G.R. No.

L-14355 October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

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

City Fiscal Diaz for appellant.

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

JOHNSON, J.:

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

That question arose in the following manner:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses
under a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in
good faith for future use. (Lewis on Eminent Domain, sec. 434, and cases cited.)
The cemetery in question seems to have been established under governmental authority. The Spanish Governor-
General, in an order creating the same, used the following language:

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

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

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

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

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

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

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

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

Separate Opinions

MALCOLM, J., concurring:

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

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

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

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

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

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

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

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

STREET, J., dissenting:

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

MOIR, J., dissenting:

I dissent from the majority opinion in this case, which has not yet been written, and because of the importance of the
question involved, present my dissent for the record.

This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue north. The
petition for condemnation was opposed by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and
various other who obtained permission of the trial court to intervene in the case.

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

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

The plaintiff appealed and sets up the following errors:

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

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

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

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

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

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

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

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

The court says:

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

Relative to the first point, it is not necessary for the court to pass upon its consideration, in view of the
conclusion it has arrived at the appreciation of the other points connected with each other.

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

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

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

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

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

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

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

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

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of
exercising the right of eminent domain are questions essentially political and not judicial in their character.
The determination of those questions belongs to the sovereign power; the legislative determination is final
and conclusive, and the courts have no power to review it. It rests with the legislature not only to determine
when the power of eminent domain may be exercised, but also the character, quality, method, and extent of
such exercise. And this power is unqualified, other than by the necessity of providing that compensation
shall be made. Nevertheless, under the express provisions of the constitution of some states the question of
necessity is made a judicial one, to be determined by the courts and not by the legislature.

While the legislature may itself exercise the right of determining the necessity for the exercise of the power
of eminent domain, it may, unless prohibited by the constitution, delegate this power to public officers or to
private corporations established to carry on enterprises in which the public are interested, and their
determination that a necessity for the exercise of the power exists is conclusive. There is no restraint upon
the power except that requiring compensation to be made. And when the power has been so delegated it is
a subject of legislative discretion to determine what prudential regulations shall be established to secure a
discreet and judicious exercise of the authority. It has been held that in the absence of any statutory
provision submitting the matter to a court or jury the decision of the question of necessity lies with the body
of individuals to whom the state has delegated the authority to take, and the legislature may be express
provision confer this power on a corporation to whom the power of eminent domain is delegated unless
prohibited by the constitution. It is of course competent for the legislature to declare that the question shall
be a judicial one, in which case the court and not the corporation determines the question of necessity. (15
Cyc., pp. 629-632.)

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

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

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

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

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

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

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

The United States Supreme Court recently said:

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

And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:

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

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

It is contended for the defense that this Chinese Cemetery is a public cemetery and that it cannot therefore be taken
for public use. In its answer the "Comunidad de Chinos de Manila" says it is "a corporation organized and existing
under and by virtue of the laws of the Philippine Islands," and that it owns the land which plaintiff seeks to acquire.
The facts that it is private corporation owning land would seem of necessity to make the land it owns private land.
The fact that it belongs to the Chinese community deprives it of any public character.
But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the city of Manila,
can it not be taken for public use? Must we let the reverence we feel for the dead and the sanctity of their final
resting-place obstruct the progress of the living? It will be instructive to inquire what other jurisdictions have held on
that point.

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

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

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

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

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

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

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

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

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

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

A few cases have been cited where the courts refused to allow the opening of streets through cemeteries, but in my
opinion they are not as well considered as the cases and authorities relied upon herein.
The holding of this court in this case reverses well settled principles of law of long standing and almost universal
acceptance.

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

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

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

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor Camilo D.
Quiason for plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-appellant.

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

Direct appeals, upon a joint record on appeal, by both the plaintiff and the defendant from the 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 mandatory injunction theretofore issued against the defendant
on the interconnection of telephone facilities owned and operated by said parties.

The plaintiff, Republic of the Philippines, is a political entity exercising governmental powers through its branches
and instrumentalities, one of which is the Bureau of Telecommunications. That office was created on 1 July 1947,
under Executive Order No. 94, with the following powers and duties, in addition to certain powers and duties
formerly vested in the Director of Posts:1aw phil.ñêt

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

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

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

(c) To prescribe, subject to approval by the Department Head, equitable rates of charges for messages
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 public interest so
requires, to engage in the international telecommunication service in agreement with other 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 International Telecommunication
Convention relative to the accounting, disposition and exchange of messages handled in the international
service, and those that may hereafter be promulgated by said 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 a public service corporation
holding a legislative franchise, Act 3426, as amended by Commonwealth Act 407, to install, operate and maintain a
telephone system throughout the Philippines 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 RCA
Communications, Inc., (which is not a party to the present case but has contractual relations with the parties) is an
American corporation authorized to transact business in the Philippines and is the grantee, by assignment, of a
legislative franchise to operate a domestic station for the reception and transmission of long distance wireless
messages (Act 2178) and to operate broadcasting and radio-telephone and radio-telegraphic communications
services (Act 3180). 3

Sometime in 1933, the defendant, PLDT, and the RCA Communications, Inc., entered into an agreement whereby
telephone messages, coming from the United States and received by RCA'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. The contracting parties agreed to divide the tolls, as follows: 25% to PLDT and 75%
to RCA. The sharing 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 from European and Asiatic
countries. Their contract contained a stipulation that either party could terminate it on a 24-month notice to the other.
4 On 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 own Government Telephone System
by utilizing its own appropriation and equipment and by renting trunk lines of the PLDT to enable government offices
to call private parties. 6 Its application for the use of these trunk lines was in the usual form of applications for
telephone service, containing a statement, above the signature of the applicant, that the latter will abide by the rules
and regulations of the PLDT which are on file with the Public Service Commission. 7 One of the many rules prohibits
the public use of the service furnished the telephone subscriber for his private use. 8 The Bureau has extended its
services to the general public since 1948, 9 using the same trunk lines owned by, and rented from, the PLDT, and
prescribing its (the Bureau's) own schedule of rates. 10 Through these trunk lines, a Government Telephone System
(GTS) subscriber could make 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 into an agreement with RCA
Communications, Inc., for a joint overseas telephone service whereby the Bureau would convey radio-telephone
overseas calls received by RCA's station to and from local residents. 11 Actually, 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 conditions under 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 of government offices but even to serve private persons or the general public, in
competition with the business of the PLDT; and gave notice that if said violations were not stopped by midnight of 12
April 1958, the PLDT would sever the telephone connections. 13 When 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 pending applications for telephone
connection. 16 The PLDT was also maintaining 60,000 telephones and had also 20,000 pending applications. 17
Through the years, neither of them has been able to fill up the demand for telephone service.

The Bureau of Telecommunications had proposed to the PLDT on 8 January 1958 that both enter into an
interconnecting agreement, with the government paying (on a call basis) for all calls 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 telephone service to Europe and Asian countries provided that the
Bureau would submit to the jurisdiction and regulations of the Public Service Commission and in consideration of 37
1/2% of the gross revenues. 19 In 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 telephone service. The
proposals were not accepted by either party.

On 12 April 1958, plaintiff Republic commenced suit against the defendant, Philippine Long 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 with plaintiff, through the Bureau, for the use of the facilities of
defendant's telephone system throughout the Philippines under such terms and conditions as the court might
consider reasonable, 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 of telephone connections by the
defendant company would isolate the Philippines from other countries, 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 disconnected between the
facilities of the Government Telephone System, including its overseas telephone services, and the facilities
of defendant; (2) to refrain from carrying into effect its threat to sever the existing telephone communication
between the Bureau of Telecommunications and defendant, and not to make connection over its telephone
system of telephone calls coming to the Philippines from foreign countries through the said Bureau's
telephone facilities and the radio facilities 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 further order 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 of Telecommunications;
contested the jurisdiction of the Court of First Instance to compel it to enter into interconnecting agreements, and
averred that it was justified to disconnect the trunk lines heretofore leased to the Bureau of Telecommunications
under the existing agreement because its facilities were being used in fraud of its rights. PLDT further claimed that
the Bureau was engaging in commercial telephone operations in excess of authority, in competition with, and to the
prejudice of, the PLDT, using defendants own telephone poles, without proper accounting of revenues.

After trial, the lower court rendered judgment that it could not compel the PLDT to enter into an agreement with the
Bureau because the parties were not in agreement; that under Executive Order 94, establishing the Bureau of
Telecommunications, said Bureau was not limited to servicing government offices alone, nor was there any in the
contract of lease of the trunk lines, since the PLDT knew, or ought to have known, at the time that their use by the
Bureau was to be public throughout the Islands, hence the Bureau was neither guilty of fraud, abuse, or misuse of
the poles of the PLDT; and, in view of serious public prejudice that would result from the disconnection of the trunk
lines, declared the preliminary injunction permanent, although it 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 trial court 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 conditions of 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 contract where 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, and by 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 quo has apparently overlooked that while the Republic may not compel the PLDT to
celebrate a contract 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 system and that of the PLDT, as the
needs of the government service may require, subject to the payment 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, the expropriated property; but no cogent reason appears why the said power may not be availed of to
impose only a burden upon the owner of condemned property, without loss of title and possession. It is
unquestionable that real property may, through expropriation, be subjected to an easement of right of way. The use
of the PLDT's lines and services to allow inter-service connection between both telephone systems is not much
different. In either case private property is subjected to a burden for public use and benefit. If, under section 6,
Article XIII, of the Constitution, the State may, in the interest of national welfare, transfer utilities to public ownership
upon payment of just compensation, there is no reason why the State may not require a public utility 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 telephone systems, so that the condemnation would be for public
use.

The Bureau of Telecommunications, under section 78 (b) of Executive Order No. 94, may operate and maintain
wire telephone or radio telephone communications throughout the Philippines by utilizing existing facilities in cities,
towns, and provinces under such terms and conditions or arrangement with present owners or operators as may be
agreed upon to the satisfaction of all concerned; but there is nothing in this section that would exclude resort to
condemnation proceedings where unreasonable or unjust terms and conditions are exacted, to the 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 upon the radio telephonic
isolation of the Bureau's facilities from the outside world if the severance of interconnection were to be carried out by
the PLDT, thereby preventing the Bureau of Telecommunications from properly discharging its functions, to the
prejudice of the general public. 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 may determine to be just. And since the
lower court found that both parties "are practically at one that defendant (PLDT) is entitled to reasonable
compensation from plaintiff for the reasonable use of the former's telephone facilities" (Decision, Record on Appeal,
page 224), the lower court should have proceeded to treat the case as one of condemnation of such services
independently of contract and proceeded to determine the just and reasonable compensation for the same, instead
of dismissing the petition.

This view we have taken of the true nature of the Republic's petition necessarily results in overruling the plea of
defendant-appellant PLDT that the court of first instance had no jurisdiction to entertain the petition and that the
proper forum for the action was the Public Service Commission. That body, under the law, has no authority to pass
upon actions for the taking of private property under the sovereign right of eminent domain. Furthermore, while the
defendant telephone company is a public utility corporation whose franchise, equipment and other properties 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 service owned by the Republic and operated by an
instrumentality of the National Government, hence exempt, under Section 14 of the Public Service Act, from such
jurisdiction, supervision and control. The Bureau of Telecommunications was created in pursuance of a state policy
reorganizing the government offices —

to meet the exigencies attendant upon the establishment of the free and independent Government 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 holding that the Bureau of
Telecommunications was not empowered to engage in commercial telephone business, and in ruling that said
defendant was not justified in disconnecting the telephone trunk lines it had previously leased to the Bureau. We find
that the court a quo ruled correctly in rejecting 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 and maintain wire telephone or radio telephone
communication service throughout the Philippines", and, in subsection (c), "to prescribe, subject to approval by the
Department Head, equitable rates of charges for messages handled by the system and/or for time calls and other
services that may be rendered by the system". Nothing in these provisions limits the Bureau to non-commercial
activities 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 such limitations could not block future
expansion of the system, as authorized by the terms of the Executive Order, nor could the officials of the Bureau
bind the Government not to engage in services that are authorized by law. It is a well-known rule that erroneous
application and enforcement of the law by public officers do not block subsequent correct application of the statute
(PLDT vs. Collector of Internal Revenue, 90 Phil. 676), and that the Government is never estopped by mistake or
error on the part of its agents (Pineda vs. Court of First Instance of Tayabas, 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 that the 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 had 20,000 pending applications at the time, and
the Bureau had another 5,000. The telephone company's inability to meet the demands for service are notorious
even now. Second, the charter of the defendant expressly provides:

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

And third, as the trial court correctly stated, "when the Bureau of Telecommunications subscribed to the trunk lines,
defendant knew or should have known that their use by the subscriber was more or less public and all embracing in
nature, that is, throughout the Philippines, 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 been maintained for a long time and the public has patronized both
telephone systems, and their interconnection is to the public convenience, it is too late for the defendant to claim
misuse of its facilities, 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 has been voluntarily
made, under a fair and workable arrangement and guaranteed by contract and the 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 that case, the public is held to have such an interest in the
arrangement that its rights must receive due 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
voluntarily made by contract, as is here alleged to be the case, so that the public acquires an interest in its
continuance, the act of the parties in making such connection is equivalent to a declaration of a purpose to
waive the primary right of independence, and it imposes upon the property such a public status that it may
not be disregarded" — citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629, and the reasons upon
which it is in part made to rest are referred to in the same opinion, as follows: "Where private property is by
the consent of the owner invested with a public interest or privilege for the benefit of the public, the owner
can no longer deal with it as private property only, but must hold it subject to the right of the public in the
exercise of that public interest or privilege conferred for their benefit." Allnut v. Inglis (1810) 12 East, 527.
The doctrine of this early case is the acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co.,
74 S.E. 636, 638).

It is clear that the main reason for the objection of the PLDT lies in the fact that said appellant did not expect that
the Bureau's telephone system would expand with such rapidity as it has 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 of its poles for bearing
telephone wires of the Bureau of Telecommunications. Admitting that section 19 of the PLDT charter reserves to the
Government —

the privilege without compensation of using the poles of the grantee to attach one ten-pin cross-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 wires on the poles of the grantee by paying a
compensation, the rate of which is to be agreed upon by the 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-pin cross-arm attachment and only for plaintiff's
telegraph system, not for its telephone system; that said section could not refer to the plaintiff's telephone system,
because it did not have such telephone system when defendant acquired its franchise. The implication of the
argument is that plaintiff has to pay for the use of defendant's poles if such use is for plaintiff's telephone system and
has to pay also if it attaches more than one (1) ten-pin cross-arm for telegraphic purposes.

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

In the ultimate analysis, the true objection of the PLDT to continue the link between its network and that of the
Government is that the latter competes "parasitically" (sic) with its own telephone services. Considering, however,
that the PLDT franchise is non-exclusive; that it is well-known that defendant PLDT is unable to adequately cope
with the current demands for telephone service, as shown by the number of pending applications therefor; and that
the PLDT's right to just compensation for the services rendered to the Government telephone system and its users
is herein recognized and preserved, the objections of defendant-appellant are without merit. To uphold the PLDT's
contention is to subordinate the needs of the general public to the right of the PLDT to derive profit from the future
expansion of its services under its non-exclusive franchise.

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 the Philippine Long Distance Telephone
Company to continue servicing the Government telephone system 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 this purpose, the records are ordered returned to the court of origin for further hearings and other
proceedings not inconsistent with this opinion. No costs.

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

G.R. No. 72126 January 29, 1988

MUNICIPALITY OF MEYCAUAYAN, BULACAN, HON. ADRIANO D. DAEZ, MUNICIPAL MAYOR,

MEYCAUAYAN, BULACAN, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and PHILIPPINE PIPES & MERCHANDIZING CORPORATION,
respondents.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari of the resolution dated April 24,1985 by the former Intermediate Appellate
Court, now Court of Appeals, setting aside its earlier decision dated January 10, 1985 and dismissing the special
civil action for expropriation filed by the petitioner.

In 1975, respondent Philippine Pipes and Merchandising Corporation filed with the Office of the Municipal Mayor of
Meycauayan, Bulacan, an application for a permit to fence a parcel of land with a width of 26.8 meters and a length
of 184.37 meters covered by Transfer Certificates of Title Nos. 215165 and 37879. The fencing of said property was
allegedly to enable the storage of the respondent's heavy equipment and various finished products such as large
diameter steel pipes, pontoon pipes for ports, wharves, and harbors, bridge components, pre-stressed girders and
piles, large diameter concrete pipes, and parts for low cost housing.

In the same year, the Municipal Council of Meycauayan, headed by then Mayor Celso R. Legaspi, passed
Resolution No. 258, Series of 1975, manifesting the intention to expropriate the respondent's parcel of land covered
by Transfer Certificate of Title No. 37879.
An opposition to the resolution was filed by the respondent with the Office of the Provincial Governor, which, in turn,
created a special committee of four members to investigate the matter.

On March 10, 1976, the Special Committee recommended that the Provincial Board of Bulacan disapprove or annul
the resolution in question because there was no genuine necessity for the Municipality of Meycauayan to
expropriate the respondent's property for use as a public road.

On the basis of this report, the Provincial Board of Bulacan passed Resolution No. 238, Series of 1976,
disapproving and annulling Resolution No. 258, Series of 1975, of the Municipal Council of Meycauayan. The
respondent, then, reiterated to the Office of the Mayor its petition for the approval of the permit to fence the
aforesaid parcels of land.

On October 21, 1983, however, the Municipal Council of Meycauayan, now headed by Mayor Adriano D. Daez,
passed Resolution No. 21, Series of 1983, for the purpose of expropriating anew the respondent's land. The
Provincial Board of Bulacan approved the aforesaid resolution on January 25, 1984.

Thereafter, the petitioner, on February 14, 1984, filed with the Regional Trial Court of Malolos, Bulacan, Branch VI, a
special civil action for expropriation.

Upon deposit of the amount of P24,025.00, which is the market value of the land, with the Philippine National Bank,
the trial court on March 1, 1984 issued a writ of possession in favor of the petitioner.

On August 27, 1984, the trial court issued an order declaring the taking of the property as lawful and appointing the
Provincial Assessor of Bulacan as court commissioner who shall hold the hearing to ascertain the just compensation
for the property.

The respondent went to the Intermediate Appellate Court on petition for review. On January 10, 1985, the appellate
court affirmed the trial court's decision. However, upon motion for reconsideration by the respondent, the decision
was re-examined and reversed. The appellate court held that there is no genuine necessity to expropriate the land
for use as a public road as there were several other roads for the same purpose and another more appropriate lot
for the proposed public road. The court, taking into consideration the location and size of the land, also opined that
the land is more Ideal for use as storage area for respondent's heavy equipment and finished products.

After its motion for reconsideration was denied, the petitioner went to this Court on petition for review on certiorari on
October 25, 1985, with the following arguments:

Petitioners most respectfully submit that respondent Court has decided a question of substance not
in accord with law or with applicable decisions of this Honorable Supreme Court; that the judgment is
based on a misapprehension of facts and the conclusion is a finding grounded entirely on
speculation, surmises, and conjectures, because:

a. It concluded, that by dismissing the complaint for expropriation the existence of legal and factual
circumstance of grave abuse of discretion amounting to lack of jurisdiction committed by the
respondent Judge without any shred of evidence at all contrary to the law on evidence;

b. It concluded, in its decision that respondent Philippine Pipes and Merchandising Corporation has
no need of the property sought to be condemned on the use to which it is devoted as a private road
but allegedly for storage contrary to the allegations of respondent Philippine Pipes and
Merchandising Corporation itself;

c. It anchored its decision on factual situations obtaining a long, long time ago without regard to the
relatively present situation now obtaining. (Rollo, pp. 8-9)

In refuting the petitioner's arguments, the private respondent contends that this Court may only resolve questions of
law and not questions of fact such as those which the petitioner puts in issue in this case. The respondent further
argues that this Court may not also interfere with an action of the Court of Appeals which involves the exercise of
discretion.
We agree with the respondent.

The jurisdiction of this Court in cases brought to us from the Court of Appeals is limited to the review of errors of law
(Rizal Cement Co., Inc. v. Villareal, 135 SCRA 15, 24), factual issues not being proper in certiorari proceedings (See
Ygay et al. v. Hon. Escareal et al., 135 SCRA 78, 82).

This Court reviews and rectifies the findings of fact of the Court of Appeals only under certain established
exceptions such as: (1) when the conclusion is a finding grounded entirely on speculations, surmises and
conjectures; (2) when the inference made is manifestly mistaken, absurd and impossible; (3) when there is grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; and (5) when the court, in
making its finding, went beyond the issues of the case and the same is contrary to the admissions of both the
appellant and the appellee (Moran, Jr. v. Court of Appeals, 133 SCRA 88).

None of the exceptions warranting non-application of the rule is present in this case. On the contrary, we find that
the appellate court's decision is supported by substantial evidence.

The petitioner's purpose in expropriating the respondent's property is to convert the same into a public road which
would provide a connecting link between Malhacan Road and Bulac Road in Valenzuela, Bulacan and thereby ease
the traffic in the area of vehicles coming from MacArthur Highway.

The records, however, reveals that there are other connecting links between the aforementioned roads. The
petitioner itself admits that there are four such cross roads in existence. The respondent court stated that with the
proposed road, there would be seven.

Appreciating the evidence presented before it, with particular emphasis on the Special Committee's report dated
March 10, 1976, the Court of Appeals declared:

xxx xxx xxx

FACTS ESTABLISHED ON OCULAR INSPECTION

In the ocular inspection, the following facts came into the limelight:

(1) The property in question of the Philippine Pipes and Merchandazing Corporation intended to be
expropriated by the Municipality of Meycauayan is embraced under Transfer Certificate of Title No.
37879 and is a private road of the company used in the conduct and operation of its business, with
the inhabitation in nearby premises tolerated to pass the same. It extends from Bulac Road to the
south, to Malhacan Road on the north, with a width of about 6 to 7 meters, more or less.

(2) Adjoining this private road on the eastern side, is a vacant property also belonging to the
Philippine Pipes and Merchandising Corporation and extending also from Bulac Road to Malhacan
Road, with a high wall along the property line on the east side thereof serving as a fence.

(3) Opposite the private road, after crossing Bulac Road, is the gate of the factory of the Philippine
Pipes and Merchandising Corporation.

(4) From the private road of the firm on the eastern direction about 30 to 40 meters distance are
subdivision roads of an existing subdivision with a width of 6 to 7 meters, more or less, running
parallel to the said private road of the firm and likewise extending from Bulac Road to Malhacan
Road. Whether said subdivision roads had already been donated to the municipality is not known.

(5) On the western side of the private road is a vacant lot with an area of l6,071 square meters
offered for sale by its owner extending also from Bulac Road to Malhacan Road.

(6) Bulac road, a municipal road with a width of about 6 to 7 meters and all the nearby subdivision
roads are obviously very poorly developed and maintained, and are in dire need of repair. Like the
Malhacan Road, Bulac road extends from the McArthur Highway with exit to North Diversion Road.
xxx xxx xxx

The Sketch Plan (Rollo, p. 26 or p. 97) clearly and conclusively shows that petitioner does not need
this strip of land as a private road. The Sketch Plan clearly shows that petitioner's factory site is
adjacent to Bulac Road which has a width of about seven meters, more or less. Petitioner can use
Bulac Road in reaching McArthur Highway on the west or in reaching the Manila North Expressway
on the east for the purpose of transporting its products. Petitioner does not need to go to Malhacan
Road via this so-called private road before going to McArthur Highway or to the Manila North
Expressway. Why should petitioner go first to Malhacan Road via this so called "private road" before
going to McArthur Highway or to the Manila North Expressway when taking the Bulac Road in going
to McArthur Highway or to the Manila North Expressway is more direct, nearer and more
advantageous. Hence, it is beyond doubt that petitioner acquired this strip of land for the storage of
its heavy equipments and various finished products and for growth and expansion and never to use
it as a private road. This is the very reason why petitioner filed an application with the Office of the
Municipal Mayor of Meycauayan, Bulacan to fence with hollow blocks this strip of land.

Third, We will determine whether there is a genuine necessity to expropriate this strip of land for use
as a public road.

We hereby quote a relevant part of the Special Committee's Report dated March 10, 1976, which is
as follows:

OBSERVATION OF COMMITTEE

From the foregoing facts, it appears obvious to this Special Committee that there is no genuine
necessity for the Municipality of' Meycauayan to expropriate the aforesaid property of the Philippine
Pipes and Merchandising Corporation for use as a public road. Considering that in the vicinity there
are other available road and vacant lot offered for sale situated similarly as the lot in question and
lying Idle, unlike the lot sought to be expropriated which was found by the Committee to be badly
needed by the company as a site for its heavy equipment after it is fenced together with the
adjoining vacant lot, the justification to condemn the same does not appear to be very imperative
and necessary and would only cause unjustified damage to the firm. The desire of the Municipality of
Meycauayan to build a public road to decongest the volume of traffic can be fully and better attained
by acquiring the other available roads in the vicinity maybe at lesser costs without causing harm to
an establishment doing legitimate business therein. Or, the municipality may seek to expropriate a
portion of the vacant lot also in the vicinity offered for sale for a wider public road to attain decongest
(sic) of traffic because as observed by the Committee, the lot of the Corporation sought to be taken
will only accommodate a one-way traffic lane and therefore, will not suffice to improve and
decongest the flow of traffic and pedestrians in the Malhacan area. ...

xxx xxx xxx

It must be noted that this strip of land covered by Transfer Certificates of Titles Nos. 215165 and
37879 were acquired by petitioner from Dr. Villacorta. The lot for sale and lying Idle with an area of
16,071 square meter which is adjacent and on the western side of the aforesaid strip of land and
extends likewise from Bulac Road to Malhacan Road belongs also to Dr. Villacorta. This lot for sale
and lying Idle is most Ideal for use as a public road because it is more than three (3) times wider that
the said strip of land.

xxx xxx xxx

xxx xxx xxx

Since there is another lot ready for sale and lying Idle, adjacent and on the western side of the strip
of land, and extending also from Malhacan Road to Bulac Road and most Ideal for a public road
because it is very much wider than the lot sought to be expropriated, it seems that it is more just,
fair, and reasonable if this lot is the one to be expropriated. (Rollo, pp. 22-26)
The petitioner objects to the appellate court's findings contending that they were based on facts obtaining long
before the present action to expropriate took place. We note, however, that there is no evidence on record which
shows a change in the factual circumstances of the case. There is no showing that some of the six other available
cross roads have been closed or that the private roads in the subdivision may not be used for municipal purposes.
What is more likely is that these roads have already been turned over to the government. The petitioner alleges that
surely the environmental progress during the span of seven years between the first and second attempts to
expropriate has brought about a change in the facts of the case. This allegation does not merit consideration absent
a showing of concrete evidence attesting to it.

There is no question here as to the right of the State to take private property for public use upon payment of just
compensation. What is questioned is the existence of a genuine necessity therefor.

As early as City of Manila v. Chinese Community of Manila (40 Phil. 349) this Court held that the foundation of the
right to exercise the power of eminent domain is genuine necessity and that necessity must be of a public character.
Condemnation of private property is justified only if it is for the public good and there is a genuine necessity of a
public character. Consequently, the courts have the power to inquire into the legality of the exercise of the right of
eminent domain and to determine whether there is a genuine necessity therefor (Republic v. La Orden de PP.
Benedictos de Filipinas, 1 SCRA 646; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413).

In the recent case of De Knecht v. Bautista, (100 SCRA 660) this court further ruled that the government may not
capriciously choose what private property should be taken. Citing the case of J.M. Tuason & Co., Inc. v. Land
Tenure Administration (supra), the Court held:

... With due recognition then of the power of Congress to designate the particular property to be
taken and how much thereof may be condemned in the exercise of the power of expropriation, it is
still a judicial question whether in the exercise of such competence, the party adversely affected is
the victim of partiality and prejudice. That the equal protection clause will not allow. (At p. 436)

There is absolutely no showing in the petition why the more appropriate lot for the proposed road which was offered
for sale has not been the subject of the petitioner's attempt to expropriate assuming there is a real need for another
connecting road.

WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned resolution of the respondent
court is AFFIRMED.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch
XVIII; HIMLAYANG PILIPINO, INC., respondents.

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch
XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN
THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF"
provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for
charity burial of deceased persons who are paupers and have been residents of Quezon City for at
least 5 years prior to their death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for operation not later than six
months from the date of approval of the application.

For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years
after the enactment of the ordinance, the Quezon City Council passed the following resolution:

RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City
Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon
City where the owners thereof have failed to donate the required 6% space intended for paupers
burial.

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that
Section 9 of Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon
City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002)
seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to the
Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to
the rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring
Section 9 of Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and
that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the
Quezon City Council is authorized under its charter, in the exercise of local police power, " to make such further
ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers
and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is
obvious because the questioned ordinance permanently restricts the use of the property such that it cannot be used
for any reasonable purpose and deprives the owner of all beneficial use of his property.

The respondent also stresses that the general welfare clause is not available as a source of power for the taking of
the property in this case because it refers to "the power of promoting the public welfare by restraining and regulating
the use of liberty and property." The respondent points out that if an owner is deprived of his property outright under
the State's police power, the property is generally not taken for public use but is urgently and summarily destroyed
in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a
house to prevent the spread of a conflagration.

We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We
quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that
would justify the ordinance in question except the provision granting police power to the City. Section
9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulate
such other business, trades, and occupation as may be established or practised in the City.'
(Subsections 'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega
vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power
to regulate does not include the power to confiscate. The ordinance in question not only confiscates
but also prohibits the operation of a memorial park cemetery, because under Section 13 of said
ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that
upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or
cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a
memorial park cemetery. Neither can the ordinance in question be justified under sub- section "t",
Section 12 of Republic Act 537 which authorizes the City Council to-

'prohibit the burial of the dead within the center of population of the city and provide
for their burial in such proper place and in such manner as the council may
determine, subject to the provisions of the general law regulating burial grounds and
cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12,
Rep. Act No. 537).

There is nothing in the above provision which authorizes confiscation or as euphemistically termed
by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question is a valid
exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12,
Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this
act and such as it shall deem necessary and proper to provide for the health and
safety, promote, the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the protection of property
therein; and enforce obedience thereto with such lawful fines or penalties as the City
Council may prescribe under the provisions of subsection (jj) of this section.

We start the discussion with a restatement of certain basic principles. Occupying the forefront in the
bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property
without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).

On the other hand, there are three inherent powers of government by which the state interferes with
the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to
exist independently of the Constitution as necessary attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by restraining and
regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p.
50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner.
If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to
promote the general welfare. In police power, the owner does not recover from the government for
injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most
essential of government powers, at times the most insistent, and always one of the least limitable of
the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995,
May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan,
10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has
almost become impossible to limit its sweep. As it derives its existence from the very existence of
the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-
preservation and survival itself, it is the most positive and active of all governmental processes, the
 most essential insistent and illimitable Especially it is so under the modern democratic framework
where the demands of society and nations have multiplied to almost unimaginable proportions. The
field and scope of police power have become almost boundless, just as the fields of public interest
and public welfare have become almost all embracing and have transcended human foresight. Since
the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit
beforehand the extent or scope of the police power by which and through which the state seeks to
attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due process clause being
the broadest station on governmental power, the conflict between this power of government and the
due process clause of the Constitution is oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in the form of
mere regulation or restriction in the use of liberty or property for the promotion of the general welfare.
It does not involve the taking or confiscation of property with the exception of a few cases where
there is a necessity to confiscate private property in order to destroy it for the purpose of protecting
the peace and order and of promoting the general welfare as for instance, the confiscation of an
illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a
mere police regulation but an outright confiscation. It deprives a person of his private property
without due process of law, nay, even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever
challenges the validity of duly enacted legislation whether national or local As early as 1913, this Court ruled in Case
v. Board of Health (24 PhiL 250) that the courts resolve every presumption in favor of validity and, more so, where
the ma corporation asserts that the ordinance was enacted to promote the common good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA
849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of any evidence to offset the
presumption of validity that attaches to a statute or ordinance. As was expressed categorically by
Justice Malcolm 'The presumption is all in favor of validity. ... The action of the elected
representatives of the people cannot be lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular ... municipality and with all the facts and
lances which surround the subject and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the well-being of the
people. ... The Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. (U.S. v. Salaveria (1918],
39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal
ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of Health supra :

... Under the provisions of municipal charters which are known as the general welfare clauses, a city,
by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best
and highest interests of the municipality. It is a well-settled principle, growing out of the nature of
well-ordered and society, that every holder of property, however absolute and may be his title, holds
it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious to the rights of the community.
An property in the state is held subject to its general regulations, which are necessary to the
common good and general welfare. Rights of property, like all other social and conventional rights,
are subject to such reasonable limitations in their enjoyment as shall prevent them from being
injurious, and to such reasonable restraints and regulations, established by law, as the legislature,
under the governing and controlling power vested in them by the constitution, may think necessary
and expedient. The state, under the police power, is possessed with plenary power to deal with all
matters relating to the general health, morals, and safety of the people, so long as it does not
 contravene any positive inhibition of the organic law and providing that such power is not exercised
in such a manner as to justify the interference of the courts to prevent positive wrong and
oppression.

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private
cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety,
or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from
a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of
Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the
dead within the center of population of the city and to provide for their burial in a proper place subject to the
provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas
Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the
dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its
own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law
and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation.
The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain
areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots.
The necessities of public safety, health, and convenience are very clear from said requirements which are intended
to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the
regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal
corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always
received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the
questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and
permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as
having been impliedly acknowledged by the private respondent when it accepted the permits to commence
operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

G.R. No. 136349 January 23, 2006

LOURDES DE LA PAZ MASIKIP, Petitioner,

vs.
THE CITY OF PASIG, HON. MARIETTA A. LEGASPI, in her capacity as Presiding Judge of the Regional Trial
Court of Pasig City, Branch 165 and THE COURT OF APPEALS, Respondents.

DECISION

SANDOVAL GUTIERREZ, J.:

Where the taking by the State of private property is done for the benefit of a small community which seeks to have
its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance
away, such taking cannot be considered to be for public use. Its expropriation is not valid. In this case, the Court
defines what constitutes a genuine necessity for public use.
This petition for review on certiorari assails the Decision1 of the Court of Appeals dated October 31, 1997 in CA-G.R.
SP No. 41860 affirming the Order2 of the Regional Trial Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A.
No. 873. Likewise assailed is the Resolution3 of the same court dated November 20, 1998 denying petitioner’s
Motion for Reconsideration.

The facts of the case are:

Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an area of 4,521 square meters
located at Pag-Asa, Caniogan, Pasig City, Metro Manila.

In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig, respondent, notified petitioner of
its intention to expropriate a 1,500 square meter portion of her property to be used for the "sports development and
recreational activities" of the residents of Barangay Caniogan. This was pursuant to Ordinance No. 42, Series of
1993 enacted by the then Sangguniang Bayan of Pasig.

Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the purpose was allegedly "in
line with the program of the Municipal Government to provide land opportunities to deserving poor sectors of our
community."

On May 2, 1994, petitioner sent a reply to respondent stating that the intended expropriation of her property is
unconstitutional, invalid, and oppressive, as the area of her lot is neither sufficient nor suitable to "provide land
opportunities to deserving poor sectors of our community."

In its letter of December 20, 1994, respondent reiterated that the purpose of the expropriation of petitioner’s property
is "to provide sports and recreational facilities to its poor residents."

Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for expropriation, docketed as
SCA No. 873. Respondent prayed that the trial court, after due notice and hearing, issue an order for the
condemnation of the property; that commissioners be appointed for the purpose of determining the just
compensation; and that judgment be rendered based on the report of the commissioners.

On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following grounds:

PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN,
CONSIDERING THAT:

(A) THERE IS NO GENUINE NECESSITY FOR THE TAKING OF THE PROPERTY SOUGHT TO BE
EXPROPRIATED.

(B) PLAINTIFF HAS ARBITRARILY AND CAPRICIOUSLY CHOSEN THE PROPERTY SOUGHT TO BE
EXPROPRIATED.

(C) EVEN ASSUMING ARGUENDO THAT DEFENDANT’S PROPERTY MAY BE EXPROPRIATED BY

PLAINTIFF, THE FAIR MARKET VALUE OF THE PROPERTY TO BE EXPROPRIATED FAR EXCEEDS
SEVENTY-EIGHT THOUSAND PESOS (P78,000.00)

II

PLAINTIFF’S COMPLAINT IS DEFECTIVE IN FORM AND SUBSTANCE, CONSIDERING THAT:

(A) PLAINTIFF FAILS TO ALLEGE WITH CERTAINTY THE PURPOSE OF THE EXPROPRIATION.
 (B) PLAINTIFF HAS FAILED TO COMPLY WITH THE PREREQUISITES LAID DOWN IN SECTION 34,
RULE VI OF THE RULES AND REGULATIONS IMPLEMENTING THE LOCAL GOVERNMENT CODE;
THUS, THE INSTANT EXPROPRIATION PROCEEDING IS PREMATURE.

III

THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE SECTION 261 (V) OF THE OMNIBUS ELECTION
CODE.

IV

PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT PROPERTY BY MERELY DEPOSITING AN

AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF THE VALUE OF THE PROPERTY BASED ON THE
CURRENT TAX DECLARATION OF THE SUBJECT PROPERTY.4

On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss,5 on the ground that there is a
genuine necessity to expropriate the property for the sports and recreational activities of the residents of
Pasig. As to the issue of just compensation, the trial court held that the same is to be determined in accordance with
the Revised Rules of Court.

Petitioner filed a motion for reconsideration but it was denied by the trial court in its Order of July 31, 1996.
Forthwith, it appointed the City Assessor and City Treasurer of Pasig City as commissioners to ascertain the just
compensation. This prompted petitioner to file with the Court of Appeals a special civil action for certiorari, docketed
as CA-G.R. SP No. 41860. On October 31, 1997, the Appellate Court dismissed the petition for lack of merit.
Petitioner’s Motion for Reconsideration was denied in a Resolution dated November 20, 1998.

Hence, this petition anchored on the following grounds:

THE QUESTIONED DECISION DATED 31 OCTOBER 1997 (ATTACHMENT "A") AND RESOLUTION DATED 20
NOVEMBER 1998 (ATTACHMENT "B") ARE CONTRARY TO LAW, THE RULES OF COURT AND
JURISPRUDENCE CONSIDERING THAT:

A. THERE IS NO EVIDENCE TO PROVE THAT THERE IS GENUINE NECESSITY FOR THE TAKING OF
THE PETITIONER’S PROPERTY.

B. THERE IS NO EVIDENCE TO PROVE THAT THE PUBLIC USE REQUIREMENT FOR THE EXERCISE
OF THE POWER OF EMINENT DOMAIN HAS BEEN COMPLIED WITH.

C. THERE IS NO EVIDENCE TO PROVE THAT RESPONDENT CITY OF PASIG HAS COMPLIED WITH
ALL CONDITIONS PRECEDENT FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN.

THE COURT A QUO’S ORDER DATED 07 MAY 1996 AND 31 JULY 1996, WHICH WERE AFFIRMED BY THE
COURT OF APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF PETITIONER’S PROPERTY WITHOUT
DUE PROCESS OF LAW:

II

THE COURT OF APPEALS GRAVELY ERRED IN APPLYING OF RULE ON ACTIONABLE DOCUMENTS TO THE
DOCUMENTS ATTACHED TO RESPONDENT CITY OF PASIG’S COMPLAINT DATED 07 APRIL 1995 TO
JUSTIFY THE COURT A QUO’S DENIAL OF PETITIONER’S RESPONSIVE PLEADING TO THE COMPLAINT
FOR EXPROPRIATION (THE MOTION TO DISMISS DATED 21 APRIL 1995).

III
THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE RULE ON HYPOTHETICAL ADMISSION OF
FACTS ALLEGED IN A COMPLAINT CONSIDERING THAT THE MOTION TO DISMISS FILED BY PETITIONER
IN THE EXPROPRIATION CASE BELOW WAS THE RESPONSIVE PLEADING REQUIRED TO BE FILED UNDER
THE THEN RULE 67 OF THE RULES OF COURT AND NOT AN ORIDNARY MOTION TO DISMISS UNDER
RULE 16 OF THE RULES OF COURT.

The foregoing arguments may be synthesized into two main issues – one substantive and one procedural. We will
first address the procedural issue.

Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It was denied by the trial
court on May 7, 1996. At that time, the rule on expropriation was governed by Section 3, Rule 67 of the Revised
Rules of Court which provides:

"SEC. 3. Defenses and objections. – Within the time specified in the summons, each defendant, in lieu of an
answer, shall present in a single motion to dismiss or for other appropriate relief, all his objections and defenses to
the right of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and
defenses not so presented are waived. A copy of the motion shall be served on the plaintiff’s attorney of record and
filed with the court with proof of service."

The motion to dismiss contemplated in the above Rule clearly constitutes the responsive pleading which takes the
place of an answer to the complaint for expropriation. Such motion is the pleading that puts in issue the right of the
plaintiff to expropriate the defendant’s property for the use specified in the complaint. All that the law requires is that
a copy of the said motion be served on plaintiff’s attorney of record. It is the court that at its convenience will set the
case for trial after the filing of the said pleading.6

The Court of Appeals therefore erred in holding that the motion to dismiss filed by petitioner hypothetically admitted
the truth of the facts alleged in the complaint, "specifically that there is a genuine necessity to expropriate
petitioner’s property for public use." Pursuant to the above Rule, the motion is a responsive pleading joining the
issues. What the trial court should have done was to set the case for the reception of evidence to determine whether
there is indeed a genuine necessity for the taking of the property, instead of summarily making a finding that the
taking is for public use and appointing commissioners to fix just compensation. This is especially so considering that
the purpose of the expropriation was squarely challenged and put in issue by petitioner in her motion to dismiss.

Significantly, the above Rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an
answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67
now expressly mandates that any objection or defense to the taking of the property of a defendant must be set forth
in an answer.

The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on October 31, after the 1997
Rules of Civil Procedure took effect, is of no moment. It is only fair that the Rule at the time petitioner filed her
motion to dismiss should govern. The new provision cannot be applied retroactively to her prejudice.

We now proceed to address the substantive issue.

In the early case of US v. Toribio,7 this Court defined the power of eminent domain as "the right of a government to
take and appropriate private property to public use, whenever the public exigency requires it, which can be done
only on condition of providing a reasonable compensation therefor." It has also been described as the power of the
State or its instrumentalities to take private property for public use and is inseparable from sovereignty and inherent
in government.8

The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof
to local government units, other public entities and public utility corporations,9 subject only to Constitutional
limitations. Local governments have no inherent power of eminent domain and may exercise it only when expressly
authorized by statute.10 Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the
delegation by Congress of the power of eminent domain to local government units and lays down the parameters for
its exercise, thus:
"SEC. 19. Eminent Domain. – A local government unit may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and
the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws:
Provided, however, That, the power of eminent domain may not be exercised unless a valid and definite offer has
been previously made to the owner and such offer was not accepted: Provided, further, That, the local government
unit may immediately take possession of the property upon the filing of expropriation proceedings and upon making
a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for
expropriated property shall be determined by the proper court, based on the fair market value at the time of the
taking of the property."

Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of
the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking.11

In this case, petitioner contends that respondent City of Pasig failed to establish a genuine necessity which justifies
the condemnation of her property. While she does not dispute the intended public purpose, nonetheless, she insists
that there must be a genuine necessity for the proposed use and purposes. According to petitioner, there is already
an established sports development and recreational activity center at Rainforest Park in Pasig City, fully operational
and being utilized by its residents, including those from Barangay Caniogan. Respondent does not dispute this.
Evidently, there is no "genuine necessity" to justify the expropriation.

The right to take private property for public purposes necessarily originates from "the necessity" and the taking must
be limited to such necessity. In City of Manila v. Chinese Community of Manila,12 we held that the very foundation
of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public
character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of
the land. In City of Manila v. Arellano Law College,13 we ruled that "necessity within the rule that the particular
property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical
necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the
condemning party and the property owner consistent with such benefit."

Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine
necessity to expropriate petitioner’s property. Our scrutiny of the records shows that the Certification14 issued by the
Caniogan Barangay Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993
authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners
Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of
the said Association are desirous of having their own private playground and recreational facility. Petitioner’s lot is
the nearest vacant space available. The purpose is, therefore, not clearly and categorically public. The necessity
has not been shown, especially considering that there exists an alternative facility for sports development and
community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including
those of Caniogan.

The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has
been written into organic law of every nation where the rule of law prevails. Unless the requisite of genuine
necessity for the expropriation of one’s property is clearly established, it shall be the duty of the courts to protect the
rights of individuals to their private property. Important as the power of eminent domain may be, the inviolable
sanctity which the Constitution attaches to the property of the individual requires not only that the purpose for the
taking of private property be specified. The genuine necessity for the taking, which must be of a public character,
must also be shown to exist.

WHEREFORE, the petition for review is GRANTED. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 41860 are REVERSED. The complaint for expropriation filed before the trial court by
respondent City of Pasig, docketed as SCA No. 873, is ordered DISMISSED.

SO ORDERED.