case list consti

8/11/2019 Case List Consti

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Republic of the Philippines SUPREME COURT Manila

EN BANC

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

THE CITY OF MANILA,plaintiff-appellant, vs.

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

City Fiscal Diaz for appellant. Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado andDelgado, Filemon Sotto, and Ramon Salinas for appellees.

JOHNSON, J .:

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

That question arose in the following manner:

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

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

The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila],answering the petition of the plaintiff, alleged that it was a corporation organized and existingunder and by virtue of the laws of the Philippine Islands, having for its purpose the benefit andgeneral welfare of the Chinese Community of the City of Manila; that it was the owner of parcelsone and two of the land described in paragraph 2 of the complaint; that it denied that it was eithernecessary or expedient that the said parcels be expropriated for street purposes; that existingstreet and roads furnished ample means of communication for the public in the district covered bysuch proposed expropriation; that if the construction of the street or road should be considered apublic necessity, other routes were available, which would fully satisfy the plaintiff's purposes, atmuch less expense and without disturbing the resting places of the dead; that it had a Torrenstitle for the lands in question; that the lands in question had been used by the defendant forcemetery purposes; that a great number of Chinese were buried in said cemetery; that if saidexpropriation be carried into effect, it would disturb the resting places of the dead, would require

the expenditure of a large sum of money in the transfer or removal of the bodies to some otherplace or site and in the purchase of such new sites, would involve the destruction of existingmonuments and the erection of new monuments in their stead, and would create irreparable lossand injury to the defendant and to all those persons owning and interested in the graves andmonuments which would have to be destroyed; that the plaintiff was without right or authority toexpropriate said cemetery or any part or portion thereof for street purposes; and that theexpropriation, in fact, was not necessary as a public improvement.

The defendant Ildefonso Tambunting, answering the petition, denied each and every


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allegation of the complaint, and alleged that said expropriation was not a public improvement; thatit was not necessary for the plaintiff to acquire the parcels of land in question; that a portion of thelands in question was used as a cemetery in which were the graves of his ancestors; thatmonuments and tombstones of great value were found thereon; that the land had become quasi-public property of a benevolent association, dedicated and used for the burial of the dead andthat many dead were buried there; that if the plaintiff deemed it necessary to extend RizalAvenue, he had offered and still offers to grant a right of way for the said extension over otherland, without cost to the plaintiff, in order that the sepulchers, chapels and graves of his ancestorsmay not be disturbed; that the land so offered, free of charge, would answer every publicnecessity on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, andeach of the other defendants, answering separately, presented substantially the same defense asthat presented by the Comunidad de Chinos de Manila and Ildefonso Tambunting above referredto.

The foregoing parts of the defense presented by the defendants have been inserted inorder to show the general character of the defenses presented by each of the defendants. Theplaintiff alleged that the expropriation was necessary. The defendants each alleged (a) that no

necessity existed for said expropriation and (b) that the land in question was a cemetery, whichhad been used as such for many years, and was covered with sepulchres and monuments, andthat the same should not be converted into a street for public purposes.

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

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

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

That the city of Manila has authority to expropriate private lands forpublic purposes, is notdenied. Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city(Manila) . . . may condemnprivate property forpublic use."

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


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

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

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

It is contended on the part of the plaintiff that the phrase in said section, "and if the courtshall find the right to expropriate exists," means simply that, if the court finds that there is somelaw authorizing the plaintiff to expropriate, then the courts have no other function than to

authorize the expropriation and to proceed to ascertain the value of the land involved; that thenecessity for the expropriation is a legislative and not a judicial question.

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

If, upon the other hand, however, the Legislature should grant general authority to a

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

The city of Manila is given authority to expropriateprivate lands forpublic purposes. Can itbe possible that said authority confers the right to determine for itself that the land is private and

that the purpose is public, and that the people of the city of Manila who pay the taxes for itssupport, especially those who are directly affected, may not question one or the other, or both, ofthese questions? Can it be successfully contended that the phrase used in Act No. 190, "and ifthe court upon trial shall find that such right exists," means simply that the court shall examine the statutes simply for the purpose of ascertaining whether a law exists authorizing the petitioner toexercise the right of eminent domain? Or, when the case arrives in the Supreme Court, can it bepossible that the phrase, "if the Supreme Court shall determine that no right of expropriationexists," that that simply means that the Supreme Court shall also examine the enactments of thelegislature for the purpose of determining whether or not a law exists permitting the plaintiff toexpropriate?


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

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

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

It has been contended and many cases are cited in support of that contention, andsection 158 of volume 10 of Ruling Case Law is cited as conclusive that the necessity fortaking property under the right of eminent domain is not a judicial question. But those who citedsaid section evidently overlooked the section immediately following (sec. 159), which adds: "But itis obvious that if the property is taken in the ostensible behalf of a public improvement which itcan never by any possibility serve, it is being taken for a use not public, and the owner's

constitutional rights call for protection by the courts. While many courts have used sweepingexpression in the decisions in which they have disclaimed the power of supervising the power ofsupervising the selection of the sites of public improvements , it may be safely said that the courtsof the various states would feel bound to interfere to prevent an abuse of the discretion delegatedby the legislature, by an attempted appropriation of land in utter disregard of the possiblenecessity of its use, or when the alleged purpose was a cloak to some sinister scheme." (NorwichCity vs. Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling,etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., 620.)

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

The legislature, in providing for the exercise of the power of eminent domain, may directly

determine the necessity for appropriating private property for a particular improvement for publicuse, and it may select the exact location of the improvement. In such a case, it is well settled thatthe utility of the proposed improvement, the extent of the public necessity for its construction, theexpediency of constructing it, the suitableness of the location selected and the consequentnecessity of taking the land selected for its site, are all questions exclusively for the legislature todetermine, and the courts have no power to interfere, or to substitute their own views for those ofthe representatives of the people.

Practically every case cited in support of the above doctrine has been examined, and weare justified in making the statement that in each case the legislature directly determined the


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necessity for the exercise of the right of eminent domain in the particular case. It is not deniedthat if the necessity for the exercise of the right of eminent domain is presented to the legislativedepartment of the government and that department decides that there exists a necessity for theexercise of the right in a particular case, that then and in that case, the courts will not go behindthe action of the legislature and make inquiry concerning the necessity. But, in the case ofWheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co.(72 Ohio St., 368 [106 Am. St. rep., 622, 628]),which was cited in support of the doctrine laid down in section 158 above quoted, the court said:

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

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

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

Whether it was wise, advisable, or necessary to confer upon a municipality the power toexercise the right of eminent domain, is a question with which the courts are not concerned. Butwhen that right or authority is exercised for the purpose of depriving citizens of their property, the

courts are authorized, in this jurisdiction, to make inquiry and to hear proof upon the necessity inthe particular case, and not the general authority.

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

In the absence of some constitutional or statutory provision to the contrary, the necessityand expediency of exercising the right of eminent domain are questions essentially political andnot judicial in their character. The determination of those questions (the necessity and theexpediency) belongs to the sovereign power; the legislative department is final and conclusive,and the courts have no power to review it (the necessity and the expediency) . . . . It (thelegislature) may designate the particular property to be condemned, and its determination in this

respect cannot be reviewed by the courts.

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrinequoted. While time has not permitted an examination of all of said citations, many of them havebeen examined, and it can be confidently asserted that said cases which are cited in support ofthe assertion that, "the necessity and expediency of exercising the right of eminent domain arequestions essentially political and not judicial," show clearly and invariably that in each case thelegislature itself usually, by a special law, designated the particular case in which the right ofeminent domain might be exercised by the particular municipal corporation or entity within the


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state. (Eastern R. Co. vs.Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn ParkCom'rs vs.Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs.Danville, etc. Ry. Co., 208 U.S. 598; Cincinnati vs.Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar WaterPower Co., 229 U. S., 53; U.S. vs.Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs.MiningCo., 196 U.S., 239; Sears vs.City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)

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

In the case of School Board of Carolina vs. Saldaa(14 Porto Rico, 339, 356), we find theSupreme Court of Porto Rico, speaking through Justice MacLeary, quoting approvingly thefollowing, upon the question which we are discussing: "It is well settled that although thelegislature must necessarily determine in the first instance whether the use for which they(municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities,etc.) determination is not final, but is subject to correction by the courts, who may undoubtedly

declare the statute unconstitutional, if it shall clearly appear that the use for which it is proposedto authorize the taking of private property is in reality not public but private." Many cases are citedin support of that doctrine.

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

In the case of Board of Water Com'rs., etc. vs. Johnson(86 Conn., 571 [41 L. R. A., N. S.,1024]), the Supreme Court of Connecticut approvingly quoted the following doctrine from Lewison Eminent Domain (3d ed.), section 599: "In all such cases the necessity of public utility of theproposed work or improvement is a judicial question. In all such cases, where the authority is to

take property necessary for the purpose, the necessity of takingparticular property for a particularpurpose is a judicial one, upon which the owner is entitled to be heard." (Riley vs.Charleston, etc.Co., 71 S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs.Lexington 132 Ky., 390, 403.)

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

In the case of New Central Coal Co. vs. George's etc. Co.(37 Md., 537, 564), the SupremeCourt of the State of Maryland, discussing the question before us, said: "To justify the exercise ofthis extreme power (eminent domain) where the legislature has left it to depend upon the

necessity that may be found to exist, in order to accomplish the purpose of the incorporation, asin this case, the party claiming the right to the exercise of the power should be required to showat least a reasonable degree of necessity for its exercise. Any rule less strict than this, with thelarge and almost indiscriminate delegation of the right to corporations, would likely lead tooppression and the sacrifice of private right to corporate power."

In the case of Dewey vs. Chicago, etc. Co.(184 Ill., 426, 433), the court said: "Its right tocondemn property is not a general power of condemnation, but is limited to cases where anecessity for resort to private property is shown to exist. Such necessity must appear upon the


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face of the petition to condemn. If the necessary is denied the burden is upon the company(municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs.Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs.Mattoon Waterworks, etc. Co., 245 Ill.,544 [137 Am. St. Rep. 338].)

It is true that naby decisions may be found asserting that what is a public use is a

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

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

Blackstone, in his Commentaries on the English Law said that the right to own and possessland a place to live separate and apart from others to retain it as a home for the family in away not to be molested by others is one of the most sacred rights that men are heirs to. Thatright has been written into the organic law of every civilized nation. The Acts of Congress of July1, 1902, and of August 29, 1916, which provide that "no law shall be enacted in the PhilippineIslands which shall deprive any person of his property without due process of law," are but arestatement of the time-honored protection of the absolute right of the individual to his property.Neither did said Acts of Congress add anything to the law already existing in the PhilippineIslands. The Spaniard fully recognized the principle and adequately protected the inhabitants ofthe Philippine Islands against the encroachment upon the private property of the individual. Article349 of the Civil Code provides that: "No one may be deprived of his property unless it be bycompetent authority, for some purpose ofproven public utility, and after payment of the propercompensation Unless this requisite (proven public utility and payment) has been complied with, it

shall be theduty of the courts to protect the owner of such property in its possession or to restoreits possession to him , as the case may be."

The exercise of the right of eminent domain, whether directly by the State, or by itsauthorized agents, is necessarily in derogation of private rights, and the rule in that case is thatthe authority must be strictly construed. No species of property is held by individuals with greatertenacity, and none is guarded by the constitution and laws more sedulously, than the right to thefreehold of inhabitants. When the legislature interferes with that right, and, for greater publicpurposes, appropriates the land of an individual without his consent, the plain meaning of the law


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should not be enlarged by doubtly interpretation. (Bensely vs.Mountainlake Water Co., 13 Cal.,306 and cases cited [73 Am. Dec., 576].)

The statutory power of taking property from the owner without his consent is one of themost delicate exercise of government authority. It is to be watched with jealous scrutiny.Important as the power may be to the government, the inviolable sanctity which all free

constitutions attach to the right of property of the citizens, constrains the strict observance of thesubstantial provisions of the law which are prescribed as modes of the exercise of the power, andto protect it from abuse. Not only must the authority of municipal corporations to take property beexpressly conferred and the use for which it is taken specified, but the power, with allconstitutional limitation and directions for its exercise, must be strictly pursued. (Dillon onMunicipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs.Manila Railroad Co., 22Phil., 411.)

It can scarcely be contended that a municipality would be permitted to take property forsome public use unless some public necessity existed therefor. The right to take private propertyfor public use originates in the necessity, and the taking must be limited by such necessity. Theappellant contends that inasmuch as the legislature has given it general authority to take privateproperty for public use, that the legislature has, therefore, settled the question of the necessity in

every case and that the courts are closed to the owners of the property upon that question. Can itbe imagined, when the legislature adopted section 2429 of Act No. 2711, that it thereby declaredthat it was necessary to appropriate the property of Juan de la Cruz, whose property, perhaps,was not within the city limits at the time the law was adopted? The legislature, then, not havingdeclared the necessity, can it be contemplated that it intended that a municipality should be thesole judge of the necessity in every case, and that the courts, in the face of the provision that "ifupon trial they shall find that a right exists," cannot in that trial inquire into and hear proof uponthe necessity for the appropriation in a particular case?

The Charter of the city of Manila authorizes the taking ofprivate property for public use.Suppose the owner of the property denies and successfully proves that the taking of his propertyserves no public use: Would the courts not be justified in inquiring into that question and in finallydenying the petition if no public purpose was proved? Can it be denied that the courts have a

right to inquire into that question? If the courts can ask questions and decide, upon an issueproperly presented, whether the use is public or not, is not that tantamount to permitting thecourts to inquire into the necessity of the appropriation? If there is no public use, then there is nonecessity, and if there is no necessity, it is difficult to understand how a public use cannecessarily exist. If the courts can inquire into the question whether a public use exists or not,then it seems that it must follow that they can examine into the question of the necessity.

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

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


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courts have the right to inquire into.

Theconflict in the authorities upon the question whether thenecessity for the exercise ofthe right of eminent domain is purely legislative and not judicial, arises generally in the wisdomand propriety of the legislature in authorizing the exercise of the right of eminent domain insteadof in the question of the right to exercise it in a particular case. (Creston Waterworks Co. vs.

McGrath, 89 Iowa, 502.)

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

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

Aside from insisting that there exists no necessity for the alleged improvements, the

defendants further contend that the street in question should not be opened through thecemetery. One of the defendants alleges that said cemetery ispublic property. If that allegationsis true, then, of course, the city of Manila cannot appropriate it for public use. The city of Manilacan only expropriateprivate property.

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

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

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

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

It is alleged, and not denied, that the cemetery in question may be used by the general

community of Chinese, which fact, in the general acceptation of the definition of a publiccemetery, would make the cemetery in question public property. If that is true, then, of course, thepetition of the plaintiff must be denied, for the reason that the city of Manila has no authority orright under the law to expropriate public property.

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


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

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

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

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

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


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EN BANC

G.R. No. L-18841 January 27, 1969

REPUBLIC OF THE PHILIPPINES,plaintiff-appellant, vs. PHILIPPINE LONG DISTANCETELEPHONE COMPANY,defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres andSolicitor Camilo D. Quiason for plaintiff-appellant.

Ponce Enrile, Siguion Reyna, Montecillo andBelo for defendant-appellant.

REYES, J.B.L., J .:

Direct appeals, upon a joint record on appeal, by both the plaintiff and the defendant fromthe dismissal, after hearing, by the Court of First Instance of Manila, in its Civil Case No. 35805,of their respective complaint and counterclaims, but making permanent a preliminary mandatoryinjunction theretofore issued against the defendant on the interconnection of telephone facilitiesowned and operated by said parties.

The plaintiff, Republic of the Philippines, is a political entity exercising governmentalpowers through its branches and instrumentalities, one of which is the Bureau ofTelecommunications. That office was created on 1 July 1947, under Executive Order No. 94, withthe following powers and duties, in addition to certain powers and duties formerly vested in theDirector of Posts: 1awphil.t

SEC. 79. The Bureau of Telecommunications shall exercise the following powers andduties:

(a) To operate and maintain existing wire-telegraph and radio-telegraph offices, stations, andfacilities, and those to be established to restore the pre-war telecommunication service under theBureau of Posts, as well as such additional offices or stations as may hereafter be established toprovide telecommunication service in places requiring such service;

(b) To investigate, consolidate, negotiate for, operate and maintain wire-telephone or radiotelephone communication service throughout the Philippines by utilizing such existing facilities incities, towns, and provinces as may be found feasible and under such terms and conditions orarrangements with the present owners or operators thereof as may be agreed upon to thesatisfaction of all concerned;

(c) To prescribe, subject to approval by the Department Head, equitable rates of charges formessages handled by the system and/or for time calls and other services that may be rendered

by said system;

(d) To establish and maintain coastal stations to serve ships at sea or aircrafts and, when publicinterest so requires, to engage in the international telecommunication service in agreement withother countries desiring to establish such service with the Republic of the Philippines; and

(e) To abide by all existing rules and regulations prescribed by the InternationalTelecommunication Convention relative to the accounting, disposition and exchange of messageshandled in the international service, and those that may hereafter be promulgated by said


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convention and adhered to by the Government of the Republic of the Philippines.1

The defendant, Philippine Long Distance Telephone Company (PLDT for short), is apublic service corporation holding a legislative franchise, Act 3426, as amended byCommonwealth Act 407, to install, operate and maintain a telephone system throughout thePhilippines and to carry on the business of electrical transmission of messages within the

Philippines and between the Philippines and the telephone systems of other countries.

2

The RCACommunications, Inc., (which is not a party to the present case but has contractual relations withthe parties) is an American corporation authorized to transact business in the Philippines and isthe grantee, by assignment, of a legislative franchise to operate a domestic station for thereception and transmission of long distance wireless messages (Act 2178) and to operatebroadcasting and radio-telephone and radio-telegraphic communications services (Act 3180).

3

Sometime in 1933, the defendant, PLDT, and the RCA Communications, Inc., entered intoan agreement whereby telephone messages, coming from the United States and received byRCA's domestic station, could automatically be transferred to the lines of PLDT; and vice-versa,for calls collected by the PLDT for transmission from the Philippines to the United States. Thecontracting parties agreed to divide the tolls, as follows: 25% to PLDT and 75% to RCA. Thesharing was amended in 1941 to 30% for PLDT and 70% for RCA, and again amended in 1947 to

a 50-50 basis. The arrangement was later extended to radio-telephone messages to and fromEuropean and Asiatic countries. Their contract contained a stipulation that either party couldterminate it on a 24-month notice to the other.

4On 2 February 1956, PLDT gave notice to RCA to

terminate their contract on 2 February 1958.5

Soon after its creation in 1947, the Bureau of Telecommunications set up its ownGovernment Telephone System by utilizing its own appropriation and equipment and by rentingtrunk lines of the PLDT to enable government offices to call private parties.

6Its application for the

use of these trunk lines was in the usual form of applications for telephone service, containing astatement, above the signature of the applicant, that the latter will abide by the rules andregulations of the PLDT which are on file with the Public Service Commission.

7One of the many

rules prohibits the public use of the service furnished the telephone subscriber for his private use.

8The Bureau has extended its services to the general public since 1948,

9using the same trunk

lines owned by, and rented from, the PLDT, and prescribing its (the Bureau's) own schedule ofrates.10

Through these trunk lines, a Government Telephone System (GTS) subscriber couldmake a call to a PLDT subscriber in the same way that the latter could make a call to the former.

On 5 March 1958, the plaintiff, through the Director of Telecommunications, entered intoan agreement with RCA Communications, Inc., for a joint overseas telephone service wherebythe Bureau would convey radio-telephone overseas calls received by RCA's station to and fromlocal residents.

11Actually, they inaugurated this joint operation on 2 February 1958, under a

"provisional" agreement.12

On 7 April 1958, the defendant Philippine Long Distance Telephone Company,complained to the Bureau of Telecommunications that said bureau was violating the conditionsunder which their Private Branch Exchange (PBX) is inter-connected with the PLDT's facilities,

referring to the rented trunk lines, for the Bureau had used the trunk lines not only for the use ofgovernment offices but even to serve private persons or the general public, in competition withthe business of the PLDT; and gave notice that if said violations were not stopped by midnight of12 April 1958, the PLDT would sever the telephone connections.

13When the PLDT received no

reply, it disconnected the trunk lines being rented by the Bureau at midnight on 12 April 1958.14

The result was the isolation of the Philippines, on telephone services, from the rest of the world,except the United States.

15

At that time, the Bureau was maintaining 5,000 telephones and had 5,000 pendingapplications for telephone connection.

16The PLDT was also maintaining 60,000 telephones and


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had also 20,000 pending applications.17

Through the years, neither of them has been able to fillup the demand for telephone service.

The Bureau of Telecommunications had proposed to the PLDT on 8 January 1958 thatboth enter into an interconnecting agreement, with the government paying (on a call basis) for allcalls passing through the interconnecting facilities from the Government Telephone System to the

PLDT.

18

The PLDT replied that it was willing to enter into an agreement on overseas telephoneservice to Europe and Asian countries provided that the Bureau would submit to the jurisdictionand regulations of the Public Service Commission and in consideration of 37 1/2% of the grossrevenues.

19In its memorandum in lieu of oral argument in this Court dated 9 February 1964, on

page 8, the defendant reduced its offer to 33 1/3 % (1/3) as its share in the overseas telephoneservice. The proposals were not accepted by either party.

On 12 April 1958, plaintiff Republic commenced suit against the defendant, PhilippineLong Distance Telephone Company, in the Court of First Instance of Manila (Civil Case No.35805), praying in its complaint for judgment commanding the PLDT to execute a contract withplaintiff, through the Bureau, for the use of the facilities of defendant's telephone systemthroughout the Philippines under such terms and conditions as the court might considerreasonable, and for a writ of preliminary injunction against the defendant company to restrain the

severance of the existing telephone connections and/or restore those severed.

Acting on the application of the plaintiff, and on the ground that the severance oftelephone connections by the defendant company would isolate the Philippines from othercountries, the court a quo, on 14 April 1958, issued an order for the defendant:

(1) to forthwith reconnect and restore the seventy-eight (78) trunk lines that it has disconnectedbetween the facilities of the Government Telephone System, including its overseas telephoneservices, and the facilities of defendant; (2) to refrain from carrying into effect its threat to severthe existing telephone communication between the Bureau of Telecommunications anddefendant, and not to make connection over its telephone system of telephone calls coming tothe Philippines from foreign countries through the said Bureau's telephone facilities and the radiofacilities of RCA Communications, Inc.; and (3) to accept and connect through its telephone

system all such telephone calls coming to the Philippines from foreign countries

until furtherorder of this Court.

On 28 April 1958, the defendant company filed its answer, with counterclaims.

It denied any obligation on its part to execute a contrary of services with the Bureau ofTelecommunications; contested the jurisdiction of the Court of First Instance to compel it to enterinto interconnecting agreements, and averred that it was justified to disconnect the trunk linesheretofore leased to the Bureau of Telecommunications under the existing agreement because itsfacilities were being used in fraud of its rights. PLDT further claimed that the Bureau wasengaging in commercial telephone operations in excess of authority, in competition with, and tothe prejudice of, the PLDT, using defendants own telephone poles, without proper accounting ofrevenues.

After trial, the lower court rendered judgment that it could not compel the PLDT to enterinto an agreement with the Bureau because the parties were not in agreement; that underExecutive Order 94, establishing the Bureau of Telecommunications, said Bureau was not limitedto servicing government offices alone, nor was there any in the contract of lease of the trunklines, since the PLDT knew, or ought to have known, at the time that their use by the Bureau wasto be public throughout the Islands, hence the Bureau was neither guilty of fraud, abuse, ormisuse of the poles of the PLDT; and, in view of serious public prejudice that would result fromthe disconnection of the trunk lines, declared the preliminary injunction permanent, although it


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dismissed both the complaint and the counterclaims.

Both parties appealed.

Taking up first the appeal of the Republic, the latter complains of the action of the trialcourt in dismissing the part of its complaint seeking to compel the defendant to enter into an

interconnecting contract with it, because the parties could not agree on the terms and conditionsof the interconnection, and of its refusal to fix the terms and conditions therefor.

We agree with the court below that parties can not be coerced to enter into a contractwhere no agreement is had between them as to the principal terms and conditions of the contract.Freedom to stipulate such terms and conditions is of the essence of our contractual system, andby express provision of the statute, a contract may be annulled if tainted by violence, intimidation,or undue influence (Articles 1306, 1336, 1337, Civil Code of the Philippines). But the court a quohas apparently overlooked that while the Republic may not compel the PLDT to celebrate acontract with it, the Republic may, in the exercise of the sovereign power of eminent domain,require the telephone company to permit interconnection of the government telephone systemand that of the PLDT, as the needs of the government service may require, subject to thepayment of just compensation to be determined by the court. Nominally, of course, the power of

eminent domain results in the taking or appropriation of title to, and possession of, theexpropriated property; but no cogent reason appears why the said power may not be availed of toimpose only a burden upon the owner of condemned property, without loss of title andpossession. It is unquestionable that real property may, through expropriation, be subjected to aneasement of right of way. The use of the PLDT's lines and services to allow inter-serviceconnection between both telephone systems is not much different. In either case private propertyis subjected to a burden for public use and benefit. If, under section 6, Article XIII, of theConstitution, the State may, in the interest of national welfare, transfer utilities to public ownershipupon payment of just compensation, there is no reason why the State may not require a publicutility to render services in the general interest, provided just compensation is paid therefor.Ultimately, the beneficiary of the interconnecting service would be the users of both telephonesystems, so that the condemnation would be for public use.

The Bureau of Telecommunications, under section 78 (b) of Executive Order No. 94, mayoperate and maintain wire telephone or radio telephone communications throughout thePhilippines by utilizing existing facilities in cities, towns, and provinces under such terms andconditions or arrangement with present owners or operators as may be agreed upon to thesatisfaction of all concerned; but there is nothing in this section that would exclude resort tocondemnation proceedings where unreasonable or unjust terms and conditions are exacted, tothe extent of crippling or seriously hampering the operations of said Bureau.

A perusal of the complaint shows that the Republic's cause of action is predicated uponthe radio telephonic isolation of the Bureau's facilities from the outside world if the severance ofinterconnection were to be carried out by the PLDT, thereby preventing the Bureau ofTelecommunications from properly discharging its functions, to the prejudice of the generalpublic. Save for the prayer to compel the PLDT to enter into a contract (and the prayer is no

essential part of the pleading), the averments make out a case for compulsory rendering of inter-connecting services by the telephone company upon such terms and conditions as the court maydetermine to be just. And since the lower court found that both parties "are practically at one thatdefendant (PLDT) is entitled to reasonable compensation from plaintiff for the reasonable use ofthe former's telephone facilities" (Decision, Record on Appeal, page 224), the lower court shouldhave proceeded to treat the case as one of condemnation of such services independently ofcontract and proceeded to determine the just and reasonable compensation for the same, insteadof dismissing the petition.

This view we have taken of the true nature of the Republic's petition necessarily results in


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overruling the plea of defendant-appellant PLDT that the court of first instance had no jurisdictionto entertain the petition and that the proper forum for the action was the Public ServiceCommission. That body, under the law, has no authority to pass upon actions for the taking ofprivate property under the sovereign right of eminent domain. Furthermore, while the defendanttelephone company is a public utility corporation whose franchise, equipment and otherproperties are under the jurisdiction, supervision and control of the Public Service Commission(Sec. 13, Public Service Act), yet the plaintiff's telecommunications network is a public serviceowned by the Republic and operated by an instrumentality of the National Government, henceexempt, under Section 14 of the Public Service Act, from such jurisdiction, supervision andcontrol. The Bureau of Telecommunications was created in pursuance of a state policyreorganizing the government offices

to meet the exigencies attendant upon the establishment of the free and independentGovernment of the Republic of the Philippines, and for the purpose of promoting simplicity,economy and efficiency in its operation (Section 1, Republic Act No. 51)

and the determination of state policy is not vested in the Commission (Utilities Com. vs.Bartonville Bus Line, 290 Ill. 574; 124 N.E. 373).

Defendant PLDT, as appellant, contends that the court below was in error in not holdingthat the Bureau of Telecommunications was not empowered to engage in commercial telephonebusiness, and in ruling that said defendant was not justified in disconnecting the telephone trunklines it had previously leased to the Bureau. We find that the court a quo ruled correctly inrejecting both assertions.

Executive Order No. 94, Series of 1947, reorganizing the Bureau of Telecommunications,expressly empowered the latter in its Section 79, subsection (b), to "negotiate for, operate andmaintain wire telephone or radio telephone communication service throughout the Philippines",and, in subsection (c), "to prescribe, subject to approval by the Department Head, equitable ratesof charges for messages handled by the system and/or for time calls and other services that maybe rendered by the system". Nothing in these provisions limits the Bureau to non-commercialactivities or prevents it from serving the general public. It may be that in its original prospectuses

the Bureau officials had stated that the service would be limited to government offices: but suchlimitations could not block future expansion of the system, as authorized by the terms of theExecutive Order, nor could the officials of the Bureau bind the Government not to engage inservices that are authorized by law. It is a well-known rule that erroneous application andenforcement of the law by public officers do not block subsequent correct application of thestatute (PLDT vs. Collector of Internal Revenue, 90 Phil. 676), and that the Government is neverestopped by mistake or error on the part of its agents (Pineda vs. Court of First Instance ofTayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co. vs. Pineda, 98 Phil. 711, 724).

The theses that the Bureau's commercial services constituted unfair competition, and thatthe Bureau was guilty of fraud and abuse under its contract, are, likewise, untenable.

First, the competition is merely hypothetical, the demand for telephone service being very

much more than the supposed competitors can supply. As previously noted, the PLDT had20,000 pending applications at the time, and the Bureau had another 5,000. The telephonecompany's inability to meet the demands for service are notorious even now. Second, the charterof the defendant expressly provides:

SEC. 14. The rights herein granted shall not be exclusive, and the rights and power togrant to any corporation, association or person other than the grantee franchise for the telephoneor electrical transmission of message or signals shall not be impaired or affected by the grantingof this franchise:(Act 3436)


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And third, as the trial court correctly stated, "when the Bureau of Telecommunicationssubscribed to the trunk lines, defendant knew or should have known that their use by thesubscriber was more or less public and all embracing in nature, that is, throughout thePhilippines, if not abroad" (Decision, Record on Appeal, page 216).

The acceptance by the defendant of the payment of rentals, despite its knowledge that the

plaintiff had extended the use of the trunk lines to commercial purposes, continuously since 1948,implies assent by the defendant to such extended use. Since this relationship has beenmaintained for a long time and the public has patronized both telephone systems, and theirinterconnection is to the public convenience, it is too late for the defendant to claim misuse of itsfacilities, and it is not now at liberty to unilaterally sever the physical connection of the trunk lines.

..., but there is high authority for the position that, when such physical connection hasbeen voluntarily made, under a fair and workable arrangement and guaranteed by contract andthe continuous line has come to be patronized and established as a great public convenience,such connection shall not in breach of the agreement be severed by one of the parties. In thatcase, the public is held to have such an interest in the arrangement that its rights must receivedue consideration. This position finds approval in State ex rel. vs. Cadwaller, 172 Ind. 619, 636,87 N.E. 650, and is stated in the elaborate and learned opinion of Chief Justice Myers as follows:

"Such physical connection cannot be required as of right, but if such connection is voluntarilymade by contract, as is here alleged to be the case, so that the public acquires an interest in itscontinuance, the act of the parties in making such connection is equivalent to a declaration of apurpose to waive the primary right of independence, and it imposes upon the property such apublic status that it may not be disregarded" citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93N.W. 629, and the reasons upon which it is in part made to rest are referred to in the sameopinion, as follows: "Where private property is by the consent of the owner invested with a publicinterest or privilege for the benefit of the public, the owner can no longer deal with it as privateproperty only, but must hold it subject to the right of the public in the exercise of that publicinterest or privilege conferred for their benefit." Allnut v. Inglis (1810) 12 East, 527. The doctrineof this early case is the acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co., 74S.E. 636, 638).

It is clear that the main reason for the objection of the PLDT lies in the fact that saidappellant did not expect that the Bureau's telephone system would expand with such rapidity as ithas done; but this expansion is no ground for the discontinuance of the service agreed upon.

The last issue urged by the PLDT as appellant is its right to compensation for the use ofits poles for bearing telephone wires of the Bureau of Telecommunications. Admitting that section19 of the PLDT charter reserves to the Government

the privilege without compensation of using the poles of the grantee to attach one ten-pincross-arm, and to install, maintain and operate wires of its telegraph system thereon; Provided,however, That the Bureau of Posts shall have the right to place additional cross-arms and wireson the poles of the grantee by paying a compensation, the rate of which is to be agreed upon bythe Director of Posts and the grantee;

the defendant counterclaimed for P8,772.00 for the use of its poles by the plaintiff,contending that what was allowed free use, under the aforequoted provision, was one ten-pincross-arm attachment and only for plaintiff's telegraph system, not for its telephone system; thatsaid section could not refer to the plaintiff's telephone system, because it did not have suchtelephone system when defendant acquired its franchise. The implication of the argument is thatplaintiff has to pay for the use of defendant's poles if such use is for plaintiff's telephone systemand has to pay also if it attaches more than one (1) ten-pin cross-arm for telegraphic purposes.


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As there is no proof that the telephone wires strain the poles of the PLDT more than thetelegraph wires, nor that they cause more damage than the wires of the telegraph system, or thatthe Government has attached to the poles more than one ten-pin cross-arm as permitted by thePLDT charter, we see no point in this assignment of error. So long as the burden to be borne bythe PLDT poles is not increased, we see no reason why the reservation in favor of the telegraphwires of the government should not be extended to its telephone lines, any time that thegovernment decided to engage also in this kind of communication.

In the ultimate analysis, the true objection of the PLDT to continue the link between itsnetwork and that of the Government is that the latter competes "parasitically" (sic) with its owntelephone services. Considering, however, that the PLDT franchise is non-exclusive; that it iswell-known that defendant PLDT is unable to adequately cope with the current demands fortelephone service, as shown by the number of pending applications therefor; and that the PLDT'sright to just compensation for the services rendered to the Government telephone system and itsusers is herein recognized and preserved, the objections of defendant-appellant are withoutmerit. To uphold the PLDT's contention is to subordinate the needs of the general public to theright of the PLDT to derive profit from the future expansion of its services under its non-exclusivefranchise.

WHEREFORE, the decision of the Court of First Instance, now under appeal, is affirmed,except in so far as it dismisses the petition of the Republic of the Philippines to compel thePhilippine Long Distance Telephone Company to continue servicing the Government telephonesystem upon such terms, and for a compensation, that the trial court may determine to be just,including the period elapsed from the filing of the original complaint or petition. And for thispurpose, the records are ordered returned to the court of origin for further hearings and otherproceedings not inconsistent with this opinion. No costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano,Teehankee and Barredo, JJ., concur.


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EN BANC

G.R. No. L-12172 August 29, 1958

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs.

JUAN F. FAJARDO, ET AL.,defendants-appellants.

Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee. Prila, Pardalisand Pejo for appellants.

REYES, J. B. L., J .:

Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950,of the Municipality of Baao, Camarines Sur, for having constructed without a permit from themunicipal mayor a building that destroys the view of the public plaza.

It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F.Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed theordinance in question providing as follows:

SECTION 1. Any person or persons who will construct or repair a building should, beforeconstructing or repairing, obtain a written permit from the Municipal Mayor.

SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00 foreach repair permit issued.

SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall make theviolation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of not less

than 12 days nor more than 24 days or both, at the discretion of the court. If said buildingdestroys the view of the Public Plaza or occupies any public property, it shall be removed at theexpense of the owner of the building or house.

SEC. 4. EFFECTIVITYThis ordinance shall take effect on its approval. (Orig. Recs., P. 3)

Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit toconstruct a building adjacent to their gasoline station on a parcel of land registered in Fajardo'sname, located along the national highway and separated from the public plaza by a creek (Exh.D). On January 16, 1954, the request was denied, for the reason among others that the proposedbuilding would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954,defendants reiterated their request for a building permit (Exh. 3), but again the request was

turned down by the mayor. Whereupon, appellants proceeded with the construction of thebuilding without a permit, because they needed a place of residence very badly, their formerhouse having been destroyed by a typhoon and hitherto they had been living on leased property.

On February 26, 1954, appellants were charged before and convicted by the justice of the peacecourt of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed tothe Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fineof P35 each and the costs, as well as to demolish the building in question because it destroys theview of the public plaza of Baao, in that "it hinders the view of travelers from the National


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Highway to the said public plaza." From this decision, the accused appealed to the Court ofAppeals, but the latter forwarded the records to us because the appeal attacks theconstitutionality of the ordinance in question.

We find that the appealed conviction can not stand.

A first objection to the validity of the ordinance in question is that under it the mayor has absolutediscretion to issue or deny a permit. The ordinance fails to state any policy, or to set up anystandard to guide or limit the mayor's action. No purpose to be attained by requiring the permit isexpressed; no conditions for its grant or refusal are enumerated. It is not merely a case ofdeficient standards; standards are entirely lacking. The ordinance thus confers upon the mayorarbitrary and unrestricted power to grant or deny the issuance of building permits, and it is asettled rule that such an undefined and unlimited delegation of power to allow or prevent anactivity,per se lawful, is invalid (People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71;Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d) 392)

The ordinance in question in no way controls or guides the discretion vested thereby in therespondents. It prescribes no uniform rule upon which the special permission of the city is to begranted. Thus the city is clothed with the uncontrolled power to capriciously grant the privilege to

some and deny it others; to refuse the application of one landowner or lessee and to grant that ofanother, when for all material purposes, the two applying for precisely the same privileges underthe same circumstances. The danger of such an ordinance is that it makes possible arbitrarydiscriminations and abuses in its execution, depending upon no conditions or qualificationswhatever, other than the unregulated arbitrary will of the city authorities as the touchstone bywhich its validity is to be tested. Fundamental rights under our government do not depend fortheir existence upon such a slender and uncertain thread. Ordinances which thus invest a citycouncil with a discretion which is purely arbitrary, and which may be exercised in the interest of afavored few, are unreasonable and invalid. The ordinance should have established a rule bywhich its impartial enforcement could be secured. All of the authorities cited above sustain thisconclusion.

As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587, 28

Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that municipalordinances placing restrictions upon lawful conduct or the lawful use of property must, in order tobe valid, specify the rules and conditions to be observed in such conduct or business; and mustadmit of the exercise of the privilege of all citizens alike who will comply with such rules andconditions; and must not admit of the exercise, or of an opportunity for the exercise, of anyarbitrary discrimination by the municipal authorities between citizens who will so comply. (SchlossPoster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp. 394-395).

It is contended, on the other hand, that the mayor can refuse a permit solely in case that theproposed building "destroys the view of the public plaza or occupies any public property" (asstated in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit tothe appellant was predicated on the ground that the proposed building would "destroy the view ofthe public plaza" by preventing its being seen from the public highway. Even thus interpreted, the

ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellantsof the right to use their own property; hence, it oversteps the bounds of police power, andamounts to a taking of appellants property without just compensation. We do not overlook that themodern tendency is to regard the beautification of neighborhoods as conducive to the comfortand happiness of residents. But while property may be regulated in the interest of the generalwelfare, and in its pursuit, the State may prohibit structures offensive to the sight (Churchill andTait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police power, permanentlydivest owners of the beneficial use of their property and practically confiscate them solely topreserve or assure the aesthetic appearance of the community. As the case now stands, everystructure that may be erected on appellants' land, regardless of its own beauty, stands


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condemned under the ordinance in question, because it would interfere with the view of the publicplaza from the highway. The appellants would, in effect, be constrained to let their land remainidle and unused for the obvious purpose for which it is best suited, being urban in character. Tolegally achieve that result, the municipality must give appellants just compensation and anopportunity to be heard.

An ordinance whichpermanentlyso restricts the use of property that it can not be used for anyreasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of theproperty. The only substantial difference, in such case, between restriction and actual taking, isthat the restriction leaves the owner subject to the burden of payment of taxation, while outrightconfiscation would relieve him of that burden. (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117ALR. 1110, 1116).

A regulation which substantially deprives an owner of all beneficial use of his property isconfiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs.Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So.114).

Zoning which admittedly limits property to a use which can not reasonably be made of it cannot

be said to set aside such property to a use but constitutes the taking of such property without justcompensation. Use of property is an element of ownership therein. Regardless of the opinion ofzealots that property may properly, by zoning, be utterly destroyed without compensation, suchprinciple finds no support in the genius of our government nor in the principles of justice as weknown them. Such a doctrine shocks the sense of justice. If it be of public benefit that propertyremain open and unused, then certainly the public, and not the private individuals, should bearthe cost of reasonable compensation for such property under the rules of law governing thecondemnation of private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185N.E. 827) (Emphasis supplied.)

The validity of the ordinance in question was justified by the court below under section 2243, par.(c), of the Revised Administrative Code, as amended. This section provides:

SEC. 2243. Certain legislative powers of discretionary character.

The municipal council shallhave authority to exercise the following discretionary powers:

x x x x x x x x x

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may beconstructed or repaired within them, and issue permits for the creation or repair thereof, charginga fee which shall be determined by the municipal council and which shall not be less than twopesos for each building permit and one peso for each repair permit issued. The fees collectedunder the provisions of this subsection shall accrue to the municipal school fund.

Under the provisions of the section above quoted, however, the power of the municipal council torequire the issuance of building permits rests upon its first establishing fire limits in populous partsof the town and prescribing the kinds of buildings that may be constructed or repaired withinthem. As there is absolutely no showing in this case that the municipal council had eitherestablished fire limits within the municipality or set standards for the kind or kinds of buildings tobe constructed or repaired within them before it passed the ordinance in question, it is clear thatsaid ordinance was not conceived and promulgated under the express authority of sec. 2243 (c)aforequoted.

We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of theMunicipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and


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is therefore null and void. Hence, the conviction of herein appellants is reversed, and saidaccused are acquitted, with costs de oficio. So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endenciaand Felix, JJ.,concur.

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