municipal liability cases

8/13/2019 Municipal Liability Cases

1/64

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

CITY OF MANILA,petitioner,vs.

GNARO N. TOTICO an! CO"RT OF A##AL$,respondents.

City Fiscal Manuel T. Reyes for petitioner.

Sevilla, Daza and Associates for respondents.

CONC#CION, C.J.:

Appeal by certiorarifrom a decision of the Court of Appeals.

On January 27, 195, at about !"" p.m., #enaro $. %eotico &as at the corner of the Old 'uneta and (. )ur*os Avenue, +anila, &ithin aloadin* and unloadin* -one, &aitin* for a eepney to ta/e him do&n to&n. After &aitin* for about five minutes, he mana*ed to hail a eepney thatcame alon* to a stop. As he stepped do&n from the curb to board the eepney, and too/ a fe& steps, he fell inside an uncovered and unli*hted catch

basin or manhole on (. )ur*os Avenue. 0ue to the fall, his head hit the rim of the manhole brea/in* his eye*lasses and causin* bro/en pieces thereofto pierce his left eyelid. As blood flo&ed therefrom, impairin* his vision, several persons came to his assistance and pulled him out of the manhole.One of them brou*ht %eotico to the (hilippine #eneral ospital, &here his inuries &ere treated, after &hich he &as ta/en home. n addition to thelacerated &ound in his left upper eyelid, %eotico suffered contusions on the left thi*h, the left upper arm, the ri*ht le* and the upper lip apart from an

abrasion on the ri*ht infra3patella re*ion. %hese inuries and the aller*ic eruption caused by anti3tetanus inections administered to him in thehospital, re4uired further medical treatment by a private practitioner &ho char*ed therefor (1,""."".

As a conse4uence of the fore*oin* occurrence, %eotico filed, &ith the Court of 6irst nstance of +anila, a complaint &hich &as,subse4uently, amended for dama*es a*ainst the City of +anila, its mayor, city en*ineer, city health officer, city treasurer and chief of police. Asstated in the decision of the trial court, and 4uoted &ith approval by the Court of Appeals,

At the time of the incident, plaintiff &as a practicin* public accountant, a businessman and a professor at the 8niversity of the ast.

e held responsible positions in various business firms li/e the (hilippine +erchandisin* Co., the A.8. :alencia and Co., the ;ilver ;&an+anufacturin* Company and the ;incere (ac/in* Corporation. e &as also associated &ith several civic or*ani-ations such as the


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%hen, a*ain, the determination of &hether or not (. )ur*os Avenue is under the control or supervision of the City of +anila and &hether thelatter is *uilty of ne*li*ence, in connection &ith the maintenance of said road, &hich &ere decided by the Court of Appeals in the affirmative, is oneof fact, and the findin*s of said Court thereon are not subect to our revie&.

s fees.

;O O@0@0. Bp. 2", @ollo

%he findin*s of respondent Appellate Court are as follo&s!

%he evidence of the plaintiff Bpetitioner herein sho&s that in the mornin* of Au*ust 15, 197 he, to*ether &ith his nei*hbors, &ent to ;ta. Ana

public mar/et to buy ba*oon* at the time &hen the public mar/et &as flooded &ith an/le deep rain&ater. After purchasin* the ba*oon* he turnedaround to return home but he stepped on an uncovered openin* &hich could not be seen because of the dirty rain&ater, causin* a dirty and rusty four3inch nail, stuc/ inside the uncovered openin*, to pierce the left le* of plaintiff3petitioner penetratin* to a depth of about one and a half inches. Afteradministerin* first aid treatment at a nearby dru*store, his companions helped him hobble home. e felt ill and developed fever and he had to be

carried to 0r. Juanita +ascardo. 0espite the medicine administered to him by the latter, his left le* s&elled &ith *reat pain. e &as then rushed to the:eterans +emorial ospital &here he had to be confined for t&enty B2" days due to hi*h fever and severe pain.

8pon his dischar*e from the hospital, he had to &al/ around &ith crutches for fifteen B15 days. is inury prevented him from attendin* to theschool buses he is operatin*. As a result, he had to en*a*e the services of one )ienvenido :alde- to supervise his business for an a**re*ate

compensation of nine hundred pesos B(9""."". B0ecision, AC3#.@. C: $o. "1E7, @ollo, pp. 1E32".

(etitioner sued for dama*es the City of +anila and the Asiatic nte*rated Corporation under &hose administration the ;ta. Ana (ublic +ar/et had

been placed by virtue of a +ana*ement and Operatin* Contract B@ollo, p. 7.

%he lo&er court decided in favor of respondents, the dispositive portion of the decision readin*!


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As above stated, on appeal, the ntermediate Appellate Court held the Asiatic nte*rated Corporation liable for dama*es but absolved respondent Cityof +anila.

ence this petition.

%he lone assi*nment of error raised in this petition is on &hether or not the ntermediate Appellate Court erred in not rulin* that respondent City of+anila should be ointly and severally liable &ith Asiatic nte*rated Corporation for the inuries petitioner suffered.

n compliance &ith the resolution of July 1, 195 of the 6irst 0ivision of this Court B@ollo, p. 29 respondent City of +anila filed its comment onAu*ust 1E, 195 B@ollo, p. E &hile petitioner filed its reply on Au*ust 21, 195 B@eno, p. 51.

%hereafter, the Court in the resolution of ;eptember 11, 195 B@ollo, p. F2 *ave due course to the petition and re4uired both parties to submitsimultaneous memoranda

(etitioner filed his memorandum on October 1, 195 B@ollo, p. F5 &hile respondent filed its memorandum on October 2, 195 B@ollo, p. 2.

n the resolution of October 1E, 19F, this case &as transferred to the ;econd 0ivision of this Court, the same havin* been assi*ned to a member of

said 0ivision B@ollo, p. 92.

%he petition is impressed &ith merit.

As correctly found by the ntermediate Appellate Court, there is no doubt that the plaintiff suffered inuries &hen he fell into a draina*e openin*&ithout any cover in the ;ta. Ana (ublic +ar/et. 0efendants do not deny that plaintiff &as in fact inured althou*h the Asiatic nte*rated Corporation

tries to minimi-e the etent of the inuries, claimin* that it &as only a small puncture and that as a &ar veteran, plaintiff>s hospitali-ation at the s ospital &as free. B0ecision, AC3#.@. C: $o. "1E7, @ollo, p. F.

@espondent City of +anila maintains that it cannot be held liable for the inuries sustained by the petitioner because under the +ana*ement andOperatin* Contract, Asiatic nte*rated Corporation assumed all responsibility for dama*es &hich may be suffered by third persons for any cause

attributable to it.

t has also been ar*ued that the City of +anila cannot be held liable under Article 1, ;ection of @epublic Act $o. "9 as amended B@evised Charterof +anila &hich provides!

%he City shall not be liable or held for dama*es or inuries to persons or property arisin* from the failure of the +ayor, the

+unicipal )oard, or any other City Officer, to enforce the provisions of this chapter, or any other la& or ordinance, or fromne*li*ence of said +ayor, +unicipal )oard, or any other officers &hile enforcin* or attemptin* to enforce said provisions.

%his issue has been laid to rest in the case of City of Manila v. Teotico B22 ;C@A 2F93272 H19FI &here the ;upreme Court s4uarely ruled that@epublic Act $o. "9 establishes a *eneral rule re*ulatin* the liability of the City of +anila for dama*es or inury to persons or property arisin*from the failure of city officers to enforce the provisions of said Act, or any other la& or ordinance or from ne*li*ence of the City +ayor,+unicipal )oard, or other officers &hile enforcin* or attemptin* to enforce said provisions.

8pon the other hand, Article 219 of the Civil Code of the (hilippines &hich provides that!

(rovinces, cities and municipalities shall be liable for dama*es for the death of, or inuries suffered by any person by reason of

defective conditions of roads, streets, brid*es, public buildin*s and other public &or/s under their control or supervision.

constitutes a particular prescription ma/in* provinces, cities and municipalities ... liable for dama*es for the death of, or inury suffered by any

person by reason specifically of the defective condition of roads, streets, brid*es, public buildin*s, and other public &or/s under their controlor supervision. n other &ords, Art. 1, sec. , @.A. $o. "9 refers to liability arisin* from ne*li*ence, in *eneral, re*ardless of the obect, thereof,

&hile Article 219 of the Civil Code *overns liability due to defective streets, public buildin*s and other public &or/s in particular and is thereforedecisive on this specific case.

n the same suit, the ;upreme Court clarified further that under Article 219 of the Civil Code, it is not necessary for the liability therein establishedto attach, that the defective public &or/s belon* to the province, city or municipality from &hich responsibility is eacted.


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The treasurer shall e1ercise direct and i$$ediate supervision ad$inistration and control over public $ar"ets and the personnelthereof, includin* those &hose duties concern the maintenance and up/eep of the mar/et and ordinances and other pertinent rulesand re*ulations. Bmphasis supplied. B@ollo, p. 7F

%he contention of respondent City of +anila that petitioner should not have ventured to *o to ;ta. Ana (ublic +ar/et durin* a stormy &eather isindeed untenable. As observed by respondent Court of Appeals, it is an error for the trial court to attribute the ne*li*ence to herein petitioner. +ore

specifically stated, the findin*s of appellate court are as follo&s!

... %he trial court even chastised the plaintiff for *oin* to mar/et on a rainy day ust to buy ba*oon*. A customer in a store has theri*ht to assume that the o&ner &ill comply &ith his duty to /eep the premises safe for customers. f he ventures to the store on

the basis of such assumption and is inured because the o&ner did not comply &ith his duty, no ne*li*ence can be imputed to thecustomer. B0ecision, AC3#. @. C: $o. "1E7, @ollo, p. 19.

As a defense a*ainst liability on the basis of a 4uasi3delict, one must have eercised the dili*ence of a *ood father of a family. BArt. 117E of the CivilCode.

%here is no ar*ument that it is the duty of the City of +anila to eercise reasonable care to /eep the public mar/et reasonably safe for peoplefre4uentin* the place for their mar/etin* needs.

s fees.

;O O@0@0.

Fernan 2Chair$an3, 4utierrez, r., adilla, -idin and Cortes ., concur.

Foo%no%&'

L (enned by Justice Jor*e @. Co4uia and concurred in by Justices +ariano A. Mosa, 6loreliana Castro3)artolome, and)ienvenido C. ercito.

LL


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The City %egal 7fficer for respondents.

$ARMINTO,J.:

n a civil action 1for recovery of dama*es filed by the petitioner 6lorentina A. #uilatco, the follo&in* ud*ment &as rendered a*ainst the respondentCity of 0a*upan!

B1 Orderin* defendant City of 0a*upan to pay plaintiff actual dama*es in the amount of ( 15,92 Bnamely (,"5."" as hospital

medical and other epenses Hhs. to 3F"I, ( 7,2"."" as lost income for one B1 year Hh. 6I and ( 5"."" as bonus. (15","""."" as moral dama*es, ( 5","""."" as eemplary dama*es, and ( E,"""."" as attorney>s fees, and liti*ation epenses, pluscosts and to appropriate throu*h its ;an**unian* (an*lunsod BCity Council said amounts for said purposeD

B2 0ismissin* plaintiffs complaint as a*ainst defendant City n*r. Alfredo #. %an*coD and

BE 0ismissin* the counterclaims of defendant City of 0a*upan and defendant City n*r. Alfredo #. %an*co, for lac/ of merit.2

%he facts found by the trial court are as follo&s! 3

t &ould appear from the evidences that on July 25, 197, herein plaintiff, a Court nterpreter of )ranch , C6330a*upan City,&hile she &as about to board a motori-ed tricycle at a side&al/ located at (ere- )lvd. Ba $ational @oad, under the control and

supervision of the City of 0a*upan accidentally fell into a manhole located on said side&al/, thereby causin* her ri*ht le* to befractured. As a result thereof, she had to be hospitali-ed, operated on, confined, at first at the (an*asinan (rovincial ospital,

from July 25 to Au*ust E, 197 Bor for a period of 1F days. ;he also incurred hospitali-ation, medication and other epenses tothe tune of ( ,"5E.F5 Bh. to 3F" or a total of ( 1","""."" in all, as other receipts &ere either lost or misplacedD durin* the

period of her confinement in said t&o hospitals, plaintiff suffered severe or ecruciatin* pain not only on her ri*ht le* &hich &asfractured but also on all parts of her bodyD the pain has persisted even after her dischar*e from the +edical City #eneral ospitalon October 9, 197, to the present. 0espite her dischar*e from the ospital plaintiff is presently still &earin* crutches and theCourt has actually observed that she has difficulty in locomotion. 6rom the time of the mishap on July 25, 197 up to the present,

plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotion in *oin* up the stairs of her office,located near the city hall in 0a*upan City. ;he earns at least ( 72"."" a month consistin* of her monthly salary and other meansof income, but since July 25, 197 up to the present she has been deprived of said income as she has already consumed heraccrued leaves in the *overnment service. ;he has lost several pounds as a result of the accident and she is no lon*er her former

ovial self, she has been unable to perform her reli*ious, social, and other activities &hich she used to do prior to the incident.

0r. $orberto 6eli and 0r. 0ominado +an-ano of the (rovincial ospital, as &ell as 0r. Antonio ;ison of the +edical City

#eneral ospital in +andaluyon* @i-al Bh. D see also hs. 6, #, #31 to #319 have confirmed beyond shado& of any doubtthe etent of the fracture and inuries sustained by the plaintiff as a result of the mishap. On the other hand, (atrolman Claveria,

0e Asis and Cere-o corroborated the testimony of the plaintiff re*ardin* the mishap and they have confirmed the eistence of themanhole Bhs. A, ), C and sub3ehibits on the side&al/ alon* (ere- )lvd., at the time of the incident on July 25, 197 &hich

&as partially covered by a concrete flo&er pot by leavin* *apin* hole about 2 ft. lon* by 1 1N2 feet &ide or 2 cms. &ide by 75cms. lon* by 15" cms. deep Bsee hs. 0 and 031.

0efendant Alfredo %an*co, City n*ineer of 0a*upan City and admittedly e3officio i*h&ay n*ineer, City n*ineer of the(ublic


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After eamination of the findin*s and conclusions of the trial court and those of the appellate court, as &ell as the ar*uments presented by the parties,&e a*ree &ith those of the trial court and of the petitioner. ence, &e *rant the petition.

n this revie& on certiorari, &e have simplified the errors assi*ned by the petitioner to a sin*le issue! &hether or not control or supervision over a

national road by the City of 0a*upan eists, in effect bindin* the city to ans&er for dama*es in accordance &ith article 219 of the Civil Code.

%he liability of public corporations for dama*es arisin* from inuries suffered by pedestrians from the defective condition of roads is epressed in the

Civil Code as follo&s!

Article 219. (rovinces, cities and municipalities shall be liable for dama*es for the death of, or inuries suffered by, any person

by reason of the defective condition of roads, streets, brid*es, public buildin*s, and other public &or/s under their control orsupervision.

t is not even necessary for the defective road or street to belon* to the province, city or municipality for liability to attach. %he article only re4uiresthat either control or supervision is eercised over the defective road or street.6

n the case at bar, this control or supervision is provided for in the charter of 0a*upan and is eercised throu*h the City n*ineer &ho has thefollo&in* duties!

;ec. 22. %he City n*ineer33is po&ers, duties and compensation3%here shall be a city en*ineer, &ho shall be in char*e of thedepartment of n*ineerin* and (ublic


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On the other hand, moral dama*es may be a&arded even &ithout proof of pecuniary loss, inasmuch as the determination of the amount isdiscretionary on the court.13 %hou*h incapable of pecuniary estimation, moral dama*es are in the nature of an a&ard to compensate the claimant foractual inury suffered but &hich for some reason can not be proven. o&ever, in a&ardin* moral dama*es, the follo&in* should be ta/en into

consideration!

B1 6irst, the proimate cause of the inury must be the claimee>s acts.1)

B2 ;econd, there must be compensatory or actual dama*es as satisfactory proof of the factual basis for dama*es.15

BE %hird, the a&ard of moral dama*es must be predicated on any of the cases enumerated in the Civil Code. 16

n the case at bar, the physical sufferin* and mental an*uish suffered by the petitioner &ere proven. s place of &or/testified to the de*eneration in her disposition3from bein* ovial to depressed. ;he refrained from attendin* social and civic activities.1(

$evertheless the a&ard of moral dama*es at ( 15","""."" is ecessive. er handicap &as not permanent and disabled her only durin* her treatment&hich lasted for one year. %hou*h evidence of moral loss and an*uish eisted to &arrant the a&ard of dama*es,18the moderatin* hand of the la& iscalled for. %he Court has time and a*ain called attention to the reprehensible propensity of trial ud*es to a&ard dama*es &ithout basis,19resultin* inehorbitant amounts.20

Althou*h the assessment of the amount is better left to the discretion of the trial court 21under precedin* urisprudence, the amount of moraldama*es should be reduced to ( 2","""."".

As for the a&ard of eemplary dama*es, the trial court correctly pointed out the basis!

%o serve as an eample for the public *ood, it is hi*h time that the Court, throu*h this case, should serve &arnin* to the city or

cities concerned to be more conscious of their duty and responsibility to their constituents, especially &hen they are en*a*ed inconstruction &or/ or &hen there are manholes on their side&al/s or streets &hich are uncovered, to immediately cover the same,

in order to minimi-e or prevent accidents to the poor pedestrians.22

%oo often in the -eal to put up public impact proects such as beautification drives, the end is more important than the manner in &hich the &or/ iscarried out. )ecause of this obsession for sho&in* off, such trivial details as misplaced flo&er pots betray the careless eecution of the proects,causin* public inconvenience and invitin* accidents.

(endin* appeal by the respondent City of 0a*upan from the trial court to the appellate court, the petitioner &as able to secure an order for*arnishment of the funds of the City deposited &ith the (hilippine $ational )an/, from the then presidin* ud*e, on. smotion for reconsideration &hich &as also denied. 23


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Crossfield and 79-rien for plaintiff.Attorney4eneral Avance*a for defendant..

TRNT,J.

%his is an appeal by both parties from a ud*ment of the Court of 6irst nstance of the city of +anila in favor of the plaintiff for the sum of (1,71,to*ether &ith the costs of the cause.

Counsel for the plaintiff insist that the trial court erred B1 in limitin* the *eneral dama*es &hich the plaintiff suffered to (5,""", instead of (25,"""as claimed in the complaint, and B2 in limitin* the time &hen plaintiff &as entirely disabled to t&o months and t&enty3one days and fiin* the

dama*e accordin*ly in the sum of (2,FFF, instead of (F,""" as claimed by plaintiff in his complaint.

%he Attorney3#eneral on behalf of the defendant ur*es that the trial court erred! Ba in findin* that the collision bet&een the plaintiff>s motorcycle and

the ambulance of the #eneral ospital &as due to the ne*li*ence of the chauffeurD Bb in holdin* that the #overnment of the (hilippine slands isliable for the dama*es sustained by the plaintiff as a result of the collision, even if it be true that the collision &as due to the ne*li*ence of the

chauffeurD and Bc in renderin* ud*ment a*ainst the defendant for the sum of (1,71.

%he trial court>s findin*s of fact, &hich are fully supported by the record, are as follo&s!

t is a fact not disputed by counsel for the defendant that &hen the plaintiff, ridin* on a motorcycle, &as *oin* to&ard the &estern part ofCalle (adre 6aura, passin* alon* the &est side thereof at a speed of ten to t&elve miles an hour, upon crossin* %aft Avenue and &hen he

&as ten feet from the south&estern intersection of said streets, the #eneral ospital ambulance, upon reachin* said avenue, instead ofturnin* to&ard the south, after passin* the center thereof, so that it &ould be on the left side of said avenue, as is prescribed by the

ordinance and the +otor :ehicle Act, turned suddenly and unepectedly and lon* before reachin* the center of the street, into the ri*ht sideof %aft Avenue, &ithout havin* sounded any &histle or horn, by &hich movement it struc/ the plaintiff, &ho &as already si feet from thesouth&estern point or from the post place there.

)y reason of the resultin* collision, the plaintiff &as so severely inured that, accordin* to 0r. ;aleeby, &ho eamined him on the very

same day that he &as ta/en to the #eneral ospital, he &as sufferin* from a depression in the left parietal re*ion, a &ould in the same placeand in the bac/ part of his head, &hile blood issued from his nose and he &as entirely unconscious.

%he mar/s revealed that he had one or more fractures of the s/ull and that the *rey matter and brain &as had suffered material inury. At teno>cloc/ of the ni*ht in 4uestion, &hich &as the time set for performin* the operation, his pulse &as so &ea/ and so irre*ular that, in hisopinion, there &as little hope that he &ould live. is ri*ht le* &as bro/en in such a &ay that the fracture etended to the outer s/in in suchmanner that it mi*ht be re*arded as double and the &ould be eposed to infection, for &hich reason it &as of the most serious nature.

At another eamination si days before the day of the trial, 0r. ;aleeby noticed that the plaintiff>s le* sho&ed a contraction of an inch and a

half and a curvature that made his le* very &ea/ and painful at the point of the fracture. amination of his head revealed a notablereadustment of the functions of the brain and nerves. %he patient apparently &as sli*htly deaf, had a li*ht &ea/ness in his eyes and in hismental condition. %his latter &ea/ness &as al&ays noticed &hen the plaintiff had to do any difficult mental labor, especially &hen he

attempted to use his money for mathematical calculations.

Accordin* to the various merchants &ho testified as &itnesses, the plaintiff>s mental and physical condition prior to the accident &as

ecellent, and that after havin* received the inuries that have been discussed, his physical condition had under*one a noticeabledepreciation, for he had lost the a*ility, ener*y, and ability that he had constantly displayed before the accident as one of the bestconstructors of &ooden buildin*s and he could not no& earn even a half of the income that he had secured for his &or/ because he had lost5" per cent of his efficiency. As a contractor, he could no lon*er, as he had before done, climb up ladders and scaffoldin*s to reach the

hi*hest parts of the buildin*.

As a conse4uence of the loss the plaintiff suffered in the efficiency of his &or/ as a contractor, he had to dissolved the partnership he hadformed &ith the en*ineer.


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As the ne*li*ence &hich caused the collision is a tort committed by an a*ent or employee of the #overnment, the in4uiry at once arises &hether the#overnment is le*ally3liable for the dama*es resultin* therefrom.

Act $o. 257, effective 6ebruary E, 1915, reads!

An Act authori-in* . +erritt to brin* suit a*ainst the #overnment of the (hilippine slands and authori-in* the Attorney3#eneral of saidslands to appear in said suit.

s liability for the ne*li*ent actsof its officers or a*ents, the court said!

$o claim arises a*ainst any *overnment is favor of an individual, by reason of the misfeasance, laches, or unauthori-ed eercise of po&ersby its officers or a*ents. BCitin* #ibbons vs. 8. ;.,


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As to the scope of le*islative enactments permittin* individuals to sue the state &here the cause of action arises out of either fort or contract, the ruleis stated in EF Cyc., 915, thus!

)y consentin* to be sued a state simply &aives its immunity from suit. t does not thereby concede its liability to plaintiff, or create any

cause of action in his favor, or etend its liability to any cause not previously reco*ni-ed. t merely *ives a remedy to enforce a preeistin*liability and submits itself to the urisdiction of the court, subect to its ri*ht to interpose any la&ful defense.

nApfelbacher vs. StateB152 $.


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$ :< O6 A'' O6 Bsic % 6O@#O$#, ud*ment is hereby rendered for the plaintiffs, and defendants +unicipality of;an 6ernando, 'a 8nion and Alfredo )isli* are ordered to pay ointly and severally, plaintiffs Juana @imando3)ania, +rs.(riscilla ). ;urell, 'aureano )ania Jr., ;or +arietta )ania, +rs. 6e ). ;oriano, +ontano )ania, Ora )ania and 'ydia ).

)ania the sums of (1,5""."" as funeral epenses and (2,7.2 as the lost epected earnin*s of the late 'aureano )ania ;r.,(E","""."" as moral dama*es, and (2,5""."" as attorney>s fees. Costs a*ainst said defendants.

%he Complaint is dismissed as to defendants state of +acario $ieveras and )ernardo )ala*ot.

;O O@0@0. BRollo, p. E"

(etitioner filed a motion for reconsideration and for a ne& trial &ithout preudice to another motion &hich &as then pendin*. o&ever, respondentud*e issued another order dated $ovember 7, 1979 denyin* the motion for reconsideration of the order of ;eptember 7, 1979 for havin* been filed

out of time.

6inally, the respondent ud*e issued an order dated 0ecember E, 1979 providin* that if defendants municipality and )isli* further &ish to pursue the

matter disposed of in the order of July 2F, 1979, such should be elevated to a hi*her court in accordance &ith the @ules of Court. ence, this petition.

(etitioner maintains that the respondent ud*e committed *rave abuse of discretion amountin* to ecess of urisdiction in issuin* the aforesaid ordersand in renderin* a decision. 6urthermore, petitioner asserts that &hile appeal of the decision maybe available, the same is not the speedy andade4uate remedy in the ordinary course of la&.

On the other hand, private respondents controvert the position of the petitioner and alle*e that the petition is devoid of merit, utterly lac/in* the *oodfaith &hich is indispensable in a petition for certiorariand prohibition. BRollo,

p. 2. n addition, the private respondents stress that petitioner has not considered that every court, includin* respondent court, has the inherentpo&er to amend and control its process and orders so as to ma/e them conformable to la& and ustice. BRollo, p. E.

%he controversy boils do&n to the main issue of &hether or not the respondent court committed *rave abuse of discretion &hen it deferred and failedto resolve the defense of non3suability of the ;tate amountin* to lac/ of urisdiction in a motion to dismiss.

n the case at bar, the respondent ud*e deferred the resolution of the defense of non3suability of the ;tate amountin* to lac/ of urisdiction until trial.o&ever, said respondent ud*e failed to resolve such defense, proceeded &ith the trial and thereafter rendered a decision a*ainst the municipality

and its driver.

%he respondent ud*e did not commit *rave abuse of discretion &hen in the eercise of its ud*ment it arbitrarily failed to resolve the vital issue ofnon3suability of the ;tate in the *uise of the municipality. o&ever, said ud*e acted in ecess of his urisdiction &hen in his decision dated October1", 1979 he held the municipality liable for the 4uasi3delict committed by its re*ular employee.

%he doctrine of non3suability of the ;tate is epressly provided for in Article G:, ;ection E of the Constitution, to &it! the ;tate may not be sued&ithout its consent.

;tated in simple parlance, thegeneral rule is that the State $ay not be sued e1cept!hen it gives consent to be sued. Consent ta/es the form ofepress or implied consent.

press consent may be embodied in a *eneral la& or a special la&. %he standin* consent of the ;tate to be sued in case of money claims involvin*liability arisin* from contracts is found in Act $o. E"E. A special la& may be passed to enable a person to sue the *overnment for an alle*ed 4uasi3

delict, as in +erritt v. #overnment of the (hilippine slands BE (hil E11. Bsee 8nited ;tates of America v. #uinto, #.@. $o. 7FF"7, 6ebruary 2F,199", 12 ;C@A F, F5.

Consent is implied &hen the *overnment enters into business contracts, thereby descendin* to the level of the other contractin* party, and also &henthe ;tate files a complaint, thus openin* itself to a counterclaim. B0bid

+unicipal corporations, for eample, li/e provinces and cities, are a*encies of the ;tate &hen they are en*a*ed in *overnmental functions andtherefore should enoy the soverei*n immunity from suit. $evertheless, they are subect to suit even in the performance of such functions because

their charter provided that they can sue and be sued. BCru-, hilippine olitical %a!, 197 dition, p. E9

A distinction should first be made bet&een suability and liability. ;uability depends on the consent of the state to be sued, liability on the applicable

la& and the established facts. %he circumstance that a state is suable does not necessarily mean that it is liableD on the other hand, it can never be heldliable if it does not first consent to be sued. 'iability is not conceded by the mere fact that the state has allo&ed itself to be sued.


16/64

%orio vs. 6ontanilla B#. @. $o. '32999E, October 2E, 197. 5 ;C@A 599, F"F, the distinction of po&ers becomes important for purposes ofdeterminin* the liability of the municipality for the acts of its a*ents &hich result in an inury to third persons.

Another statement of the test is *iven in City of ?o/omo vs. 'oy, decided by the ;upreme Court of ndiana in 191F, thus!

+unicipal corporations eist in a dual capacity, and their functions are t&ofold. n one they eercise the ri*ht sprin*in* fromsoverei*nty, and &hile in the performance of the duties pertainin* thereto, their acts are political and *overnmental. %heir officers

and a*ents in such capacity, thou*h elected or appointed by them, are nevertheless public functionaries performin* a publicservice, and as such they are officers, a*ents, and servants of the state. n the other capacity the municipalities eercise a private,

proprietary or corporate ri*ht, arisin* from their eistence as le*al persons and not as public a*encies. %heir officers and a*ents in

the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the stateor soverei*n po&er. B112 $.., 993995 B0bid, pp. F"53F"F.

t has already been remar/ed that municipal corporations are suable because their charters *rant them the competence to sue and be sued.$evertheless, they are *enerally not liable for torts committed by them in the dischar*e of *overnmental functions and can be held ans&erable only ifit can be sho&n that they &ere actin* in a proprietary capacity. n permittin* such entities to be sued, the ;tate merely *ives the claimant the ri*ht to

sho& that the defendant &as not actin* in its *overnmental capacity &hen the inury &as committed or that the case comes under the eceptionsreco*ni-ed by la&. 6ailin* this, the claimant cannot recover. BCru-,supra, p. .

n the case at bar, the driver of the dump truc/ of the municipality insists that he &as on his &ay to the $a*uilian river to *et a load of sand and*ravel for the repair of ;an 6ernando>s municipal streets. BRollo, p. 29.

n the absence of any evidence to the contrary, the re*ularity of the performance of official duty is presumed pursuant to ;ection EBm of @ule 1E1 ofthe @evised @ules of Court. ence,


17/64

M"O #ALMA,J.

%hese (etitions for revie& present the issue of &hether or not the celebration of a to&n fiesta authori-ed by a municipal council under ;ec. 222 of

the +unicipal 'a& as embodied in the @evised Administrative Code is a *overnmental or a corporate or proprietary function of the municipality.

A resolution of that issue &ill lead to another, vi- the civil liability for dama*es of the +unicipality of +alasi4ui, and the members of the +unicipal

Council of +alasi4ui, province of (an*asinan, for a death &hich occurred durin* the celebration of the to&n fiesta on January 22, 1959, and &hich&as attributed to the ne*li*ence of the municipality and its council members.

%he follo&in* facts are not in dispute!

On October 21, 195, the +unicipal Council of +alasi4ui, (an*asinan, passed @esolution $o. 159 &hereby it resolved to mana*e the 1959+alasi4ui to&n fiesta celebration on January 21, 22, and 2E, 1959. @esolution $o. 12 &as also passed creatin* the 1959 +alasi4ui >%o&n 6iestaecutive Committee &hich in turn or*ani-ed a sub3committee on entertainment and sta*e, &ith Jose +acarae* as Chairman. the council

appropriated the amount of (1""."" for the construction of 2 sta*es, one for the -ar-uela and another for the cancionan Jose +acarae* supervisedthe construction of the sta*e and as constructed the sta*e for the -ar-uela &as 53Q meters by meters in si-e, had a &ooden floor hi*h at the rearand &as supported by 2 bamboo posts in a ro& in front, in the rear and 5 on each side &ith bamboo braces. 1

%he -ar-uela entitled +idas trava*an-a &as donated by an association of +alasi4ui employees of the +anila @ailroad Company in Caloocan,

@i-al. %he troupe arrived in the evenin* of January 22 for the performance and one of the members of the *roup &as :icente 6ontanilla. %hepro*ram started at about 1"!15 o>cloc/ that evenin* &ith some speeches, and many persons &ent up the sta*e. %he -ar-uela then be*an but before

the dramatic part of the play &as reached, the sta*e collapsed and :icente 6ontanilla &ho &as at the rear of the sta*e &as pinned underneath.6ontanilia &as ta/en to tile ;an Carlos #eneral ospital &here he died in the afternoon of the follo&in* day.

%he heirs of :icente 6ontanilia filed a complaint &ith the Court of 6irst nstance of +anila on ;eptember 11, 1959 to recover dama*es. $amedparty3defendants &ere the +unicipality of +alasi4ui, the +unicipal Council of +alasi4ui and all the individual members of the +unicipal Council in

1959.

Ans&erin* the complaint defendant municipality invo/ed inter alia the principal defense that as a le*ally and duly or*ani-ed public corporation it

performs soverei*n functions and the holdin* of a to&n fiesta &as an eercise of its *overnmental functions from &hich no liability can arise toans&er for the ne*li*ence of any of its a*ents.

%he defendant councilors inturn maintained that they merely acted as a*ents of the municipality in carryin* out the municipal ordinance providin* forthe mana*ement of the to&n fiesta celebration and as such they are li/e&ise not liable for dama*es as the underta/in* &as not one for profitD

furthermore, they had eercised due care and dili*ence in implementin* the municipal ordinance. 2

After trial, the (residin* Jud*e, on. #re*orio %. 'antin narro&ed the issue to &hether or not the defendants eercised due dili*ence >m the

construction of the sta*e. 6rom his findin*s he arrived at the conclusion that the ecutive Committee appointed by the municipal council hadeercised due dili*ence and care li/e a *ood father of the family in selectin* a competent man to construct a sta*e stron* enou*h for the occasion and

that if it collapsed that &as due to forces beyond the control of the committee on entertainment, conse4uently, the defendants &ere not liable fordama*es for the death of :icente 6ontanilla. %he complaint &as accordin*ly dismissed in a decision dated July 1", 19F2. 3

%he 6ontanillas appealed to the Court of Appeals. n a decision (romul*ated on October E1, 19F, the Court of Appeals throu*h its 6ourth 0ivisioncomposed at the time of Justices ;alvador :. s*uerra, $icasio A. =atco and ulo*io ;. ;errano reversed the trial court>s decision and ordered all thedefendants3appellees to pay ointly and severally the heirs of :icente 6ontanilla the sums of (12,"""."" by &ay of moral and actual dama*es!(12""."" its attorney>s feesD and the costs. )

%he case is no& before 8s on various assi*nments of errors all of &hich center on the proposition stated at the sentence of this Opinion and &hichs *overnmental or public function or is it or a private orproprietary character

1. 8nder (hilippine la&s municipalities are political bodies corporate and as such a* endo&ed &ith the faculties of municipal corporations to beeercised by and throu*h their respective municipal *overnments in conformity &ith la&, and in their proper corporate name, they may inter alia sue

and be sued, and contract and be contracted &ith. 5

%he po&ers of a municipality are t&ofold in character public, *overnmental or political on the one hand, and corporate, private, or proprietary on the

other. #overnmental po&ers are those eercised by the corporation in administerin* the po&ers of the state and promotin* the public &elfare andthey include the le*islative, udicial public, and political +unicipal po&ers on the other hand are eercised for the special benefit and advanta*e ofthe community and include those &hich are ministerial private and corporate. 6


18/64

As to &hen a certain activity is *overnmental and &hen proprietary or private, that is *enerally a difficult matter to determine. %he evolution of themunicipal la& in American Jurisprudence, for instance, has sho&n thatD none of the tests &hich have evolved and are stated in tetboo/s have setdo&n a conclusive principle or rule, so that each case &ill have to be determined on the basis of attendin* circumstances.

n +cKuillin on +unicipal Corporations, the rule is stated thus! A municipal corporation proper has ... a public character as re*ards the state at lar*einsofar as it is its a*ent in *overnment, and private Bso3called insofar as it is to promote local necessities and conveniences for its o&n community. (

Another statement of the test is *iven in City of =o"o$o v. %oy, decided by the ;upreme Court of ndiana in 191F, thus!

+unicipal corporations eist in a dual capacity, and their functions are t&o fold. n one they eercise the ri*ht sprin*in* from

soverei*nty, and &hile in the performance of the duties pertainin* thereto, their acts are political and *overnmental %heir officersand a*ents in such capacity, thou*h elected or appointed by the are nevertheless public functionaries performin* a public service,

and as such they are officers, a*ents, and servants of the state. n the other capacity the municipalities eercise a private.proprietary or corporate ri*ht, arisin* from their eistence as le*al persons and not as public a*encies. %heir officers and a*ents inthe performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and not for thestate or soverei*n po&er. B112 $. 993995

n the early (hilippine case ofMendoza v. de %eon191F, the ;upreme Court, throu*h Justice #rant %. %rent, relyin* mainly on AmericanJurisprudence classified certain activities of the municipality as *overnmental, e.*.! re*ulations a*ainst fire, disease, preservation of public peace,

maintenance of municipal prisons, establishment of schools, post3offices, etc. &hile the follo&in* are corporate or proprietary in character, vi-!municipal &ater&or/, slau*hter houses, mar/ets, stables, bathin* establishments, &harves, ferries, and fisheries. 8+aintenance of par/s, *olf coursescemeteries and airports amon* others, are also reco*ni-ed as municipal or city activities of a proprietary character. 9

2. %his distinction of po&ers becomes important for purposes of determinin* the liability of the municipality for the acts of its a*ents &hich result in

an inury to third persons.

f the inury is caused in the course of the performance of a *overnmental function or duty no recovery, as a rule, can be. had from the municipality

unless there is an eistin* statute on the matter,10nor from its officers, so lon* as they performed their duties honestly and in *ood faith or that theydid not act &antonly and maliciously. 11nalafo1, et al., v. rovince of 0locos 5orte, et al., 195, a truc/ driver employed by the provincial*overnment of locos $orte ran over (roceto (alafo in the course of his &or/ at the construction of a road. %he ;upreme Court in affirmin* the trialcourt>s dismissal of the complaint for dama*es held that the province could not be made liable because its employee &as in the performance of a

*overnmental function the construction and maintenance of roads and ho&ever tra*ic and deplorable it may be, the death of (alafo imposedon the province no duty to pay monetary consideration. 12


19/64

As stated earlier, there can be no hard and fast rule for purposes of determinin* the true nature of an underta/in* or function of a municipalityD thesurroundin* circumstances of a particular case are to be considered and &ill be decisive. %he basic element, ho&ever beneficial to the public theunderta/in* may be, is that it is *overnmental in essence, other&ise. the function becomes private or proprietary in character. asily, no overnmental

or public policy of the state is involved in the celebration of a to&n fiesta. 15

. t follo&s that under the doctrine of respondent superior, petitioner3municipality is to be held liable for dama*es for the death of :icente 6ontanilia

if that &as at3 tributable to the ne*li*ence of the municipality>s officers, employees, or a*ents.

Art. 217F, Civil Code!


20/64


21/64

On these people


22/64


23/64

;o, in 6ield vs. City of 0es +oines BE9 o&a, 575, it &as held that a municipality, actin* under authority *iven it by the central *overnment todestroy houses in the path of a confla*ration, &as not liable in dama*es in the absence of a statute epressly ma/in* it so.

6rom &hat has already been said, it should be clear that a municipality is not eempt from liability for the ne*li*ent performance of its corporate or

proprietary or business functions. n the administration of its patrimonial property, it is to be re*arded as a private corporation or individual so far asits liability to third persons on contract or in tort is concerned. ts contracts, validly entered into, may be enforced and dama*es may be collected from

it for the torts of its officers or a*ents &ithin the scope of their employment in precisely the same manner and to the same etent as those of privatecorporations or individuals. As to such matters the principles of respondeat superior applies. t is for these purposes that the municipality is made

liable to suits in the courts.

+unicipal corporations are subect to be sued upon contracts and in tort. n a previous chapter &e have considered at len*th the authority ofsuch corporations to ma/e contracts, the mode of eercisin*, and the effect of transcendin* the po&er. %his leaves but little to add in this

place respectin* their liability in actions e1 contractu. 8pon an authori-ed contract that is, upon a contract &ithin the scope of thecharter or le*islative po&ers of the corporation and duly made by the proper officers or a*ents they are liable in the same manner and tothe same etent as private corporations or natural persons. B0illon on +unicipal Corporations, 5th ed., sec. 1F1".

%he same author says in section 1F7!

%he rule of la& is a *eneral one, that the superior or employer must ans&er civilly of the ne*li*ence or &ant of s/ill of his a*ent or servant

in the course or line of his employment, by &hich another, &ho is free from contributory fault, is inured. +unicipal corporations, under theconditions herein stated, fall &ithin the operation of this rule of la&, and are liable, accordin*ly, to civil actions for dama*es &hen there4uisite elements of liability coeist. %o create such liability, it is fundamentally necessary that the act done &hich is inurious to othersmust be &ithin the scope of the corporate po&ers as prescribed by charter or positive enactment Bthe etent of &hich po&ers all persons are

bound, at their peril, /no&D in other &ords, it must not be ultra vires in the sense that it is not &ithin the po&er or authority of the

corporation to act in reference to it under any circumstances. f the act complained of necessarily lies &holly outside of the *eneral orspecial po&ers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable to an action for dama*es,&hether it directly commanded the performance of the act &hether it be done by its officers &ithout its epress commandD for a corporation

cannot of course be impliedly liable to a *reater etent than it could ma/e itself by epress corporate vote or action.

t often happens that the same a*ent or a*ency has both a *overnmental and a corporate character. ;uch, for instance, are a municipal &ater system

desi*ned both for protection a*ainst fire Ba *overnmental function and to supply &ater to the inhabitants for profit Ba corporate function BOmaha


24/64

ta/en to safe*uard the interest of the municipality. %hus, inMunicipality of Moncada vs. Ca&uiganB21 (hil. @ep., 1, the lessee of a municipalfishery &as evicted for failin* to pay his 4uarterly rents. %he municipal authorities ri*htly held that the contract &as rescinded but forcibly evicted thelessee instead of resortin* to the courts. ence, in an action by the municipality a*ainst the lessee and his bondsmen to recover rent arrears, dama*es

&ere allo&ed the lessee on his counterclaim for the loss caused by the forcible eviction. $evertheless, &e do not thin/ the councilors could have beenheld personally liable for their error in resortin* to forcible eviction of the lessee. %heirs &as an error of ud*ment, and honest mista/e on their part asto the ri*hts of the municipality in the premises.


25/64

A resolution of that issue &ill lead to another, vi- the civil liability for dama*es of the +unicipality of +alasi4ui, and the members of the +unicipalCouncil of +alasi4ui, province of (an*asinan, for a death &hich occurred durin* the celebration of the to&n fiesta on January 22, 1959, and &hich&as attributed to the ne*li*ence of the municipality and its council members.

%he follo&in* facts are not in dispute!

On October 21, 195, the +unicipal Council of +alasi4ui, (an*asinan, passed @esolution $o. 159 &hereby it resolved to mana*e the 1959

+alasi4ui to&n fiesta celebration on January 21, 22, and 2E, 1959. @esolution $o. 12 &as also passed creatin* the 1959 +alasi4ui >%o&n 6iestaecutive Committee &hich in turn or*ani-ed a sub3committee on entertainment and sta*e, &ith Jose +acarae* as Chairman. the councilappropriated the amount of (1""."" for the construction of 2 sta*es, one for the -ar-uela and another for the cancionan Jose +acarae* supervised

the construction of the sta*e and as constructed the sta*e for the -ar-uela &as 53Q meters by meters in si-e, had a &ooden floor hi*h at the rearand &as supported by 2 bamboo posts in a ro& in front, in the rear and 5 on each side &ith bamboo braces. 1

%he -ar-uela entitled +idas trava*an-a &as donated by an association of +alasi4ui employees of the +anila @ailroad Company in Caloocan,@i-al. %he troupe arrived in the evenin* of January 22 for the performance and one of the members of the *roup &as :icente 6ontanilla. %he

pro*ram started at about 1"!15 o>cloc/ that evenin* &ith some speeches, and many persons &ent up the sta*e. %he -ar-uela then be*an but before

the dramatic part of the play &as reached, the sta*e collapsed and :icente 6ontanilla &ho &as at the rear of the sta*e &as pinned underneath.6ontanilia &as ta/en to tile ;an Carlos #eneral ospital &here he died in the afternoon of the follo&in* day.

%he heirs of :icente 6ontanilia filed a complaint &ith the Court of 6irst nstance of +anila on ;eptember 11, 1959 to recover dama*es. $amedparty3defendants &ere the +unicipality of +alasi4ui, the +unicipal Council of +alasi4ui and all the individual members of the +unicipal Council in1959.

Ans&erin* the complaint defendant municipality invo/ed inter alia the principal defense that as a le*ally and duly or*ani-ed public corporation it

performs soverei*n functions and the holdin* of a to&n fiesta &as an eercise of its *overnmental functions from &hich no liability can arise toans&er for the ne*li*ence of any of its a*ents.

%he defendant councilors inturn maintained that they merely acted as a*ents of the municipality in carryin* out the municipal ordinance providin* forthe mana*ement of the to&n fiesta celebration and as such they are li/e&ise not liable for dama*es as the underta/in* &as not one for profitDfurthermore, they had eercised due care and dili*ence in implementin* the municipal ordinance. 2

After trial, the (residin* Jud*e, on. #re*orio %. 'antin narro&ed the issue to &hether or not the defendants eercised due dili*ence >m the

construction of the sta*e. 6rom his findin*s he arrived at the conclusion that the ecutive Committee appointed by the municipal council hadeercised due dili*ence and care li/e a *ood father of the family in selectin* a competent man to construct a sta*e stron* enou*h for the occasion and

that if it collapsed that &as due to forces beyond the control of the committee on entertainment, conse4uently, the defendants &ere not liable fordama*es for the death of :icente 6ontanilla. %he complaint &as accordin*ly dismissed in a decision dated July 1", 19F2. 3

%he 6ontanillas appealed to the Court of Appeals. n a decision (romul*ated on October E1, 19F, the Court of Appeals throu*h its 6ourth 0ivisioncomposed at the time of Justices ;alvador :. s*uerra, $icasio A. =atco and ulo*io ;. ;errano reversed the trial court>s decision and ordered all the

defendants3appellees to pay ointly and severally the heirs of :icente 6ontanilla the sums of (12,"""."" by &ay of moral and actual dama*es!(12""."" its attorney>s feesD and the costs. )

%he case is no& before 8s on various assi*nments of errors all of &hich center on the proposition stated at the sentence of this Opinion and &hichs *overnmental or public function or is it or a private orproprietary character

1. 8nder (hilippine la&s municipalities are political bodies corporate and as such a* endo&ed &ith the faculties of municipal corporations to beeercised by and throu*h their respective municipal *overnments in conformity &ith la&, and in their proper corporate name, they may inter alia sueand be sued, and contract and be contracted &ith. 5

%he po&ers of a municipality are t&ofold in character public, *overnmental or political on the one hand, and corporate, private, or proprietary on theother. #overnmental po&ers are those eercised by the corporation in administerin* the po&ers of the state and promotin* the public &elfare andthey include the le*islative, udicial public, and political +unicipal po&ers on the other hand are eercised for the special benefit and advanta*e of

the community and include those &hich are ministerial private and corporate. 6

As to &hen a certain activity is *overnmental and &hen proprietary or private, that is *enerally a difficult matter to determine. %he evolution of themunicipal la& in American Jurisprudence, for instance, has sho&n thatD none of the tests &hich have evolved and are stated in tetboo/s have setdo&n a conclusive principle or rule, so that each case &ill have to be determined on the basis of attendin* circumstances.

n +cKuillin on +unicipal Corporations, the rule is stated thus! A municipal corporation proper has ... a public character as re*ards the state at lar*einsofar as it is its a*ent in *overnment, and private Bso3called insofar as it is to promote local necessities and conveniences for its o&n community. (


26/64

Another statement of the test is *iven in City of =o"o$o v. %oy, decided by the ;upreme Court of ndiana in 191F, thus!

+unicipal corporations eist in a dual capacity, and their functions are t&o fold. n one they eercise the ri*ht sprin*in* fromsoverei*nty, and &hile in the performance of the duties pertainin* thereto, their acts are political and *overnmental %heir officers

and a*ents in such capacity, thou*h elected or appointed by the are nevertheless public functionaries performin* a public service,and as such they are officers, a*ents, and servants of the state. n the other capacity the municipalities eercise a private.

proprietary or corporate ri*ht, arisin* from their eistence as le*al persons and not as public a*encies. %heir officers and a*ents inthe performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and not for the

state or soverei*n po&er. B112 $. 993995

n the early (hilippine case ofMendoza v. de %eon191F, the ;upreme Court, throu*h Justice #rant %. %rent, relyin* mainly on AmericanJurisprudence classified certain activities of the municipality as *overnmental, e.*.! re*ulations a*ainst fire, disease, preservation of public peace,maintenance of municipal prisons, establishment of schools, post3offices, etc. &hile the follo&in* are corporate or proprietary in character, vi-!municipal &ater&or/, slau*hter houses, mar/ets, stables, bathin* establishments, &harves, ferries, and fisheries. 8+aintenance of par/s, *olf coursescemeteries and airports amon* others, are also reco*ni-ed as municipal or city activities of a proprietary character. 9

2. %his distinction of po&ers becomes important for purposes of determinin* the liability of the municipality for the acts of its a*ents &hich result inan inury to third persons.

f the inury is caused in the course of the performance of a *overnmental function or duty no recovery, as a rule, can be. had from the municipalityunless there is an eistin* statute on the matter,10nor from its officers, so lon* as they performed their duties honestly and in *ood faith or that theydid not act &antonly and maliciously. 11nalafo1, et al., v. rovince of 0locos 5orte, et al., 195, a truc/ driver employed by the provincial*overnment of locos $orte ran over (roceto (alafo in the course of his &or/ at the construction of a road. %he ;upreme Court in affirmin* the trial

court>s dismissal of the complaint for dama*es held that the province could not be made liable because its employee &as in the performance of a

*overnmental function the construction and maintenance of roads and ho&ever tra*ic and deplorable it may be, the death of (alafo imposedon the province no duty to pay monetary consideration. 12


27/64

Art. 217F, Civil Code!


28/64

... &hen it is sou*ht to render a municipal corporation liable for the act of servants or a*ents, a cardinal in4uiry is, &hether they are the servants ora*ents of the corporation. f the corporation appoints or elects them, can control them in the dischar*e of their duties, can continue or remove the canhold them responsible for the manner in &hich they dischar*e their trust, and if those duties relate to the eercise of corporate po&ers, and are for the

benefit of the corporation in its local or special interest, they may ustly be re*arded as its a*ents or servants, and the maim of respondent superiorapplies. ... B0illon on +unicipal Corporations, 5th d., :ol :, p. 279

5. %he remainin* 4uestion to be resolved centers on the liability of the municipal councilors &ho enacted the ordinance and created the fiestacommittee.

%he Court of Appeals held the councilors ointly and solidarity liable &ith the municipality for dama*es under Article 27 of the Civil Code &hich

provides that d any person sufferin* in* material or moral loss because a public servant or employee refuses or ne*lects, &ithout ust cause toperform his official duty may file an action for dama*es and other relief at the latter. 23

n their (etition for revie& the municipal councilors alle*e that the Court of Appeals erred in rulin* that the holdin* of a to&n fiesta is not a*overnmental function and that there &as ne*li*ence on their part for not maintainin* and supervisin* the safe use of the sta*e, in applyin* Article 27of the Civil Code a*ainst them and in not holdin* Jose +acarae* liable for the collapse of the sta*e and the conse4uent death of :icente 6ontanilla. 2)

s fees and epenses of liti*ation may be *ranted &hen the court deems it ust and e4uitable.n this case of :icente 6ontanilla, althou*h respondent appellate court failed to state the *rounds for a&ardin* attorney>s fees, the records sho&

ho&ever that attempts &ere made by plaintiffs, no& private respondents, to secure an etraudicial compensation from the municipality! that the latter*ave prorases and assurances of assistance but failed to complyD and it &as only ei*ht month after the incident that the bereaved family of :icente6ontanilla &as compelled to see/ relief from the courts to ventilate &hat &as believed to be a ust cause. 28


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s fees &hich after all is a matter of udicial discretion. %he amount of(1,2""."" is fair and reasonable.

(@+;; CO$;0@0,


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rene ;to. 0omin*o &as also informed that she can loo/ for the bones of her deceased husband in the &arehouse of the cemetery&here the ehumed remains from the different burial lots of the $orth Cemetery are bein* /ept until they are retrieved byinterested parties. )ut to the bereaved &ido&, &hat she &as advised to do &as simply unacceptable. Accordin* to her, it &as ust

impossible to locate the remains of her late husband in a depository containin* thousands upon thousands of sac/s of humanbones. ;he did not &ant to run the ris/ of claimin* for the &ron* set of bones. ;he &as even offered another lot but &as neverappeased. ;he &as too a**rieved that she came to court for relief even before she could formally present her claims and demandsto the city *overnment and to the other defendants named in the present complaint. B0ecision, Court of Appeals, pp. 23ED @ollo,

pp. E355

%he trial court, on Au*ust , 191, rendered its 0ecision, the dispositive portion of &hich states!

s counterclaim is 0;+;;0.

$o pronouncement as to costs.

;O O@0@0. B@ollo, p. E1

%he decision &as appealed to the Court of Appeals &hich on +ay E1, 19 rendered a decision B@ollo, pp. EE3" modifyin* the decision appealedfrom, the dispositive portion of &hich reads!

s feesD

F. Orderin* defendants, to pay plaintiffs3appellants, ointly and severally, on the fore*oin* amounts le*al rate of interestcomputed from filin* hereof until fully paidD and

7. Orderin* defendants, to pay plaintiffs3appellants, ointly and severally, the cost of suit.

;O O@0@0. B@ollo, p. "

%he petitioners> motion for reconsideration &as li/e&ise denied.

ence, this instant petition B@ollo, pp. 7327 filed on July 27, 195.

%he *rounds relied upon for this petition are as follo&s!

% O$O@A)' $%@+0A% A((''A% CO8@% @@0 $ A


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% O$. $%@+0A% A((''A% CO8@% @@0 $ O'0$# (%%O$@; @$ @;(O$;)' 6O@% A''#0 %O@%; O6 %@ ;8)O@0$A% O66CA'; A$0 +('O=;, $;(% O6 % (@O:;O$; O6;C%O$ O6 % @(8)'C AC% $O. "9 B@:;0 CA@%@ O6 +A$'A A$0 O%@ A(('CA)'

J8@;(@80$C O$ % ;8)JC% G+(%$# % (%%O$@; 6@O+ 0A+A#; 6@O+ %+A'6A;A$C O@ +;6A;A$C O6 %@ O66CA'; A$0 +('O=;, 6 %@ ) A$= $ %; CA;.B)rief for (etitioners, @ollo, pp. 9E39

n the resolution dated $ovember 1E, 195 B,@ollo, p. , the petition &as *iven due course.

%he pivotal issue of this case is &hether or not the operations and functions of a public cemetery are a *overnmental, or a corporate or proprietary

function of the City of +anila. %he resolution of this issue is essential to the determination of the liability for dama*es of the petitioner city.

(etitioners alle*ed in their petition that the $orth Cemetery is eclusively devoted for public use or purpose as stated in ;ec. E1F of the Compilationof the Ordinances of the City of +anila. %hey conclude that since the City is a political subdivision in the performance of its *overnmental function,it is immune from tort liability &hich may be caused by its public officers and subordinate employees. 6urther ;ection , Article of the @evisedCharter of +anila eempts the city from liability for dama*es or inuries to persons or property arisin* from the failure of the +ayor, the +unicipal

)oard, or any other city officer, to enforce the provision of its charter or any other la&s, or ordinance, or from ne*li*ence of said +ayor, +unicipal)oard or any other officers &hile enforcin* or attemptin* to enforce said provisions. %hey alle*e that the @evised Charter of +anila bein* a special

la& cannot be defeated by the uman @elations provisions of the Civil Code bein* a *eneral la&.

(rivate respondents on the other hand maintain that the City of +anila entered into a contract of lease &hich involve the eercise of proprietaryfunctions &ith private respondent rene ;to. 0omin*o. %he city and its officers therefore can be sued for any3violation of the contract of lease.

(rivate respondents> contention is &ell3ta/en.

8nder (hilippine la&s, the City of +anila is a political body corporate and as such endo&ed &ith the faculties of municipal corporations to beeercised by and throu*h its city *overnment in conformity &ith la&, and in its proper corporate name. t may sue and be sued, and contract and be

contracted &ith. ts po&ers are t&ofold in character3public, *overnmental or political on the one hand, and corporate, private and proprietary on theother. #overnmental po&ers are those eercised in administerin* the po&ers of the state and promotin* the public &elfare and they include thele*islative, udicial, public and political. +unicipal po&ers on the one hand are eercised for the special benefit and advanta*e of the community andinclude those &hich are ministerial, private and corporate. n +cKuillin on +unicipal Corporation, the rule is stated thus! A municipal corporation

proper has ... a public character as re*ards the state at lar*e insofar as it is its a*ent in *overnment, and private Bso called insofar as it is to promotelocal necessities and conveniences for its o&n community B%orio v. 6ontanilla, 5 ;C@A 599 H197I. n connection &ith the po&ers of a municipalcorporation, it may ac4uire property in its public or *overnmental capacity, and private or proprietary capacity. %he $e& Civil Code divides such

properties into property for public use and patrimonial properties BArticle 2E, and further enumerates the properties for public use as provincial

roads, city streets, municipal streets, the s4uares, fountains, public &aters, promenades, and public &or/s for public service paid for by saidprovisions, cities or municipalities, all other property is patrimonial &ithout preudice to the provisions of special la&s BArticle 2D (rovince ofMamboan*a del $orte v. City of Mamboan*a, et al., 22 ;C@A 1EE H19FI.

%hus in Torio v. Fontanilla,supra,the Court declared that &ith respect to proprietary functions the settled rule is that a municipal corporation can beheld liable to third persons e1 contractuB+unicipality of +oncada v. Caui*an, et al., 21 (hil. 1 B1912 or e1 delicto B+endo-a v. de 'eon, EE (hil.5" B191F.

%he Court further stressed!

+unicipal corporations are subect to be sued upon contracts and in tort....

%he rule of la& is a *eneral one, that the superior or employer must ans&er civilly for the negligence or !ant of s"ill of its agentor servant in the course or line of his e$ploy$ent, by !hich another !ho is free fro$ contributory fault, is in&ured. Municipal

corporations under the conditions herein stated, fall !ithin tile operation of this rule of la!, and are liable accordingly, to civilactions for da$ages !hen the re


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cemetery B0bid., ;ee. E19, the openin* of *raves, niches, or tombs, the ehumin* of remains, and the purification of the same B0bid., ;ec. E27 areunder the char*e and responsibility of the superintendent of the cemetery. %he City of +anila furthermore prescribes the procedure and *uidelines forthe use and dispositions of burial lots and plots &ithin the $orth Cemetery throu*h Administrative Order $o. 5, s. 1975 B@ollo, p. .


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T CITY OF C*",plaintiff3appellant,vs.ANACLTO CA*ALLRO,defendant3appellee.

6$ilio A. Matheu for respondent and appellee A. Caballero.

#AR+$,J.:

On April 11, 1955, Anacleto Caballero filed &ith the C6 of Cebu BCivil Case $o. @3E91, a petition forManda$usa*ainst the City +ayor, the

+unicipal )oard, the City, for reinstatement to his former position of Careta/er, Operation of Cemeteries, and for the payment of his bac/ salariesfrom April 15, 195E. On Au*ust F, 1955, the on. dmundo (iccio, rendered the follo&in* ud*ement!

$ :< %@O6, this Court hereby decides that this petition is in order and conse4uently orders for the reinstatement of petitionerCaballero to his former position from &hich he has been separated &ithout benefit of an investi*ation and determination of sufficient cause

and &as thus contrary to the eistin* la& and re*ulations, such reinstatement to be affected &ithin E" days from receipt of this order plusthe payment of his bac/ salaries from April 15, 195E.

$o appeal had been ta/en by the respondent therein and the above ud*ment became final. 8pon motion of petitioner therein BCaballero, a &rit ofeecution &as issued. (ursuant to the &rit, the municipal board of Cebu City passed a resolution, appropriatin* the amount of (E,22."" for the

payment of the bac/ salaries of Caballero. @espondent City +ayor Jose :. @odri*ue- approved the resolution and the amount &as paid to Caballero.

Caballero not havin* been reinstated, not&ithstandin* the abolition of his position, Jud*e (iccio issued an order dated Au*ust 27, 195, directin* themunicipal board to recreate Caballero>s position as Careta/er, &ith compensation of (."" per day. As the municipal board did not comply &ithorder, on ;eptember 11, 1957, Caballero filed a motion, as/in* for an order to compel the members of the board to do so. %he City +ayor, membersof the board, the treasure and the Auditor, ans&erin* the motion for compliance, alle*ed that the City of Cebu, not havin* been made a party to thecase BManda$us, compulsion &ould be ille*al and un&arranted under the facts obtainin*.

%he lo&er court entered, on October 11, 1957, the follo&in* Order!

$ :< %@O6, the Court, amendin* its ori*inal order of reinstatement by ecludin* therefrom petitioner>s ri*ht to reimbursement of

his bac/ salaries from June E", 1955 to the date of his reinstatement, hereby directs that its order of Au*ust 2, 1957, directin* respondent+unicipal )oard to recreate the petitioner>s position as careta/er of the cemetery of Cebu, Cebu City, &ith compensation at the rate of(."" a day includin* ;undays and holidays be carried out &ithin 5 days from receipt of this order, or the Court shall avail itself of itscoercive po&ers to enforce said directive until it is obeyed.

%he City of Cebu eception from the above order and on October 1, 1957, filed a petition for Certiorari&ith this Court B#.@. $o. '31E"12, torestrain Caballero and ud*ment.

)efore the termination of the +andamus proceedin*s, on October 2, 1957, the City of Cebu, claimin* that the payment of the sum of (E,22."" toCaballero &as &ron*ful and ille*al, since it &as not a party to the case, instituted an action BCivil Case $o. @352E a*ainst said Caballero, for therecovery of the same amount, plus (25,"""."" by &ay of compensatory, moral and eemplary dama*es. nstead of ans&erin*, Caballero on October29, 1957, moved to dismiss the complaint for alle*ed failure to state a cause of action. %o buttress his motion, Caballero cited a number of cases

decided by this Court, orderin* the payment of bac/ salaries of employees ille*ally ousted, even thou*h the municipality andNor city concerned &asnot impleaded.B+ission et al. vs.0el @osario, et al., 9 (hil., ED 5" Off., #a-., $o. ,1571D 8y vs.@odri*ue-, 95 (hil., 9ED 5" Off. #a-., $o. ,E57D @odri*ue- vs.0el @osario et al., 9E (hil., 1"7"D 9 Off. #a-., H12I 527D +anuel vs.0e la 6uente, 92 (hil., E"2D Off. #a-., $o. 11, 293E2. An ans&er to the +otion to 0ismiss &as presented by the City of Cebu on October E", 1957, invo/in* ;ection 5 of the Charter for the said City,

eemptin* the City #overnment from any liability for dama*es or inuries to person or property arisin* from the failure of the +ayor, the +unicipal)oard, or any other city officer, to enforce the provisions of the Charter, or any other la& or ordinance, or from ne*li*ence of the said officials andNorofficers &hile enforcin* or attemptin* to enforce the said provisions. Cited in support of this Ans&er &ere cases decided by this Court, dismissin*

them for failure to include the municipal corporations concerned BCabanes, et al. vs.@odri*ue-, et al., #.@. $o. '39799, +ay E1, 1957D Cabo ?ho vs.@odri*ue-, et al., #.@. $o. '39"E2, ;ept. 2, 1957D City of )acolod vs.nri4ue-, et al., 1"1 (hil., FD 55 Off. #a-., H51I 1"55D An*ara vs.#orospe1"1 (hil., 79D 5E Off. #a-. H1I ".la!phil.net

On 0ecember E, 1957, the C6 of Cebu, presided by Jud*e @odri*ue- entered an order dismissin* the complaint. %he City of Cebu appealed theorder directly to this Court, Bno& #.@. $o. '317F, claimin* that the lo&er court erredDB1 in overloo/in* the fact that the City of Cebu &as nevermade a party in the mandamus case BCivil $o. @3E91, so that it could not be bound by the ud*ment therein enteredD B2 in i*norin* the provisionsof section 5 of the Charter of the City of Cebu, as interpreted and applied in the case of 6aunillan vs.0el @osario, et al, 99 (hil., 75D Off. #a-. HE1I

515D andBE in dismissin* the case.

%he issues involved in the petition for certiorariand the appeal are identical. )oth cases pose the follo&in* 4uestions! B1 0oes the non3inclusion of

the City of Cebu in the +andamus case, ma/e the payment of the bac/ salaries of Caballero &ron*ful or ille*al and not bindin* on said CityD and B2s the dismissal of the recovery case, &ell ta/en


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#A+ILLA,J.:

%his is an appeal from the ud*ment, dated 1F October 19F7, of the Court of 6irst nstance of 'a*una in Civil Case $o. ;C3719, &hich ordered therespondents to reinstate the petitioner to his former position of chief of police of ?alayaan, 'a*una, &ith bac/ salaries from his dismissal up to his

actual reinstatement.

%he facts are not disputed. %he petitioner ;olano 'a*anapan &as appointed chief of police of the municipality of ?alayaan, 'a*una on January

19F", &ith a compensation of (FF"."" per annum, by the respondent +ayor Asedillo. On 1 July 19F", his salary &as increased to (72"."" perannum, and he &as etended an appointment &hich &as approved as provisional under ;ec. 2Bc of @epublic Act $o. 22F" by the Commissioner ofCivil ;ervice. 1

On 1 April 19F2, the petitioner &as *iven another increase in salary and a correspondin* appointment &as made &hich the Commissioner of Civil

;ervice approved under ;ec. 2Bc of @epublic Act $o. 22F", to continue until replaced by an eli*ible but not beyond thirty BE" days from receiptof certification of eli*ibles by the (rovincial %reasurer of 'a*una. 2

%hen, on 1 July 19FE, 1 July 19F, and 1 July 19F5, he &as a*ain *iven salary increases, and ne& appointments &ere etended to him, &hichappointments &ere also approved under ;ection 2Bc of @epublic Act $o. 22F" by the Commissioner ofCivil ;ervice. 3

o&ever, on 1F 6ebruary 19F7, the petitioner &as summarily dismissed from his position by respondent +ayor lpidio Asedillo, on the *round thathis appointment &as provisional and that he has no civil service eli*ibility. %he petitioner &as told to surrender his firearm and other office

e4uipment to the +unicipal %reasurer of ?alayaan, 'a*una )&ho &as also informed of petitioner>s dismissal on the same day. 5@espondent pifanio@a*otero &as appointed actin* chief of police of ?alayaan, 'a*una on the same day, in place of the petitioner. 6

;ubse4uently, or on 21 6ebruary 19F7, the +unicipal Council of ?alayaan, 'a*una abolished the appropriation for the salary of the chief of police of?alayaan, 'a*una. (n vie& thereof, the petitioner complained to the (olice Commission &hich advised him to file an inunction suit a*ainst +ayorAsedillo. 8

ence, on 1F +arch 19F7, the petitioner filed a petition for mandamus, 4uo &arranto &ith preliminary mandatory inunction a*ainst respondents

+ayor lpidio Asedillo, the +unicipality of ?alayaan, 'a*una, and pifanio @a*otero, before the Court of 6irst nstance of 'a*una, doc/etedtherein as Civil Case $o. ;C3719, see/in* his reinstatement to the position of chief of police of ?alayaan, 'a*una, &ith bac/ salaries and dama*es. 9

n ans&er, respondents +ayor lpidio Asedillo and pifanio @a*otero claimed that the appointment of the petitioner, bein* merely temporary incharacter, and the petitioner havin* no civil service eli*ibility, his services could be terminated &ith or &ithout cause, at the pleasure of the appoint

po&erD and that the petitioner failed to ehaust all administrative remedies. 10

%he respondent +unicipality of ?alayaan, 'a*una, for its part, alle*ed that the petitioner has no cause of action a*ainst itD and that, if the acts of the

respondent mayor are patently irre*ular, the said mayor should be held solely liable therefor. 11

After due hearin*, ud*ment &as rendered, as follo&s!


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and orderin* the petitioner to pay the respondents reasonable epenses incurred by them by reason of the false alle*ations in the verified petition formandamus and 4uo &arranto.

%he appellant +unicipality of ?alayaan, 'a*una additionally claims that the lo&er court erred in not holdin* respondent3appellant +ayor lpidio

Asedillo personally liable for his ille*al act.

s provisional appointmentcould only be terminated thirty BE" days after receipt by the appointin* officer of a list of eli*ibles from the Civil ;ervice Commission. s summary dismissal from his position, even abolished the appropriationfor the salary of the Chief of (olice of ?alayaan, 'a*una,


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A number of cases decided by the Court &here the municipal mayor alone&as held liable for bac/ salaries of, or dama*es to dismissed municipalemployees, to the eclusion of the municipality, are not applicable in this instance. n Salcedo vs. Court of Appeals,1( for instance, the municipalmayor &as held liable for the bac/ salaries of the Chief of (olice he had dismissed, not only because the dismissal &as arbitrary but also because the

mayor refused to reinstate him in defiance of an order of the Co$$issioner of Civil Service to reinstate.

n5e$enzo vs. Sabillano,18the municipal mayor &as held personally liable for dismissin* a police corporal !ho possessed the necessary civilservice eligibility, the dismissal bein* done &ithout ustifiable cause and &ithout any administrative investi*ation.

nRa$a vs. Court of Appeals, 19the *overnor, vice3*overnor, members of the ;an**unian* (anlala&i*an, provincial auditor, provincial treasurerand provincial en*ineer &ere ordered to pay ointly and severally in their individual and personal capacity dama*es to some 2"" employees of the

province of Cebu &ho &ere eased out from their positions because of their party affiliations.

%he trial court, therefore, did not commit error in findin* that the summary dismissal of the petitioner &as ille*al and in orderin* the respondent+ayor and respondent +unicipality to reinstate him &ith bac/ salaries from the time of his dismissal.

%he appealed ud*ment, ho&ever, needs some modification in the li*ht of supervenin* events. t &ould appear that the reinstatement of thepetitioner3appellee to his former position of chief of police of ?alayaan, 'a*una, as ordered in the appealed ud*ment, is no lon*er feasible andhence, it cannot be enforced, in vie& of the appointment of a permanent chief of police Bno& called ;tation Commander in accordance &ith (0 2,issued on 1E June 197, &hich provides for the inte*ration of police and fire departments and ails in certain provinces, includin* the province of

'a*una.

n the Court>s @esolution, dated 1 +ay 197, the parties &ere re4uired to +O: in the premises &ithin ten B1" days from notice, considerin* thesupervenin* events, includin* the chan*e of administration that has transpired since the promul*ation of the 6reedom Constitution by virtue of(roclamation $o. E, dated 25 +arch 19F as &ell as the ratification of the 197 Constitution and pursuant to the provision of ;ection 1 of @ule E,

insofar as the public respondents are concerned B&hich re4uires the successor official to state &hether or not he maintains the action and positionta/en by his predecessor in office. 20(ursuant thereto, respondents3appellants filed a +otion to 0ismiss 21&hich states, amon* others, that

E. 8pon the or*ani-ation of nte*rated $ational (olice, respondent pifanio @a*otero, &ho &as desi*nated Actin* Chief of(olice of ?alayaan, &as replaced by a permanent ;tation Commander, Antonio de la (a-, &ho holds said position until no&D

. %hat respondent +ayor lpidio Asedillo has lon* been dead since April 2F, 197, but even before he died he had beensucceeded as +ayor of ?alayaan, 'a*una, by +ayor $orma +acarae*, then after his death by +ayor #erardo ?abamalan, &ho

&as elected in 19", and finally by OC %uriano +ontes, Jr., &ho &as appointed on April E, 19F after the 0;A revolutionD

5. %hat petitioner3appellee ;olano 'a*anapan himself &as appointed as +unicipal ;ecretary of the ;an**unian* )ayan of

?alayaan, 'a*una on April 7, 19F after the 0;A revolution but his services &ere terminated on April 7, 197, as he is not acivil service eli*ible. 22

;uch bein* the case, the petitioner3appellee is entitled only to bac/salaries &hich, ho&ever, should be limited to a period of five B5 years. 23

n addition, respondent +ayor Asedillo &ho &as sued in his official capacity as municipal mayor, havin* passed a&ay, the liability to pay petitioner

his bac/ salaries must no& devolve upon the respondent municipality alone.


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+AYANAN, FLAIANO +I#ARIN, *RNAR+O GAM*OA, I$MAL GANT"ANGCO, C$AR RNAN+, JORG JACA,GORGONIO JACALAN, $RIANO LANG*I+, TOMA$ LANG*I+, +IO$+A+O LA$TIMA+O, #A*LO L"NA, MAIMOLARIO$A, ICNT LA#A, RICAR+O MAGALLON, MILIANO MATARIO, RAMON #A+RIGA, NICANOR O#"RA, AL*RTOMINTILLO$A, R"FINO R#ONT, *LA$ #AR+ILLO, $MAL RG"+"$, MARCLIANO +LO$ $ANTO$, CAN+I+O R"FLO,L"I$ $ALA#A, #+RO $ACL, FRI$CO $ACL, MIG"L $ARAMO$ING, J"LIAN LO$O, *RNAR+O TALLO, AR="I#OYRAY, #ATRICIO ILLARMIA, ICNT ILLAMORA an! LONCIO A*ALA, respondents.

No. L-))8)2 Mar/ 16, 198(

RN $#INA, #A*LO #, GARCIA, RYNAL+O M. MN+IOLA an! ALRIANO $. CARILLO,petitioners,

vs.CO"RT OF A##AL$, FROILAN FRON+O$O an! JRMIA$ L"NA, respondents.

No. L-))591 Mar/ 16, 198(

RN $#INA, #A*LO #. GARCIA, RYNAL+O M. MN+IOLA an! ALRIANO $. CARILLO,petitioners,vs.CO"RT OF A##AL$ an! 'a& r&'on!&n%' a' 4n L-)))8)B, respondents.

No. L-))89) Mar/ 16, 198(

#ROINC OF C*" an! 4%' $ANGG"NIANG #ANLALA@IGAN,petitioner,vs.

CO"RT OF A##AL$, FROILAN FRON+O$O an! JRMIA$ L"NA, respondents.

Cecilio @. 4uaren for private respondents in %B.

ustino 8er$osisi$a for rovince of Cebu in %B.

ablo . 4arcia @aleriano S. Carillo for petitioners in %EEEB B.

4abriel Ca*ete for private respondents.

ALAM#AY,J.:

0urin* the incumbency of @ene spina as provincial *overnor of Cebu, Osmundo #. @ama as vice3*overnor and (ablo (. #arcia, @eynaldo +.

+endiola and :alerians ;. Carillo as members of the ;an**unian* (anlala&i*an, said officials adopted @esolution $o. 99" &hich appropriated fundsfor the maintenance and repair of provincial roads and brid*es and for the operation and maintenance of the office of the provincial en*ineer and for

other purposes. B'3591, @ollo, pp. E3E7.

n said resolution, the provincial *overnment of Cebu under the aforementioned officials, declared its policy to mechani-e the maintenance andrepair of all roads and brid*es of the province Bincludin* provincial roads and brid*es receivin* national aid JJ, to economi-e in the ependiture ofits @oad and )rid*e 6und for the maintenance and repair of provincial roads and brid*es receivin* national aid JJ and to adopt a more

comprehensive, systematic, efficient, pro*ressive and orderly operation and maintenance of the Office of the (rovincial n*ineer.

%o implement said policy, the provincial board resolved to abolish around thirty positions the salaries of &hich &ere paid from the JJ @oad and)rid*e 6und thus doin* a&ay &ith the ca$ineroBpic/3shovel3&heelbarro& system Conse4uently around 2"" employees of the province &ere easedout of their respective obs and, to implement the mechani-ation pro*ram in the maintenance of roads and brid*es, the provincial *overnment

purchased heavy e4uipment &orth (,""","""."". o&ever, contrary to its declared policy to economi-e the provincial administration later on hiredaround one thousand ne& employees, renovated the office of the provincial en*ineer and provided the latter &ith a +ercedes3)en- car B0ecision in

CA3#.@. $o. 9E23@, '3591, @ollo, p. E7.

A**rieved by these turn of events, the employees &hose positions &ere abolished filed separate petitions for mandamus, dama*es and attorneys feesaimed at the annulment of @esolution $o. 99", their reinstatement and the recovery of dama*es %he aforementioned provincial officials &ho,to*ether &ith the provincial auditor, provincial treasurer, provincial en*ineer and the province of Cebu, &ere named respondents in said action, &ere

sued both in their official and personal capacities as a result of their alle*ed unust, oppressive, ille*al and malicious> acts B(etition, @ecord inCivil Case $o. @31"7", p. E.

n Civil Case $o. @31"7", the Court of 6irst nstance of Cebu declared @esolution $o. 99" nun and void and ordered the respondent officials to re3create the positions abolished, to provide funds therefore, to reinstate the 5F petitioners headed by Jose Abala, and to pay them bac/ salaries. 6or


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lac/ of le*al and factual basis, no dama*es &ere a&arded to petitioners and no pronouncement as to attorney>s fees &ere made as the petitionershad a*reed to pay their la&yers E"R of &hatever amount they &ould receive as bac/ salaries B'3591, @ollo, pp. EE3E.

All the parties appealed to the Court of Appeals BCA3#.@. $o. 9E23@. ventually, said appellate court, throu*h its 6irst 0ivision, affirmed the

lo&er court>s decision &ith the modification that respondents &ere ordered to pay ointly and severally in their individual and personal capacity(1,"""."" moral dama*es to each of the petitioners considerin* that the case involved a +endiola and Carillo then filed theiro&n petition for revie& B#.@. $o. '3591. )ut before spina, et al. could file said petition, the province of Cebu and its ;an**unian* (anlala&i*anfiled their o&n petition for r

municipal liability cases

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