is a mere detail or formality requisite to the proceedings.

The judgment of the court is rendered after a consideration of the

commissioners' report and the exceptions thereto submitted upon

the hearing of the report. By this judgment the court may accept

the commissioners' report unreservedly; it may return the report

for additional facts or it may set the report aside and appoint new

commissioners; or it may accept the report in part and reject it in

part, and "make such final order and judgment as shall secure to

the plaintiff the property essential to the exercise of his rights

under the law, and to the defendant just compensation for the

land so taken." Any one of these methods of disposing of the

report is available to and may be adopted by the court according

as they are deemed suited to secure to the plaintiff the necessary

property and to the defendant just compensation therefor. But can

the latter method produce a different result in reference to any

part of the report from that recommended by the commissioners?

The purpose of this discussion is solely to determine this

question.

Section 246 expressly authorizes the court to "accept the report in

part and reject it in part." If this phrase stood alone, it might be

said that the court is only empowered to accept as a whole certain

parts of the report and reject as a whole other parts. That is, if the

commissioners fixed the value of the land taken at P5,000, the

improvements at P1,000, and the consequential damages at

P500, the court could accept the report in full as to any one item

and reject it as to any other item, but could not accept or reject a

part of the report in such a way as to change any one of the

amounts. But the court is also empowered "to make such final

order and judgment as shall secure to the plaintiff the property

essential to the exercise of his rights under the law, and to the

defendant just compensation for the land so taken." The court is

here expressly authorizes to issue such orders and render such

judgment as will produce these results. If individual items which

make up the total amount of the award in the commissioners'

report could only be accepted or rejected in their entirety, it would

be necessary to return to the case, so far as the rejected portions

of the report were concerned, for further consideration before the

same or new commissioners, and the court could not make a

"final order and judgment" in the cause until the rejected portions

of the report had been re-reported to it. Thus, in order to give the

italicized quotation from section 246 any meaning at all, it is

obvious that the court may, in its discretion, correct the

commissioners' report in any manner deemed suitable to the

occasion so that final judgment may be rendered and thus end

the litigation. The "final order and judgment" are reviewable by

this court by means of a bill of exceptions in the same way as any

ordinary action. Section 496 provides that the Supreme Court

may, in the exercise of its appellate jurisdiction, affirm, reverse, or

modify any final judgment, order, or decree of the Court of First

Instance, and section 497, as amended by Act No. 1596 ,

provides that if the excepting party filed a motion in the Court of

First Instance for a new trial upon the ground that the evidence

was insufficient to justify the decision and the judge overruled said

motion and due exception was taken to his ruling, the Supreme

Court may review the evidence and make such findings upon the

facts by a preponderance of the evidence and render such final

judgment as justice and equity may require. So it is clear from

these provisions that this court, in those cases where the right of

eminent domain has been exercised and where the provisions of

the above section have been complied with, may examine the

testimony and decide the case by a preponderance of the

evidence; or, in other words, retry the case upon the merits and

render such order or judgment as justice and equity may require.

The result is that, in our opinion, there is ample authority in the

statute to authorize the courts to change or modify the report of

the commissioners by increasing or decreasing the amount of the

award, if the facts of the case will justify such change or

modification.

The question now arises, when may the court, with propriety,

overrule the award of the commissioners in whole or in part and

substitute its own valuation of the condemned property? From a

mere reading of section 246 and the remarks just made, it should

be clear that the court is permitted to act upon the commissioners'

report in one of several ways, at its own discretion. The whole

duty of the court in considering the commissioners' report is to

satisfy itself that just compensation will be made to the defendant

by its final judgment in the matter, and in order to fulfill its duty in

this respect the court will be obliged to exercise its discretion in

dealing with the report as the particular circumstances of the case

may require. But generally speaking, when the commissioners'

report cannot with justice be approved by the court, one of three

or four circumstances will usually present itself, each of which has

for its antidote one of the methods of dealing with the report

placed at the disposal of the court by section 246. Thus, if it be

successfully established that the commissioners refused to hear

competent evidence, then all the evidence in the case would not

be before the court; the court could not, with reason, attempt to

either approve or change the report, as it stood, for the reason

that all the evidence of the case would not be before it; and the

remedy in this case would be to "recommit the report to the

commissioners for further report of facts." Again, if improper

conduct, fraud, or prejudice be charged against the

commissioners, and this charge be sustained, it would be safer to

set aside the award thus vitiated and "appoint new

commissioners" who could render a report not tainted by these

things. But it is to be observed again that this discussion is

confined to a case were no competent evidence was refused by

the commissioners and no suspicion rests upon the motives of the

commissioners in making the award. When the only error of the

commissioners is that they have applied illegal principles to the

evidence submitted to them; or that they have disregarded a clear

preponderance of the evidence; or that they have used an

improper rule of assessment in arriving at the amount of the

award, then, in such a case, if the evidence be clear and

convincing, the court should be able, by the use of those correct

legal principles which govern the case, to determine upon the

amount which should be awarded without remanding the cause.

When the matter stands in this light, it becomes the duty of the

court to make "final order and judgment" in which the proper

award will be made and thus end the litigation between the

parties.

In Louisiana, where the procedural law on this point is similar to

our own, the supreme court has used its powers in this respect

quite frequently. And in this connection, we think it proper to quote

from a case which, in some respects, is similar to the one at bar:

On the question of the value of the land, 8.34 acres, the

commissioners have allowed $2,500 or $300 per acre. The

defendant has put in the record the testimony of witnesses

claimed to support the allowance. Without disregarding this

testimony, it is sufficient to say that the opinions of the witnesses

do not seem to be based on any fact calculated to show the value

of the land. . . . On the other hand the plaintiff has placed before

us the titles of defendant of recent date showing the price paid by

him (the defendant) for the entire body of land of which the 8

acres are a part; the acts of sale of land in the same

neighborhood, and of the same quality; the assessment of

defendant's property, and other testimony on this issue of value. .

. . Giving all possible weight, or rather restricting the testimony of

the plaintiff's witnesses to its due influence and giving, we think,

necessary effect to the acts by which defendant purchased, the

acts of sale of other land, the assessment of value, with due

allowance for underassessment, and the other testimony of

record, we reach the conclusion that the award gives two-thirds

more than the value of the land. We fix the value of the land at

$833.33. (Morgan's Louisiana & Texas R. R. Co. vs. Barton, 51

La. Ann., 1338.)

See also T. & P. R. R. Co. vs. Southern Develop. Co. (52 La.

Ann., 53), where the court held that appraisement made by the

jury too low and after discussing the evidence, increased the

amount of the award accordingly. A similar case is Abney vs.

Railroad Company (105 La., 446). See also T. & P. R. R. Co. vs.

Wilson (108 La., 1; 32 So., 173); and Louisiana Western R. Co.

vs.Crossman's Heirs (111 La., 611; 35 So., 784), where the points

is touched upon.

In Missouri the statute (1 Mo. Ann. Stat., § 1268) directs that "the

court shall make such order therein as right and justice may

require, and may order a new appraisement, upon good cause

shown." Owing to a constitutional restriction, this provision has

been construed to apply only to damages and benefits resulting to

landowners in consequence of proposed improvements, the cash

value of property expropriated being an issue triable, at the

instance of either party, by a jury subsequent to the findings of the

commissioners. Subject to this restriction, however, it has been

held that the above provisions of law gives the court the right to

increase or decrees the amount awarded by the commissioners.

In the late case of Tarkio Drainage District vs. Richardson (237

Mo., 49) the court presents a lengthy review of its decisions on

this subject.

We are clearly of the opinion that our holding on this branch of the

case is supported not only by reason but by the interpretation of

similar provisions of law in other jurisdictions, so far as we have

had the opportunity to examine the question.

This opinion will be substitute for the short opinion rendered in the

cause near the close of last term

EPZA VS DULAY

Facts:

The four parcels of land which are the subject of this case is

where the Mactan Export Processing Zone Authorityin Cebu

(EPZA) is to be constructed. Private respondent San Antonio

Development Corporation (San Antonio, forbrevity), in which

these lands are registered under, claimed that the lands were

expropriated to the governmentwithout them reaching the

agreement as to the compensation. Respondent Judge Dulay

then issued an order forthe appointment of the commissioners to

determine the just compensation. It was later found out that

thepayment of the government to San Antonio would be P15 per

square meter, which was objected to by the lattercontending that

under PD 1533, the basis of just compensation shall be fair and

according to the fair marketvalue declared by the owner of the

property sought to be expropriated, or by the assessor, whichever

is lower.Such objection and the subsequent Motion

for Reconsideration were denied and hearing was set for the

reception

of the commissioner‗s report. EPZA then filed this petition for

certiorari and mandamus enjoining the respondent

from further hearing the case.

Issue:

Whether or Not the exclusive and mandatory mode of determining

just compensation in PD 1533 isunconstitutional.

Held:

The Supreme Court ruled that the mode of determination of just

compensation in PD 1533 is unconstitutional.The method of

ascertaining just compensation constitutes impermissible

encroachment to judicial prerogatives. Ittends to render the courts

inutile in a matter in which under the Constitution is reserved to it

for financialdetermination. The valuation in the decree may only

serve as guiding principle or one of the factors in

determining just compensation, but it may not substitute the

court‗s own judgment as to what amount should be

awarded and how to arrive at such amount. The determination of

just compensation is a judicial function. Theexecutive department

or the legislature may make the initial determination but when a

party claims a violation of the guarantee in the Bill of Rights that

the private party may not be taken for public use without

justcompensation, no statute, decree, or executive order can

mandate that its own determination shall prevail over

the court‗s findings. Much less can the courts be precluded from

looking into the justness of the decreed

compensation.

EXPORT PROCESSING ZONE AUTHORITY vs.HON.

CEFERINO E. DULAY

FACTS:Under Proclamation No. 1811, four parcel of land with

anaggregate area of 22,328 sqm owned and registered in

thename of private individuals were included for theestablishment

of an export processing zone by petitioner Export Processing

Zone Authority (EPZA). The EPZAoffered to purchase the land

from the private owners inaccordance wit the valuation set forth in

Section 22 of PD464. Failure to agreed regarding the sale, EPZA

filed withthe Court of First Instance of Cebu to expropriate the

landpursuant to PD No. 66(empowers the petitioner to acquire

bycondemnation proceedings any property for theestablishment

of export processing zones, in relation toProclamation No. 1811,

for the purpose of establishing theMactan Export Processing

Zone)The judge authorized PEZA to to take immediate

possessionof the premises. As per decision of the judge, EPZA

shouldpay the private owners a just compensation for

theproperties and order certain persons as commissioners

toascertain and report to the court the just compensation for the

properties sought to be expropriated.Three commissioners

submitted their consolidated report atP 15 per sqm as the fair and

reasonable value of justcompensation.EPZA filed for Motion for

Reconsideration for the court order and Objection to

Commissioner¶s Report on the grounds thatPD No 1533 has

superseded Sections 5 to 8 of Rule 67 of the Rules of the Court

on the ascertainment of justcompensation; and such

compensation should not exceedthe maximum stated in set by

PD 1533. The trial courtdenied the petition. The case is for

certiorari and mandamus.Grounds is excess for sjurisdiction and

with grave abuse of the discretion of the judge.ISSUE:The

question raised in this petition is whether or notPresidential

Decrees Numbered 76, 464, 794 and 1533 haverepealed and

superseded Sections 5 to 8 of Rule 67 of theRevised Rules of

Court, such that in determining the justcompensation of property

in an expropriation case, the onlybasis should be its market value

as declared by the owner or as determined by the assessor,

whichever is lower.HELD:The court still have the power and

authority to determine justcompensation, independent of what is

stated by the decreeand to this effect, to appoint commissioners

for suchpurpose.The trial court correctly stated the valuation in

the decreemay only serve as a guiding principle or one of the

factors indetermining just compensation but it may not substitute

thecourt's own judgment as to what amount should be

awardedand how to arrive at such amount.

The determination of "just compensation" in eminentdomain

cases is a judicial function.

The executivedepartment or the legislature may make the

initialdeterminations but when a party claims

a violation of theguarantee in the Bill of Rights

that private property maynot be taken for public use without just

compensation, nostatute, decree, or executive order can mandate

that its owndetermination shag prevail over the court's findings.

Muchless can the courts be precluded from looking into

the"just-ness" of the decreed compensation.

Elimination of the court's discretion, under PD No. 1533, toappoint

commissioners pursuant to Rule 67 of the Rules of Court, is

unconstitutional and void

EXPORT PROCESSING ZONE AUTHORITY, vs.HON.

CEFERINO E. DULAY,

FACTS:

On January 15, 1979, the President of the Philippines,

issuedProclamation No. 1811, reserving a certain parcel of land of

the public domainsituated in the City of Lapu-Lapu, Island of

Mactan, Cebu for the establishmentof an export processing zone

by petitioner Export Processing Zone Authority(EPZA).Not all the

reserved area, however, was public land. The

proclamationincluded, among others, four (4) parcels of owned

and registered in the name of the San Antponio Development

COrporation. EPZA, therefore, offered topurchase the parcels of

land in acccordance with the valuation set forth inSection 92,

Presidential Decree (P.D.) No. 464, as amended. The parties

failed toreach an agreement regarding the sale of the

property.EPZA then filed with Court of First Instance a complaint

for expropriation,through which, a writ of possession authorizing

the petitioner to take immediatepossession of the premises was

issued.At the pre-trial conference, parties have agreed that the

only issue to beresolved is the just compensation for the

properties. Hearing on the merits wasthen set. Thereafter, the

court issued an orders, declaring EPZA as having thelawful right

to take the properties sought to be condemned upon the

paymentof just compensation to be determined as of the filing of

the complaint andappointing commissioners to ascertain and

report to the court the justcompensation for the properties sought

to be expropriated. The consolidated report of the three

commissioners recommended theamount of P15.00 per square

meter as the fair and reasonable value of justcompensation for

the properties.EPZA filed an Objection to Commissioner's Report

on the grounds thatP.D. No. 1533 has superseded Sections 5 to 8

of Rule 67 of the Rules of Court onthe ascertainment of just

compensation through commissioners; and that thecompensation

must not exceed the maximum amount set by P.D. No. 1533

The trial court denied the motion, as a result of which, the

petitioner fliedthis present petition enjoining the trial court from

enforcing the order and fromfurther proceeding with the hearing of

the expropriation case.

ISSUE:

Whether or not the there is still a need to appoint commissioners

evenafter the effectivity of P.D. No. 1533 which already provided

for a mode indetermining just compensation.

HELD:

Yes. The Court declares the provision of the P.D. 1533 on just

compensationunconstitutional and void as the method of

ascertaining just compensationunder the said decree constitutes

impermissible encroachment on judicialprerogatives. It tends to

render the Court inutile on a matter which, under theConstitution,

is reserved to it for final determination. Thus, although in an

expropriation proceeding, the court technicallywould still have the

power to determine the just compensation for the

property,following the applicable decree, its task would be

relegated to simply stating thelower value of the property as

declared either by the owner or the assessor. Thestrict application

of the decree during proceedings would be nothing short of amere

formality or charade as the court has only to choose between

thevaluation of the owner and that of the assessor, and its choice

is always limitedto the lower of the two. The court cannot exercise

its discretion orindependence in determining what is just or fair.

The trial court correctly stated that the valuation in the decree

may onlyserve as a guiding principle or one of the factors in

determining justcompensation but it may not substitute the court's

own judgment as to whatamount should be awarded and how to

arrive at such amount. A return to theearlier well-established

doctrine is more in keeping with the principle that the judiciary

should live up to its mission "by vitalizing and not

denigratingconstitutional rights." The basic unfairness of the

decree is readily apparent. Just compensation means the value of

the property at the time of thetaking. It means a fair and full

equivalent for the loss sustained.In this particular case, the tax

declarations presented by EPZA as basisfor just compensation

were made by the city assessor long before martial law,when land

was not only much cheaper but when assessed values of

propertieswere stated in figures constituting only a fraction of their

true market value. Theprivate respondent was not even the owner

of the properties at the time. To pegthe value of the lots on the

basis of documents which are out of date and atprices below the

acquisition cost of present owners would be arbitrary

andconfiscatory

To say that the owners are estopped to question the valuations

made byassessors since they had the opportunity to protest is

illusory. Theoverwhelming mass of land owners accept

unquestioningly what is found in thetax declarations prepared by

local assessors or municipal clerks for them. Theydo not even

look at, much less analyze, the statements.It is violative of due

process to deny to the owner the opportunity toprove that the

valuation in the tax documents is unfair or wrong. The

determination of "just compensation" in eminent domain cases is

a judicial function. The executive department or the legislature

may make theinitial determinations but when a party claims a

violation of the guarantee in theBill of Rights that private property

may not be taken for pubhc use without justcompensation, no

statute, decree, or executive order can mandate that its

owndetermination shag prevail over the court's findings.

In view of the foregoing, P.D. No. 1533, which eliminates the

court'sdiscretion to appoint commissioners pursuant to Rule 67 of

the Rules of Court, was therefore held unconstitutional and void

REPUBLIC vs. LIM

FACTS:

In 1938, the Republic instituted a special civil action for

expropriation of a land in Lahug, Cebu City forthe purpose of

establishing a military reservation for the Philippine Army. The

said lots were registered in the name of Gervasia and Eulalia

Denzon. The Republic deposited P9,500 in the PNB then took

possession of the lots. Thereafter, onMay 1940, the CFI rendered

its Decision ordering the Republic to pay the Denzons the sum of

P4,062.10 as justcompensation. The Denzons appealled to the

CA but it was dismissed on March 11, 1948. An entry of judgment

wasmade on April 5, 1948.

In 1950, one of the heirs of the Denzons, filed with the National

Airports Corporation a claim for rentals for thetwo lots, but it

"denied knowledge of the matter." On September 6, 1961, Lt.

Cabal rejected the claim but expressedwillingness to pay the

appraised value of the lots within a reasonable time.For failure of

the Republic to pay for the lots, on September 20, 1961, the

Denzons· successors-in-interest,Valdehueza and Panerio, filed

with the same CFI an action for recovery of possession with

damages against the Republicand AFP officers in possession of

the property.On November 1961, Titles of the said lots were

issued in the names of Valdehueza and Panerio with

theannotation "subject to the priority of the National Airports

Corporation to acquire said parcels of land, Lots 932 and939

upon previous payment of a reasonable market value".On July

1962, the CFI promulgated its Decision in favor of Valdehueza

and Panerio, holding that they are theowners and have retained

their right as such over lots because of the Republic·s failure to

pay the amount of P4,062.10,adjudged in the expropriation

proceedings. However, in view of the annotation on their land

titles, they were orderedto execute a deed of sale in favor of the

Republic.They appealed the CFI·s decision to the SC. The latter

held that Valdehueza and Panerio are still the registeredowners of

Lots 932 and 939, there having been no payment of just

compensation by the Republic. SC still ruled that theyare not

entitled to recover possession of the lots but may only demand

the payment of their fair market value.Meanwhile, in 1964,

Valdehueza and Panerio mortgaged Lot 932 to Vicente Lim

herein respondent, assecurity for their loans. For their failure to

pay Lim despite demand, he had the mortgage foreclosed in

1976. The lottitle was issued in his name.On 1992, respondent

Lim filed a complaint for quieting of title with the RTC against the

petitioners herein.On 2001, the RTC rendered a decision in favor

of Lim, declaring that he is the absolute and exclusive owner of

the lotwith all the rights of an absolute owner including the right to

possession. Petitioners elevated the case to the CA. In

itsDecision dated September 18, 2003, it sustained the RTC

Decision saying: ´...

This is contrary to the rules of fair play becausethe concept of just

compensation embraces not only the correct determination of

the amount to be paid to the owners of the land,but also the

payment for the land within a reasonable time from its taking.

Without prompt payment, compensation cannot beconsidered "

just"...µPetitioner, through the OSG, filed with the SC a petition

for review alleging that they remain as the owner of Lot 932.

ISSUE:

Whether the Republic has retained ownership of Lot 932 despite

its failure to pay respondent·spredecessors-in-interest the just

compensation therefor pursuant to the judgment of the CFI

rendered as early asMay 14, 1940

HELD:

One of the basic principles enshrined in our Constitution is that no

person shall be deprived of hisprivate property without due

process of law; and in expropriation cases, an essential element

of due process is thatthere must be just compensation whenever

private property is taken for public use. 7Accordingly, Section 9,

Article III,of our Constitution mandates: " Private property shall not

be taken for public use without just compensation." The

Republicdisregarded the foregoing provision when it failed and

refused to pay respondent·s predecessors-in-interest the

justcompensation for Lots 932 and 939.The Court of Appeals is

correct in saying that Republic·s delay is contrary to the rules of

fair play. In jurisdictions similar to ours, where an entry to the

expropriated property precedes the payment of compensation,

ithas been held that if the compensation is not paid in a

reasonable time , the party may be treated as a trespasser ab

initio. As early as May 19, 1966, in Valdehueza , this Court

mandated the Republic to pay respondent·s predecessors-in-

interest the sum of P16,248.40 as "reasonable market value of

the two lots in question." Unfortunately, it did not complyand

allowed several decades to pass without obeying this Court·s

mandate. It is tantamount to confiscation of privateproperty. While

it is true that all private properties are subject to the need of

government, and the government maytake them whenever the

necessity or the exigency of the occasion demands, however from

the taking of privateproperty by the government under the power

of eminent domain, there arises an implied promise to

compensate theowner for his loss.There is a recognized rule that

title to the property expropriated shall pass from the owner to

theexpropriator only upon full payment of the just

compensation. So, how could the Republic acquire ownership

over Lot932 when it has not paid its owner the just compensation,

required by law, for more than 50 years? Clearly, without

fullpayment of just compensation, there can be no transfer of title

from the landowner to the expropriator.SC ruled in earlier cases

that expropriation of lands consists of two stages.

First is concerned with thedetermination of the authority of the

plaintiff to exercise the power of eminent domain and the propriety

of its exercise.The second is concerned with the determination by

the court of "the just compensation for the property sought to

betaken." It is only upon the completion of these two stages that

expropriation is said to have been completed In Republic v.

Salem Investment Corporation, we ruled that, "the process is not

completed until payment of just compensation." Thus,here, the

failure of the Republic to pay respondent and his predecessors-in-

interest for a period of 57 years renderedthe expropriation

process incomplete.Thus, SC ruled that the special circumstances

prevailing in this case entitle respondent to recover possession

of the expropriated lot from the Republic.While the prevailing

doctrine is that "the non-payment of just compensation does not

entitle the privatelandowner to recover possession of the

expropriated lots, however, in cases where the government failed

to pay justcompensation within five (5) years fr om the finality

of the judgment in the expropriation proceedings, theowners

concerned shall have the right to recover possession of their

property. After all, it is the duty of thegovernment, whenever it

takes property from private persons against their will, to facilitate

the payment of justcompensation. In Cosculluela v. Court of

Appeals, we defined just compensation as not only the correct

determination of the amount to be paid to the property owner but

also the payment of the property within a reasonable time.

Without prompt payment, compensation cannot be considered

"just."

UNITED STATES v. CAUSBY, 328 U.S. 256 (1946)

Military airplanes are subject to rules of Civil Aeronautics Board

where there are no army or navy regulations to the contrary.

This is a case of first impression. The problem presented is

whether respondents' property was taken within the meaning of

the Fifth Amendment by frequent and regular flights of army and

navy aircraft over respondents' land at low altitudes. The Court of

Claims held that there was a taking and entered judgment for

respondent, one judge dissenting. 60 F.Supp. 751. The case is

here on a petition for a writ of certiorari which we granted becuase

of the importance of the question presented.

Respondents own 2.8 acres near an airport outside of

Greensboro, North Carolina. It has on it a dwelling house, and

also various outbuildings which were mainly used for raising

chickens. The end of the airport's northwest-southeast runway is

2,220 feet from respondents' barn and 2,275 feet from their

house. The path of glide to this runway passes directly over the

property-which is 100 feet wide and 1,200 feet long. The 30 to 1

safe glide angle1 approved by the Civil Aeronautics Authority2

passes over this property at 83 feet, which is 67 feet above the

house, 63 feet above the barn and 18 feet above the highest

tree. 3 The use by the United States of this airport is pursuant to a

lease executed in May, 1942, for a term commencing June 1,

1942 and ending June 30, 1942, with a provision for renewals

until June 30, 1967, or six [328 U.S. 256, 259] months after the

end of the national emergency, whichever is the earlier.

Various aircraft of the United States use this airport-bombers,

transports and fighters. The direction of the prevailing wind

determines when a particular runway is used. The north-west-

southeast runway in question is used about four per cent of the

time in taking off and about seven per cent of the time in landing.

Since the United States began operations in May, 1942, its four-

motored heavy bombers, other planes of the heavier type, and its

fighter planes have frequently passed over respondents' land

buildings in considerable numbers and rather close together.

They come close enough at times to appear barely to miss the

tops of the trees and at times so close to the tops of the trees as

to blow the old leaves off. The noise is startling. And at night the

glare from the planes brightly lights up the place. As a result of

the noise, respondents had to give up their chicken business. As

many as six to ten of their chickens were killed in one day by

flying into the walls from fright. The total chickens lost in that

manner was about 150. Production also fell off. The result was

the destruction of the use of the property as a commercial chicken

farm. Respondents are frequently deprived of their sleep and the

family has become nervous and frightened. Although there have

been no airplane accidents on respondents' property, there have

been several accidents near the airport and close to respondents'

place. These are the essential facts found by the Court of Claims.

On the basis of these facts, it found that respondents' property

had depreciated in value. It held that the United States had taken

an easement over the property on June 1, 1942, and that the

value of the property destroyed and the easement taken was

$2,000. [328 U.S. 256, 260] I. The United States relies on the Air

Commerce Act of 1926, 44 Stat. 568, 49 U.S.C. 171 et seq., 49

U.S.C.A. 171 et seq., as amended by the Civil Aeronautics Act of

1938, 52 Stat. 973, 49 U.S.C. 401 et seq., 49 U. S.C.A. 401 et

seq. Under those statutes the United States has 'complete and

exclusive national sovereignty in the air space' over this country.

49 U.S.C. 176(a), 49 U.S.C.A. 176(a). They grant any citizen of

the United States 'a public right of freedom of transit in air

commerce4 through the navigable air space of the United States.'

49 U.S.C. 403, 49 U.S.C.A. 403. And 'navigable air space' is

defined as 'airspace above the minimum safe altitudes of flight

prescribed by the Civil Aeronautics Authority.' 49 U.S.C. 180, 49

U.S.C.A. 180. And it is provided that 'such navigable airspace

shall be subject to a public right of freedom of interstate and

foreign air navigation.' Id. It is, therefore, argued that since these

flights were within the minimum safe altitudes of flight which had

been prescribed, they were an exercise of the declared right of

travel through the airspace. The United States concludes that

when flights are made within the navigable airspace without any

physical invasion of the property of the landowners, there has

been no taking of property. It says that at most there was merely

incidental damage occurring as a consequence of authorized air

navigation. It also argues that the landowner does not own

superadjacent airspace which he has not subjected to possession

by the erection of structures or other occupancy. Moreover, it is

argued that even if the United States took airspace owned by

respondents, no compensable damage was shown. Any damages

are said to be merely consequential for which no compensation

may be obtained under the Fifth Amendment.

It is ancient doctrine that at common law ownership of the land

extended to the periphery of the universe-Cujus[328 U.S. 256,

261] est solum ejus est usque ad coelum. 5 But that doctrine has

no place in the modern world. The ai is a public highway, as

Congress has declared. Were that not true, every transcontinental

flight would subject the operator to countless trespass suits.

Common sense revolts at the idea. To recognize such private

claims to the airspace would clog these highways, seriously

interfere with their control and development in the public interest,

and transfer into private ownership that to which only the public

has a just claim.

But that general principle does not control the present case. For

the United States conceded on oral argument that if the flights

over respondents' property rendered it uninhabitable, there would

be a taking compensable under the Fifth Amendment. It is the

owner's loss, not the taker's gain, which is the measure of the

value of the property taken. United States v. Miller, 317 U.S. 369 ,

63 S.Ct. 276, 147 A.L. R. 55. Market value fairly determined is the

normal measure of the recovery. Id. And that value may reflect

the use to which the land could readily be converted, as well as

the existing use. United States v. Powelson, 319 U.S. 266, 275 ,

63 S.Ct. 1047, 1053, and cases cited. If, by reason of the

frequency and altitude of the flights, respondents could not use

this land for any purpose, their loss would be complete. 6 It would

be as complete as if the United States had entered upon the

surface of the land and taken exclusive possession of it.

We agree that in those circumstances there would be a taking.

Though it would be only an easement of flight [328 U.S. 256,

262] which was taken, that easement, if permanent and not

merely temporary, normally would be the equivalent of a fee

interest. It would be a definite exercise of complete dominion and

control over the surface of the land. The fact that the planes never

touched the surface would be as irrelevant as the absence in this

day of the feudal livery of seisin on the transfer of real estate. The

owner's right to possess and exploit the land-that is to say, his

beneficial ownership of it-would be destroyed. It would not be a

case of incidental damages arising from a legalized nuisance

such as was involved in Richards v. Washington Terminal

Co., 233 U.S. 546 , 34 S.Ct. 654, L.R.A.1915A, 887. In that case

property owners whose lands adjoined a railroad line were denied

recovery for damages resulting from the noise, vibrations, smoke

and the like, incidental to the operations of the trains. In the

supposed case the line of flight is over the land. And the land is

appropriated as directly and completely as if it were used for the

runways themselves.

There is no material difference between the supposed case and

the present one, except that here enjoyment and use of the land

are not completely destroyed. But that does not seem to us to be

controlling. The path of glide for airplanes might reduce a valuable

factory site to grazing land, an orchard to a vegetable patch, a

residential section to a wheat field. Some value would remain. But

the use of the airspace immediately above the land would limit the

utility of the land and cause a diminution in its value. 7 That was

the philosophy of Portsmouth Harbor Land & Hotel Co. v. [328

U.S. 256, 263] United States, 260 U.S. 327 , 43 S.Ct. 135. In

that case the petition alleged that the United States erected a fort

on nearby land, established a battery and a fire control station

there, and fired guns over petitioner's land. The Court, speaking

through Mr. Justice Holmes, reversed the Court of Claims which

dismissed the petition on a demurrer, olding that 'the specific facts

set forth would warrant a finding that a servitude has been

imposed.' 8 260 U.S. at page 330, 43 S.Ct. at page 137. And see

Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R.

1352. Cf. United States v. 357.25 Acres of Land, D.C., 55 F.Supp.

461.

The fact that the path of glide taken by the planes was that

approved by the Civil Aeronautics Authority does not change the

result. The navigable airspace which Congress has placed in the

public domain is 'airspace above the minimum safe altitudes of

flight prescribed by the Civil Aeronautics Authority.' 49 U.S.C.

180, 49 U.S.C.A. 180. If that agency prescribed 83 feet as the

minimum safe altitude, then we would have presented the

question of the validity of the regulation. But nothing of the sort

has been done. The path of glide governs the method of

operating- of landing or taking off. The altitude required for that

operation is not the minimum safe altitude of flight which is the

downward reach of the navigable airspace. The minimum

prescribed by the authority is 500 feet during the day and 1000

feet at night for air carriers (Civil Air Regulations, Pt. 61, 61.7400,

61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300

to 1000 feet for [328 U.S. 256, 264] other aircraft depending on

the type of plane and the character of the terrain. Id., Pt. 60,

60.350-60.3505, Fed.Reg.Cum.Supp., supra. Hence, the flights in

question were not within the navigable airspace which Congress

placed within the public domain. If any airspace needed for

landing or taking off were included, flights which were so close to

the land as to render it uninhabitable would be immune. But the

United States concedes, as we have said, that in that event there

would be a taking. Thus, it is apparent that the path of glide is not

the minimum safe altitude of flight within the meaning of the

statute. The Civil Aeronautics Authority has, of course, the power

to prescribe air traffic rules. But Congress has defined navigable

airspace only in terms of one of them-the minimum safe altitudes

of flight.

We have said that the airspace is a public highway. Yet it is

obvious that if the landowner is to have full enjoyment of the land,

he must have exclusive control of the immediate reaches of the

enveloping atmosphere. Otherwise buildings could not be

erected, trees could not be planted, and even fences could not be

run. The principle is recognized when the law gives a remedy in

case overhanging structures are erected on adjoining land.9 The

landowner owns at least as much of the space above the ground

as the can occupy or use in connection with the land. See Hinman

v. Pacific Air Transport, 9 Cir., 84 F.2d 755. The fact that he does

not occupy it in a physical sense-by the erection of buildings and

the like-is not material. As we have said, the flight of airplanes,

which skim the surface but do not touch it, is as much an

appropriation of the use of the land as a more conventional entry

upon it. We would not doub that if the United States erected [328

U.S. 256, 265] an elevated railway over respondents' land at the

precise altitude where its planes now fly, there would be a partial

taking, even though none of the supports of the structure rested

on the land. 10 The reason is that there would be an intrusion so

immediate and direct as to subtract from the owner's full

enjoyment of the property and to limit his exploitation of it. While

the owner does not in any physical manner occupy that stratum of

airspace or make use of it in the conventional sense, he does use

it in somewhat the same sense that space left between buildings

for the purpose of light and air is used. The superadjacent

airspace at this low altitude is so close to the land that continuous

invasions of it affect the use of the surface of the land itself. We

think that the landowner, as an incident to his ownership, has a

claim to it and that invasions of it are in the same category as

invasions of the surface. 11

In this case, as in Portsmouth Harbor Land & Hotel Co. v. United

States, supra, the damages were not merely consequential. They

were the product of a direct invasion of respondents' do- [328

U.S. 256, 266] main. As stated in United States v. Cress, 243

U.S. 316, 328 , 37 S.Ct. 380, 385, '... it is the character of the

invasion, not the amount of damage resulting from it, so long as

the damage is substantial, that determines the question whether it

is a taking.'

We said in United States v. Powelson, supra, 319 U.S. at page

279, 63 S.Ct. at page 1054, that while the meaning of 'property'

as used in the Fifth Amendment was a federal question, 'it will

normally obtain its content by reference to local law.' If we look to

North Carolina law, we reach the same result. Sovereignty in the

airspace rests in the State 'except where granted to and assumed

by the United States.' Gen.Stats. 1943, 63-11. The flight of aircraft

is lawful 'unless at such a low altitude as to interfere with the then

existing use to which the land or water, or the space over the land

or water, is put by the owner, or unless so conducted as to be

imminently dangerous to persons or property lawfully on the land

or water beneath.' Id., 63-13. Subject to that right of flight,

'ownership of the space above the lands and waters of this State

is declared to be vested in the several owners of the surface

beneath.' Id. 63-12. Our holding that there was an invasion of

respondents' property is thus not inconsistent with the local law

governing a landowner's claim to the immediate reaches of the

superadjacent airspace.

The airplane is part of the modern environment of life, and the

inconveniences which it causes are normally not compensable

under the Fifth Amendment. The airspace, apart from the

immediate reaches above the land, is part of the public domain.

We need not determine at this time what those precise limits are.

Flights over private land are not a taking, unless they are so low

and so frequent as to be a direct and immediate interference with

the enjoyment and use of the land. We need not speculate on that

phase of the present case. For the findings of the Court [328 U.S.

256, 267] of Claims plainly establish that there was a diminution

in value of the property and that the frequent, low-level flights

were the direct and immediate cause. We agree with the Court of

Claims that a servitude has been imposed upon the land.

II. By 145(1) of the Judicial Code, 28 U.S.C. 250(1), 28 U.S.C.A .

250(1), the Court of Claims has jurisdiction to hear and determine

'All claims (except for pensions) founded upon the Constitution of

the United States or ... upon any contract, express or implied, with

the Government of the United States.'

We need not decide whether repeated trespasses might give rise

to an implied contract. Cf. Portsmouth Harbor Land & Hotel Co. v.

United States, supra. If there is a taking, the claim is 'founded

upon the Constitution' and within the jurisdiction of the Court of

Claims to hear and determine. See Hollister v. Benedict &

Burnham Mfg. Co., 113 U.S. 59, 67 , 5 S.Ct. 717, 721; Hurley v.

Kincaid, 285 U.S. 95, 104 , 52 S.Ct. 267, 269; Yearsley v. W. A.

Ross Construction Co., 309 U.S. 18, 21 , 60 S.Ct. 413, 415. Thus,

the jurisdiction of the Court of Claims in this case is clear.

III. The Court of Claims held, as we have noted, that an easement

was taken. But the findings of fact contain no precise description

as to its nature. It is not described in terms of frequency of flight,

permissible altitude, or type of airplane. Nor is there a finding as

to whether the easement taken was temporary or permanent. Yet

an accurate description of the property taken is essential, since

that interest vests in the United States. United States v. Cress,

supra, 243 U.S. 328, 329 , 37 S.Ct. 385, 386, and cases cited. It

is true that the Court of Claims stated in its opinion that the

easement taken was permanent. But the deficiency in findings

cannot be rectified by statements in the opinion. United States v.

Esnault-Pelterie, 299 U.S. 201, 205 , 206 S., 57 S.Ct. 159, 161,

162; United States v. Seminole Nation, 299 U.S. 417, 422 , 57

S.Ct. 283, 287. Findings of fact on every 'material issue' are a

statutory [328 U.S. 256, 268] requirement. 53 Stat. 752, 28

U.S.C. 288, 28 U.S.C.A. 288. The importance of findings of fact

based on evidence is emphasized here by the Court of Claims'

treatment of the nature of the easement. It stated in its opinion

that the easement was permanent because the United States 'no

doubt intended to make some sort of arrangement whereby it

could use the airport for its military planes whenever it had

occasion to do so.' (60 F. Supp. 758.) That sounds more like

conjecture rather than a conclusion from evidence; and if so, it

would not be a proper foundation for liability of the United States.

We do not stop to examine the evidence to determine whether it

would support such a finding, if made. For that is not our function.

United States v. Esnault-Pelterie, supra, 299 U.S. at page 206, 57

S.Ct. at page 162.

Since on this record it is not clear whether the easement taken is

a permanent or a temporary one, it would be premature for us to

consider whether the amount of the award made by the Court of

Claims was proper.

The judgment is reversed and the cause is remanded to the Court

of Claims so that it may make the necessary findings in

conformity with this opin on.

REVERSED.

Mr. Justice JACKSON took no part in the consideration or

decision of this case.

Mr. Justice BLACK, dissenting.

The Fifth Amendment provides that 'private property' shall not 'be

taken for public use, without just compensation.' The Court holds

today that the Government has 'taken' respondents' property by

repeatedly flying Army bombers directly above respondents' land

at a height of eighty-three feet where the light and noise from

these planes caused respondents to lose sleep and their chickens

to be killed. Since the effect of the Court's decision is [328 U.S.

256, 269] to limit, by the imposition of relatively absolute

Constitutional barriers, possible future adjustments through

legislation and regulation which might become necessary with the

growth of air transportation, and since in my view the Constitution

does not contain such barriers, I dissent.

The following is a brief statement of the background and of the

events that the Court's opinion terms a 'taking' within the meaning

of the Fifth Amendment: Since 1928 there has been an airfield

some eight miles from Greensboro, North Carolina. In April, 1942,

this airport was taken over by the Greensboro-High Point

Municipal Airport Authority and it has since then operated as a

municipal airport. In 1942 the Government, by contract, obtained

the right to use the field 'concurrently, jointly, and in common' with

other users. Years before, in 1934, respondents had bought their

property, located more than one-third of a mile from the airport.

Private planes from the airport flew over their land and farm

buildings from 1934 to 1942 and are still doing so. But though

these planes disturbed respondents to some extent, Army

bombers, which started to fly over the land in 1942 at a height of

eighty-three feet, disturbed them more because they were larger,

came over more frequently, made a louder noise, and at night a

greater glare was caused by their lights. This noise and glare

disturbed respondents' sleep, frightened them, and made them

nervous. The noise and light also frightened respondents'

chickens so much that many of them flew against buildings and

were killed.

The Court's opinion seems to indicate that the mere flying of

planes through the column of air directly above respondents' land

does not constitute a 'taking'. Consequently, it appears to be

noise and glare, to the extent and under the circumstances shown

here, which make the government a seizer of private property. But

the allegation[328 U.S. 256, 270] of noise and glare resulting in

damages, constitutes at best an action in tort where there might

be recovery if the noise and light constituted a nuisance, a

violation of a statute,1 or were the result of negligence. 2 But the

Government has not consented to be sued in the Court of Claims

except in actions based on express or implied contract. And there

is no implied contract here, unless by reason of the noise and

glare caused by the bombers the Government can be said to

have 'taken' respondents' property in a Constitutional sense. The

concept of taking property as used in the Constitution has

heretofore never been given so sweeping a meaning. The Court's

opinion presents no case where a man who makes noise or

shines light onto his neighbor's property has been ejected from

that property for wrongfully taking possession of it. Nor would

anyone take seriously a claim that noisy automobiles passing on

a highway are taking wrongful possession of the homes located

thereon, or that a city elevated train which greatly interferes with

the sleep of those who live next to it wrongfully takes their

property. Even the one case in this Court which in considering the

sufficiency of a complaint gave the most elastic meaning to the

phrase 'private property be taken' as used in the Fifth

Amendment, did not go so far. Portsmouth Harbor Land & Hotel

Co. v. United States, 260 U.S. [328 U.S. 256, 271] 327, 43 S.Ct.

135. I am not willing, nor do I think the Constitution and the

decisions authorize me to extend that phrase so as to guarantee

an absolute Constitutional right to relief not subject to legislative

change, which is based on averments that at best show mere

torts committed by Government agents while flying over land. The

future adjustment of the rights and remedies of property owners,

which might be found necessary because of the flight of planes at

safe altitudes, should, especially in view of the imminent

expansion of air navigation, be left where I think the Constitution

left it, with Congress.

Nor do I reach a different conclusion because of the fact that the

particular circumstance which under the Court's opinion makes

the tort here absolutely actionable, is the passing of planes

through a column of air at an elevation of eighty-three feet directly

over respondents' property. It is inconceivable to me that the

Constitution guarantees that the airspace of this Nation needed

for air navigation, is owned by the particular persons who happen

to own the land beneath to the same degree as they own the

surface below. 3 No rigid Constitutional rule, in my judgment,

commands that the air must be considered as marked off into

separate compartments by imaginary metes and bounds in order

to synchronize air ownership with land ownership. I think that the

Constitution entrusts Congress with full power to control all

navigable airspace. Congress has already acted under that

power. It has by statute, 44 Stat. 568, 52 Stat. 973, provided that

'the United States of America is ... to possess and exercise

complete and exclusive national sovereignty in the [328 U.S. 256,

272] air space (over) the United States.' This was done under

the assumption that the Commerce Clause of the Constitution

gave Congress the same plenary power to control navigable

airspace as its plenary power over navigable waters. H. Rep. No.

572, 69th Cong., 1st Sess., p. 10; H. Rep. No. 1162, 69th Cong.,

1st Sess., p. 14; United States v. Commodore Park, Inc., 324 U.S.

386 , 65 S.Ct. 803. To make sure that the airspace used for air

navigation would remain free, Congress further declared that

'navigable airspace shall be subject to a public right of freedom of

interstate and foreign air navigation,' and finally stated

emphatically that there exists 'a public right of freedom of transit

... through the navigable airspace of the United States.' Congress

thus declared that the air is free, not subject to private ownership,

and not subject to delimitation by the courts. Congress and those

acting under its authority were the only ones who had power to

control and regulate the flight of planes. 'Navigable air-space' was

defined as 'airspace above the minimum safe altitudes of flight

prescribed by the Civil Aeronautics Authority.' 49 U.S.C. 180, 49

U.S.C.A. 180. Thus, Congress has given the Civil Aeronautics

Authority exclusive power to determine what is navigable airspace

subject to its exclusive control. This power derives specifically

from the Section which authorizes the Authority to prescribe 'air

traffic rules governing the flight of, and for the navigation,

protection, and identification of, aircraft, including rules as to safe

altitudes of flight and rules for the prevention of collisions between

aircraft, and between aircraft and land or water vehicles.' 49

U.S.C.A. 551. Here there was no showing that the bombers flying

over respondents' land violated any rule or regulation of the Civil

Aeronautics Authority. Yet, unless we hold the Act

unconstitutional, at least such a showing would be necessary

before the courts could act without interfering with the exclusive

authority which Congress gave to the administrative agency. Not

even a [328 U.S. 256, 273] showing that the Authority has not

acted at all would be sufficient. For in that event, were the courts

to have any authority to act in this case at all, they should stay

their hand till the Authority has acted.

The broad provisions of the Congressional statute cannot properly

be circumscribed by making a distinction as the Court's opinion

does between rules of safe altitude of flight while on the level of

cross-country flight and rules of safe altitude during landing and

taking off. First, such a distinction can not be maintained from the

practical standpoint. It is unlikely that Congress intended that the

Authority prescribe safe altitudes for planes making cross-country

flights, while at the same time it left the more hazardous landing

and take-off operations unregulated. The legislative history,

moreover, clearly shows that the Authority's power to prescribe air

traffic rules includes the power to make rules governing landing

and take-off. Nor is the Court justified in ignoring that history by

labeling rules of safe altitude while on the level of cross-country

flight as rules prescribing the safe altitude proper and rules

governing take-off and landing as rules of operation. For the

Conference Report explicitly states that such distinctions were

purposely eliminated from the original House Bill in order that the

Section on air traffic rules 'might be given the broadest

construction by the ... ( Civil Aeronautics Authority) ... and the

courts.' 4 In construing the statute narrowly the Court [328 U.S.

256, 274] thwarts the intent of Congress. A proper broad

construction, such as Congress commanded, would not permit

the Court to decide what it has today without declaring the Act of

Congress unconstitutional. I think the Act given the broad

construction intended is constitutional.

No greater confusion could be brought about in the coming age of

air transportation than that which would result were courts by

Constitutional interpretation to hamper Congress in its efforts to

keep the air free. Old concepts of private ownership of land

should not be introduced into the field of air regulation. I have no

doubt that Congress will, if not handicapped by judicial

interpretations of the Constitution, preserve the freedom of the air,

and at the same time, satisfy the just claims of aggrieved persons.

The noise of newer, larger, and more powerful planes may grow

louder and louder and disturb people more and more. But the

solution of the problems precipitated by these technological

advances and new ways of living cannot come about through the

application of rigid Constitutional restraints formulated and

enforced by the courts. What adjustments may have to be made,

only the future can reveal. It seems certain, however, [328 U.S.

256, 275] the courts do not possess the techniques or the

personnel to consider and act upon the complex combinations of

factors entering into the problems. The contribution of courts must

be made through the awarding of damages for injuries suffered

from the flying of planes, or by the granting of injunctions to

prohibit their flying. When these two simple remedial devices are

elevated to a Constitutional level under the Fifth Amendment, as

the Court today seems to have done, they can stand as obstacles

to better adapted techniques that might be offered by experienced

experts and accepted by Congress. Today's opinion is, I fear, an

opening wedge for an unwarranted judicial interference with the

power of Congress to develop solutions for new and vital and

national problems. In my opinion this case should be reversed on

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

sense.

Republic vs. Vda. de Castellvi

FACTS:

1 July 1947 - Petitioner Republic of the Philippines (Philippine Air

Force) occupied the land situated in Floridablanca, Pampanga of

Carmen M. vda. de Castellvi, the judicial administratrix of the

estate of the late Alfonso de Castellvi since by virtue of a contract

of lease.

30 June 1956 - Before the expiration of the contract of lease, the

Republic sought to renew the same but Castellvi refused,

intending to subdivide the lots for sale to the general public; filed

civil case for ejectment of AFP.

26 June 1959– In view of the difficulty for the army to vacate the

premises due to permanent installations and other facilities, AFP

filed expropriation proceedings and was placed in possession of

the lands on 10 August 1959.

In its complaint, the Republic alleged, among other things, that

the fair market value of the above-mentioned lands, according to

the Committee on Appraisal for the Province of Pampanga, was

not more than P2,000 per hectare (P.20/sqm), or a total market

value of P259,669.10 when AFP first had the ―taking‖ of the said

property by virtue of the special lease agreement. Respondents

allege that their lands are residential with a fair market value of

not less than P15/sqm.

The trial court rendered its decision, finding that the unanimous

recommendation of the commissioners of P10.00 per square

meter for the 3 lots subject of the action is fair and just

compensation

ISSUE:

1. WON the ―taking‖ of the properties under expropriation

commenced with the filing of the action

2. WON the P10/sqm is fair and just compensation.

HELD:

1. The "taking" of Catellvi's property for purposes of

eminent domain cannot be considered to have taken

place in 1947 when the Republic commenced to

occupy the property as lessee. Elements B & E were

not present when Republic entered the properties in

1947.

Elements/Requisites of ―taking‖ of property for purposes of

eminent domain:

A. Expropriator must enter a private property.

B. Entrance into private property must be for more than a

momentary period.

C. Entry into the property should be under warrant or

color of legal authority.

D. Property must be devoted to a public use or otherwise

informally appropriated or injuriously affected.

E. Utilization of the property for public use must be in

such a way as to oust the owner and deprive him of all

beneficial enjoyment of the property.

2. Under Section 4 of Rule 67 of the Rules of Court, the

―just compensation‖ is to be determined as of the date

of the filing of the complaint.

This Court has ruled that when the taking of the property sought

to be expropriated coincides with the commencement of the

expropriation proceedings, or takes place subsequent to the filing

of the complaint for eminent domain, the just compensation

should be determined as of the date of the filing of the complaint.

Herein, it is undisputed that the Republic was placed in

possession of the Castellvi property, by authority of the court, on

10 August 1959.

The ―taking‖ of the Castellvi property for the purposes of

determining the just compensation to be paid should not be paid

based on 1947 fair market value amount.

Basic guidelines in determining the value of the land to be

expropriated:

Same considerations are to be regarded as in a sale of

property between private parties.

Estimated by reference to the use for which the

property is suitable, having regard to the existing

business or wants of the community, or such as may

be reasonably expected in the immediate future.

In expropriation proceedings, therefore, the owner of the land has

the right to its value for the use for which it would bring the most

in the market.

We have arrived at the conclusion that the price of P10/sqm is

quite high. The price of P5/sqm would be a fair valuation and

would constitute a just compensation. We considered the

resolution of the Provincial Committee on Appraisal of the

province of Pampanga informing, that in the year 1959 the lands

could be sold for from P2.50- P4/sqm, and the Court arrived at a

happy medium between the price as recommended by the

commissioners and approved by the court, and the price

advocated by the Republic.

REPUBLIC VS. CASTELVI

Facts: In 1947, the republic, through the Armed Forces of the

Philippines (AFP), entered into a lease agreement with Castelvi

on a year-to-year basis. When Castelvi gave notice to terminate

the lease in 1956, the AFP refused. She then instituted an

ejectment proceeding against the AFP. In 1959, however, the

republic commenced the expropriation proceedings for the land in

question.

Issue: Whether or Not the compensation should be determined as

of 1947 or 1959

Held: The Supreme Court ruled that the ―taking‖ should not be

reckoned as of 1947, and that just compensation should not be

determined on the basis of the value of the property as of that

year.

The requisites for taking are: 1) the expropriator must enter a

private property, 2) the entry must be for more than a momentary

period, 3) it must be under warrant or color of authorities, 4) the

property must be devoted for public use or otherwise informally

appropriated or injuriously affected, and 5) the utilization of the

property for public use must be such a way as to oust the owner

and deprive him of beneficial enjoyment of the property. Under

Sec. 4 Rule 67 of the Rules of Court, ―just compensation‖ is to be

determined as of the date of the filing of the complaint. The

Supreme Court has ruled that when the taking of the property

sought to be expropriated coincides with the commencement of

the expropriation proceedings, or takes place subsequent to the

filing of the complaint for eminent domain, the just compensation

should be determined as of the date of the filing of the complaint.

In the instant case, it is undisputed that the Republic was placed

in possession of the Castelvi property, by authority of court, on

August 10, 1959. The ―taking‖ of the Castelvi property for the

purposes of determining the just compensation to be paid must,

therefore, be reckoned as of June 26, 1959 when the complaint

for eminent domain was filed. There is no basis to the contention

of the Republic that a lease on a year-to-year basis can give rise

to permanent right to occupy since by express provision a lease

made for a determinate time, as was the lease of Castelvi land in

the instant case, ceases upon the day fixed, without need of a

demand (Art. 1669, New Civil Code). The Supreme Court,

however, did not apply Art. 1250 of the New Civil Code for the

adjustment of the peso rate in times of extraordinary inflation or

deflation because in eminent domain cases the obligation to pay

arises from law independent of contract

CIR v. Central Luzon Drug Corp.

Facts: Central Luzon Drug Corp. (―CLDC‖) is a domestic

corporation primarily engaged in retailing of medicines and other

pharmaceutical products. From January to December

1996, CLDC granted 20% sales discount to qualified senior

citizens on their purchases of medicines pursuant to RA 7432 and

its IRR. For the said period, the amount allegedly representing the

20% sales discount granted by CLDC to qualified senior

citizens amounted to P904,769. CLDC filed its Annual Income

Tax Return for taxable year 1996 declaring therein that it incurred

net losses. It later filed with the CIR a claim for tax refund/credit in

the amount of P904,769. Unable to obtain affirmative response

from CIR, CLDC elevated its claim to the CTA.

The CTA initially ruled against CLDC. It held that if no tax has

been paid to the government, erroneously or illegally, or if no

amount is due and collectible from the taxpayer, tax refund or tax

credit is unavailing. CLDC lodged a MR wherein the CTA ordered

the CIR to issue a Tax Credit Certificate in favor of CLDC. It held

that tax refunds or credits do not exclusively pertain to illegally

collected or erroneously paid taxes as they may be other

circumstances where a refund is warranted.

On appeal, the CA affirmed the CTA resolution ordering the

CIR to issue a tax credit certificate in favor of CLDC. It reasoned

that RA 7432 required neither a tax liability nor a payment

of taxes by private establishments prior to the availment of a tax

credit. Moreover, such credit is not tantamount to an unintended

benefit from the law, but rather a just compensation for the taking

of private property for public use.

Issues:

(1) Whether CLDC, despite incurring a net loss, may still claim the

20% sales discount as a tax credit.

(2) What is the nature of the tax credit granted to the

establishments.

Held: (Please read the original for a more detailed discussion on

the tax issues)

(1) YES. Although the term is not specifically defined in the Tax

Code, tax credit generally refers to an amount that is subtracted

directly from one‘s total tax liability. It is an allowance against the

tax itself or a deduction from what is owed‖ by a taxpayer to the

government. Examples of tax credits are withheld taxes,

payments of estimated tax, and investment tax credits.

While a tax liability is essential to the availment or use of any tax

credit, prior tax payments are not. On the contrary, for the

existence or grant solely of such credit, neither a tax liability nor a

prior tax payment is needed. The Tax Code is in factfull

of provisions granting or allowing tax credits, even though no

taxes have been previously paid. The 20% discount required by

the law to be given to senior citizens is a tax credit, not merely a

tax deduction from the gross income or gross sale of the

establishment concerned. A tax credit is used by a private

establishment only AFTER the tax has been computed; a tax

deduction, BEFORE the tax is computed. RA 7432

unconditionally grants a tax credit to all covered entities. Thus, the

provisions of the revenue regulation that withdraw or modify such

grant are void. Basic is the rule that administrative regulations

cannot amend or revoke the law.

(2) The revenue regulation of RA 7432 is unconstitutional insofar

as it denies the exercise by the State of its power of eminent

domain. The privilege enjoyed by senior citizens does not come

directly from the State, but rather from the private establishments

concerned. Accordingly, the tax credit benefit granted to these

establishments can be deemed as their JUST

COMPENSATION for private property taken by the State for

public use.

The concept of public use is no longer confined to the traditional

notion of use by the public, but held synonymous with public

interest, public benefit, public welfare, and public

convenience. The discount privilege to which our senior citizens

are entitled is actually a benefit enjoyed by the general public to

which these citizens belong. The discounts given would have

entered the coffers and formed part of the gross sales of the

private establishments concerned, were it not for RA 7432. The

permanent reduction in their total revenues is a forced subsidy

corresponding to the taking of private property for public use or

benefit. As a result of the 20% discount imposed by RA

7432, CLDC becomes entitled to a just compensation. This term

refers not only to the issuance of a tax credit certificate indicating

the correct amount of the discounts given, but also to the

promptness in its release. When not done within a reasonable

time from the grant of the discounts it cannot be considered

as just compensation. In effect, CLDC is made to suffer the

consequences of being immediately deprived of its revenues

while awaiting actual receipt, through the tax credit certificate, of

the equivalent amount it needs to cope with the reduction in its

revenues.

The taxation power can also be used as an implement for the

exercise of the power of eminent domain. Tax measures are

but enforced contributions exacted on pain of penal

sanctions and clearly imposed for a public purpose. In recent

years, the power to tax has indeed become a most effective tool

to realize social justice, public welfare, and the equitable

distribution of wealth. Social justice cannot be invoked to trample

on the rights of property owners who under our Constitution are

also entitled to protection. It is not intended to take away rights

from a person and give them to another. For this reason, just

compensation for income that is taken away from CLDC becomes

necessary. It is in the tax credit that our legislators find support to

realize social justice, and no administrative body can alter that

fact.

COMMISSIONER OF INTERNAL

REVENUE, petitioner vs. CENTRAL LUZON DRUG

CORPORATION, respondent G.R. No. 148512, June 26, 2006,

Just like the first case herein discussed, this case delves

on the 20% discount granted to senior citizens. The respondent

filed a claim for refund on the unutilized portion for the discount

which it claimed as a tax credit. The CTA ruled that the tax credit

benefit is only to the extent of respondent‘s tax liability during the

year, hence the claim for refund is not allowed. The CA modified

that decision and ruled that the unutilized portion can be carried

over to the next taxable period if there is no current tax liability.

This ruling by the CA was affirmed by the SC.

In bringing the case to the SC, the CIR maintains that the

discount should only be allowed as a deduction from gross

income and not a reduction from the tax liability. The law (R.A.

No. 7432) provides that the discount is available as a tax credit.

However, the implementing regulations (RR No. 2-94) treat it as a

deduction from gross income following the customary treatment of

a sales discount. On this apparent conflict between the law and its

implementing rules, the SC said that when the law says that the

cost of the discount may be claimed as a tax credit, it means that

the amount – when claimed – shall be treated as reduction from

any tax liability. The law cannot be amended by a mere

regulation. The administrative agencies issuing these regulations

may not enlarge, alter or restrict the provisions of the law they

administer. In fact, a regulation that operates to create a rule out

of harmony with the statute is a mere nullity. (CIR vs. Vda.

De Prieto, 109 Phil. 592)

The SC also touched on the nature of the benefit granted

to the establishment selling to senior citizens. It emphasized that

―the tax credit benefit granted to the establishment can be

deemed as their just compensation for private property taken by

the State for public use. The privilege enjoyed by the senior

citizens does not come directly from the State, but rather from the

private establishments concerned. To deprive the taxpayer of

their right to apply the tax credit against future tax liability will be

to deny them the just compensation for the property taken

City of Manila v. Judge Laguio

Facts: Malate Tourist Development Corp. (―MTDC‖) is engaged in

the business of operating hotels, motels, hostels and lodging

houses. It built and opened Victoria Court in Malate which was

licensed as a motel although duly accredited with the Department

of Tourism as a hotel. The City Council enacted an Ordinance

prohibiting the establishment or operation of businesses providing

certain forms of entertainment in the Ermita-Malate area. MTDC is

seeking that the Ordinance be declared unconstitutional, insofar

as it includes motels and inns among its prohibited

establishments.

MTDC argued that the Ordinance erroneously and improperly

included in its enumeration of prohibited establishments, motels

and inns such as MTDC‘s Victoria Court considering that these

were not establishments for amusement or entertainment and

they were not services or facilities for entertainment, nor did they

use women as tools for entertainment, and neither did they

disturb the community, annoy the inhabitants or adversely affect

the social and moral welfare of the community.

Issue: Whether or not the Ordinance is unconstitutional.

Held: UNCONSTITUTIONAL. The police power of the City

Council, however broad and far-reaching, is subordinate

to constitutional limitations. The enactment of the Ordinance was

an invalid exercise of delegated power as it is unconstitutional

and repugnant to general laws.

Among others,[1] it violates Art. III, §9 which states that private

property shall not be taken for public use without just

compensation. The Ordinance is unreasonable and oppressive as

it substantially divests MTDC of the beneficial use of its

property. An ordinance which permanently restricts the use of

property that it can not be used for any reasonable purpose goes

beyond regulation and must be recognized as a taking of the

property without just compensation. It is intrusive and violative of

the private property rights of individuals.

Art. III, §9 is the most important protection of property rights in the

Constitution. This is a restriction on the general power of the

government to take property. It ensures that the government does

not confiscate the property of some to give it to others. If the

government takes away a person‘s property to benefit society,

then society should pay. The principal purpose of the guarantee

is to bar the Government from forcing some people alone to bear

public burdens which, in all fairness and justice, should be borne

by the public as a whole.

There are 2 types of taking that can be identified. A ―possessory‖

taking occurs when the government confiscates or physically

occupies property. A ―regulatory‖ taking occurs when the

government‘s regulation leaves no reasonable economically

viable use of the property. The issue of when regulation

constitutes a taking is a matter of considering the facts in each

case. A restriction on use of property may also constitute a

taking if not reasonably necessary to effect a substantial public

purpose or if it has an unduly harsh impact on the distinct

investment-backed expectations of the owner.

The Ordinance gives the owners and operators of the ―prohibited‖

establishments 3 months from its approval within which to:

(1) wind up business operations or (2) to transfer to any place

outside of the Ermita-Malate area or (3) convert said businesses

to other kinds of business allowable within the area.

Option (1) amounts to a closure of the establishment, a

permanent deprivation of property, and is practically

confiscatory. Unless the owner converts his establishment to

accommodate an ―allowed‖ business, the structure which housed

the previous business will be left unused. Suppose he transfers,

he will likewise leave the entire establishment idle. Consideration

must be given to the substantial amount of money invested to

build the edifices which the owner reasonably expects to be

returned within a period of time. It is apparent that the Ordinance

leaves no reasonable economically viable use of property in a

manner that interferes with reasonable expectations for use.

Options (2) and (3) are confiscatory as well. The penalty of

permanent closure in cases of subsequent violations is also

equivalent to a ―taking‖ of private property. Option (2) qualifies as

a taking without just compensation with an additional burden

imposed on the owner to build another establishment solely from

his coffers. Not only is this impractical, it is unreasonable, onerous

and oppressive. Option (3) is just as ridiculous. How

may MTDC convert a motel into a restaurant or a coffee shop, art

gallery or music lounge without essentially destroying its

property? This is a taking of private property without due process

of law, nay, even without compensation.

OSG v. Ayala Land

G.R. No. 177056, 18 September 2009

Facts: Ayala Land, Robinsons, and Shangri-la maintain

and operate shopping malls in Metro Manila. SM Prime

constructs, operates, and leases out buildings for commercial

use. Ayala Land et al. have parking facilities for all kinds of motor

vehicles. Ayala Land, Robinsons, and SM Prime spent for the

construction of their own parking facilities. Shangri-la is renting its

parking facilities. They also expend for the maintenance of

their parking facilities. They provide security to protect the

vehicles parked and maintain order within the area. In turn, they

collect parking fees from the persons making use of their facilities,

regardless of whether said persons are mall patrons or not. The

parking ticket issued contain the stipulation that they shall not be

responsible for any loss or damage to the vehicles parked in their‘

parking facilities.

The Senate Committees on Trade and Commerce and on Justice

and Human Rights (―Committees‖) conducted a joint investigation.

The Committees issued a Report finding that the collection of

parking fees by shopping malls is contrary to the National Building

Code and the Consumer Act of the Philippines. The Committees,

among others, recommended that the Office of the Solicitor

General (―OSG‖) should institute the necessary action to enjoin

the collection of parking fees as well as to enforce the penal

provisions of the National Building Code. The OSG should

likewise study how refund can be exacted from mall owners who

continue to collect parking fees.

Petitions for Declaratory Relief were filed. According to the Makati

RTC, the Building Code and its IRR do not impose that parking

spaces shall be provided by the mall owners free of charge.

Absent such directive, Ayala Land et al. are under no obligation to

provide them for free. To compel Ayala Land et al. to provide

parking for free can be considered as an unlawful taking of

property without just compensation.

On appeal, the CA affirmed the RTC decision and declared that

the National Building Code and the IRR were clear.

The provisions were only intended to control the occupancy or

congestion of areas and structures. In the absence of any express

and clear provision of law, Ayala Land et al. could not be obliged

and expected to provide parking slots free of charge.

Issue: Whether or not Ayala Land et al. may be compelled to

provide free parking.

Held: NO. The OSG limits its citation to the first part of §102 of

the National Building Code declaring the policy of the State[2] but

totally ignores the second part of said provision.[3] §102 is not an

all-encompassing grant of regulatory power to the DPWH

Secretary and local building officials in the name of life,

health, property, and public welfare. On the contrary, it limits the

regulatory power of said officials to ensuring that the minimum

standards and requirements for all buildings and structures, as set

forth in the National Building Code, are complied with.

In City of Ozamis v. Lumapas, the SC authorized the collection by

the City of minimal fees for the parking of vehicles along the

streets: so why then should the Court now preclude Ayala Land et

al. from collecting from the public a fee for the use of the mall

parking facilities? Undoubtedly, they also incur expenses in the

maintenance and operation of the mall parking facilities, such as

electric consumption, compensation for parking attendants and

security, and upkeep of the physical structures.

Without using the term outright, the OSG is actually invoking

police power to justify the regulation by the State of privately

owned parking facilities, including the collection of parking fees. In

totally prohibiting them from collecting parking fees, the State

would be acting beyond the bounds of police power. Police power

does not involve the taking or confiscation of property, with the

exception of a few cases where there is a necessity to confiscate

private property in order to destroy it for the purpose of protecting

peace and order and of promoting the general welfare.

When there is a taking or confiscation of private property for

public use, the State is exercising another of its inherent

powers, eminent domain. This enables the State to forcibly

acquire private lands intended for public use upon payment of just

compensation to the owner. A regulation that deprives any person

of the profitable use of his property constitutes a taking and

entitles him to compensation, unless the invasion of rights is so

slight as to permit the regulation to be justified under the police

power. Similarly, a police regulation that unreasonably restricts

the right to use business property for business purposes amounts

to a taking of private property, and the owner may recover

therefor.

Although in the present case, title to the parking facilities remain

with Ayala Land et al., the prohibition against their collection of

parking fees from the public is already tantamount to a taking or

confiscation of their properties. The State is not only

requiring them to devote a portion of the latter‘s properties for use

as parking spaces, but is also mandating that they give the public

access to said parking spaces for free. Such is already an

excessive intrusion into their property rights.Not only are they

being deprived of the right to use a portion of their properties as

they wish, they are further prohibited from profiting from its use or

even just recovering therefrom the expenses for the maintenance

and operation of the required parking facilities.

Heirs of Ardona vs Reyes

Facts The Philippine Tourism Authority filed 4 complaints with the

CFI of Cebu City for the expropriation of 282 ha of rolling land

situated in barangays Malubog and Babag, Cebu City for the

development intointegrated resort complexes of selected and

well-defined geographic areas with potential tourism value. The

PTA will construct a sports complex, club house, golf course,

playground and picnic area on said land.An electric power grid will

also be established by NPC as well as deep well and drainage

system.Complimentary support facilities (malls, coffee shops, etc)

will also be created. The defendants alleged that the taking is

allegedly not impressed with public use under theConstitution.

Also, assuming that PTA has such power, the intended use

cannot be paramount to thedetermination of the land as a land

reform area; that limiting the amount of compensation by

legislativefiat is constitutionally repugnant; and that since the land

is under the land reform program, it is the Courtof Agrarian

Relations and not the Court of First Instance, that has jurisdiction

over the expropriation cases. The Philippine Tourism Authority

having deposited with the PNB, an amount equivalent to 10% of

the value of the properties pursuant to PD1533, the lower court

issued separate orders authorizing PTA totake immediate

possession of the premises and directing the issuance of writs of

possession.

Issue:WON the public use requirement has been complied with

Held:YesRatio: There are three provisions of the Constitution

which directly provide for the exercise of the powerof eminent

domain. Sec 2, Article IV states that private property shall not be

taken for public use without just compensation. Section 6, Article

XIV allows the State, in the interest of national welfare or defense

andupon payment of just compensation to transfer to public

ownership, utilities and other private enterprisesto be operated by

the government. Section 13, Article XIV states that the Batasang

Pambansa mayauthorize upon payment of just compensation the

expropriation of private lands to be subdivided intosmall lots and

conveyed at cost to deserving citizens. While not directly

mentioning the expropriation of private properties upon payment

of just compensation, the provisions on social justice and

agrarianreforms which allow the exercise of police power together

with the power of eminent domain in theimplementation of

constitutional objectives are even more far reaching insofar as

taxing of privateproperty is concerned. We cite all the above

provisions on the power to expropriate because of thepetitioners'

insistence on a restrictive view of the eminent domain provision.

The thrust of all constitutionalprovisions on expropriation is in the

opposite direction.As early as 1919, this Court in Visayan Refining

Co. v. Samus categorized the restrictive view aswholly erroneous

and based on a misconception of fundamentals. The petitioners

look for the word"tourism" in the Constitution. Understandably the

search would be in vain. To freeze specific programs liketourism

into express constitutional provisions would make the Constitution

more prolix than a bulky codeand require of the framers a

prescience beyond Delphic proportions. In said case, this Court

emphasizedthat the power of eminent domain is inseparable from

sovereignty being essential to the existence of theState and

inherent in government even in its most primitive forms. The only

purpose of the provision in theBill of Rights is to provide some

form of restraint on the sovereign power. It is not a grant of

authority . The petitioners ask us to adopt a strict construction and

declare that "public use" means literallyuse by the public and that

"public use" is not synonymous with "public interest", "public

benefit", or "publicwelfare" and much less "public convenience."

The petitioners face two major obstacles. First, theircontention

which is rather sweeping in its call for a retreat from the public

welfare orientation is undulyrestrictive and outmoded. Second, no

less than the lawmaker has made a policy determination that

thepower of eminent domain may be exercised in the promotion

and development of Philippine tourism. The restrictive view of

public use may be appropriate for a nation which circumscribes

the scope of government activities and public concerns and which

possesses big and correctly located public lands thatobviate the

need to take private property for public purposes. Neither

circumstance applies to thePhilippines. We have never been a

laissez faire State. And the necessities which impel the exertion of

sovereign power are all too often found in areas of scarce public

land or limited governmentresources.There can be no doubt that

expropriation for such traditional purposes as the construction of

roads, bridges, ports, waterworks, schools, electric and

telecommunications systems, hydroelectric powerplants, markets

and slaughterhouses, parks, hospitals, government office

buildings, and flood control systems is valid. However, the

concept of public use is not limited to traditional purposes. Here

aselsewhere the idea that "public use" is strictly limited to clear

cases of "use by the public" has beendiscarded.In the Philippines,

Chief Justice Enrique M. Fernando has aptly summarized the

statutory and judicial trend as follows: "The taking to be valid must

be for public use. There was a time when it was feltthat a literal

meaning should be attached to such a requirement. Whatever

project is undertaken must befor the public to enjoy, as in the

case of streets or parks. Otherwise, expropriation is not allowable.

It is notany more. As long as the purpose of the taking is public,

then the power of eminent domain comes intoplay. As just noted,

the constitution in at least two cases, to remove any doubt,

determines what is publicuse. One is the expropriation of lands to

be subdivided into small lots for resale at cost to individuals.

Theother is in the transfer, through the exercise of this power, of

utilities and other private enterprise to thegovernment. It is

accurate to state then that at present whatever may be

beneficially employed for thegeneral welfare satisfies the

requirement of public use." The petitioners' contention that the

promotion of tourism is not "public use" because

privateconcessioners would be allowed to maintain various

facilities such as restaurants, hotels, stores, etc. insidethe tourist

complex is impressed with even less merit. Private bus firms,

taxicab fleets, roadsiderestaurants, and other private businesses

using public streets and highways do not diminish in the least

bitthe public character of expropriations for roads and streets. The

lease of store spaces in underpasses of streets built on

expropriated land does not make the taking for a private purpose.

Airports and pierscatering exclusively to private airlines and

shipping companies are still for public use. The expropriation of

private land for slum clearance and urban development is for a

public purpose even if the developed areais later sold to private

homeowners, commercial firms, entertainment and service

companies, and otherprivate concerns. The petitioners have also

failed to overcome the deference that is appropriately accorded

toformulations of national policy expressed in legislation. The rule

in Berman v. Parker (supra) of deferenceto legislative policy even

if such policy might mean taking from one private person and

conferring onanother private person applies as well as in the

Philippines. An examination of the language in the 1919cases of

City of Manila v. Chinese Community of Manila and Visayan

Refining Co. v. Camus, earlier cited,shows that from the very start

of constitutional government in our country judicial deference to

legislativepolicy has been clear and manifest in eminent domain

proceedings. The expressions of national policy arefound in the

revised charter of the Philippine Tourism Authority, PD

564.(Disregard of Land Reform Nature) According to them,

assuming that PTA has the right to expropriate, theproperties

subject of expropriation may not be taken for the purposes

intended since they are within thecoverage of "operation land

transfer" under the land reform program; that the agrarian reform

programoccupies a higher level in the order of priorities than other

State policies like those relating to the healthand physical well-

being of the people; and that property already taken for public use

may not be taken foranother public use. The petitioners, however,

have failed to show that the area being developed is indeed a

land reformarea and that the affected persons have emancipation

patents and certificates of land transfer. The records show that

the area being developed into a tourism complex consists of more

than 808hectares, almost all of which is not affected by the land

reform program. The portion being expropriated is282 hectares of

hilly and unproductive land where even subsistence farming of

crops other than rice andcorn can hardly survive. And of the 282

disputed hectares, only 8,970 square meters - less than

onehectare - is affected by Operation Land Transfer. Of the 40

defendants, only two have emancipationpatents for the less than

one hectare of land affected.(Non Impairment Clause) The non-

impairment clause has never been a barrier to the exercise of

policepower and likewise eminent domain. As stated in Manigault

v. Springs "parties by entering into contractsmay not estop the

legislature from enacting laws intended for the public good." The

applicable doctrine isexpressed in Arce v. Genato which involved

the expropriation of land for a public plaza. The issue of

prematurity is also raised by the petitioners. They claim that since

the necessity for the taking has notbeen previously established,

the issuance of the orders authorizing the PTA to take immediate

possessionof the premises, as well as the corresponding writs of

possession was premature.Under Presidential Decree No. 42, as

amended by Presidential Decree No. 1533, the government,

itsagency or instrumentality, as plaintiff in an expropriation

proceedings is authorized to take immediatepossession, control

and disposition of the property and the improvements, with power

of demolition,notwithstanding the pendency of the issues before

the court, upon deposit with the Philippine NationalBank of an

amount equivalent to 10% of the value of the property

expropriated. The issue of immediatepossession has been settled

in Arce v. Genato. In answer to the issue: ". . . condemnation or

expropriation proceedings is in the nature of one that is quasi-in-

rem, wherein the fact that the owner of the property ismade a

party is not essentially indispensable insofar at least as it

concerns the immediate taking of possession of the property and

the preliminary determination of its value, including the amount to

bedeposited."Makasiar: It appearing that the petitioners are not

tenants of the parcels of land in question and thereforedo not fall

within the purview of the Land Reform Code, the petition should

be dismissed on that scorealone. There is no need to decide

whether the power of the PTA to expropriate the land in question

predicated onthe police power of the State shall take precedence

over the social justice guarantee in favor of tenantsand the

landless. The welfare of the landless and small land owners

should prevail over the right of the PTAto expropriate the lands

just to develop tourism industry, which benefit the wealthy only.

Such a positionwould increase the disenchanted citizens and

drive them to dissidence. The government is institutedprimarily for

the welfare of the governed and there are more poor people in

this country than the rich. Thetourism industry is not essential to

the existence of the government, but the citizens are, and their

right tolive in dignity should take precedence over the

development of the tourism industry

Heirs of Juancho Ardona vs. Reyes

Facts: The Philippine Tourism Authority filed 4 complaints with the

Court of First Instance of Cebu City for theexpropriation of some

282 hectares of rolling land situated in barangay Alubog and

Babag, Cebu City, under PTA¶sexpress authority ³to acquire by

purchase, by negotiation or by condemnation proceedings any

private land withinand without the tourist zones´ for the purposes

indicated in Section 5, paragraph B(2), of its Revised Charter

(PD564). The heirs of Juancho Ardona et. Al, ) filed their

oppositions, and had a common allegation in that the taking

isallegedly not impressed with public use under the Constitution;

alleging that there is no specific constitutional provision

authorizing the taking of private property for tourism purposes;

that assuming that PTA has such power,the intended use cannot

be paramount to the determination of the land as a land reform

area; that limiting the amountof compensation by legislative fiat is

constitutionally repugnant; and that since the land is under the

land reform program, it is the Court of Agrarian Relations and not

the Court of First Instance (CFI), that has jurisdiction over

theexpropriation cases. The Philippine Tourism Authority having

deposited with the Philippine National Bank, CebuCity Branch, an

amount equivalent to 10% of the value of the properties pursuant

to Presidential Decree No. 1533,the lower court issued separate

orders authorizing PTA to take immediate possession of the

premises and directingthe issuance of writs of possession. The

Heirs of Ardona, et. al. then filed a petition for certiorari with

preliminaryinjunction before the Supreme Court

.Issue: Whether the expropriation of parcels of land for the

purpose of constructing a sports complex by thePhilippine

Tourism Authority be considered taking for ³public use.´

Held: The states power of eminent domain extends to the

expropriation of land for tourism purposes although thisspecific

objective is not expressed in the constitution. The policy

objectives of the framers can be expressed only ingeneral terms

such as social justice, local autonomy, conservation and

development of the national patrimony publicinterest, and general

welfare, among others. The programs to achieve these objectives

vary from time to time andaccording to place. To freeze specific

programs like tourism into express provisions would make the

constitutionmore prolix than bulky code and require of the framers

a prescience beyond Delphic proportions. The particular mention

in the constitution of agrarian reform and transfer of utilities and

other private enterprises to publicownership merely underscores

the magnitude of the problems sought to be remedied by this

programs. They do not preclude nor limit the exercise of the

power of eminent domain for the purposes like tourism and other

development program

Manotok v. NHA 150 SCRA 89 (1987)

Facts: Petitioners are the owners of two large estates known as

the Tambunting Estate and Sunog-Apog in Tondo, Manila, both of

which were declared expropriated in two decrees issued by

President Marcos, PD 1669 and PD 1670. The petitioners

contend that the decrees violate their constitutional right to due

process and equal protection since by their mere passage their

properties were automatically expropriated and they were

immediately deprived of the ownership and possession thereof

without being given the chance to oppose such expropriation. The

government on the other hand contends that the power of

eminent domain is inherent in the State and when the legislature

or the President through his law-making powers exercises this

power, the public use and public necessity of the expropriation

and the fixing of the just compensation become political in nature

and the courts must respect the decision.

HELD: The challenged decrees are unfair in the procedures

adopted and the powers given to the NHA. The Tambunting

subdivision is summarily proclaimed a blighted area and directly

expropriated by decree without the slightest semblance of a

hearing or any proceeding whatsoever. The expropriation is

instant and automatic to take effect immediately upon the signing

of the decree.

No deposit before the taking is required. There is not provision for

any interest to be paid upon unpaid installments. Not only are the

owners given absolutely no opportunity to contest the

expropriation, or question the amount of payments fixed by the

decree, but the decision of the NHA are expressly declared

beyond judicial review. PD 1669 and 1670 are declared

unconstitutional. Teehankee, CJ, concurring: The judgment at bar

now learly overturns the majority ruling in JM Tuason v. LTA that

the power of Congress to designate the particular property to be

taken adn how much may be condemned thereof must be duly

recognized, leaving only as a judicial question whether in the

exercise of such competence, the party adversely affected is the

victim of partiality and prejudice. The SC now rules that such

singling out of properties does not foreclose judicial scrutiny as to

whether such expropriation by legislative act transgresses the due

process and equal protection and just compensation guarantees

of the Constitution.

G.R. No. L-31814 January 31, 1973 RAYMUNDO Z.

FAMILARA vs. J.M. TUASON & CO., INC., GREGORIO

ARANETA, INC., CITY ENGINEER PANTALEON TABORA OF

QUEZON CITY, ALL THE JUDGES PRESIDING OVER THE

VARIOUS BRANCHES OF THE COURTS OF FIRST INSTANCE

AND CITY COURTS OF QUEZON CITY, and THE SHERIFF OF

QUEZON CITY, respondents.

An original action by the barrio captain of Barrio Tatalon, in his

own behalf and in representation of 1,500 "bona-fide" occupants

of the Tatalon Estate in Quezon City, to enjoin the respondent

Corporations, J. M. Tuason & Co., Inc. and Gregorio Araneta,

Inc., "from bulldozing and fencing any portion" of the Tatalon

Estate "and/or from selling" any of the lots therein, "and/or from

filing ejectment cases" against the "bona-fide" occupants of the

estate, the respondent City Engineer Quezon City from issuing

"building and fencing permits" to purchasers of lots within the

Tatalon Estate, and respondent City Sheriff of the same city from

"implementing writs of execution" or "orders of demolition" issued

against that occupants of the estate. The petitioner also seeks for

the issuance of an order to compel the presiding judges of the

Courts of First Instance and Courts of Quezon City to dismiss the

cases of accion publiciana or for ejectment filed by said

Corporation again the aforesaid occupants. This action is

predicated on the averment that on November 10, 1960, the Land

Tenure Administration was directed by the Executive Secretary to

initiate proceedings for the expropriation of the Tatalon Estate.

Reliance is thus placed by petitioner upon the provisions of

Section 4 of Republic Act No. 2616. There is no averment

however in the petition that any expropriation proceedings has in

fact been actually instituted before the courts. In view of recent

developments, since the submission of this case, the parties were

required on November 24, 1972, to comment whether or not in

their view, the case has been rendered moot. In the comment of

respondent Gregorio Araneta, Inc. said party stated that, while a

"preliminary conference" has been held between the People's

Homesite & Housing Corporation and the respondent, on the

unsold lots within the Tatalon Estate, which may still be acquired

by the government for distribution to the bona-fide occupants

thereof pursuant to Republic Act No. 2616, said party "cannot

determine the outcome of the announced desire of the

Government to acquire said property pursuant to said law."

In the absence of any proceeding for expropriation instituted

before the courts, petitioner has clearly no cause of action. It is

true that Republic Act No. 2616, insofar as it expropriated

singularly a particular private property, had survived the challenge

of being discriminatory, and was declared free from constitutional

infirmity. 1 Nevertheless, this Court has also ruled that Section 4 2

thereof, which places a restraint upon the exercise and enjoyment

by the owner of certain rights over its property, is justifiable only if

the government takes possession of the land and is in a position

to make a coetaneous payment of just compensation to its owner.

3 There could not be any other way by which the validity of the

provision may be sustained. Definitely, to hold that the mere

declaration of an intention to expropriate, without instituting the

corresponding proceeding therefor before the courts, with

assurance of just compensation, would already preclude the

exercise by the owner of his rights of ownership over the land, or

bar the enforcement of any final ejectment order that the owner

may have obtained against any intruder into the land, is to

sanction an act which is indeed confiscatory and therefore

offensive to the Constitution. For it must be realized that in a

condemnation case, it is from the condemnor's taking possession

of the property that the owner is deprived of the benefits of

ownership, 4 such as possession, management and disposition

thereof. Before that time, the proprietary right of the owner over

his property must be recognized.

Actually, there should no longer be any doubt, on this matter. In a

series of cases previously passed upon by this Court, involving

the same private respondents and property, and occasioned by

the congressional approval of the same Republic Act No. 2616, it

was definitively ruled that until the proceedings for condemnation

have been fully instituted and possession of the property is taken

over by the condemnor, the enforcement of final decrees of

eviction may not be lawfully suspended. 5 Thus:

... the mere filing of the condemnation proceedings for the benefit

of tenants can not, by itself alone, lawfully suspend the

condemnee's dominical rights, whether of possession, enjoyment

or disposition. And this is especially the case where final and

executory judgments of ejectment have been obtained against the

occupants of the property. (Tuason and Co. Inc. vs. Land Tenure

Administration, L-18128, Dec. 26, 1961).

As heretofore adverted to nothing has been presented in the case

at bar, to show that an action for expropriation of the lots allegedly

occupied by the 1,500 persons named in Annex "A" of the petition

has actually been instituted and is being pursued by the

government, nor is there proof that the supposed appropriated

amount of P10,000,000.00, for the purchase of the Tatalon Estate

by the government, has been duly certified as available for that

purpose. Under such circumstances no valid ground has really

been established to restrict respondents' exercise of their

dominical rights over their property.

In view of the conclusion thus arrived at, We find it unnecessary

to pass upon the other issues raised by the respondents.

WHEREFORE, the petition is hereby dismissed, without costs.

Footnotes

1 J.M. Tuason and Co., Inc. v. Land Tenure Administration, L-

21064, Feb. 18, 1970, 31 SCRA 413.

2 "SEC. 4. After the expropriation proceedings mentioned in

section two of this Act shall have been initiated and during the

pendency of the same, no ejectment proceedings shall be

instituted or prosecuted against the present occupant of any lot in

said Tatalon Estate, and no ejectment proceedings already

commenced shall be continued, and such lot or any portion

thereof shall not be sold by the owners of said estate to any

person other than the present occupant without the consent of the

latter given in a public instrument."