local government (1)

8/3/2019 Local Government (1)

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I. HISTORY AND EVOLUTION OF LOCAL GOVERNMENT UNITS

A. In General

B. Pre-Spanish Times b. 1 The Sumakwel Code

In 1212, after fleeing from the oppressive regime of Datu Makatunaw in Borneo, 10datus set up their own tribal colonies in the Visayan Islands. One of them, Datu Sumakwel,established on the Island of Panay the Confederation of Madiaas and its constitution, the Codeof Maragtas or the Code of Sumakwel. The Code of Sumakwel was considered among the firstFilipino laws enacted before the Pre-Hispanic times. It consisted of 10 articles, mainly focusingon punishment for laziness.

An American historian, Paul Morrow debunks the Sumakwel Code as nothing morethan the product of Guillermo Cuino’s imagination. Cuino was the first person to write about theCode Sumakwel in an essay in 1858 wherein he claimed to have translated the Code from anancient Filipino document. However, Cuino presented no other proof other than his dubiousessay. Nevertheless, Paul Morrow laments, much of the Filipino education system to this daystill preaches the Sumakwel Code as gospel historical truth.

b. 2 The Code of KalantiawDatu Kalantiaw was among the ancient Visayans who built a kingdom with its own

tribal code known as the Code of Kalantiaw, supposedly around 1150. It contains 18 articles,which consists mainly of punishment for criminal acts ranging from the traditional ones such ashomicide, theft and nonpayment of debts to the bizarre and superstitious such as disrespect for revered trees or killing black cats during the new moon. The Code of Kalantiaw also hasfeudalistic overtones such as obligating those with the beautiful daughters to give them up to the

sons of chiefs as well as providing special punishment for those who commit particular crimesagainst the tribal headmen as stated in the Code.

Punishments for the crimes stated in the Code are cruel by today’s standards; for example,those who sing while traveling by night are beaten for two days while those who commithomicide and theft are condemned to death by being drowned in the r iver or in boiling water.

In 1968, William Henry Scott, another American historian revealed the Code of Kalantiawas an outright hoax perpetuated by forger Jose Marco. Marco gave the Philippine Library andMuseum as ancient document claiming to be the Code of Kalantiaw in 1912. The supposedCode and Marco’s claims on how he obtained the ancient document had too manydiscrepancies and anomalous reference to historical facts that could not have existed during thetime of the Code’s supposed existence. Only recently have a few historians such as Sonia M.Zaide regarded the Code as a fraud but, as Paul Morrow says, the lie still lives on.C. The Spanish Era

c. 1 Harty v. Mun of Victoria 13 Phil. 152Facts: Monsignor Harty, an archbishop of the Roman Catholic Church based in

Manila, claims that his parish owns the plaza located in the municipality of Victoria, Tarlac,claiming to be in peaceful possession of it for more than 60 years up to 1901. The defendantmunicipality replied that Victoria was constituted into a town in 1855 and that the parish of Tarlacwas established many years afterwards; therefore the latter cannot claim title to the plaza.Evidence seemed to show that the original owner, Casimiro Tanedo, of the land wherein theplaza is located, donated said land to the church in general and not to the town curate, since apermanent curate was not appointed in Victoria until 1867. However, from the moment the townwas created, both the town curate and the townspeople have enjoyed free access of the plaza.Still, Monsignor Harty claims the parish of Tarlac owns the plaza on the grounds of 1)prescription and 2) that the act of the curates and the gobernadorcillos of planting fruit trees andplants on the plaza constituted private ownership.

Held: Monsignor Harty’s contentions are incorrect. Reasons:1. It was a Philippine custom then that upon the establishment of a new town, a large

tract of land is always reserved in its center for the creation of a plaza. Before Victoria became atown it was a mere barrio. It must be assumed that the principal residents of Victoria wanted to

have a public plaza should their barrio be converted into a town. Therefore, even before Victoriabecame a town, the land now in dispute was always intended to be a public plaza.

2. There was no sufficient proof that the late Casimiro Tanedo intended to donate theportion of the land intended to be a public plaza to the church in general

3. It has been fully proven that the plaza has always been used by the people of Victoria from the moment the town was created

4. Plazas destined for public use are not subject to prescription (Art. 1936, the OldCivil Code)

5. Planting of fruit trees by the curates, etc. do not constitute an act of privateownership but either evidence of public use or as embellishments for the benefit of thetownspeople.

c. 2 Rubi v. Provincial board of Mindoro 39 Phil. 660Facts: Rubi and his fellow Manguianes filed an application for habeas corpus on the

ground that they were being deprived of their liberty by the provincial officials of Mindoro. Rubiclaimed they were being held against their will at a reservation in Tigbao, Mindoro while oneDabalos was imprisoned for having run away from the reservation. The provincial officials of Mindoro however, countered that they were authorized under section 2145 of the AdministrativeCode of 1917 to implement measures for the advancement of the non-Christian people of Mindoro by obliging them to live in one place in order to educate them.

Held: The Supreme Court ruled in favor of the provincial officials of Mindoro on thegrounds that:

1. They were merely exercising the police power of the state for a lawful purpose andthrough lawful means, which can validly limit the exercise of Civil liberty. The Supreme Courtcited past legislation implemented in the Philippines which justified the placing in a reservation of the Manguianes such as:

a. Book 6, Title 3 – A compilation of laws implemented during the Spanish forcing theIndios to leave poblaciones (communities) or reducciones in order to instruct them to theCatholic faith and enable them to live in a civilized manner.

b. Decree of the Governor-General of January 14, 1881- Decree ordering the Indios tobe governed by the common law and not allowing them, unless with absolute necessity, tochange their residence.

c. Letter of Instructions by President McKinley – Uncivilized tribes are allowed to keeptheir tribal governments, subject to regulation by the Americans.

d. The Philippine Bill of 1902 – The Philippine Commission (which composed ½ of thePhilippine Legislature, the other being the Philippine Assembly) was given exclusive jurisdictionover the territory inhabited by the Moros and other non-Christian tribes of the Philippines

e. The Jones Law2. Although the Maguianes were labeled as “non-Christian,” the intent of the law was

not to refer to any particular religions or geographical discrimination but is predicated on the lackof civilization by them, which the measure implemented by the provincial officials of Mindorointended to correct.

3. The measure implemented was a valid delegation of legislative power by thePhilippine legislature as it was done in accordance with Administrative Code of 1917

c.3 The Maura LawQueen Regent Maria Cristina of Spain, upon the recommendation of Colonial Minister

Antonio Maura, promulgated the Royal Decree of May 19, 1893 which provided for anautonomous local government in the Philippines. Under the Maura Law there was constituted aMunicipal Tribunal of five, the captain and 4 lieutenants. It was given charge of the active workof governing the municipality, such as administration of public works, etc. and the details of taxation. In addition, each of its members was required to have special qualifications. Thesepositions were honorary. The term of office was 4 years. The officers, together with 2substitutes, were elected by 12 delegates of the principalia. The principalia was composed of allpersons who has held certain offices (such as cabeza de barangay or former captains) or whohas paid a land tax of P50. The Governor General and the provincial governor retaineddisciplinary jurisdiction over the council and its individual members, the Provincial Board alsohad supervision of the municipal council (Malcolm, Gov’t. of the Philippines Islands, pp. 69-71,Document 362, The Maura Law of 1893)



c. 4 The Treaty of ParisThe Treaty of Paris officially ended the Spanish-American War of 1898. It was ratified

by Spain and the United States on December 10, 1898. It contained 17 articles, importantprovisions including:

Art. 1 – Relinquishment by Spain of its claim of sovereignty and title to Cuba. Art. 2 –Cession to the U.S. of the islands of Puerto Rico and Marianas. Art. 3 – Cession to the U.S. of the Philippines for the sum of $20 million. Art. 9 – Allowing Spanish subjects which are natives of the Philippines to remain in the Philippines if they so desire. The civil rights and political status of the native inhabitants of the territories hereby ceded to the U.S. shall be determined byCongress. Art. 11 – Relinquishment of all civil and criminal jurisdictions over all territories ceded.Art. 12 – Provides for rules on deciding judicial proceedings pending at the time of the ratificationof the treaty.

D. The American Periodd.1 The Jones LawThe Jones Law of 1893 was virtually an American-made constitution providing for a

complete form of semi-autonomous government in the Philippines. It defined governmentfunctions into an executive to be appointed by the U.S. President with the consent of the Senate,who was called the American Governor-General in the Philippines. The legislative power wasvested in an elective bicameral/legislature – a Senate and a House of Representatives. The

judicial power was exercised by the Supreme-Court and other lower courts, with Filipino andAmerican justices. The Jones Law also extended the Bill of Rights, defined Filipino citizenshipand provided for other safeguards and restrictions.

The bulk of the Jones Law comprised mainly of defining the executive, legislative and judicial powers of the government.

E. The Japanese Occupatione.1 Topacio Nueno Angeles, 76 Phil. 12Facts: Jose Topacio Nueno and 3 other petitioners ran for and eventually obtained

seats in the Municipal Board of Manila in 1940. World War II and the subsequent Japaneseoccupation however took place. After the war, 6 new board members were appointed by thePresident. Nueno, et. al. claimed that the appointment was null and void because 1) their term of office had not expired due to the world war and 2) even if 1) were not true, they still had the rightto hold over their officers until their new successors were elected and qualified.

Held: Nueno and his goons were incorrect. Reasons:1) The word “term” is different from “tenure.” There is no law which allows

the extension of terms of office by reason of war. 2) As for tenure, the same may be shortenedor extended for various reasons, such as the death of the incumbent or as otherwise provided bylaw. The principle of the right to hold over may validly extend the tenure of office. However,Nueno, et. al. cannot invoke this right because under 16 (a) of the Commonwealth Act, thePresident has the discretion of appointing temporary board members until duly elected board

members can be qualified.F. The Post War Years

f. 1 R.A. 2264, as amended – The Local Autonomy ActEntitled, “An Act Amending the Laws governing Local Governments by Increasing

their Autonomy and Reorganizing the Provincial Governments,” the Act provides for, amongother things: Procedure in establishing the provincial, city, municipal and regularly organizedmunicipal district budgets for each fiscal year, taxation sources; appropriation of funds for thegeneral welfare of the public; grant of the power of eminent domain; composition of theprovincial board; qualifications of members of the provincial board, governors, vice-governors,mayors and vice-mayor; appointment power of provincial governor, city mayor and municipalmayor; and assignment of other powers to the provincial board, municipal board or city councils.Any fair and reasonable doubt as to the interpretation of the Local Autonomy Act shall beresolved in favor of the local government and shall be presumed to exist.

f. 2 R.A. 2370 – The Barrio Charter Act“Barrios” are units of municipalities or municipal districts in which they are located.

They are quasi-municipal corporations endowed with such powers as herein provided in said Act

for the performance of particular government functions to be exercised by and through their respective barrio governments in conformity with law.

Barrios may be created or its name changed by a petition of the majority of voters inthe areas affected. They may sue and be sued and may be deal with any real or personalproperty in the manner provided by law.

No barrio may be created if its population is less than 500 people or out of charteredcities, or poblaciones of municipalities.

The Act also provides for the barrio council headed by the barrio lieutenant. The barriocouncil shall meet with the qualified voters of the barrio at least once a year in a barrio assemblyto discuss, among others, election of new officers, raising of funds and adopt measures for thewelfare of the barrio. The Act also provides for the qualifications of the barrio council membersand their powers and responsibilities, such as the taxation power and its sources.

f. 3 R.A. 3590 – Revised Barrio Charter ActThis Act is essentially the same as its predecessor, with the following pertinent

amendments;

1) A plebiscite may be called to decide on the recall of any member of the barrio

council member or approve any budgetary, supplement appropriations or specialtax ordinances.

2) Renaming the barrio lieutenant as barrio captain

3) Right of succession in case of vacancy in the barrio captain position (there is no

vice-barrio captain in both Acts).

4) The municipal mayor shall have power of supervision over barrio officials\

5) Procedure in barrio council, such as holding of meetings every month6) Effectively of barrio ordinances (unless otherwise, after 60 days after its passage

or 15 days after its confirmation in a plebiscite)f. 4 R.A. 5185 – The Decentralization Act of 1967This Act further strengthens the autonomous powers of local governments by

providing for the following pertinent provisions:1) Provincial and city governments are empowered to undertake field agricultural work

and rural health work whenever deemed to be necessary to assist in national programs or services.

2) Appointment of heads, assistant heads of local officers and their subordinates3) Suspension and removal of elective local officials (grounds: disloyalty to

RP, dishonesty, oppression and misconduct in the office)4) Restriction in practice of law by members of provincial, city or municipal board5) Succession to office of vice-governor and vice-mayor.6) Filling of special vacancies in local legislative bodies.7) Filling of elective officers in newly created and newly classified provinces, cities,

municipalities or municipal districts

8) List of actions of provincial, city and municipal officials and provincial boardsdeclared immediately effective.9) Certain duties and powers of local chief executives not to be subject to direction

and review of any national official10) Release and apportionment of certain government funds11) Creation of following positions: provincial engineer, city public works official,

provincial attorney and city legal officer 12) Creation of Joint Local Government Reform Commission (for continuing studies on

local autonomy of Local Government and prepare local government code)

G. The Martial Law Epochg. 1 P.D. 145This decree amended Section 2 of R.A. 2264 or Local Autonomy Act because the said

section was ineffective in carrying out the Secretary of Finance’s power to suspend theeffectively of any local tax ordinance which in his opinion is unjust, excessive or oppressive or contrary to national policy. Said decree improves this situation by giving the local legislativebody either 30 days to modify the tax ordinance or appeal the suspension order of the Secretary



of Finance in a court of competent jurisdiction; otherwise, the tax ordinance or its part of parts inquestion is considered revoked

g. 2 B.P. 337 – The Local Government Code of 1983This Code provides for the pertinent following provision:1) General powers and attributes of local government units.2) Powers and restrictions of Local Government Units to: Create sources of revenue; eminentdomain; closure of roads; suability; enter into contracts; convey property; limited non-liability for damages.3) National supervision over local governments4) Relationship between Province-city, province-municipality; city-barangay, municipality-barangay; city-barangay; public officials-LGUs5) Fiscal matters; Expenditure of government funds; preparation of budget6) Requirement and prohibitions of local gov’t. officials; vacancy and succession7) Qualification and election of local gov’t. officials; vacancy and succession8) Recall, suspension and removal of elective officials9) Creation of local school boards10) Personnel Administration11) Settlement of municipal and barangay boundary disputes12) Details on barangay and barangay officials; municipal and municipal officials; city and cityofficials; province and province officials

H. The Presenth. 1 R.A. 7160 – The Local Government Code of 1991. From the LGC of 1983, the

following pertinent provisions were added:1) Operative principles of decentralization

2) Authority by Congress or any political subdivision to create, divide, merge,abolish or alter boundaries

3) Emphasis on general welfare and imposition of basic services and facilities onpolitical subdivisions

4) Reclassification of lands5) Authority of LGUs to secure and negotiate grants6) Creation of Local Prequalification, Bids and Awards Committee7) Other procedural and technical changes

II. PRIMARY LAW AND GENERAL PROVISIONSA. Read Article X, Section 9 and Article XVIII, 1987 Constitution

a.1 Article X, Section 10 – No province, city, municipality or barangay may be created,divided, merged abolished or its boundaries substantially altered, except in accordance with thecriteria established in the local government code and subject to approval by a majority of thevotes cast in a plebiscite in the political units directly affected.

NOTE: Read the whole of Article X of the 1987 Constitution as well, as it refers to local,governments in general. It contains 21 sectors. Also Prof. Ulep must have meant Season 10 andnot 5 in his outline.

a. 2 Article XVIII, Sec. 8 - Unless otherwise provided by Congress, the President may constitutethe Metropolitan Authority to be composed of the heads of all local government units comprisingthe Metropolitan Manila Area.

Article XVIII, Sec. 9 – A sub-province shall continue to exist and operate until it is converted intoa regular province or its component municipalities are reverted to the mother province.

NOTE: There’s no point in reading all other sections of Article XVIII. See for yourself.

B. Read R.A. 7924(Metropolitan Manila Development Authority)

This Act states the policy of the State to treat Metro Manila as a special developmentand administrative region and certain basic services affecting or involving Metro Manila as metrowide services more efficiently and effectively planned, supervised and coordinated by adevelopment authority as created herein, without prejudice to the autonomy of the affected LGU.Among its pertinent provisions are:

1) Scope of MMDA (metro-wide) services: Development planning; transport andtraffic management; solid waste disposal and management; Flood control; Urbanrenewal; zoning and land use planning; health sanitation; Urban protection andpollution control; pu8blic safety;

2) Creation of Metro Manila Council (MMC) consisting of all mayors in Metro Manila3) Powers and Functions of MMDA, mainly to formulate, coordinate, and regulate

implementation of above metro-wide services4) Functions of MMC, mainly to approve projects of MMDA

5) Function of MMDA chairman: Execute policies of MMC and manage operationsof MMDA; appointment power; prepare budget of MMDA; disciplinary power onsubordinates; ex officio board member (or his representative) of departmentsrelated to activities of MMDA such as DOTC, DOH, etc.

6) Institutional linkages of MMDA: NEDA, NGOs , accredited people’s organizations

b. 1 Lopez, Jr. v. COMELEC, 136 SCRA 633Facts: Mel Lopez, et. Al. questioned the validity of P, D. 824 which provides for the

creation of Metro Manila Commission which shall hold sway over 4 cities (Manila, Quezon,Caloocan, and Pasay) and 13 municipalities. P.D. He says it runs counter to Art. 11, Sec. 3 of the 1973 Constitution which states that: “No province, city, municipality or barrio may be created,divided, abolished, merged or its boundaries substantially altered, except in accordance with the

criteria established in the Local Government Code and subject to the approval of the majority of votes cast in a plebiscite in the unit or units affected.” No plebiscite was conducted to vote for the creation of Metro Manila. He also claims the P.D. is a denial of the equal protection clauseas other cities and municipalities were not similarly organized into such. Also the Presidentcannot exercise direct supervision and control over the Metropolitan Manila Commission as itruns counter to the autonomy of local governments.

Held: Mel Lopez is incorrect. Reasons:

1. Although a plebiscite was not conducted, a referendum was held Feb. 27, 1975wherein the residents of the Greater Manila area authorized the President to reorganize thecities and municipalities under the Metro Manila Commission. The requirements for a plebiscitewere therefore deemed satisfied. Besides, at the time of the referendum, there was no LocalGovernment Code in existence then which provided the need for a plebiscite. By virtue of martiallaw and the absence of an interim Batasang Pambansa at that time, the President had authority

to enact said P.D.2. There is reasonable classification in organizing said 4 cities and 13 municipalities intoa metropolitan area

3. Article 8, Sec. 2 of the 1973 Constitution expressly recognizes the juridical entityknown as Metropolitan Manila

4. There is presumption of constitutionality in the President’s power of direct supervisionand control over the Metropolitan Manila Commission. The presidential power of control can andshould be constructed to mean that said control is limited to those that may be considerednational in character.

b. 2 MMDA v. Bel-Air Assn, Inc., 328 SCRA 836Facts: Pursuant to R.A. 7924 which created the MMDA, MMDA issued a notice to the

Bel-Air Village Assoc. (BAVA) that the former will open Neptune Street owned by the latter inBel-Air Village, as well as tear down a perimeter wall owned by said village. Both actions, theMMDA said, is necessary for the decongestion of traffic along the said areas.

BAVA petitioned the trail court and later on the Court of Appeals to enjoin theimplementation of MMDA’s proposed actions. BAVA’s petition was granted. The MMDA thus



now seeks recourse with the Supreme Court, claiming among others that its proposed actionswere in the exercise of the police power.

Held: MMDA is wrong. The reason is that R.A. 7924 did not expressly or impliedlydelegate any police power to the MMDA, most notably the power to enact ordinances necessaryfor the implementation of its plans, programs and projects aimed at the delivery of metro-wideservices in Metro Manila, without diminution of the autonomy of the LGUs concerning purely local matters (See. 2, R.A. 7924) MMDA’s proposed actions were not under the authority of anyordinance (What’s funny is that the MMC, the governing board of the MMDA, is composed of thedifferent mayors of Metro Manila, and these guys, as mayors per se, have the power or at least,the political will to enact ordinances)

C. Read R.A. 6732 (Organic Act for ARMM [Autonomous Region in Muslim Mindanao])

Mindanao, encompassing 13 provinces and 9 cities, through a plebiscite for thatpurpose. This government shall operate within the framework of the Regional Government. Theexecutive power is conferred on the Regional Governor. The legislative power is conferred in theRegional Assembly. The Supreme Court, the Court of Appeals and the lower courts shallcontinue to exercise their power as mandated in the Constitution; however, there shall be aShari’ah Appellate Court which shall also be learned in Islamic law and jurisprudence. TheShari’ah Court’s decisions shall be final and executory subject to the original and appellate

jurisdiction of the Supreme Court. Tribal Appellate Courts for cases dealing with tribal codesshall also be established.

The Regional Government shall have fiscal autonomy or the power to create its ownsources of revenue, subject to the limitations of the Constitution and this Organic Act. TheOrganic Act also provides for: Protection of ancestral lands, ancestral domain and indigenouscultural communities; urban and rural planning and development; power to enact laws pertaining

to the national economy and patrimony responsive to the needs of the Regional Government;public order and security; education, science and technology and sports development; social

justice and services; and power to amend or revise the Organic Act, either by Congress or bythe Regional Assembly, the latter being subject to approval by Congress.

c. 1 Abbas v. COMELEC, 179 SCRA 287Facts: Datu Firdausi Abbas, et.al. challenged the constitutionality of R.A. 6734 on the

following grounds:1) R. A. 6734 conflicts with the Tripoli Agreement (what conflicts the case doesn’t

say)2) R. A. 6734 provides for the unconditional creation of the ARMM and not through

the mode of a plebiscite as provided in the Constitution

3) The Constitution provides that ARMM shall be approved by a majority of votes

cast in a plebiscite by all voters residing in the provinces and cities affected, but R.A. 6734 says

“by a majority or votes cast by the constituent units in a plebiscite and only those provinces andcities where a majority of votes cast in favor of the Organic Act shall be included in theAutonomous Region. R.A. 6734 thus conflicts the Constitution

4) R. A. 6734 includes provinces and cities which do not have the same cultural andhistorical heritage and other relevant characteristics needed for admission to the ARMM

5) R. A. 6734 violates constitutional guarantee on freedom of exercise of religion assome its provisions run counter to the Koran

6) The creation of an Oversight Committee to supervise the transfer of power to theARMM is contrary to the constitutional mandate that the creation of the autonomous regionhinges solely on the result of the plebiscite

7) R. A. 6734 says “…that only the provinces and cities voting favorably in such

plebiscite shall be included in the ARMM. The provinces and cities which in the plebiscite do notvote for inclusion in the Autonomous Region shall remain in the existing administrative regions:Provided however, that the President may, by administrative determination, merge the existing regions. This provision, Abbas claims, is contrary to the Constitutional mandate that, “No

province city, municipality or barangay may be created, divided, merged, abolished or itsboundary substantially altered, except in accordance with the criteria established with the local

government code and subject to approval by a majority of the votes cast in a plebiscite in theunits directly affected.” (Art. 10, Sec. 10, 1987 Constitution)

Held: Abbas is wrong. Reasons:1) R. A. 6734 as an enactment of Congress, is superior to the Tripoli Agreement,

being a subsequent law to the Tripoli Agreement (though in my opinion it wouldn’t matter if R. A.6734 was prior to the Tripoli Agreement)

2) The transitory provisions of R. A. 6734 does provide for a plebiscite (1 guessnobody reads the transitory provisions)

3) The framers of the Constitution must have intended that the majority of votes

must come from each of the constituent units and not all the votes of the provinces and cities (Icouldn’t understand how the justices arrived at this conclusion)4) It is not for the Court to decide on the wisdom of the law concerning the inclusion

of provinces and cities which Abbas claims should not be included in a plebiscite5) There is no actual controversy yet as to any violation of freedom of religion, only

a potential one6) The creation of an Oversight Committee is merely procedural and in fact will aid

in the timely creation of the ARMM7) The power of the President to merge administrative regions is inherent in his

power of general supervision over local governments. Besides, administrative regions are notterritorial or political regions. Examples of administrative regions are Regions I to XII and theNCR

c. 2 Chiongbian v. Orbos, 245 SCRA 253Facts: In 1990, President Aquino issued E. O. No. 439 wherein she picked certain

provinces and cities, some of which did not participate in the inclusion to the ARMM, to thereorganized to new regions (e.g. Misamis Occidental, which did not participate in the ARMMplebiscite, was transferred from Region X to Region XI). Aquino issued said E. O. pursuant antR. A. 6734, which says: “…That only the provinces and cities voting favorably in suitableplebiscites shall be included in the ARMM. The provinces and cities which plebiscite no vote for inclusion in the Autonomous Region shall remain in the existing administrative regions. Providedhowever, that the President may, by administrative determination, merge existing regions.James Chiongbian, a Sultan Kudarat congressman, filed a certiorari prohibition to protest the E.O., claiming that President Aquino had no power to reorganize administrative regions becausesaid provision in R. A. 6734 1) also states that provinces, cities which in the plebiscite do notvote for inclusion in the Autonomous Region shall remain the existing administrative regions 2)the Constitution does not expressly provide the President the power to merge administrativeregions; in fact Art. 10, Sec. 10 of the Constitution (see II of your outline) prohibits this and 3)even granting that the President is allowed to merge administrative regions, there is law settingstandard on how it is to be done.

Held: Chiongbian is wrong. Reasons:1) The sentence “…shall remain in the existing administrative regions, is further

qualify by the phrase, “Provided however that the President may, byadministration determination merge the existing regions.”

2) Past legislation, particularly R. A. 5345 issued in 1968, authorized the Presidentthe help of a Commission on Reorganization, to reorganize the different exampledepartments including administrative regions. This shows that traditional power to reorganize administrative regions has always been lodged in the President

3) The standard is found in R. A. 5345 which states “to promote simplicity,economic efficiency in the government to enable it to pursue programs consistentwith no goals for accelerated social and economic development and to improveservice transaction of the public business.”

D. Read R. A. 6766 (Organic Act for Cordillera Autonomous Region of 1989)



This Act provides for creation of the Cordillera Autonomous Region (CAR) shallconsist of the cities and provinces that shall vote favorable in a plebiscite pursuant ant 10, Sec.18 of the Constitution. Those cities and provinces are Benguet, Ifugao, Muslim Province, Abra,Kalinga-Apayao and Baguio

The Act consists of the following pertinent articles:1) Guiding principles and policies similar to that of Art. 2 of the 1987 Constitution2) Vesting of legislative power in the Cordillera Assembly; executive power

Cordillera governor with a deputy governor as well; creation of indigenous specialcourts whose decisions are final and executory but subject to the original andappellate jurisdiction of the Supreme Court

3) Creation of a Regional Commission on Appointments

4) Measures to protect and develop the ancestral lands and ancestral domains of indigenous cultural communities as well as the national economy and patrimony

The rest of its provisions are roughly similar to the Organic Act for ARMM (see11-c)CAR never came to existence. Only Ifugao province voted in favor of CAR, so theSupreme Court in Ordillo v. COMELEC ruled that Ifugao could no constitute itself intothe CAR>

d. 1 Ordillo v. COMELEC, 192 SCRA 100Facts: CAR Regional Assembly member Alexander Ordillo raised the question in his

petition on whether the province of Ifugao, being the only province which voted favorably for thecreation of the CAR, can alone legally and validly constitute such region.

Held: Ordillo’s petition is meritorious. Reasons:1) Statutory construction of Art. X, Sec. 15 of the 1987 Constitution shows that the

word “region” is to be made up of more than one constituent unit2) Section 2 or R. A. 6766 says “The Regional Government shall exercise powers

and functions necessary for the proper governance and development of allprovinces, cities, barangays and municipalities within the CAR.” Therefore,Congress could not have intended that only a single province would constituteCAR

3) It would be illogical for Ifugao to have 2 sets of officials, one for Ifugao and onefor the CAR, when Ifugao is the only member of the CAR

d. 2 Cordillera Board Coalitions v. COMELEC, 181 SCRA 495Facts: Pending the convening of Congress after President Aquino was swept into

power in 1986, she issued E. O. 220 which petitioner Cordillera Board Coalitions claimedcreated the CAR, thus preempting the constitutional mandate that Congress shall be the one topass an Organic Act providing for the creation of CAR. Petitioner also questions theconstitutionality of the CAR as it runs contrary to Article 10, Sec. 10 of the 1987 Constitution(See 11-1). Finally petitioner claims the CAR will interfere with the local autonomy of individualcities and provinces in general.

Held: Cordillera Board Coalition is wrong. Reasons:1. The presumption of constitutionality of laws shall be applied in the case. E. O. 220

was actually envisioned to consolidate and coordinate the delivery of services of linedepartments and agencies of the National Government in the areas covered by the CAR as astep preparatory to the grant of autonomy to the Cordillera. It was not intended to preemptCongress

2. CAR is not a public corporation or a territorial or political subdivision. It is in thesame genre as an administrative region for the purpose of coordinating the planning andimplementation of program and services in the covered areas. Thus no new territorial or politicalsubdivision was created or merged with another.

3. Local autonomy is administrative autonomy. In the case of CAR and MuslimMindanao, they are granted both administrative and political autonomy. Petitioner has failed toshow specifically how the creation of administrative regions will interfere with local autonomy.

d. 3 E.O. 459 dated May 17, 1991

This E. O. is entitled “Devolving to the Autonomous Region” Government of theAutonomous region in Muslim Mindanao Certain Powers of the DECS, the Control andSupervision Over Its Offices in the Region and for other Offices.

The E. O. aims to implement Sec. 1, Article XV of R. A. 6734 which states that, “TheAutonomous Region shall establish, maintain and support a complete and integrated system of quality education and adopt an educational framework that is meaningful, relevant andresponsive to the needs, aspirations and ideals of the people in the region.”

To this end, the Regional Government is made responsible for the regionaleducational framework of the ARMM, such as formulating and implementing programs toimprove education in general in the region.

E. Read R. A. 7901, dated Feb. 23, 1995 (Creating the CARAGA Administrative Region)

This Act is entitled “An Act Creating Region 13 to be known as the CARAGAAdministrative Region, and For Other Purposes.” It consists of the provinces of Agusan delNorte, Agusan del Sur, Surigao del Norte, Surigao del Sur and the cities of Butuan and Surigao.The Act also transfers Sultan Kudarat to Region 11.

F. Local Government Unit DefinedDefinition: A political subdivision of the state constituted by law and possessed a

substantial control over its own affairs.Supporting Definition: The LGU is autonomous in the sense that it is given more

power authority, responsibilities and resources remaining to be an intra sovereign subdivision of a sovereign nation, but no intended to be an imperium in imperia state within a state

f. 1 Alvarez v. Guingona, Jr. 252 SCRA 695Facts: Senator Heherson Alvarez, et. al. filed a petition for prohibition with prayer TRO

and preliminary prohibitory injunction assailing R. A. 7720, Said R. A. provides for a conversionof the municipality of Santiago, Isabela into a City. Alvarez said the municipality of Santiagofailed to meet the requirement of Sec. 450 of the LGC that, for a municipality to become acomponent city, it must have an annual income of P20M. The reason is that in the computationof the average annual income, the Internal Revenue Allotments (IRA) should have beendeducted from the total income. Instead, the IRAs were added to the total income.

Held: Alvarez is wrong. IRAs are the local government unit’s rightful share to thenational taxes. Section 450(c) of the LGC provides that “the average annual income shallinclude the income accruing to the general fund, exclusive of special funds, transfers, and anyrecurring income.” IRAs are a regular, recurring source of income; they are not special fundingtransfers since Sec. 17(g) of the LGC gives a technical description for the IRA for purposes of the LGC

G. Local Autonomy explained1. Autonomy – either decentralization of administration or decentralization of power (Limbona v.Mangelin)2. Decentralization of Administration – Occurs when the central government delegateadministrative powers to political subdivision in order to broaden the basic government power and in the process to make local government more responsive accountable” and “Ensure their fullest development as self-reliant communities make them more effective partners in the pursuitof national development and progress.” At the same time, it relieves the central government of the bureau managing local affairs and enables it to concentrate or national concerns (Supra)3. Decentralization of power – An abdication of political power in favor of local government unitsdeclared to be autonomous. In that case the local government is free to chart its own destinyand shape its future with minimum intervention from central government authorities. Accordingto a constitution author (Father Bernas) decentralization of power amounts to “self-immolation”since in that event, the autonomous government becomes accountable not to the centralauthorities but to its own constituency (Supra)

4. Local Autonomy, Philippine Concept – The national government does not completelyrelinquish all its power over local governments, including autonomous regions. Only



administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels.In turn, economic, political and social developments at the smaller political units are expected topropel social and economic growth and development. But to enable the country to develop aswhole the programs and policies effected locally must be integrated and coordinate towards acommon national goal. Thus, policy-setting for the entire country still lies in the President andCongress. In Magtajas v. Pryce Properties Corp. Inc., municipal governments are still agents of the national government (Pimentel v. Aguirre)5. Fiscal autonomy – Local government have the power to create their own sources of revenuein addition to their equitable share in the national taxes released by the national government, aswell as the power to the allocate their resources in accordance with their own priorities.

g. 1 Malonzo, et, al v. Zamora, et, al 311 SCRA 224NOTE: Dates and peso figures are crucial to this case.Facts: In 1994, the Sangguniang Panlungsod of Caloocan City issued Ordinance No.

0168, authorizing Caloocan City mayor Macario Asistio Jr. to initiate expropriation proceedingsfor lot 26 of the Maysilo Estate owned by the CLT Realty Development Corp. An amount of P39,352,047.75 was appropriated for this purpose. CLT however countered with an interpleaded andprayer for TRO on August 6, 1997, on the ground that Maysilo estate actually straddled bothCaloocan City and the municipality of Malabon; therefore the Caloocan City and Malabonmunicipal governments should be restrained and CLT must interplead and litigate amongthemselves their conflicting rights to claim such taxes.

In the meantime, the voluntary sale of the CLT property failed to push through so thecity government field a suit for eminent domain against CLT on March 23, 1998.

Some months afterwards, Rey Malonzo became mayor of Caloocan City. Theexpropriation of the CLT property was then declared discontinued, thus the appropriation of

P50M for the budgetary item “Expropriation of properties” could now be reverted for use insupplement budget. Ordinance No. 0254 was then passed appropriating an amount of P39,343,028.00 for the immediate repair of offices and hiring of additional personnel.

Because of this, the office of the President (OP), acting on an administrative complaintfiled against Malonzo et. al., were adjudged guilty of misconduct and meted the penalty of suspension. Malonzo’s refuted the decision, claiming that 1) the interpleader filed by CLT wasan unavoidable discontinuance of the expropriation project; thus the amount of P39, 352,047.00could be reverted into savings and 2) said amount was could be denominated as “Expropriationof Properties” and classified under “Current Operating Expenditures. The OP countered that theamount of P39, 352,047.75 was a capital outlay that must be spent for the project it is intendedfor, thus under Sec. 322 of the LGC it could not be reverted into savings for another use 2) thefilling of the interpleader could not be considered as an unavoidable discontinuance sincemonths after the interpleader, the Caloocan City government even filed an expropriation case for the CLT property 3) The Sangguniang Panlungsod, at the time of passing Ordinance No. 0254did not adopt new or updated rules of procedure for the current year; this was shown by the

hurried passage in one day of the said ordinance and 4) the appropriation of P50M for “Expropriation of Properties” actually did not exist this was merely a subterfuge by Malonzo todip his hands into the P39, 352. 017.75 intended for the CLT property expropriation project.

Held: Malonzo is correct. Reasons:1) During the oral arguments and pleadings, it was clear that the amount of

P39, 352, 017.75 and whether it was a capital outlay or continuing appropriation was not theissue; rather the issue was the budgetary item “Expropriation of Properties” wherein the amountof P50M was appropriated for said use but was later discontinued, and later on, an amount of P39, 313, 028.00 from the P50M was appropriated for office repair and other miscellaneousexpenses. Malonzo’s explanation that the P50M was not intended for the purchase of CLTproperty but for expenses incidental to expropriation, such as relocation of squatters, appraisalfee, etc. was believed by the Court. (So what happened to the P39, 352, 047.75, if Malonzo’sexplanation is to be believed? Justice Kapunan and 2 others dissented, believing the OP’sargument that there was actually no P50M existing to fund the “Expropriation of Properties item.

In fact, Malonzo used the nonexistent P50M appropriation as a cover-up to illegally spend theP32, 352, 047.75 for repair of offices and hiring of personnel. Can you say kickback?)

2) The failure to adopt new or updated rules of procedure of the SangguniangPanlungsod as mandated by Sec. 50 and 52 of the LGC is not intended to paralyze saidSanggunian from doing its job. An interpretation of Sec. 50 and 52 of the LGC that will avoidinconvenience and absurdity must be adopted, thus the OP’s contention is mistaken.

g. 2 Sec. 1, Chapter 1, Title XII, E. O. 292“Declaration of policy. The State shall ensure the autonomy of local governments. For

this purpose, it shall provide for a more responsive and accountable local government structureinstituted through a system of decentralization. The allocation of powers and resources to loosegovernment units shall be promoted and inter-local government grouping, consolidation acoordination of resources shall be encouraged. The state shall guarantee the local government

units their just share in national taxes and their equitable shares in proceeds from the usenatural resources, and afford them wider latitude for resource generation.”

g. 3 Pimentel v. Aguirre, G. R. No. 132988, July 19, 2000Facts: In 1997, President Ramos issued A. O. No. 372 which caught the ire of

Senator Aquilino Pimentel because of certain 2 provisions which state 1) All governmentdepartments and agencies, including state universities and colleges, government-owned andcontrolled corporation and local government units will identify and implement measures in FY1998 that will reduce total expenditures for the year by at least 25% of authorized regular appropriation for non-personal service items, along the following suggested areas… and 2)Pending of assessment and evaluation of the Development Budget Coordinating Committee of the emergency fiscal situation, the amount equivalent to 10% of the Internal Revenue Allotment(IRA) to LGUs shall be withheld. Pimentel claims that both provisions do not comply with Section284 of LGC, which provides for the 4 requisites before the President may interfere in local fiscalmatters 1) an unmanaged public sector deficit of the national government 2) consultations with

the presiding officers of the Senate and the House of Representatives and the presidents of various local leagues 3) the corresponding recommendation of the secretaries of the DOF, DILGand DBM and 4) any adjustment in the allotment shall in no case be less than 30% of thecollection of national internal revenue taxes of the third fiscal year preceding the current one.Specially, Pimentel claims that there was no showing that there was actually an unmanagedpublic sector deficit and that there was no consultations conducted with the different leagues of local governments.

Held: Pimentel is partly correct. Reasons:1. The Supreme Court is prepared to believe the Solicitor General’s assurance that

the first provision above stated is merely an advisory or guiding policy for local executives tofollow, thus local autonomy is not interfered upon.

2. The second provision is violative of local fiscal autonomy because its basic feature,the automatic release of the shares of LGUs in the national internal revenue, is missing. This ismandated in Article 10, Sec. 6 of the Constitution. Furthermore, Section 286 of the LGC

provides that the release shall be made directly to the LGU concerned within 5 days after everyquarter of the year and shall not be subject to any l ien or holdback that may be imposed by thenational government for whatever purpose. The withholding of 10% of the IRA is definitely aholdback.

H. Public Corporation definedDefinition 1: Those formed or organized for the government of a portion of the State (Act 1459,Sec.2)Definition 2: Those corporations created by the State as its own device and agency for theaccomplishment of parts of its own public works (Eliot, Mun. Corp. p. 1)

I. Essential Elements of a Municipal Corporation 1) A legal creation or incorporation2. A corporate name by which the artificial personality or legal entity is known and in

which all corporation acts are done.



3) Inhabitants constituting the population who are invested with the political andcorporate powers which are executed through duly constituted officers and agents;4) a place or territory within which the local civil government and corporate functionsare exercised (Martin, Pub. Corp., 1971)

J. Two fold character of a municipal corporation; its significance1) Government – the municipal corporation is an agent of the State for the governmentof the territory and the inhabitants within the municipal limits. The municipalcorporation exercises by delegation a part of the sovereignty of the State.2) Private – the MC acts in a similar category as a business corporation, performingfunctions not strictly government or political. The MC stands for the community in the

administration of local affairs w/c is wholly beyond the sphere of the public purposesfor which its governmental powers are conferred

K. What is Federalism?Definition: A system in which political power is divided between a central (national)government and smaller government units.

Supporting Definition: The central government is often called the federal government and thesmaller units, states or provinces. In a true federal system, citizens owe their loyalty directly to

the central government, even though they live in states or provinces. The central governmenthas direct authority over the people concerning powers granted to it in the constitution.

III. CREATION AND ABOLITION OF MUNICIPAL CORPORATION

Sec. 6, LGC: Authority to create Local Government Units. A local government unit

may be created divided, merged, abolished or its boundaries substantially altered either by lawenacted by Congress in the case of a province, city, municipality or any other politicalsubdivision of by ordinance passed by the Sangguniang Panlalawigan or SangguniangPanlungsod concerned in the case of a barangay located within its territorial jurisdiction, subjectto such limitations and requirements prescribed in this Code.

A. Requisites for creation of Local Government Units1. Income. It must be sufficient based on acceptable standards, to provide for all

essential government facilities and services and special functions commensurate with the size of its population, as expected of the LGU concerned.

2. Population. It shall be determined as the total number of inhabitants of the withinthe territorial jurisdiction of the LGU concerned.

3. Land Area. It must be contiguous unless it comprises 2 or more islands or isseparated by an LGU independent of the other properly identified by metes and bounds withtechnical descriptions and sufficient to provide for such basic services and facilities to meet the

requirements of its populace.

Compliance with the foregoing indicators shall be arrested by the Department of Finance, theNSO and the Land Management Bureau of the DENR.

B. Decided cases:b. 1 Pelaez V. Auditor General, 15 SCRA 569Facts: In 1964, President Macapagal issued several EOs creating 33 new

municipalities, mainly in Northern Luzon and Mindanao. The President based his power fromSec. 68 of the Revised Penal Code of 1917. Vice President Emmanuel Pelaez filed a petition for writ of prohibition with preliminary injunction, against the Auditor General, restraining him frompassing in audit any expenditure of public funds in implementation of said executive order and/or any disbursement by said municipalities.

Pelaez contends that: 1) Sec 68 of the Revised Administration Code has beenimpliedly repealed by R.A 2370, the Barrio Charter Act. 2) Sec. 68 is an undue delegation of

legislative power to the President and 3) Sec. 68 can allow the president to interfere in localgovernment affairs.

Held: Pelaez is correct. Reasons:1. The Barrio Charter Act states that “barrios may not be created nor their boundaries

altered or their names changed except by act of Congress of the corresponding municipal boardupon petition of the majority of voters in the areas affected and the recommendation of themunicipality or municipalities in which the proposed barrio is situated” This implies that if thePresident cannot create barrios, what more municipalities? (But I think this is not a very goodargument coz it’s implying way too much).

2. A law must be: a) Complete in itself so that there is nothing left for the delegate todo but to implement the statute and b) Fix a standard the limits of which are sufficientlydeterminable The standard set by Sec. 68 is “as the public welfare may require” This standard,

in relation to the law in question, is so broad that is virtually unfettered.3. The creation of Municipal Corporation is essentially legislative in character. If the

president can create municipalities, situations may arise where he can submit local officials tohis dictation by creating a new municipality and including therein the barrio wherein the officialspreside, thus said officials’ positions would suddenly becomes vacant. The power of control bythe president over local government is denied by the 1935 Constitution

b. 2 Tan v. COMELEC 142 SCRA 727Facts: B.P. No. 885 was passed allowing for the creation of the province of Negros

del Norte on the Island of Negros. Petitioner Patricio Tan claimed that B.P. no 885 violatedArticle XI, Section 3 of the Constitution which states: “No province, city, municipality or barriomay be created, divided, merged, abolished or its boundary substantially altered, except inaccordance with the criteria established in the local government code, and subject to theapproval by a majority of the votes in a plebiscite in the unit or units affected”. Specifically, theremaining areas in the province of Negros Occidental were not allowed to participate in the

plebiscite for the creation of Negros del Norte. Petitioner also claims the proposed province of Negros del Norte failed to meet the requirements of Sec. 197 of the LGC of 1983, specially thata future province must have at least an area of 3,500 sq. km. Negros del Norte, Petitioner avers,is actually only 2,856.56 sq km. Respondent claims the issue was already rendered moot andacademic as the new province of Negros del Norte was already proclaimed. Moreover, the areaof Negros del Norte is really 4,019.95 sq km, since the waters falling under the jurisdiction andcontrol of Negros del Norte must be included in the total area of the province.

Held: Tan is correct. The plebiscite is declared null and void Reasons:1) The phrase “subject to the approval by a majority of the votes in a plebiscite

in the unit or units affected” must be construed to mean that the remaining areas in the provinceof Negros Occidental should have been allowed to participate in the said plebiscite. The reasonis that cities belonging to Negros Occidental will be added to Negros del Norte, thus NegrosOccidental’s land area will be dismembered. Certainly, the people of Negros Occidental shouldhave been allowed to vote in the plebiscite as they are directly affected by the diminution in land

size of their province.2) A reading of the last sentence of the first paragraph of Section 197 LGC of

1983 says. “The territory need not be contiguous if it comprises 2 or more islands”. The use of the word ‘territory” clearly reflects that the law refers only to the land mass and excludes thewaters over which the political unit has control. In other words, Negros del Norte failed to meetthe required land area of 3,500 sq. km for it to become a province.

b. 3 Paredes v. Executive Secretary 128 SCRA 6Facts: By virtue of B.P. Blg 56, certain barangays in the municipality of Mayoyao, Ifugao

held a plebiscite to determine whether they want to constitute themselves into the newmunicipality of Aguinaldo. Governor Zosimo Paredes et. al. however claimed that the rest of thebarangays on Mayoyao should be allowed to participate in the plebiscite by virtue of Art. XI, Secof the 1973 Constitution as the other barangays are also affected by the creation of themunicipality of Aguinaldo.

Held: Paredes is wrong. Presumption of constitutionality should be applied in this case.B.P. Blg. 56 is a reflection of local autonomy on the part of the barangay wanting to constituent



themselves into a new municipality. Said barangays should be given leeway in becoming self-reliant communities. Moreover, the people in said barangays are the ones who will constitute thenew municipality of Aguinaldo, not the other barangays of Mayoyao excluded from B.P. Blg. 56

b. 4 Mun. of Candijay, Bohol v. Ca 251 SCRA 182

Facts: The municipality of Candijay petitioned the RTC of Tagbilaran, Bohol, claiming thatits boundary line actually covered barrio Pagahat, since the municipality of Alicia claims to havecurrent territorial jurisdiction over said barrio. The RTC awarded Pagahat to Candijay Aliciaappealed to the Court of Appeals. The CA ruled in favor of Alicia on the grounds that 1) applyingthe rule of equiponderance of evidence (a principle in Civil Procedure) with Candijay as plaintiff

and Alicia as defendant in the lower court, the court must rule in favor of the defendant. Theequiponderance of evidence rule states: “Where the scale shall stand upon equipoise and thereis nothing in the evidence which shall incline it to one side or the other, the court will find for thedefendant. Under said principle, the plaintiff must rely on the strength of his evidence and not onthe weakness of defendant’s claim. Even if the evidence of the plaintiff may be stronger thanthat of the defendant, there is no preponderance of evidence on his side if such evidence isinsufficient in itself to establish his cause of action.” In this case, both municipalities failed tosatisfactorily back their claims that they owned barrio Pagahat: and 2) if Candijay’s boundaryline claim was true, then not only would they claim Pagahat but also other certain barrios aswell, which would as a result, certainly expand Candijay’s territory far beyond than what the lawallows her, Candijay petitioned is review on certiorari with the SC, claiming that 1) the CAmisapplied the equiponderance of evidence rule and 2) the municipality of Alicia had no juridicalpersonality, having been created under avoid E.O. ( E.O. No.265) since Sec. 68 of the RAC of 1917 from which the said E.O. derived its authority, was declared unconstitutional in Pelaez v.Audition General (See III-b 1).

Held: The Municipality of Candijay is incorrect Reasons:1. The SC sees no need in reviewing the equiponderance rule as it was not arrived

whimsically or capriciously by the CA2. The Municipality of Alicia was created by virtue of E.O. 265 in 1949. 16 years late when

Pelaez v. Auditor General was promulgated. And yet even after, various government acts, mostnotably the recognition by the 1987 Constitution of Alicia as one of the 20 municipalities of theThird District of Bohol, indicate the State’s recognition and acknowledgement of the existencethereof. Alicia therefore, can claim the benefits of Sec. 442 (d) of the LGC of 1991 which states“Municipal District organized pursuant to presidential issuances and E.O. and which have their respective set of municipal officials holding officials holding office at the time of the effectivity of the code shall henceforth be considered as regular municipalities. Sec. 442 (d) is therefore acurative law in favor of Alicia. The objection against it being a municipal corporation should havebeen done before the LGC was enacted in 1991.

b. 5 Municipality of Jimenez v. Baz, Jr. 265 SCRA 182NOTE: Dates in this case are important because essentially Jimenez lost on account

of the slow wheels of justiceFacts: In 1949, President Quirino issued E.O. 258, creating the municipality of

Sinacaban in the Province of Misamis Occidental. In 1988 by virtue of said E.O. Sinacaban fileda claim with the provincial Board of Misamis Occidental against the municipality of Jimenezterritorial possession of about 5 barrios. Jimenez in its reply with the provincial Board that sameyear and later on with the RTC in 1990, said that Sinacaban had no juridical personality to file asuit because it was created under a void E.O. as promulgated in Pelaez Auditor General and 2)the disputed barrios belong to Jimenez since in 1950 the municipalities entered into anagreement duly approved by the Provincial Board of Misamis Occidental back then whichrecognized Jimenez’s jurisdiction over the disputed barrio in 1992, the RTC ruled in favor of Sinacaban using as its basis the curative benefits of Sec. 2 of the LGC of 1991. Angrily, Jimenezadded in its petition with the Supreme Court the RTC’s decision was null and void because itfailed to decide the case within one year mandated by the LGC of 1983 and the Constitution.

Held: Jimenez is incorrect Reasons:

1. Sinacaban can claim the benefits of Sec.442 (d) of the LGC of 1991, since variousgovernment acts through the years after the Pelaez case of 1965 indicate the recognition by theyears after the Pelaez case 1965 indicate the recognition by the state of the municipality of Sinacaban, most notably when the 1987 Constitution recognized Sinacaban as part of the 2 nd

District of Misamis Occidental.2. Whatever agreement Sinacaban and Jimenez entered into 1950 must still conform

with the territorial metes and bounds set forth in E.O. 258, otherwise the agreement in void (Arelocation survey was ordered but the results of the survey was not stated in the case)

3. Even granting that the RTC was deliberately slow, its decision is not rendered void.The only remedy left would be to file administrative sanctions against it.

b. 6 Mendenilla v. Onandia 5 SCRA 536 Facts: In 1954, the mayor of the municipality of Legaspi appointed Emilio Mendenillaas Chief of Police. Then, in 1959, Congress passed R.A. 2234 converting the municipality of Legaspi into the City of Legaspi R.A. 2234 provides that the position of Chief of Police of the cityof Legaspi is to be appointed by the President. Therefore, when Jose Manuel Onandia wasappointed by the President City Chief of Police, Mendenilla assailed the legality of such a move,claiming that his position as chief of police was not abolished when Legaspi was converted froma city to a municipality 2) Under R.A. 557 his employment status as Chief of Police may not beabolished except in the manner specified in R.A. 557 and 3) The Civil Service Law guaranteeshis security of tenure.

Held: Mendenilla is incorrect Reasons:1. The position of Chief of Police of a municipality is totally different from the position of the Chief of Police of a city. Therefore, R.A. 2234 abolished the position of municipality Chief of Police andreplaced it with a city Chief of police. In support of this contention, the Supreme Court cited Sec.

96, Article XVII of the charter which provides that the City Mayor the Vice Mayor, etc. areallowed to continue in office upon the effectivity of the charter until the expiration of their terms inoffice. Nowhere does it mention the Chief of Police in the said list of officials. Expressio unius estexclusio alterius.

2. Notwithstanding both R.A. 557 and the Civil Service Law, it is within the legal competence of Congress to enact R.A. 2234. Congress has the plenary power to make laws, meaning its power to make any kind of law is, in theory, unlimited.

Quiz: If the municipality of a municipal judge is converted into a city, can the judge continue toserve in the new city? Answer: Yes. A judge is not a municipal official. He does not derive hispower or his appointment from a city charter; he derives them from the Constitution and other Laws.

b. 7 Mathay v. CA 320 SCRA 703

NOTE: Don’t confuse CSU with CSC Facts: During his term, Mayor Brigido Simon appointed 16 people to positions in theCivil Service Unit (CSU) of the local government of Quezon City. Simon’s authority to appointwas based upon P.D. 51. The Secretary of Justice rendered an Opinion, stating that P.D. 51was never published in the Gazette, therefore, conformably with the Tanada v. Tuvera rulingP.D. 51 never became law at all. The Civil Service Commission (CSC) thus ordered therevocation of all appointments in the CSU. However, the effects of such revocation weretemporarily cushioned when the city council issued an ordinance creating the Department of Public Order and Safety (DPOS). All present personnel of the CSU, the said ordinance statedare to be absorbed into the DPOS.

However, the regular positions in the DPOS never got filled due to insufficient number of said positions and lack of funds.

Simon and later on his successor, Mayor Ismael Mathay, remedied the situation byoffering the CSU personnel contractual appointment. When Mathay refused to renew their appointments, the CSU personnel complained to the CSC. The CSC replied by issuing

resolutions ordering the CSU personnel reinstated. Mathay now asserts that the CSC cannot



order him to reinstate the said personnel as it is. In effect, giving the appointing power hepossesses, as city Mayor to the CSC.

Held: Mathay is correct. Reasons:1) First of all, the law applicable is B.P. 337 or the old LGC and not the LGC of 1991

since the material events of the case took place during the time of the old LGC.2) Under B.P. 337, the power to appoint rests in the local chief executive in the case the

Mayor. When the city council issued the ordinance allowing for the absorption of CSU personnelinto the DPOS, it specifically made use of the wordings “Present Personnel” and not positions,thus the city council arrogated upon itself the appointing power by dictating who shall occupy theDPOS positions. Even in the local government level, the separation of powers must be

respected.3) The reasoning in no. 2 also applies to the CSC. The CSC claims that by virtue of the

ordinance enacted by the city council, the CSU personnel became regular employees and suchthey have gained the protection of the Civil Service Law. Such reasoning is wrong because inthe first place the CSU never existed at all, thus they were never part of the Civil Service tobegin with. Thus when Simon and later on Mathay offered them contractual appointments, theywere at the mercy of the appointing power of the said mayors, as they have the option not torenew their appointments

b. 8 Samson v. Aguirre, 315 SCRA 53Facts: R.A. 8535 was signed into law creating the City of Novaliches out of 15

barangays in Quezon City. Quezon City councilor Moises Samson questioned theconstitutionality of said R.A. claiming that 1) certifications as to income, land area and populationof Novaliches were not presented during the deliberations that led to the passage of R.A. 85352) a certification attesting to the fact that the mother LGU, Quezon City, would not be adversely

affected by the creation of Novaliches city in terms of income, land area and population, wasalso not presented 3) a copy of the petition of concerned barangays calling or the creation of City of Novaliches was not presented to the Quezon City Council, as mandated by theImplementing Rules of the LGC, 1991 and 4) R.A. 8535 failed to specify the seat of governmentof the proposed City of Novaliches as mandated by Sec. 11 (a) of the LGC, 1991.

Held: Samson is wrong. Reasons:1. The presumption of constitutionally of laws shall be applied in this case, meaning

that Samson has burden of proof to show that R.A. 8535 was unconstitutional. Samson did notpresent any proof that no certifications were presented during the deliberations. And evengranting that no certifications were indeed presented, the representatives of the DOF, NSO,DENR and even Quezon City mayor Ismael Mathay were present during the deliberations. Theofficial statements attesting to the income, land area and population of Novaliches could servethe certifications contemplated by law

2. Mathay was present during the deliberation. If Quezon City would object to the

creation of the City of Novaliches, he would be the first representative to do so. But he didn’t.3. The failure to provide the QC council a petition of concerned barangays calling

for the creation of the City of Novaliches is not fatal as such petition is meant only to inform theQC council of such creation. With the mass media publicizing the creation of the city of Novaliches, Samson could not claim he was not informed of the proposed creation

4. The failure of R.A.8535 to provide a seat of government for Novaliches is notfatal. Sec. 12 of the LGC provides that a government center shall be established by the LGU asfar as practicable. Government centers can also serve as seats of government.

5. The fact that the City of Novaliches was not included among the 17 cities andmunicipalities listed in the ordinance attached to the 1987 constitution does not mean that aconstitutional amendment is necessary in order for Novaliches to become a city. The ordinanceattached to the Constitution merely apportions the seat of the House of Representatives to thedifferent legislative districts in the country. Nowhere, does it provide that Metro Manila shall beforever composed of 17 cities and municipalities.

NOTE: the proposed City of Novaliches was later voted down in a plebiscite held for

that purpose

C. How are existing sub-provinces converted to provinces?

* Sec. 10 LGC: Plebiscite Requirement . No creation, division, merger, abolition or substantial alteration of boundaries of LGUs shall take effect unless approved by a majority of the voted cast in a plebiscite called for the purpose in the political unit or units directly affected.Said plebiscite shall be conducted by the COMELEC within 120 days from the date of effectivityof the law or ordinance effecting such action, unless the law or ordinance fixes another date.

* Sec. 462 LGC: Existing Sub-provinces Existing sub-provinces are hereby convertedinto regular provinces upon approval of the voters cast in a plebiscite to be held in the said subprovinces and the original provinces directly affected. The plebiscite shall be conducted by the

COMELEC simultaneously with the national elections following the effectivity of this code.The new legislative district created as a result of such conversion shall continue to be

represented in Congress by the duly elected representatives of the original districts out of whichsaid new province or districts were created unit their own representative shall have been electedin the next regular congressional elections and qualified

The incumbent elected officials of the said sub-provinces converted into regular provincesshall continue to hold office until June 30, 1992. Any vacancy occurring in the offices occupiedby said incumbent elected officials, or resulting from expiration of resulting from expiration of their terms of office in case of negative votes in the plebiscite results, shall be filled byappointment by the President. The appointees shall hold office until their successors shall havebeen elected in the regular local elections following the plebiscite mentioned herein andqualified. After effectivity of such conversion, the President shall fill up the position of governor of the newly created province through appointment if none has yet been appointed to the same ashereinbefore provided, and shall also appoint a vice governor and other members of theSanggunian Panlalawigan, all of whom shall likewise hold office unit their successors shall have

been elected in the next local election and qualified.All qualified appointive officials and employees in the career service of the said sub-

provinces at the time of their conversion into regular provinces shall continue in accordance withcivil service law, rules and regulation.

C 1. Grino v. COMELEC, 213 SCRA 672Facts: Pursuant to Sec. 462, LGC, a plebiscite to determine whether the sub-province of

Guimaras (its mother province was Iloilo) wants to become a regular province was heldsimultaneously with the May 11, 1992 elections. The participants in the said plebiscite were theresidents of Iloilo (except Iloilo city) and the 3 municipalities of Guimaras. Surprisingly, theballots issued in the said 3 municipalities did not provided any space for the election of governor,vice-governor and the members of the Sangguniang Panlalawigan of the province of Iloilo. LDPIloilo governor-candidate Simplicio Grino claims that the COMELEC erred in not allowing thesaid 3 municipalities to vote for the provincial officials of Iloilo, since at the time of the plebisciteGuimaras was still a sub-province of Iloilo. Grino says if Guimaras voted for regular

“provincehood” then there would have been no need for them at all to vote for the provincialofficials of Iloilo. But what if Guimaras votes to remain as a sub-province? Should specialelection be held for the 3 municipalities so that they can vote for the provincial official of Iloilo?

Held: Obviously, Grino’s petition was rendered moot and academic when Guimaras votedto become regular province. Besides it’s too late to undo what COMELEC has done. If Guimarasdid vote to remain as a sub province, Grino’s petition would have been meritorious.

D. Conversion of a component city into a highly urbanized city and reclassification(implementing Rules and regulations, LGC).

* Art 12 Conversion of a component city into a highly urbanized citya) Requisites for conversion. A component city shall not be converted into a highly

urbanized city unless the following requirements are present:1. Income latest annual income of not less than P50M based on 1991 constant prices,

as certified by the city treasure. The annual income shall included the income accruing to thegeneral fund exclusive of special funds, transfers and non-recurring income and



2. Population, which shall not be less than 200,000 inhabitants as certified by NSO.

b) Procedure for conversion:1. Resolution. The interested component city shall submit to the office of the President

a resolution of its Sanggunian adopted by a majority of all it’s members in a meeting duly calledfor the purpose, and approved and endorsed by the city mayor. Said resolution shall beaccompanied by certifications as to income and population

2. Declaration of conversion. Within 30 days from receipt of such resolution, thePresident shall, after verifying that the income and population requirements have been met,declare the component city as highly urbanized

3. Plebiscite. Within 120 days from the declaration of the President or as specified in

the declaration, the COMELEC shall conduct a plebiscite in the city proposed to the convertedsuch plebiscite shall be preceded by a comprehensive information campaign to be conducted bythe COMELEC with the assistance of national and local government officials, media, NGO’s andother interested parties.

c) Effect of conversionThe conversion of a component city into a highly-urbanized city shall make it

independent of the province where it is geographically located

Reclassification (See cases below and III-e)

d. 1 Ceniza v. COMELEC 95 SCRA 763 Facts: on Dec. 22 1979, the interim Batasang Pambansa enacted B.P. Blg. 51providing for local elections on Jan 30, 1980. Its section 3, the subject of controversy, reads asfollows:

xxx Until cities are reclassified into highly urbanized and component comes inaccordance with standard established in the LGC as province for in Art XI, Sec 4 (1) of theConstitution. Any city now existing with an annual regular income derived from infrastructure andgeneral funds of not less than P40M at the time of the approval of the act shall be classified as ahighly urbanized city. All other cities shall be considered components of the provinces wherethey are geographically located. xxx The registered voters may be entitled to voter in theelection of the official of the province of which that city is a component. If it’s charter so provides.However, voters in a highly urbanized city, as hereinabove defined shall no participate nor votein the election of the official of the province in which the highly urbanized city is geographicallocated.

Robert Ceniza et.al. filed a case as tax payers and registered voters in the cities of Cebu ad Mandaue assailing Sec. 3 Specially, they questioned the use of annual income of agiven city as basis for classification of whether or not a particular city is a highly urbanized citywhose voters may no participate in the election of provincial officials of the province in which the

city is geographically located. Ceniza and his fellow goons claim Sec.3 regulates the exercise of freedom of suffrage and violates the equal protection of the law. Moreover, they attacked R.A.5519 the law creating the City of Mandaue, which went to effect without the benefit of ratificationby the residents of Mandaue in the plebiscite or referendum. They particularly cited the charter’sprovision denying Mandaue the right to participate in provincial elections.

Held: Ceniza et. at. is mistaken. Reasons:1. The thrust of the 1973 Constitution is towards the fullest autonomy of LGU’s

Corollary to independence however, is the concomitant loss of right to participate in provincialaffairs, more particularly the selection of elective provincial officials since these provincialofficials have ceased to exercise any government jurisdiction and authority over said city.

2. Regular annual income of a given city is substantial distinction for classification. Therevenue of a city would show whether or not it is capable of existence and development as arelatively independent economic, social and political unit. Thus, the equal protection of the lawsin not violated.

3. Freedom of suffrage is not imperiled since the Constitution does not give the cityvoter the right to participate in provincial elections for territorial reasons

4. The city of Mandaue came into existence. In 1969, the constitutional requirementthat the creation, alteration, etc. of a city, province, etc. is subject to a plebiscite only came intobeing when the 1973 Constitution was enacted and therefore cannot be applied retroactively.

d. 2 Tobias v. Abalos 239 SCRA 106Facts: Robert Tobias, et. al. invoking their right as taxpayers and as residents of

Mandaluyong City, assailed the constitutionality of R.A. No. 7675, known as “An act Convertingthe City of Mandaluyong into a Highly urbanized city known as the City of Mandaluyong.” Theycited, among others, Art. VIll, Sec. 49 of R.A. 7675, which provides that “As a highly urbanizedcity, the City of Mandaluyong shall have its own legislative district with the first representative tobe elected in the next national elections after the passage of this Act. The remainder of the

former legislative district of San Juan/Mandaluyong shall become the new legislative district of San Juan with its first representative to be elected at the same region” Said provision Tobiasclaims is not germane to the title of R.A. 7675 thus being contrary to the one title-one subjectrule since it creates a legislative district whereas the title expressly provides only for theconversion of Mandaluyong into highly urbanized city. Also, Tobias, et. al. contend that thepeople of san Juan should have been made to participate in the plebiscite as the same involvesa change in their legislative district.

Held: Tobias, et.al. are grossly erroneous Reasons:1. The creation of a new legislative district is a natural logical consequence of its

conversion into a highly urbanized city.2. The contention that the people of San Juan should have been made to participate

in the plebiscite on R.A. 7675 as the same involved a change in their legislative district is benefitof merit. The reason is that the principle subject involved I the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was

only ancillary thereto. Thus the inhabitants of San Juan were properly excluded from the saidplebiscite as they have nothing to do with the changed in status of neighboring Mandaluyong.(This argument is rather strange for me).

d.3 Miranda v. Aguirre 314 SCRA 603Facts: On May 5, 1994 R.A. 7720 was passed converting the municipality of

Santiago, Isabel into an independent component city. On Feb 14, 1998 R.A. 8528 was passedamending R.A. 7720 on 2 points: 1 Sec. 2 of R.A. 7720 is hereby amended by deleting thewords, “an independent” so that the municipality of Santiago will be converted into a componentcity only and 2) the voters of Santiago could now vote again for the provincial officials of theprovince of Isabela. Jose Miranda, the mayor of Santiago and other petitioners assailed theconstitutionality of R.A. 8528. He says that said law lacks the provision requiring that theplebiscite be held for its ratification. Alexander Aguirre, the Executive Secretary and other respondents on the other hand countered that (1) Miranda et. al. had no standing to file their petition 2) the issue is a political question and 3) R.A. 8528 did not created divide, etc or after

any boundaries of Santiago it merely reclassified Santiago from an independent component cityinto a component city.

Held: Aguirre and his cohorts are gravely mistaken. Reasons:1. Miranda had standing, he field the petition in his capacity as mayor of Santiago.2. The issue is justiciable, Petitioners assail the constitutionality of R.A. 8528, since it

runs contrary to article X, Sec 10 of the 1987 Constitution. The court has the power to decide theconstitutionality of any law.

3. The reclassification will downgrade Santiago’s status from an independentcomponent city into a component city. Far reaching changes will then take place. Its politicalindependence will diminish. The city mayor will be placed under the administrative supervision of the provincial governor. Ordinance and resolution passed by the city council of Santiago willhave to be reviewed by the Provincial Board of Isabel. Taxes collected by the city would then beshared with the province. All these changes merit the need of a plebiscite so that the people atSantiago can air their side on the issue. Moreover, if a plebiscite can be held for the upgrading

of an LGU, should not a plebiscite be held for its downgrading as well?



NOTE: Mendoza’s strong dissent was anchored on Art. X Sec. 10 of the 1987Constitution. Said section refers to alteration of boundaries of Santiago were substantiallyaltered nor any of its income, population or land area been radically changes Santiago wasneither recreated into another LGU nor abolished, much less its boundaries alter. (This good

justice is implying the reclassification was administrative in nature.

E. Classification of provinces, cities and municipalities (Read E.O. 349)This act is entitled “providing for a new income classification of provinces, cities and other

municipalities” Pertinent provisions include:

Sec. 1. Classification of provinces and cities. Provinces and cities except Manila andQuezon City, which shall be considered as special class cities, are hereby divided into 6 mainclasses according to the annual average income they actually realized during the last 4 calendar years immediately preceding as follows: a) First class P30M or more b) Second class P20M-P30M; c) Third class P15M-P20M; d) Fourth class P10M-15M, e) Fifth class P5M-10-M; f) Sixthclass less than P5M

Sec. 2. Classification of Municipalities x x x according to the annual average income theyactually realized during the last 4 calendar years immediately preceding as follows; a) Firstclass, P15M or more b) second class, P10M-15M c) Third class, P5M-10M d) fourth class P3M-P5M e) Fifth class, P1M-3M f) Sixth Class, less than P1M.

Sec. 3. Period of General Reclassification of Province, Cities and Municipalities. Upon the

effectivity of this E.O. and for each period of 4 consecutive calendar years thereafter, theSecretary of Finance shall reclassify the all provinces, cities, except Manila and Quezon City,Which shall remain as special class cities, and municipalities, on the basis of the foregoingschedules of the average annual income of each province, city or municipality derived during thelast 4 consecutive calendar years immediately such reclassification according to the provisionshereof.

Sec. 4. Definition of Terms. As used this E.O.a. Annual Income revenues and receipts realized by provinces, cities and municipalities

from regular sources of the local general and infrastructure funds including the internal revenueand specific tax allotments provided for in PDs 144 and 436, both as amended but exclusive of non-recurring receipt, such as other national ads, grants, financial assistance, loan proceeds,sales of fixed assets and similar others

b. Average annual income- sum of the “annual income”- sum of the “Annual Income” asherein defined actually obtained by a province, cities and municipalities.

Sec. 5 Use of income classification of provinces, cities, and municipalities. xxx as basis for:a) Fixing of maximum tax ceiling imposable by the local government b) Determination of statutory and administrative aids, Financial grants and other forms of assistance to localgovernment c) Establishment of salary scales and rates of allowances per diems, and other emoluments that local government officials and personnel may be entitled to d) Implementationof personnel policies on promotions, transfers, details or secondment, and related matters at thelocal government levels e) formulation and execution of local government budget policies and f)Determination of the financial capability of local government units to undertake developmentprograms and priority projects

NOTE: There are 7 more sections, mainly on salaries and taxes- you know, ways toput more money into the pocket of our bureaucrats

F. Settlement of boundary disputes( Sec. 118, LGC, Sec 15-19, IRR)* Section 118. Judicial Responsibility for settlement of Boundary Dispute. Boundary

dispute between and among LGUs shall, as much as possible. Be settled amicably. To this end:

a. Boundary disputes involving 2 or more barangays in the same city or municipalityshall be referred for settlement to the Sangguniang Panlungsod Sangguniang Bayan concerned.

b. Boundary disputes involving 2 or more municipalities within the same province shallbe referred for settlement to the Sangguniang Panlalawigan concerned.

c. Boundary dispute involving municipalities or component cities of different provincesshall be jointly referred for settlement to the Sangguniang of the province concerned.

d. Boundary dispute involving a component city or municipality on the one hand and ahighly urbanized city on the other or 2 or more highly urbanized cities, shall be jointly referred for settlement to the respective Sangguniang of the parties

e. In the event the Sangguniang fails to present an amicable settlement within 60 daysfrom the date the dispute was referred thereto, it shall issue a certification to that effect.

Thereafter the dispute shall be formally tried by the Sangguniang concerned which shall decidethe issue within 60 days from the date of the certification referred to above.

*Sec. 15 definition and policy. There is a boundary dispute when a portion or a wholeof the territorial area of an LGU is claimed by 2 or more LGUs. Boundary disputes between or among LGUs shall, as much as possible, be settled amicably.

* Sec.16 Jurisdictional Responsibility. Boundary disputes shall be referred for settlement to the following:

a. Sangguniang Panlungsod or Sangguniang for those involving 2 or more barangaysin the same city or municipality as the case may be.

b. Sangguniang Panlalawigan for those involving 2 or more municipalities with in thesame province.

c. Jointly, to the Sanggunian of provinces concerned, for those involving componentcities or municipalities of different provinces.

d. Jointly, to the respective Sangguniang for those involving a component city or municipality and highly urbanized city of 2 or more highly urbanized cities.

* Sec. 17 Procedures for settling Boundary Disputes they are 1) filing of petition 2)contents of petition 3) documents attached to petition (e.g. provincial, city or barangay map asthe case may be technical description of the boundaries of the LGUs concerned 4) Joint hearing5) failure to settle amicably (a certification shall be submitted to the effect 6) Decision 7) Appeal(To the proper RTC)

*Sec 18. Maintenance of Status Quo. Pending final resolution of the dispute, thestatus of the affected area prior to the dispute shall be maintained and continued for allpurposes.

* Sec 19. Official Custodian. The DILG shall be the official custodian of all documentson boundary disputes of LGUs.

f 1. City of Pasig v. COMELEC et.al. 314 SCRA 179 Facts: 2 petitions were raised by the City of Pasig and the municipality of Caintarespectively. Both Questioned the priority of the suspension of the scheduled plebiscites for theproposed creation of Barangay Karangalan and barangay Napico (pursuant to 2 ordinancespassed by both cities) Cainta had contended that the proposed barangays involve areasincluded in the boundary dispute between her and Pasig; hence the suspension of thescheduled plebiscites is justified. Pasig however contends otherwise. Despite this, theCOMELEC ruled against Cainta and the plebiscite for the creation of barangay Napico pushedthrough. The core issues now are 1) whether or not the said barangay dispute is a prejudicialquestion which must be resolved before any plebiscite can be held and 2) Whether the plebiscitealready conducted ratifying the creation of Barangay Napico has rendered the issue as to it mootand academic.

Held: Cainta is correct. Reasons

1. Pasig cannot deny that there is a pending boundary dispute between her andCainta Surely, whether the area in controversy shall be decided as within the territorial



jurisdiction of the Municipality of Cainta or the City of the Pasig has material bearing to theproposed barangay Karangalan and Napico. The importance of drawing with precise strokes theterritorial boundaries of an LGU cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of an LGU. It can legitimately exercise powersof government only within the limits of its territorial jurisdiction. Beyond these limits, its acts areultra vires. Needless to state, any uncertainty in the boundaries of LGUs will sow costly conflictsin the exercise of government powers which will ultimately the people’s welfare.

2. As was done before in Tan v. COMELEC, the plebiscite already conducted for thecreation of Barangay Napico can be annulled and set aside.

Held: SC held that the plebiscite should be held in abeyance.

f. 2 DILG Opinion No. 161-1994 (still to search)

G. Naming of LGU naming of LGUs and public places, streets and structures* Sec 13, LGC, Art 20-23, IRRa. The Sangguniang Panlalawigan may in consultation with the Philippine Historical

Commission (PHC), change the name of the following within territorial jurisdiction:1. Component cities and municipalities upon the recommendation of the

Sangguniang concerned.2. Provincial roads, boulevards, avenue, thoroughfares and bridges3. Public vocational or technical school and other post-secondary and tertiary

schools4. Provincial hospitals, health centers and other health facilities5. Any other place or building owned by the provincial government.

b. The Sangguniang of highly urbanized cities and of component cities whose chartersprohibit their voters from voting for provincial electrical officials, hereinafter referred to in thiscode as independent component cities may in consultation with the PHC change the name of the following within its territorial jurisdiction:

1. City barangays, upon the recommendation of the Sangguniang barangayconcerned.2-5 essentially the same as (a) nos. 2-5 above except only to those within itsterritorial jurisdiction.

c. The sanggunians of component cities and municipalities may, in consultation withits territorial.

d. None of the foregoing LGUs institutions, places, or buildings shall be named after aliving person nor a change of name be made unless for a justifiable reason and in any case not

oftener than once every 10 years. The name of an LGU or a public place, street or structure withhistorical, culture or ethic significance shall not be changed, unless by a unanimous vote of thesanggunian concerned and in consultation with the PHC.

e. A change in name of a public school shall be made only upon the recommendationof the local school board concerned.

f. A change in name of public hospitals, health centers, and other health facilities shallbe made only upon the local board concerned.

g. In any change of name, the office of the president, the representative of thelegislative district concerned and the bureau of posts shall be notified. Note: Letters (d) to (b) are the limitations in the change of name of a local government unitinstitution or places or buildings.

* Art. 20-22 IRR These articles are essentially copied from sec 13 (a) (b) and (c),LGCSee for yourself

* Art.23, IRR Guidelines and limitationa. No name of LGUs, public places, street and structures with historical, culture or

ethnic significances shall be changed, unless with unanimous vote of the sanggunian and inconsultation with the National Historical Institution (NHI).

b. No change in the name of an LGU shall be effective unless ratified in a plebiscitecalled for that purpose.

c. Naming shall be subject to the following conditions:1. Naming after leaving person shall be not followed.

2. A chance in the name shall only be for a just able reason.3. Any change shall not be made more than once every ten years.4. A chance in name of a local public school shall be made upon the recommendation

of the school board.5. A chance in name of local public hospital, health center and other health facilities

only upon the recommendation of the local school board.6. The whole line of the street shall have only.7. The name of the family in a particular community whose members contributed

significantly to the welfare of the Filipino people maybe used.

d. The office of the president, the representative of the legislative district concerned,and the postal service shall be notified of any change in name of LGUs, public places, streetsand structures

H. Rules of interpretation, (Sec 5, LGC)

*Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, thefollowing rules shall apply:

a. Any provision on a power of local government shall be liberally interpreted its favor,and in case of doubt, any question thereof shall be reserved in favor of devolution of powers andthe lower LGU. Any and reasonable doubt as to the existence of the power shall be interpretedin favor of LGU concerned.

b. In case of doubt, any tax ordinance or revenue measure shall be construed strictlyagainst the LGU enacting it, and liberally in favor of the tax buyer. Any tax exemption, relief of incentive granted by any LGU pursuant to the provisions of this code shall be construed strictagainst the person claiming it.

c. The general welfare provision of this code shall be liberally interpreted to give morepowers LGUs in accelerating economic development and upgrading the quality of life for thepeople in the community.

d. Rights and obligations existing on the effective of this code and a rising out contactor any other source of presentation involving an LGU shall be governed by the original terms

conditions of contracts or the law in force at the time such rights were vested.e. In the resolution of controversies arising under this code where no legal provision of

jurisprudence applies, resort may be had to the customers and traditions of the place where thecontroversies took place.

h.1 Principle of devolution (See Sec 17 [4] (c) and (i) LGC}* Sec 17, LGC. Basic Services and Facilities.a. LGUs shall endeavor to be self-reliant and shall continue exercising the powers and

discharging the duties and functions currently vested upon them. They shall also discharge thefunctions and responsibilities of national agencies and offices devolved to them pursuant to thiscode. Local government shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary appropriate or incidental to efficient and effectiveprovision of the basic services and facilities enumerated herein;

[4] For a cityAll the services and facilities of the municipally and province, and in addition thereto, the

following: a. Adequate communication and transportation facilities.



b. Support for education, police and fire services and facilities

b. National agencies or offices concerned shall devolve to LGUs the responsibility for the provision of basic service and facilities enumerated in this section within six months from theeffect of this code

As used in this code the term devolution refers to the act by which the NationalGovernment confers power and authority upon the various LGUs to perform specific functionsand responsibilities.

c. The devolution contemplated in this Code shall include the transfer to LGUs of therecords ,equipment, and other assets and personnel of national agencies and offices

corresponding to the develop powers, function and responsibilities personnel of said nationalagencies or office shall be absorb by the local government units to which they belong or inwhose areas they are assigned to the extend that it is administratively viable as determined bythe said oversight community Provided, That the right accorded to such personnel pursuant tocivil service law, rules of similar regulation shall not be impaired Provided for their, That regionaldirectors who are career service executed officers and other officers of similar rank in the saidregional offices who cannot be absorbed by the LGU shall be retained by the NationalGovernment, without any revolution of rank, salary or tenure.

h. 2 Badua v. Cordillera Bodong Administration, 94 SCRA 10Facts: In 1996.David Quema as the owner of 2 parcels of land in Lacaga, Lumaba,

Villaviciosa, Abra mortgaged said parcels of land of 6,000 to Dra. Erotida Valera. He was able toredeem the land of 22 years later, long after Dra. Valera had already died. He allegedly was ableto pay the redemption price of Dra. Valera’s heir. Spouses Leonor and Rosa Badua allegedhowever that Dra. Valera sold the land to her while she was still alive. However, Rosa could not

produce the deed of sale because it was allegedly in the possession of Vice-governor Benesa.As Quema was prevented by Rosa from cultivating the land, Quema, instead of filling

a case with the provincial courts, filed it instead with the Maeng Tribal Court of the CordilleraBondong Administration (CBA) In 1989, The tribal court rule in favor of Quema when the Baduasrefused to vacate the subject land, they (the Baduas) received a warning order from theCordillera People’s Liberation Army. The Baduas the felid a special and extraordinary relief withthe SC, which was duly treated as a petition for certiorari and prohibition, questioning the

jurisdiction and legal personality of the Maeng Tribal Court, the CBA and the CPLA.

Held: The petition is that the Cordillera Autonomous Region (CAR) never came intolegal existence as a consequence of the Ordillo v. COMELIC ruling. As a result, the MaengTribal Court was not constituted into an advisory or special court under R. A.6766. Instead, it is

just an ordinary tribal court with mere advisory and conciliatory power to make peace, settle andcompromise. Such courts are not considered part of Philippine judicial system. By analogy to thepangkat or conciliatory panels created under P.D.1508, if the Badua had failed to seasonably

repudiate the Maeng Tribal Court’s decision, said decision would have had the force and effectof a final judgment in court. As was shown, the Baduas did file a timely petition with the SC.

IV. POWERS OF MUNICAL CORPORATION (MC)A. Sources of Power 1. Constitution of a state2. Statutes of a state including a) those applicable to all municipal corporation or to the

class to which the particular municipal corporation belongs and b) special act of the legislature,as far as authorized, applicable to the particular municipal corporation.

3. The charter 4. Doctrine of inherent right of self-government with respect to certain municipal

matters (applicable to states which adhere to it).

B. Classification of Power

1.) Express, implied and inherent power

a. Express - those granted in express word by the special charter or thegeneral law under which corporation is organized.

b. Implied- those granted which arise by natural implication from the grantedof express power or by necessary inference from the purposes or function of the corporation(e.g. an ordinance to prevent fires necessarily carries with it the authority to chase fire trunks).

c. Inherent-those which are necessary and inseparable from everycorporation, and which come into existence as a matter of course as soon as an MC is createdthey are:

1. To have perpetual succession2. To sue and be sued, implead, grant and receive by its corporation name

and other acts as a judicial person

3. To make by laws and ordinances for the government of the corporation.4. To make and ordinance for the government of the corporation.

Note: Usually these so-called inherent powers are expressly provided in MCs charter.

2.) Legislative and executive powersa. Legislative – authority to make lawsb. Executive – authority to enforce laws

NOTE: The test to determine what is legislative and what is administrative iswhether the ordinance is one making a new or one executing law already in existence. Theformer is legislative; the latter’s executive.

3.) Intramural and extramural powers1.) Intramural – those exercised within the corporate limits of a municipal corporation.2.) Extramural – those exercised without like those given for the protection of water

supply, prevention of Nuisance, and also for police purposes.

4.) Governmental and municipal powers1.) Governmental – those exercised by the corporation in administering the powers of

the state and promoting the public welfare within. They include those which are legislative, judicial, public and political. Specific examples are: Administration of justice, police power;eminent domain; promotes public education; fire prevention and safety; and all other powers tobe exercised by the MC as an agent the State, for the benefit of the public or of the exercise of which the corporation receives consideration.

2.) Municipal – those exercised for the specified benefits and advantage of the urbancommunity and they include those which are ministerial, preemptory, private and corporateplans of which the corporation receives no compensation.

5.) mandatory and discretionary powersa.) Mandatory – those the exercise of which are required of municipal

corporations.

b.) Discretionary – those which the corporations may perform or notdepending upon own judgment and discretion.

III. Kinds of PowersA. Police Power (General Welfare Clause) and the limitations on the exercise

(Sec. 16, LGC)1. Police Power – the power to prescribe regulations to promote health, moral, peace,

education, good order or safety and general welfare of the people. It is the most essentialinsistent and illimitable of power. It is elastic and must be responsive to various socialconditions. Police power is inherent in the State but not in municipal corporations. In order that amunicipality corporation may exercise police power, there must be a legislative grant whichnecessarily also sets limits for the exercise of the power.

2. General Welfare Clause (Sec. 16, LGC) Every LGU shall exercise the power expressly granted, those necessarily implied there from, as well as the powers necessary,appropriated incidental for its efficient and effective governance, and those which are essential

to the promotion of general welfare. Within their respective territorial jurisdictions, LGU’s shallensure and support among other things, he preservation and enrichment of culture, promote



health and safety, enhance the right people to balanced ecology, encourage and support thedevelopment of appropriate the self-reliant scientific and technological capabilities, improvepublic morals, enhance economic prosperity and social justice, promote full employment amongtheir residents, maintain peace and order and preserve the comfort and convenience of their inhabitant.

3. Limitations on the exercise - a police power measure may be struck down as invalidif it does not meet tests a.) The interest of the public generally, as distinguish from those of aparticular class, requires the exercise of the police power and b.) The means employed arereasonably necessary for the accomplishment of the purpose and not unduly oppressive uponindividuals.

1. Binay y Domingo 201 SCRA 508Facts: On Sept 27, 1988, the Municipality of Makati, through its Council, approved

Resolution No. 60, which provided for a burial assistance program by the office of the mayor.Said program aims to extend financial assistance of P500 to bereaved families whose incomedoes not exceed P2, 000. The Commission on Audit (COA) disapproved Res. No. 60 on thegrounds that the said resolution 1.) did not have an obvious or real connection to the publicsafety, health, morals or general welfare in order to be sustained as a legitimate exercise of police power; and 2.) said resolution only benefits few individuals when it should benefit theinhabitants of the municipality as a whole. Mayor Jejomar Binay now petitions the SC that theResolution be declared a valid exercise of the police power.

Held: The COA is wrong Reasons:1. COA tried to redefine for itself the meaning of police power. Police power is not

capable of an exact definition. It is not limited to peace, order, morals and all the crap but isbroadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and everything worthwhile for

the preservation of comfort of the inhabitants of the corporation. (wow)2. COA is not attuned to the changing times. Public purpose is not unconstitutional

merely because it incidentally benefits a limited number of persons. The drift is toward socialwelfare legislation geared towards state policies to provide adequate social services, thepromotion of the general welfare, social justice, as well as human dignity and respect for humanrights.

2. American Mail Line v. City of Basilan 2 SCRA 309Facts: On Sept. 12, 1955, the City Council of Basilan City enacted Ordinance No.

180, amending Title Iv, Ordinance No. 7, which read as follows: “Article IV Regulation of berthing, mooring, docking and anchoring at piers or wharves at any point within the City of Basilan and for anchoring at any open bay, channel or any point within the territorial waters of the City of Basilan.” Ordinance No. 180 also added a new paragraph as an amendment withread: “Any foreign vessel engaged in otherwise trade which may anchor at any open bay,channel or any loading point within the territorial limits of the City of the City of Basilan for the

purpose of unloading logs or passengers and other cargoes shall pay an anchorage fee of ½centavo (P0.50) per registered gross ton of the vessel for the first 24 hours or part of thereof andfor succeeding hours part thereof, provided that maximum charge shall not exceed P75 per day,irrespective of the greater tonnage of shippage.”

Several foreign shipping companies, including American Mail Lines questioned thevalidity of such an ordinance with regards to the right of City of Basilan to impose such a fee.The City of Basilan answered that heir power to enact such an ordinance is based on a city’sexercise of its revenue raising or of its police power. To support their contention, Basilanpresented their Charter (R.A. 288) which states: “Sec. 14 General Powers and Duties of theCouncil. Except as otherwise provided by law, and subject to the conditions and limitationsthereof, the Council, the Council shall have the following legislative powers: a.) To levy andcollects taxes for general and special purposes in accordance with law x x x c) To enactordinances for the maintenance and preservation of peace and good morals x x x v) fix thecharges to be paid by all watercraft at or using public wharves, docks, levees, or landing places.Moreover, Basilan said the fees in question are for a regulatory purpose, the reason being the

island is a potential haven for smugglers and other illegal activities (the understatement of thecentury). Who is correct?

Held: American Mail Line is correct Reasons:1. First of all, the phrase, in accordance with the law in Sec. 14 a.) of the Charter

means that the City of Basilan is not given a blanket taxation power.2. It is automatic that the power to regulates as an exercise of police power does not

include the power to impose fees for revenue purposes. Thereof, Basilan’s claim that OrdinanceNo. 180 is for a regulatory purpose and not just for revenue purpose won’t save said Ordinancefrom invalidity. Moreover, the maximum charge of P75 is more than what the NationalGovernment imposes for harbor fees.

3. Basilan’s Charter also grants Basilan the power to fix charges to be paid by allwatercraft landing at or using public wharves, docks, and levies or landing places. Said provisiondoes not authorize Basilan to collect anchorage fees as can be shown by the need of Basilan to

enact the amendatory ordinance. (Huh? Excuse me?)

3. Villanueva y Castaneda Jr. 154SCRA 142Facts: On Nov. 7, 1961, the municipal council of San Fernando passed Resolution no.

218 allowing some 24 market vendors to construct their stalls along the vicinity of public marketin San Fernando, Pampanga. The action was protested in Civil Case No. 2040 in the CFE of Pampanga and a preliminary injunction was issued to prevent construction of said stalls. Whilethe case was pending, the municipal council then passed Resolution no. 29 which declared thesubject area as a parking place and a public plaza, thereby impliedly repealing Resolution no.218. In 1968, Civil Case no. 20 was decided and held that the land occupied by the marketvendors was beyond the commerce of man and could not be the subject of private occupancy.

The decision was apparently not enforced. The market vendors even claim that in1971, the municipal government allotted them specific areas for which hey paid daily fees tomunicipal government. By 1982, the number of vendors has ballooned to 200. The clamor toenforce Resolution no. 29 grew. After an investigation by he municipal attorney, the OIC of the

Office of the Mayor Vicente Macalino, ordered the demolition of the stall. The vendors protested(they apparently had little legal basis coz’ all they did was protest)

Held: Resolution no. 29 must be enforced. The reason is that, under the Civil Code,public plazas are properties of public dominion to be devoted for public use. And even assumingthat here was a lease agreement actually existing between the vendors and municipalgovernment as the vendors claimed the resolution could have effectively terminated theagreement. It is settled that the police power cannot be surrendered or bargained away throughthe medium of a contract. In fact, every contract affecting the public interest suffers a congenialinfirmity that it contains an implied reservation of the police power as a postulate of existing legalorder. This power can be activated at any time to change the provision of contract, or evenabrogate it entirely, for promotion and protection the general welfare. Such act will not militateagainst the impairment clause, which is subject to and limited by the police power.

4. De la Cruz v. Paras 123 SCRA 569Facts: The Municipal Council of Bocaue, Bulacan passed Ordinance No. 84 which

among others, state: “ Being the principal cause in the decadence of morality and because of their other adverse effects on the community as explained above no operator night club,cabarets and dance halls shall henceforth be issued permits/licenses to operate within the

jurisdiction of the municipality and no license/permit shall be i ssued to any professional hostess,hospitality girls and professional dance for employment in any of the aforementionedestablishments. The prohibition x x x shall include the prohibition in the renewal thereof.”

Vicente de la Cruz and other club owners assailed this Ordinance (among therespondents was Edgardo L. Paras, the judge who ruled against them at the lower court andwho was a former Associate Justice of the SC), claiming that1.) Municipality had no authority toprohibit a lawful business or calling and 2.) the Ordinance violated their right to due process andequal protection of the laws as they and the professional hostess, et. Al who works for them arebeing deprived of their property rights without due process of law.

Held: The Court ruled in favor of de la Cruz Reasons.1. In the guise of a police regulation, the Ordinance invaded personal or property

rights personal in the case of those individuals desirous of patronizing their night clubs, and

property in terms of the investments made and salaries to e earned by those therein employed.



2. Under the LGC of 1983, the Sanggunian Bayan is allowed to regulate, amongothers, the establishment and operation of billiard pools, theatrical performances, circuses andother forms of entertainment…”That the Municipal Council of Bocaue is allowed to regulate butnot to altogether prohibit such establishment is all too clear.

5. Velasco y Villegas 120 SCRA 568Facts: The City of Manila passed Ordinance no. 4964 which said, “It shall be

prohibited for any operator of any barber shop to conduct the business of massaging customersor other persons in any adjacent room or rooms of said barber shop, or in any room or roomswithin the same building where the barber shop is located as long as the operator of the barber shop and the room where massaging is conducted is the same person.” Tomas Velasco and

other members of he Sta. Cruz Barber Shop Association deplored said ordinance as tantamountto deprivation of property, specifically of their means of livelihood without due process of law(Astor Villegas, the respondent, is the mayor of Manila at that time.)

Held: Villegas’ contention doesn’t deserve even an inkling of sympathy. The reason isthat, as indicated in the ordinance, the objective said Ordinance are: 1.) to be able to imposepayment of the license fee for engaging in the business of the massage clinic under Ordinanceno. 3659 as amended by Ordinance no. 4767, an entirely different measure than the ordinanceregulating the business of barbershops and 2.) in order to forestall possible immorality whichmight grow out of the construction of separate rooms for massage of customers. The SC hasbeen most liberal in sustaining ordinances based on the general welfare clause.

6. US v. Pompeya 31 Phil 245Facts: On June 1, 1914, Silvestre Pompeya was charged with violation of municipality

ordinance of Iloilo, E. O. No. 1 series of 1914 based on section 40 (m) of Municipal Cod. Saidordinance, as based from Act 1309, states. “With the approval of provincial governor, when a

province of municipality is infested with ladrones or outlaws the municipality council isempowered to authorize the able-bodied male residents of the municipality between the ages of 18 to 50 years, to assist, for a period not exceeding 5 days in any one month, in apprehendingladrones, robbers and other lawbreakers and suspicious characters and to act as patrols for theprotection of the municipality, not exceeding one day in each week.” Violation of said ordinanceis penalized by a fine not less than P100 or 3 months imprisonment or both. Pompeya arguesthat the said ordinance violates the citizen provisional right to liberty.

Held: Pompeya is just plain lazy (in other words, Pompeya is wrong). Way back duringthe feudal age, lords of manors have called upon their vassals to defend the very land they tillupon. Even up to the time remote towns and countries have made it obligatory upon their citizens to defend their territory from felons. The ancient obligation to assist in the protection of peace and good order of the community is still recognized in all well-organized governments inthe “posse comitatus” (power of the country). Posse comitatus is in other words common lawand Act 1309 is statutory recognition of such common-law right. Overall, the State is simplyexercising its police power.

7. Iloilo Cold Storage v. Municipal Council 24 Phil 471Facts: The Municipal Council of Iloilo granted the Iloilo Ice Cold Storage Company

(ICS) authority to construct an ice cold storage plant in the city of Iloilo. Some time later,residents within the vicinity of said plant complained of the smoke and fumes emitted by thesmokestacks of the said plant. The Municipal Council thus ordered the ICS to elevate thesubject smokestacks; otherwise the plant would be enforced to close down. ICS replied that theMunicipal Council has no power under the Municipal Code to declare their plant as a nuisance.Only the counts may do so.

Held: ICS is correct Reasons:1.) it is conceded that 39(j) of the Municipal code empowers the Municipal Council to

declare and abate nuisances, However, there is a distinction between a nuisance per se andnuisance per accidens. The first refers to those which are unquestionably and under allcircumstances, nuisances. The second is well obviously, the opposite of the first.

2.) The question now is whether the Municipal Council has the blanket authority to

declare anything as a nuisance. The court ruled in the negative, the reason being that everythingwould be at the uncontrolled will of the local authorities, In order words, while the Municipal

Council has the power to declare and abate nuisance it does not have the power to declaressuch nuisance as a fact and that it exists. Only the ordinary courts can determine the fact of nuisance. The ice plant in question can be definitely said to be not nuisance per se.

8. Technological developers, Inc. y CA 193 SCRA 147Facts: Technology Developers Inc. (TDI) is a domestic private corporation engaged in

the manufacture and export of charcoal briquette. It received an order from Acting Mayor PabloCruz ordering he full cessation of TDI’s plant in Guyong Sta. Maria, Bulacan. Also TDI Plantmanager Armando Meneses was ordered to appear before the said mayor and produce thefollowing a.) Building permit b.) Mayor’s Permit c.) Region III Pollution of Environment andNatural Resources Anti-Pollution Permit, and other documents.

TDI was found to lack a Mayor’s Permit and the Region III-Pollution of Environmentand Natural Resources Anti-Pollution Permit. Without previous and reasonable notice to TDI,Acting Mayor Cruz ordered the padlock of TDI’s plant.

TDI was granted a writ of preliminary injunction against the Acting Mayor’s order.Upon motion for reconsideration, Acting Mayor Cruz presented evidence that TDI’s plantproduce hazardous fumes which endangered the lives of the people living nearby. Based on theevidence presented, the trial court dissolved the writ. An appeal by TDI with the CA provesfruitless. Thus, TDI sought relief with the SC.

Held: TDI's petition has no merit. The simple reason is that TDI failed to secure aMayor’s Permit and Region III-Pollution of Environment and natural Resources Anti-PollutionPermit. The Temporary Permit it received from the national Pollution Control Commission hasalready expired.

9. US v. Toribio 15 Phil. 86Facts: Act No. 1147 regulates the registration, branding and slaughter of cattle. Its

provisions state among others that 1.) no large cattle shall be slaughter or killed for food at themunicipal slaughterhouse except upon permit secured from the municipal treasure and 2.) anyperson violating this Act shall be punished by line of up to P500 or imprisonment of up to 6months or both. Convicted under said Act, Luis Toribio insists that he had not violated any lawsince. If you read the provision quite carefully, there was no showing that the animal heslaughtered was committed inside a municipal slaughterhouse and that thereof, any animal heslaughters elsewhere does not require a permit from the municipal treasure.

Held Toribio is wrong. The act primarily seeks to protect large cattle of the Philippinesagainst them and to make easy the return and recovery of such cattle to their proper ownerswhen lost. Strayed or stolen therefore the act can also be constructed as to require a permit for all slaughter of cattle whether in or out of a municipal slaughterhouse. And if as a result, thelanguage of the statue is fairly susceptible of two or more constructions, that construction can beadopted which will tell most to give effect to the manifest intent of the law maker and promotethe object for which the statue was enacted, and a construction should be rejected which willtend most to tender abortive other provision of the statue. Thus, Toribio’s construction of the law

should not be adopted and be replaced instead with the omniscient SC.Another reason for the adoption of the second construction is that it is more attuned to

the exercise of the police power of the state, in order to protect the community from the lost of service of such animals by their slaughter by improvised owners.

10. Solicitors Generally MMA No. 204 SCRA No. 837Facts: On May 24, 1990 the Metropolitan Manila Authority (MMA) issued ordinance

No. 11 series of 1991 authorizing itself “to detach the license plates of motor vehicles for trafficviolation was not among the sanction imposed by the Metro Manila Commission under PD 1605and was permitted only under the conditions laid down by Letter of Instruction 43 in the case of stalled vehicles obstructing the public street. It was there also observed that even confiscation of drivers licenses for traffic violations was not directly prescribe by the degree nor was it allowedby the decree to be impose by the commission

Months later, several complaints again proliferated all over metro Manila concerningthe confiscation of driver’s licenses and license plates. Several officers offered different

defenses justifying the confiscation, the more popular once being that, the confiscations werevalid pursuant to ordinance no.7 series of 1988 and that the Gonong decision should be



interpreted to mean that only the confiscation of license plates are prohibited. Director GeneralCesar Nazareno of the PNP even insisted that his office has never authorized the removal of license plates of illegally parked vehicles and has in fact, event the directed full compliance of the Gonong decision in memorandum dated February 28, 1991.

On July 2, 1991, the SC issued a resolution asking the solicitor general and the MMAto file their comments regarding the issue. The solicitor general involves the view that ordinanceno.11 is null and void for begin unrivalled exercise of the delegated legislative power since PD1605 does not permit and thus impliedly prohibits, the removal of license plates and theconfiscation of driver’s license (Expresio unuis est exclusion alterius). The MMA however,invokes EO 392 the law providing for MMA’s creation, which vested in it among others theresponsibility of promulgating resolutions and other is issuances of Metropolitan Wide

Application, approval of a code of basic services requiring coordination and the exercise of itsrole making powers. Also MMA said that the ordinance cannot be attacked collaterally but onlyin a direct action challenging its validity.

Held: The MMA is wrong. Reasons:1) Considering the confusion over what law to follow regarding the confiscation, with

some officers even declaring that Gonong decision was wrong the SC decided to rule on theissue squarely despite the fact that ordinance No.11 was not challenged in a direct action.Besides, the SC squarely said, said rule concerning direct actions is not an inflexible one.

2) As to the merits, the SC admits that the power to promulgate measures to promotethe comfort and convenience of the public and to alleviate the worsening traffic problems due ina large part to stimulation of traffic rules (E.O. 392 and the general welfare clause LGC) is validdelegation of legislative power. But the real issue is not the validity of the delegation of legislative power. It is the validity of such exercise of delegated power. A municipal ordinance tobe valid

a) Must not contravene the Constitution

b) Must not be unfair or oppressivec) Must not be partial or discriminatoryd) Must not prohibit but may regulate trade ande) Must be general and consistent with public policy.

11 . Acebedo Optical Co. Inc. v CA 329 SCRA 314Facts: Acebedo Optical Co. applied with the office of the City Mayor Iligan for a

business permit. City Mayor Camilo Cabili issued the said permit but subject to the followingconditions.

1) Since it is a corporation, Acebedo cannot put up an optical clinic but only an opticalstore.

2) Acebedo cannot examine and/or prescribe reading and similar optical glasses for patients, because these are function of optical clinics.

3) Acebedo cannot sell reading and similar eye glasses without a prescription havingbeen first made by an independent optometrist (not its employee) or independent optical clinic.

Acebedo can only sell directly to the public without need of prescriptions, Ray ban and similar eye glasses.

4) Acebedo cannot advertise optical lenses and eyeglasses but can advertise Ray banand similar glasses and frames.

5) Acebedo is allowed to grind glasses but only upon the prescriptions of anindependent optometrist.

The Samahan ng Optometrist ng Pilipinas (SOPI) however, ledged a complaint againstAcebedo, alleging that Acebedo violated all the conditions impose on its business permit.Acebedo in response, protested the conditions impose by the city mayor stating that

1) The conditions impose are beyond what the city mayor can impose within hisauthority as they have no basis in any law or ordinance and

2) Acebedo’s acceptance of the business permit does not stop it from challengingthe said conditions as ultra vires since a permit is not a binding contract.

Held: Acebedo is correct. Reason:

1) The court has already ruled in SOPI v. Acebedo International that in the absenceof a law prohibiting the hiring by corporation of optometrist, there is then noprohibition against the hiring by corporations of optometrist

(this is in reference to the No.3 conditions of the business permit ). The currentoptometry law (R.A. 8050) contains no such prohibitions,2) a license of contract is not a contract between the sovereignty and the licensee

or permitted and is not a property in the constitutional sense. A license is rather in the nature of a special privilege of permission or authority to do what is withinits term. It is not anyway vested permanent or absolute. Therefore the businesspermit in the case at bar not being a contract Acebedo is not stopped fromchallenging the conditions therein as ultra vires.

3) Overall, the primary purpose of the optometry law in regulating the practice of optometry to insure that opt metrical services are too be rendered by competentand licensed person in order protect the health and physical welfare of thepeople from the dangers endangered by unlicensed practice. Such purpose maybe fully accomplished although the person rendering the service is employed bya corporation.

NOTE: In effect, the only condition challenged by Acebedo was condition No.3NOTE: Is optometry a profession or a mechanical art? Both the majority (as penned by justPurisima) and dissenting opinions (as penned by justice Vitug) could not agree on this question.

Distinction is important because if optometry is a profession, then the optometry, Lawshould be reexamined as there is the danger that corporation , in hiring optometrist, may beperceived as engaged in the practice of optometry is a profession, them corporation mightcompromise the professional accountability of optometry as the motivation to sell eyeglassesmay prevail over professional ethics. For instance, the control exercised by corporations over

optometrist hired as employees might force said optometrist in sacrificing their professionalopinion for the for the sake of selling the corporation’s products (All these arguments aboutoptometry being a profession is BS. The SOPI is just afraid of the competition offered bycorporation, but the Court, in its infinite wisdom not touch on that)

B) Eminent Domain1. Requisites for the Exercise*Sec. 19, LGC – Eminent Domain, An LGU may, through its chief executive, and

acting pursuant to an ordinance, exercise the power of eminent domain for public use or purpose or welfare for the benefits of the poor and landless upon payment of just compensationpursuant to the provision of the Constitution and pertinent laws: provided however that thepower of eminent domain may not be exercised unless a valid and definite offering has beenpreviously made to the owner and such offer was not accepted. Provided further , that the LGUmay immediately take possession of the property upon the filing of expropriation proceedingand upon making a deposit with the proper court of at least 15% of the fair market value of the

property based on the current tax declaration of the property to be expropriated. Provided finallythat the amount to be paid for the expropriated property shall be determined by the proper courtbased on the fair market value at the time of the taking of the property.

*Art 32.IRR – Eminent Domain when exercise a) an LGU may through its chief executive and acting pursuant to an ordinance exercise the power of eminent domain for publicuse purpose welfare of the poor and landless upon payment of just compensation, pursuant tothe provision the Constitution and pertinent laws b) The power of eminent domain may not beexercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted.

*Art, 36 IRR – a) if the LGU fails to acquire private property for public use purpose or welfare through purchase, LGU may expropriate said property through a resolution of theSangguniang authorizing its chief executive to initiate expropriation proceeding b) The local chief executive shall cause the provincial, city or municipal attorney concern or: in his absence , the

provincial or city prosecutor to file expropriation proceeding in the proper court in accordancewith rule of Court and other pertinent laws c) The LGU may immediately take possession of the



property upon the filing expropriation proceeding and upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declarationof the property to be expropriated

*Art 37, IRR – Payment. The amount to be paid for the expropriated property shalldetermined by the proper court based on the fair market value at the time of the taking of theproperty.

*Rule 67, 1997 Rules of Civil ProcedureThis rule consists of 14 sections enumerating the procedure to be followed in eminent

domain. Briefly the rule enumerates the following section: 1) The Complaint 2) entry of plaintiff depositing value with National or provincial Treasure (but this section No. 2 has been repealedby P.D. No. 42) 3) defenses and objection 4) order of condemnation 5) ascertainment of compensation 6) proceeding by commission 7) report by commission and judgment thereupon8) action upon commissioner report 9) uncertain ownership/conflicting claim 10) right of plaintiff after judgment and payment entry not delayed by appeal, effect of reversal 12) cost, by whompaid 13) recording, payment and its effect 14) power of guardian in such proceedings.

P.D. No.42 in a relation to Section 2 of Rule 67, effectively removes the discretion of the counting determining the provisional volume. What is to be deposited is an amountequivalent to the assessed value for taxation purposes. No hearing is required for the purpose.All that is needed is noticed to the owner of the property sought to be condemned.

NOTE: So that you don’t have to bother reading the crappy 14 sections enumerated inRule 76, let’s use instead the summary given by the Court regarding the 3 stages of every action

of expropriation in NAPOCOR v. Jocson: 1) The first is concerned with the determination of the authority of the plaintiffs to

exercise the power of eminent domain ant the property of its exercise in the context of the factsinvolved in the suit. It ends with an order if not of dismissal of the action, “of condemnationdeclaring that the plaintiff has a lawful right to take the property sought to be condemned, for thepublic use or purpose described in the complaint, upon the payment of just compensation to bedetermined as of date of the filling of the complaint.” An order of dismissal, if this is to beordained, would be a final one since it finally disposes of the action and leaves the Court withnothing more to be done on the merits. So too, would an order of condemnation be a final one,for thereafter, the Rules expressly state in the proceedings before the Trial Court, “no objectionto exercise of the right of condemnation (or the propriety thereof) shall be filled or heard.

2) The second phase of the eminent domain action is concerned with thedetermination by the Court of the “just compensation for the property sought to be taken.” This isdone by the Court with the assistance of not more than 3 commissioners. The order fixing the

just compensation on the basis of the evidence before, and findings of, the commissioners willbe final too. It would finally dispose of the second stage of the suit, and leave nothing more for the Court to be done by the Court regarding the issue.

3) However, upon the filling of the complaint or at anytime thereafter, the petitioner has the right to take or enter upon the possession of the property involved upon compliance withP.D. 42 which requires the petitioner, after due notice to the defendant, to deposit with the PNBin its main office or any of its branches or agencies “an amount equivalent to the assessed valueof the property for purposes of taxation.” The assessed value is that indicated in the taxdeclaration.

*DILG Opinion No. 10-1996The researcher isn’t too keen in going to the DILG to get their opinions. “R”

2) Purposes of expropriation

a. In the Philippines, regular provinces are authorized to exercise the power of eminent domain for the following purposes: the construction and extension of roads, streets,

sidewalks, bridges, ferries, levees, wharves or piers; the construction of the public buildingsincluding schoolhouses; and the making of necessary improvements in connection therewith; theestablishment of parks, playground, plazas, market places, artesian wells or systems for thesupply of water, and the establishment of cemeteries, crematories, drainage system, cesspools,or sewage systems.

b. Municipalities in regular provinces are authorized to exercise the power of eminentdomain for any of the following purposes: the construction or extension of roads, streets,sidewalks, bridges, ferries, levees, wharves or piers; the construction buildings, includingschoolhouses, and the making of improvements on parks, playground, plazas, marketplaces,artesian wells, or system for the supply of Water, and the establishment of cemeteries,crematories, drainage system, cesspools, or sewage systems.

3) Illustrative cases:

1. National Power Corporation v. Jocson 206 SCRA 520Facts: The NAPOCOR is a GOCC created and existing by virtue of RA No. 6395, as

amended, for the purpose of undertaking the development of hydraulic power, the production of power from any source, particularly by constructing, operating and maintaining power plants,auxiliary plants, dams, reservoirs, pipes, mains, transmission lines, power station and other works for the purpose of developing hydraulic power from any river, creek, lake, spring andwaterfall in the Philippines and supplying such power to the inhabitants thereof. In order to carryout these purposes, it is authorized to carry out the power of eminent domain.

On March 30, 1990, NAPOCOR filled 7 cases of eminent domain against 7 privatecitizens before the RTC of Bacolod city for the acquisition of a right of way easement over portion of the parcels of land described in the complaint for its Negros Panay InterconnectionProject, particularly the Bacolod Tamonton Transmission Line. The complaints uniformly a allege

that petitioner urgently needs position of the affected land to enable it to construct its tower andtransmission line in a manner that’s is compatible with the greatest good while at the same timecausing the least private injury, the purpose for which the lands are principally developed will notbe injured by the transmission lines as it will only acquire a right of easement thereon , and ithad negotiated with the offered to pay defendants for the portion affected by the BacolodTamonton Transmission Line, but the parties failed to reach an agreement despite long andrepeated negotiations, and be pray that, among others, that the RTC fix the provisional value of the portion of the parcels of land sought to be expropriated pursuant to Sec.2, Rule 67 of theRules of the Court.

On June 25, 1990, the RTC, after finding the existence of public interest which may beserve by the expropriation, fixed the provisional values of the 7 subject areas and directed theNAPOCOR to deposit the amounts with the PNB in escrow of the benefits of the defendantspending decision on the merits. The market values mentioned in the Order are the same valuesappearing in the fax declarations of the properties and the notices of Assessment issued by the

Assessor.

In compliance with said Order. NAPOCOR deposited the sum of P23, 180,828.00 withthe PNB.Two of the defendants however, filled motions for reconsideration. The first one – filled

by Jesus, Fernando, Michael and Ma. Cristina Gonzaga (the Gonzaga Four ) – alleged that theprovisional value of the property involved therein has been set much to low, the reason beingthat the expropriation of their areas “would render the remaining portion practically at a lossconsidering that the presence of the transmission lines will pose a danger to the inhabitants inthe area as well as destroy the marketability of the remaining potion after expropriation.Moreover, the subject areas are located near several posh subdivisions. “The second one –filled by Louis Gonzaga, et, al. – sought for a re-evaluation of the areas owned by them as saidareas were contiguous to the Gonzaga Four and were thus affected by the same condition.

The RTC granted their motion and the NAPOCOR, in compliance, deposited theadditional amount of P22,866,860,00 with the PNB.

On July 18, 1990 the RTC Judge Enrique Jocson issued another Order increasing theamounts to be received as compensation on the part of the Gonzaga Four, Louis Gonzaga and

3 other defendants’ amounts. NAPOCOR in a response filled a complaint of grave abuse of discretion against the said judge, saying the increases he ordered are excessive and



unconscionable. Nevertheless, due to the urgent need to complete the interconnection projectas soon as possible, NAPOCOR deposited the order additional amounts. Still despite doing so,NAPOCOR claimed the Judge stubbornly refused to issue the writ of possession.

Did the Judge act with grave abuse of discretion?

Held: Yes. Reasons:1. The Judge ignore P.D.No.42 ( see the info titled “ Rule 67,Rules of Court”, page 27

of this reviewer).He fixed the provisional values of the subject properties at their market valuesand daily opportunity profits, something which should not be done. The values should be fixed atan amount equivalent to the assessed value for taxation purpose.

2. More importantly, when the Judge, although erroneously, fixed the provisional

values of the subject property and NAPOCOR in turn deposited the said amounts, the saidJudge last plenary control over the order fixing the amount of the deposit and has no power toannul, amend or modify it matters of substance pending the course of the condemnationproceedings. The reason for this is that a contrary ruling would defeat the very purpose of thelaw which is to provide for a speedy and summary procedure whereby the peaceablepossession of the property subject of the expropriation proceedings “may be secured without thedelays incident to prolonged and vexatious litigation touching the ownership and value of suchlands, which should not be permitted to delay the progress of the work.”

3. The Judge also, in effect, gave the defendants the final authority to determine justcompensation when in fact; the determination of just compensation in expropriation proceedingsis a judicial function. Moreover, he did not even appoint the 3 commissioners as mandated bySec. 5 of Rule 67 of Court in order to ascertain and report to him the just compensation soughtto be taken. He even ruled that the writ of possession shall be issued only after the defendantshave received the amounts, which should not be the ease. All these show the gross ignore of the Judge and his orders and rulings must be reversed.

2. City Government of QC v. Ericta 129 SCRA 759Facts: The Quezon City Council passed Ordinance No.6118 S-94 entitled “ Ordinance

regulating the establishment, maintenance and operation of private memorial type cemetery or burial ground within the jurisdiction of Q.C and providing penalties for he violation thereof. “Saidordinance provides, among others: “Sec.9 .At least 6% o f the total area of the memorial parkcemetery shall be seta side for a charity burial of deceased persons who are paupers and havebeen residents of Q.C for at least 5 years prior to their death, to be determined by competentCity Authorities. The area so designated shall immediately be developed and should be open for operation not later than 6 months from the date of approval of the application.”

For 7 years, the ordinance was not enforced by city authorities, but when the Q.CCouncil decided to enforce it by passing a resolution to that effect, Himlayang Pilipino, Inc.responded by filling a petition for declaratory relief, prohibition and mandamus with preliminaryinjunction with the CFI in Q.C praying that the ordinance be declared null and void. Said petitionwas granted. The question now raised is: Is the said ordinance a valid exercise of the police

power? Held: No. Reasons:1. The Charter of Q.C grants Q.C. the power to tax, fix the license fee and regulate

such other Business, trade and occupation as may be established or practiced in the City. Thepower to regulate however, does not include the power to prohibit. A portion, the power toregulate does not include the power to confiscate. The ordinance not only confiscates but alsoprohibits the operation of a memorial park cemetery because under Sec. 13 of said ordinance,violation of its provisions is punishable by fine, imprisonment and/or that the permit to operateand maintain a private cemetery shall be revoked or cancelled. Sec.9 is not mere policeregulation but an outright confiscation of private property without due process of law may, evenwithout compensation.

2. When the Local Government Code of 1983 provided that a SangguniangPanlungsod may provide, for the burial of the dead in such manner as prescribed by law or ordinance it simply authorized the city to provide its owned city owned land or to buy of expropriate private properties to construct public cemeteries. Expropriation however, requires

payment of just compensation. Thus, Himlayang Pilipino Inc. cannot be said to have impliedly

acknowledge sequestration of 6 % of its property without just compensation when it acceptedthe permits to operate from the city government.

3. Heirs of Juancho Ardona v.Reyes 125 SCRA 221Facts: The Philippine Tourism Authority (PTA) filed 4 complaints with the CFI of

Cebu City for the expropriation of some 282 hectares of rolling land situated in BarangaysMalubog and Babag, Cebu City, under PTA’s express authority, as mandated in its Charter, “ toacquire by purchase, by negotiation or by condemnation proceedings any private land within andwithout the tourist zones “ for the development into integrated resort and sport complexes of selected and well- defined geographic areas with potential tourism value.

The defendants, numbering 40, filed motions to dismiss on the ground that the taking was

not for Public use, specifically that the there is no constitutional provision authorizing the takingof private property for tourism purposes. Moreover, the defendants claimed that the land theyown subject of the expropriation is actually covered by certificate of land transfer (CLT) andemancipation patents

Thereby making the lands expropriated within the coverage of the land reform areaunder P.D No.2The defendants argue that the agrarian reform program occupies a higher levelin the order of priorities than other state policies like those relating to the health and physicalwell-being of the people.

Held : The Ardona’s forty’s petition should be dismissed. Reasons:1. The concept of public use i s not limited to traditional purposes like the construction

of roads, bridges, parks and the like. Public use is not use by the public.” It also mean, publicwell-fare and such a concept are broad, and inclusive. The values it represents are spiritual, aswell as physical, aesthetic as well as monetary. It is within the power of the legislature todetermine that the community should be beautiful as well as healthy, spacious, as well as clean,

well balanced as well as carefully patrolled.Once the object is within the authority of Congress, the right to realize it through the exercise of Eminent Domain is clear. As a general rule then, as long as the taking is public, the power of eminent domain comes into pay.

2. The fact that private concessionaires such as private firms, food outlets, etc. willlease the subject areas will not diminish the public character of the expropriation ( In other words, the place is open to anybody for as long as she or he can pay).

3. The records show that the only 2 of the 40 defendants have CLT’s or emancipationpatents. And those CLT’s in their possession covers only less than 1 hectare of the 282 hectaresintended fore expropriation. Moreover, the less-than 10-hectare portion of land is not even partof the resort and sports complex proper but is part of the 32 hectare resettlement are for allpersons affected by the expropriation. Certainly, the human settlement needs of the manybeneficiaries of the 32 hectareResettlement area should prevail over the property rights of two of their compatriots. (This lastsentence did not sit well which Justice Makasiar and 2 others dissenters because the two

persons who had CLT’s were conveniently ignored).

4. City of Manila v. Chinese Community 40 Phil. 349Facts: On Dec. 11.1916, the City of Manila presented a petition in the CFI of Manila

praying that for the purpose of constructing a public improvement, namely the extension of RizalAvenue, Manila, it is necessary for the City of Manila to acquire ownership in fee simple of certain parcels of land situated in the district of Binondo of said city within Block 83 of saiddistrict. The proposed extension of Rizal Avenue however will take a part of the Chinesecemetery, a public cemetery at that the Chinese Community of Manila thus contended that 1)the City of Manila cannot appropriate the cemetery or a portion thereof as said cemetery ispublic property, only private property may be expropriated and 2) there is no necessity for theimprovement as a whole in the first place. Is the Chinese Community correct?

Held: The Chinese community is correct as to its contention Reasons:1. First of all, the matter regarding the extent of the court’s authority in expropriation

cases must settled. An examination of Sec.243 in Act No.190 (the predecessor of today’s Rule67 of the Rules of Court) reveals, “if the Court shall find upon trial that the right to expropriate the



land exists, it shall then appoint commissioners.” The City of Manila contends that sinceexpropriation is exclusively a Legislative function, the authority of the courts then is limited todetermining the following a whether a law granting the expropriation exists and b) the value of the land in question. This contention is partly meritorious. There is no question that the court hasauthority to fix the values of the land question. As to the authority of determining whether a lawgranting the expropriation exists, a distinction must be made between a) laws granting specialpurpose and b) laws grating a general authority. If the law in question grants expropriation of aparticular parcel of land and for a specific public purpose, then the Court’s would he without

jurisdiction to inquire into the purpose of that legislation, regardless on whether or not the landin question is private or public. But if the Legislature should grant general authority to amunicipal corporation then to expropriate private lands, for public purpose, the courts then

would have Authority then to make inquiry and to hear proof, upon an issue properly presentedconcerning whether Or not the land in question was private and whether the purpose was in fact,public. In the instant case, since the City of Manila was given a general grant of authority toexpropriate private lands under its Charter, the Court has authority to inquire on whether theexercise of such expropriation by the City of Manila is indeed public- in other words, the Courtmay inquire into the necessity of the expropriation.

2. As mentioned above public property may be expropriated provided a special grantof Authority for a particular parcel of land was passed by the Legislature. The City of Manila wasnot granted such a special authority. Therefore, the Chinese Cemetery or a portion thereof maynot be expropriated.

3. It is axiomatic that the taking of private property for public use is not justified unlessthere is a genuine public necessity for the taking. In the present case, even if granting that anecessity exists for The opening of the street in question, the record contain no proof of thenecessity of opening the same through the cemetery. The records show that adjoining andadjacent lands and have been offered to the city free of charge, which will answer every purpose

of the city.

5. National Power Corporation v. CA 254 SCRA 577Facts: In 1978, NAPOCOR took possession of a 21,995 sq. m. land which is a portion

of Lot 1 Of the subdivision plan (LRC) Psd_116169 situated in Marawi City, owned byMacapanton Mangondato, Under the mistaken belief that it forms part of the public landreserved for use by NAPOCOR of Hydroelectric power purposes under Proclamation No. 1354of the President of the Philippines dated Dec.3, 1974. NAPOCOR alleged that the subjectland was until then possessed and administered by Marawi City so that in exchange for thecity’s waiver and quitclaim of any right over the property, NAPACOR had paid the city a:financial assistance : of P40 sq. m.

In 1979, when NAPOCOR started building its Agus 1 (Hydroelectric plant) project,Mangondato demanded compensation from NAPOCOR. NAPOCOR refused to compensateinsisting that the property is public land and that it has already paid “financial assistance “toMarawi City in exchange for the rights over the property.

Mangondato claimed that the subject land is his duly registered property covered by aTCT in his name that he was not privy to agreement between Marawi City and NAPOCOR andthat any Payment made to said city cannot be considered as payment to him.

More than a decade later, NAPOCOR acceded to the fact that the property belongs toMangondato. On August 14, 1990, NAPOCOR‘s National power Board (hereafter Power Board)passed a resolution resolving to pay Mangondato the base price of P40 per sq.m for only a12,132 sq.m portion Of the subject property (P 485,280,001) plus 12% interest per annum from1978 (P698, 808.00) pending A determination by NAPOCOR’s regional legal council on whether P100.00 is the fair market value of Property.

Pursuant to the aforementioned resolution, Mangondato paid P1, 184.088.00. On May 17,1991, the power Board passed a resolution resolving to pay Mangondato P100 per sq.mexcluding the 12 % interest per annum.

In a letter, Mangondato disagrees with the power board’s new resolution. He said that thisproperty was worth even more than p300 per sq.m but he was willing to settle for P300 per sq.mgreedy bastard).

On May 25,192, NAPOCOR authorized its president to negotiate with Mangondato for thepayment of P100 for the land plus 12 % per annum from 1978 less the payments already made10 Mangodato and to Marawi City on the portion of his land.

On July 7, 1992, the greedy bastard replied by filling a civil case seeking to recover possession of he property described in the complaint as Lot of the subdivision plan againstNAPOCOR, the payment of a P15, 000 monthly rent until the surrender of the property, and theissuance of a TRO and a writ of preliminary mandatory injunction to restrain NAPOCOR fromproceeding with any construction and/or improvements on Mangondato’s land or fromcommitting any act of dispossession.

On July 27, 1992, NAPOCOR countered by filling a complaint for eminent domainagainst Mangondato. The lower court then ordered, after duly appointing 2 commissioners, that

NAPOCOR deposit the amount of P10, 997,500.00 with the PNB, provisionally fixing the valueof the land at P500 per sq. m., P100 lower than the assessed value of the land appearing in itstax declaration for 1992 which was P100.

In its decision, the lower court denied the recovery of possession by Mangondato butordered NAPOCOR to pay the former a monthly rent of P 15,000 from 1978 to 1992 with 12 %interest per annum and condemning the property in favor of NAPOCOR effective July 1992 uponpayment of P1000 per sq.m. or P21,995,000.00 as just compensation.

NAPACOR contested the decision. In its assignment of errors, NAPOCOR said thatthe lower court erred in affirming that the just compensation for the property is its value in 1992,when the complaint was filed, and not its value in 1978, when he property was taken by petition,ergo, the court erred in fixing the value of just compensation at P1, 000 per sq.m instead of P40per sq.m

Held: NAPOCOR is wrong. Reasons:1. The general rule in determining just compensation in eminent domain is the value of

the property as of the date of the filling of the complaint Sec.4 rule 67, Rules of Court. Normally,the time of taking coincides with the filling of the complaint for just compensation. However, if thetime of taking does not coincides with the time of the filling, the rule is that the value of theproperty should be computed from the time the property as taken into possession from the timehe was deprived thereof while the value itself it’s determined at the time of the filling of thecomplaint.

2. The taking for the purpose of determining the value of the property, is determinedwhen the following elements concur.a) The expropriator must enter a private property.b) The entrance into private property must be for more than a momentary period.c) The entry into the property should be under warrant or color of legal authority.

d) The property must be devoted to a public use or otherwise informallyappropriated or injuriously affected.

e) The utilization of the property for public use must be in such a way as to oustthe owner and deprive him of all beneficial enjoyment of the property.

In NAPOCOR’s case, element no.3 was not present when NAPOCOR tookpossession of the subject property in 1978 since NAPOCOR falsely believed that the subjectproperty was public land reserved for its own use under Proclamation No. 1354. Only in 1992,when it initiated expropriation proceedings, did it obtain color of legal authority. The provisionalvalue of the same would then be assessed as of 1992.

6. Province of Camarines Sur v. CA 222 SCRA 173Facts: On Dec. 22, 1988, the Sangguniang Panlalawigan of the Province of

Camarines Sur passed Resolution No.129,S-88, authorizing, the Provincial governor topurchase or expropriate property contiguous to the provincial capitol site, in order to establish apilot farm for non-food and non- traditional agricultural crops and a housing project for provincialgovernment employees.

Pursuant to the resolution, the Province of Camarines Sur, through Governor LuisVillafuerte filed two separate cases of expropriation against Ernesto and Efren San Joaquin, with

the RTC of Pill, Camarines Sur. Forthwith, and the said province filed a motion for the issuanceof the write of possession. The San Joaquins failed to appear at the hearing of the motion.



The San Joaquins filed a motion to dismiss on the ground of inadequacy of the priceoffered for their property. The court denied the motion to dismiss and authorized the Province totake possession of the said property upon the deposit with the Clerk of Court of the amount P5,714.00, the amount provisionally fixed by the trial court to answer for damages that the SanJoaquins may suffer in the event that the expropriation cases do not prosper.

The trial court ruled in favor of the Province. On appeal, the CA ruled in favor of theSan Joaquins, stating among others that the trial court suspend the expropriation proceedingsuntil after the province shall have submitted toe requisite approval of the Department of AgrarianReform to convert the classification of the property of the private respondents from agriculturalto non- agricultural land (this is in deference to the Solicitor General’s view that the Provincemust first secure the approval of the Department of Agrarian Reform ( DAR) regarding the plan

to expropriate the lands of the San Joaquins for use as a housing project.The province now defends its expropriation of the subject lands, claiming its authority

from Sections 4 and 7 of the Local Government Code of 1983, and that the expropriation was for a public purpose.

Held: The Province of Camarines Sur is correct. Reasons:1. Public use now means public advantage, convenience or benefit, which tends to

contribute to the general welfare and the prosperity of the whole community, like are sortcommunity or a housing complex. In the cage, the expropriation here is for public purpose. Theestablishment of a pilot center would inure to the direct benefit and advantage of the people of the Province. Once operational, the center would make available to the community invaluableinformation and technology on agriculture, fishery and the cottage industry. Ultimately, thelivelihood of fisherman, farmers, and craftsmen’s would be enhanced. The housing project alsosatisfies the public purpose requirement of the Constitution.

2. As to the issue whether the approval of the DAR (for the purpose of realizing the

housing project intent of the expropriation) is needed before expropriation proceedings cancontinue, the Court simply ruled that the same is not needed, simply because the L:GC of 1983nor any other laws does not require the same.

7. Moday v. CA 268 SCRA 586Facts: On July 23,, 1989, the Sangguniang Bayan of Bumawan in Agusan del Sur

passed Resolution No. 43-89 authorizing the Municipal Mayor to initiate the expropriation of aone (1) hectare portion of Lot No. 6138 –Pls-4 along the National Highway owned by PercivalModay for the site of the Bunawan Farmers Center and other Government Sports Facilities.

Said Resolution was approved by then Municipal Mayor Anuncio Bustillo andtransmitted to the Sangguniang Panlalawigan. The Sangguniang Panlalawigan however disapproved the resolution on the ground that the “expropriation was unnecessary consideringthat there are still available lots in Bunawan for the establishment of government center.”

Undaunted, the Municipality of Bunawan nevertheless filed a petition for EminentDomain against Moday. After depositing the necessary amount in accordance with Rule 67 of

the Rules of Court with the municipal treasurer, the Municipality filed a Motion to Take or Enter Upon the Possession of the Subject Matter.Despite Moday’s opposition and after the hearing of the merits, the RTC ruled in favor

of the Municipality, saying that among others, that since the Sangguniang Panlalawigan failed todeclare the Municipality’s resolution as invalid, the same should be deemed effective. (Wow, theRTC has 2 different meanings for ‘invalid’ and ‘disapproval’). An appeal to the CA also provedfruitless. In the meantime, the Municipality created 3 buildings on the subject property.

Upon petition by Moday, the SC issued a TRO to prevent the Municipality from usingthe buildings it already constructed as well as constructing future buildings. Moday, in hispetition to the SC, also adds that since the Sangguniang Panlalawigan disapproved theresolution, the same is void and thus the Municipality could not insist in pushing through with theexpropriation.

Held: Moday is wrong. Reasons:1) The Municipality’s power to exercise the right of eminent domain is not disputed.

Sec. 9 of the LGHC of 1983 states, “LGUs may, through its head, and acting pursuant to a

resolution of its Sanggunian, exercise the right of eminent domain and institute condemnationproceedings for public use or purpose”.

2) A reading of Sec. 153, LGC of 1983 states, “If the Sangguniang Panlalawigan (SP)shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the Sangguniang bayan (SB) or the Mayor, it shall declare such ordinance,resolution or Executive Order invalid in whole or in part xxx. The effect of such action shall be toannul the ordinance, resolution or Executive Order in question in whole or in part. The action of the SP shall be final”. Said section gives the condition “if such resolution is beyond the power conferred upon by the Sangguniang Bayan or Mayor xxx”. Obviously, it is well within the power of the Municipality to exercise the right of eminent domain and thus, the SB has the capacity topromulgate a resolution pursuant to the exercise of such a right. The SP therefore, was without

authority to disapprove said resolution.3. Finally, Moday claimed the expropriation against his property was motivated by

political revenge since he did not support Mayor Bustillo’s candidacy in the previous elections. If that were true, then Moday’s petition would have been meritorious since the taking of privateproperty for public use must be genuine. The SC simply ruled that there was no evidence tosupport such claim. Besides, the records do not show that there was indeed another availableproperty for the same purpose.

C) Power of Taxation (Five requisites for the exercise, publication requirements andpublic hearing)

Five requisites for the exercise:1. Municipal revenue obtainable by taxation shall be derived from such sources only

as are expressly authorized by law.2. Taxation shall be just and uniform in each municipality.

3. It shall not be in the power of the municipal council to impose tax in any form,whatever upon goods and merchandize carried into the municipality, or out of thesame, and any attempt to impose an import or export tax upon such goods in theguise of an unreasonable charge for wharfage, use of bridges or otherwise, shallbe void.

Note: Compare this with Sec 133 (e) of LGC 1991, “Unless otherwise provided herein, theexercise of the taxing powers of provinces, cities, municipalities and barangays shall not extendto the levy of the following xxx (e) taxes, fees and charges and other impositions upon goodscarried into or out of, or passing through, the territorial jurisdictions of LGUs in the guise of charges of wharfage, tolls for bridges or otherwise, or other taxes, fees or charges in any formwhatsoever upon such goods or merchandise.”

4. In no case shall the collection of municipal taxes be left to any person.5. Except as allowed by law, municipal funds shall be devoted exclusively to local

public purpose.

Publication Requirements:1. Two modes of apprising the public of a new ordinance according to Sec. 43 LocalTax Code (based on the Allied Thread v. City of Manila case)

a. By means of publication in a newspaper of general circulation, or b. By means of posting of copies thereof in the local legislative hall or

premises and 2 other conspicuous places within the territorial jurisdiction of the local government.

2. Publication of Tax Ordinances and Revenue Measures (Sec. 188, LGC of 1991)3. Within 10 days after their approval, certified true copies of all provincial, city and

municipal ordinances of revenue measures shall be published in full for 3 consecutive days in a newspaper of local circulation. Provided,however, that in provinces, cities and municipalities where there are nonewspapers of local circulation, the same may be posted in at least 2conspicuous and accessible places.

Public Hearing:



1. Procedure for Approval and Effectivity of Tax Ordinances and revenueMeasures; Mandatory Public Hearings (sec 187, LGC of 1991)

- The procedure for the approval of local tax ordinances and revenue measuresshall be in accordance with the provisions of this Code: Provided that any question on theconstitutionality or legality of tax ordinances or revenue measures may be raised on appealwithin 30 days from the effectivity thereof to the Secretary of Justice who shall render a decisionwithin 60 days from the date of the receipt of the appeal. Provided, however, that such appealdo not have the effect of suspending the effectivity of ordinance and the accrual and payment of the tax, fee or charge therein. Provided, finally, that within 30 days after the receipt of thedecision or the lapse of the 60-day period without the Secretary of Justice acting upon theappeal, the aggrieved party may file appropriate proceedings with a court of competent

jurisdiction.

2. Power to Levy Other Taxes, Fees and Charges ( Sec. 186, LGC of 1991)Local governments may exercise the power to levy taxes, fees or charges on any

base or subject not otherwise enumerated herein or taxed under the provisions of the NationalInternal Revenue Code (NLRC), as amended, or other applicable laws. Provided, that the taxes,fees or charges shall not be unjust, excessive, confiscatory or contrary to declared nationalpolicy; Provided further, that the ordinance levying such taxes, fees or charges shall not beenacted without any prior public hearing conducted for the purpose.

1.a Allied Thread Co. v. City Mayor of Manila 133 SCRA 338Facts: Allied Thread Co is engaged in the business of manufacturing of sewing thread

and yarn under duly registered trademark and labels. It operates its factories and maintains anoffice in Pasig, Rizal. In order to sell its products in Manila and other parts of the Philippines,Allied Thread Co engaged the services of a sales broker, Ker and Company Ltd, the latter

deriving commission for every sale made for its principal.On June 12, 1974, the Municipal Board of the City of Manila enacted Ordinance No.

7516 imposing on manufacturers, importer, porters or producers, doing business in the city of Manila, business taxes based on gross sales recorded on a graduated basis. A s used by theOrdinance, “graduated basis” meant that “60% of all sales recorded in the principal offices of allbusinesses are located in the City of Manila, the same shall be taxable as well by said City. Asfor the branches of businesses, all sales recorded by it shall be taxable by the City of Manilaprovided they are also located in the said City.”

The Mayor of Manila approved said Ordinance on June 15, 1974. In less than twomonths, however, the ordinance underwent a series of amendments. The last amendment wasapproved by the Mayor on July 29, 2974.

Having affected by the aforementioned Ordinance, being manufacturers and salesbrokers, Allied Thread Co filed a petition for declaratory relief contending that Ordinance 7516 isnot valid or enforceable as the same is contrary to Sec 52 of PD 426, as clarified by Local TaxRegulation No 1-71. To quote said Regulation: “A local tax ordinance shall go into effect on the

15th

day after approved by the local chief executive in accordance with Sec 41 of the Code. Inview hereof and considering the provisions of Art 54 of the Code regarding the accrual of taxes alocal tax ordinance intended to take effect on July 1, 1974 should be enacted by the local chief executive not later than June 15, 1974.” Otherwise stated, Allied Thread Co asserts that due tothe series of amendments in the Ordinance 7516, the same Ordinance fell short of the deadlineset forth by Sec 54 of PD 426 that “for an ordinance intended to take effect on July 1, 1974, itmust be enacted on or before June 15, 1954.” As mentioned earlier, the last amendment of theordinance was approved on July 29, 1974.

Allied Thread also contended that the questioned Ordinance did not comply with thenecessary publication requirement in a newspaper of general circulation as mandated by Sec43of the Local Tax Code. Moreover, Allied Thread claimed that it should not be covered by the saidOrdinance as amended; because it does not operate or maintain a branch office in Manila andthat its principal office and factory are located in Pasig, Rizal.

Held: Allied Thread is wrong. Reasons:

1. Ordinance No 7516 was approved by the City Mayor in June 15, 1974. Therefore,he made the deadline (barely). The subsequent amendments did not in any way invalidate nor

move the date of its effectivity. To hold otherwise would limit the power of the defunct MunicipalBoard of Manila to amend an existing ordinance as exigencies require.

2. The Court is persuaded that there was substantial compliance of the law onpublication. The City of Manila complied with the second mode of notice.

3. Allied Thread does its business through its agent, Ker and Company. The power tolevy an excise tax upon the performance of an act or the engaging of an occupation does notdepend on the domicile of the person subject to the excise nor upon the physical location of theproperty and in connection with the act or occupation taxed but depend upon the place in whichthe act is performed or occupation engaged in – in this case, upon the place where therespected sales transactions is perfected and consummated.

1.b Reyes v. CA 320 SCRA 486Facts: The Sangguniang Bayan of San Juan, Metro Manila implemented 5 tax

ordinances. Antonio Reyes and 2 others (the Reyes Three) filed an appeal with the Departmentof Justice alleging the constitutionality of these tax ordinances allegedly because they werepromulgated without previous public hearings thereby constituting deprivation of property withoutdue process of law. Secretary of Justice Franklin Drilon however, dismissed the appeal for beingfiled out of time since the last of the 5 ordinances took effect on Oct 29, 2992 while the ReyesThree filed their appeal only on May 21, 1993, way past the 30-day period from the effectivitythereof for appeal as allowed by Sec 187 of the LGC of 1993. The CA also ruled in favor of Franklin Drilon.

Undaunted, the Reyes Three, in a petition for review with the SC, claim thatnotwithstanding the 30-day period imposed by the law for appeal, an ordinance enacted withoutthe requisite of public hearing is unconstitutional and thus void from the beginning ( in other words, an action to declare anything unconstitutional does not prescribe since it is reduction as

absurdum). Also the Reyes Three ask if constitutionality of Sec. 187 can be raised for the firsttime on appeal. (see ‘Public Hearing’ of this reviewer).

Held: The Reyes Three are wrong: Reasons:1. There is a reason why protests over tax ordinances are required to be done within

certain time frames. A municipal tax ordinance empowers an LGU to impose taxes. The power to tax is one of the most effective instruments to raise needed revenues to finance and supportthe myriad activities of LGUs for the delivery of basic services essential to the promotion of thegeneral welfare and enhancement of peace, progress and prosperity of the people.Consequently, any delay in tax measures would be to the detriment of the public.

2. While it is true that the public hearings are required to be conducted prior to theenactment of a tax ordinance, the Reyes Three did not show any proof that the SangguniangBayan of San Juan failed to conduct the required public hearings. The reason is that the lack of a public hearing is a negative allegation essential to a petitioner cause of action. Hence, as theReyes Three are the ones asserting the lack of a public hearing, they have the burden of proof.

Since the Reyes Three failed to rebut the presumption of validity in favor of the subjectordinances and to discharge the burden of proving that no public hearings were conducted prior to the enacted thereof, the Court is constrained to uphold their constitutionality or legality. This istrue despite the fact that the Sanggunian has the control of records or the better means of proof regarding the alleged, and the Reyes Three are not relieved from the burden of proving their averments.

3. On the validity of Sec. 187 of LGC of 1991, the Court stresses that theconstitutionality of an act of Congress will not be passed upon by the Court unless at the firstopportunity that question is properly raised and presented in an appropriate case, and isnecessary for the determination of the case, particularly where the issue of constitutionality isthe very lis mota presented. The constitutionality of a statutory provision should not beentertained by the Court where it was not specifically raised below, insisted upon andadequately argued. The Court finds no real necessity in tackling the constitutionality of Sec. 187of LGC of 1991.

2. Limitations on municipal taxing power



* Sec. 133, LGC of 1991. Common Limitations on the Taxing Power of LGUs. Unlessotherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities,and barangays shall not extend to the levy of the following:

a. Income tax, except when levied on banks and other financial institutionsb. Documentary stamp taxc. Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa,

except as otherwise provided thereind. Customs duties, registration of fees of vehicles and wharfages on wharves, tonnage

dues and all other kinds of custom fees, charges and dues except wharfage of wharvesconstructed and maintained by the LGU concerned.

e. Taxes, fees, and charges and other impositions upon goods carried into, or out of,

or passing through the territorial jurisdictions of LGUs in the guise of charges for wharfage, tollsfor bridges ort otherwise, or other taxes, fees in any form whatsoever upon such goods andmerchandise

f. Taxes, fees or charges on agricultural and aquatic products when sold by marginalfarmers or fishermen

g. Taxes on business enterprises certified by the BOI as pioneer or non-pioneer for aperiod of 6 or 4 years, respectively from the date of the registration.

h. Excise taxes on articles enumerated under the NIRC, as amended, and taxes, feesor charges on petroleum products.

i. Percentage on VAT sales, barters or exchanges or similar transactions on goodsand services except as otherwise provided herein

j. Tax on gross receipts of transportation contractors and persons engaged in thetransportation of passengers or freight by hire and common carriers by air, land or water, exceptas provided in this Code

k. Taxes paid on premiums by way of reinsurance or retrocession

l. Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles.

m. Taxes, fees or other charges actually exported, except as otherwise providedherein

n. Taxes, fees or charges on Countryside and Barangay Business Enterprise andCooperatives duly registered under R.A. 6180 and R.A. 6938 otherwise known as theCooperative Code of the Philippines respectively

o. Taxes, fees or charges of any kind on the National Government, its agencies andinstrumentalities, and LGUs

*The Basic Rule of Municipal Taxing Power Under the now prevailing Constitution, where there is neither a grant nor a prohibition

by statute, the tax power must be deemed to exist although Congress may provide statutorylimitations and guidelines. The basic rationale for the current rule is to safeguard the viability andself-sufficiency of local government units by directly granting them general and broad tax

powers. Nevertheless, the fundamental law did not intend the delegation to be absolute andunconditional; the constitutional objective obviously is to ensure that, while the local governmentunits are being strengthened and made more autonomous, the legislature must still see to it thata) the taxpayer will not be overburdened or saddled with multiple and unreasonable impositions;b) each local government unit will have its fair share of available resources; c) the resources of the national government will not be unduly disturbed; and d) local taxation will be fair, uniform,and just (MERALCO v. Province of Laguna)

2.a Pepsi Cola Bottling Co. v. City of Butuan 24 SCRA 789Facts: Pepsi Cola seeks to recover the taxes paid by it to the City of Butuan and

collected by the letter. Pursuant to its Municipal Ordinance No. 110, as amended by MunicipalOrdinance No. 122, both series of 1960, which Pepsi assail as null and void and to prevent theenforcement thereof.

Pepsi maintains that the disputed ordinance is null and void because (1) it partakes of the nature of an important tax; (2) it amounts to double taxation; (3) it is excessive, oppressive

and confiscatory; (4) it is highly unjust and discriminatory; and (5) section 2 of Republic Act No.2264, upon the authority of which it was enacted, is an unconstitutional delegation of legislative

powers. Said Ordinance, as amended, imposes as a tax on any person, association, etc., of P0.10 per case of 24 bottles of Pepsi-Cola and Pepsi paid under protest the amount of P4,926.63 from August 16 to December 31, 1960 and the amount of P9,250.40 from January 1to July 30, 1961.

Held: Pepsi’s contentions are partly tenable. Reasons:(1) The Second and last objections are manifestly devoid of merit. Indeed,

independently of whether or not the tax in question, when considered in relation to the sales taxprescribed by Acts of Congress, amounts to double taxation, on which the Court need not anddoes not express any opinion-double taxation, in general, is not forbidden by the Constitution.The Philippines has not adopted, as part thereof, the injunction against double taxation found in

the Constitution of the United States. Then, again, the general principle against , delegation of legislative powers, in consequence of the theory of separation of powers is subject to one well-established exception, namely; legislative powers may be delegated to local government towhich said theory does not apply in respect of matters of local concern.

(2) The third objection is, likewise, untenable. The tax of “P0.10 per case of 24bottles,” of soft drinks of carbonated drinks in the production and sale of which plaintiff isengaged or less than P0.0042 per bottle is manifestly too small to be excessive, oppressive, or confiscatory.

(3) The first and the fourth objection merit, however, serious consideration. Asamended by Ordinance no. 122, the tax is imposed only upon ”any agent and/or consignee of any person, association, partnership, company or corporation engaged in selling… soft drinks or carbonated drinks.” As defined in section 3-A of Ordinance no. 122, a consignee of agent shallmean any person, association, partnership, company or corporation who acts in the place of another by authority from him or one entrusted with the business of another or to whom isconsigned or shipped no less than 1,000 cases of hard liquors or soft drinks every month for resale, either retail or wholesale.”

As a consequence, merchants engaged in the sale of soft drinks of carbonated drinks,are not subjected to the tax, unless they are agents and/or consignee of another dealer, who, inthe very nature of things, must be one engaged in the business outside the City. The intention tolimit the application of the ordinance to soft drinks and carbonated drinks brought into city fromoutside thereof becomes apparent. Viewed from this angle, the tax partakes of the nature of animport duty, which is beyond defendant’s authority to impose by express provision of law.

The tax in question would still be invalid, as discriminatory, and hence, violative of theuniformity required by the Constitution and the law thereof, since only sales by “agents of consignee” of outside dealers would be subject to tax. Sales by local dealers, not acting for or onbehalf of other merchants, regardless of the volume of their sales, and even if the sameexceeded those made by said agents or consignee of producers or merchants established

outside the City of Butuan, would be exempt from the disputed tax.

2. b Province of Bulacan v. CA 299 SCRA 442Facts: on June 26, 1992, the Sangguniang Panlalawigan of Bulacan passed

Provincial Ordinance No. 3, known as “an Ordinance Enacting the Revenue Code of theBulacan Province.” Which was to take effect on July 1, 1992. Section 21 of the ordinanceprovides as follows: Sec. 21. Imposition of Tax. There is hereby levied and collected a tax of 10% of the fair market value in the locality per cubic meter of ordinary stones, sand, gravel,earth and other quarry resources, such. But not limited to marble, granite, volcanic cinders,basalt, tuff and rock phosphate. Extracted from public lands or from bed of seas, lakes, rivers,streams, creeks and other public waters within its territorial jurisdiction.”

Pursuant thereto, the Provincial Treasurer of Bulacan, in a letter dated November 11,1993, assessed private respondent Republic Cement corporation (hereafter Republic Cement)O2,524,692.13 for extracting limestone, shale and silica from several parcels of private land inthe province during the third quarter of 1992 until the second quarter of 1993. Believing that the

province, on the basis of above-said ordinance, had no authority to impose taxes o quarryresources extracted from private lands, Republic Cement formally contested the same on



December 23, 1993. The same was however, denied by the Provincial Treasurer on January 17,1994. Republic Cement consequently filed a petition for declaratory relief with the Regional TrialCourt of Bulacan on February 14, 1994. The province filed a motion to dismiss RepublicCement’s petition, which was granted by the trial court on May 13, 1993, which ruled thatdeclaratory relief was improper, allegedly because a breach of the ordinance had beencommitted by Republic Cement.

On July 11, 1994, Republic Cement filed a petition for certiorari with the SupremeCourt seeking to reverse the trial court’s dismissal of their petition. The Court, in a resolutiondated July 27, 1994, referred the same to the Court of Appeals.

In the interim, the Province of Bulacan issued a warrant of levy against RepublicCement, allegedly because of its unpaid tax liabilities. Negotiations between Republic Cement

and the province resulted in an agreement and modus vivendi on December 12, 1994, wherebyRepublic Cement Agreed to pay under protest P1,262,364.00, 50% of the tax assessed bypetitioner, in exchange for the lifting of the warrant of levy. Furthermore, Republic Cement andthe Province Agreed to limit the issue for resolution by the Court of Appeals to the question as towhether or not the provincial government could pursuant to Section 21of Provincial OrdinanceNo. 3.

The CA ruled that the Province had no authority to issue Ordinance No. 3, hence thisappeals to the SC.

Held: The decision of the CA must be sustained. Reasons:(1) Ordinance No. 3 is based on Sec. 158 of the LGC of 1991 which

states: “The province may levy and collect not more than ten percent (10%) of fair market valuein the locality per cubic meter of ordinary stones, sand, gravel, earth and other quarry resources,as defined under the National Internal Revenue Code, as amended, extracted from privatelands. Need we say more?

(2) It is true that under Sec. 133 (h), the exercise of the taxing powers of provinces, cities, municipalities and barangays shall not extend to the levy of exercise taxes onarticles enumerated under the National Internal Revenue Code (NIRC). Section 151 of theNIRC, by the way levies excise taxes on all quarry resources, regardless of origin, whether extracted from public or private land. Thus an LGU may not ordinarily impose taxes on stones,sand, earth and other quarry resources, as the same are already taxed under the NationalInternal Revenue Code, However an LGU can still impose a tax on stones, sand, gravel, earthand other quarry resources extracted from public land because it is expressly empowered to doso under the LGU. But again it only says “Public” The Province of Bulacan cannot tax RepublicCement because it’s extracting minerals from “private” lands. Don’t forget, public versus private.

3. Other Illustrative Cases:3. a Basco v. PAGCOR 197 SCRA 52Facts: Atty. Humberto Basco, the Chairman on the committee of Laws of the City

Council of Manila, and 3 other lawyers, (the Basco Four) filed a petition seeking to annul the

Phil. Amusement and Gaming Corporation (PAGCOR) because among others. 1) It waived theManila City government’s right to impose taxes and license fees, which is recognized by law and2) for the same reason stated in the immediately preceding paragraph, the law has intruded intothe local government’s right to impose local taxes and license fees in contravention of theconstitutionally enshrined principle of the local autonomy.

Held: The Basco four contentions are all unmeritorious Reasons:1) Any petitioner assailing the constitionality of the law must realize that said law is

armed with the presumption of constitionality. With this in mind, the petitioner has the burden of proof to show that the law he wishes to assail is unconstitutional.

2) The Basco Four assailed Sec. 13 par. 2 of P.D 1869 which states that LGUs

cannot impose on PAGCOR taxes on any kind (except for the 5% franchise tax) Said provision,they claim is a violation of local autonomy it waives the City of Manilas right to impose taxesand license fees. The court answered that.

a) The City of Manila being a Mere municipal corporation has no inherent right to

impose taxes. Thus, the Charter or statute must plainly show am intent toconfer that power or the municipality cannot assume it. Its power to tax

therefore must always yield to a legislative act which is superior having beenpassed upon by the state itself which has the inherent power to tax.

b) The charter of the City of Manila is subject to control by congress. It should bestressed that “municipal corporation are mere creatures of Congress” whichhas the power to “create and abolish municipal corporation” due to itslegislative powers” Congress, therefore, has the power of control over Local.And if Congress can grant the City of Manila the power to tax certain matters,it can also provide for exemption or even take back the power.

c) The City of Manila’s power to impose licenses fees on gambling has longbeen revoked. As early as 1975, the power of local government to regulategambling thru the grant of “franchise, licenses or permits” was withdrawn by

P.D. No. 771 and was vested exclusively on the National Government.PAGCOR is a government owned or controlled corporation with an original charter,

PD 1869. All its stocks are owned by the National Government: it has dual role, to operate andto regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government,PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might beburdened, impeded or subjected to control by a mere Local Government.

(3) The states have no power by taxation or otherwise, to retard, impede,burden or in any manner control the operation of constitutional laws enacted by Congress tocarry into execution the powers vested in the federal government. This doctrine emanates fromthe “supremacy” of the National Government over local governments. Otherwise, mere creaturesof the state can defeat National policies thru extermination of what local authorities may perceiveto be undesirable activities or enterprise using the power to tax as “a tool for regulation.”

(4) The Basco Four cannot also invoke Article X, sec 5 of the 1987 Constitutionwhich says, “Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation asthe congress may provide, consistent with the basic policy on local autonomy. Such taxes, feesand charges shall exclusively to the local government.” The power of local government to“impose taxes and fees” is always subject to “limitations” which Congress may provide by law.

3. b Mactan Cebu Int’l Airport v. MarcosFacts: Mactan Cebu International Airport Authority (MCIAA) was created by virtue

of Republic Act No. 6958 mandated to “principally undertake to economical, efficient andeffective control, management and supervision of the Mactan International Airport in theprovince of Cebu and the Lahug Airport in Cebu City,… and such other Airports as may beestablished in the province of Cebu. It is also mandated to a) encourage, promote and developinternational and domestic air traffic in the Central Visayas and Mindanao regions as a means of making the regions centers of international trade and tourism, and accelerating the development

of the means of transportation and communication in the country; and b) upgrade the serviceand facilities of the airports and to formulate internationally acceptable standards of accommodation and service.

Since the time of its creation, petitioner MCIAA enjoyed the privilege of exemptionfrom payment of realty taxes imposed by the National Government or any of its politicalsubdivisions, agencies and instrumentalities in accordance with Section 14 of its charter.

However, on Oct. 11, 1994, the city of Cebu claimed started demanding payment onparcels of land belonging to MCIAA. The city of Cebu claimed that MCIAA cannot rely on Sec.14 of its charter because- as MCIAA is a GOCC- its tax exemption privilege has been withdrawnby Sections 193 and 234 of the LGC as follows; “Sec. 193. Withdrawal of Tax ExemptionPrivilege. Unless otherwise provided in this code, tax exemptions or incentive granted to, or presently enjoyed by all persons whether natural or juridical, including government-owned or controlled corporations, except local water districts, cooperatives duly registered under RA No.6938, non-stock, and non-profit hospitals and educational institutions, are hereby withdrawnupon the effectivity of this Code x x x Sec. 234.

Exemptions from Real Property taxes. x x x except as provided herein, any exemptionfrom payment of real property tax previously granted to, or presently enjoyed by all persons,



whether natural or juridical, including government – owned or controlled corporation, are herbywithdrawn upon the effectivity of this code.For its defense, MCIAA relies on Sec. 133 (o) of the LGC which says “unless otherwise providedherein (in this Code), the exercise of the taxing powers of provinces, cities, municipalities, andbarangays shall not extend to the levy of the following x x x (o) Taxes, fees or charges of anykind on the National Government, its agencies and instrumentalities, and LGUs. MCIAA relieson the ruling of Basco v. PAGCOR, which stated that local governments have no power to taxinstrumentalities of the National Government and that PAGCOR, it is performing both proprietaryand government functions. MCIAA claims that like PAGCOR, it is performing a governmentalfunction as well (read the first paragraph above again), thus, it should be exempt from taxationby the City of Cebu.

Held: MCIAA is wrong. Reasons:1) Basco v. PAGCOR was decided before the enactment of the LGC of 1991. It

thus finds no application in this case because the arguments here rely heavily on said LGC.2) Then there is the curious Sec 234 which states, “Exemptions from Real Property

Tax. The following are exempted from payment of the real property tax: a) Real property ownedby the Republic of the Philippines or any of its political subdivisions except when the beneficialuse thereof had been granted, for reconsideration or otherwise, to a taxable person x x x exceptas provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or controlled corporations, are hereby withdrawn upon the effectivity of this code. “Can MCIAAclaim that is parcels of land are basically owned by the Republic of the Philippines in Cebu thuslands are exempt from real property tax? The court answered no, because under MCIAA’scharter, all lands owned by existing airports belonging to the Republic of the Philippines in Cebuare transferred to the MCIAA, meaning, there was an absolute conveyance of ownership to

MCIAA. The Republic of the Philippines is no longer the owner of the lands in question, thusMCIAA is not spared from real property taxes.

3) While MCIAA is correct in invoking Sec 133 (o) above which disallows LGUs totax the National Government, its agencies and instrumentalities, and LGUs, Sec 133 (o) is alsoqualified by the phrase, “unless otherwise provided herein.” (in this code). The tax imposed uponMCIAA concerns real property taxes. Thus MCIAA is also subject to Sec 234 and for reasonsmentioned in no.2). MCIAA is not spared from property taxes.

4) The ultimate fact remains that Sec 193 of the LGC of 1991 has repealed the taxexemption privilege enjoyed by MCIAA as stated in Sec. 14 of its charter. This policy isconsistent with the State’s policy to ensure genuine and meaningful autonomy to LGUs.

NOTE: the “Republic of the Philippines” is not the same as “National Government” (Wow!). Tobetter understand this situation, let’s have a rundown of some boring definitions:

a) Republic of the Philippines – synonymous with “Government of theRepublic of the Philippines”; the corporate government entity through

which the function of government are exercised throughout thePhilippines, including, save as the contrary appears from the context,the various arms through which political authority is made effective inthe Philippines, whether pertaining to the autonomous regions, theprovincial city, municipal or barangay subdivisions or other forms of local government.

b) National Government – the entire machinery of the central government(executive, legislative and juridical) as opposed to the forms of localgovernments.

c) Agency – any of the various units of the Government, including adepartment, bureau, office instrumentality, or GOCC or a localgovernment or a distinct unit therein

d) Instrumentality – any agency of the National Government, notintegrated within the department framework, vested with specialfunctions or jurisdiction by law, endowed with some if not all corporate

powers, administering special funds, and enjoying operational

autonomy; usually though a charter e.g. regulatory agencies, charteredinstitutions and GOCCs

3. c MERALCO v Province of Laguna 306 SCRA 750Facts: On various dates. Certain municipalities of the Province of Laguna,

including, Biñan, Sta. Rosa, San Pedro, Luisiana, Canluan and Cabuyao, by virtue of existinglaws then effect, issued resolution through their respective municipal councils granting franchisein favor of petitioner Manila Electric Company (“MERALCO”) for the supply of electric light, heatand power within their concerned areas. On 19 January 1983, MERALCO was likewise granteda franchise by the National Electrification Administration to operate an electric light and power service in the Municipality of Calamba, Laguna.

On 12 September 1991, Republic Act No. 7160, otherwise known as the “LocalGovernment, Code of 1991,” was enacted to take effect on 01 January 1992, enjoying localgovernment units expressed therein own sources of revenue and to levy taxes, fees andcharges, subject to the limitations expressed therein, consistent with the basic policy of localautonomy. Pursuant to the provisions of the Code, respondent province enacted LagunaProvincial Ordinance No. 01-92, effective 01 January 1993, imposing a tax on business enjoyinga franchise.

On the basis of the above ordinance, respondent Provincial Treasurer sent a demandletter to MERALCO for the corresponding tax payment. MERALCO, however, contented that theimposition of a franchise tax under Section 2.09 of Laguna Provincial Ordinance No. 01-92,insofar as it concerned MERALCO, contravened the provisions of Section 1 of P.D. 551 whichread: “Any provision of law or local ordinance to the contrary notwithstanding, the franchise taxpayable by all grantees of franchises to generate, distribute and sell electric current for light,heat and power shall be two per cent (2%) of their gross receipt received from the sale of electric current and from transactions incident to the generation, distribution and sale of electric

current. Such franchise tax x x x shall any provision of the Local Tax Code or any other law tothe contrary notwithstanding, be in lieu of all taxes and assessments of whatever natureimposed by any national or local authority on earnings, receipt, income and privilege of generation, distribution and sale of electric current. (Note the italicized sentence)

MERALCO now contents that 1) the phrase “shall be in lieu of all taxes x x x in sec 1of P.D. 551 prevents the province of Laguna from imposing franchise taxes on it 2) whether theordinance is violative of the non-impairment clause and 3) whether the LGC of 1991 hasrepealed, modified or amended P.D. 551.

Held: All contentions by MERALCO are incorrect. Reasons:

1) Indicative of the legislative intent to carry out the Constitutionalmandate of vesting broad tax powers to local government units, the Local Government Codehas effectively withdrawn under Section 193 thereof, tax exemptions or incentives thereforeenjoyed by certain entities. This is also supported by Section 137 which states, “Notwithstandingany exemption granted by any law or other special law, the province may impose a tax on

business enjoying a franchise x x x and also by Sec. 534, the repealing clause, which declares.“All general and special laws, acts, city charters, decrees, executive orders, proclamation andadministrative regulation, or part or parts thereof which are inconsistent with any of theprovisions of this Code are hereby repealed or modified accordingly.”

2) In the recent case of the City Government of San Pablo, etc., et al. vs.Hon. Beinvenido V. Reyes, et. Al., the Court has held the phrase “in lieu of all taxes” has to giveway to the peremptory language of the Local Government Code specifically providing for thewithdrawal of such exemptions, privileged, and that “upon the effectivity of the LocalGovernment Code all exemptions except only as provided therein can no longer be invoked byMERALCO to disclaim liability for the local tax.”

3) Whi le the court has, not too infrequently, referred to tax exemptionscontained in special franchises as being in the nature of contracts and a part of the inducementfor carrying on the franchise, these exemptions, nevertheless, are far from being strictlycontractual in nature. Contractual tax exemptions, in the real sense of the term and where thenon-impairment clause of the Constitution can rightly, be invoked, are those agreed to by the

taxing authority in contracts, such as those contained in special government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting



in its private capacity, sheds its cloak of authority and waives its governmental immunity. Truly,tax exemptions of this kind may not be revoked without impairing the obligations of contracts.These contractual tax exemptions, however, are not to be confused with tax exemptions grantedunder franchise. A franchise partakes the nature of a grant which is beyond the purview of thenon-impairment clause of the Constitution. Indeed, Article XII, section 11, of the 1987Constitution, like its precursor provisions in the 1935 and the 1973 Constitutions, is explicit thatno franchise for the operation of a public utility shall be granted except under the condition thatsuch privilege shall be subject to amended, alternation or repeal by Congress as and when thecommon good so requires.

3. d Municipality of San Fernando v. Sta. Romana 149 SCRA 27

Facts: The Municipality of San Fernando, La Union which was undertaking acement road construction around its Supermarket and other municipal projects, neededsufficient gravel and sand from their source, the Municipality of Luna, La Union but its truckssent to the latter municipality to haul said road construction materials were allegedly chargedunreasonable fees per truck load.

Said fees charged by Luna were based on Section 1 of Ordinance No. 1 enacted by itwhich reads, “There shall be collected from any person, partnership or corporation engaged inany business, occupation or calling or enjoying any privilege hereunder enumerated thefollowing municipal license and/or fees x x x “

On March 18, 1968, the Municipality of San Fernando represent by its incumbentMunicipal Mayor Lorenzo L. Dacanay filed a complaint for injunction with Writ of preliminaryInjunction at the Court of First Instance of La Union against the Municipality of Luna and itsofficials and authorized agents, praying that the Municipality of Luna be immediately enjoinedfrom preventing San Fernando’s its from obtaining road construction from Luna, La Union andfrom levying unreasonable and after trial to make the injunction permanent. The lower court

granted said petition.The main issue in this case is whether the Municipality of Luna has the authority topass Ordinance No.1 and impose the license fees in question.

Held: The answer is No, but for a surprising reason. The reason is that this issuein the case at is governed by President Decree No. 231, enacting a Local Tax Code (for Provinces, Cities, municipalities and Barrios) which took effect on July 1, 1973. The Codeprovides:“SEC 10. Sand and gravel fee. The province may levy and collect a fee of not exceeding twenty-five centavos per cubic meter of ordinary stones, sand, gravel earth and other materials selectedfrom lakes, rivers, streams, creeks and other public waters within the jurisdiction of the province.“SEC 22. Specific limitations on power. Except as otherwise provided in this Code, themunicipality shall not levy the following:

(a) Taxes, fees and charges that the province or city is authorized to levy in this Code x xx”

Section 10 of aforesaid decree was later amended by Presidential Decree No. 426dated March 1974, and now reads: Sand and gravel tax. The province may levy and collect a taxof not exceeding seventy-five centavos per cubic meter of ordinary stones, sand, gravel earthand other materials extracted from public and private lands of the government or from the bedsof seas, lakes, streams, creeks, and other public waters within the jurisdiction of the province.The municipality where the materials extracted shall share in the proceeds of the tax hereinauthorized at a rate of not more than thirty per cent thereof as may be determined by theProvincial Board. The permit to extract the materials shall be issued by the Direction of Mines or his duly authorized representative and the extraction thereof shall be governed by regulationsissued by the Director of Mines.

Under the above-quoted provisions of the Local Tax Code, there is no question thatthe authority impose the license fees in dispute, properly belongs to the province concerned andnot to the Municipality of Luna which is specifically prohibited under Section 22 of same Code“from levying fees and charges that the province or city is authorized to levy in this Code. “Onthe other hand, Municipality of San Fernando cannot extract sand and gravel from the

Municipality of Luna without the corresponding taxes or fees that may be imposed by theprovince of La Union.

NOTE: This is a lousy case. The LGC wasn’t even used as legal basis in the decision,but then was an old case. What if we decide this case using the LGC of 1991? Was SanFernando forming a governmental or proprietary function in constructing roads? In either case,based on these of facts alone, can the municipality of Luna tax the municipality of SanFernando?

3. e Compania General de Tabacos v. City of Manila 8 SCRA 367Facts: Compania General Tabacos de Filipinas (Tabacalera for short) filed this

action in the court of First Instance of Manila to recover from appellants, City of Manila and itsTreasurer, Marcelino Sarmiento also hereinafter referred to as the city the sum of P15, 280.00allegedly overpaid by it as on its wholesale and retail sales of liquor for the period from the third

quarter of 1954 to the second quarter of 1957, inclusive, under Ordinances Nos. 3634, 3301,and 3816.

Tabacalera’s action for refund is based on the theory tat, in connection with its liquor sales, it could pay the license fees prescribe by Ordinance No. 2258 but not the municipal salestaxes imposed Ordinances Nos. 3634, 3301, and 3816; and since it already paid the licensefees aforesaid, the sales paid by the amounting ton sum of P 15,208.00 under the threeordinance mentioned heretofore is overpayment made by mistake and therefore refundable.

The city, on the other hand, contends that for permit issued to it granting proper authority to conduct or engage in the sale of alcoholic beverages or liquors” Tabacalera issubject to pay the license prescribed by Ordinance No. 3358, aside from the sales taxesimposed by Ordinances Nos. 3634, and 3816 that even assuming that Tabacalera is not subjectto the payment of the sales taxes prescribed by the said three ordinances as regards its liquor sales, it is not entitled to the refund for the following reasons: 1) the said amount was paid by theplaintiff voluntarily and without protest: 2) If at all the alleged overpayment was made bymistake, such mistake was one of law and impose from the plaintiff neglect of duty; 3) The said

amount had been added by the plaintiff to the selling price of the liquor sold by it and passed tothe consumers; 4) The said amount had been already expended by the defendant City for publicimprovement and essential services of the City government, the benefits of which are enjoyedand being enjoyed by the plaintiff.

Held: Tabacalera’s contentions are untenable. What is collected under Ordinance No.3358 is a license fee for the privilege of engaging in the sale of liquor a calling in which it isobviously not anyone or anybody may freely engage, considering that the sale of liquor indiscriminately may endanger public health and morals. On the other hand, what the threeordinances mentioned herefore impose is a tax for revenue purposes based on the sales madeof the same article or merchandise. It is already settled on this connection that both a license feeand a tax may be imposed on the same business or occupation for selling the same article, thisnot being in violation of the rule against double taxation. This is precisely the case with theordinances involved in the case at bar.

3. f Ty v. Trampe 250 SCRA 500Facts: On 06 January 1994, the Municipal Assessor of Pasig sent a notice of assessment concerning certain real properties owned by Alejandro B Ty located in Pasig, MetroManila. A similar notice for the same reason was also sent to MVR Picture Tube. Inc. located inPasig, Metro Manila. In a dated 18 March 1994, petitioners Ty and MVR Picture Tube Inc. (Tyand Company) through counsel “requested the Municipal Assessor to consider the subjectassessments.” Not satisfied, Ty and Company on 29 March 1994 filed with the RTC of theNational Capital Judicial Region, Branch 163, presided over by Judge Aurelio Trampe, a Petitionfor Prohibition with prayer for a restraining order or writ of preliminary injunction to declare nulland void the new tax assessment and to enjoin the collection of real estate taxes based on saidassessments. The judge denied said petition.

Ty and Company now contends that 1)the Court gravely erred in holding thatPresidential decree No. 921, including its implementing rules and regulations, were expresslyrepealed by R.A 7160 the Court erred in not declaring the confiscatory and oppressive nature of the assessments as illegal ab initio and unconstitutional constituting a deprivation of property

without due process of law and the Court erred in declaring that Ty and company failed toexhaust administrative remedies provided the law by not paying tax although under protest



instead (Sec. 252, LGC). To put it in words justice Panganiban, who loves to ask a questionbefore writing his decisions, are the increased real state taxes imposed by and collected by theMunicipality of Pasig, effective from the year 1994, legal? (With all due respect to the goodJustice, the real question is: Does the municipal, provincial city assessor [as the case may be].Acting alone, have the authority to prepare the Schedule of Values real property as mandated byR.A. 7160, or is the schedule of Values prepared by a group of assessors as mandated by P.D.921? Obviously, we have 2 conflicting laws here).

Held: Ty and Company’s petition is meritorious. Reasons:1) To resolve Ty and Company’s first contention, we have to examine certain 3

laws. The first is R.A. 15 of P.D. 464, the Real Property Tax Code which states, “Preparation of

Schedules of Value before any general revision of property assessments is made as provided inthis Code, there shall be prepared for the province or a schedule of Market Value for thedifferent classes of real property therein situated in such form and detail as shall be prescribedby the Secretary of Finance.”

The second is Section 9 of P.D. 921 which states, “Preparation of Schedule of Valuefor Real Property within the Metropolitan Area. The Schedule of Value that will serve as thebasis for the appraisal and assessment for taxation purposes of real properties located withinthe Metropolitan Area.

Shall be prepared jointly by the City Assessors of the Districts created under Sectionone hereof, with the City Assessors of Manila acting as Chairman, in accordance with thepertinent provisions of Presidential Decree No. 464, as amended, otherwise known as the RealProperty Tax Code, and the implementing rules and regulations thereof issued by the Secretaryof Finance.”

The second is Section 9 of P.D. 921 which states. “Preparation of Schedule of Valuesthat will serve as the basis for the appraisal and assessment for taxation purposes of real

properties located within the Metropolitan Area shall be prepared jointly by the City Assessors of the Districts created under Section one hereof, with the City Assessor of Manila acting asChairman, in accordance with the pertinent provisions of Presidential Decree No. 464, asamended, otherwise known as the Real Property Tax Code, and the implementing rules andregulations thereof issued by the Secretary of Finance. Also, we have Section 1, same P.D.,which states, “Division of Metropolitan Manila into Local Treasury and Assessment Districts. For purposes of effective fiscal management, Metropolitan Manila is hereby divided into the followingLocal Treasury and Assessment Districts:

First District ManilaSecond Dist rict Quezon Ci ty , Pasig, Marik ina, Mandaluyong and San JuanThird Distri ct Caloocan City, Malabon, Navotas and ValenzuelaFourth Dist rict Pasay City , Makat i, Parañaque, Muntinlupa, Las Piñas, Pateros

and Taguig

Manila, Quezon City, Caloocan City and Pasay City shall be the respective Centers of theaforesaid Treasury and Assessment Districts.The third is Sec. 212 of the LGC, 1991 which states, “Preparation of Schedule of Fair

Market Values. Before any general revision of property assessment is made pursuant to theprovisions of this Title, there shall be prepared a schedule of fair market values by the provincial,city and the municipal assessors of the municipalities within the Metropolitan Manila Area for thedifferent classes of real property situated in their respective local government units for enactment by ordinance of the sanggunian concerned x x x.”

The question now is, who will prepared the schedule of Fair Market Values: the guysunder P.D. 921 of the guys under LGC of 1991? It should be noted that the LGC did notexpressly repeal P.D. 921. Did the former impliedly repeal the latter then? The court answeredno. I t is a basic rule of statutory construction that repeals by implication are not favored. Animplied repeal will not be allowed unless it is convincingly and unambiguously demonstrated thatthe two laws are so clearly repugnant and patently inconsistent that they cannot co-exist. This isbased on the rationale that the will of the legislature cannot be overturned by judicial function of construction and interpretation. Courts cannot take the place of Congress in repealing statutes.

Their function is to try to harmonize, as much as possible, seeming conflicts in the laws andresolve doubts in favor of their validity and co-existence.

It is obvious that harmony in these provisions is not only possible, but in fact desirable,necessary and consistent with the legislative intent and policy. By reading together andharmonizing these two provisions, we arrive at the following steps in the preparation of the saidschedule, as follows:

a) The assessors in each municipality or city in the Metropolitan Manila area shallprepare his/her proposed schedule of values, in accordance with Sec. 212 R.A.7160.

b) Then, the Local Treasury and Assessment District shall meet per Sec. 9 P.D.921. In the instant case, that district shall be composed of the assessors in

Quezon City, Pasig , Marikina, Mandaluyong and San Juan, pursuant to Sec. 1 of said P.D. In this meeting, the different assessors shall compare their individualassessments, discuss and thereafter jointly agree and produce a schedule of values for their districts, taking into account the preamble of said P.D. that theyshould evolve “a progressive revenue raising program that will not unduly burdenthe taxpayers.”

c) The schedule jointly agreed upon by the assessors shall they be published in anewspaper of general circulation and submitted to the sanggunian concerned for enactment by ordinance, per Sec. 212, R.A. 7160.

2) Although as a rule, administrative remedies must first be exhausted before resort to judicial action can prosper, there is a well-settled exception in cases where thecontroversy does not involve question of fact but of la. Ty and company are not merelyquestioning the amounts of increase in the tax, they are questioning the very authorityand power of the assessor, acting solely and increase in the tax, they are questioning

the very authority and power of the assessor, acting solely and independently, toimpose the assessment and of the treasurer to collect the tax. Therefore, there is noreason for Ty and company to exhaust the administrative remedies provided for in theLGC, namely Sec 226 (appeal to the Local Board of Assessment Appeals) and Sec.252 (Payment under protest).

3) Finally the court will not pass upon the constitutionality of the law if the controversycan be settled on other grounds, like in this case, by harmonizing the conflictingprovisions of P.D. 921 and the LGC.

D) Power to Open and Close Roads (Sec. 21, LGC, Art. 43-45, IRR)* Sec. 21. Closure and Opening of Roads(a) An LGU may, pursuant to an ordinance permanently or temporarily close or open

any local road, alley, park or square falling within its jurisdiction: provided however, that in thecase of permanent closure, such ordinance must be approved by at least 2/3 of all members of

the sanggunian, and when necessary, an adequate substitute for the public facility that is subjectto closure provided.

(b) No such way or place or any part thereof shall be permanently closed “withoutmaking provisions for the maintenance of public safety therein. A property thuspermanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the LGU concerned may be lawfully used or conveyed . Provided however, That no freedom park shall be closed permanently withoutprovision for its transfer or relocation to a new site.

(c) Any national or local road, alley, park or square may be temporarily closed duringan actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public works and highways, telecommunications and waterworksprojects, the duration of which shall be specified by the local chief executive concerned in awritten order. Provided however, that no national or local road, alley, park or square shallbe temporarily closed for athletic, cultural or civic activities not officially sponsored,recognized or approved by the LGU concerned.

(d) Any city, municipality or barangay may by a duly enacted ordinance, temporarilyclose and regulate the use of an any local street road thoroughfare or any other public



place where shopping malls, Sunday, flea or night markets or shopping areas may beestablished and where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold and dispensed to the general public.

* Art 43. Authority to Close or Open. An LGU may, through an ordinance permanentlyor temporarily close or open any road, alley, park or square within its jurisdictions.

* Art 44. Permanent Closure.(a) No permanent closure of any local road, street, alley, park

or square shall be effected unless there exists acompelling reason or sufficient justification therefore suchas, but not limited to change in land use, establishment of

infrastructure facilities, projects or such other justifiablereasons as public welfare may require.

(b) When necessary, an adequate substitute for the publicfacility that is subject to closure shall be provided. Nofreedom park shall be closed permanently withoutprovision for its transfer or relocation to a new site

(c) No such way or place or any part thereof shall bepermanently closed without making provisions for themaintenance of a public system therein

(d) A property permanently withdrawn from public use may beused or conveyed for any purpose for which other realproperty belonging to property may be lawfully used or conveyed.

(e) (The ordinance authorizing permanent closure must beapproved by at least 2/3 of all members of the

Sanggunian. Public hearings shall first be conductedbefore any ordinance authorizing permanent closure of any local roads, alley, park or square is enacted. Noticesof such hearings and copies of the proposed ordinanceshall be posted for a minimum of 3 consecutive weeks inconspicuous places in the provincial capitol, or in the city,municipal, or barangay hall of LGU and within the vicinityof the street or park proposed to be closed.

* Art. 45. Temporary Closure. Any national of local road, alley, park, or square may betemporarily closed during actual emergency or fiesta celebrations, public rallies, agricultural or industrial fairs, or undertakings of pubic works and high ways, telecommunications andwaterworks projects, the duration of which shall be specified by the local chief executiveconcerned in a written order as follows:

(1) During fiestas for a period not exceeding 9 days

(2) During agricultural or industrial fairs or expositions, for a period as may bedetermined to be necessary and reasonable

(3) When public works projects or activities are being undertaken, for a period as maybe determined necessary for the safety, security, health or welfare of the public or when suchclosure is necessary to facilitate completion of the projects or activities

(4) An LGU may temporarily close and regulate the use of any local street, road,thoroughfare, or public place where shopping malls, Sunday market, flea or night market, or shopping areas may be established and where goods, merchandise, foodstuff, commodities, or articles of commerce may be sold and dispensed to the general public

(5) No national or local road, alley, park, or square shall be temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized or approved by the LGU.

Factors to consider in vacating a streeta) Topography of the property surrounding the street in the light of ingress

and egress to other streets

b) Relationship of the street in the road system throughout the subdivisionc) Problem posed by the ‘dead end’ of the street

d) Width of the streete) Cost of rebuilding and maintaining the street as contrasted to its ultimate

value to all of the property in the vicinityf) Inconvenience of those visiting the subdivisiong) Whether the closing of the street would cut off any property owners from

access to a street.

d.1 Favis v. City of Baguio 27 SCRA 1060Facts: This case took place in Baguio City.On April 30, 1957, Antonio Favis bought a parcel of land from the Assumption

Convent, Inc. This land is surrounded by the following areas (go get a pen and paper and draw a

map of this land to better understand this case):1. Lot 2-E-3-B-3-B-1 – this lot is owned by Assumption and is located southwest of

Favis’ land; this lot was donated to the City because it was the site for a proposed road. Thisdonated road is Favis’ only means of ingress and egress to Lapu-lapu Street, a public street.

2. Lapu-lapu Street – this street is a portion of the Baguio Market Subdivision, a bigtract of land registered in the name of the City. Lapu-lapu street is connected at one end to twolots: a) Lot 2-E-3-B-3-B-1; and b) a lot owned by Olmina Fernandez. Generally, Lapu-lapuStreet is 8 m. in width, but at its connecting point with Lot 2-E-3-B-3-B-1, it’s only 2.5 m. in width.

3. Lot 25 – this lot is located in the northern portion of Baguio Market Subdivision andis right beside Fernandez’s lot. The shell Oil Company leased this lot in 1947 for its use as aservice station. 10 years later, Shell leased Lot 25 again and a portion of Lapu-lapu Street aswell, reducing the latter’s width to only 5 meters. The City approved the renewal of the lease thruResolution No. 132-61.

Favis protested the lease because it reduced the width of Lapu-lapu Street, thus (1)his entrance and exit to and from his property has become very difficult; (2) it became

impossible for his big trucks and trailers to turn around; (3) it made the area around it verydangerous in case of fire; and (4) it has caused perpetual danger, annoyance, irreparable lossand damage not only to the public in general but especially to Favis himself. In response, theCity approved Resolution 215-61, converting the remaining 5 m.-width portion of Lapu-lapustreet into an alley (lousy resolution…). Unsatisfied with the City’s response, Favis Commencedsuit to annul the lease contract for the reasons mentioned above and also because of thefollowing: 1) the power to close streets should be effected thru an ordinance and not thru aresolution; 2) the City failed to give notice to owners of contiguous properties whose rights mightbe affected; and 3) the city council of Baguio and municipal bodies in general, have no inherentright to vacate or withdraw a street from public use, either in whole or in part, thus there must bea specific grant by the legislative body to the city or municipality concerned.

Held: Favis contentions are unmeritorious. Reasons:1) The embattled resolutions are just as good as ordinances. The objection is only of

forms, not of substance.

2) Notice is not needed because the City Charter requires notice only when theordinance in question also calls for an assessment regarding a project to be implemented. In thiscase, no assessment was called for and was in fact, not necessary.

3) While Favis is correct that municipal bodies have no inherent right to close a publicstreet, still the City Charter does authorize Baguio City to close public roads in its discretionabsent a plain case of abuse, or fraud or collision. Faithfulness in public trust is presumed.Public interest is served thru 1) savings from cost of road maintenance; and 2) gaining by theCity of some income thru leasing.

4) Favis’ private rights were not invaded. Lapu-lapu street does not abut his parcel of land. The general rule is that one whose property does not abut on the closed section of a streethas no right to compensation for the closing or vacation of the street, if he still has reasonableaccess to the general system of streets. The circumstances in some cases may be such as togive a right to damages to a property owner, even though his property does not abut on theclosed section. But to warrant recovery in any such case the property owner must show that thesituation is such that he has sustained special damages differing in from those sustained bykind, and not merely in degree, the public generally.



2. Other illustrative cases:

d.1 . Cabrera v. CA 195 SCRA 314Facts: On Sept. 19, 1969, the Provincial Board of Catanduanes passed Resolution

158 authorizing the closure of the old road leading to the Capitol City of Catanduanes. A newroad was built which traversed the land of Remedios Bagadiong and several others similarlyaffected. Bagadiong and friends were given portions of the old road as compensation for theproperties they lost as a result of the construction of the new road.

One man, Bruno Cabrera, did not like the idea of the old road being gone. He filed acomplaint for “Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages” alleging that the old road in question was a public

road owned by the Province of Catanduanes in its governmental capacity and was thus beyondthe commerce of man. It stands to reason then, that said road cannot be the subject of privatecontracts, such as barter or exchange. Moreover, Cabrera insists, control over public roads lieswith Congress, not with the Provincial Board.

Held: Cabrera is wrong. Reasons:1) Resolution 158 states, in black and white ink, that it is for the closure of a public

road and not for a contract of barter or exchange. RA 5185 Sec 11 (a) (An Ant Granting Further Local Autonomy to Local Governments), in relation to Sec. 2246 of the revised AdministrationCode, is the pertinent law from which Resolution 158 derives its authority.

2) The barter or exchange is legal ‘coz it’s in accordance with Sec. 412 of the CivilCode, which states: “Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State.”

Note: The power to open or close roads i s expressly provided for in Art. 43, IRR of theLGC, 1991.

d.2.Dacanay v. Asistio 208 SCRA 404Facts: Way back in January 5, 1979, the Metropolitan Manila Commission (MMC)

enacted MMC Ordinance 79-02, which allowed certain city and municipal public streets androads to be sites for many vendors applied for licenses to conduct such activities in said streets.

On Dec. 20, 1987, the RTC of Caloocan City ruled that the streets were of publicdominion and ordered the demolition of said stalls. But Mayor Martinez, who had advocated thedemolition of the said stalls, has been replaced by Mayor Asistio. Mayor Asistio did not carry outthe order of the RTC, for humanitarian reasons. Francisco Dacanay, a concerned citizen and aresident along Heroes del ’96 street, filed a petition for mandamus to compel the Mayor, thru theCity Engineer, to remove the said stalls. Will the petition prosper?

Held: Yes, for the plain and simple reason that public roads cannot be the object of leases and thus cannot be bargain away thru contracts. Public roads should serve the purposefor which they were built: for public use as arteries of travel for vehicles and pedestrians.

d.3. Macasiano v. Diokno 212 SCRA 464Facts: On June 13, 1990, the municipality of Paranaque passed Ordinance no. 90,

series of 1990, which authorized the closure of 5 streets located at Baclaran, Paranaque for theestablishment there of a flea market. On July 20, 1990, the Metropolitan Manila Authorityapproved the said ordinance but subject to the following conditions:

1. That the afore-named streets are not used for vehicular traffic, and that the majorityof the residents do not oppose the establishment of the flea market/vending areas thereon;

2. That the 2 meter middle road to be used for flea market/vending area shall bemarked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall be clearlydesignated;

4. That the use of the vending areas shall be temporary and shall be closed once thereclaimed areas are developed and donated by the Public Estate Authority.

Palanyag Kilusang Bayan for Service, a service cooperative, then entered into acontract with Paranaque for the construction and operation of market stalls in the said streets.

Some months later, Brg. Gen. Levy Macasiano, PNP Superintendent of theMetropolitan Traffic Command, entered the picture. He wrote Palanyag a letter demanding thelatter to discontinue the flea market, otherwise the market stalls would be dismantled.Macasiano’s beef was that Ordinance No. 90which authorized the lease and use of publicthoroughfares as site for flea markets is not valid because it is on legal basis. Was he correct?

Held: Yes. Reasons:1) The Municipality of Paranaque did not follow Sec. 10, Chapter 11, LGC 1983, to

the letter. Its states that: “Closure of roads. A local Government unit may likewise, through itshead acting pursuant to resolution of its sanggunian and in accordance with existing law and theprovisions of this Code, states any barangay, municipal, city or provincial road, street, alley, park

or square. No such way or any part of thereof shall be close without indemnifying any personprejudiced thereby. A property thus withdrawn form public use may be used or conveyed for anypurpose for which other real property belonging to the local unit concerned might be lawfullyused or conveyed.”

Note the italicized phrase “and in accordance with existing law and the provisions of this Code. ”The power to close roads by LGUs is still subject to existing law. In this light, Art. 424of the Civil Code is relevant. It essentially says that if public property is withdrawn from publicuse, the property becomes patrimonial property of the LGU concerned and may thus be subjectto ordinary contracts. This is all assuming if the public are still open to vehicular traffic and arethus still devoted to public use.

2) Following the argument of the # 1 above, it goes to show that Paranaque did notfollow condition as imposed by the MMA for Ordinance 90 tie be valid. The legality of Ordinance90, under the circumstances, cannot be sustained.

d.4. Sangalang v. IAC 176 SCRA 719

Facts: As far back in 1977, Makati, Metro Manila has always been plagued by traffic.For this reason, during that time, Mayor Nemesio Yabut of Makati ordered that studies be madeon ways on how to alleviate the traffic problem, particularly in the areas along the public streetsadjacent to Bel-Air Village. The studies revealed that the subdivision plan of Bel-Air wasapproved by the Court of First. Distance of Rizal on the condition, among others, that its major thoroughfares connecting to public streets and highways shall be opened to public traffic.Accordingly, it was deemed necessary by the Municipality of Makati in the interest of the generalpublic to open to traffic Amapola, Mercedes, Zodiac, Jupiter, Neptune, Orbit and Pasco deRoxas streets. As a result, the gates owned by BAVA at Jupiter and Orbit were ordereddemolished.

Mayor Yabut justified the opening of the streets on the following grounds:1) Some time ago, Ayala Corporation donated Jupiter and Orbit Streets to Bel-Air on

the condition that, under certain reasonable conditions and restrictions, the general public shallalways be open to the general public. These conditions were evidenced by a deed of donationexecuted between Ayala and Bel-Air.

2) The opening of the streets was justified by public necessity and the exercise of thepolice power.3) Bel-Air Village Association’s (BAVA) articles of incorporation recognized Jupiter

Street as a mere boundary to the southwest – thus it cannot be said to be for the exclusivebenefit of Bel-Air residents.

4) BAVA cannot hide behind the non-impairment clause on the ground that isconstitutionally guaranteed. The reason is that it is not absolute, since it has to be reconciledwith the legitimate exercise of police power.

BAVA, on the other hand, contended:1) Rufino Santos, president of BAVA, never agreed to the opening of the said streets2) BAVA has always kept the streets voluntarily open anywayMoreover, BAVA claims the demolition of the gates abovementioned was a

deprivation of property without process of law or expropriation without just compensation.Who is correct: the Mayor or BAVA?

Held: The Mayor is correct, for the reasons mentioned above. Also, the demolition of the gates is justified under Art. 436 of the Civil Code.



“When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he canshow that such condemnation or seizure is unjustified.”

In this case, BAVA has the burden of showing that the seizure of the gates isunjustified because police power can be exercised without provision for just compensation. TheCourt is of the opinion that the Mayor did not act unreasonably nor was the opening of the gatesunjustified. In fact, the gates could even be considered public nuisances, of which summaryabatement, as decreed under Art. 701 of the Civil Code, may be carried out by the Mayor.

d.5.Cebu Oxygen v. Bercilles 66 SCRA 481Facts: The subject of the dispute is a portion of M. Borces Street, Mabolo, Cebu City

(10 years from now, would this name really matter?).One day, on Sept. 23, 1968, the City Council of Cebu passed a resolution declaringthe abovementioned street to be abandoned. Subsequently, the council passed another resolution authorizing the Acting City Mayor to sell the street (which was actually a parcel of land) thru a public bidding. Cebu Oxygen and Acetylene Co. Inc. then bought the said parcel of land.

However, when Cebu Oxygen tried to have its land registered, the Assistant ProvincialFiscal of Cebu filed a motion to dismiss the application on the ground that it is a public roadintended for public use and thus was outside the commerce of man. The question now iswhether the City of Cebu is empowered to close a city road or street.

Held: Yes, for the simple reason that the City Charter of Cebu authorizes the same(Note that today, LGUs may close roads or streets under the authority of the LGU of 1991,charter of no charter).

d.6.Pilapil v. CA 216 SCRA 33Facts: This case spanned for a period of 6 years only to reach an unexpected, tragicconclusion for the spouses Colomida.

Spouses Pilapil own a parcel of land in Bahak, Poblacion, Liloan, Cebu. SpousesColomida, on the other hand, bought a parcel of land located also in Bahak. Now this landowned by the Colomidas has for its ingress and egress to the National Road a camino vecinal(barrio road). However, this camino vecinal transverses the property of the Pilapil, which was theroot of all their problems.

The Pilapil denied the existence of the camino vecinal. Socrates Pilapil, the husband,presented himself as witness (which was lousy) as well as Engineer Epifanio Jordan, MunicipalPlanning and Development Coordinator of Liloan. The engineer said that while that zoning mapof Poblacion, Liloan made reference to a camino vecinal, said reference was but a mereproposal of its existence to the Sangguniang Bayan of Liloan.

The Colomidas, on the other hand, relied on old-timers as witnesses – witnesses suchas Florentino Pepito, who attested to the existence of the Camino vecinal and its availability to

the general public since practically time immemorial.The trial court ruled in favor of the Colomidas because the zoning map used asevidence by the Pilapil did not specifically indicate that the amino vecinal was indeed merely“proposed” since other roads and streets were classified as such. The CA upheld that trial court,basically because it said that findings of facts by the trial court, as a general rule, should beundisturbed.

Would the SC uphold the CA ruling?

Held: No. In its infinite wisdom, the SC said that it didn’t matter what opinion theColomidas or the engineer gave regarding the existence of the camino vecinal. What reallymattered is the zoning plan (the Urban Land Use Plan) as finally approved by the SangguniangBayan of the Municipality of Liloan. The zoning plan showed that the camino vecinal wasdeclared closed. CLOSED! It’s so crystal clear, can’t you see? And it’s beyond dispute that theabandonment, closure or establishment of the camino vecinal is the sole prerogative of theMunicipality of Liloan under the LGU of 1983. The SC rebuked the parties for not havingresorted to a pre-trial conference which would have prevented the dragging of a trivial case for six years.

E) Corporate Powers (Sec. 22, LGC, Art. 46, IRR)* Sec. 22, LGC, Corporate Powers. A) Every LGU, as a corporate, shall have the

following powers:1. To have continuous succession in its corporate name;2. To sue and be sued;3. To have and use a corporate seal;4. To acquire and convey real or personal property5. To enter into contracts; and6. To exercise such other powers as are granted to corporations, subject to the

limitations provided in this Code and other laws.

b) LGUs may continue using, modify, or change their existing corporateseals. Provided, that newly established LGUs or those without corporate seals may create their own corporate seals which shall be registered with the DILG. Provided further, that may changeof corporate seal shall also be registered as provided herein.

c) Unless otherwise provided in this Code, no contract may be entered intoby the local chief executive in behalf of the LGU without prior authorization by the sanggunianconcerned. A legible copy of such contrast shall be posted at a conspicuous place in theprovince capitol or the city, municipal or barangay hall.

d) LGUs shall enjoy full local autonomy to the exercise of their proprietaryfunctions and in the management of their economic enterprises, subject to the limitationsprovided in this Code and other applicable laws.

*Article 46, IRR. Note: It’s exactly the same as Sec. 22, LGC.

*Municipality Liability

A. General RuleMunicipal liabilities arise from various sources in the conduct of municipalaffairs, both governmental and proprietary. Broadly, claims against municipalities include allobligations upon all municipal contracts and upon all outstanding bonds, notes, and warrantsissued by them. Strictly, however, these claims are demands for payments for articles, furnishedor services rendered to a municipality in the conduct of its affairs, or demands asserting the tortliability of the municipality.

B. Exceptions1. As provided by law

a) Article 2189, New Civil Code – “Provinces, cities andmunicipalities shall be liable for damages for the death of or injuries suffered by any person byreason of the defective conditions of roads, streets, bridges, public buildings, and other publicworks their control and supervision.”

Cases:e.1. City of Manila v. Teotico 22, SCRA 267Facts: On Jan. 27, 1958, at about 8 p.m., Genaro Teotico was at the corner of the Old

Luneta and P. Burgos Avenue, Manila, waiting for a jeepney to take him downtown. After 5minutes, he managed to hail a jeepney that came along to a stop. As he stepped down from thecurb to board the jeepney, and took a few steps he fell inside an uncovered and unlightedmanhole on P. Burgos Avenue. Teotico sustained a lacerated wound in his left eyelid,conclusion on his left thigh, the upper left thigh… oh my goodness, every injury imaginable! (UseAtty. Ulep’s tone of voice). Teotico was hospitalized and the anti-tetanus injections administeredto him caused allergic eruptions which required further medical treatment. Teotico filed an actionfor damages (actual and moral damages) against the City of Manila. The City denied liabilitycontending that Sec. 4 of the City Charter (RA 409) should prevail over Art. 2189 of the CivilCode because the former is a special law intended exclusively for the City of Manila, whereasthe Civil Code is a general law applicable to the entire Philippines.

Held: Sec. 4 of RA 409 refers to liability arising from negligence in general regardlessof the object thereof whereas Art. 2189 governs liability due to defective streets in particular.



Since the presentation action is based upon the detective condition of a road, said Art. 2189 isdecisive. Under Art. 2189, it is not necessary for the liability therein established to attach that thedefective roads or streets belong to the province, city or municipality from which responsibility isexacted. What said Article requires is that the province, city or municipality has either control or supervision over said street or road. Even if P. Burgos were, therefore, a national highway, thiscircumstance would not necessarily detract from its “control of supervision” by the City of Manila,under RA 409. The City of Manila is therefore liable to Teotico for damages.

e.2. Jimenez v. City of Manila 150 SCRA 510Facts: Bernardino Jimenez was the unlucky said who fell in an uncovered opening o

the ground located within the premises of the Sta. Ana public market. At that time, the market

was flooded with ankle-deep rainwater which prevented the opening form being seen. Jimenez,for his part, went to that market to buy bagoong despite the rains. He sustained an injury due toa rusty 4-inch nail which pierced his left leg.

Jimenez sued the Asiatic Integrated Corporation (AIC) and the City of Manila for hismisfortune. The Sta. Ana Market at that time was under the administration of the AIC by virtue of a management and Operating Contract it had with the City of Manila. The trial court held the AICresponsible but absolved the City of Manila. Is the City of Manila indeed not liable?

Held: The City of Manila is liable. Reasons:1) Again, Art. 2189 comes into play, since the injury took place in a public building.2) Also, Art. 2189 requires that the LGU must retain supervision and control over the

public work in question for it to be held liable. The evidence showed that the Management andOperating Contract explicitly stated that the City of Manila retained supervision and control over the Sta. Ana Market. Also, in a letter to Finance Secretary Cesar Virata, Mayor RaymondBagatsing admitted this fact of supervision and control. Moreover, Sec. 30(g) of the Local Tax

Code says that public markets shall be under the immediate supervision, administration andcontrol of the City Treasurer.3) Jimenez could not be held for negligence. A customer in a store has every right to

presume that the owner will comply with his duty to keep his premises safe for customers. Theowner of the market, on the other hand, was proven to have been negligent in not providing acover for the said opening. The negligence of the City of Manila is the proximate cause of theinjury suffered.

NOTE: It is not necessary for the LGU to have ownership over the public work inquestion; mere control and supervision is sufficient.

e.3. Guilatco v. City of Dagupan 171 SCRA 382Facts: Florentina Guilatco, a court interpreter, was about to board a tricycle at a

sidewalk located at Perez Boulevard when she accidentally fell into a manhole located in saidside walk, causing her right leg to be fractured. She was hospitalized and also as a result,suffered loss of income and moral damages.

Guilatco sued the City of Dagupan. The City replied that Perez Boulevard, where thedeadly manhole was located, is a national road not under the control and supervision of Dagupan. It is submitted that it is actually the Ministry of Public Highways that has control andsupervision thru the Highway Engineer, who by mere coincidence, is also the City Engineer of Dagupan (malas naman namin, City Engineer).

Is the City of Dagupan liable?

Held: Yes, Reasons:1) We again apply Art. 2189. But the bigger question is , does the City of Dagupan

have control and supervision over Perez Boulevard in order for it to be held liable? The answer is yes. Why? Read on.

2) The City of Dagupan argued that the supervision and control over Perez Boulevardbelongs more to his function as ex-officio Highway Engineer, thus the Ministry of PublicHighways should be held liable. However, the court gave this arguments: “Alfredo G. Tangco, inhis official capacity as City Engineer of Dagupan, as Ex-Officio Highway Engineer, as Ex-OfficioCity Engineer of the Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the following monthly compensation: P1,810.66 from Dagupan City,

P200.00 from the Ministry of Public Highways, P100.00 from the Bureau of Public Works andP500.00 by virtue of P>D 1096, respectively. This function of supervision over streets, publicbuildings, and other public works pertaining to the City Engineer is coursed throughMaintenance Foeman and a Maintenance Engineer. Although these last two officials areemployees of the National Government, they are detailed with the City of Dagupan and hencereceive instruction and supervision from the city through the City Engineer. There is , therefore,no doubt that the City Engineer exercises control or supervision over the public works inquestion. Hence, the liability of the city to the petitioner under article 2198 of the City Code isclear.” (Duh? What kind of explanation is that? Personally, I can’t understand it, but if the SCsays the City of Dagupan is liable, then we must trust the wisdom of the omniscience SC).

e.4. Dumlao v. CA 114 SCRA 247Facts: These events took place in Dagupan City.On Feb. 28, 1964, about 11:30 p.m., the spouses Elizalde were driving a jeep thru

Telomes Bridge when suddenly; they came upon a huge hole about 1 meter in diameter and 8feet deep at the south end of the bridge. The Elizaldes managed to avoid the boulders butinstead slammed into a truck owned by Hermanos de Yap and driven by Dulcesimo Ducoy. Thetruck came from the opposite direction on the wrong lane. The Elizaldes died as a result of theincident. The heirs of the Elizaldes included in defendants in its complaint the City of Davao andSamuel Dumlao, the City Engineer. Specifically, Dumlao was sued in his personal capacity.

Dumlao argued that he cannot be held liable is his personal capacity. Is he correct?

Held: Yes.1) The allegations in the complaint clearly state that he was being sued in his official

capacity as City Engineer.2) There was no showing that there was bad faith or malice which would warrant

Dumlao personally liable in connection with the discharge of his duties.3) The best that could be imputed to him is an act of culpable neglect, inefficiencyand gross negligence in the performance of his official duties.

b) Article 2180, Civil Code “The obligation imposed by Article 2176 isdemandable was only for one’s own acts or omission, but also for those of persons for whomone is responsible.

“The father and, in case of his death or incapacity, the mother, areresponsible for the damages caused by the minor children who live in their company.

“The owners and managers of an establishment or enterprise are likewiseresponsible for damages caused by their employees in the service of the branches in which thelatter are employed or on the occasion of their functions.

“Employers shall be liable for the damages caused by their employees andhousehold helpers acting within the scope of their assigned tasks, even though the former arenot engaged in any business or industry.

“The State is responsible in like manner when it acts thru a special agentbut not when the damage has been caused by the official to whom the task done properlypertains, in which caused what is provided in Article 2176 shall be applicable.

“Lastly, teachers or head of establishments of arts and trades shall be liablefor damages caused by their pupils and students or apprentices, so long as they remain in their custody.

“The responsibility treated of in this article cease when the persons hereinmentioned proved that they observed all the diligence of a good father of a family to preventdamages.

e.5. Palafox v. Province of Ilocos Norte 102 Phil. 1186Facts: Palafox filed a suit to recover damages from the provincial government for the

death of his son caused by the negligence of a regular chauffer of the provincial government.The accident occurred while the chauffer was working at the highway construction. Thequestions now are: 1) May the province be held liable? 2) Does the doctrine of respondentsuperior apply?



Held: The answers to both questions are given below (obviously):1) To attach liability to the State for the negligence of its officer or employee, the latter

must be not upon whom properly devolved the duty of driving the truck on that occasion. Thisprinciple applies both to the national and municipal governments. The province is liable.

2) The doctrine of respondeat superior or corporate liability for the negligence or tortof its officers, applies only where the government is engaged in proprietary or businessfunctions. When engaged in government functions, as the construction and maintenance of roads, the doctrine does not apply. The reason for the exemption is the government does notundertake to guarantee to any person the fidelity of the officers or agents whom it employs,since that would involve in all its operations endless embarrassments, difficulties and lossessubversive of the public interest.

2. Liability for torts if engaged in proprietary function

Cases:1. Torio v. Fontanilla 85S CRA 599Facts: The Municipal Council of Malasiqui, Pangasinan passed a resolution

celebrating a town fiesta for 3 days on January, 1959. The resolution created on ExecutiveCommittee which would oversee the operations of the town fiesta. The Executive Committee inturn had a sub-committee in charge of building 2 stages, one of which was for a zarzuelaprogram.

Vicente Fontanilla was one of the actors of the zarzuela. While the zarzuela was goingon the stage where the play was set collapsed. Fontanilla, who has at the rear of the stage, waspinned underneath and died the following day.

The family and heirs of Fontanilla filed a complaint against the Municipality of Malasiqui, the Municipal Council and the individual members of the Municipal Council. Can they

be held liable?

Held: The Municipality of Malasiqui is liable and the individual members of theMunicipal Council are not liable. Reasons:

1) The basic rule to be first followed is that a municipal corporation cannot be heldliable for an injury caused in the course of performance of a governmental function. With respectto proprietary functions, the settled rule is that a municipal corporation can be held liable uponcontracts and in torts.

2) The next question to be answered is that whether the fiesta above-quota wasperformed by the municipality in the exercise of its governmental or proprietary function.According to 2282 of the revised Administrative Code, municipalities are authorized to holdfiesta, but it is not their duty to conduct such. Thus, the fiesta is proprietary in nature. The sameanalogy can be applied to the maintenance of parks, which is a private undertaking, as opposedto the maintenance of public schools and jails, which are for the public service. (The key wordthen is duty.)

3) Under the doctrine of respondent superior (see first paragraph of Art. 2180), themunicipality can be held liable for the death of Fontanilla if a) the municipality was performing aproprietary function at that time and b) negligence can be attributed to the municipality’s officers,employees or agents performing the proprietary function. The evidence proved that thecommittee overseeing the construction of the stage failed to build a strong enough to insure thesafety of zarzuela participants. Fontanilla was entitled to ensure that he would be exposed todanger on that occasion.

4) Finally, the municipal council is not responsible. The Municipality stands on thesame footing as an ordinary private corporation with the municipal council acting as its board of directors. It is an elementary principle that a corporation has a personality, separate and distinctfrom its officers, directors, or persons composing it and the latter are not as a rule co-responsible in an action for damages for tort or negligence culpa aquillana committed by thecorporation’s employees of agents unless there is a showing of bad faith or gross or wantonnegligence on their part. To make an officer of a corporation liable for the negligence of thecorporation there must have been upon his part such a breach of duty as contributed to or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act.

2. Municipality of San Fernando, La Union v. Firing 195 SCRA 692Facts: Laurence Banino, Sr., along with several other passengers in a jeepney they

were riding in, died after collision involving said jeepney, a privately owned graved and sandtrucks and a dump truck owned by the Municipality of San Fernando, La Union, driven byAlfredo Bislig, a regular employee of said municipality. The heirs included in its complaint themunicipality and the dump trucks driver. The municipality invokes non-suability of the State. Is itcorrect?

Held: Yes.1) The general rule is that the State may not be sued except when it gives consent to

be sued. Consent takes the form of express of implied consent.

Express consent may be embodied in a general law or a special law. The standingconsent of the State to be sued in case of money claims involving liability arising from contractsis found in Act No. 3083. A special law may be passed to enable a person to sue thegovernment for an alleged quasi – delict.

Consent is implied when the government enters into business contracts, therebydescending to the level of the other contracting party, and also when the State files a complaintthus opening itself to a counterclaim.

Municipal corporations for example, like provinces and cities, are agencies of theState when they are engaged in governmental functions and therefore should enjoy thesovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued.

2. A distinction should first be made between suability and liability. “Suability depends

on the consent of the state to be sued, liability on the applicable law and the established facts.The circumstance that a State is suable does not necessarily mean that it is liable; on the other hand, it can never be held allowing itself to be sued. When the state does waive its sovereignimmunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.”

3. About the issue of whether or not the municipality is liable for the torts committed byits employee, the test of liability of the municipality depends on whether or not the driver, actingin behalf of the municipality is performing governmental of propriety functions. As emphasized inthe case of Torio vs. Fontanilla, the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury tothird persons.

It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally notliable for torts committed by them in the discharge of governmental functions and can be held

answerable only if it can be shown that they were acting in a propriety capacity. In permittingsuch entities to be sued, the State merely gives the claimant the right to show that the defendantis not acting in its governmental capacity when the injury was committed or that the case comesunder exceptions recognized by law. Failing this, the claimant cannot recover.

4. In the case at bar, the driver of the dump truck of the municipality insists that “hewas on his way to Naguilian River to get a load of sand and gravel for the repair of SanFernando’s municipal streets.”

In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3 (m) of Rule 131 of the Revised Rules of Court,Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to hisoffice.

3. Read RA 7678 – DIGITEL Franchise



The title states: Republic Act no. 7678, February 17, 1994: An Act granting the DigitalTelecommunications Philippines, Incorporated, a franchise to install, operates and maintainstelecommunications systems throughout the Philippines and for other purposes.

Section 13 states: “Warranty in Favor of the National and Local Government. Thegrantee shall hold the national, provincial, city and municipal governments harmless from allclaims, accounts, demands or actions arising out of accidents or injuries, whether to property or to persons, caused by the installation and operation of the telecommunications systems of thegrantee.”

* Liability for Contract

Municipal corporations are liable on contracts entered into in their behalf by their authorized agents acting within the scope of their authority, provided that the municipalcorporations are authorized to enter into said contracts by their charter.

* Section 24, LGC. Liability for damages

LGU’s and their officials are not exempt from liability for death or injury or damage toproperty.

4. City of Manila v. JAC 179 SCRA 423Facts: The City of Manila leased a lot of the North Cemetery to Irene Sto. Domingo.

The period of the lease i s from June 6, 1971 to June 6, 2001.

Irene’s husband died and was buried in said lot on June 6, 1971. The authorities of the North cemetery however, ordered the lot exhumed on January 25, 1978, according to their interpretation in good faith of AO No. 5, 1975, which provided for a uniform procedure andguidelines in the processing of documents pertaining to and for the use and disposition of buriallots and plots within the North Cemetery, etc.

Naturally, Irene and her family were shocked, Adding to their dismay was that theremains of her husband was callously dumped in a warehouse of a cemetery were thousands of other sacks of bones were kept. The risk, according to her, of claiming the wrong set of boneswas high. Irene filed a claim for damages against the city. Will the suit prosper?

Held: Yes, reasons:

1. In connection with its powers as a municipal corporation, the City of Manila may

acquire property in its public or governmental capacity, and private or proprietycapacity. The NCC divides such properties into property for public use asprovincial roads, city streets, municipal streets, the squares, fountains, publicwaters, promenades, and public works for public service paid for by saidprovisions, cities or municipalities, all other property is patrimonial withoutprejudice to the provisions of special laws.

2. In the absence of special law, the North Cemetery is a patrimonial property of the

City of Manila, which was created by resolution of the Municipal Board of August27, 1903 and January 7, 1904. With its acts of dominion, there is therefore nodoubt that the North Cemetery is within the class of property which the City of Manila owns in its propriety of private character. Furthermore, there is no disputethat the burial was leased in favor of the Sto. Domingo. Hence, obligationsarising from contracts have the force of law between them. Therefore, a breachof contractual provision entitles the other party to damages even of no penalty for

such breach is prescribed in the contract.

3. It should also be noted that the Charter of Manila states that it may sue and besued. By virtue if this and the doctrine of respondent superior, the City is liable for the negligent acts of its agents in failing to verify the duration of the lease above-quoted. The agents’ reliance in AO No.5 is unavailing because said AO coversonly new leases.

* Doctrine of Implied Municipal Liability (Contra personal liability)

To hold a municipal corporation for benefits received under an implied contract:

a. I t is necessary to show that the implied contract be within the

contractual powers of the corporation and that the officerswho entered into contract were fully authorized.

b. I t must be further shown that the benef its were vo luntari lyaccepted under such circumstances as will indicate thatpayment was intended by the parties or that justice and equitywould require the payment of compensation.

1. Inciong v. Domingo 211 SCRA 139Facts: This case basically concerns the implied liability of a municipal corporation in

paying the fees of an attorney it hired. But first, the useless facts.

The Philippines Sugar Commission (PHILSUCOM) owned a sugar refinery atBarangay Caloocan, Balayan, Batangas. However, PHILSUCOM failed to pay the real statetaxes due on said sugar refinery. So the Provincial Treasurer of Batangas scheduled for the sale

of the sugar refinery thru a public auction.

PHILSUCOM, however, was granted a restraining order maintaining the status quo. Inthe meantime, Barangay Caloocan, thru Atty. Ceferino Inciong, intervened in the case as it had10% property tax share to be collected form PHILSUCOM. To make the long story short, Atty.Inciong eked out a compromise agreement for both warring parties so everybody went homehappy except for Atty. Inciong.

It seemed that the request of the Barangay Captain of Caloocan for petitioner’s legalassistance was not taken up nor approved by the Sangguniang Barangay nor was there anyshowing that it was approved by the Solicitor General and concurred in by COA as requiredunder COA Circular No. 86 – 255, dated April 2, 1986.

Also it seemed that the hiring of petitioner by the Punong Barangay did not carry withit the approval of the Sangguniang Barangay as required under Section 91 (1-1) of the B.P. 377,

nor was there any appropriation therefore; the hiring was not approved by the Solicitor Generaland concurred in by COA.

In other words, Barangay Caloocan doesn’t want to pay Atty. Inciong. Is that correct?

Held: Our companero must be paid. Reasons:

1. We don’t want to see a kindred spirit get unpaid or else we lawyers wil lhave to go on strike.

2. As correctly stated by the Off ice of the Solicitor General, the position of respondent Chairman of the COA disallowing payment of attorney’s fees to petitioner Atty.Ceferino Inciong is not proper in the light of the following considerations:

a. The employment by Barangay Caloocan of petitioner as its counsel,even if allegedly unauthorized by the Sangguniang Barangay, is



binding on Barangay Caloocan as it took no prompt measure torepudiate petitioner’s employment.

b. The decision of the RTC directing Barangay Caloocan to payattorney’s fees to petitioner has become final and executory and isbinding upon Barangay Caloocan.

c. COA Circular No. 86 – 255 cannot diminish the substantive right of petitioner to recover attorney’s fees under the final and executorydecision dated August 9, 1989 of the Regional Trial Court.

3. The respondent COA Chairman s tates t hat PHILSUCOM paid t heamount of 7,199,887. 51 pesos to the Municipal Treasurer under the Amnesty CompromiseAgreement. Out of this amount, the Municipal Treasurer allocated to Barangay Caloocan as itsshare the amount of 719,988.75 pesos. This allocation is erroneous because pursuant toRepublic Act No. 5447, Barangay Caloocan should only share from the basic tax which is 50%of what PHILSUCOM paid because the other half should go to the Special Education Fund.Under the said Republic Act No. 5447, the rightful share of Barangay Caloocan should be359,944.38 pesos only.

The Chairman prayed that in the event the Court orders the payment of attorney’s fees topetitioner this amount of 359,944.38 pesos should be made the basis therefore. The Courtreplied in a booming voice, “WHEREFORE, the petition is GRANTED and respondent is orderedto direct the payment of attorney’ fees to petitioner Atty. Ceferino Inciong in an amountequivalent to 10% of 359,994.38 pesos.”

2. Province of Cebu v. JAC 147 SCRA 447Facts: Again, this case concerns the implied liability of a municipal corporation inpaying the fees of an attorney hired – but the attorney ended up with only a pittance.

There was a time when Cebu City almost became the owner of practically the whole of the Province of Cebu. This happened in Feb. 4. 1964 when the Vice – Governor and theProvincial Board of Cebu, taking advantage of Governor Rene Espina’s absence (he was awayon an official business trip [ows?]} donated 210 lots or 380 hectares of provincial patrimonialland to Cebu City. When Governor Espina finally heard of the donation, he filed a case todeclare the donation void for being illegal and immoral. The defendants in the case were CebuCity, City mayor Sergio Osmena and the dumb provincial officials responsible for the donation.

Governor Espina hired Atty. Pablo Garcia, a private lawyer, as his counsel. Atty.Garcia toiled for 8 years on the case, but for some reason, he was no longer counsel when theparties settled for a compromise agreement. Nevertheless, Atty. Garcia claims he is entitled tofees worth 30% of the worth of the properties or 36 million pesos (a staggering amount,considering that the amount was based on the peso - dollar rates of 1979).

The province of Cebu City however refused to give him even one centavo. They saidSec. 1683 of the RAC and Sec. 3 of the Local Autonomy Law is clear that only the provincialfiscal and municipal attorney can represent a province or municipality in its lawsuits. Moreimportantly, if the province of Cebu were to hire a private lawyers (such as when the provincialfiscal is disqualified) the Provincial Board must pass a resolution to allow such a move.

The Trial court awarded attorney’s fees based on quantum merit. On appeal, the IACawarded 5% worth of properties. The questions now are 1. Should the province pay Atty. Garciaand 2? If so how much is Atty. Garcia entitled to?

Held: The province must pay Atty. Garcia but he is entitled only to quantum merit.Reasons:

1. Ibi quid generaliter conceditur; inest haee exception, si non aliquid sitcontra jus fasque. (Where anything is granted generally, this exceptionis implied; that nothing shall be contrary to law and right). This simplymeans that every rule, no matter how strict or harsh, must have anexception. Here, equity comes into play. To deny Atty. Garciacompensation for his professional services would amount to adeprivation of property without due process of law.

2. The argument that the hiring of private lawyers by a province must firstgain the approval of the Provincial Board is absurd. First of all, theservice of the Provincial Fiscal has already been engaged by the

Provincial Board. More importantly, it’s so stupid for the ProvincialBoard to pass a resolution grant the hiring of a private lawyer whowould litigate against them. The Provincial Board may just not passsuch a resolution. The legal maxim which we can use as a basis for thissituation is “Nemo tenetur ad impossibile” (The law obliges no one toperform an impossibility)

3. Until the contrary is clearly shown, an attorney is presumed to be actingunder authority of the litigant whom he purports to represent. Hisauthority to appear for and represent petitioner in litigation, not havingbeen questioned in the lower court, it will be presumed on appeal thatcounsel was properly authorized to file the complaint and appear for hisclient. Even where an attorney is employed by an unauthorized personto represent a client, the latter will be bound where it has knowledge of the fact that it is being represented by an attorney in a particular

litigation and takes no prompt measure to repudiate the assumedauthority. Such acquiescence in the employment of an attorney asoccurred in this case is tantamount to ratification. The act of thesuccessor provincial board and provincial officials in allowing Atty. PabloP. Garcia to continue as counsel and in joining him in the suit led thecounsel to believe his services were still necessary.

4. Atty. Garcia i s entitled only t o quantum merit. He simply was notcounsel when the compromise agreement was made. He gets only30,000 pesos,

* Instances where the municipal mayor was held liable for back salaries of, or damages to dismissed municipal employees, to the exclusion of the municipality

Salcedo vs. Court of Appeals – the municipal mayor was held liable for the back

salaries of the Chief of Police he had dismissed, not only because the dismissal was arbitrarybut also because the mayor refuse to reinstate him in defiance of an order of the Commissioner of Civil Service to reinstate.

Nemenzo vs. Sabillano – the municipal mayor was held personally liable for dismissing a police corporal who possessed the necessary civil service eligibility , the dismissalbeing done without justifiable cause and without any administrative investigation.

Rama vs. Court of Appeals- the governor, vice – governor, member of theSangguniang Panlalawigan, provincial auditor, provincial treasurer and provincial engineer wereordered to pay jointly and severally in their individual and personal capacity damages to some200 employees of the province of Cebu who were eased out from their positions because of their party affiliations.

* Instance where the municipality was also held liable along with municipal mayor

3. Laganapan v. Asedillo 154 SCRA 377



Facts: Solano Laganapan was appointed Chief of Police. However, he was summarilydismissed from his position by respondent Mayor Elpidio Asedillo of Kalayaan, Laguna on theground that his appointment was provisional and that he has no civil service eligibility.Respondent Epifanio Ragotero was appointed acting chief of police of Kalayaan, Laguna on thesame day in place of the petitioner.

Subsequently, the Municipal Council of Kalayaan, Laguna abolished the appropriationfor the salary of the chief of police of Kalayaan, Laguna. Laganapan thus filed a complaintagainst Mayor Asedillo and the Municipality of Kalayaan for reinstatement and payment of backwages. May Laganapan be reinstated? Is the Municipality also liable?

Held: The municipality is liable but Laganapan cannot be reinstated. Reasons:

1. Laganapan was summarily d ismissed w ithout any semblance o f compliance with due process. No charges were filed, no notice or hearing was made, nonothing. The Court finds no merit in the mayor’s contention that, since the appointmentsextended to Laganapan as chief of police of Kalayaan, Laguna, were all provisional in nature,and not permanent, his services could be terminated with or without cause at the pleasure of theappointing officer. While it may be true that Laganapan was holding a provisional appointment atthe time of his dismissal, he was not a temporary official who could be dismissed at any time.His provisional appointment could only be terminated thirty (30) days after receipt by theappointing officer of a list of eligible form the Civil Services Commission. Here no suchcertification was received by Mayor Asedillo thirty (30) days prior to his dismissal of Laganapan.

Furthermore, it is of record that, after the summary dismissal of Laganapan byAsedillo, the Municipal Council of Kalayaan instead of opposing or at least protesting

Laganapan’s summary dismissal of his position, even abolished the appropriation for the salaryof the Chief of Police of Kalayaan – Laguna. The Court considers this act of the MunicipalCouncil as an approval or confirmation of the act of respondent Mayor in summarily dismissingLaganapan, as to make said municipality equally liable as the mayor for the reinstatement of Laganapan and for the payment of his back salaries.

Finally it should be noted that Asedillo was sued not personally, but in his capacity asmayor.

2. Laganapan cannot be reinstated. PD 482, recently enacted at that time,calls for the appointment of a permanent Chief of Police (known as Station Commander), incertain provinces including Laguna. His reinstatement is not feasible. The Mayor and themunicipality are instead liable for payment of back salaries.

4. Salcedo v. CA 81 SCRA 408Facts: Arsenio Salcedo was appointed Chief of Police of Candelaria, Quezon.

Records show that Salcedo then held civil service eligibility, having passed the U.S. Civil ServiceExamination for Messenger and Skilled laborer in 1928. Considering his eligibility appropriate tothe position of Chief of Police, the Commissioner of Civil Service validated the same andattested the appointment of Salcedo as permanent. Since then Salcedo has discharged thefunctions of his office

An administrative complaint for misconduct and serious irregularities was later filedagainst Salcedo. It seemed however that the mayor of Candelaria, Venancio Dia wanted himkicked out right away so he terminated the services of the poor guy. The basis of the terminationwas erroneous and illegal, since Salcedo didn’t possess the appropriate eligibility for the positionof Chief of Police (his civil service eligibility arose form a U.S based test, remember?)

Salcedo appealed to the Commissioner of Civil Service. Although the Commissioner found him guilty of conduct unbecoming of a police officer, he was nevertheless reinstated andwas given a fine and a warning instead.

The Mayor however really hated the guy. He refused to have Salcedo reinstated. TheCA agrees with the mayor.

The lone issue in this instant action is whether the respondent mayor can legallyterminate Salcedo’s services notwithstanding the attestation of the latter’s appointment aspermanent by the Commissioner of Civil Service.

Held: The mayor cannot terminate Salcedo’s services. The reason is that even thoughhe did not take the required examination either under the Old or New Civil Service Law, thatwasn't his fault. His claim to eligibility came from the U. S. Civil Service Examination he took in1928 when the Philippines was still a U.S Colony. Salcedo cannot be required to take the

examination again after his eligibility had already been declared permanent by the Commission.

The respondent mayor persistently ignored the order of reinstatement given by theCommissioner of Civil Service. He defied the directive of a superior body with final authority onthe matter which is the mayor's duty to comply. For acting arbitrarily and without legal

justification in terminating the services of petitioner and refusing to reinstate him as Chief of Police, the mayor must be held personally liable for the back salaries of Salcedo, except for thetime Salcedo was suspended.

Legislative Powers

* Requisites of a valid ordinance

1. Must not contravene the constitution or statute2. Must not be oppressive

3. Must not impartial, fair and general4. Must not prohibit, but may regulate trade5. Must not contravene common right6. Must be consistent with public7. Must not be unreasonable

NOTE: See also Solicitor General V. MMA, p. 25 of this reviewer

• Distinction between an Ordinance and a ResolutionAn ordinance prescribes a permanent rule of conduct government; whereas aresolution is of temporary character only

*Article 107, IRR. Ordinances and Resolutions. The following rules shall govern the enactmentof ordinances and resolutions:

1. Legislative actions in a general and permanent character shall be enacted in the formof ordinances, while those temporary characters shall be passed in the form of resolutions. Matters relating to propriety functions and to private concerns shall beenacted in a resolution.

2. Proposed ordinances and resolutions shall begin writing and shall contain an assignednumber, a title or caption, an enacting or ordaining clause and the date of its proposedeffectivity. In addition, every proposed ordinance shall be accompanied by a brief explanatory note contain the justification for its approval. It shall be signed by theauthor or authors and submitted to the secretary to the sanggunian who shall reportthe same to the sanggunian at the next meeting.

3. A resolution shall be enacted in the same manner prescribed for an ordinance, exceptthat it need not go through a third reading for its final consideration unless decidedotherwise by a majority of the sanggunian members.



4. No ordinance or resolution shall be considered on second reading in any regular meeting unless it has been reported out by the proper committee to which it wasreferred or certified as urgent by the local chief executive.

5. Any legislative matter duly certified by the local chief executive as urgent whether or not it is included in the calendar of business, may be presented and considered by thebody at the same meeting without need of suspending the rules.

6. The secretary to the sanggunian of the province, city or municipality shall preparecopies of the proposed ordinance or resolution in the form it was passed on secondreading and shall distribute to each sanggunian member a copy thereof, except that a

measure certified by the local chief execute as urgent may be submitted for finalvoting immediately after debate or amendment during the second reading.

7. No ordinance or resolution passed by the sanggunian in a regular or special sessionduly called for the purpose shall be valid unless approved by majority of the memberspresent, there being a quorum. Any ordinance or resolution authorizing or directing thepayment of money or creating liability, shall require the affirmative vote of all thesanggunian members for its passage.

8. Upon passage of all ordinances and resolution directing the payment of money or creating liability, and at the request of any members, of any resolution or motion, thesanggunian shall record the ayes and nays. Each approved ordinance or resolutionshall be stamped with the seal of the sanggunian and recorded in a book kept for thepurpose.

*Article 108 – 144, IRR, LGC

As we go along this reviewer, we'll ferret out the cream from the crap – which articlesdeserve to be read again and again and which should be considered stinker, articles of such jaw- dropping ineptitude that the hapless law student has no recourse but to shake her head andmutter, “What the hell they were thinking?.” But then, this i s just probably the author talking lazy,so go read the codal instead.

1. Mascunana v. Provincial Board of Negros Occidental 79 SCRA 339Facts: The case doesn’t really teach mush -if anything at all – about the coordinates

and resolution but anyway...

Angel Mascunana and Angeles Veldeflor lived near a piece of land which was thesubject of controversy of this case. The two claimed that this piece of land was actually part of the extension of Burgos Street. On this piece of land were squatters and their houses. One of the squatters was an influential councilor named Leon Treyes.

The two requested the municipal mayor of Talisay, Negros Occidental that the land inquestion be cleared of squatters so that the public can make use of that portion of BurgosStreet.

A debate resulted on whether the land had been used as street or has it beenwithdrawn form public. The municipal council of Talisay made an ocular inspection of the placeand declared that there was no reason for opening it to vehicular traffic (note that Treyes is amember of the municipal council). The municipal council thus passed Resolution no. 59 orderingthe said land closed. The provincial board of Negros Occidental approved Res. No. 59 thru itsres. NO. 1035

Mascunana and Veldeflor filed a complaint with the VCFI of Negros Occidentalquestioning the validity of the two resolutions. They wanted the street opened because it was aproperty of public dominion and if the same was not possible, then they should have beenindemnified for damages under Sec. 2246 of the RAC since their properties were adjacent near

the questioned land. The CFI however dismissed their complaint summarily in a minuteresolution. The reason, the CFI explained, is that the issue concerns a resolution passed by amunicipal corporation and therefore does not need to be resolved thru an action for declaratoryrelief. Section 1, Rule 64 of the Rules of Court, the pertinent rule to be followed in this case,refers only to an ordinance and not a resolution.

Should the CFI pass on the merits of the case of Mascunana and Veldeflor?

Held: Yes. A trial court's order dismissing a complaint or petitions is appealable like afinal judgment. Also, Mascunana, et. al.'s action is not an action for declaratory relief but anordinary action for the enforcement of Sec. 2246 of the RAC. The issue on whether the

complaint involved an ordinance or a resolution is irrelevant.

2. Magtajas v. Pryce Properties July 20, 1994Facts: This case is interesting because local autonomy was defeated unwittingly

perhaps by the same statute granting it. The LGC of 1991.

PAGCOR, drunk with the success because it was able to open casinos in severalcites, announce plans of opening one in Cagayan de Oro City. The reaction of the SangguniangPanlungsod of said city was swift: it passed 2 ordinances preventing the operation of casinos inits territory. Mayor Pablo Magtajas, one of the petitioners, said the ordinances were validbecause 1. the Sangguniang Panlungsod have the power to enact ordinances to prevent,suppress and impose appropriate penalties for gambling and other prohibited games of chance(Art. 468, LGC, 1991); 2. the ordinance were an expression of the police power under theGeneral Welfare Clause; and 3. the LGC of 1991 modified the charter of the PAGCOR as theLGC of 1991 was a later enactment of Congress. Is Magtajas correct?

Held: No. Reasons:

1. Art. 48 of the LGC clearly refers only to prohibit gambling and other games of chance.Casinos are not prohibited because they are expressly allowed by P.D. 1869. the lawcreating PAGCOR.

2. The ordinances in question cannot contravene PD 1839. It must be remembered that

a municipal ordinance to be valid, must among others not contravene the constitutionor any statute. The reason is that municipal governments are mere agents of thestate.

3. The repealing clause of LGC of 1991 did not expressly repeal PD 1869. Impliedrepeal, on the other hand are not lightly presumed in the absence of a clear andunmistakable showing of such intention. There was no sufficient indication of an

implied repeal of PD 1869. In fact, later enactments after the LGC of 1991 recognizethe existence of PD 1869. The rule in legal hermeneutics is that statues should not bepit against each other but instead, every effort by the courts must be made toharmonize them. As a becoming respect to a co - equal (idiotic?) branch of government.

V. INTERGOVERNMENTAL RELATIONS OF PUBLIC CORPORATIONS (ART. 59, 64, IRR)

Article 59, IRR... General supervision of the province over component cites and municipalities.

a. The province, thru its governor, shall exercise supervisory authority over component citiesand municipalities within its territorial jurisdiction to ensure that they act within the scope of their prescribed powers and function. Highly urbanize cites and independent component cities shallbe independent of the province.

b. The scope of the supervision by the province over component cites and municipalities shallinclude but not limited to the following:



1. The governor shall review executive order issued by the mayor of the component cityor municipality, subject to the concurrence of the sangguniang panlalawigan, exceptas otherwise provided under the Constitution and special statutes. If the governor andthe sangguniang panlalawigan failed to act on said executive order within 30 daysform receipt thereof, the same shall be deemed consistent with law and thereforevalid.

2. The sangguniang panlalawigan shall review all approved city or municipal ordinanceand resolution approving the development plans and public investment programsformulated by the city or municipal development councils.

3. The SP shall review the ordinances authorizing annual or supplemental appropriationsof component cities and municipalities in the same manner and within the same periodprescribe for the review of other ordinances of the LGU.

4. The governor shall visit component cities and municipalities of the province at leastonce every 6 months to fully understand their problems and conditions, listen and giveappropriate counsel to local officials and inhabitants, inform the officials andinhabitants of component cites and municipalities of general laws and ordinanceswhich especially concern them and conduct visits and inspections to the end that thegovernance of the province shall improve the quality of li fe of the inhabitants.

5. The governor shall coordinate plans of the province in coordination with mayors of cites and municipalities as well as NGO's concerned to:

a. Formulate peace and order plan of the province in coordination with mayors of

component cities and municipalities and the National Police Commission.

b. Adopt adequate measure to safeguard and conserve land, mineral, marine, forestand other resources of the province, in coordination with mayors of component cities andmunicipalities.

c. Coordinate efforts of component cites and municipalities in the national or regional palaro or sports development activities; and

d Call conventions, seminars, conferences or meetings of any elective and appointedofficials of the province and component cities and municipalities.

6. The proceeds of the basic real property tax, including interest thereon and proceedsform the use, leas or disposition, sale or redemption of property acquired at a publicauction shall be shared by the province, municipality and barangay in the manner prescribed in Rule XXXI of these Rules.

7. The province shall share its collections form the tax on sand, gravel and other quantityresources within its component city and municipality and the barangay where saidresources are extracted.

* Article 62, IRR. Role of people's organizations, non – governmental organizations and the private sector

LGU's shall promote the establishment and operation of people's organizations, NGOsand the private sector to make them active partners in the pursuit of local autonomy. For thispurposes, people's organization, NGO's and the private sector shall be directly involved in thefollowing plans, programs, projects and activities of LGUs:

a. Local special bodies;b. Delivery of basic services and facilitiesc. Joint ventures and cooperative programs and undertakingsd. Financial and other forms of assistance

e. Preferential treatment for organizations and cooperatives of marginalized fishermenf. Preferential treatment for cooperatives development andg. Financing, cooperative , maintenance, operation, and management of

infrastructure projects

* 1. Between the national government and the local governments: 2. With PNP: 3. Withcomponent cites and municipalities: 4. With People's and Non – Governmental Organizations(Sec. 25-36, LGC)

Sec. 25. National supervision over local governments

a. Consistent with the basic policy on local autonomy, the President shall exercisegeneral supervision over LGU's to ensure that their acts are within the scope of their prescribedpowers and functions.

The President shall exercise supervisory authority directly over provinces, highlyurbanized cities and independent component cities, thru the province with respect to componentcities and municipalities and the city and municipalities with respect to barangays.

b. National Agencies and offices with the project implementation functions shallcoordinate with one another and with the LGU's concerned in the discharge of these functions.They shall ensure the participation of LGU's both in the planning and implementation of the saidprojects.

c. The President may, upon request of the LGU concerned, direct the appropriatenational agency provide financial, technical or other forms of assistance to the LGU. Such

assistance shall be extended at extra cost to the LGU concerned

d. National agencies and offices including government – owned or controlledcorporations with field under or branches in a province, city or municipality shall furnish the localchief executive concerned, for information and guidance, monthly reports including duly certifiedbudgetary allocations and expenditures.

Sec. 26. Duty of national government agencies in the maintenance of ecological balance (just goand read the code or JGRC)

Sec. 27. Prior consultations required (JGRC)

Sec. 28. Powers of local chief executives over the units of the Philippine National Police

The extent of operational management and control of local chief executives over thepolice force, fire protection unit, and jail management personnel assigned in their respective

jurisdictions shall be governed by the provisions of RA 6975, otherwise known as the “DILG Actof 1990”, the rules and regulations issued are pursuant thereto.

Sec. 29. Provincial relations with component cites and municipalities

The province, thru the governor, shall ensure that every component cities andmunicipality within its territorial jurisdiction acts within the scope of its prescribed powers andfunctions. Highly urbanized cities and independent component cities shall be independent of theprovince.

Sec. 30. Review of executive orders

a. Except as otherwise provided under the Constitutions and special statues, thegovernor shall review executive orders promulgated by the component city or municipal mayor within his jurisdiction. The city municipal mayor shall review all EO's promulgated by the punongbarangay within his jurisdiction. Copies of such orders shall be forward to the governor or the



city or municipal mayor, as the case may be, within 3 days from their issuance. In all instancesof review, the local chief executive concerned shall ensure that such EO's are within the powersgranted by law and in conformity with provincial, city or municipal ordinances.

b. If the governor or city or municipal mayor fails to act on said EO's within 30 days of submission, the same shall be deemed consistent with law and therefore valid.

Sec 31. Submission of municipal question to the provincial legal officer or prosecutor

In the absence of municipal legal officer, the municipal government may secure theopinion of the provincial legal officer and in the absence of the latter, that of the provincial

prosecutor on any legal question affecting the municipality

Sec 32. City and municipal supervision over their respective barangays

The city or municipality, thru the city or municipal mayor concerned shall exercisegeneral supervision after component barangay to ensure that said barangays act within thescope of their prescribed powers and functions.

Sec 33. Cooperative undertakings among LGU's

LGUs' may, thru appropriate ordinances, group themselves, consolidate, or coordinatetheir efforts, services and resources for purposes commonly beneficial to them. In support of such undertakings, the LGU's involved may, upon approval by the sanggunian concerned after apublic hearing for the purpose, contribute lands, real estate, equipment, and other king of property and appoint or assign personnel under such terms and conditions as may be agreed

upon by the participating local units thru Memoranda of Agreement.

Sec. 34. Role of people's and non – governmental organizations

LGU's shall promote the establishment and operation of people's and non –governmental organization to become active partners in the pursuit of local autonomy.

Sec. 35. Linkages with people's and non – governmental organizations

LGU's may enter into joint ventures and such other cooperative agreements withpeople's and non – governmental organizations to engage in the delivery of basic services,capability – building and livelihood projects, and top develop local enterprises designed toimprove productivity and income, diversity, agriculture, spur industrialization, promote ecologicalbalance and enhance the economic and social well – being of the people.

Sec 36. Assistance to people's and non – governmental organizations

An LGU may thru its local chief executive and with the concurrence of the sanggunianconcerned, provide assistance, financial or otherwise to such people's and non – governmentalorganizations for economic , socially – oriented, environmental, or cultural projects to beimplemented within its jurisdiction.

REQUIREMENTS AND PROHIBITIONS APPLICABLE TO ALL LOCAL OFFICIALS ANDEMPLOYEES (Sec 90, 94, 94, Art 177, 179, IRR)

Section 90. Practice of Profession

a. All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.

b. Sanggunian officials may practice their professions, engage in any occupation, or teach in schools except during session hours. Provided, that sanggunian members who are alsomembers of the Bar shall not:

1. Appear as counsel before any court in any civil case wherein and LGU or any office,agency or instrumentality of the government is the adverse party

2. Appear as counsel in any criminal case wherein an official or employee of the nationalor local government is accused of an offense committed in relation to his office

3. Collect any fee for their appearance in administrative proceedings involving the LGU

of which he is an official

4. Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government.

c. Doctors of medicine may practice their profession even during official hours of workonly on occasion of emergency. Provided, that the official do not derive any monetaryincome profession.

Section 94. Appointment of elective and appointive local officials: candidates who lost in anelection

a. No elective or appointive local official shall be eligible for appointment or designation in anycapacity to any public office or position during his tenure

Unless otherwise allowed by law or primary functions of his position, no elective or appointive local official shall hold any other office or employment in the Government or anysubdivision or agency, or instrumentality thereof, including government – owned or controlledcorporation (GOCC) or their subsidiaries;

b. Except for losing candidates in barangay elections, no candidate who lost in any electionsshall within 1 year after such election be appointed to any office in the Government or anyGOCC or in any of the subsidiaries

Section 95. Additional or double compensation

No elective or appointive local official or employee shall receive additional, double or indirect compensation unless specifically authorized by law, nor accept, without the consent of Congress, any present, emoluments, office, or title of any kind form any foreign government.Pensions or gratuities shall not be considered additional or double or indirect compensation.

Article 177. IRR. Practice of profession. Same as Section 90, LGC

Article 179. IRR Prohibited business and pecuniary interest.

a. It shall be unlawful for any local government official or employee whether directly or indirectly, to:

1. Engage in any business transaction with the LGU in which he is an official or employee or over which he has the power of supervision or with any of its authorizedboards, officials, agents or attorneys where money is to be paid, or property or anyother thing of value is to be transferred, directly or indirectly, out of the resources of the LGU to such person or firm;

2. Hold such interests in any cockpit or other games licensed by LGU3. Purchase any real estate or other property forfeited in favor of an LGU for unpaid

taxes or assessment or by virtues of a legal process at the instance of the said LGU



4. Be a surety for any person contracting or doing business with an LGU for which asurety is acquired; and

5. Possess or use any public property of an LGU for private purposes

b., All other prohibitions governing the conduct of national public officers relating to prohibitedbusiness and pecuniary interest so provided in RA 6713, otherwise known as the Code of Conduct and Ethical Standards of Public officials and Employees, and other rules andregulations shall also be applicable to local government officials and employees.

Read SC Circular No. 12 dated June 30, 1988Circulars passed by the SC and administrative agencies are a bit more difficult to

research. They're probably not that important anyway – probably.

1. Javellana v. DILG 212 SCRA 475 Facts: Attorney Edwin Javellana was a city councilor of Bago City, Negros Occidental.

He was accused of engaging in the practice of law without securing authority form the RegionalDirector of the Department of Local Government. He also filed a case against the City Engineer,obviously a fellow city official. Javellana contends that the 2 ordinances and Sec. 90 of the LGCof 1991 which served as the basis of the charges against him were unconstitutional because,according to Article VIII Section 5 of the 1987 Constitution, only the Supreme Court maypromulgate rules and regulations for the practice of law. He also attacked the said laws for beingdiscriminatory for they ganged upon lawyers and doctors when other similar professions liketeachers and morticians were not affected.

Held: Javellana is wrong. Reasons:1. His contention that Section 90 of the LGC of 1991 and DLG Memorandum Circular

No. 90-81 violate Article VII, Section 5 of the Constitution is completely off tangent. Neither thestatute nor the circular trenches upon the Supreme Court's power and authority to prescriberules on the practice of law. The LGC and DLG Memorandum Circular No. 90- 81 simplyprescribes rules of conduct for public officials to avoid conflict of interest between the dischargeof their public duties and the private practice of their profession, in those instances where thelaw allows it.

2. Section 90 of the LGC does not discriminate against the lawyers and doctors. Itapplies to all provincial and municipal officials in the professions or engaged in any occupation.Section 90 explicitly provides that sanggunian members “may practice their professions, engagein any occupation or teach in school except during session hours”. If there are some prohibitionsthat apply particularly to lawyers, it is because of all the professions, the practice of law is morelikely than other to relate to or affect the area of public service

2. Villegas v. Legazpi 113 SCRA 39Facts: Raul Villegas was an Assemblyman of the Batasang Pambansa form the

province of Cebu. Estanislao Fernandez was also an Assemblyman (from where, the casedoesn't say, but that's not important). Both were accused of violating Sec. 11 Article VIII of the1973 Charter which states that: “No member of the National Assembly shall appear as counselbefore any court inferior to a court without appellate jurisdiction. The records show theyappeared as counsel for cases which were exercised by the CFIs in their original jurisdiction. Didthey violate the constitutional prohibition?

Held: Yes. Stated positively, the constitutional provision allows Assemblyman toappear only when the court handling their case exercise appellate jurisdiction. Only Appellate

jurisdiction is permitted because the office of the Assemblyman carry so much influence andprestige that they might unduly influence upon the administration of justice.

3. Noriega v. Sison 125 SCRA 293 Facts: The name of the guy here is Emmanuel Sison. We place emphasize on the

name here coz the complainant Hermino Noriega made such a big deal out of it Noriegaclaimed that Sison, an attorney who works as a Hearing Officer for the SEC, held himself out tothe public as “Atty. Manuel Sison” and under such a gross misrepresentation of his name

handled a case for a close family friend. Noriega said that Sison violated the prohibition on

government employees’ form practicing their professions. Sison replied that the SEC, thruassociate commissioner, authorized him to allow as counsel for such and that he did it for free.

Held: Sison's appearance as counsel as cited was an isolated case, the sametherefore did not constitute practice of law since he did not receive pecuniary benefit (Note thatthis case took place before the advent of the Cayetano v Monsod ruling). The case against himseemed more like an instrument of harassment Noriega since the latter once lost to Sison in aSEC case. There is simply no evidence that the interchanges his name for a fraudulent purpose(the guy's entitled to use a nickname like everybody else, right?) nor this pleading whichrevealed his name to be “Manuel Sison” be tainted with deception since it was a mistake of Sison's part and he consistently tried to correct the same by pointing it out in court.

ELECTIVE OFFICIALS

A. Qualification and Election1. Frivaldo v. COMELEC 257 SCRA 727Facts: The dissenting opinion by Justice Davide here is both prophetic and ironic

because he spoke that sovereignty cannot be fragmentized because such fragment cannot betreated as a whole. Davide was talking about the rule that the popular will of the people (of Sorsogon) in electing Juan Frivaldo as governor should not be frustrated since he garnered themost votes. Yet Frivaldo won under a cloud of doubt because he may not have legallyreacquired his citizenship in time for the elections. To allow Frivaldo as governor just becausethe popular will of the electorate should not be frustrated – but setting aside the rule of law inthe process – would be anarchy. Davide said (How ironic that it was Davide himself who sworein GMA as President during EDSA II)

The majority opinion however, fortunately or otherwise, is the prevailing rule,

Frivaldo filed his certificate of candidacy for governor on March 20, 1995. Raul Lee, the eventualsecond placer, filed a petition with the COMELEC to disqualify Frivaldo because he was not yeta Filipino citizen at the time. The COMELEC ruled in favor of Lee but since Frivaldo moved for reconsideration, his candidacy continued. Frivaldo eventually topped the elections but on June30, 1995, the COMELEC acting on Lee's petition, proclaimed Lee as governor.

A week later, Frivaldo filed a petition claiming that on June 30, 1995 (day of Lee'sproclamation), he took his oath of allegiance as a Filipino citizen after his August 17, 1994petition for repatriation has been granted. The COMELEC thus proclaimed Frivaldo as winner.

Lee contends: 1. that Frivaldo's disqualification due to his lack of citizenship is acontinuing condition and rendered him ineligible to run for governor; and 2. the allegedrepatriation of Frivaldo cannot be retroactive.

Held: Lee is wrong (or maybe, wronged). Reasons:

1. Under Sec. 39 of the LGC of 1991, there is no showing that a candidate for anelectoral position must be a Filipino citizen at any particular date and time. Admittedly, there was

the objection that since a candidate must have been a registered voter beforehand, he musthave therefore possessed Filipino citizenship in order to become a registered voter. The Courtgave an explanation – that the qualification of citizenship for a registered voter and that for acandidate are separate. The registration requirement of a candidate moreover, is for the purposeof registering him as a voter in the area or requirement of a candidate moreover, is only for thepurpose of registering him as a voter in the area or territory he seeks to govern. He does notactually have to vote (Ang layo! The issue is citizenship, not voting. The issue of being aregistered voter was merely raised to bolster the claim that the qualification of citizenship is acontinuing one and thus cannot be acquired at a later time. The Court is saying, “Run now,acquire citizenship later,” which is lousy. Is this the way we treat our precious citizenship?)

2. The alleged repatriation of Frivaldo can be retroactive. PD 725 declares thatrepatriation creates a “new right” in order to cure a defect in the existing naturalization law. InFrivaldo's cause he was stateless at the time he took his Filipino oath of allegiance since in hiscomment, he has long renounced his American citizenship (a self serving statement). Moreover

since he ran for governor several times prior to 1995, he necessarily must have taken theFilipino oath of allegiance several times as well, which is another indication of renunciation of his



American citizenship (Davide countered that it is the US, not Frivaldo, who decides who is andwho is not her nationals, a principle in international law). Therefore, to prevent prejudice toFrivaldo by letting him remain stateless for a substantial period of time while in the meantimebeing deprived of his rights, it is clear then that PD 725 was intended to be retroactive. In short,Frivaldo's repatriation retracted to Aug 17, 1994, the day he filed his application for such and not

just on June 30, 1995.

2. Salomon v. NEA 169 SCRA 507Facts: Natividad Salomon was a Director for the La Union Electric Corporation

(LULECO). Because she was also a Barangay Captain of Natividad, Naguilan, La Union, theMinister of Local Government of La Union appointed her as a member of the sangguniang

Panlalawigan of La Union. The National Electrification Administration, however, disqualified her from further acting as LULECO director by authority of Sec. 21 of PD 269 which says, “Electiveofficers of the government, except barrio captain and councilors, shall be ineligible to becomeofficers and/or directors of any (electric cooperative).” (Section 21 PD No. 269). The legalprovision is also incorporated in section 3, Article IV of the LULECO's by – laws which runs: “Nopersons shall be eligible to become or to remain a board member of the cooperative who holdsan elective office in the government above the level of a barangay captain.”

Salomon simply argued that she is not an elective officer but an appointive officer asthe facts above show. Is she therefore exempt form the prohibition?

Held: No, the spirit of the law would be undermined – that incumbents of elective offices beprevented form exerting political influence and pressure on the management of the cooperative.The spirit of the law is as much a part of what is was written (wow).

B. Vacancies and succession

1. Permanent Vacancies* Sec 44. Permanent vacancies in the office of the governor, vice – governor, mayor and vice mayor.a. If a permanent vacancy occurs in the office of the governor or mayor, the vice

governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancyoccurs on the office of the governor, vice – governor, mayor, or vice – mayor as the case maybe. Subsequent vacancies in the said office shall be filled automatically by other sangguniangmembers according to their ranking as defined therein.

b. If a permanent vacancy occurred in the office of the punong barangay, the highestranking sangguniang barangay member or, in the case of his permanent inability, the secondhighest ranking sanggunian member shall become the punong barangay.

c. A tie between or among the highest ranking sangguniang members shall beresolved by the drawing of lots

d. The successors as defined herein shall serve only the unexpired portions of their predecessors.

For purposes of this chapter, a permanent vacancy arises when an elective localofficial fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed fromoffice, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this chapter, ranking in the sanggunianshall be determined on the basis of the proportion of votes obtained by each winning candidateto the total number of registered voters in each district in the immediately preceding localelection.

* Sec 45. Permanent vacancies in the sangguniana. Permanent vacancies in the sanggunian where automatic successions provided

above do not apply shall be filled by appointment in the manner provided:

1. The President, thru the Executive Secretary, in the case of the SangguniangPanlalawigan and the Sanggunian Panlungsod of highly urbanized cites andindependent component cities;

2. The governor, in case of the sangguniang panlungsod of component cites and thesangguniang bayan

3. The city or municipal mayor, in case of the sangguniang barangay, uponrecommendation of the sangguniang bayan concerned

b. Except for the sangguniang barangay, only the nominee of the political party under which thesangguniang member concerned had been elected and whose elevation to the position nexthigher in rank created the last vacancy in the sanggunian shall be appointed in the same

manner herein provided. The appointee shall come form the same political party as that of thesangguniang member who caused the vacancy and shall serve the unexpired term of the vacantoffice. In the appointment herein mentioned a nomination and a certificate of membership of theappointee from the highest official of the political party concerned are conditions sine qua nonand any appointment without such nomination shall be null and void and shall be a ground for administrative action against the official thereof.

c. In case the permanent vacancy in the representation of the youth and barangay in thesanggunian, said vacancy shall be filled automatically by the official next in rank by theorganization concerned

2. Temporary Vacancies* Section 46 Temporary vacancies in the office of the local chief executive

a. When the governor city or municipal mayor or punong barangay is temporarilyincapacitated to perform his duties for physical or legal reasons such as but not limited to, leave

of absence, travel abroad, suspension from office, the vice-governor, city or municipal vice-mayor or the highest ranking sangguniang barangay member shall automatically exercise thepowers and perform the duties of the local chief executive concerned except the power toappoint, suspend, or dismiss employees which can only be exercised if the period of thetemporary incapacity exceeds for 30 working days

b. Said temporary incapacity shall terminate upon submission to the appropriatesanggunian of a written declaration by the local chief executive concerned that he has to returnback to office. In cases where the temporary incapacity is due to legal causes the local chief executive concerned shall also submit necessary documents that said legal causes no longer exist.

c. When the incumbent local chief executive is traveling within the country but outsidehis territorial jurisdiction for period not exceeding 3 consecutive days, he may designate inwriting an officer-in-charge of the said office. Such authorization shall specifies the powers and

functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees

d. In the event, however, that the local chief executive concerned fails or refuses toissue such authorization, the vice-governor, the city or municipal vice-mayor, or the highestranking sangguniang barangay member, as the case may be, shall have the right to assumepowers, duties and function of the said office on the 4 th day of absence of the said local chief executive, subject to the limitation provided in subsection (C) hereof.

e. Except as provided above the local chief executive in no case authorized any localofficial to assume the powers, duties and functions, other than the vice-governor, the city or municipal vice-mayor, the highest sangguniang barangay member, as the case may be.

3. Resignation* Article 82 IRR. Resignation



a. Resignation of elective local officials shall be deemed effective only uponacceptance of the following authorities:

1. By the President, in the case of governor and vice-governor, mayors andvice-mayors of highly urbanized cities, independent component cities andmunicipalities within the Metro Manila and other metropolitan politicalsubdivisions as may be created by law.

2. By the governor, in case of municipal mayor, municipal vice-mayors, mayorsand vice-mayors of component cities

3. By the sanggunian concerned, in the case of sanggunian members: and4. By the city or the municipal mayor, in the case of barangay officials

b. The DILG shall be furnished copies of the letters of the resignation letters of

elective local officials together with the action taken by the authorities concerned

c. The resignation shall be deemed accepted if not acted upon by the authorityconcerned within 15 days from receipt thereof

d. Irrevocable resignations by sanggunian members shall be deemed accepted uponpresentation before an open session of the sanggunian concerned and duly entered in itsrecords. This provision shall not apply to sanggunian members who are subject to recallelections or to cases where existing laws prescribed of acting upon such resignations.

1. Panis v. Civil Service Commission 229 SCRA 589Facts: The Cebu City Medical Center (CCMC) is a government hospital of Cebu City.

One day, a new office in said hospital was created by virtue by a valid reorganization – theAssistant Chief of Hospital for Administration. Two candidates for the appointive positioncropped up. Jaime Panis and Bella Veloso, Panis loved to crow about his seniority status andthought he would be chosen for the position. However, the city mayor appointed Veloso, Panisnow claims that the appointment of Veloso was made in violation of law, existing civil servicerules and established jurisprudence because the seniority and next in rank rules weredisregarded.

Held: Panis is wrong. First, even if granting that Veloso was originally an outsider asshe came from the private sector, it will not prohibit her employment as long as she has her civil service eligibility. Second, the next rank rule applies only in cases of promotion. Theposition being fought was newly created. Assuming however, that said position could only befilled up through promotion, still the next in rank rule is not mandatory – it nearly givespreferential treatment. Ultimately, the power to appoint lies within the discretion of the localchief executive vested with the power, provided that appointee possesses the minimumrequirements provided by law.

2. Menson v. Petilla 197 SCRA 251Facts: For a time, the province of Leyte had not proclaimed any governor. So on

February 16, 1988, the secretary of local government appointed vice-governor Leopoldo Petillaas acting governor of the province of Leyte.

Now the position of vice-guy was vacant. The secretary of local government thusappointed Aurelio Menson, a senior member of sangguniang panlalawigan as vice-governor.

Everything would have been fine except for one thing: the LGC of 1983 does notprovide for succession of the office of the vice-governor (even the LGC of 1991 as well). Still,Menzon did serve for more than a year as vice-governor.

On July 7, 1989, after some serious debate on the legality of Menson's appointment,the sangguniang panlalawigan issued a resolution holding invalid the appointment of Menson asvice-governor. Their reasoning: legally speaking, there is no vacancy in the office of the vice-governor cause no law recognizes its existence. And granting that such vacancy legally exists,the law does not authorize secretary of local government to have an appointment thereto. As aresult, poor Menson was not paid emoluments attached to his office as vice-governor.

Was there really a vacancy? Is Menson entitled to the emoluments?

Held: 1. Menson was appointed precisely to avoid such scenario. Besides, the law onpublic officers is clear on the matter. There is no vacancy whenever the office is occupied by alegally qualified incumbent. In a scenario there is a vacancy when there is no person lawfullyauthorized to assume and exercise at present the duties of the office.

Applying the definition of vacancy in this case, it can be readily seen that the office of the vice-governor was left vacant when the duly elected vice-governor Leopoldo Petilla wasappointed acting governor. In the eyes of the law, the office to which he was elected was leftbarren of a legally qualified person to exercise the duties of the vice-governor

2. It may be noted under commonwealth act no. 588 and the revised administrativecode of 1987, the President is empowered to make temporary appointments in certain public

offices, in case of any vacancy that may occur. Admittedly, both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the localgovernment code and in the best interest of public service, the SC saw no-cogent reason whythe procedure thus outlined by the two laws may not be similarly applied in the present case.Petilla et. al. contend that the provincial board is the correct appointing power. This argumenthas no merit. As between the President who has supervision over local government as providedby law and the members of the board who are junior to the vice-governor, the SC has noproblem ruling in favor of the president, until the law provides otherwise.

3. In view of the foregoing, Menson's right to be paid the salary attached to the officeof the vice-governor is indubitable. And, even granting that the President, acting through thesecretary of local government, possesses no power to appoint the petitioner, at the very least,the petitioner is de facto officer entitled to compensation.

4. The SC explained that the vacancy must always be filled, in this wise: “A vacancycreates an anomalous situation and finds no approbation under the law for it deprives theconstituents of the right of the representation and governance in their own local government. Ina republican form of government, the majority rules through their chosen few, and if one of themis incapacitated or absent, etc, the management of governmental affairs, may be hampered.Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the governor or the vice-governor is missing”

3. Sangguniang Bayan of San Andres, Catanduanes v. CA 284 SCRA 276Facts: Augusto Antonio was a barangay captain of Sapang Palay, San Andres,

Catanduanes in March 1989. This guy later became president of the Association of BarangayCouncils or ABC. Thanks to the LGC of 1983, his position also entitles him to be a member of the sangguniang bayan of the Municipality of San Andres.

Meanwhile, the election for president of the Federation of the Association of BarangayCouncils (ABC) was for the municipality. FABC was for the province was declared void for lackof quorum so the provincial council was forced to reorganize. As a result, the DILG secretary,in recognition of Antonio as a power hungry politician, designated him as a temporary member of the Sangguniang Panlalawigan. Nenito Aquino, the ABC vice-president took his place.Antonio however, never questioned Aquino as his replacement. Antonio tendered hisresignation from the sangguniang bayan (but not as ABC president) and would later on servethe sangguniang panlalawigan for 2 years.

Some time afterwards, the election for president of FABC above quoted, which wasonce declared void, was reversed by the SC. Also, was found to unqualified for membership inthe Sangguniang Panlalawigan so he got promptly kicked-out.

A year passed. Then Antonio heard that Aquino resigned from the presidency of theABC. Antonio now wants his old job back as ABC president. The Sangguniang Bayan refusedto take him back, saying he resigned from the Sangguniang Bayan a long time ago. Antonioreplied that the third requirement for his valid resignation – acceptance by the president or hisalter ego was missing. Moreover, if his resignation was valid he did not resign as ABCpresident – and said position still carries with it the benefit of being an ex-officio member of theSangguniang Bayan. The Sangguniang Bayan countered that he either did one of two things –resignation or abandonment of his old post.



Held: Antonio did not effectively resign but he did abandon his post. Reasons:1. Resignation as the “Act of giving up or the act of an officer by which he

declines his office and renounces the further right to use it. It is an expression of the incumbentin some form expressed or implied or the intention to surrender renounce and relinquish theoffice and the acceptance by competent and lawful authority.” To constitute a complete andoperative resignation from public office, there must be: a. an intention to relinquish a part of theterm; b. an act of relinquishment; and c. an acceptance by the proper authority. The last one isrequired by reason of Article 238 of the Revised Penal Code.

Antonio did not effectively resign because the third element is missing. While it is truethat the LGC is silent as to who shall accept the resignation of a Sanggunian Bayan member,

jurisprudence has held that in the absence of statutory provisions as to whom resignations

shall be submitted, the appointing person or body shall receive the resignation. The presidentor his alter ego is the appointing person in this case and there was no evidence that either of them have received Antonio's resignation.

2. Antonio however, abandoned his post. Abandonment of an office has been definedas the voluntary relinquishment of an office by the holder with the intention of terminating hispossession and control thereof. The following clearly manifest the intention of privaterespondent to abandon his position: 1. his failure to perform his function as member of theSangguniang Bayan. 2. his failure to collect the corresponding remuneration for the position, 3.his failure to object to the appointment of Aquino as his replacement in the SangguniangBayan, 4. his prolonged failure to initiate any act to re assume his post in the SangguniangBayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.

On the other hand, the following, the following overt acts demonstrate that he hadaffected his intention 1. his letter of resignation from the Sangguniang Bayan, 2. hisassumption of office as member of said Sanggunian Panlalawigan 3. his faithful discharge of his duties and functions as member of said Sanggunian and 4. his receipt of the remunerationfor such post.

While it was true that Antonio was designated as member of the SanggunianPanlalawigan – meaning his appointment there was merely to discharge duties in addition tohis regular responsibilities as a Sanggunian Bayan Members – still his express and impliedacts clearly indicate hi abandonment of the latter.

3. Lastly, Antonio, who remained ABC president, claims the legal right to be a member of the Sangguniang Bayan by virtue of Section 146 of BP Blg 337. However, his right thereto isnot self – executory, for the law itself requires another positive act an appointment by thePresident or the secretary of local government per EO 342. What Antonio could have done inorder to be able to re assume his post after Aquino's resignation was to seek a reappointmentform the President of the secretary of local government. By large, Antonio cannot claim anabsolute right to the office which. By his own actuations, he is deemed to have relinquished.

4. Gamboa Jr. v. Aguirre Jr. 310 SCRA 867Facts: In the 1995 elections, we have the following winners from Negros Occidental:

Rafael Coscolluela as governor; Romeo Gamboa as vice governor; and Marcelo Aguirre andJuan Araneta as Sangguniang Panlalawigan (SP). Now, under the LGC of 1991, the vicegovernor shall also be the officer of the SP. Keep this in mind later on.

The governor went away on an official trip abroad. Before he left, he designated vicegovernor as acting governor. So the vice governor became acting governor. But when vicegovernor Gamboa, who was now acting governor as well, tried to preside over SP sessions,some SP members resented and even filed a case in court to prohibit him from doing so. Thecourt even declared Gamboa as “temporarily legally incapacitated to preside over the sessionsof the SP during the period that he is the acting governor.” Was the trial court correct?

Held: Yes, if you'll look at the composition of the SP, no presence of the governor. canbe found. Since Gamboa became acting governor., he technically had given up his SPmembership notwithstanding him being still vice governor. since the LGC of 1991 is clear that

the composition of the SP should not have even the slightest hint of governor's presence – not

even his smell. What the law enumerates, the law necessarily excludes. An acting give smellslike a governor. For all other purposes however, Gamboa still remains as vice governor.

In such case, since the vice governor. cannot preside, the SP members present andconstituting a quorum shall elect a temporary presiding officer form among themselves (Sec49b, LGC)

C. Recall(See 69-75, LGC and Art 154 – 162, IRR)* Sec 69, LGC. By whom exercised . The power of recall for loss of confidence shall be

exercised by regular voters of an LGU to which the local elective official subject to such recallbelongs.

* Sec 70 Initiation of the recall process

a. Recall may be initiated by a preparatory recall assembly or by the registered votersof the LGU to which the local elective official to such recall belongs.

b. There shall be a preparatory recall assembly in every province, city, district andmunicipality which shall be composed of the following:

1. Provincial level. All the mayors, vice – mayors and sanggunian members of the municipalities and component cities2. City level: all punong barangay and sangguniang barangay members in thecity3. Legislative district level. In case where sangguniang panlalawigan membersare elected by district, all elective municipal officers in the district and in caseswhere sangguniang panlungsod members are elected by district, all electivebarangay officials in the district and4. Municipal level. All punong barangay and sangguniang barangay members inthe municipality.

c. A majority of all the preparatory recall assembly members may convene in sessionin a public place initiate a recall proceeding against any elective official in the LGU concerned.Recall of city, provincial and municipal officials shall be validly initiated through a resolutionadopted by a majority of all the preparatory recall assembly concerned during its session calledfor the purpose.

d. recall of any elective provincial, city, or municipal or barangay official may also bevalidly initiated on petition of at least 25% of the total number of registered voters in the LGUconcerned during the election which the local official sought to be recalled was elected.

1. A written petition for recall duly signed before the election registrar or his rep and inthe absence of rep of the petitioner and a rep of the official sought to be recalled and in a publiclace in the province, city or municipality or barangay as the case maybe, shall be filed with theCOMELEC thru its office of the LGU concerned. The COMELEC or its duly authorized rep shallcause the publication of the petition in a public and conspicuous place for a period of not lessthan 10 days nor more than 20 days for the purpose of ratifying the authenticity andgenuineness of the petition and the required percentage of voters.

2. Upon the lapse of the aforesaid period, the COMELEC or its duly authorize repshall announce the acceptance of candidates to the position and thereafter prepare a list of candidates which shall include the name of the official sought to be recalled.

*Sec 71 Election on recall . Upon filing of a valid resolution or petition for recall with theappropriate local office of the COMELEC, the Commission or its duly recognized rep shall setthe date of the election on recall, which shall be not later than 30 days after the filing of theresolution or petition for recall in the case of the barangay, city, or municipal officials and 45days in the case of provincial officials. The official officials sought to be recalled shallautomatically be considered as a duly registered candidate or candidates to pertinent positionsand like other candidates, shall be entitled to be voted upon.



*Sec 72 effectivity of recall. The recall of an elective local official shall be effective only upon thesecretion and proclamation of a successor in the person of the candidate receiving the highestnumber of votes cast during the election on recall. Should the official sought to be recalledreceive the highest number of votes, confidence in him is thereby affirmed and he shall continuein office.

*Sec 73 Prohibition form resignation. The elective local official sought to be recalled shall not beallowed to resign while the recall process is in progress.

*Sec 74 Limitations on recall

a. An elective local official may be the subject of a recall election only once during the term of hisoffice or loss of confidence.b. No recall shall take place within 1 year from the date of the official's assumption to office of 1year immediately preceding a regular local election.

* Sec 75. Expenses incidental to recall elections . All expenses incidental to recall elections shallbe borne by the COMELEC. For this purpose, there shall be included in the annual GeneralAppropriation Act a Contingency fund at the disposal of the COMELEC for the conduct of recallelections.

* Art 154 – 162, IRR. Exactly the same as above, but with addition of “Who may be recalled” (see below)

1. RequisitesIf there's such a thing as requisites of a recall, it's probably found buried in Section 69and 70 of the LGC of 1991. The requisites probably are:

a. Initiation, either thru direct action by the people or thru a preparatory recallassembly; andb. Election

2. Who may be recalled

• Art 155. IRR Who may be recalled. Any elective provincial, city, municipal or barangayofficial may be recalled for loss of confidence in the manner prescribed in this rule providedthat no recall may be instituted against said elective local official who have been the subjectof a previous recall election held during the same term of office.

•

3. Grounds for recallsLoss of confidence, which is a political question

4. When recall may not be heldSee Section 74, LGC of 1991

5. Procedure for recallSee Section 70, supra

6. Effectivity of recallSee Section 72, supra

1. Garcia v. COMELEC 227 SCRA 100Facts: Enrique Garcia was elected Governor of Bataan in the 1992 elections. Some

mayors, vice mayors and Sangguniang Bayan members of the 12 municipalities of Bataanhowever convened and constitute themselves into a Preparatory Recall Assembly to initiate therecall of Garcia. The PRA's first resolution calling for the recall of Garcia was however shot downby the SC because it was found that the backers of the PRA sent only selective notices to localofficials most likely sympathetic to their cause. The PRA thus cured this defect in their secondresolution. Scared, Garcia now assails the constitutionality of Section 70 of the LGC of 1991,

which allows a preparatory recall assembly to initiate a recall of an elective official. Garcia saysthat it’s highly possible that the dominant political party in government can use a recall as a tool

in ousting their incumbent opponents; 2) the RPA is not reflective of the people’s will; 3) the rightto initiate recall rests with the people itself.

Held: Garcia is wrong reasons:1) All powers are subject to abuse anyway. To deny power because it can be abused

by the grantee is to render government powerless and no people need a toothless government.This is the reason behind the presumption that public officials are actually performing their dutiesin good faith.

2) The PRA is merely a step in the recall process. The recall it self still has to besubmitted to the people for affirmation thru an election. The PRA is not the recall itself, thus itcannot be said to be reflective of the people’s will.

3) The PRA is also initiation of recall by the people themselves, although doneindirectly through their representatives. The reason for using PRA as a mode for initiating recallis because admittedly, initiating recall thru direct action by the people is difficult and expensive.

4) Davide’s dissent: the power to initiate recall includes the power not to initiate. Thepower to initiate becomes meaningless if another body is authorized to do it for the electorate.It’s not hard to see that in reality, it’s far easy get majority of the PRA to initiate a recallproceeding. In effect a small group can easily negate the power of the vast electorate to initiaterecall (therefore, the good justice is doubtful of the republican system of the government). Whatcongress should have done is to reduce the minimum 25% requirement down to 15 or 20%(which is good idea).

2. Evardone v. COMELEC 204 SCRA 464Facts: The guys here calling for a recall of an elective official failed because they

initiated the recall a bit too late.Felipe Evardone won as mayor of municipality of Sulat, Eastern Samar in the 1988

election. 2 years later, Alexander Apelado and friends filed a petition for the recall of Evardone.The COMELEC approved the signing of the said petition for recall.

There was some ballyhoo regarding a TRO issued by the SC retraining Apelado andfriends from proceeding of the signing of the petition, but that’s not important. What Everdonecomplaining about is that the COMELEC cannot formulate rules and regulations governing theprocedure of recall elections because according to the 1987 Constitution, Congress is supposedto pass a new local government code which would provide for the procedure in recall elections.Since such a code wasn’t passed at the time, the initiation for recall must fail because there’s noprocedure in existence to follow anyway.

Held: The initiation of recall must fail, but for a different reason.1) Its true tat the LGC of 1991 has yet to be passed. However, the LGC of 1983 (BP

337) was still in force in hat time as can be shown in the proceedings of the 1986 ConstitutionalCommission where the effectiveness of BP 337 was expressly recognized. BP 337 authorizesthe COMELEC to supervise and control recall elections and promulgate the necessary rules andregulations.

2) However, the SC promulgated this decision in 1991. The 1992 elections was only 7months away, BP 337 disallows the holding of recall elections one year immediately preceding aregular local election.

3. Paras v. COMELEC 264 SCRA 49Facts: Pati SK elections ba naman pinatulan ng recall.Danilo Paras won as Punong Barangay in the 1994 barangay elections of Pula,

Cabanatuan City. A petition for his recall as Punong Barangay was filed by the registered votersof the barangay. Paras managed to delay the holding of the recall elections 3 times (note thatthe term of a Punong Barangay is for 3 years only). The third attempt at a recall election wasslated for January 13, 1996. Paras gleefully noted that the recall action was barred byrepresentation as no recall shall take place. 1 year immediately preceding a regular election asmanaged by SEC.74(b), LGC of 1991.

Held: A Sangguniang Kabataan (SK) election is not a regular local election, at least

within the contest of Section 74 because said Section 74, when taken together as a whole, is



intended for elective positions with minimum terms of 4 years. Para’s interpretation of the statuteis too literal and absurd. The spirit, rather than the letter of the law, determines it’s contents.

However Para’s delaying tactics worked. The next regular elections concerning thebarangay office concerned is merely 7 moths away. Recall is no longer possible by virtue of same election 74(b). Para’s still merges as the winner (Moral lesson: Wag mo ng patulan angSK elections 3 taon lang naman natiis yan eh).

4. Mercado v. Board of Elections Supervisors of Ibaan, Batangas 243 SCRA 422Facts: Jose Mercado was proclaimed SK chairman of Barangay Mabalor, Ibaan

Batangas during the 1992 elections. His rival, Crisanto Pangilinan, filed a protest with the Boardof Elections Supervisors (BES) on the ground that some votes, were invalidated by the Board of

Election Tellers (BET) Chairman without insulting his fellow members. Pangilinan won in therecountMercado assailed in the authority of the BES act on the protest filed by his rival. He

said the ground created by Pangilinan was in the nature of an election protest properlycognizable by the Metropolitan or Municipal Trial Court (as mandated by Section 252 of theOmnibus Election Code) and not by some never heard BES, a body created by the COMELECthru its Resolution No. 2499.

The RTC dismissed Mercado’s complaint saying that Resolution No. 2499 of theCOMELEC did not vest in the RTC jurisdiction to try SK elections. Mercado then argued at theSC that Res. No. 2499 was null and void in the first place because SK elections are governed bythe Omnibus Election Code and not by some numb resolution passed without legal basis by theCOMELEC.

Held: Mercado is mistaken. Reasons:1) The SK election is not an election involving elective barangay officials within the

context of the Omnibus Election Code and the Constitution. The position of SK chairman is notinclude as one of the elective members of the Sangguniang Barangay (which consist of thepunong barangay and 7 regular sangguniang barangay members). An SK chairman is at bestmerely an ex-officer member of Sangguniang Barangay. Therefore, SK elections are notgoverned by the Omnibus Election Code.

2) Article 203 of the IRR of the LGC 1991 states that SK elections shall be governedby the rules promulgated by the COMELEC. Therefore, the BES, as a creation of COMELECRes. No. 2499, has legal authority to take cognizance of the SK election protest.

5. Claudio v. COMELEC 311 SCRA 388Facts: Jovito Claudio won as mayor of Pasay City in the 1998 elections. In May, 1999,

less than a year later, several barangay chairs gathered to discuss the filing of a petition for recall against Mayor Claudio and the Convening of the PRA. It took only less than 2 weeks for the members of the PRA to obtain a majority vote for the passing of a resolution calling for saidrecall.

Claudio however complained that what his opponents did was contrary to section 74of the LGC 1991, because of the word “recall” in said section should be interpreted not only tomean a recall election alone, but is also intended to include the convening of the PRA and thefilling by it of a recall resolution. If Claudio’s interpretation is correct, then his enemies may haveindeed violated the statutory prohibition that “no recall shall take place within 1 year from thedate of the official’s assumption to office” since the PRA did indeed convene less than a year from Claudio’s assumption into office.

Claudio also argued that the phrase “regular local election” in said Section 74(b)includes the election period for that regular election and not only the date of such election.

Held: Claudio is wrong. Reasons:1) The word recall in Section 74(b) refers to the recall election and not the preliminary

proceedings to recall. Section 74 speaks of limitations on “recall” which, according to section 69,is a power which exercised by the registered voters of an LGU. Since the voters do not exercisesuch right except in an election, it is clear that the initiation of recall proceedings is not prohibitedwithin the 1 year period provided.

2) Another reason why the initiation of recall proceedings is not prohibited within the 1year period provided in 74(b) is that to hold the otherwise would be to unduly restrict theconstitutional right of speech and of assembly of its members. Indeed, it would be wrong toassume that such assemblies will always eventuate in a recall election. To the contrary, theymay result in the expression of confidence in incumbent.

3) The election period is not included in the phrase “regular local election.” Claudio’sinterpretation would severely limit the period during which a recall election may be held. Such aninterpretation must be rejected because it would devitalize the right of recall which is designed tomake LGU’s more responsive and accountable

D. Local Initiative and Referendum (Sec. 120-127, Art. 133-153, IRR)

*Sec. 120, LGC. Local initiatives defined. Local initiative is the legal process wherebythe registered voters of an LGU may directly propose, enact, or amend any ordinance.

*Sec. 121. Who may exercise. The power of local initiative and the referendum maybe exercised by all registered voters of the provinces, cities, municipalities and barangays.

*Sec. 122. Procedure in local initiative.a) Not less than 1,000 registered voters in case of provinces and cities, 100 in case of

municipalities, and 50 in case of barangays, may file a petition with the sanggunian concernedproposing the adoption, enactment, repeal or amendment of an ordinance.

b) If no favorable action is taken thereon by the sanggunian concerned within 30 daysfrom its presentation, the proponents, thru their duly authorized representatives, may invoketheir power of initiative giving notice thereof to the sanggunian concerned.

c) The proposition shall be numbered serially from Roman numeral I. The COMELECor its designated representative shall extend assistance in the formulation of the proposition.

d) 2 or more propositions may be submitted in an initiative.e) Proponents shall have 90 days in the case of provinces and cities, 60 days in the

case of municipalities, and 30 days in the case of barangays, from notice mentioned insubsection (b) hereof to collect the required number of signatures.

f) The petition shall be singed before the election registrar, or his designated rep. inthe presence of the representative of the proponent and a rep. of sanggunian concerned, in apublic place in the LGU, as the case may be. Stations for collecting signatures must beestablished in as many places as may be warranted.

g) Upon the lapse of the period herein provided, the COMELEC, thru its office in theLGU concerned for their approve within 60 days from the date of certification by the COMELEC,as provided in subsection (g) hereof, 45 days in the case of municipalities, and 30 days in thecase of barangays. The initiative shall then be heard on the date set, after which the resultthereof shall be certified and proclaimed by the COMELEC.

*Sec. 123. Effectively of local propositions. If the proposition is approved by a majorityof a vote cast, it shall take effect 15 days after certification by the COMELEC as if affirmativeaction thereon had been position is considered defeated.

*Sec. 124. Limitations of local initiative.a) The power of local initiative shall not be exercised more than once a year.b) Initiative shall extend only to subjects or matters which are within the legal powers

of the sanggunian to enact.c) If at any time before the initiative is held, the sanggunian concerned adopts in to the

proposition presented and the local chief executive approves the same, the initiative shall becanceled. However, those against such action may, if they so desire, apply for initiative in themanner herein provided.

*Sec. 125. Limitations upon sanggunian. Any proposition or ordinance adopted thruthe system of initiative and referendum as herein provided shall not be repealed, modified, or amended by the sanggunian concerned within 6 months from the date approval thereof and maybe amended, modified, or repealed within 3 years thereafter by a vote of ¾ of its members:

Provided, that in case of barangays, the period shall be 18 moths after the approval thereof.



*Sec. 126. Local referendum defined. Local referendum is the legal process wherebythe registered voters of the LGUs may approve, amend or reject any ordinance enacted by thesanggunian.

The local referendum shall be held under the direction and control of the COMELECwithin the 60 days in case of provinces and cities, 45 days in case of municipalities and 30 daysin the case of barangays.

The COMELEC shall certify and proclaim the results of the said referendum.

*Sec. 127. Authority of courts. Nothing in this chapter shall prevent or preclude thepower courts from declaring null and void any proposition approved pursuant to this Chapter for

the violation of the Constitution or want of capacity of the sanggunian concerned to enact thesaid measure.

NOTE: Articles 133-153, IRR are roughly the same Section 120-127 above. However,we should take note of Art. 145, IRR, which basically states the number of signature required.

1) In a province or city – at least 10% of the registered voters therein, with eachlegislative district represented by at least 3 % of the registered voters therein.

2) In a municipality – at least 10% of registered voters therein, with each barangayrepresented by at least 3% of registered voters therein.

3) In a barangay – 10% of registered voters therein.

1. Garcia v. COMELEC 237 SCRA 279Facts: The Sangguniang Bayan (SB) ng Morong, Bataan passed Resolution No. 10

wherein agreed to the inclusion of the municipality of Morong as part of the Subic SpecialEconomic Zone in accordance with RA 7227

Enrique Garcia (who’s this guy? His name keeps popping out of nowhere) and friendsfiled a petition with the SB to annul the said resolution. When their petition went unheeded,Garcia resorted to the power of initiative under the LGC of 1991. The COMELEC however denied the petition for local initiative on the ground that under the LGC of 1991m the subject of local initiative refers only to an ordinance and not a solution. Is the COMELEC correct?

Held: No. and the SC made COMELEC pay by dumping tons of legal basis providingthat resolutions can also be the subject of local initiatives thus making the case as writtenunnecessarily long. Some reasons are:

1) Sec. 32 of Article VI of the Constitution says that initiative and referendum is asystem wherein the people can directly propose and enact laws or approve or reject any act or law. The word “act” makes it clear that resolutions are also included initiatives.

2) RA 6735 defines 3 system of initiative, one of them being initiative on locallegislation which included, among others, resolution.

3) In the LGC itself, Section 124 says, “Initiatives shall extend only to subjects or matters which are within the legal powers of the Sanggunian to enact.” Definitely, the scopes of Sanggunian’s powers include resolutions which make them covered under initiatives.

E. Disciplinary Action (Art. 124, IRR)*Article 124. Grounds for Disciplinary Action.a) An elective local official may be censured, reprimanded, suspended or removed

from office after due notice and hearing on the following grounds:1) Disloyalty to the republic of the Philippines.2) Culpable violation of the Constitution.3) Dishonesty, oppression, misconduct in office, gross negligence or

dereliction of duty.4) Commission of any offense including moral amplitude or an offense

punishable by at least prison mayor which is from 6 years and 1 day to 12 years imprisonment.5) Abuse Authority6) Unauthorized absence of 15 consecutive working days, in the case of the

local chief executive and 4 consecutive sessions in the case of members of the sanggunian

panlalawigan, sanggunian panlungsod, sangguniang bayan and sangguniang barangay.

7) Application for, or acquisition of, foreign citizenship or residence or thestatus of an immigrant of another country; and

8) such other grounds as may be provided by the Code, RA 6713, RAC of 1987, RPC and all other applicable general and special laws.

b) An elective local official may be removed from office on the grounds enumerated inparagraph a, of this article by order of the proper court, or the disciplinary authority whichever first acquires jurisdiction to the exclusion if the other.

1. Grounds for Suspension and Removal (Sec. 60, LGC)*Sec. 60 Grounds for disciplinary action. (Same as Article 124, IRR above).

1. Espiritu v. Melgar 206 SCRA 256Facts: A certain Ramir Garing filed a complaint against Mayor Nelson Melgar of

Naujan, Oriental Mindoro, charging him with grave misconduct, abuse of authority, oppression,culpable violation if the Constitution (no kidding, Garing practically threw the revised penal codeat him). Garing claimed the mayor punched and kick him willfully unlawfully and feloniously (youknow, the usual “I’m innocent, believe me” way of introducing a complaint) while the latter wasdelivering a public speech. After evaluating the complaint, Governor Benjamin Espiritu had themayor preventively suspended for 60 days. Upon petition by the mayor, the RTC of OrientalMindoro issued a writ of preliminary injunction preventing the governor’s order of suspension.Was the injunction proper?

Held: No, Reasons:1) The provincial governor of Oriental Mindoro is authorized by the law to preventively

suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist:

a. When there is reasonable ground to believe that the respondent hascommitted the act or acts complained of.

b. When the evidence of the culpability is strong.c. When the gravity of the offense so warrants; or d. When the continuance in office of the respondent could influences the

witnesses or pose a threat to the safety and integrity if the records andother evidence. (LGC of 1893).

2) As a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and the sufficiency of the cause. So,unless a flagrant abuse of the exercise of that power is shown, public policy and a becomingregard for the principle of separations of powers demand that the action of said officer or bodyshould be left undisturbed.

2. Llamas v. Orbos 202 SCRA 844Facts: Mariano Un Ocampo III was the incumbent governor of the province of Tarlac

in 1989. he was charged by the vise governor Rodolfo Llamas of violating RA 3019, the Anti-Graft and Corrupt Practices Act Specifically, he was charged with executing a loan agreementwith a non-stock and a non-profit organization headed by the governor himself as chairmanwherein said agreement was grossly inimical to the interest of the Provincial Government(because the loan, among others, did not provide for interest and security). The Department of Local Government Secretary Oscar Orbos, after reviewing the governor’s case, slapped a 90days suspension (not preventive suspension) on the hapless governor. Thereafter, the visegovernor took over as acting governor.

The governor filed a motion for reconsideration. However the DLG secretary, in thespirit of Christmas perhaps, filed a resolution granting executive clemency to the governor byreducing his sentence to that portion had already served.

The vise governors now question the legality of issuing executive clemency or pardonto the administrative case when the same should apply only to criminal cases.

Held: Llamas is incorrect. The 1987 Constitution makes no distinction as to criminal or administrative cases. The phrase “after conviction of final judgment” does not make explicit

reference to criminal cases fact, the Constitution does not allow pardon in impeachment cases.



That the Constitution does not make a same exemption to the administrative cases shows thatexecutive clemency can be granted in administrative cases.

Section 43 of PD 807 also recognizes executive clemency in administrative cases “inmeritorious case by commutation or removal”

Padilla’s Dissent: the spirit and intent of pardons is to afford relief from theenforcement of the criminal which imposes penalty and which appears unduly harsh. To grantpardons to release private obligations prevent or destroy civil r ights is plain abuse.

3. Aguinaldo v. Santos 212 SCRA 768Facts: Rodolfo Aguinaldo was elected governor of Cagayan in 1988. Two years later,

after due no hearing, the Department of Local Government Secretary Luis Santos foundAguinaldo’s guilty of disloyalty to the Republic and of culpable violation of the Constitution.Santos ordered Aguinaldo’s removal from of Pending criminal charges of disloyalty to therepublic, under Art. 137, RPC were also lodged against him:

Aguinaldo questioned the legality of his removal with the SC. In the meantime,Aguinaldo filed certificate of candidacy for governor again. 3 disqualification cases were filedagainst him on the ground he was removed from office. Still, he was allowed to run and won alandslide victory.

Held: Since Aguinaldo was re-elected as governor, the pending administration caseagainst regarding his removal from office was rendered moot and academic. The reason is thatthe electorate clearly forgiven him for the administrative misconduct he committed during the lastterm. This is the rule along with the theory that each term is separate from other terms, and thatthe reelection to office operates as a condonation of the officer’s misconduct to the extent of cutting of the right to remove him therefore.

The foregoing rule, however, finds no application to criminal cases pending againstpetitioner for acts he may have committed during the failed coup.

NOTE: Under the qualified agency doctrine, alter egos of the President have thepower to discipline, suspend or remove elective officials under the grounds provided by law.

4. Yulo v. CSC 219 SCRA 470Facts: Back in November 24, 1986, Officer-In-Charged Apolonio Elasigue of the

municipality of Calamba, Laguna terminated the services of Teofilio Mamplata and 43 other employees of said municipality. The basis municipality for the termination was reorganizationand the approval of a new starting pattern.

At first, the later-Agency Review Committee created under the Freedom Constitutionreviewed the case of the said employees.

The Merits System Protection Board (MSFB) of the CSC handled the case of the 43employees. Pending the disposition of the case however, Elasigue last in the mayoralty race toJesus Miguel Yulo.

Yulo was just as unsympathetic as Elasigue regarding the plight of the dismissedemployees. However, the MSFB found no sufficient evidence to prove the guilt of the dismissed

employees (the charges against them were “questionable integrity” as insinuated by Yulo) andordered the reinstatement of some 28 of them (which was reduced further to 21 due to the deathand/or reemployment of some of them) and payment of their back wages. The CSC affirmed theMSFB’s decision.

Yulo now tried a different tack: that the termination of employment of the saidemployees was justified under a transitory provision of the Freedom Constitution which states,“All elective and appointive officials under the 1973 Constitution shall continue to office untilotherwise provided by the proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within the periodof 1 year from February 25, 1986.”

Held: The argument is devoid of merit. On his narration of facts, Yulo himself admittedthat private respondent’s services were terminated pursuant to the reorganization and approvalof the new staffing pattern of Calamba on November 3, 1986. Yulo’s argument to the effect thatrespondents were separated from the service by virtue of the Freedom Constitution or Executive

Order No. 17 is palpably an afterthought. It may be reiterated here that the main reason why the

then inter-Agency Review Committee refused to take cognizance of the instant case wasbecause Mamplata et al were not removed pursuant to Executive Order No. 17, such declarationby the said Committee destroys whatever argument Yulo tried to build using the FreedomConstitution as a basis.

More importantly, it is undeniable that private respondent’s employment with themunicipality was a lawfully terminated. On this score alone, the dismissed employees ought toand must be reinstated. Illegal removal of career civil service employees in violation of their Constitutional right to security of tenure will not be condoned under the guise of reorganization.

5. Grego v. COMELEC 274 SCRA 461Facts: Back in October 31, 1981, Humberto Basco was removed from his position as

Deputy Sheriff by the SC itself after a finding of serious misconduct in an administrative casefiled against him. The dispositive portion of the decision is important in this case so its givenspecial mention: “Wherefore, finding the respondent Deputy Sheriff Humberto Basco of the CityCourt of Manila guilty of all retirement benefits and with prejudice to reinstatement to anyposition in the national or local government, including its agencies and instrumentalities or government-owned or controlled corporations.”

But this guy doesn’t give up in the face of adversity. He ran for councilor 3 times – in1988, 1992 and 1995 – in the City of Manila and won each time. His second and thirdcampaigns as councilor was however mired by disqualification lawsuits from left and right as hissins from 1981 came back to haunt him.

Particularly, his third campaign for councilor ran into some serious legal obstacle. Oneof them come from Sec. 40(b) of the LGC of 1991 which states that persons running for anyelective office are disqualified if they were previously removed from office as a result if anadministrative case. Another was that his proclamation as councilor for the third time wasallegedly void because his disqualification case was still pending. Lastly, it seemed that the SCdecision from 1981 forever barred him from seeking public office. Will Humberto “Lucky” Bascoovercome the odds and win?

Held: Yes, Reasons:1) The LGC of 1991 cannot be applied retroactively, since no provision allows for it.

Basco misgivings happened way back in 1981 long before the inception of the LGC.2) The suspension of the proclamation of a winning candidate on the ground of a

pending disqualification case lies within the discretion of the COMELEC according to itsevaluation of the evidence (Section 6, RA 6646). The findings of facts and conclusions of theCOMELEC, absence of a showing of grave, abuse of discretion, must be generally respectedand even given finality. Besides, absent and any determination of irregularity in the electionreturns, it is a mandatory ministerial duty of the Board of Canvassers to count the votes anddeclare the result.

3) The 1981 SC decision uses the word “reinstatement” (see above). Rules andregulations issued by the Civil Service Commission defined reinstatement as the reappointmentof a person who was previously separated from the service x x x. Obviously, Basco is not

seeking to get reappointed but to get elected and re-elected. He is not therefore barred fromseeking public office.

2. Procedure (Sec. 84, LGC)*Sec. 84. Administrative discipline. Investigation and adjudication of administrative

complaints against appointive local officials and employees as well as their suspension andremoval shall be in accordance in the civil service law and rules and order pertinent laws. Teresult of such administrative investigations shall be reported to the CSC.

3. Preventive Suspension (Section 63-64, 85-87, LGC, Art. 127, IRR)Read also section 42, PD 807 (now Sec. 52, RAC of 1987)

*Section 63. Preventive Suspension.a) Preventive Suspension may be imposed:

1) By the president, if the respondent Is an elective official of a province,

highly urbanized or independent component city.



2) By the governor, if the respondent is an elective official of a componentcity or municipality.

3) By the mayor, if the respondent is an elective official of a barangay.b) preventive suspension may be imposed at any time after the issues are joined,

when the evidence of guilt is strong, and given the gravity of the offense, there is greatprobability that the continuance in the office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: provided, that anysingle preventive suspension of local elective officials shall not extend beyond 60 days: providedfurther, that in the event that several administrative cases are filed against and elective official,he cannot be preventively suspended for more than 90 days within the single year on the sameground or grounds existing and known at the time of the first suspension.

c) Upon expiration of the preventive suspension, the suspended elected official shallbe deemed reinstated in office without prejudice to the continuation of the proceedings againsthim, which shall be terminated within 120 days from the time he as formally notified of the caseagainst him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted incomputing the time of termination of the case.

d) Any abuse of the exercise of the power of preventive suspension shall be penalizedas abuse of authority.

*Sec. 64. Salary of respondent pending suspension. The respondent officialpreventively suspended from office shall receive salary or compensation including suchemoluments accruing during such suspension.

*Sec. 85. Preventive suspension of appointive local officials and employees.a) the local chief executives may preventively suspend for a period not exceeding 60

days any subordinate official or employee under his authority pending investigation if thecharged against such officials or employee involves dishonesty, oppression or grave misconductor neglect in the performance of duty, or if there is reason to believe that the respondent is guiltyof the charges which would warrant his removal from the service.

b) Upon expiration of the preventive suspension, the suspended official or employeeshall be automatically reinstated in office without prejudice to the continuation of theadministrative proceedings against him until its termination. If the delay in the proceeding of thecase is due to the fault, negligence or request of the respondent, the time of the delay shall notbe counted in the computing of the period of the suspension herein provided.

*Sec.86. Administrative investigation. In any LGU, administrative investigation may beconducted by a person or committee duly authorized by the local chief executive. Said person or employee shall conduct hearings on the cases brought against appointive local officials andemployees and submit their findings and recommendations in the local chief executiveconcerned within 15 days from the conclusion of the hearings. The administrative cases hereinmentioned shall be decided within 90 days from the time the respondent is formally notified by

the charges.

*Sec. 87. Disciplinary charges. Except other wise provided by the law, the local chideexecutive may impose the penalty of removal from service, demotion in tank, suspension for notmore than 1 year without any fine in an amount not exceeding 6 months salary, of reprimandand other wise disciplined subordinate officials and employees under his jurisdiction. If thepenalty imposed is suspension without pay for not more than 30 days, the decision shall beappealable to the CSC, which shall decide the case within 30 days from receipt thereof.

*Article 127, IRR. Exactly the same as Sec. 63, LGC

*Sec 52, RAC of 1987. Lifting of preventive suspension pending administrativeinvestigation (Book V, Subtitle A on CSC, chapter 6). When the administrative case against theofficer or employee under preventive suspension is not finally decided by the discipliningauthority within the period of 90 days after the date of suspension of the respondent who is not a

presidential appointee, the respondent shall be automatically reinstated in the service: provided,

that when the delay in disposition of the case is due to the fault, negligent or the petition of therespondent, the period of delay shall not be counted in computing the period of suspensionherein provided.

Kinds of preventive suspension (with regards to civil service employees who arecharged with offense punishable with suspension or removal) (revised administrative code of 1987)

1) Preventive suspension, pending investigation.2) Preventive suspension pending appeal, if the penalty imposed by the

disciplining authority suspension or dismissal.

I. Garcia v. Mojica 314 SCRA 207Facts: On May 7, 1988, Cebu city mayor Alvin Garcia signed a contract with F.E.

Zuellig for the supply of asphalt to the city, 4 days later national elections were held and Mayor Garcia won reelection contract, in the other hand, took effect on September 1998.

On march, 1999, news reports came out that the said purchase of asphalt wasanomalous investigation but the special prosecution officer of the office of the Ombudsmanrevealed that (1) the contract for supply of asphalt to Cebu city was designed to favor F.E.Zuellig, (2) the amount quoted on the contract was too expensive compared for the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularlyconsidering that the amount was fixed in dollars and was payable in pesos, thus exposing thecity government to the risk attendance to a fluctuating exchange rate, and (3) the interest of thecity under the administrative cases be filed against Mayo Garcia.

The deputy Ombudsman handled Garcia’s case and recommended 6 mothspreventive suspension against the latter – the maximum imposable under RA 6770, theOmbudsman Law. Garcia now raises the following issues:

1. What is the effect of the reelection of the petitioner on the investigation of acts donebefore his reelection? Did the Ombudsman for Visayas gravely abuse his discretion inconducting the investigation of petitioner and ordering his preventive suspension?

2. Assuming that the ombudsman properly took cognizance of the case, what lawshould apply to the investigation being conducted by him, the LGC R.A 7160 of the ombudsmanlaw (R.A 6770)? Was the procedure in the law properly observed?

3. Assuming further that the ombudsman has jurisdiction, is the preventive suspensionof the petitioner based on “strong evidence” as required by law?

Held: The answers are:1. Garcia cannot anymore be held administratively liable for an act committed during a

previous term. The meeting of minds to the contract, especially with regards to the stipulationdeemed prejudicial to the city has already occurred during the mayor’s previous term. It hardlymatters that the benefits of the contract are to be delivered during Garcia’s current term.

However, the ombudsman did not commit the grave abuse of discretion. It wasGarcia’s misfortune that the office of the ombudsman, as empowered by the constitution,

decided to investigate his case on its own initiative (Article XI, Sec. 13 1987 Constitution). Theombudsman derives his authority to assume jurisdiction over Garcia’s case under theconstitution and RA 6670, the ombudsman law. And the power of the ombudsman topreventively suspend an official subject to its administrative investigation is expressly providedby RA 6670 as well.

2. Either law can apply to Garcia’s case but since the ombudsman decided, its owninitiative, to investigate Garcia, RA 6670 must prevail. There is no violation of the LGC of 1991because RA 6670 is a special law distinct from that of the LGC and therefore, administrativecomplaints filed under RA 6670 must be treated under its provisions and not with that of theLGC.

3. The news reports describing in detail Garcia’s misdeeds constituted strongevidence to preventively suspend Garcia. However, the actual documentary evidence wasobtained after the mayor had already been preventively suspended. Considering that thepurpose of preventing suspension is to enable the investigating authority to gather documentswithout intervention from petitioner, it can now be said that the purpose in preventively

suspending Garcia has already been achieved since actual documentary evidence has already



been discovered. The order preventively suspending Garcia is deemed too harsh and should beshortened to the period he has already served.

NOTE: duration of preventive suspension under the following laws:1) LGC of 1991 – maximum of 60 days2) RA 6670 (Ombudsman Law) – maximum of 6 moths3) RA 3019 (Anti-Graft and Corrupt Practices Act) – maximum of 90 days.The LGC of 1991 applies to elective officials and employees but, of applicable, a

special law independent and distinct from the LGC can be applied to them instead. The 1987Revised Administrative Code applies to appointive officials and employees.

2. Gonzaga v. Sandiganbayan 201 SCRA 417Facts: Corazon Gonzaga, a public school principal of Malabon Municipal High School,

was charged with malversation of public funds before the Sandiganbayan. The Sandiganbayanpreventively suspended Gonzaga under RA 3019, but her suspension was decreed as indefinite.

Held: Preventive suspension of indefinite duration is rejected by the Constitution as itraises, at the very least, questions of denial of due process and equal protection of the law, inother words, preventive suspension is justifiable for as long as its continuance is for areasonable length of time, secondly, preventive suspension is not a penalty, a person under preventive suspension, especially in a criminal action, remains entitled to the Constitutionalpresumption of innocence as his culpability must still be established, thirdly, the rule is that everylaw has in its favor the presumption of validity, and that to declare a law unconstitutional, thebasis for such a declaration must be clearly established.

The rule is that a person charged under RA3019 or PD 807 serve a maximum of 90days preventive suspension only.

3. Garcia v. CA 306 SCRA 287Facts: this area is an offshoot from the 1991 case of Manila Public School Teachers

v. Laguio. In that case, many teachers were fired because of their participation in a strike whichwas declared by the SC to be illegal. However, Nicanor Margallo and 3 other teachers were ableto survive the carnage of dismissals. These survivors however, although they are notparticipating in the strike, did not report during the same.

The DECS secretary preventively suspended the survivors for 90 days. Later in theywere found guilty as charged and their penalties ranged from dismissal to 6 moths suspension.The survivors appealed with the Merit System and Protection Board (MSPB) and later on, withthe CSC, and managed to get lighter penalties of reprimands instead (in effect they wereexonerated of the graver charges filed against them).

The survivors now want to obtain the salaries during the period for which they werepreventively suspended. Since they were also preventively suspended pending appeal of their cases and were later declared exonerated, they claim to be entitled to back salaries for thatperiod of time as well. Should they?

Held: The survivors are not entitled to back salaries for the period they werepreventively suspended pending investigation. However, they are entitled to back salaries for theperiod they were preventively suspended pending appeal. Reasons:

1) Actually, it is possible to obtain one’s back salaries for the period she waspreventively suspended pending investigation. However, 2 requisites must concur to make thispossible:

a) The employee must be found innocent of the charges which cause hissuspension; and

b) The suspension is unjustified.Here, the second element is lacking, the reason being that the preventive suspension

of civil service employees charge with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the CSC. It cannot, therefore, be considered “unjustified,” even if later thecharges are dismissed so as to justify the payment of salaries to the employee concerned. It isone of those sacrifices which holding the public office requires for the public good. For this

reason, it is limited to 90 days unless the delay in the conclusion of the investigation is due to

the employee concerned. After that period, even if the investigation is finished, the law providesthat the employee shall be automatically reinstated.

2) An employee is entitled to back salaries during the preventive suspension pendingappeal. It must be remembered that preventive suspension pending investigation is not apenalty but only a means of enabling the disciplining authority to conduct an unhamperedinvestigation. On the other hand, preventive suspension pending appeal is actually punitivealthough it is in effect subsequently considered illegal if respondent is exonerated and theadministrative decision finding him guilty is reversed. Hence, he should be reinstated with fullpay for the period of the suspension.

Thus, S 47 (4) (Book V, Chapter 6, RAC 1987) states that respondent shall beconsidered as under preventive suspension during the pungency of the appeal in the event hewins. On the other hand, if his conviction is affirmed, if he is not exonerated, the period of hissuspension becomes part of the final penalty of suspension or dismissal.

It is precisely because the respondents are penalized before his sentence isconfirmed that he should be paid as salaries in the event he is exonerated. It would be unjust todeprive him of his pay as the result of the immediate execution of the decision against him andcontinue to do so even after it is shown that he is innocent of the charges for which he wassuspended. Indeed to sustain the government’s theory would be to make the administrativedecision not only executor but final executor. The fact is that S.47 (2) and (4) are similar to theexecution of judgment pending appeal under Rule 39, S.5 of the Rules of Court Rule 39 S.5provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages of equity and justice may require.

4. Right of the Respondent (Art. 129, IRR)*Art. 129. Right of respondent, IRR. The respondent shall be accorded full opportunity

to appear and defend himself in person or by counsel, to confront and cross-examine thewitnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor thru the compulsory process of subpoena or subpoenaduce’s locum.

5. Administrative Investigation and Appeals (Art. 131, IRR)*Art. 130. Investigation and decision.a) The investigation of the case shall be terminated within 90 days from the start

thereof. Unreasonable failure to complete the investigation after same period of 90 days by theperson or persons assigned to investigate shall be a ground for disciplinary action.

b) Within 30 days after the end of the investigation, the Office of the president or theSanggunian concerned shall render a decision stating clearly and distinctly the facts andreasons for such decisions. Copies of decision shall be immediately furnished the respondentand all interested parties. In case of failure of the Sanggunian concerned to render a decision onthe resolution recommended on the investigation within 30 days after the end of theinvestigation, the recommended resolution shall be considered the decision.

c) The penalty of suspension shall not exceed the unexpired term of the respondent or

a period of 6 months for every administrative offense, nor shall said penalty be a bar to thecandidacy of the respondent so suspended as long as he meets the qualifications required for the office.

d) The penalty of removal from office shall be considered a bar to the candidacy of therespondent for any elective position.

*Art. 131. Administrative appeals, IRR. Decisions in administrative cases may, within30 days from receipt thereof, may be appealed to the following:

1) The Sangguniang Panlalawigan, in the case of decisions of theSangguniang Panlungsod of component cities and the Sangguniang bayan, and

2) The office of the president, in case of decisions of SangguniangPanlalawigan, Sangguniang Panlungsod of highly urbanized cities and independent componentcities, and the sangguniang bayan of municipalities within MMA.

Decisions of the office of the president shall be final executory.

1. Joson v. Tones 290 SCRA 179



Facts: This is a long boring case. It explains in sordid detail what happens during anadministrative investigation AO 24 dated Dec. 17, 1992 figured prominently in this case itsentirety if you want to know more about AO 24 (as if you would)

One fine morning in September 12, 1996, the SP of Nueva Ecija was about to starttheir routine session when Governor Eduardo Joson barged into their session hall. Armed goonsaccompanied the governor. The governor threatened the SP members because they refused tosupport governor’s plan to obtain a loan of 150M from the PNB.

The SP members did not take the governor’s threat sitting down. They filed acomplaint with the office of the president (OP), charging the governor with the grave misconductand abuse of authority.

Governor Joson was requested to file an answer. Instead, the governor asked for 3extensions of 30 days to file his answer. When 3 months pass and Joson, instead of filing hisanswer, filed instead Motion to Dismiss, Executive Secretary slapped him with a 60 daypreventive suspension.

Governor Joson then filed a motion to conduct formal investigation as mandated bythe LGC and AO 23. The DILG, the department investigating his case, denied the governor’smotion. Proceedings before the DILG thus continued without the benefit of a formalinvestigation.

The case was resolved using position papers submitted by both parties. In itsresolution, the DILG found the governor guilty as charged and imposed a 6 months suspensionwithout pay on him.

Joson now claims he cannot be denied of his right to a formal investigation grantedunder AO 21, thus the resolution finding him guilty should be declared null and void. Is hecorrect?

Held: Yes, rejection of Joson’s right to a formal investigation is denial of proceduraldue process Sec. __ of AO 23 states that only the parties to the case have the right to decidewhether they desire a formal investigation. AO 23 does not give the investigating authority(which is the DILG Secretary by specific mandate of AO 23) the discretion to determine whether a formal investigation should be conducted. The rights of the respondent must be respected (Art.129, IRR).

Another reason why Joson’s right to a formal investigation cannot be denied isbecause he is an elective official. The rules on the removal and suspension of elective localofficials are more stringent because the official has only a limited term of office. Suspension andremoval will shorten this term of office, thus the official must be accorded his rights under thelaw in order that the people who elected him into office will not be unduly deprived of hisservices. The procedure of requiring position papers in lieu of a hearing in administrative casesis expressly allowed with respect to appointive officials but not to those elected.

2. Lupo v. Administrative Action Board 190 SCRA 69Facts: Fructuso Arroyo, the OIC/CDO, Message Center and former CDO of Telecom

filed a complaint for dishonesty thru falsification (multiple) of official documents against Maria

Lupo, who committed said transgression in her capacity as Chief of Personnel if Telecom,Region V. the telecom investigator conducted an informal fact-finding inquiry. He came out witha memorandum recommending that Lupo be sternly warned and that a repeat of such offensewill merit her graver penalties.

The Secretary of the Department of Transportation and Communication however,examined the memorandum. Based on said memorandum, the secretary filed a resolutionslipping6 Lupo with 1 year suspension and suspending her from promotion for a period of 1year.

Lupo appealed to the CSC. The CSC thru its Merit System Board ordered the case tobe remanded back to the telecom office for further investigation after which the administrativeaction board (AAB) was to hear the merits of the case thru a trial.

The AAB however proceeded with the trial of the case without waiting for theinvestigation to commence.

Lupo now complains she was not accorded procedural due process because noformal charge has been filed against her and that the investigation conducted by the telecom

investigation was not a formal investigation but a mere fact-fact finding inquiry.

Held: Lupo is correct. Complaints against employees belonging to the CSC system isgoverned by PD 807 says that a formal complaint that should first be filed after which therespondent must be given the option to submit her self to a formal investigation if her answer tothe complaint is found to be unsatisfactory. Here, not only was Lupo is given a chance to submither self to a formal investigation, the DOTC secretary immediately slapped her with a 1 year suspension based only a mere informal inquiry. Also, the AAB started hearing her case withoutthe benefit of a formal investigation.

The cardinal primary rights of due to process in administrative hearings must alwaysbe observed. Lupo must not be denied her right to a formal and full blown administrativeproceeding.

F. Read RA 6770 – the Ombudsman Act of 1989Read the case of Garcia v. Mojica (see p. 69) preferably in it’s entirely, in

order to best see how the Ombudsman Act was applied in an actual case

G. 1 Read AO No. 23, December 17, 1992Read the case Joson v. Torres, (see p. 71) preferably in its entirely, in order

to best see how AO 23 was applied in an actual case.G. 2 Read AO No. 121, March 10, 1992

VII. KATARUNGAN PAMBARANGAY LAW

Read sections 399 to 420, LGC. (Not e: the following information on the KBL and the League of Local Government Units were lifted from the Political Law Reviewer by Nachura).

A. The Barangay1. Chief Officials and Officers

a) There shall be in each barangay a PB; 7 SB members, the SK chairman,a barangay secretary and a barangay treasurer. There shall also be in every barangay a lupongtagapamayapa. The SB may from community brigades and create such other positions or officers as may be deemed necessary to carry out the purposes of barangay government.

1) For purposes of the RPC, the PB, SB members, lupongtagapamayapa in each barangay shall be deemed as persons in authority in the jurisdiction,while other barangay officials and members who may be designated by law or ordinance andcharged with the maintenance of public order, protection and security of life and property, or themaintenance of a desirable and balanced environment, and any barangay member who come tothe all of persons authority, shall be deemed agents persons in authority in Milo v. Salonga, 152SCRA 113, the barangay chairman is a public officer who may be charged with arbitrarydetention. In People v. Monton (1998), it was held that the barangay chairman is entitled toposses and carry firearm within the territorial jurisdiction of the barangay (Sec. 88(3), B.P. 337).He may not be therefore prosecuted for illegal possession of firearms.

2. The Barangay AssemblyThere shall be a barangay assembly composed of all person who are actual residents

of the barangay for at least 6 months 15 years of age over citizens of the Philippines and dulyregistered in the list of barangay assembly members. It shall meet at least twice a year to hear and discuss a semestral report of the SB concerning its activities and finances as well asproblems affecting the barangay.

a) Powers of the barangay assembly. Read Sec. 398, R.A 7160

3. Katarungang Pambarangaya) Lupong Tagapamayapa. There is here by created in each barangay a LT

composed of the PB as chairman and 10 to 20 members. The lupon shall be constituted every 3years.

1) Powers of the Lupon (i) exercise administrative supervision

over the conciliation panels; (ii) meet regularly once a month to provide a forum for exchange of



ideas among its members and the members to share with one another their observations andexperiences in effecting speedy resolution of disputes and; (iii) exercise such other powers andperform such other duties as may be prescribed by law or ordinance.

b) Pangkat ng Tagapagkasundo. There shall constituted for each, disputebrought before the lupon a conciliation panel to be known as the pangkat ng tagapagkasundo,consisting 3 members who shall be chosen by the parties to the dispute from the list of membersof the lupon. Should the parties fail to agree on the pangkat membership, the same shall bedetermined by lots drawn by the lupon chairman.

c) Subject matter of amicable settlement; procedure, conciliation, arbitration,effects of settlement and arbitration award.

4. Sangguniang Kabataana) Creation; composition. There shall be every barangay a SK to be

composed of chairman 7 members, a secretary and a treasurer. An official who during his termof office shall have passed the age of 21 shall be allowed to serve the remaining position for theterm for which he was elected.

1) Powers and functions. Read Sec. 426 RA 7160b) Katipunan ng mga Kabataan: Shall be composed of citizens of the

Philippines actually residing in the barangay for at least 6 months, who are 15 but not more than21 years of age, who are duly registered in the list of the SK or in the official barangay list in thecustody of the barangay secretary. He shall meet once every 3 months or at the call of the SKchairman, or upon written petition of at least 1/20 of its members.

c) Pederasyon ng mga SK. There shall be an organization of all thepederasyon ng mga SK

i) In municipalities, the pambansang pederasyonii) in cities, panlungsod na pederasyoniii) In provinces, panlalawigang pederasyoniv) In special metropolitan political subdivisions, pangmetropolitang

pederasyon;v) On the national level; pambansang pederasyon

B. The Municipality. Read Sec. 440-447 RA 7160

C. The City. Read Sec. 448-548 RA 7160

D. The Province. Read Sec. 459- 468, RA 7160

1. Uy v. Contreras 237 SCRA 167Facts: Felicidad Uy and Susanna Atayde got involved in a catfight (nagsasabunutan)

involving a dispute over a sublease. Atayde and her employee, Winnie Javier sustained minor injuries as a result. Atayde later filed 2 criminal cases for minor injuries against Uy with the MTC.

Uy sought to dismiss the 2 criminal cases on the ground that since the complaint

involved a crime where the penalty is at best arresto menor, the same should have been firstfiled with the Lupong Tagapamayapa of the proper barangay (which should have actually beenKatarungang Barangay). The MTC judge however denied the motion to dismiss. Was the denialproper?

Held: No, Uy managed to seasonably file her motion to dismiss based upon a validground. She cannot therefore be said to have waived her right to avail of the KB to resolve their dispute.

2. Felizardo v. CA 233 SCRA 220Facts: Nemesio Jose as owner-lessor of a house and lot located in Bajac-bajac,

Quezon City filed an ejectment case against lessee Quintin Felizardo in the MTC of Olongapocity.

Felizardo, in his answer, claimed that Jose’s allegations were false and were onlymeant to evade the requirements of PD 1508 for barangay conciliation. The MTC ruled that it

could act on the complaint field by Jose and later on rendered a decision in favor of Jose.Felizardo thus filed a petition for certiorari questioning the jurisdiction of the MTC.

Held: When MTC ruled that it could act on the complaint for ejectment filed by theprivate respondent even without prior barangay conciliation proceedings, it committed a mereerror of judgment and not of jurisdiction. The SC has held in many cases that while the referralof a case to the lupong tagapamayapa is a condition precedent for the filing of a complaint incourt, non-compliance therewith cannot affect the jurisdiction which the court has alreadyacquired over the subject matter and over the person of the defendant.

3. Diu v. CA 251 SCRA 472Facts: Patricia Pagba owed spouses Diu a debt worth P7,862.55 incurred in 1988.

The spouses Diu brought the matter to the barangay chairman for resolution; however Pagbatwice failed to appear. The barangay chairman thus gave the go signal for Diu’s to file their casewith the MTC.

The MTC ruled in favor of Pagba. The RTC reversed deciding the case on the merits.The CA however ruled once more for Pagba agreeing with the latter that there was nosubstantial compliance with the procedure outlined in Katarungang Barangay Law because of the failure by the barangay chairman to constitute a pangkat to resolve the parties’ differences.

Was the CA correct in its contention?

Held: No. Even though there was a failure to constitute a pangkat should thebarangay chairman, by himself fail to resolve the parties differences still is not denied that theparties met the office of the barangay chairman for possible settlement. The efforts of thebarangay chairman, however proved futile as no agreement was reached. Although no pangkatwas formed, the SC believes that there was substantial compliance with the law. From theforegoing facts, it is undeniable that there was substantial compliance with presidential decreeNo. 1508 which does not require strict technical compliance with its procedural requirements.Under the factual antecedents, it cannot be said that the failure of the parties to appear beforethe pangkat caused any prejudice to the case for private respondents considering that theyalready refused conciliation before the barangay chairman.

To indulge the Pagbas in their stratagem will not only result in a circuitous procedurebut will necessarily entail undue and further delay injustice. This is inevitable if this court shoulddismiss the complaint and require the parties to meet before the pangkat, only to bring the caseall over again through the hierarchy of courts and ultimately back to us for decision on themerits. Obviously, this is the game plan of the Pagbas. For, when the Pagbas appealed torespondent court, they did not at all assail the propriety or correctness of judgment of the RTCholding them liable to petitioners for the sum of money involved. Such primary substantive issue,therefore, has been laid to rest, but private respondents would wish to keep the case alivemerely on a conjured procedural issue invoking their supposed right to confrontation before thepangkat.

LIGA NG MGA BARANGAYA. Liga ng mga Barangay - Organization of all barangays for the primary purpose of

determining the representation of the liga in the sanggunians, and for ventilating, articulating andcrystallizing issues affecting barangay government administration and securing, thru proper andlegal means, solutions thereto. Read Sec. 491-495.

B. League of Municipalities. Organized for the primary purpose of ventilating, articulating andcrystallizing issues affecting municipal government administration, and securing, thru proper andlegal means, solutions thereto. Read Sec. 496-498

C. League of Cities. Read Sec. 499-501

D. League of provinces. Read Sec. 502-203

E. League and federation of Local Elective Officials. Read Sec. 508-510



I. Galarosa v. Valencia 227 SCRA 728Facts: Basically the main issue here is only how to properly interpret Section 494 of

the LGC 1991, which says:“Ex officio membership in sanggunians. The duly elected presidents of the liga ng mga

barangay at the municipal, city and provincial levels, including the component cities andmunicipalities of metropolitan manila, shall serve as ex-officio members of the sangguniangbarangay, sangguniang panlungsod, sangguniang panlalawigan, respectively. They shall serveas such only during their term of office as presidents of the liga chapters which in no case shallbe beyond the term of office of the SC”

Raul Galarosa is a president of the Katipunang Bayan of the municipality of Sorsogon.Like the LGC of 1991, the (old) LGC of 1983 or BP 337 grants Galarosa the right to serve as ex-officio member of the sangguniang bayan. However, when the new LGC of 1991 finally tookeffect, Rodolfo Lasay filed a case against Galarosa in his capacity as taxpayer questioning theright of Galarosa to remain as an ex-officio member of the sangguniang bayan. Lasay claimedthat the new LGC of 1991 provided for the liga ng mga barangay, which, although admittedlywas structurally and functionally the same as katipunan ng mga barangay, neverthelessabolished the katipunan ng mga barangay, thereby a new set of officers have to be appointed bythe President of the Philippines. Is Lasay correct?

Held: Yes. The LGC of 1991 does not explicitly provide that upon his effectivity thekatipunan ng mga barangay under B.P Blg. 337 automatically became the liga ng mga barangayunder the LGC and then the president of the ABC automatically became the president of the ligawhose term as ex-officio member of the first sangguniang bayan un the 1987 constitution iscoterminous with that of the other regular members if the SB on until 30 June, 1992 pursuant tosection 494 of the LGC in relation to section 2 Article XVIII of the 1987 constitution 20 andsection 5 of RA No. 6636. absent such explicitness and considering (1) that the opening clauseof section 491 is expressed in the 1991 and (2) that section 494 speaks of “duly electedpresidents of the liga” thereby clearly implying as election after the organization of the liga, theconclusion to be drawn is that the legislature never intended that section 494 would apply to theincumbent presidents of the katipunang bayan.

There is, however, no law which prohibits Galarosa from holding over as a member of the sangguniang bayan. On the contrary, aforementioned IRR, prepared and issued by theOversight Committee upon specific mandate of section 533 of the LGC, expressly recognizesand grants that hold-over authority to ABC presidents. The hold-over rule must be applied,because to the rule other wise would lead to a vacancy in the office, causing an interruption inthe public service.

2. Alquisola Sr. v. Ocol 343 SCRA 273Facts: Ramon Arquizola won the position of punong barangay of barangay Tubod,

Iligan City. He then terminated the services of the barangay treasurer, barangay secretary utilityworkers who were appointed under the term of a previous punong barangay. The barangaytreasurer and his similarly situated friendly friends pointed out that section 389 of the LGC

requires that the approval by a majority of the sangguniang barangay members is needed beforethe punong barangay can exercise his power of replacing them.

Held: It should be noted that the barangay officials who were dismissed are notprovided with a definite of office under the LGC. The reason is that they were merely appointedto their posts by punong barangay. However, since the punong barangay who appointed therespondents has already stepped down from office, they are now at the mercy of the newpunong barangay who also possess the power of appointment. The power of appointment isdiscretionary and thus implies that the power to remove is also inherent in the former, since bynecessity, the new punong barangay may choose to remove the incumbent appointive barangayofficials in order to make way for his choice of new barangay officials.

It would be absurd to give section 389 an interpretation which would render impotentthe power of a newly elected punong barangay to choose his barangay officials. Once thepunong barangay has already appointed his choice officials however, section 389 should thenbe applied in the sense that said officials cannot be removed by the punong barangay who

appointed them without the approval of the sanggunian barangay.

VIII. LOCAL SPECIAL BODIES (ART. 181-188, IRR)

*Article 181 names the different local special bodies. The rest of the articles describe thecompositions and functions of each local special body. Only Article 181 will be reproduced here.

*Article 181. Local special bodies. There shall be organized in the LGU concerned the followinglocal special bodies (every LGU, from the province down, shall have this local special bodies thePLEB however shall be governed by RA 6975)

(a) Local Development Council(b) Local Prequalification, Bids and Awards Committee(c) Local Scholl Boards(d) Local Health Board(e) Local Peace and Order Council(f) People Law Enforcement Boards

a) LDC (sec. 106, LGC). Each LGU shall have comprehensive multi-sector development plan to be instituted by its development council and approved by its sanggunian.For the purpose, the development council at the provincial, city, municipal or barangay levelshall assist the responding sanggunian in setting the direction of economic and socialdevelopment, and coordinating development efforts within its territorial jurisdiction.

a.1) EO 463, May 17, 1991- Entitled “Establishing the relationship between the Regional Planning and

Development Board of the Autonomous Regional Government (of Muslim Mindanao) and thenational economic and development authority (NEDA) board”

- Sec. 1. The ARG shall be guided by the synchronized planning,programming and budgeting system (SPPBS) namely: The Medium – term Philippinedevelopment plan (MTPDP), the medium term technical assistance program (MTTAP) and theregional development investment program (RDIP) in its planning, programming, and budgetingactivities.

- Sec. 2. The regional planning and development board of theautonomous regional government shall prepare: a) Regional Development Plan (RDP)consistent with the national development policies, goals, objectives and priorities embodied inthe Medium-Term Philippine Development Plan (MTPDP); and b) Regional DevelopmentInvestment Program (RDIP) and regional technical assistance program which shall be includedin the Medium Term Public Investment Program (MTPIP) and the Medium Term TechnicalAssistance Program (MTTAP).

The RDP, RDIP and supporting technical assistance programsshall be submitted directly to the office of the president for review and evaluation of their consistency with the MTPDP and the MTPIP/MTTAP.

- Sec. 5. The Local Development Council (provincial,

city/municipal) shall be maintained the strengthened in order to ensure continuity in thedevelopment planning process. The ARG may choose to reorganize the LDC through regionallegislation.

a. 2) RA 7640, December 9, 1962

a) RA 7640, December 9, 1962

b) Local PABC (sec. 37, LGC) – There shall is hereby created a local prequalification,bids and awards committee in every province, city and municipality, which shall be primarilyresponsible for the conduct of prequalification of contractors, bidding, evaluation of bids, and therecommendation of awards concerning local infrastructure projects x x x.

c) Local School Boards (sec. 98, LGC) – Creation, composition and function. (TheLSBs do the following: 1) determine, in accordance with the criteria set by the DECS, the annual

supplementary needs for the operation and maintenance of public high schools in the LGU