Eighth Reading Assignment

2. Police Power Laws: Section 16, 1991 LGC GENERAL WELFARE CLAUSE

SECTION 16. General Welfare. – Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

Cases:

1. Fernando v. St. Scholastica’s College, G.R. No. 161107, March 12, 2013
HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City,
JOSEPHINE C. EVANGELIST A, in her capacity as Chief, Permit Division, Office of the City
Engineer, and ALFONSO ESPIRITU, in his capacity as City Engineer of Marikina
City, Petitioners,vs. ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-
MARIKINA, INC., Respondents.

Respondents St. Scholastica’s College (SSC) and St. Scholastica’s Academy-Marikina, Inc.
(SSA-Marikina) are educational institutions organized under the laws of the Republic of the
Philippines, with principal offices and business addresses at Leon Guinto Street, Malate, Manila,
and at West Drive, Marikina Heights, Marikina City, respectively.2

Respondent SSC is the owner of four (4) parcels of land measuring a total of 56,306.80 square
meters, located in Marikina Heights and covered by Transfer Certificate Title (TCT) No. 91537.
Located within the property are SSA-Marikina, the residence of the sisters of the Benedictine
Order, the formation house of the novices, and the retirement house for the elderly sisters. The
property is enclosed by a tall concrete perimeter fence built some thirty (30) years ago. Abutting
the fence along the West Drive are buildings, facilities, and other improvements. 3

The petitioners are the officials of the City Government of Marikina. On September 30, 1994, the
Sangguniang Panlungsod of Marikina City enacted Ordinance No. 192,4 entitled "Regulating the
Construction of Fences and Walls in the Municipality of Marikina." In 1995 and 1998, Ordinance
Nos. 2175 and 2006 were enacted to amend Sections 7 and 5, respectively. Ordinance No. 192,
as amended, is reproduced hereunder, as follows:

ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN THE

MUNICIPALITY OF MARIKINA

WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the Local
Government Code of 1991 empowers the Sangguniang Bayan as the local legislative body of the
municipality to "x x x Prescribe reasonable limits and restraints on the use of property within the
jurisdiction of the municipality, x x x";

WHEREAS, the adoption of such technical standards shall provide more efficient and effective
enforcement of laws on public safety and security;

WHEREAS, it has occurred in not just a few occasions that high fences or walls did not actually
discourage but, in fact, even protected burglars, robbers, and other lawless elements from the
view of outsiders once they have gained ingress into these walls, hence, fences not necessarily
providing security, but becomes itself a "security problem";

WHEREAS, to discourage, suppress or prevent the concealment of prohibited or unlawful acts

earlier enumerated, and as guardian of the people of Marikina, the municipal government seeks
to enact and implement rules and ordinances to protect and promote the health, safety and
morals of its constituents;

WHEREAS, consistent too, with the "Clean and Green Program" of the government, lowering of
fences and walls shall encourage people to plant more trees and ornamental plants in their
yards, and when visible, such trees and ornamental plants are expected to create an aura of a
clean, green and beautiful environment for Marikeños;

Section 5. In no case shall walls and fences be built within the five (5) meter parking area
allowance located between the front monument line and the building line of commercial and
industrial establishments and educational and religious institutions. 7

Section 6. Exemption.

(1) The Ordinance does not cover perimeter walls of residential subdivisions.

(2) When public safety or public welfare requires, the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher than as prescribed herein and shall
issue a special permit or exemption.

Section 7. Transitory Provision. Real property owners whose existing fences and walls do not
conform to the specifications herein are allowed adequate period of time from the passage of this
Ordinance within which to conform, as follows:

(1) Residential houses – eight (8) years

(2) Commercial establishments – five (5) years

(3) Industrial establishments – three (3) years

(4) Educational institutions – five (5) years8 (public and privately owned)

Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance shall be
demolished by the municipal government at the expense of the owner of the lot or structure.

On April 2, 2000, the City Government of Marikina sent a letter to the respondents ordering them
to demolish and replace the fence of their Marikina property to make it 80% see-thru, and, at the
same time, to move it back about six (6) meters to provide parking space for vehicles to
park.9 On April 26, 2000, the respondents requested for an extension of time to comply with the
directive.10 In response, the petitioners, through then City Mayor Bayani F. Fernando, insisted on
the enforcement of the subject ordinance.

RTC: Not in conformity, the respondents filed a petition for prohibition with an application for a
writ of preliminary injunction and temporary restraining order before the Regional Trial Court,
Marikina.
The respondents, thus, asserted that the implementation of the ordinance on their property would
be tantamount to an appropriation of property without due process of law; and that the petitioners
could only appropriate a portion of their property through eminent domain.

The petitioners, on the other hand, countered that the ordinance was a valid exercise of police
power, by virtue of which, they could restrain property rights for the protection of public safety,
health, morals, or the promotion of public convenience and general prosperity.

RTC rendered a Decision,15 dated October 2, 2002, granting the petition and ordering the
issuance of a writ of prohibition commanding the petitioners to permanently desist from enforcing
or implementing Ordinance No. 192. The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in Marikina and to move it back six (6)
meters would amount to an appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not take the respondents’ property
under the guise of police power to evade the payment of just compensation.

CA: CA dismissed the petitioners’ appeal and affirmed the RTC decision.

The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify the exercise
of police power, as it did not only seek to regulate, but also involved the taking of the
respondents’ property without due process of law. The respondents were bound to lose an
unquantifiable sense of security, the beneficial use of their structures, and a total of 3,762.36
square meters of property. It, thus, ruled that the assailed ordinance could not be upheld as valid
as it clearly invaded the personal and property rights of the respondents and "[f]or being
unreasonable, and undue restraint of trade."

1. WHETHER OR NOT CITY ORDINANCE NO. 192, SERIES OF 1994 A VALID EXERCISE OF
POLICE POWER;

2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT

THE AFOREMENTIONED ORDINANCE IS AN EXERCISE OF THE CITY OF THE POWER OF
EMINENT DOMAIN;

SC: The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance No. 192
are valid exercises of police power by the City Government of Marikina.

"Police power is the plenary power vested in the legislature to make statutes and ordinances to
promote the health, morals, peace, education, good order or safety and general welfare of the
people."21 The State, through the legislature, has delegated the exercise of police power to local
government units, as agencies of the State. This delegation of police power is embodied in
Section 1622 of the Local Government Code of 1991 (R.A. No. 7160), known as the General
Welfare Clause,23 which has two branches. "The first, known as the general legislative power,
authorizes the municipal council to enact ordinances and make regulations not repugnant to law,
as may be necessary to carry into effect and discharge the powers and duties conferred upon the
municipal council by law. The second, known as the police power proper, authorizes the
municipality to enact ordinances as may be necessary and proper for the health and safety,
prosperity, morals, peace, good order, comfort, and convenience of the municipality and its
inhabitants, and for the protection of their property."

The test of a valid ordinance is well established. (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must
not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6)
must not be unreasonable.

Rational relationship test, an ordinance must pass the following requisites as discussed in
Social Justice Society (SJS) v. Atienza, Jr As with the State, local governments may be
considered as having properly exercised their police power only if the following requisites are
met: (1) the interests of the public generally, as distinguished from those of a particular class,
require its exercise and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must
be a concurrence of a lawful subject and lawful method.29

Lacking a concurrence of these two requisites, the police power measure shall be struck down as
an arbitrary intrusion into private rights and a violation of the due process clause.

SECTION 5: SETBACK REQUIREMENT: The Court first turns its attention to Section 5 which
requires the five-meter setback of the fence to provide for a parking area. The petitioners initially
argued that the ownership of the parking area to be created would remain with the respondents
as it would primarily be for the use of its students and faculty, and that its use by the public on
non-school days would only be incidental.

The Court is of the view that the implementation of the setback requirement would be tantamount
to a taking of a total of 3,762.36 square meters of the respondents’ private property for public use
without just compensation, in contravention to the Constitution.

Regarding the beautification purpose of the setback requirement, it has long been settled that the
State may not, under the guise of police power, permanently divest owners of the beneficial use
of their property solely to preserve or enhance the aesthetic appearance of the community. 33 The
Court, thus, finds Section 5 to be unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for aesthetic purposes.

Section 3.1. The standard height of fences or walls allowed under this ordinance are as follows:

(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be of an open fence type, at least eighty percent (80%)
see-thru; 

The ultimate goal of this objective is clearly the prevention of crime to ensure public safety and
security. The means employed by the petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to private rights. The petitioners have
not adequately shown, and it does not appear obvious to this Court, that an 80% see-thru fence
would provide better protection and a higher level of security, or serve as a more satisfactory
criminal deterrent, than a tall solid concrete wall.

 To pass the rational relationship test, the petitioners must show the reasonable relation between
the purpose of the police power measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining to
private property will not be permitted to be arbitrarily invaded.

The enforcement of Section 3.1 would, therefore, result in an undue interference with the
respondents’ rights to property and privacy. Section 3.1 of Ordinance No. 192 is, thus, also
invalid and cannot be enforced against the respondents.

The writ of prohibition is hereby issued commanding the respondents to permanently desist from
enforcing or implementing Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as
amended, on the petitioners' property in question located in Marikina Heights, Marikina, Metro
Manila.
2. Lucena Grand Central Terminal vs. JAC Liner, G.R. No. 148339, February 23, 2005

The Lucena Grand Central Terminal is the permanent common terminal as t
his is the entity which was given the exclusive franchise by the Sanggunian
g Panglungsod under Ordinance No. 1631; 
Respecting the issue of whether police power was properly exercised when the
subject ordinances were enacted: As with the State, the local government may be
considered as having properly exercised its police power only if the following
requisites are met: (1) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State, and (2) the means
employed are reasonably necessary for the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals. Otherwise stated, there
must be a concurrence of a lawful subject and lawful method.18

That traffic congestion is a public, not merely a private, concern, cannot be gainsaid.
In Calalang v. Williams19 which involved a statute authorizing the Director of Public
Works to promulgate rules and regulations to regulate and control traffic on national
roads, this Court held:

In enacting said law, therefore, the National Assembly was prompted by

considerations of public convenience and welfare. It was inspired by a desire to
relieve congestion of traffic, which is, to say the least, a menace to public safety.
Public welfare, then, lies at the bottom of the enactment of said law, and the state in
order to promote the general welfare may interfere with personal liberty, with
property, and with business and occupations.20 (Emphasis supplied) Ï‚rαlαωlιbrαrÿ

The questioned ordinances having been enacted with the objective of relieving traffic
congestion in the City of Lucena, they involve public interest warranting the
interference of the State. The first requisite for the proper exercise of police power is
thus present.

Bus terminals per se do not, however, impede or help impede the flow of traffic.
How the outright proscription against the existence of all terminals, apart from that
franchised to petitioner, can be considered as reasonably necessary to solve the
traffic problem, this Court has not been enlightened. If terminals lack adequate
space such that bus drivers are compelled to load and unload passengers on the
streets instead of inside the terminals, then reasonable specifications for the size of
terminals could be instituted, with permits to operate the same denied those which
are unable to meet the specifications.

In the subject ordinances, however, the scope of the proscription against the
maintenance of terminals is so broad that even entities which might be able to
provide facilities better than the franchised terminal are barred from operating at all.

Neither are terminals public nuisances as petitioner argues. For their operation is a
legitimate business which, by itself, cannot be said to be injurious to the rights of
property, health, or comfort of the community.

But even assuming that terminals are nuisances due to their alleged indirect effects
upon the flow of traffic, at most they are nuisance per accidens, not per se.

Unless a thing is nuisance per se, however, it may not be abated via an ordinance,
without judicial proceedings, as was done in the case at bar.

 "Suffice it to say that in the abatement of nuisances the provisions of the Civil Code
(Articles 694-707) must be observed and followed. This appellant failed to do."
Whether an ordinance is effective is an issue different from whether it is reasonably
necessary. It is its reasonableness, not its effectiveness, which bears upon its
constitutionality. If the constitutionality of a law were measured by its effectiveness,
then even tyrannical laws may be justified whenever they happen to be effective.

3. Aquino v. Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014
CRISOSTOMO B. AQUINO, Petitioner,
vs.
MUNICIPALITY OF MALAY, AKLAN, represented by HON. MAYOR JOHN P. YAP,
SANGGUNIANG BA YAN OF MALAY, AKLAN, represented by HON. EZEL FLORES, DANTE
PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE OF
THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP
CHIEF, BORACAY FOUNDATION, INC., represented by NENETTE GRAF, MUNICIPAL
AUXILIARY POLICE, and JOHN and JANE DOES, Respondents.

Petitioner CRISOSTOMO B. AQUINO is the president and chief executive officer of Boracay
Island West Cove Management Philippines, Inc. (Boracay West Cove). On January 7, 2010, the
company applied for a zoning compliance with the municipal government of Malay, Aklan.  While 2

the company was already operating a resort in the area, the application sought the issuance of a
building permit covering the construction of a three-storey hotel over a parcel of land measuring
998 sqm. located in Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan,which is
covered by a Forest Land Use Agreement for Tourism Purposes (FLAgT) issued by the
Department of Environment and Natural Resources (DENR) in favor of Boracay West Cove.

Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning Administrator
denied petitioner’s application on the ground that the proposed construction site was withinthe
"no build zone" demarcated in Municipal Ordinance 2000-131 (Ordinance).   3

SECTION 3. – No building or structure of any kind whether temporary or permanent shall be

allowed to be set up, erected or constructed on the beaches around the Island of Boracay and in
its offshore waters. During the conduct of special activities or special events, the Sangguniang
Bayan may, through a Resolution, authorize the Office of the Mayor to issue Special Permits for
construction of temporary structures on the beach for the duration of the special activity as
embodied in the Resolution.

OFFICE OF MAYOR: In due time, petitioner appealed the denial action to the Office of the
Mayor, however, a Notice of Assessment was sent to petitioner asking for the settlement of
Boracay West Cove’s unpaid taxes and other liabilities. Subsequently, on March 28, 2011, a
Cease and Desist Order was issued by the municipal government, enjoining the expansion of the
resort, and on June 7, 2011, the Office of the Mayor of Malay, Aklan issued the assailed EO 10,
ordering the closure and demolition of Boracay West Cove’s hotel.

CA: petitioner filed a Petition for Certiorari with prayer for injunctive relief with the CA. He argued
that judicial proceedings should first be conducted before the respondent mayor could order the
demolition of the company’s establishment;

In rebuttal, respondents contended that the FLAgT does not excuse the company from complying
with the Ordinance and Presidential Decree No. 1096 (PD 1096), otherwise known as the
National Building Code

the CA dismissed the petition solely on procedural ground, i.e., the special writ of certiorari can
only be directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions
and since the issuance of EO 10 was done in the exercise of executive functions, and not of
judicial or quasi-judicial functions, certiorari will not lie.

 Whether or not respondent mayor committed grave abuse of discretion when he issued EO 10;

a. Whether or not petitioner’s right to due process was violated when the respondent
mayor ordered the closure and demolition of Boracay West Cove’s hotel without first
conducting judicial proceedings;

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is
a nuisance per se.

Despite the hotel’s classification as a nuisance per accidens, however, We still find in this case
that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the
exercise of police power and the general welfare clause,  property rights of individuals may be
18

subjected to restraints and burdens in order to fulfil the objectives of the government.

Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order the
closure and removal of illegally constructed establishments for failing tosecure the necessary
permits

(vi) Require owners of illegally constructed houses, buildings or other structures to obtain the
necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or
to make necessary changes in the construction of the same when said construction violates any
law or ordinance, or to order the demolition or removal of said house, building or structure within
the period prescribed by law or ordinance.

ALSO, petitioner opted to defy the zoning administrator’s ruling. He consciously chose to violate
not only the Ordinance but also Sec. 301 of PD 1096, laying down the requirement of building
permits, which provides:

Section 301. Building Permits. No person, firm or corporation, including any agency or
instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish
any building or structure or cause the same to be done without first obtaining a building permit
therefor from the Building Official assigned in the place where the subject building is located or
the building work is to be done.

This twin violation of law and ordinance warranted the LGU’s invocation of Sec. 444 (b)(3)(vi) of
the LGC, which power is separate and distinct from the power to summarily abate nuisances per
se. Under the law, insofar as illegal constructions are concerned, the mayor can, after satisfying
the requirement of due notice and hearing, order their closure and demolition.

Based on law and jurisprudence, the office of the mayor has quasijudicial powers to order the
closing and demolition of establishments.  This power granted by the LGC, as earlier explained,
1âwphi1

We believe, is not the same power devolved in favor of the LGU under Sec. 17 (b )(2)(ii), as
abovequoted, which is subject to review by the DENR. The fact that the building to be
demolished is located within a forestland under the administration of the DENR is of no moment,
for what is involved herein, strictly speaking, is not an issue on environmental protection,
conservation of natural resources, and the maintenance of ecological balance, but the legality or
illegality of the structure.
1âwp

4. City Government of Davao vs. Court of Appeals, G.R. 189305, August 16, 2016
The Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to
impose a ban against aerial spraying as an agricultural practice by all agricultural entities
within Davao City.

SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly

enforced in the territorial jurisdiction of Davao City three (3) months after the effectivity of
this Ordinance.
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007. [3] The ordinance
took effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.
[4]
 Pursuant to Section 5 of the ordinance, the ban against aerial spraying would be strictly
enforced three months thereafter.
The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its
members, namely: Davao Fruits Corporation and Lapanday Agricultural and Development
Corporation (PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality
of the ordinance, and to seek the issuance of provisional reliefs through a temporary
restraining order (TRO) and/or writ of preliminary injunction. [5] They alleged that the
ordinance exemplified the unreasonable exercise of police power; violated the equal
protection clause; amounted to the confiscation of property without due process of law; and
lacked publication pursuant] to Section 511 [6] of Republic Act No. 7160 (Local Government
Code).
RTC: The RTC opined that the City of Davao had validly exercised police power [13] under the
General Welfare Clause of the Local Government Code;[14] that the ordinance, being based on
a valid classification, was consistent with the Equal Protection Clause; that aerial spraying
was distinct from other methods of pesticides application because it exposed the residents to
a higher degree of health risk caused by aerial drift; [15] and that the ordinance enjoyed the
presumption of constitutionality, and could be invalidated only upon a clear showing that it
had violated the Constitution.[16]

However, the RTC, recognizing the impracticability of the 3-month transition period under
Section 5 of Ordinance No. 0309-07, recommended the parties to agree on an extended
transition period.
CA: CA promulgated its assailed decision reversing the judgment of the RTC. [22] It declared
Section 5 of Ordinance No. 0309-07 as void and unconstitutional for being unreasonable and
oppressive; found the three-month transition period impractical and oppressive in view of
the engineering and technical requirements of switching from aerial spraying to truck-
mounted boom spraying; and opined that the ban ran afoul with the Equal Protection Clause
inasmuch as Section 3(a) of the ordinance - which defined the term aerial spraying - did not
make reasonable distinction between the hazards, safety and beneficial effects of liquid
substances that were being applied aerially; the different classes of pesticides or fungicides;
and the levels of concentration of these substances that could be beneficial and could
enhance agricultural production.
WON THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC]
CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE
POWER

II
The Sangguniang Bayan of Davao City
 enacted Ordinance No. 0309-07
under its corporate powers

The petitioners assert that Ordinance No. 0309-07 is a valid act of the
Sangguniang Bayan of Davao City- pursuant to its delegated authority to
exercise police power in the furtherance of public welfare and in
ensuring a sound and balanced environment for its constituents. The
respondents negate this assertion, describing the ordinance as
unreasonable, discriminatory and oppressive.

The petitioners' assertion of its authority to enact Ordinance No. 0309-

07 is upheld.

To be considered as a valid police power measure, an ordinance must

pass a two-pronged test: the formal (i.e., whether the ordinance is
enacted within the corporate powers of the local government unit, and
whether it is passed in accordance with the procedure prescribed by
law); and the substantive (i.e., involving inherent merit, like the
conformity of the ordinance with the limitations under the Constitution
and the statutes, as well as with the requirements of fairness and reason,
and its consistency with public policy).[100]

The formalities in enacting an ordinance are laid down in Section

53[101] and Section 54[102] of The Local Government Code. These
provisions require the ordinance to be passed by the majority of the
members of the sanggunian concerned, and to be presented to the mayor
for approval. With no issues regarding quorum during its deliberation
having been raised, and with its approval of by City Mayor Duterte not
being disputed, we see no reason to strike down Ordinance No. 0309-07
for non-compliance with the formal requisites under the Local
Government Code.

We next ascertain whether the City of Davao acted within the limits of its
corporate powers in enacting Ordinance No. 0309-07.

The corporate powers of the local government unit confer the basic
authority to enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations in order to promote the
general welfare.[103] Such legislative powers spring from the delegation
thereof by Congress through either the Local Government Code or a
special law. The General Welfare Clause in Section 16 of the Local
Government Code embodies the legislative grant that enables the local
government unit to effectively accomplish and carry out the declared
objects of its creation, and to promote and maintain local autonomy.
[104]
 Section 16 reads:

Sec. 16. General Welfare. — Every local government unit shall exercise

the powers expressly granted, those necessarily implied therefrom, as
well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of
the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support among other things, the
preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
Section 16 comprehends two branches of delegated powers, namely:
the general legislative power and the police power proper. General
legislative power refers to the power delegated by Congress to the local
legislative body, or the Sangguniang Panlungsod in the case of Dayao
City,[105] to enable the local legislative body to enact ordinances and make
regulations. This power is limited in that the enacted ordinances must
not be repugnant to law, and the power must be exercised to effectuate
and discharge the powers and duties legally conferred to the local
legislative body. The police power proper, on the other hand, authorizes
the local government unit to enact ordinances necessary and proper for
the health and safety, prosperity, morals, peace, good order, comfort,
and convenience of the local government unit and its constituents, and
for the protection of their property.[106]

Section 458 of the Local Government Code explicitly vests the local

government unit with the authority to enact legislation .aimed at
promoting the general welfare, viz.:

Section 458. Powers, Duties, Functions and Compensation. — (a) The

sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code. x x x
In terms of the right of the citizens to health and to a balanced and
healthful ecology, the local government unit takes its cue from Section 15
and Section 16, Article II of the 1987 Constitution. Following the
provisions of the Local Government Code and the Constitution, the acts
of the local government unit designed to ensure the health and lives of its
constituents and to promote a balanced and healthful ecology are well
within the corporate powers vested in the local government unit.
Accordingly, the Sangguniang Bayan of Davao City is vested with the
requisite authority to enact an ordinance that seeks to protect the health
and well-being of its constituents.

The respondents pose a challenge against Ordinance No. 0309-07 on the

ground that the Sangguniang Bayan of Davao City has disregarded the
health of the plantation workers, contending that by imposing the ban
against aerial spraying the ordinance would place the plantation workers
at a higher health risk because the alternatives of either manual or truck-
boom spraying method would be adopted; and that exposing the workers
to the same risk sought to be prevented by the ordinance would defeat its
purported purpose.

We disagree with the respondents.

With or without the ban against aerial spraying, the health and safety of
plantation workers are secured by existing state policies, rules and
regulations implemented by the FPA, among others, which the
respondents are lawfully bound to comply with. The respondents even
manifested their strict compliance with these rules, including those in
the UN-FAO Guidelines on Good Practice for Aerial Application of
Pesticides (Rome 2001). We should note that the Rome 2001 guidelines
require the pesticide applicators to observe the standards provided
therein to ensure the health and safety of plantation workers. As such,
there cannot be any imbalance between the right to health of the
residents vis-a-vis the workers even if a ban will be imposed against
aerial spraying and the consequent adoption of other modes of pesticide
treatment.

Furthermore, the constitutional right to health and maintaining

environmental integrity are privileges that do not only advance the
interests of a group of individuals. The benefits of protecting human
health and the environment transcend geographical locations and even
generations. This is the essence of Sections 15 and 16, Article II of the
Constitution. In Oposa v. Factoran, Jr.[107] we declared that the right to a
balanced and healthful ecology under Section 16 is an issue of
transcendental importance with intergenerational implications. It is
under this milieu that the questioned ordinance should be appreciated.

Advancing the interests of the residents who are vulnerable to the alleged
health risks due to their exposure to pesticide drift justifies the
motivation behind the enactment of the ordinance. The City of Davao
has the authority to enact pieces of legislation that will promote the
general welfare, specifically the health of its constituents. Such authority
should not be construed, however, as a valid license for the City of Davao
to enact any ordinance it deems fit to discharge its mandate. A thin but
well-defined line separates authority to enact legislations from the
method of accomplishing the same.

They are empowered under Section 16 of the Local Government Code to

promote the general welfare of the people through regulatory, not
prohibitive, ordinances that conform with the policy directions of the
National Government. Ordinance No. 0309-07 failed to pass this test as
it contravenes the specific regulatory policy on aerial spraying in banana
plantations on a nationwide scale of the National Government, through
the Fertilizer and Pesticide Authority FPA.
The Sangguniang Bayan of Davao Cityenacted Ordinance No. 0309-07under its
corporate powers... the right to a balanced and healthful ecology under Section 16 is an
issue of transcendental importance with intergenerational implications. It is under this
milieu that the questioned ordinance should be appreciated.
Advancing the interests of the residents who are vulnerable to the alleged health risks
due to their exposure to pesticide drift justifies the motivation behind the enactment of
the ordinance. The City of Davao has the authority to enact pieces of legislation that will
promote the general welfare, specifically the health of its constituents. Such authority
should not be construed, however, as a valid license for the City of Davao to enact any
ordinance it deems fit to discharge its mandate. A thin but well-defined line separates
authority to enact legislations from the method of accomplishing the same.
Ordinance No. 0309-07 violates the Due Process Clause
A valid ordinance must not only be enacted within the corporate powers of the local
government and passed according to the procedure prescribed by law.[108] In order to
declare it as a valid piece of local legislation, it must also comply with the following
substantive requirements, namely: (1) it must not contravene the Constitution or any
statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory; (4)
it must not prohibit but may regulate trade; (5) it must be general and consistent with
public policy; and (6) it must not be unreasonable.[109]In the State's exercise of police
power, the property rights of individuals may be subjected to restraints and burdens in
order to fulfill the objectives of the Government.[110] A local government unit is
considered to have properly exercised its police powers only if it satisfies the following
requisites, to wit: (1) the interests of the public generally, as distinguished from those of
a particular class, require the interference of the State; and (2) the means employed are
reasonably necessary for the attainment of the object sought to be accomplished and
not unduly oppressive.[111] The first requirement refers to the Equal Protection Clause
of the Constitution; the second, to the Due Process Clause of the Constitution.
[112]Substantive due process requires that a valid ordinance must have a sufficient
justification for the Government's action.[113] This means that in exercising police power
the local government unit must not arbitrarily, whimsically or despotically enact the
ordinance regardless of its salutary purpose. So long as the ordinance realistically
serves a legitimate public purpose, and it employs means that are reasonably necessary
to achieve that purpose without unduly oppressing the individuals regulated, the
ordinance must survive a due process challenge.

5. Didipio Earth-Savers’ Multi-Purpose Association vs. Gozun, G.R. No. 157882, March 30, 2006

This petition for prohibition and mandamus under Rule 65 of the

Rules of Court assails the constitutionality of Republic Act No.
7942 otherwise known as the Philippine Mining Act of 1995,
together with the Implementing Rules and Regulations issued
pursuant thereto, Department of Environment and Natural
Resources (DENR) Administrative Order No. 96-40, s. 1996 (DAO
96-40) and of the Financial and Technical Assistance Agreement
(FTAA) entered into on 20 June 1994 by the Republic of the
Philippines and Arimco Mining Corporation (AMC), a corporation
established under the laws of Australia and owned by its
nationals.
On 25 July 1987, then President Corazon C. Aquino promulgated
Executive Order No. 279 which authorized the DENR Secretary to
accept, consider and evaluate proposals from foreign-owned
corporations or foreign investors for contracts of agreements
involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, which, upon
appropriate recommendation of the Secretary, the President may
execute with the foreign proponent.
On 3 March 1995, then President Fidel V. Ramos signed into law
Rep. Act No. 7942 entitled, "An Act Instituting A New System of
Mineral Resources Exploration, Development, Utilization and
Conservation," otherwise known as the Philippine Mining Act of
1995.

On 15 August 1995, then DENR Secretary Victor O. Ramos issued

DENR Administrative Order (DAO) No. 23, Series of 1995,
containing the implementing guidelines of Rep. Act No. 7942. This
was soon superseded by DAO No. 96-40, s. 1996, which took
effect on 23 January 1997 after due publication.

Previously, however, or specifically on 20 June 1994, President

Ramos executed an Financial and Technical Assistance Agreement
FTAA with Arimco Mining Corporation AMC over a total land area
of 37,000 hectares covering the provinces of Nueva Vizcaya and
Quirino. Included in this area is Barangay Dipidio, Kasibu, Nueva
Vizcaya.

Counsels for DIDIPIO EARTH-SAVERS' MULTI-PURPOSE

ASSOCIATION, INCORPORATED (DESAMA) petitioners filed a
demand letter addressed to then DENR Secretary Heherson
Alvarez, for the cancellation of the CAMC FTAA for the primary
reason that Rep. Act No. 7942 and its Implementing Rules and
Regulations DAO 96-40 are unconstitutional. 
MGP: There being no response to both letters, another letter of
the same content dated 17 June 2002 was sent to President
Gloria Macapagal Arroyo. This letter was indorsed to the DENR
Secretary and eventually referred to the Panel of Arbitrators of
the Mines and Geosciences Bureau (MGB)
MGB rejected the demand of counsels for petitioners for the
cancellation of the CAMC FTAA. ςηαñrοblεš  νιr†υαl  lα

SC:Petitioners thus filed the present petition for prohibition

and mandamus, with a prayer for a temporary restraining order.
Whether or not Republic Act No. 7942 and the CAMC FTAA are
void because they allow the unjust and unlawful taking of
property without payment of just compensation, in violation of
Section 9, Article III of the Constitution.
Section 76 of Republic Act No. 7942 and Section 107 of DAO 96-
40; Republic Act No. 7942 and its Implementing Rules and
Regulations contained in DAO 96-40 - insofar as they relate to
financial and technical assistance agreements referred to in
paragraph 4 of Section 2 of Article XII of the Constitution are NOT
UNCONSTITUTIONAL.
V WHETHER OR NOT THE 1987 CONSTITUTION PROHIBITS SERVICE CONTRACTS
 NO. The mere fact that the term service contracts found in the 1973 Constitution was not carried
over to the present constitution, sans any categorical statement banning service contracts in
mining activities, does not mean that service contracts as understood in the 1973 Constitution
was eradicated in the 1987 Constitution. The 1987 Constitution allows the continued use of
service contracts with foreign corporations as contractors who would invest in and operate and
manage extractive enterprises, subject to the full control and supervision of the State; this time,
however, safety measures were put in place to prevent abuses of the past regime. the phrase
agreements involving either technical or financial assistance, referred to in paragraph 4, are in
fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign
corporations acting as contractors on the one hand; and on the other, the government as
principal or owner of the works. In the new service contracts, the foreign contractors provide
capital, technology and technical know-how, and managerial expertise in the creation and
operation of large-scale mining/extractive enterprises; and the government, through its agencies
(DENR, MGB), actively exercises control and supervision over the entire operation. OBITER
DICTA: ! justiciable controversy: definite and concrete dispute touching on the legal relations of
parties having adverse legal interests which may be resolved by a court of law through the
application of a law. ! to exercise the power of judicial review, the following must be extant (1)
there must be an actual case calling for the exercise of judicial power; - involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. In the instant case, there
exists a live controversy involving a clash of legal rights as Rep. Act No. 7942 has been enacted,
DAO 96-40 has been approved and an FTAAs have been entered into. The FTAA holders have
already been operating in various provinces of the country. (2) the question must be ripe for
adjudication; and - A question is considered ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. (3) the person challenging must
have the standing" - personal or substantial interest in the case such that the party has sustained
or will sustain direct injury as a result of the governmental act that is being challenged, alleging
more than a generalized grievance. By the mere enactment of the questioned law or the approval
of the challenged act, the dispute is said to have ripened into a judicial controversy even without
any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough
to awaken judicial duty. ! taking under the concept of eminent domain as entering upon private
property for more than a momentary period, and, under the warrant or color of legal authority,
devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a
way as to substantially oust the owner and deprive him of all beneficial enjoyment thereof.
requisites of taking in eminent domain, to wit: (1) the expropriator must enter a private property;
(2) the entry must be for more than a momentary period. (3) the entry must be under warrant or
color of legal authority; (4) the property must be devoted to public use or otherwise informally
appropriated or injuriously affected; (5) the utilization of the property for public use must be in
such a way as to oust the owner and deprive him of beneficial enjoyment of the property. !
Taking in Eminent Domain Distinguished from Regulation in Police Power The power of eminent
domain is the inherent right of the state (and of those entities to which the power has been
lawfully delegated) to condemn private property to public use upon payment of just
compensation.On the other hand, police power is the power of the state to promote public
welfare by restraining and regulating the use of liberty and property. Although both police power
and the power of eminent domain have the general welfare for their object, and recent trends
show a mingling of the two with the latter being used as an implement of the former, there are
still traditional distinctions between the two. Property condemned under police power is usually
noxious or intended for a noxious purpose; hence, no compensation shall be paid. Likewise, in
the exercise of police power, property rights of private individuals are subjected to restraints and
burdens in order to secure the general comfort, health, and prosperity of the state. Thus, an
ordinance prohibiting theaters from selling tickets in excess of their seating capacity (which would
result in the diminution of profits of the theater-owners) was upheld valid as this would promote
the comfort, convenience and safety of the customers. where a property interest is merely
restricted because the continued use thereof would be injurious to public welfare, or where
property is destroyed because its continued existence would be injurious to public interest, there
is no compensable taking. However, when a property interest is appropriated and applied to
some public purpose, there is compensable taking. ! On different roles and responsibilities: *
DENR Secretary : accept, consider and evaluate proposals from foreign-owned corporations or
foreign investors for contracts of agreements involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals, which, upon appropriate
recommendation of the Secretary, the President may execute with the foreign proponent.
(Executive Order No. 279, 1987) ! in re: easements and taking In Ayala de Roxas v. City of
Manila, it was held that the imposition of burden over a private property through easement was
considered taking; hence, payment of just compensation is required. The Court declared: And,
considering that the easement intended to be established, whatever may be the object thereof, is
not merely a real right that will encumber the property, but is one tending to prevent the exclusive
use of one portion of the same, by expropriating it for public use which, be it what it may, can not
be accomplished unless the owner of the property condemned or seized be previously and duly
indemnified, it is proper to protect the appellant by means of the remedy employed in such
cases, as it is only adequate remedy when no other legal action can be resorted to, against an
intent which is nothing short of an arbitrary restriction imposed by the city by virtue of the
coercive power with which the same is invested. ! in order that one law may operate to repeal
another law, the two laws must be inconsistent.The former must be so repugnant as to be
irreconciliable with the latter act.

3. Eminent Domain Laws: Section 19, 1991 LGC

SECTION 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, or 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 the 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 the expropriated property shall be determined by
the proper court, based on the fair market value at the time of the taking of the property

Cases:

6. Beluso vs. Municipality of Panay, G.R. No. 153974, August 07, 2006
MIGUEL BELUSO, NATIVIDAD BELUSO, PEDRO BELUSO, ANGELITA BELUSO, RAMON
BELUSO, and AMADA DANIEL, substituted by her heirs represented by TERESITA
ARROBANG, Petitioners,
vs.
THE MUNICIPALITY OF PANAY (CAPIZ), represented by its Mayor, VICENTE B.
BERMEJO, Respondent.

Petitioners are owners of parcels of land with a total area of about 20,424 square meters,
covered by Free Patent Nos. 7265, 7266, 7267, 7268, 7269, and 7270. 3 On November 8, 1995,
the Sangguniang Bayan of the Municipality of Panay issued Resolution No. 95-29 authorizing the
municipal government through the mayor to initiate expropriation proceedings. 4 A petition for
expropriation was thereafter filed on April 14, 1997 by the Municipality of Panay (respondent)
before the Regional Trial Court (RTC), Branch 18 of Roxas City, docketed as Civil Case No. V-
6958.

Petitioners filed a Motion to Dismiss alleging that the taking is not for public use but only for the
benefit of certain individuals; 

RTC: trial court denied petitioners’ Motion to Dismiss and declared that the expropriation in this
case is for "public use" and the respondent has the lawful right to take the property upon
payment of just compensation.

CA: It held that the petitioners were not denied due process as they were able to file an answer
to the complaint and were able to adduce their defenses therein; and that the purpose of the
taking in this case constitutes "public use"

A. WON RESPONDENT IS WITHOUT, LACKS AND DOES NOT HAVE THE LAWFUL POWER
TO ACQUIRE ANY OR ALL OF THE SUBJECT PROPERTIES THROUGH EMINENT DOMAIN,
IT BEING EXERCISED BY MEANS OF A MERE RESOLUTION, AND NOT THROUGH AN
ORDINANCE AS REQUIRED BY LAW AND APPLICABLE JURISPRUDENCE;

Petitioners argue that: contrary to Sec. 19 of R.A. No. 7160 of the Local Government Code,
which provides that a local government may exercise the power of eminent domain only by
"ordinance," respondent’s expropriation in this case is based merely on a "resolution"

Eminent domain, which is the power of a sovereign state to appropriate private property to
particular uses to promote public welfare, is essentially lodged in the legislature. 21 While such
power may be validly delegated to local government units (LGUs), other public entities and public
utilities the exercise of such power by the delegated entities is not absolute. 22 In fact, the scope
of delegated legislative power is narrower than that of the delegating authority and such entities
may exercise the power to expropriate private property only when authorized by Congress and
subject to its control and restraints imposed through the law conferring the power or in other
legislations. 23 Indeed, LGUs by themselves have no inherent power of eminent domain. 24 Thus,
strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but
"inferior" since it must conform to the limits imposed by the delegation and thus partakes only of
a share in eminent domain. 25 The national legislature is still the principal of the LGUs and the
latter cannot go against the principal’s will or modify the same. 26

The exercise of the power of eminent domain necessarily involves a derogation of a fundamental
right. 27 It greatly affects a landowner’s right to private property which is a constitutionally
protected right necessary for the preservation and enhancement of personal dignity and is
intimately connected with the rights to life and liberty. 28 Thus, whether such power is exercised
directly by the State or by its authorized agents, the exercise of such power must undergo
painstaking scrutiny. 29

Indeed, despite the existence of legislative grant in favor of local governments, it is still the duty
of the courts to determine whether the power of eminent domain is being exercised in
accordance with the delegating law.

Sec. 19 of R.A. No. 7160, which delegates to LGUs the power of eminent domain expressly
provides:

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, or 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 the
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 the expropriated
property shall be determined by the proper court, based on the fair market value at the time of
the taking of the property.

It is clear therefore that several requisites must concur before an LGU can exercise the power of
eminent domain, to wit:

1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in
behalf of the local government unit, to exercise the power of eminent domain or pursue
expropriation proceedings over a particular private property.

2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit
of the poor and the landless.

3. There is payment of just compensation, as required under Section 9, Article III of the
Constitution, and other pertinent laws.

4. A valid and definite offer has been previously made to the owner of the property sought to be
expropriated, but said offer was not accepted. 30

The Court in no uncertain terms have pronounced that a local government unit cannot authorize
an expropriation of private property through a mere resolution of its lawmaking body. 31 R.A. No.
7160 otherwise known as the Local Government Code expressly requires an ordinance for the
purpose and a resolution that merely expresses the sentiment of the municipal council will not
suffice. 32

A resolution will not suffice for an LGU to be able to expropriate private property; and the reason
for this is settled:

x x x A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution

is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An
ordinance possesses a general and permanent character, but a resolution is temporary in nature.
Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but
not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it
would have simply adopted the language of the previous Local Government Code. But Congress
did not. In a clear divergence from the previous Local Government Code, Sec. 19 of R.A. [No.]
7160 categorically requires that the local chief executive act pursuant to an ordinance. x x x 33

As respondent’s expropriation in this case was based merely on a resolution, such expropriation
is clearly defective. While the Court is aware of the constitutional policy promoting local
autonomy, the court cannot grant judicial sanction to an LGU’s exercise of its delegated power of
eminent domain in contravention of the very law giving it such power.

The decision of the Court of Appeals in CA-G.R. SP No. 47052 is REVERSED and SET ASIDE.
The Complaint in Civil Action No. V-6958 is DISMISSED without prejudice.

7. Municipality of Cordova vs. Pathfinder Development Corporation, G.R. No. 205544, June 29, 2016
Respondent Pathfinder Development Corporation (Pathfinder) is the owner of real
properties in Alegria, Cordova, Cebu: (1) Lot No. 692 covered by Tax Declaration
(TD) No. 190002-02765 with an area of 1,819 square meters (sq.m.), and (2) part
of Lot No. 697 covered by Transfer Certificate of Title (TCT) No. T-95706 and TD No.
190002-02902 with an area of 50,000 sq.m., while respondent Topanga
Development Corporation (Topanga) owns Lot No. 691 covered by TCT No. 109337
and TD No. 190002-02761 with an area of 29,057 sq.m., and part of Lot No. 697
covered by TD No. 190002-02901 with an area of 15,846 sq.m.

Petitioner Sangguniang Bay an of the Municipality of Cordova enacted Ordinance No.

003-2011 expropriating 836 sq.m. of Lot No. 692, 9,728 sq.m. of Lot No. 697, 3,898
sq.m. of Lot No. 691, and 1,467 sq.m. of Lot No. 693 owned by one Eric Ng
Mendoza, for the construction of a road access from the national highway to the
municipal roll-on/roll-off (RORO) port. It likewise authorized petitioner Mayor of
Cordova (the Mayor) to initiate and execute the necessary expropriation
proceedings.

Mayor of Cordova filed an expropriation complaint against the owners of the

properties. 

RTC: Pathfinder and Topanga filed an action for Declaration of Nullity of the
Expropriation Ordinance before the Regional Trial Court (RTC) of Mandaue City,
Branch 56, claiming that no offer to buy addressed to them was shown or attached
to the expropriation complaint, thereby rendering the Ordinance constitutionally
infirm for being in violation of their right to due process and equal protection.

Lapu-Lapu RTC, Branch 27 issued an Order2 denying the corporations' motion for

suspension of the proceedings and granting the issuance of a Writ of Possession in
favor of the municipality.

CA reversed the RTC.

The case is remanded to the Regional Trial Court, Branch 27, Lapu-Lapu City for the
reception of evidence de novo on the determination of the authority of the
respondent municipality to exercise the power of eminent domain and the propriety
of its exercise in the context of the facts involved in the suit. No pronouncement as
to costs.

SO ORDERED.3 chanroblesvirtuallawlibrary

Petitioners Municipality, Sangguniang Bayan, and Mayor of Cordova then filed a

Motion for Reconsideration, but the same proved to be futile.

Hence, this petition.

whether or not the CA committed a reversible error in giving due course to the
petition under Rule 65.

the CA erred when it held that the RTC acted with grave abuse of discretion.

Eminent domain is the right or power of a sovereign state to appropriate private

property to particular uses to promote public welfare. It is an indispensable attribute
of sovereignty; a power grounded in the primary duty of government to serve the
common need and advance the general welfare.8 The power of eminent domain is
inseparable in sovereignty being essential to the existence of the State and inherent
in government. Its exercise is proscribed by only two Constitutional
requirements: first, that there must be just compensation, and second, that no
person shall be deprived of life, liberty or property without due process of law. 9 chanrobleslaw

The power of eminent domain is essentially legislative in nature but may be validly
delegated to local government units. The basis for its exercise by the Municipality of
Cordova, being a local government unit, is granted under Section 19 of Republic Act
7160, to wit: ChanRoblesVirtualawlibrary

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, or 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 the 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 the 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 the power 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.10 chanrobleslaw

Under Rule 67 of the Rules of Court, expropriation proceedings are comprised of two
stages: (1) the determination of the authority of the plaintiff to exercise the power
of eminent domain and the propriety of its exercise in the context of the surrounding
facts, and (2) the determination of the just compensation for the property sought to
be taken. The first stage ends, if not in a dismissal of the action, with an order of
condemnation declaring that the plaintiff has a lawful right to take the property
sought to be condemned, for public use or purpose. 11 chanrobleslaw

Pathfinder and Topanga contend that the trial court issued an Order of
Condemnation of the properties without previously conducting a proper hearing for
the reception of evidence of the parties. However, no hearing is actually required for
the issuance of a writ of possession, which demands only two requirements: (a) the
sufficiency in form and substance of the complaint, and (b) the required provisional
deposit. The sufficiency in form and substance of the complaint for expropriation can
be determined by the mere examination of the allegations of the complaint. 12 Here,
there is indeed a necessity for the taking of the subject properties as these would
provide access towards the RORO port being constructed in the municipality. The
construction of the new road will highly benefit the public as it will enable shippers
and passengers to gain access to the port from the main public road or highway.

The requisites for authorizing immediate entry are the filing of a complaint for
expropriation sufficient in form and substance, and the deposit of the amount
equivalent to fifteen percent (15%) of the fair market value of the property to be
expropriated based on its current tax declaration. Upon compliance with these
requirements, the petitioner in an expropriation case is entitled to a writ of
possession as a matter of right13 and the issuance of the writ becomes
ministerial.14 Indubitably, since the complaint was found to have been sufficient in
form and substance and the required deposit had been duly complied with, the
issuance of the writ had aptly become ministerial on the part of the RTC. It cannot
be said, therefore, that the RTC committed grave abuse of discretion when it found
the taking of the properties of Topanga and Pathfinder proper.

the petition is GRANTED. The Decision of the Court of Appeals dated March 28,
2012 in CA-G.R. SP No. 06193 is hereby REVERSED and SET ASIDE. The Orders of
the Regional Trial Court of Lapu-Lapu, Branches 53 and 27, in Civil Case No. R-LLP-
11-05959-CV, dated May 26, 2011, August 12, 2011, and August 22, 2011, are
hereby REINSTATED. The case is REMANDED to the trial court for further
proceedings.

8. Hon. Alvin P. Vergara, in his capacity as City Mayor of Cabanatuan City vs. Lourdes Melencio S.
Grecia, G.R. 185638, August 10, 2016

The subject of this petition is a parcel of land covered by Transfer Certificate of Title
No. T-101793, with an area of 7,420 square meters, more or less, situated in
Barangay Barrera, Cabanatuan City, and registered under the name of the
respondents.6 chanrobleslaw

The record showed that sometime in 1989, the subject land was taken by
the Sanggunian for road-right-of-way and road widening projects. Despite the taking
of the subject land and the completion of the road widening projects,
the Sanggunian failed to tender the just compensation to the respondents. Upon the
request of Lourdes Melencio, the Sanggunian created an appraisal committee,
composed of City Assessor of Cabanatuan Lorenza L. Esguerra as Chairman, with
City Treasurer Bernardo C. Pineda and City Engineer Mac Arthur C. Yap as members,
to determine the proper amount of just compensation to be paid by
the Sanggunian for the subject land. The Appraisal Committee then issued
Resolution No. 20-S-20017 recommending the payment of P2,295.00 per sq m as
just compensation.8 chanrobleslaw

Thereafter, the Sanggunian issued Resolution No. 148-20009 authorizing Mayor

Vergara to negotiate, acquire, purchase and accept properties needed by
the Sanggunian for its project.

Pursuant to the said resolution, on December 4, 2001, Mayor Vergara executed a

Memorandum of Agreement10 (MOA) with Lourdes as Attorney-in-fact of the
respondents, whereby the Sanggunian bound itself to pay the respondents the
amount of P17,028,900.00 in 12 years at the rate of P1,419,075.00 every year
starting the first quarter of 2002 as payment of the subject land.

More than four years had lapsed after the signing of the MOA but no payment was
ever made by the petitioners to the respondents despite the fact that the subject
land was already taken by the petitioners and was being used by the constituents of
the City of Cabanatuan.11 chanrobleslaw

Despite personal and written demands,12 the petitioners still failed to pay the
respondents the just and fair compensation of the subject land.13 chanrobleslaw

In a letter14 dated November 18, 2005, Mayor Vergara said that

the Sanggunian denied the ratification of the MOA per its Resolution No. 129-
200215 on the ground of fiscal restraint or deficit of the Sanggunian. In view of this
resolution, Mayor Vergara claimed that the said MOA could neither be enforced, nor
bind the Sanggunian.

RTC: respondents filed a petition for mandamus16 before the RTC of Cabanatuan City

rendered its Order17 in favor of the respondents for just compensation of their
property taken by the Sanggunian

CA: affirmed the trial court's order but modified the same by reducing the amount to
be paid by the petitioners from P10,000,000.00 to P2,554,335.00 representing 15%
of the value of the property as provided by law.

whether there is propriety in the partial execution of the judgment pending appeal.

two mandatory requirements should underlie the Government's exercise of the

power of eminent domain namely: (1) that it is for a particular public purpose; and
(2) that just compensation be paid to the property owner.

the purpose of the condemnation is public but there was no payment of just
compensation to the respondents. The petitioners should have first instituted
eminent domain proceedings and deposit with the authorized government depositary
an amount equivalent to the assessed value of the subject land before it occupied
the same. Due to the petitioners' omission, the respondents were constrained to file
inverse condemnation proceedings to demand the payment of just compensation
before the trial court. From 1989 until the present, the respondents were deprived of
just compensation, while the petitioners continuously burdened their property.

Apart from the requirement that compensation for expropriated land must be fair
and reasonable, compensation, to be "just", must also be made without delay.
Without prompt payment, compensation cannot be considered "just" if the property
is immediately taken as the property owner suffers the immediate deprivation of
both his land and its fruits or income.

Sangguniang Panlungsod of Cabanatuan are hereby ordered to PAY until fully paid,

just compensation shall earn interest at the new legal rate of six percent (6%) per
annum

9. City of Manila vs. Prieto, G.R. No. 221366, July 8, 2019 Moday vs. Court of Appeals, G.R. No.
107916, February 20, 1997

G.R. No. 221366, July 08, 2019

CITY OF MANILA, PETITIONER, v. ALEJANDRO ROCES PRIETO, BENITO

ROCES PRIETO, MERCEDES PRIETO DELGADO, MONICA LOPEZ PRIETO,
MARTIN LOPEZ PRIETO, BEATRIZ PRIETO DE LEON, RAFAEL ROCES PRIETO,
BENITO LEGARDA, INC., ALEGAR CORPORATION, BENITO LEGARDA, JR.,
PECHATEN CORPORATION, ESTATE OF ROSARIO M. LLORA, AND ALL
PERSONS CLAIMING INTERESTS AGAINST THEM, RESPONDENTS.
On January 19, 2004, the City Council of Manila enacted Ordinance No. 8070 that
authorized the City Mayor to acquire certain parcels of land belonging to
respondents Alejandro Roces Prieto, Benito Roces Prieto, Mercedes Delgado Prieto,
Monica Lopez Prieto, Martin Lopez Prieto, Beatriz Prieto De Leon, Rafael Roces
Prieto, Benito Legarda, Inc., Alegar Corporation, Benito Legarda, Jr., Pechaten
Corporation, and Rosario M. Llora (collectively, respondents) to be used for the City
of Manila's (petitioner) Land-For-The-Landless Program.

Initially, petitioner attempted to acquire the subject lots by negotiated sale, offering
the amount of P2,000.00 per square meter, which respondents refused to accept on
the ground that their respective properties are worth more than that.6

RTC: Thus, petitioner filed a Complaint dated September 3, 2004, before the RTC,
asserting its authority to expropriate the subject lots for its project.7

Petitioner manifested that it had already deposited the sum of P4,812,920.00 in the
bank, representing more than one hundred percent (100%) of the assessed value of
the properties as shown in the declarations of real property.8

RTC issued an Order denying the issuance of a writ of possession. RTC applied the
provisions of the Local Government Code (LGC), mandating the deposit of 15% of
the fair market value of the properties subject of expropriation, for petitioner's
immediate possession thereof.9

Upon compliance, petitioner manifested that the additional amount of P852,519.00

has already been satisfied. Petitioner deposited the amount of P425,519.00, while
the prospective beneficiaries of the project deposited P443,621.00 to complete the
additional amount.

the RTC concluded that all the requisites for the local government's exercise of the
power of eminent domain have been met by the petitioner.12

The RTC found that there was an ordinance passed by the City Council of Manila to
expropriate the subject lots for public purpose. The requirement that it should be for
public use was, according to the RTC, satisfied by the fact that the properties were
sought to be expropriated pursuant to the petitioner's "Land for the Landless and
Onsite Development Programs."

CA: reversed. CA ruled that petitioner has failed to discharge its burden to prove
that the requirements for the proper exercise of the local government's power of
eminent domain were complied with or otherwise, are not applicable to its case. 

CA found the records lacking of any evidence to support petitioner's claim that an
on-site development program is the most practicable and advantageous for the
beneficiaries.

whether or not the CA erred in finding that petitioner failed to prove that it complied
with pertinent laws in the exercise of its power of eminent domain.

From the foregoing, several requisites must concur before a local government unit
can exercise the power of eminent domain, to wit: (1) an ordinance is enacted by
the local legislative council authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property; (2) the power of eminent domain is
exercised for public use, purpose or welfare, or for the benefit of the poor and the
landless; (3) there is payment of just compensation, as required under Section 9,
Article III of the Constitution, and other pertinent laws; and (4) a valid and definite
offer has been previously made to the owner of the property sought to be
expropriated, but said offer was not accepted.31

Further, the above-cited provision also states that the exercise of such delegated
power should be pursuant to the Constitution and pertinent laws. R.A. No. 7279 is
such pertinent law in this case as it governs the local expropriation of properties for
purposes of urban land reform and housing. 

SEC 9. Priorities in the Acquisition of Land. - Lands for socialized housing shall
be acquired in the following order:

(a) Those owned by the Government or any of its subdivisions, instrumentalities, or

agencies, including government-owned or controlled corporations and their
subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas or Priority Development, Zonal Improvement
Program sites, and Slum Improvement and Resettlement Program sites which have
not yet been acquired;

(e) Bagong Lipunan Improvement of Sites and Services or BLISS sites which have
not yet been acquired; and

(f) Privately-owned lands.

SEC. 10. Modes of Land Acquisition. - The modes of acquiring lands for purposes of
this Act shall include, among others, community mortgage, land swapping, land
assembly or consolidation, land banking, donation to the Government, joint-venture
agreement, negotiated purchase, and expropriation: Provided, however, That
expropriation shall be resorted to only when other modes of acquisition
have been exhausted: 

NO evidence was presented to prove such claim. There was no showing that any
attempt was made to first acquire the lands listed in Section 9(a) to (e) before
proceeding to expropriate respondents' private lands. There was also no document
or any evidence presented to prove a study allegedly conducted showing
comparisons and considerations to support petitioner's conclusion that on-site
development was its best choice.

Finally, petitioner failed to establish that the other modes of acquisition under
Section 10 of R.A. No. 7279 were first exhausted

"The government must exhaust all reasonable efforts to obtain by agreement the
land it desires. Its failure to comply will warrant the dismissal of the complaint."

 respondents rejected petitioner's offer of P2,000.00 per square meter to purchase

their lots for being too low compared to the fair market value of their properties,
petitioner readily instituted the present expropriation suit without bothering to
renegotiate its offer. Relevantly, thus, there is no valid and definite offer made by
petitioner before it filed the expropriation complaint. The intent of the law is for the
State or the local government to make a reasonable offer in good faith, not merely
& pro forma offer to acquire the property.

Resolution dated November 9, 2015, of the Court of Appeals in CA-G.R. CV No.

101440 are AFFIRMED

10. Masikip v. City of Pasig, G.R. No. 136349, January 23, 2006

4. Reclassification of Land Laws: Section 20, 1991 LGC

Section 20. Reclassification of Lands. -

(a) A city or municipality may, through an ordinance passed by the sanggunian after
conducting public hearings for the purpose, authorize the reclassification of agricultural
lands and provide for the manner of their utilization or disposition in the following cases:
(1) when the land ceases to be economically feasible and sound for agricultural purposes
as determined by the Department of Agriculture or (2) where the land shall have
substantially greater economic value for residential, commercial, or industrial purposes,
as determined by the sanggunian concerned: Provided, That such reclassification shall
be limited to the following percentage of the total agricultural land area at the time of the
passage of the ordinance:

(1) For highly urbanized and independent component cities, fifteen percent
(15%);

(2) For component cities and first to the third class municipalities, ten percent
(10%); and

(3) For fourth to sixth class municipalities, five percent (5%): Provided, further,
That agricultural lands distributed to agrarian reform beneficiaries pursuant to
Republic Act Numbered Sixty-six hundred fifty-seven (R.A. No. 6657). otherwise
known as "The Comprehensive Agrarian Reform Law", shall not be affected by
the said reclassification and the conversion of such lands into other purposes
shall be governed by Section 65 of said Act.

(b) The President may, when public interest so requires and upon recommendation of the
National Economic and Development Authority, authorize a city or municipality to
reclassify lands in excess of the limits set in the next preceding paragraph.

(c) The local government units shall, in conformity with existing laws, continue to prepare
their respective comprehensive land use plans enacted through zoning ordinances which
shall be the primary and dominant bases for the future use of land resources: Provided.
That the requirements for food production, human settlements, and industrial expansion
shall be taken into consideration in the preparation of such plans.

(d) Where approval by a national agency is required for reclassification, such approval
shall not be unreasonably withheld. Failure to act on a proper and complete application
for reclassification within three (3) months from receipt of the same shall be deemed as
approval thereof.
 (e) Nothing in this Section shall be construed as repealing, amending, or modifying in any
manner the provisions of R.A. No. 6657.

Cases:

11. Ros vs. DAR, G.R. No. 132477, August 31, 2005

12. Sangguniang Panlalawigan of Bataan vs. Congressman Garcia, G.R. No. 174964, October 5, 2016

5. Closure and opening of roads Laws: Section 21 LGC

Section 21. Closure and Opening of Roads. -

(a) A local government unit may, pursuant to an ordinance, permanently or temporarily

close or open any local road, alley, park, or square falling within its jurisdiction: Provided,
however, That in case of permanent closure, such ordinance must be approved by at
least two-thirds (2/3) of all the members of the sanggunian, and when necessary, an
adequate substitute for the public facility that is subject to closure is provided.

(b) No such way or place or any part thereof shall be permanently closed without making
provisions for the maintenance of public safety therein. A property thus permanently
withdrawn from public use may be used or conveyed for any purpose for which other real
property belonging to the local government unit concerned may be lawfully used or
conveyed: Provided, however, That no freedom park shall be closed permanently without
provision for its transfer or relocation to a new site.

(c) Any national or local road, alley, park, or square may be temporarily closed during an
actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or
an undertaking of public works and highways, telecommunications, and waterworks
projects, the duration of which shall be specified by the local chief executive concerned in
a written order: Provided, however, That no national or local road, alley, park, or square
shall be temporarily closed for athletic, cultural, or civic activities not officially sponsored,
recognized, or approved by the local government unit concerned.

(d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily
close and regulate the use of any local street, road, thoroughfare, or any other public
place where shopping malls, Sunday, flea or night markets, or shopping areas may be
established and where goods, merchandise, foodstuffs, commodities, or articles of
commerce may be sold and dispensed to the general public.

Cases: Sangalang v. IAC, G.R. No. 71169, August 25, 1989

13. MMDA v. Bel Air Village Association Inc., G.R. No. 135962, March 27, 2000