Consti 2 Full texts

8/19/2019 Consti 2 Full texts

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ICHONG VS. HERNANDEZ, 101 PHIL 155

Facts:

The Congress of the Philippines enacted the act which nationalizes theretail trade business !epublic "ct #o$ 11%0 entitled &"n "ct to !egulate

the!etail 'usiness( prohibiting aliens in general to engage in retail trade in ourcountr)$Petitioner for and in his own behalf and on behalf of other

alien residentscorporations and partnerships ad*ersel) affected b) the pro*isions of !" #o$11%0 brought this action to obtain a +udicial declaration

that said "ct is unconstitutional$

Issue:

,hether Congress in enacting !$"$ #o$ 11%0 *iolated the -# Charter the-# .eclaration of Hu/an !ights and the PhilippineChinese Treat) of

"/it)$

Held:

The -# Charter i/poses no strict or legal obligations regarding the rightsand freedo/ of their sub+ects and the .eclaration of Hu/an !ights

contains nothing /ore than a /ere reco//endation or a co//on standard of achie*e/ent for all peoples and all nations$ The Treat) of "/it)

between the !epublic of the Philippines and the !epublic of China guarantees eualit) of treat/ent to the Chinese nationals &upon the sa/eter/s

as the nationals of an) other countr)$ 'ut the nationals of China are notdiscri/inated against because nationals of all other countries e2cept those

of the -nited 3tates who are granted special rights b) the Constitution are allprohibited fro/ engaging in the retail trade$'ut e*en supposing that

the law infringes upon the said treat) the treat) is alwa)s sub+ect to ualification or a/end/ent b) a subseuent law and the sa/e /a) ne*er

curtail or restrict the scope of the police power of the 3tate$

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main proisions of

the Act are! 1# a prohibition against persons$ not citizens of the %hilippines$ and against associations$ partnerships$ or corporations the capital of

&hich are not &holl' o&ned b' citizens of the %hilippines$ from engaging directl' or indirectl' in the retail trade( )# an e*ception from the aboe

prohibition in faor of aliens actuall' engaged in said business on +a' 1,$ 1-,$ &ho are allo&ed to continue to engaged therein$ unless their

licenses are forfeited in accordance &ith the la&$ until their death or oluntar' retirement in case of natural persons$ and for ten 'ears after the

approal of the Act or until the e*piration of term in case of /uridical persons( # an e*ception therefrom in faor of citizens and /uridical entities of

the nited 2tates( # a proision for the forfeiture of licenses to engage in the retail business# for iolation of the la&s on nationalization$ control

&eights and measures and labor and other la&s relating to trade$ commerce and industr'( ,# a prohibition against the establishment or opening b'

aliens actuall' engaged in the retail business of additional stores or branches of retail business$ 3# a proision re4uiring aliens actuall' engaged in

the retail business to present for registration &ith the proper authorities a erified statement concerning their businesses$ giing$ among other

matters$ the nature of the business$ their assets and liabilities and their offices and principal offices of /udicial entities( and 5# a proision allo&ing

the heirs of aliens no& engaged in the retail business &ho die$ to continue such business for a period of si* months for purposes of li4uidation.

The police po&er. 6

There is no 4uestion that the Act &as approed in the e*ercise of the police po&er$ but petitioner claims that its e*ercise in this instance is attended b' a iolation of the constitutional re4uirements of due process and e4ual protection of the la&s. But before proceeding to the consideration and

resolution of the ultimate issue inoled$ it &ould be &ell to bear in mind certain basic and fundamental$ albeit preliminar'$ considerations in the

determination of the eer recurrent conflict bet&een police po&er and the guarantees of due process and e4ual protection of the la&s. 7hat is the

scope of police po&er$ and ho& are the due process and e4ual protection clauses related to it 7hat is the proince and po&er of the legislature$

and &hat is the function and dut' of the courts These consideration must be clearl' and correctl' understood that their application to the facts of

the case ma' be brought forth &ith clarit' and the issue accordingl' resoled.

ORTIGAS & CO. LTD., petitioner, vs. THE COURT OF APPEALS n! IS"AEL G. "ATHA# III, respon!ents. $G.R. No. %'%()

The facts of this case as culled fro/ the records are as follows:

4n "ugust 5 1678 petitioner 4rtigas 9 Co/pan) sold to /ilia Her/oso a parcel of land ;nown as Lot 1 'loc; 1 Psd88756 with an area of 150% suare /eters located in <reenhills 3ubdi*ision I= 3an >uan ?etro ?anila and co*ered b) Transfer Certificate of Title #o$ 07@7$ The

contract of sale pro*ided that the lot:

1$ A1B be used e2clusi*el) for residential purposes onl) and not /ore than one singlefa/il) residential building will be constructed thereon

2 2

8$ The '-! shall not erect an) sign or billboard on the roof for ad*ertising purposes

2 2 2

11$ #o singlefa/il) residential building shall be erected until the building plans specification ha*e been appro*ed b) the 3LL!

2 2 2

1D$$$$restrictions shall run with the land and shall be construed as real co*enants until .ece/ber @1 05 when the) shall cease and ter/inateE1

These and the other conditions were dul) annotated on the certificate of title issued to /ilia$



In 16%1 the ?etropolitan ?anila Co//ission Anow ?etropolitan ?anila .e*elop/ent "uthorit)B enacted ??C 4rdinance #o$ %101 also ;nown as

the Co/prehensi*e Goning "rea for the #ational Capital !egion$ The ordinance reclassified as a co//ercial area a portion of 4rtigas "*enue fro/

?adison to !oose*elt 3treets of <reenhills 3ubdi*ision where the lot is located$

4n >une % 16%D pri*ate respondent Is/ael ?atha) III leased the lot fro/ /ilia Her/oso and >$P$ Her/oso !ealt) Corp$$ The lease contract did

not specif) the purposes of the lease$ Thereupon pri*ate respondent constructed a single stor) co//ercial building for <reenhills "utohaus Inc$ a

car sales co/pan)$

4n >anuar) 1% 1665 petitioner filed a co/plaint against /ilia Her/oso with the !egional Trial Court of Pasig 'ranch 81$ .oc;eted as Ci*il

Case #o$ 8D6@1 the co/plaint sought the de/olition of the said co//ercial structure for ha*ing *iolated the ter/s and conditions of the .eed of

3ale$ Co/plainant pra)ed for the issuance of a te/porar) restraining order and a writ of preli/inar) in+unction to prohibit petitioner fro/constructing the co//ercial building andor engaging in co//ercial acti*it) on the lot$ The co/plaint was later a/ended to i/plead Is/ael <$

?atha) III and >$P$ Her/oso !ealt) Corp$ which has a ten percent A10B interest in the lot$

In his answer ?atha) III denied an) ;nowledge of the restrictions on the use of the lot and filed a crossclai/ against the Her/osos$

4n >une 18 1665 the trial court issued the writ of preli/inar) in+unction$ 4n >une 6 1665 ?atha) III /o*ed to set aside the in+uncti*e order but

the trial court denied the /otion$

?atha) III then filed with the Court of "ppeals a special ci*il action for certiorari doc;eted as C"<$!$ 3P #o$ @616@ ascribing to the trial court

gra*e abuse of discretion in issuing the writ of preli/inar) in+unction$ He clai/ed that ??C 4rdinance #o$ %101 classified the area where the lot

was located as co//ercial area and said ordinance /ust be read into the "ugust 5 1678 .eed of 3ale as a concrete e2ercise of police power$

4rtigas and Co/pan) a*erred that inas/uch as the restrictions on the use of the lot were dul) annotated on the title it issued to /ilia Her/oso

said restrictions /ust pre*ail o*er the ordinance speciall) since these restrictions were agreed upon before the passage of ??C 4rdinance #o$

%101$

4n ?arch 5 1668 the appellate court disposed of the case as follows:

,H!F4! in light of the foregoing the petition is hereb) <!"#T.$ The assailed orders are hereb) nullified and set aside$

34 4!.!.$

In finding for ?atha) III the Court of "ppeals held that the ??C 4rdinance #o$ %101 effecti*el) nullified the restrictions allowing onl) residential

use of the propert) in uestion$ 4rtigas seasonabl) /o*ed for reconsideration but the appellate court denied it on "ugust 1@ 1668$

Hence the instant petition$

In its ?e/orandu/ petitioner now sub/its that the principal issue in this case is whether respondent Court of "ppeals correctl) set aside the 4rder

dated >une 18 1665 of the trial court which issued the writ of preli/inar) in+unction on the sole ground that ??C 4rdinance #o$ %101 nullified thebuilding restriction i/posing e2clusi*e residential use on the propert) in uestion$E@ It also asserts that ?atha) III lac;s legal capacit) to uestion

the *alidit) of conditions of the deed of saleJ and he is barred b) estoppel or wai*er to raise the sa/e uestion li;e his principals the owners$ED

Lastl) it a*ers that the appellate court unaccountabl) failed to address se*eral uestions of fact$

Principall) we /ust resol*e the issue of whether the Court of "ppeals erred in holding that the trial court co//itted gra*e abuse of discretion when

it refused to appl) ??C 4rdinance #o$%101 to Ci*il Case #o$ 8D6@1$

'ut first we /ust address petitioners allegation that the Court of "ppeals unaccountabl) failed to address uestions of fact$ For basic is the rule that

factual issues /a) not be raised before this Court in a petition for re*iew and this Court is not dut)bound to consider said uestions$E5 C"<$!$ 3P

#o$ @616@ was a special ci*il action for certiorari and the appellate court onl) had to deter/ine if the trial court co//itted gra*e abuse of discretion

a/ounting to want or e2cess of +urisdiction in issuing the writ of preli/inar) in+unction$ Thus unless *ital to our deter/ination of the issue at hand

we shall refrain fro/ further consideration of factual uestions$

Petitioner contends that the appellate court erred in li/iting its decision to the cited zoning ordinance$ It a*ers that a contractual right is notauto/aticall) discarded once a clai/ is /ade that it conflicts with police power$ Petitioner sub/its that the restricti*e clauses in the uestioned

contract is not in conflict with the zoning ordinance$ For one according to petitioner the ??C 4rdinance #o$ %101 did not prohibit the construction

of residential buildings$ Petitioner argues that e*en with the zoning ordinance the seller and bu)er of the reclassified lot can *oluntaril) agree to an

e2clusi*e residential use thereof$ Hence petitioner concludes that the Court of "ppeals erred in holding that the condition i/posing e2clusi*e

residential use was effecti*el) nullified b) the zoning ordinance$

In its turn pri*ate respondent argues that the appellate court correctl) ruled that the trial court had acted with gra*e abuse of discretion in refusing

to sub+ect the contract to the ??C 4rdinance #o$ %101$ He a*ers that the appellate court properl) held the police power superior to the non

i/pair/ent of contract clause in the Constitution$ He concludes that the appellate court did not err in dissol*ing the writ of preli/inar) in+unction

issued b) the trial court in e2cess of its +urisdiction$

,e note that in issuing the disputed writ of preli/inar) in+unction the trial court obser*ed that the contract of sale was entered into in "ugust 1678

while the zoning ordinance was enacted onl) in ?arch 16%1$ The trial court reasoned that since pri*ate respondent had failed to show that ??C

4rdinance #o$ %101 had retroacti*e effect said ordinance should be gi*en prospecti*e application onl)E8 citing Co *s$ Inter/ediate "ppellate

Court 18 3C!" @60 A16%%B$

In general we agree that laws are to be construed as ha*ing onl) prospecti*e operation$ Le2 prospicit non respicit$ uall) settled onl) laws

e2isting at the ti/e of the e2ecution of a contract are applicable thereto and not later statutes unless the latter are specificall) intended to ha*e

retroacti*e effect$E7 " later law which enlarges abridges or in an) /anner changes the intent of the parties to the contract necessaril) i/pairs the

contract itselfE% and cannot be gi*en retroacti*e effect without *iolating the constitutional prohibition against i/pair/ent of contracts$E6



'ut the foregoing principles do ad/it of certain e2ceptions$ 4ne in*ol*es police power$ " law enacted in the e2ercise of police power to regulate or

go*ern certain acti*ities or transactions could be gi*en retroacti*e effect and /a) reasonabl) i/pair *ested rights or contracts$ Police power

legislation is applicable not onl) to future contracts but euall) to those alread) in e2istence$E10 #oni/pair/ent of contracts or *ested rights

clauses will ha*e to )ield to the superior and legiti/ate e2ercise b) the 3tate of police power to pro/ote the health /orals peace education good

order safet) and general welfare of the people$E11 ?oreo*er statutes in e2ercise of *alid police power /ust be read into e*er) contract$E1

#oteworth) in 3angalang *s$ Inter/ediate "ppellate CourtE1@ we alread) upheld ??C 4rdinance #o$ %101 as a legiti/ate police power

/easure$

The trial courts reliance on the Co *s$ I"CE1D is /isplaced$ In Co the disputed area was agricultural and 4rdinance #o$ %101 did not specificall)

pro*ide that it shall ha*e retroacti*e effect so as to discontinue all rights pre*iousl) acuired o*er lands located within the zone which are neither

residential nor light industrial in natureE15 and stated with respect to agricultural areas co*ered that the zoning ordinance should be gi*enprospecti*e operation onl)$E18 The area in this case in*ol*es not agricultural but urban residential land$ 4rdinance #o$ %101 retroacti*el) affected

the operation of the zoning ordinance in <reenhills b) reclassif)ing certain locations therein as co//ercial$

Following our ruling in 4rtigas 9 Co$ Ltd$ *s$ Feati 'an; 9 Trust Co$ 6D 3C!" 5@@ A1676B the contractual stipulations annotated on the Torrens

Title on which 4rtigas relies /ust )ield to the ordinance$ ,hen that stretch of 4rtigas "*enue fro/ !oose*elt 3treet to ?adison 3treet was

reclassified as a co//ercial zone b) the ?etropolitan ?anila Co//ission in ?arch 16%1 the restrictions in the contract of sale between 4rtigas

and Her/oso li/iting all construction on the disputed lot to singlefa/il) residential buildings were dee/ed e2tinguished b) the retroacti*e

operation of the zoning ordinance and could no longer be enforced$ ,hile our legal s)ste/ upholds the sanctit) of contract so that a contract is

dee/ed law between the contracting partiesE17 nonetheless stipulations in a contract cannot contra*ene law /orals good custo/s public order

or public polic)$E1% 4therwise such stipulations would be dee/ed null and *oid$ !espondent court correctl) found that the trial court co//itted in

this case a gra*e abuse of discretion a/ounting to want of or e2cess of +urisdiction in refusing to treat 4rdinance #o$ %101 as applicable to Ci*il

Case #o$ 8D6@1$ In resol*ing /atters in litigation +udges are not onl) dut)bound to ascertain the facts and the applicable lawsE16 the) are also

bound b) their oath of office to appl) the applicable law$E0

"s a secondar) issue petitioner contends that respondent ?atha) III as a /ere lessee of the lot in uestion is a total stranger to the deed of sale

and is thus barred fro/ uestioning the conditions of said deed$ Petitioner points out that the owners of the lot *oluntaril) agreed to the restrictions

on the use of the lot and do not uestion the *alidit) of these restrictions$ Petitioner argues that ?atha) III as a lessee is /erel) an agent of the

owners and could not o*erride and rise abo*e the status of his principals$ Petitioner sub/its that he could not ha*e a higher interest than those of

the owners the Her/osos and thus had no locus standi to file C"<$!$ 3P #o$ @616@ to dissol*e the in+uncti*e writ issued b) the !TC of Pasig

Cit)$

For his part pri*ate respondent argues that as the lessee who built the co//ercial structure it is he and he alone who stands to be either benefited

or in+ured b) the results of the +udg/ent in Ci*il Case #o$ 8D6@1$ He a*ers he is the part) with real interest in the sub+ect /atter of the action as it

would be his business not the Her/osos which would suffer had not the respondent court dissol*ed the writ of preli/inar) in+unction$

" real part) in interest is defined as the part) who stands to be benefited or in+ured b) the +udg/ent or the part) entitled to the a*ails of the suit$

Interest within the /eaning of the rule /eans /aterial interest an interest in issue and to be affected b) the decree as distinguished fro/ /ere

interest in the uestion in*ol*ed or a /ere incidental interest$E1 ') real interest is /eant a present substantial interest as distinguished fro/ a

/ere e2pectanc) or a future contingent subordinate or conseuential interest$E

Tested b) the foregoing definition pri*ate respondent in this case is clearl) a real part) in interest$ It is not disputed that he is in possession of the

lot pursuant to a *alid lease$ He is a possessor in the concept of a holder of the thing under "rticle 55 of the Ci*il Code$E@ He was i/pleaded as

a defendant in the a/ended co/plaint in Ci*il Case #o$ 8D6@1$ Further what petitioner see;s to en+oin is the building b) respondent of a

co//ercial structure on the lot$ Clearl) it is pri*ate respondents acts which are in issue and his interest in said issue cannot be a /ere incidental

interest$ In its a/ended co/plaint petitioner pra)ed for a/ong others +udg/ent ordering the de/olition of all i/pro*e/ents illegall) built on the lot

in uestion$ED These show that it is petitioner ?atha) III doing business as <reenhills "utohaus Inc$ and not onl) the Her/osos who will be

ad*ersel) affected b) the courts decree$

Petitioner also cites the rule that a stranger to a contract has no rights or obligations under itE5 and thus has no standing to challenge its *alidit)$

E8 'ut in see;ing to enforce the stipulations in the deed of sale petitioner i/pleaded pri*ate respondent as a defendant$ Thus petitioner /ust

recognize that where a plaintiff has i/pleaded a part) as a defendant he cannot subseuentl) uestion the latters standing in court$E7

,H!F4! the instant petition is .#I.$ The challenged decision of the Court of "ppeals dated ?arch 5 1668 as well as the assailedresolution of "ugust 1@ 1668 in C"<$!$ 3P #o$ @616@ is "FFI!?.$ Costs against petitioner$

PRC vs. De G*+n, G.R. L-%'/%

Facts: The respondents are all graduates of the Fati/a College of ?edicine =alenzuela Cit) ?etro ?anila$ The) passed the Ph)sician Licensure

2a/ination conducted in Februar) 166@ b) the 'oard of ?edicine A'oardB$ Petitioner Professional !egulation Co//ission AP!CB then released

their na/es as successful e2a/inees in the /edical licensure e2a/ination$ 3hortl) thereafter the 'oard obser*ed that the grades of the se*ent)

nine successful e2a/inees fro/ Fati/a College in the two /ost difficult sub+ects in the /edical licensure e2a/ 'ioche/istr) A'ioChe/B and

4bstetrics and <)necolog) A4'<)neB were unusuall) and e2ceptionall) high$ le*en Fati/a e2a/inees scored 100 in 'ioChe/ and ten got

100 in 4'<)ne another ele*en got 66 in 'ioChe/ and twent)one scored 66 in 4'<)ne$

For its part the #'I found that &the uestionable passing rate of Fati/a e2a/inees in the E166@ Ph)sician 2a/ination leads to the conclusion thatthe Fati/a e2a/inees gained earl) access to the test uestions$(

Issue: ,as the act pursuant to !$"$ @% a *alid e2ercise of police power



!uling: es it is true that this Court has upheld the constitutional right of e*er) citizen to select a profession or course of stud) sub+ect to a fair

reasonable and euitable ad/ission and acade/ic reuire/ents$ 'ut li;e all rights and freedo/s guaranteed b) the Charter their e2ercise /a) be

so regulated pursuant to the police power of the 3tate to safeguard health /orals peace education order safet) and general welfare of the

people$ Thus persons who desire to engage in the learned professions reuiring scientific or technical ;nowledge /a) be reuired to ta;e an

e2a/ination as a prereuisite to engaging in their chosen careers$

A!!ition0 notes1

). 9n the Right 9f The Respondents To Be Registered As %h'sicians

The function of mandamus is not to establish a right but to enforce one that has been established b' la&. If no legal right has been iolated$ therecan be no application of a legal remed'$ and the &rit of mandamus is a legal remed' for a legal right.:); There must be a &ell<defined$ clear and

certain legal right to the thing demanded.:; It is long established rule that a license to practice medicine is a priilege or franchise granted b' the

goernment.:;

It is true that this =ourt has upheld the constitutional right:,; of eer' citizen to select a profession or course of stud' sub/ect to a fair$ reasonable$

and e4uitable admission and academic re4uirements.:3; But li>e all rights and freedoms guaranteed b' the =harter$ their e*ercise ma' be so

regulated pursuant to the police po&er of the 2tate to safeguard health$ morals$ peace$ education$ order$ safet'$ and general &elfare of the people.

:5; Thus$ persons &ho desire to engage in the learned professions re4uiring scientific or technical >no&ledge ma' be re4uired to ta>e an

e*amination as a prere4uisite to engaging in their chosen careers. This regulation ta>es particular pertinence in the field of medicine$ to protect the

public from the potentiall' deadl' effects of incompetence and ignorance among those &ho &ould practice medicine.

""DA v GARIN

Facts: The issue arose fro/ an incident in*ol*ing the respondent .ante 4$ <arin a law)er who was issued a traffic *iolation receipt AT=!B and his

dri*erKs license confiscated for par;ing illegall) along <andara 3treet 'inondo ?anila on 05 "ugust 1665$ The following state/ents were printed

on the T=!:

ou are hereb) directed to report to the ??." Traffic 4perations Center Port "rea ?anila after D% hours fro/ date of apprehension for

dispositionappropriate action thereon$ Cri/inal case shall be filed for failure to redee/ license after @0 da)s$

=alid as te/porar) .!I=!K3 license for se*en da)s fro/ date of apprehension$

3hortl) before the e2piration of the T=!Ks *alidit) the respondent addressed a letter to then ??." Chair/an Prospero 4reta reuesting the

return of his dri*erKs license and e2pressing his preference for his case to be filed in court$

Issue: .id !ep$ "ct no$ 76D *est ??." police power

!uling: #o !ep$ "ct #o$ 76D does not grant the ??." with police power let alone legislati*e power and that all its functions are ad/inistrati*e in

nature$

Tracing the legislati*e histor) of !ep$ "ct #o$ 76D creating the ??." we concluded that the ??." is not a local go*ern/ent unit or a public

corporation endowed with legislati*e power and unli;e its predecessor the ?etro ?anila Co//ission it has no power to enact ordinances for the

welfare of the co//unit)$ Thus in the absence of an ordinance fro/ the Cit) of ?a;ati its own order to open the street was in*alid$

Full te2t:

3hortl) before the e2piration of the T=!s *alidit) the respondent addressed a letterE to then ??." Chair/an Prospero 4reta reuesting the

return of his dri*ers license and e2pressing his preference for his case to be filed in court$

!ecei*ing no i//ediate repl) <arin filed the original co/plaintE@ with application for preli/inar) in+unction in 'ranch 80 of the !egional Trial

Court A!TCB of Paraaue on 1 3epte/ber 1665 contending that in the absence of an) i/ple/enting rules and regulations 3ec$ 5AfB of !ep$ "ct#o$ 76D grants the ??." unbridled discretion to depri*e erring /otorists of their licenses pree/pting a +udicial deter/ination of the *alidit) of the

depri*ation thereb) *iolating the due process clause of the Constitution$ The respondent further contended that the pro*ision *iolates the

constitutional prohibition against undue delegation of legislati*e authorit) allowing as it does the ??." to fi2 and i/pose unspecified and therefore

unli/ited fines and other penalties on erring /otorists$

In support of his application for a writ of preli/inar) in+unction <arin alleged that he suffered and continues to suffer great and irreparable da/age

because of the depri*ation of his license and that absent an) i/ple/enting rules fro/ the ?etro ?anila Council the T=! and the confiscation of

his license ha*e no legal basis$

For its part the ??." represented b) the 4ffice of the 3olicitor <eneral pointed out that the powers granted to it b) 3ec$ 5AfB of !ep$ "ct #o$ 76D

are li/ited to the fi2ing collection and i/position of fines and penalties for traffic *iolations which powers are legislati*e and e2ecuti*e in natureJ the

+udiciar) retains the right to deter/ine the *alidit) of the penalt) i/posed$ It further argued that the doctrine of separation of powers does not

preclude ad/i2ture of the three powers of go*ern/ent in ad/inistrati*e agencies$ED

The ??." also refuted <arins allegation that the ?etro ?anila Council the go*erning board and polic) /a;ing bod) of the petitioner has as )et to

for/ulate the i/ple/enting rules for 3ec$ 5AfB of !ep$ "ct #o$ 76D and directed the courts attention to ??." ?e/orandu/ Circular #o$ TT65001

dated 15 "pril 1665$ !espondent <arin howe*er uestioned the *alidit) of ??." ?e/orandu/ Circular #o$ TT65001 as he clai/s that it was

passed b) the ?etro ?anila Council in the absence of a uoru/$



>udge Helen 'autista!icafort issued a te/porar) restraining order on 8 3epte/ber 1665 e2tending the *alidit) of the T=! as a te/porar) dri*ers

license for twent) /ore da)s$ " preli/inar) /andator) in+unction was granted on @ 4ctober 1665 and the ??." was directed to return the

respondents dri*ers license$

4n 1D "ugust 1667 the trial court rendered the assailed decisionE5 in fa*or of the herein respondent and held that:

a$ There was indeed no uoru/ in that First !egular ?eeting of the ??." Council held on ?arch @ 1665 hence ??." ?e/orandu/ Circular

#o$ TT65001 authorizing confiscation of dri*ers licenses upon issuance of a T=! is *oid ab initio$

b$ The su//ar) confiscation of a dri*ers license without first gi*ing the dri*er an opportunit) to be heardJ depri*ing hi/ of a propert) right Adri*ers

licenseB without .- P!4C33J not filling AsicB in Court the co/plaint of supposed traffic infraction cannot be +ustified b) an) legislation Aand isBhence unconstitutional$

,H!F4! the te/porar) writ of preli/inar) in+unction is hereb) /ade per/anentJ thAeB ??." is directed to return to plaintiff his dri*ers

licenseJ thAeB ??." is li;ewise ordered to desist fro/ confiscating dri*ers license without first gi*ing the dri*er the opportunit) to be heard in an

appropriate proceeding$

In filing this petitionE8 the ??." reiterates and reinforces its argu/ent in the court below and contends that a license to operate a /otor *ehicle is

neither a contract nor a propert) right but is a pri*ilege sub+ect to reasonable regulation under the police power in the interest of the public safet)

and welfare$ The petitioner further argues that re*ocation or suspension of this pri*ilege does not constitute a ta;ing without due process as long as

the licensee is gi*en the right to appeal the re*ocation$

To buttress its argu/ent that a licensee /a) indeed appeal the ta;ing and the +udiciar) retains the power to deter/ine the *alidit) of the

confiscation suspension or re*ocation of the license the petitioner points out that under the ter/s of the confiscation the licensee has three

options:

1$ To *oluntaril) pa) the i/posable fine

$ To protest the apprehension b) filing a protest with the ??." "d+udication Co//ittee or

@$ To reuest the referral of the T=! to the Public Prosecutors 4ffice$

The ??." li;ewise argues that ?e/orandu/ Circular #o$ TT65001 was *alidl) passed in the presence of a uoru/ and that the lower courts

finding that it had not was based on a /isapprehension of facts which the petitioner would ha*e us re*iew$ ?oreo*er it asserts that though the

circular is the basis for the issuance of T=!s the basis for the su//ar) confiscation of licenses is 3ec$ 5AfB of !ep$ "ct #o$ 76D itself and that

such power is selfe2ecutor) and does not reuire the issuance of an) i/ple/enting regulation or circular$

?eanwhile on 1 "ugust 00D the ??." through its Chair/an 'a)ani Fernando i/ple/ented ?e/orandu/ Circular #o$ 0D 3eries of 00D

outlining the procedures for the use of the ?etropolitan Traffic Tic;et A?TTB sche/e$ -nder the circular erring /otorists are issued an ?TT which

can be paid at an) ?etroban; branch$ Traffic enforcers /a) no longer confiscate dri*ers licenses as a /atter of course in cases of traffic *iolations$ "ll /otorists with unredee/ed T=!s were gi*en se*en da)s fro/ the date of i/ple/entation of the new s)ste/ to pa) their fines and redee/ their

license or *ehicle plates$E7

It would see/ therefore that insofar as the absence of a pri/a facie case to en+oin the petitioner fro/ confiscating dri*ers licenses is concerned

recent e*ents ha*e o*erta;en the Courts need to decide this case which has been rendered /oot and acade/ic b) the i/ple/entation of

?e/orandu/ Circular #o$ 0D 3eries of 00D$

The petitioner howe*er is not precluded fro/ rei/ple/enting ?e/orandu/ Circular #o$ TT65001 or an) other sche/e for that /atter that

would entail confiscating dri*ers licenses$ For the proper i/ple/entation therefore of the petitioners future progra/s this Court dee/s it

appropriate to /a;e the following obser*ations:

1$ " license to operate a /otor *ehicle is a pri*ilege that the state /a) withhold in the e2ercise of its police power$

The petitioner correctl) points out that a license to operate a /otor *ehicle is not a propert) right but a pri*ilege granted b) the state which /a) besuspended or re*o;ed b) the state in the e2ercise of its police power in the interest of the public safet) and welfare sub+ect to the procedural due

process reuire/ents$ This is consistent with our rulings in Pedro *$ Pro*incial 'oard of !izalE% on the license to operate a coc;pit Tan *$ .irector

of Forestr)E6 and 4posa *$ FactoranE10 on ti/ber licensing agree/ents and 3urigao lectric Co$ Inc$ *$ ?unicipalit) of 3urigaoE11 on a

legislati*e franchise to operate an electric plant$

Petitioner cites a long list of "/erican cases to pro*e this point such as 3tate e2$ !el$ 3ulli*anE1 which states in part that the legislati*e power to

regulate tra*el o*er the highwa)s and thoroughfares of the state for the general welfare is e2tensi*e$ It /a) be e2ercised in an) reasonable /anner

to conser*e the safet) of tra*elers and pedestrians$ 3ince /otor *ehicles are instru/ents of potential danger their registration and the licensing of

their operators ha*e been reuired al/ost fro/ their first appearance$ The right to operate the/ in public places is not a natural and unrestrained

right but a pri*ilege sub+ect to reasonable regulation under the police power in the interest of the public safet) and welfare$ The power to license

i/ports further power to withhold or to re*o;e such license upon nonco/pliance with prescribed conditions$

Li;ewise the petitioner uotes the Penns)l*ania 3upre/e Court in Co//onwealth *$ Fun;E1@ to the effect that: "uto/obiles are *ehicles of great

speed and power$ The use of the/ constitutes an ele/ent of danger to persons and propert) upon the highwa)s$ Carefull) operated an auto/obile

is still a dangerous instru/entalit) but when operated b) careless or inco/petent persons it beco/es an engine of destruction$ The Legislature in

the e2ercise of the police power of the co//onwealth not onl) /a) but /ust prescribe how and b) who/ /otor *ehicles shall be operated on the

highwa)s$ 4ne of the pri/ar) purposes of a s)ste/ of general regulation of the sub+ect /atter as here b) the =ehicle Code is to insure the

co/petenc) of the operator of /otor *ehicles$ 3uch a general law is /anifestl) directed to the pro/otion of public safet) and is well within the

police power$



The co//on thread running through the cited cases is that it is the legislature in the e2ercise of police power which has the power and

responsibilit) to regulate how and b) who/ /otor *ehicles /a) be operated on the state highwa)s$

$ The ??." is not *ested with police power$

In ?etro ?anila .e*elop/ent "uthorit) *$ 'el"ir =illage "ssociation Inc$E1D we categoricall) stated that !ep$ "ct #o$ 76D does not grant the

??." with police power let alone legislati*e power and that all its functions are ad/inistrati*e in nature$

The said case also in*ol*ed the herein petitioner ??." which clai/ed that it had the authorit) to open a subdi*ision street owned b) the 'el"ir

=illage "ssociation Inc$ to public traffic because it is an agent of the state endowed with police power in the deli*er) of basic ser*ices in ?etro

?anila$ Fro/ this pre/ise the ??." argued that there was no need for the Cit) of ?a;ati to enact an ordinance opening #eptune 3treet to thepublic$

Tracing the legislati*e histor) of !ep$ "ct #o$ 76D creating the ??." we concluded that the ??." is not a local go*ern/ent unit or a public

corporation endowed with legislati*e power and unli;e its predecessor the ?etro ?anila Co//ission it has no power to enact ordinances for the

welfare of the co//unit)$ Thus in the absence of an ordinance fro/ the Cit) of ?a;ati its own order to open the street was in*alid$

,e restate here the doctrine in the said decision as it applies to the case at bar: police power as an inherent attribute of so*ereignt) is the power

*ested b) the Constitution in the legislature to /a;e ordain and establish all /anner of wholeso/e and reasonable laws statutes and ordinances

either with penalties or without not repugnant to the Constitution as the) shall +udge to be for the good and welfare of the co//onwealth and for

the sub+ects of the sa/e$

Ha*ing been lodged pri/aril) in the #ational Legislature it cannot be e2ercised b) an) group or bod) of indi*iduals not possessing legislati*e

power$ The #ational Legislature howe*er /a) delegate this power to the president and ad/inistrati*e boards as well as the law/a;ing bodies of

/unicipal corporations or local go*ern/ent units AL<-sB$ 4nce delegated the agents can e2ercise onl) such legislati*e powers as are conferred on

the/ b) the national law/a;ing bod)$

4ur Congress delegated police power to the L<-s in the Local <o*ern/ent Code of 1661$E15 " local go*ern/ent is a political subdi*ision of a

nation or state which is constituted b) law and has substantial control of local affairs$E18 Local go*ern/ent units are the pro*inces cities

/unicipalities and baranga)s which e2ercise police power through their respecti*e legislati*e bodies$

?etropolitan or ?etro ?anila is a bod) co/posed of se*eral local go*ern/ent units$ ,ith the passage of !ep$ "ct #o$ 76D in 1665 ?etropolitan

?anila was declared as a special de*elop/ent and ad/inistrati*e region and the ad/inistration of /etrowide basic ser*ices affecting the region

placed under a de*elop/ent authorit) referred to as the ??."$ Thus:

$ $ $ EThe powers of the ??." are li/ited to the following acts: for/ulation coordination regulation i/ple/entation preparation /anage/ent

/onitoring setting of policies installation of a s)ste/ and ad/inistration$ There is no s)llable in !$ "$ #o$ 76D that grants the ??." police power

let alone legislati*e power$ *en the ?etro ?anila Council has not been delegated an) legislati*e power$ -nli;e the legislati*e bodies of the local

go*ern/ent units there is no pro*ision in !$ "$ #o$ 76D that e/powers the ??." or its Council to enact ordinances appro*e resolutions and

appropriate funds for the general welfare of the inhabitants of ?etro ?anila$ The ??." is as ter/ed in the charter itself a de*elop/entauthorit)$ It is an agenc) created for the purpose of la)ing down policies and coordinating with the *arious national go*ern/ent agencies peopleKs

organizations nongo*ern/ental organizations and the pri*ate sector for the efficient and e2peditious deli*er) of basic ser*ices in the *ast

/etropolitan area$ "ll its functions are ad/inistrati*e in nature and these are actuall) su//ed up in the charter itself *iz:

3ec$ $ Creation of the ?etropolitan ?anila .e*elop/ent "uthorit)$ 2 2 2$

The ??." shall perfor/ planning /onitoring and coordinati*e functions and in the process e2ercise regulator) and super*isor) authorit) o*er the

deli*er) of /etrowide ser*ices within ?etro ?anila without di/inution of the autono/) of the local go*ern/ent units concerning purel) local

/atters$

Clearl) the ??." is not a political unit of go*ern/ent$ The power delegated to the ??." is that gi*en to the ?etro ?anila Council to pro/ulgate

ad/inistrati*e rules and regulations in the i/ple/entation of the ??."s functions$ There is no grant of authorit) to enact ordinances and

regulations for the general welfare of the inhabitants of the /etropolis$ E17 Afootnotes o/itted e/phasis suppliedB

Therefore insofar as 3ec$ 5AfB of !ep$ "ct #o$ 76D is understood b) the lower court and b) the petitioner to grant the ??." the power to

confiscate and suspend or re*o;e dri*ers licenses without need of an) other legislati*e enact/ent such is an unauthorized e2ercise of police

power$

@$ 3ec$ 5AfB grants the ??." with the dut) to enforce e2isting traffic rules and regulations$

3ection 5 of !ep$ "ct #o$ 76D enu/erates the Functions and Powers of the ?etro ?anila .e*elop/ent "uthorit)$ The contested clause in 3ec$ 5AfB

states that the petitioner shall install and ad/inister a single tic;eting s)ste/ fi2 i/pose and collect fines and penalties for all ;inds of *iolations of

traffic rules and regulations whether /o*ing or non/o*ing in nature and confiscate and suspend or re*o;e dri*ers licenses in the enforce/ent of

such traffic laws and regulations the pro*isions of !ep$ "ct #o$ D1@8E1% and P$.$ #o$ 1805E16 to the contrar) notwithstanding and that AfBor this

purpose the "uthorit) shall enforce all traffic laws and regulations in ?etro ?anila through its traffic operation center and /a) deputize /e/bers

of the P#P traffic enforcers of local go*ern/ent units dul) licensed securit) guards or /e/bers of nongo*ern/ental organizations to who/ /a)

be delegated certain authorit) sub+ect to such conditions and reuire/ents as the "uthorit) /a) i/pose$

Thus where there is a traffic law or regulation *alidl) enacted b) the legislature or those agencies to who/ legislati*e powers ha*e been delegated

Athe Cit) of ?anila in this caseB the petitioner is not precluded and in fact is dut)bound to confiscate and suspend or re*o;e dri*ers licenses in the

e2ercise of its /andate of transport and traffic /anage/ent as well as the ad/inistration and i/ple/entation of all traffic enforce/ent operations

traffic engineering ser*ices and traffic education progra/s$E0



This is consistent with our ruling in 'el"ir that the ??." is a de*elop/ent authorit) created for the purpose of la)ing down policies and

coordinating with the *arious national go*ern/ent agencies peoples organizations nongo*ern/ental organizations and the pri*ate sector which

/a) enforce but not enact ordinances$

This is also consistent with the funda/ental rule of statutor) construction that a statute is to be read in a /anner that would breathe life into it

rather than defeat itE1 and is supported b) the criteria in cases of this nature that all reasonable doubts should be resol*ed in fa*or of the

constitutionalit) of a statute$E

" last word$ The ??." was intended to coordinate ser*ices with /etrowide i/pact that transcend local political boundaries or would entail huge

e2penditures if pro*ided b) the indi*idual L<-s especiall) with regard to transport and traffic /anage/entE@ and we are aware of the *aliant

efforts of the petitioner to untangle the increasingl) trafficsnarled roads of ?etro ?anila$ 'ut these laudable intentions are li/ited b) the ??."senabling law which we can but interpret and petitioner /ust be re/inded that its efforts in this respect /ust be authorized b) a *alid law or

ordinance or regulation arising fro/ a legiti/ate source$

,H!F4! the petition is .I3?I33.$

TA2ICA3 OPERATORS OF "ETRO "ANILA, INC., FELICISI"O CA3IGAO n! ACE TRANSPORTATION CORPORATION, petitioners,

vs. THE 3OARD OF TRANSPORTATION n! THE DIRECTOR OF THE 3UREAU OF LAND TRANSPORTATION, respon!ents.

G.R. No. L-456

This Petition for Certiorari Prohibition and /anda/us with Preli/inar) In+unction and Te/porar) !estraining 4rder f iled b) the Ta2icab 4perators

of ?etro ?anila Inc$ Felicisi/o Cabigao and "ce Transportation see;s to declare the nullit) of ?e/orandu/ Circular #o$ 77D dated 4ctober

10 1677 of the 'oard of Transportation and ?e/orandu/ Circular #o$ 5 dated "ugust 15 16%0 of the 'ureau of Land Transportation$

Petitioner Ta2icab 4perators of ?etro ?anila Inc$ AT4??IB is a do/estic corporation co/posed of ta2icab operators who are grantees of

Certificates of Public Con*enience to operate ta2icabs within the Cit) of ?anila and to an) other place in Luzon accessible to *ehicular traffic$

Petitioners "ce Transportation Corporation and Felicisi/o Cabigao are two of the /e/bers of T4??I each being an operator and grantee of such

certificate of public con*enience$

4n 4ctober 10 1677 respondent 'oard of Transportation A'4TB issued ?e/orandu/ Circular #o$ 77D which reads:

3-'>CT: Phasing out and !eplace/ent of 4ld and .ilapidated Ta2is

,H!"3 it is the polic) of the go*ern/ent to insure that onl) safe and co/fortable units are used as public con*e)ancesJ

,H!"3 the riding public particularl) in ?etro?anila has ti/e and again co/plained against and conde/ned the continued operation of oldand dilapidated ta2isJ

,H!"3 in order that the co//uting public /a) be assured of co/fort con*enience and safet) a progra/ of phasing out of old and

dilapidated ta2is should be adoptedJ

,H!"3 after studies and inuiries /ade b) the 'oard of Transportation the latter belie*es that in si2 )ears of operation a ta2i operator has not

onl) co*ered the cost of his ta2is but has /ade reasonable profit for his in*est/entsJ

#4, TH!F4! pursuant to this polic) the 'oard hereb) declares that no car be)ond si2 )ears shall be operated as ta2i and in

i/ple/entation of the sa/e hereb) pro/ulgates the following rules and regulations:

1$ "s of .ece/ber @1 1677 all ta2is of ?odel 1671 and earlier are ordered withdrawn fro/ public ser*ice and thereafter /a) no longer be

registered and operated as ta2is$ In the registration of cards for 167% onl) ta2is of ?odel 167 and later shall be accepted for registration and

allowed for operationJ

$ "s of .ece/ber @1 167% all ta2is of ?odel 167 are ordered withdrawn fro/ public ser*ice and thereafter /a) no longer be registered

and operated as ta2is$ In the registration of cars for 1676 onl) ta2is of ?odel 167@ and later shall be accepted for registration and allowed for

operationJ and e*er) )ear thereafter there shall be a si2)ear lifeti/e of ta2i to wit:

16%0 M ?odel 167D

16%1 M ?odel 1675 etc$

"ll ta2is of earlier /odels than those pro*ided abo*e are hereb) ordered withdrawn fro/ public ser*ice as of the last da) of registration of each

particular )ear and their respecti*e plates shall be surrendered directl) to the 'oard of Transportation for subseuent turno*er to the Land

Transportation Co//ission$

For an orderl) i/ple/entation of this ?e/orandu/ Circular the rules herein shall i//ediatel) be effecti*e in ?etro?anila$ Its i/ple/entation

outside ?etro ?anila shall be carried out onl) after the pro+ect has been i/ple/ented in ?etro?anila and onl) after the date has been deter/ined

b) the 'oard$ 1

Pursuant to the abo*e '4T circular respondent .irector of the 'ureau of Land Transportation A'LTB issued I/ple/enting Circular #o$ 5 dated

"ugust 15 16%0 instructing the !egional .irector the ?= !egistrars and other personnel of 'LT all within the #ational Capitol !egion to



i/ple/ent said Circular and for/ulating a schedule of phaseout of *ehicles to be allowed and accepted for registration as public con*e)ances$ To

uote said Circular:

Pursuant to '4T ?e/oCircular #o$ 77D ta2i units with )ear /odels o*er si2 A8B )ears old are now banned fro/ operating as public utilities in

?etro ?anila$ "s such the units in*ol*ed should be considered as auto/aticall) dropped as public utilities and therefore do not reuire an) further

dropping order fro/ the '4T$

In accordance therewith cabs of /odel 1671 were phaseout in registration )ear 167%J those of /odel 167 in 1676J those of /odel 167@ in 16%0J

and those of /odel 167D in 16%1$

4n >anuar) 7 16%1 petitioners filed a Petition with the '4T doc;eted as Case #o$ %0755@ see;ing to nullif) ?C #o$ 77D or to stop itsi/ple/entationJ to allow the registration and operation in 16%1 and subseuent )ears of ta2icabs of /odel 167D as well as those of earlier /odels

which were phasedout pro*ided that at the ti/e of registration the) are roadworth) and fit for operation$

4n Februar) 18 16%1 petitioners filed before the '4T a ?anifestation and -rgent ?otion pra)ing for an earl) hearing of their petition$ The case

was heard on Februar) 0 16%1$ Petitioners presented testi/onial and docu/entar) e*idence offered the sa/e and /anifested that the) would

sub/it additional docu/entar) proofs$ 3aid proofs were sub/itted on ?arch 7 16%1 attached to petitionersK pleading entitled ?anifestation

Presentation of "dditional *idence and 3ub/ission of the Case for !esolution$ @

4n #o*e/ber % 16%1 petitioners filed before the sa/e 'oard a ?anifestation and -rgent ?otion to !esol*e or .ecide ?ain Petition pra)ing

that the case be resol*ed or decided not later than .ece/ber 10 16%1 to enable the/ in case of denial to a*ail of whate*er re/ed) the) /a)

ha*e under the law for the protection of their interests before their 1675 /odel cabs are phasedout on >anuar) 1 16%$

Petitioners through its President allegedl) /ade personal followups of the case but was later infor/ed that the records of the case could not be

located$

4n .ece/ber 6 16%1 the present Petition was instituted wherein the following ueries were posed for consideration b) this Court:

"$ .id '4T and 'LT pro/ulgate the uestioned /e/orandu/ circulars in accord with the /anner reuired b) Presidential .ecree #o$ 101

thereb) safeguarding the petitionersK constitutional right to procedural due processN

'$ <ranting arguendo that respondents did co/pl) with the procedural reuire/ents i/posed b) Presidential .ecree #o$ 101 would the

i/ple/entation and enforce/ent of the assailed /e/orandu/ circulars *iolate the petitionersK constitutional rights to$

A1B ual protection of the lawJ

AB 3ubstanti*e due processJ and

A@B Protection against arbitrar) and unreasonable classification and standardN

4n Procedural and 3ubstanti*e .ue Process:

Presidential .ecree #o$ 101 grants to the 'oard of Transportation the power

D$ To fi2 +ust and reasonable standards classification regulations practices /easure/ents or ser*ice to be furnished i/posed obser*ed

and followed b) operators of public utilit) /otor *ehicles$

3ection of said .ecree pro*ides procedural guidelines for said agenc) to follow in the e2ercise of its powers:

3ec$ $ 2ercise of powers$ M In the e2ercise of the powers granted in the preceding section the 'oard shag proceed pro/ptl) along the

/ethod of legislati*e inuir)$

"part fro/ its own in*estigation and studies the 'oard in its discretion /a) reuire the cooperation and assistance of the 'ureau of

Transportation the Philippine Constabular) particularl) the Highwa) Patrol <roup the support agencies within the .epart/ent of Public ,or;sTransportation and Co//unications or an) other go*ern/ent office or agenc) that /a) be able to furnish useful infor/ation or data in the

for/ulation of the 'oard of an) polic) plan or progra/ in the i/ple/entation of this .ecree$

The 'oard /a) also can conferences reuire the sub/ission of position papers or other docu/ents infor/ation or data b) operators or other

persons that /a) be affected b) the i/ple/entation of this .ecree or e/plo) an) other suitable /eans of inuir)$

In support of their sub/ission that the) were denied procedural due process petitioners contend that the) were not caged upon to sub/it their

position papers nor were the) e*er su//oned to attend an) conference prior to the issuance of the uestioned '4T Circular$

It is clear fro/ the pro*ision aforeuoted howe*er that the leewa) accorded the 'oard gi*es it a wide range of choice in gathering necessar)

infor/ation or data in the for/ulation of an) polic) plan or progra/$ It is not /andator) that it should first call a conference or reuire the

sub/ission of position papers or other docu/ents fro/ operators or persons who /a) be affected this being onl) one of the options open to the

'oard which is gi*en wide discretionar) authorit)$ Petitioners cannot +ustifiabl) clai/ therefore that the) were depri*ed of procedural due process$

#either can the) state with certaint) that public respondents had not a*ailed of other sources of inuir) prior to issuing the challenged Circulars$

operators of public con*e)ances are not the onl) pri/ar) sources of the data and infor/ation that /a) be desired b) the '4T$

.ispensing with a public hearing prior to the issuance of the Circulars is neither *iolati*e of procedural due process$ "s held in Central 'an; *s$

Hon$ Cloribel and 'anco Filipino DD 3C!" @07 A167B:



Pe*ious notice and hearing as ele/ents of due process are constitutionall) reuired for the protection of life or *ested propert) rights as well as of

libert) when its li/itation or loss ta;es place in conseuence of a +udicial or uasi+udicial proceeding generall) dependent upon a past act or e*ent

which has to be established or ascertained$ It is not essential to the *alidit) of general rules or regulations pro/ulgated to go*ern future conduct of a

class or persons or enterprises unless the law pro*ides otherwise$ A/phasis suppliedB

Petitioners further ta;e the position that fi2ing the ceiling at si2 A8B )ears is arbitrar) and oppressi*e because the roadworthiness of ta2icabs

depends upon their ;ind of /aintenance and the use to which the) are sub+ected and therefore their actual ph)sical condition should be ta;en into

consideration at the ti/e of registration$ "s public contend howe*er it is i/practical to sub+ect e*er) ta2icab to constant and recurring e*aluation

not to spea; of the fact that it can open the door to the adoption of /ultiple standards possible collusion and e*en graft and corruption$ "

reasonable standard /ust be adopted to appl) to an *ehicles affected unifor/l) fairl) and +ustl)$ The span of si2 )ears supplies that reasonable

standard$ The product of e2perience shows that b) that ti/e ta2is ha*e full) depreciated their cost reco*ered and a fair return on in*est/entobtained$ The) are also generall) dilapidated and no longer fit for safe and co/fortable ser*ice to the public speciall) considering that the) are in

continuous operation practicall) D hours e*er)da) in three shifts of eight hours per shift$ ,ith that standard of reasonableness and absence of

arbitrariness the reuire/ent of due process has been /et$

4n ual Protection of the Law:

Petitioners alleged that the Circular in uestion *iolates their right to eual protection of the law because the sa/e is being enforced in ?etro ?anila

onl) and is directed solel) towards the ta2i industr)$ "t the outset it should be pointed out that i/ple/entation outside ?etro ?anila is also

en*isioned in ?e/orandu/ Circular #o$ 77D$ To repeat the pertinent portion:

For an orderl) i/ple/entation of this ?e/orandu/ Circular the rules herein shall i//ediatel) be effecti*e in ?etro ?anila$ Its i/ple/entation

outside ?etro ?anila shall be carried out onl) after the pro+ect has been i/ple/ented in ?etro ?anila and onl) after the date has been deter/ined

b) the 'oard$

In fact it is the understanding of the Court that i/ple/entation of the Circulars in Cebu Cit) is alread) being effected with the '4T in the process of

conducting studies regarding the operation of ta2icabs in other cities$

The 'oardKs reason for enforcing the Circular initiall) in ?etro ?anila is that ta2icabs in this cit) co/pared to those of other places are sub+ected to

hea*ier traffic pressure and /ore constant use$ This is of co//on ;nowledge$ Considering that traffic conditions are not the sa/e in e*er) cit) a

substantial distinction e2ists so that infringe/ent of the eual protection clause can hardl) be successfull) clai/ed$

"s enunciated in the prea/bular clauses of the challenged '4T Circular the o*erriding consideration is the safet) and co/fort of the riding public

fro/ the dangers posed b) old and dilapidated ta2is$ The 3tate in the e2ercise of its police power can prescribe regulations to pro/ote the health

/orals peace good order safet) and general welfare of the people$ It can prohibit all things hurtful to co/fort safet) and welfare of societ)$ 5 It

/a) also regulate propert) rights$ 8 In the language of Chief >ustice nriue ?$ Fernando the necessities i/posed b) public welfare /a) +ustif) the

e2ercise of go*ern/ental authorit) to regulate e*en if thereb) certain groups /a) plausibl) assert that their interests are disregarded$ 7

In so far as the nonapplication of the assailed Circulars to other transportation ser*ices is concerned it need onl) be recalled that the eual

protection clause does not i/pl) that the sa/e treat/ent be accorded all and sundr)$ It applies to things or persons Identicall) or si/ilarl) situated$It per/its of classification of the ob+ect or sub+ect of the law pro*ided classification is reasonable or based on substantial distinction which /a;e for

real differences and that it /ust appl) euall) to each /e/ber of the class$ % ,hat is reuired under the eual protection clause is the unifor/

operation b) legal /eans so that all persons under Identical or si/ilar circu/stance would be accorded the sa/e treat/ent both in pri*ilege

conferred and the liabilities i/posed$ 6 The challenged Circulars satisf) the foregoing criteria$

*ident then is the conclusion that the uestioned Circulars do not suffer fro/ an) constitutional infir/it)$ To declare a law unconstitutional the

infringe/ent of constitutional right /ust be clear categorical and undeniable$

,H!F4! the ,rits pra)ed for are denied and this Petition is hereb) dis/issed$ #o costs$

34 4!.!.$

Di7est1

Ta2icab 4perators of ?etro ?anila Inc$ *s$ 'oard of Transportation 117 3C!" 567

Facts: 'oard of Transportation issued ?e/orandu/ Circular #o$ 77D pro*iding for the phasing out and replace/ent of old and dilapidated ta2is

be)ond 8 )ears old$

Pursuant to the '4T circular the 'ureau of Land Transportation issued I/ple/enting Circular #o$ 5 instructing the i/ple/entation of said circular

and for/ulating a schedule of phaseout of *ehicles to be allowed and accepted for registration as public con*e)ances$

Petitioners see; to declare the nullit) of the circulars on the ground that fi2ing the ceiling at 8 )ears is arbitraril) and oppressi*e because the road

worthiness of ta2icabs depends upon their ;ind of /aintenance and the use to which the) are sub+ected and therefore their actual ph)sical condition

should be ta;en into consideration at the ti/e of the registration$

Issue: ,4# a circular phasing out ta2icabs /ore than 8 )ears old is unreasonable and arbitrar)$

Held: #o$ " reasonable standard /ust be adopted to appl) to all *ehicles unifor/l) fairl) and +ustl)$ The span of 8 )earsw supplies that reaonable

standard$ ') the ti/e ta2is ha*e full) depreciated theircost reco*ered and a fair return on in*est/ent obtained$ Th)e) are also generall)

dilapidated and no longer fit for safe and co/fortable ser*ice to the public$



Ta2icabs in ?anila co/pared to those in other places are sub+ect to hea*ier traffic pressure and constant use$

TIO vs. VIDEOGRA" REGULATOR# 3OARD

Citation: 151 3C!" 0%J <$!$ #o$ L75867J >une 1% 16%7

.4CT!I#3:

?alidit' of la&( title of bill O The Constitutional reuire/ent that e*er) bill shall e/brace onl) one sub+ect which shall be e2pressed in the titlethereof is sufficientl) co/plied with if the title be co/prehensi*e enough to include the general purpose which a statute see;s to achie*e$ It is not

necessar) that the title e2press each and e*er) end that the statute wishes to acco/plish$ T8e re9*ireent is stis:ie! i: 00 t8e prts o: t8e

stt*te re re0te!, n! re 7erne to t8e s*;<e=t tter e>presse! in t8e tit0e, or s 0on7 s t8e? re not in=onsistent @it8 or :orei7n to

t8e 7ener0 s*;<e=t n! tit0e.

Ta*ation( securit' against oppressie ta*ation O The power to i/pose ta2es is one so unli/ited in force and so searching in e2tent that the courts

scarcel) *enture to declare that it is sub+ect to an) restrictions whate*er e2cept such as rest in the discretion of the authorit) which e2ercises it$ In

i/posing a ta2 the legislature acts upon its constituents$ This is in general a sufficient securit) against erroneous and oppressi*e ta2ation$

Ta*ation as a reenue and regulator' measure O The ta2 i/posed b) the .C! is not onl) a regulator) but also a re*enue /easure pro/pted

b) the realization that earnings of *ideogra/ establish/ents of around P800 /illion per annu/ ha*e not been sub+ected to ta2 thereb) depri*ing

the <o*ern/ent of an additional source of re*enue$ $ $ $ T8e 0ev? o: t8e 6( t> is :or p*;0i= p*rpose. It @s ipose! priri0? to ns@er

t8e nee! :or re7*0tin7 t8e vi!eo in!*str?, prti=*0r0? ;e=*se o: t8e rpnt :i0 pir=?, t8e :07rnt vio0tion o: inte00e=t*0 propert?

ri78ts, n! t8e pro0i:ertion o: porno7rp8i= vi!eo tpes. "nd while it was also an ob+ecti*e of the .C! to protect the /o*ie industr) the

ta2 re/ains a *alid i/position$

ndue delegation of legislatie po&er O The grant in 3ection 11 of the .C! of authorit) to the '4"!. to solicit the direct assistance of other

agencies and units of the go*ern/ent and deputize for a fi2ed and li/ited period the heads or personnel of such agencies and units to perfor/

enforce/ent functions for the 'oard is not a delegation of the power to legislate but /erel) a confer/ent of authorit) or discretion as to its

e2ecution enforce/ent and i/ple/entation$ The true distinction is between the delegation of power to /a;e the law which necessaril) in*ol*es a

discretion as to what it shall be and conferring authorit) or discretion as to its e2ecution to be e2ercised under and in pursuance of the law$ The first

cannot be doneJ to the latter no *alid ob+ection can be /ade$ 'esides in the *er) language of the decree the authorit) of the '4"!. to solicit

such assistance is for a fi2ed and li/ited period with the deputized agencies concerned being sub+ect to the direction and control of the '4"!.$

That the grant of such authorit) /ight be the source of graft and corruption would not stig/atize the .C! as unconstitutional$ 3hould the

e*entualit) occur the aggrie*ed parties will not be without adeuate re/ed) in law$

F"CT3:

=alentin Tio is a *ideogra/ establish/ent operator ad*ersel) affected b) Presidential .ecree #o$ 16%7 entitled "n "ct Creating the =ideogra/!egulator) 'oard$

P$.$ #o$ 16%7 pro*ides for the le*) of a ta2 o*er each cassette sold A3ec$ 1@DB and a @0 ta2 on the gross receipts of a *ideogra/ establish/ent

pa)able to the local go*ern/ent A3ec$ 10B$ The rationale for this decree is set forth in its prea/bulator)whereas clauses to wit:

1$ ,H!"3 the proliferation and unregulated circulation of *ideogra/s including a/ong others *ideotapes discs cassettes $$$ ha*e greatl)

pre+udiced the operations of /o*iehouses and theaters and ha*e caused a sharp decline in theatrical attendance b) at least fort) percent AD0B

and a tre/endous drop in the collection of Eta2es thereb) resulting in substantial losses esti/ated at PD50 ?illion annuall) in go*ern/ent

re*enuesJ

$ ,H!"3 *ideogra/AsB establish/ents collecti*el) earn around P800 ?illion per annu/ fro/ rentals sales and disposition of *ideogra/s and

such earnings ha*e not been sub+ected to ta2 thereb) depri*ing the <o*ern/ent of appro2i/atel) P1%0 ?illion in ta2es each )earJ

@$ ,H!"3 the unregulated acti*ities of *ideogra/ establish/ents ha*e also affected the *iabilit) of the /o*ie industr) $$$J

5$ ,H!"3 proper ta2ation of the acti*ities of *ideogra/ establish/ents will not onl) alle*iate the dire financial condition of the /o*ie

industr) $$$ but also pro*ide an additional source of re*enue for the <o*ern/ent and at the sa/e ti/e rationalize the heretofore uncontrolled

distribution of *ideogra/sJ

8$ ,H!"3 the ra/pant and unregulated showing of obscene *ideogra/ features constitutes a clear and present danger to the /oral and

spiritual wellbeing of the )outh E!".: P4!# and i/pairs the /andate of the Constitution for the 3tate to support the rearing of the )outh for ci*ic

efficienc) and the de*elop/ent of /oral character and pro/ote their ph)sical intellectual and social wellbeingJ

%$ ,H!"3 in the face of these gra*e e/ergencies corroding the /oral *alues of the people E"<"I# !".: P4!# and betra)ing the national

econo/ic reco*er) progra/ bold e/ergenc) /easures /ust be adopted with dispatchJ Ae/phasis supplied and certain passages o/ittedB

I33-3:

The petioner a/ong others raised the following issues:

1$ ,hether or not the i/position of the @0 ta2 is a rider and the sa/e is not ger/ane to the sub+ect /atter of the law$



$ ,hether or not there is undue delegation of power and authorit)J and

HL.:

1$ #o the ta2 is not a rider and is ger/ane to the purpose and sub+ect of the law$

The Constitutional reuire/ent that e*er) bill shall e/brace onl) one sub+ect which shall be e2pressed in the title thereof is sufficientl) co/plied

with if the title be co/prehensi*e enough to include the general purpose which a statute see;s to achie*e$ It is not necessar) that the title e2press

each and e*er) end that the statute wishes to acco/plish$ The reuire/ent is satisfied if all the parts of the statute are related and are ger/ane to

the sub+ect /atter e2pressed in the title or as long as the) are not inconsistent with or foreign to the general sub+ect and title$

!eading section 10 of P$.$ #o$ 16%7 closel) one can see that the foregoing pro*ision is allied and ger/ane to and is reasonabl) necessar) for the

acco/plish/ent of the general ob+ect of the law which is the regulation of the *ideo industr) through the =ideogra/ !egulator) 'oard as

e2pressed in its title$ The ta2 pro*ision is not inconsistent with nor foreign to that general sub+ect and title$ "s a tool for regulation it is si/pl) one of

the regulator) and control /echanis/s scattered throughout the decree$

"side fro/ re*enue collection ta2 laws /a) also be enacted for the purpose of regulating an acti*it)$ "t the sa/e ti/e the *ideogra/ industr) is

also an untapped source of re*enue which the go*ern/ent /a) *alidl) ta2$ "ll of this is e*ident fro/ prea/bulator) clauses nos$ 5 8 and %

uoted in part abo*e$

The le*) of the @0 ta2 is also for a public purpose$ It was i/posed pri/aril) to answer the need for regulating the *ideo industr) particularl)

because of the ra/pant fil/ pirac) the flagrant *iolation of intellectual propert) rights and the proliferation of pornographic *ideo tapes$ "nd while it

was also an ob+ecti*e of the law to protect the /o*ie industr) the ta2 re/ains a *alid i/position$

$ #o$ There was no undue delegation of law /a;ing authorit)$

Petitioner was concerned that 3ection 11 of P$.$ #o$ 16%7 stating that the *ideogra/ board A'oardB has authorit) to solicit the direct assistance of

other agencies and units of the go*ern/ent and deputize for a fi2ed and li/ited period the heads or personnel of such agencies and units to

perfor/ enforce/ent functions for the 'oard is an undue delegation of legislati*e power$

This is not a delegation of the power to legislate but /erel) a confer/ent of authorit) or discretion as to its e2ecution enforce/ent and

i/ple/entation$ The true distinction is between the delegation of power to /a;e the law which necessaril) in*ol*es a discretion as to what it shall

be and conferring authorit) or discretion as to its e2ecution to be e2ercised under and in pursuance of the law$ The first cannot be doneJ to the

latter no *alid ob+ection can be /ade$ 'esides in the *er) language of the decree the authorit) of the 'oard to solicit such assistance is for a

fi2ed and li/ited period with the deputized agencies concerned being sub+ect to the direction and control of the 'oard$

The petition was .I3?I33.$

DEPART"ENT OF EDUCATION, CULTURE AND SPORTS $DECS) n! DIRECTOR OF CENTER FOR EDUCATIONAL "EASURE"ENT,

petitioners, vs.

RO3ERTO RE# C. SAN DIEGO n! BUDGE TERESITA DIZON-CAPULONG, in 8er =p=it? s Presi!in7 B*!7e o: t8e Re7ion0 Tri0 Co*rt

o: V0en+*e0, "etro "ni0, 3rn=8 %, respon!ents.

<$!$ #o$ %657 .ece/ber 1 16%6

The issue before us is /ediocrit)$ The uestion is whether a person who has thrice failed the #ational ?edical "d/ission Test A#?"TB is entitled to

ta;e it again$ The petitioner contends he /a) not under its rule that " student shall be allowed onl) @ chances to ta;e the #?"T$ "fter @

successi*e failures a student shall not be allowed to ta;e the #?"T for the fourth ti/e$ The pri*ate respondent insists he can on constitutional

grounds$

Facts:

Pri*ate respondent is a graduate of the -ni*ersit) of the ast with a degree of '3 Goolog)$ The petitioner clai/s that he too; the #?"T @ ti/es andflun;ed it as /an) ti/es$ ,hen he applied to ta;e it again the petitioner re+ected his application on the basis of the aforesaid rule$ He then went to

the !TC of =alenzuela to co/pel his ad/ission to the test$ In his original petition for /anda/us he first in*o;ed his constitutional rights to

acade/ic freedo/ and ualit) education$ ') agree/ent of the parties the pri*ate respondent was allowed to ta;e the #?"T scheduled on "pril18

16%6 sub+ect to the outco/e of his petition$ In an a/ended petition filed with lea*e of court he suarel) challenged the constitutionalit) of ?C3

4rder #o$ 1 3eries of 167 containing the abo*ecited rule$ The additional grounds raised were due process and eual protection$

Issue:

,hether or not there was a *iolation of the Constitution on acade/ic freedo/ due process and eual protection$

Held: #o$ The court upheld the constitutionalit) of the #?"T as a /easure intended to li/it the ad/ission to /edical schools onl) to those who

ha*e initiall) pro*ed their co/petence and preparation for a /edical education$

There is no need to redefine here the police power of the 3tate$ 3uffice it to repeat that the power is *alidl) e2ercised if AaB the interests of the publicgenerall) as distinguished fro/ those of a particular class reuire the interference of the 3tate and AbB the /eans e/plo)ed are reasonabl)

necessar) to the attain/ent of the ob+ect sought to be acco/plished and not undul) oppressi*e upon indi*iduals$ 5

In other words the proper e2ercise of the police power reuires the concurrence of a lawful sub+ect and a lawful /ethod$



The sub+ect of the challenged regulation is certainl) within the a/bit of the police power$ It is the right and indeed the responsibilit) of the 3tate to

insure that the /edical profession is not infiltrated b) inco/petents to who/ patients /a) unwaril) entrust their li*es and health$

The /ethod e/plo)ed b) the challenged regulation is not irrele*ant to the purpose of the law nor is it arbitrar) or oppressi*e$ The threeflun; rule is

intended to insulate the /edical schools and ulti/atel) the /edical profession fro/ the intrusion of those not ualified to be doctors$

The right to ualit) education in*o;ed b) the pri*ate respondent is not absolute$ The Constitution also pro*ides that e*er) citizen has the right to

choose a profession or course of stud) sub+ect to fair reasonable and euitable ad/ission and acade/ic reuire/ents$

!atio:

,hile e*er) person is entitled to aspire to be a doctor he does not ha*e a constitutional right to be a doctor$ This is true of an) other calling in which

the public interest is in*ol*edJ and the closer the lin; the longer the bridge to oneKs a/bition$ The 3tate has the responsibilit) to harness its hu/an

resources and to see to it that the) are not dissipated or no less worse not used at all$ These resources /ust be applied in a /anner that will best

pro/ote the co//on good while also gi*ing the indi*idual a sense of satisfaction$ The Court feels that it is not enough to si/pl) in*o;e the right to

ualit) education as a guarantee of the Constitution: one /ust show that he is entitled to it because of his preparation and pro/ise$

what if the prospecti*e /ed student sa)s there is a *iolation of eual protection clause because the law)ers do not ha*e the sa/e rule$ There is

no *iolation since this issue in*ol*es a /atter of life and death$ 4ther colleges li;e the college of law or college of engineering also ha*e entrance or

ualif)ing e2a/s$

Sn70n7, 3e0-Air Asso=ition vs. Intere!ite Appe00te Co*rt $%5/5)

E<$!$ #o$ 71186$ "ugust 5 16%6$

3T"T?#T 4F TH C"3

'efore the Court are si2 consolidated petitions doc;eted as <$!$ nos$ 71186 7D@78 78@6D 7%1% %%1 and 8077$ The first fi*e petitions for a

/otion for reconsideration raise the issue of whether >upiter 3treet is for the e2clusi*e use of 'el"ir =illage residents$ ?eanwhile the last petition

A<$!$ 8077B raises the lone issue of whether or not the ?a)or of ?a;ati could ha*e *alidl) opened >upiter and 4rbit 3treets to *ehicular traffic$

Facts

Q ")ala Corporation Aoriginal owner of the propert) subseuentl) subdi*ided as 'el"ir =illageB e2ecuted a .eed of .onation co*ering >upiter

and 4rbit streets to 'el"ir =illage "ssociation A'"="B$

Q !espondents allege that upon instructions of the ?a)or of ?a;ati studies were /ade b) the on the feasibilit) of opening streets in 'el"ir

=illage calculated to alle*iate traffic congestions along the public streets ad+acent to 'el"ir =illage$

o "ccordingl) it was dee/ed necessar) b) the ?unicipalit) of ?a;ati in the interest of the general public to open to traffic se*eral *illage streets

including >upiter and 4rbit streets$

Q !espondentRs clai/: '"=" had agreed to the opening of 'el"ir =illage streets and that the opening was de/anded b) public necessit) and

in the e2ercise of police power$

Q PetitionerRs counterargu/ent: It has ne*er agreed on the opening of >upiter and 4rbit streets$ ') *irtue of its ownership of the streets it

should not be depri*ed without due process of law and without +ust co/pensation$

I33-3H4L.I#<

a$ ,# the ?a)or of ?a;ati could ha*e *alidl) opened >upiter and 4rbit streetsN O 3

b$ If )es what is the nature of the state power being in*o;ed b) the ?a)orN O P4LIC P4,!

!"TI4

a$ '"=" cannot rightfull) co/plain that the ?a)or of ?a;ati in opening up >upiter and 4rbit streets had acted arbitraril)$

Citing 3angalang *$ I"C the Court held that >upiter street lies as the boundar) between 'el"ir =illage and ")ala CorporationRs co//ercial section$

'eing considered as /erel) a boundar) O and hence not part of ")alaRs real estate de*elop/ent pro+ects O it cannot be said to ha*e been for the

e2clusi*e benefit of 'el"ir =illage residents$

The *er) .eed of .onation e2ecuted b) ")ala Corp$ co*ering >upiter and 4rbit 3treets a/ongst others effecti*el) reuired both passagewa)s

open to the general public$

o &Sthe propert) will be used as a street for the use of the /e/bers of the .4# A'"="B their fa/ilies personnel guests do/estic help and

under certain reasonable conditions and restrictions b) the general publicS(

"s the Court asserted in 3angalang the opening of >upiter and 4rbit streets was warranted b) the de/ands of the co//on good in ter/s of traffic

decongestion and public con*enience$



b$ The act of the ?a)or now challenged is in the concept of police power$

o The de/olition of the gates at 4rbit and >upiter streets does not a/ount to depri*ation of propert) without due process of law or e2propriation

without +ust co/pensation O there is no ta;ing of propert) in*ol*ed$

o Police power as the &state authorit) to enact legislation that /a) interfere with personal libert) or propert) in order to pro/ote the general

welfare$(

o *en libert) itself the greatest of all rights is not unrestricted license to act accordingl) to oneRs will$ It is sub+ect to the far /ore o*erriding

de/ands and reuire/ents of the greater nu/ber$

o Public welfare when clashing with the indi*idual right to propert) should not be /ade to pre*ail through the stateRs e2ercise of its police power$

o The e2ercise of police power howe*er /a) not be done arbitraril) or unreasonabl)$ 'ut the burden of showing that it is un+ustified lies on the

aggrie*ed part)$

o In the case at bar '"=" has failed to show that the opening up of 4rbit and >upiter streets was un+ustified or that the ?a)or acted

unreasonabl)$

o The fact that the opening has led to the loss of pri*ac) of '"=" residents is no argu/ent against the ?unicipalit)Rs effort to ease *ehicular traffic

in ?a;ati$ The dut) of local e2ecuti*e is to ta;e care of the needs of the greater nu/ber in /an) cases at the e2pense of the /inorit)$

.I3P43ITI=: ?otion for reconsideration b) 'el"ir =illage "ssociation is .#I. with FI#"LIT$ The petition in <$!$ 8077 is <!"#T.$

De0 Rosrio v. 3en7+on GR //'4, % De=e;er %5/5

Facts: 4n 15 ?arch 16%6 the full te2t of !epublic "ct 8875 was published in two newspapers of general circulation in the Philippines$ The law too;

effect on @0 ?arch 16%6 15 da)s after its publication as pro*ided in 3ection 15 thereof$ 3ection 7 Phase @ of "d/inistrati*e 4rder 8 was

a/ended b) "d/inistrati*e 4rder 78 dated % "ugust 16%6 b) postponing to 1 >anuar) 1660 the effecti*it) of the sanctions and penalties for

*iolations of the law pro*ided in 3ections 8 and 1 of the <enerics "ct and 3ections D and 7 of the "d/inistrati*e 4rder$ 4fficers of the Philippine

?edical "ssociation the national organization of /edical doctors in the Philippines on behalf of their professional brethren who are of ;indred

persuasion filed a class suit reuesting the Court to declare so/e pro*isions Aspecificall) penalB of the <enerics "ct of 16%% and the i/ple/enting

"d/inistrati*e 4rder 8 issued pursuant thereto as unconstitutional hence null and *oid$ The petition was captioned as an action for declarator)

relief o*er which the Court does not e2ercise +urisdiction$ #e*ertheless in *iew of the public interest in*ol*ed the Court decided to treat it as a

petition for prohibition instead$

Iss*e: ,hether the prohibition against the use b) doctors of no substitution andor words of si/ilar i/port in their prescription in the <enerics "ct

is a lawful regulation$

He0!: es$ There is no constitutional infir/it) in the <enerics "ctJ rather it i/ple/ents the constitutional /andate for the 3tate to protect and

pro/ote the right to health of the people and to /a;e essential goods health and other social ser*ices a*ailable to all the people at affordable

cost A3ection 15 "rt$ II and 3ection 11 "rt$ III 16%7 ConstitutionB$ The prohibition against the use b) doctors of no substitution andor words of

si/ilar i/port in their prescription is a *alid regulation to pre*ent the circu/*ention of the law$ It secures to the patient the right to choose between

the brand na/e and its generic eui*alent since his doctor is allowed to write both the generic and the brand na/e in his prescription for/$ If a

doctor is allowed to prescribe a brandna/e drug with no substitution the patientKs option to bu) a lowerpriced but euall) effecti*e generic

eui*alent would thereb) be curtailed$ The law ai/s to benefit the i/po*erished Aand often sic;l)B /a+orit) of the population in a still de*eloping

countr) li;e ours not the affluent and generall) health) /inorit)$

TELECO""UNICATIONS AND 3ROADCAST ATTORNE#S OF THE PHILIPPINES, INC. n! G"A NETOR, INC., petitioners,

vs. THE CO""ISSION ON ELECTIONS, respon!ent.

E<$!$ #o$ 1@6$ "pril 1 166%

F"CT3:

Petitioner Teleco//unications and 'roadcast "ttorne)s of the Philippines Inc$ ATL'"PB is an organization of law)ers of radio and

tele*ision broadcasting co/panies$ The) are suing as citizens ta2pa)ers and registered *oters$ It was declared to be without legal standing to sue

in this case as a/ong other reasons it was not able to show that it was to suffer fro/ actual or threatened in+ur) as a result of the sub+ect law$

4ther petitioner <?" #etwor; Inc$ appears to ha*e the reuisite standing to bring this constitutional challenge$ Petitioner operates radio and

tele*ision broadcast stations in the Philippines affected b) the enforce/ent of 3ec$ 6 of '$P 'lg$ %%1 reuiring radio and tele*ision broadcast

co/panies to pro*ide free air ti/e to the C4?LC for the use of candidates for ca/paign and other political purposes$ Petitioners challenge the

*alidit) of 3ec$ 6 on the ground A1B that it ta;es propert) without due process of law and without +ust co/pensationJ AB that it denies radio and

tele*ision broadcast co/panies the eual protection of the lawsJ and A@B that it is in e2cess of the power gi*en to the C4?LC to super*ise or regulate the operation of /edia of co//unication or infor/ation during the period of election$ Petitioner clai/s that it suffered losses running to

se*eral /illion pesos in pro*iding C4?LC Ti/e in connection with the 166 presidential election and 1665 senatorial election and that it stands

to suffer e*en /ore should it be reuired to do so again this )ear$ Petitioners clai/ that the pri/ar) source of re*enue of the radio and tele*ision

stations is the sale of air ti/e to ad*ertisers and to reuire these stations to pro*ide free air ti/e is to authorize un+ust ta;ing of pri*ate propert)$



"ccording to petitioners in 166 it lost PD6%580$00 in pro*iding free air ti/e for one hour each da) and in this )earRs elections it stands to lost

P5%6%0%50$00 in *iew of C4?LCRs reuire/ent that it pro*ide at least @0 /inutes of pri/e ti/e dail) for C4?LC Ti/e$

I33-3:

A1B ,hether or not 3ection 6 of '$P$ #o$ %%1 denies radio and tele*ision broadcast co/panies the eual protection of the laws$

AB ,hether or not 3ection 6 of '$P$ #o$ %%1 constitutes ta;ing of propert) without due process of law and without +ust co/pensation$

!-LI#<:

PetitionerRs argu/ent is without /erit$ "ll broadcasting whether radio or b) tele*ision stations is licensed b) the go*ern/ent$ "irwa*e

freuencies ha*e to be allocated as there are /ore indi*iduals who want to broadcast that there are freuencies to assign$ !adio and tele*ision

broadcasting co/panies which are gi*en franchises do not own the airwa*es and freuencies through which the) trans/it broadcast signals and

i/ages$ The) are /erel) gi*en the te/porar) pri*ilege to use the/$ Thus such e2ercise of the pri*ilege /a) reasonabl) be burdened with the

perfor/ance b) the grantee of so/e for/ of public ser*ice$ In granting the pri*ilege to operate broadcast stations and super*ising radio and

tele*ision stations the state spends considerable public funds in licensing and super*ising the/$

The argu/ent that the sub+ect law singles out radio and tele*ision stations to pro*ide free air ti/e as against newspapers and /agazines which

reuire pa)/ent of +ust co/pensation for the print space the) /a) pro*ide is li;ewise without /erit$ !egulation of the broadcast industr) reuires

spending of public funds which it does not do in the case of print /edia$ To reuire the broadcast industr) to pro*ide free air ti/e for C4?LC is a

fair e2change for what the industr) gets$

%etitioners@ assertion therefore that -) of B.%. Blg. 881 denies them the e4ual protection of the la& has no basis. In addition$ their plea that -)

free air time# and 11b# of R.A. No. 333 ban on paid political ads# should be inalidated &ould pae the &a' for a return to the old regime &here

mone'ed candidates could monopolize media adertising to the disadantage of candidates &ith less resources. That is &hat =ongress tried to

reform in 1-85 &ith the enactment of R.A. No. 333. 7e are not free to set aside the /udgment of =ongress$ especiall' in light of the recent failure

of interested parties to hae the la& repealed or at least modified.

Re4uirement of =9+C= Time$ a Reasonable *ercise of the 2tate@s %o&er to Regulate se of Dranchises

Dinall'$ it is argued that the po&er to superise or regulate gien to the =9+C= under Art. IE<=$ of the =onstitution does not include

the po&er to prohibit. In the first place$ &hat the =9+C= is authorized to superise or regulate b' Art. IE<=$ of the =onstitution$ 1

among other things$ is the use b' media of information of their franchises or permits$ &hile &hat =ongress not the =9+C=# prohibits

is the sale or donation of print space or air time for political ads. In other &ords$ the ob/ect of superision or regulation is different from the

ob/ect of the prohibition. It is another fallac' for petitioners to contend that the po&er to regulate does not include the po&er to prohibit.

This ma' hae force if the ob/ect of the po&er &ere the same.

"s radio and tele*ision broadcast stations do not own the airwa*es no pri*ate propert) is ta;en b) the reuire/ent that the) pro*ide air ti/e to the

C4?LC$ The use of propert) bears a social function and is sub+ect to the stateRs dut) to inter*ene for the co//on good$ 'roadcast /edia canfind their +ust and highest reward in the fact that whate*er altruistic ser*ice the) /a) render in connection with the holding of elections is for that

co//on good$

For the foregoing reasons the petition is dis/issed$

30s F. Op0e vs R*;en D. Torres, et 0.

6@ 3C!" 1D1 <! #o$ 178%5 @ >ul) 166%

>$ Puno

F"CT3:

"d/inistrati*e 4rder #o$ @0% entitled "doption of a #ational Co/puterized Identification !eference 3)ste/ was issued b) President Fidel!a/os 4n .ece/ber 1 1668$3enator 'las F$ 4ple filed a petition see;ing to in*alidate "$4$ #o$ @0% on se*eral grounds$ 4ne of the/ is that: The

establish/ent of a #ational Co/puterized Identification !eference 3)ste/ reuires a legislati*e act$ The issuance of "$4$ #o$@0% b) the President

is an unconstitutional usurpation of the legislati*e powers of congress$ Petitioner clai/s that "$4$ #o$ @0% is not a /ere ad/inistrati*e order but a

law and hence be)ond the power of the President to issue$ He alleges that "$4$ #o$@0% establishes a s)ste/ of identification that is all

enco/passing in scope affects the life and libert) of e*er) Filipino citizen and foreign resident and /ore particularl) *iolates their right to pri*ac)$

4n this point respondents counterargue that: "$4$ #o$ @0% was issued within the e2ecuti*e and ad/inistrati*e powers of the president without

encroaching on the legislati*e powers of congress$

I33-: ,hether the issuance of "$4$ #o$ @0% is an unconstitutional usurpation of the power of Congress to legislate$

!-LI#<: Legislati*e power is the authorit) to /a;e laws and to alter and repeal the/$ The Constitution has *ested this power in the

Congress$ The grant of legislati*e power to Congress is broad general and co/prehensi*e$ "n) power dee/ed to be legislati*e b) usage and

tradition is necessaril) possessed b) Congress unless the Constitution has lodged it elsewhere$ The e2ecuti*e power on the other hand is *ested

in the President$ It is generall) defined as the power to enforce and ad/inister the laws$ It is the power of carr)ing the laws into practical operationand enforcing their due obser*ance$ "s head of the 2ecuti*e .epart/ent the President is the Chief 2ecuti*e$ He represents the go*ern/ent as a

whole and sees to it that all laws are enforced b) the officials and e/plo)ees of his depart/ent$ He has control o*er the e2ecuti*e depart/ent

bureaus and offices$ Corollar) to the power of control the President also has the dut) of super*ising the enforce/ent of laws for the /aintenance of

general peace and public order$ Thus he is granted ad/inistrati*e power o*er bureaus and offices under his control to enable hi/ to discharge his

duties effecti*el)$ "d/inistrati*e power is concerned with the wor; of appl)ing policies and enforcing orders as deter/ined b) proper go*ern/ental



organs$ It enables the President to fi2 a unifor/ standard of ad/inistrati*e efficienc) and chec; the official conduct of his agents$ To this end he can

issue ad/inistrati*e orders rules and regulations$ Fro/ these precepts the Court holds that "$4$ #o$ @0% in*ol*es a sub+ect that is not appropriate

to be co*ered b) an ad/inistrati*e order$

#NOT, petitioner, vs. IAC

<$!$ #o$ 7DD57 ?arch 0 16%7

F"CT3:

Petitioner challenges the constitutionalit) of 2ecuti*e 4rder #o$ 88"$ The said e2ecuti*e order reads in full as follows:

,H!"3 the President has gi*en orders prohibiting the interpro*incial /o*e/ent of carabaos and the slaughtering of carabaos not

co/pl)ing with the reuire/ents of 2ecuti*e 4rder #o$ 88 particularl) with respect to ageJ

,H!"3 it has been obser*ed that despite such orders the *iolators still /anage to circu/*ent the prohibition against interpro*incial

/o*e/ent of carabaos b) transporting carabeef insteadJ

The petitioner had transported si2 carabaos in a pu/p boat fro/ ?asbate to Iloilo on >anuar) 1@ 16%D when the) were confiscated b) the police

station co//ander of 'arotac #ue*o Iloilo for *iolation of the abo*e /easure$ 1 The petitioner sued for reco*er) and the !egional Trial Court of

Iloilo Cit) issued a writ of reple*in upon his filing of a supersedeas bond of P1000$00$ "fter considering the /erits of the case the court sustained

the confiscation of the carabaos and since the) could no longer be produced ordered the confiscation of the bond$ The court also declined to rule

on the constitutionalit) of the e2ecuti*e order as raise b) the petitioner for lac; of authorit) and also for its presu/ed *alidit)$

The petitioner appealed the decision to the Inter/ediate "ppellate Court @ which upheld the trial court and he has now co/e before us in this

petition for re*iew on certiorari$

The thrust of his petition is that the e2ecuti*e order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being

transported across pro*incial boundaries$ His clai/ is that the penalt) is in*alid because it is i/posed without according the owner a right to be

heard before a co/petent and i/partial court as guaranteed b) due process$ He co/plains that the /easure should not ha*e been presu/ed and

so sustained as constitutional$ There is also a challenge to the i/proper e2ercise of the legislati*e power b) the for/er President under

"/end/ent #o$ 8 of the 167@ Constitution$

!espondents in*o;ed police power to to +ustif) 2ecuti*e 4rder #o$ 88" a/ending the basic rule in 2ecuti*e 4rder #o$ 88 prohibiting the

slaughter of carabaos e2cept under certain conditions$ The original /easure was issued for the reason as e2pressed in one of its ,hereases that

present conditions de/and that the carabaos and the buffaloes be conser*ed for the benefit of the s/all far/ers who rel) on the/ for energ)

needs$ ,e affir/ at the outset the need for such a /easure$ In the face of the worsening energ) crisis and the increased dependence of our far/s

on these traditional beasts of burden the go*ern/ent would ha*e been re/iss indeed if it had not ta;en steps to protect and preser*e the/$

!-LI#<:

The /ini/u/ reuire/ents of due process are notice and hearing 1@ which generall) spea;ing /a) not be dispensed with because the) are

intended as a safeguard against official arbitrariness$

The protection of the general welfare is the particular function of the police power which both restraints and is restrained b) due process$ The police

power is si/pl) defined as the power inherent in the 3tate to regulate libert) and propert) for the pro/otion of the general welfare$

To su/ up then we find that the challenged /easure is an in*alid e2ercise of the police power because the /ethod e/plo)ed to conser*e the

carabaos is not reasonabl) necessar) to the purpose of the law and worse is undul) oppressi*e$ .ue process is *iolated because the owner of the

propert) confiscated is denied the right to be heard in his defense and is i//ediatel) conde/ned and punished$ The confer/ent on the

ad/inistrati*e authorities of the power to ad+udge the guilt of the supposed offender is a clear encroach/ent on +udicial functions and /ilitates

against the doctrine of separation of powers$ There is finall) also an in*alid delegation of legislati*e powers to the officers /entioned therein who

are granted unli/ited discretion in the distribution of the properties arbitraril) ta;en$ For these reasons we hereb) declare 2ecuti*e 4rder #o$ 88

" unconstitutional$

PHILIPPINE PRESS INSTITUTE VS. CO"ELEC SCRA G.R. No. %%5'5 "? %554

Facts: !espondent Co/elec pro/ulgated !esolution #o$ 77 directing newspapers to pro*ide free Co/elec space of not less than onehalf page

for the co//on use of political parties and candidates$ The Co/elec space shall be allocated b) the Co//ission free of charge a/ong all

candidates to enable the/ to /a;e ;nown their ualifications their stand on public Issue and their platfor/s of go*ern/ent$ The Co/elec space

shall also be used b) the Co//ission for disse/ination of *ital election infor/ation$

4n ?arch 1665 Co/elec pro/ulgated !esolution #o$ 77 which reads in part:

222 222 222

3ec$ $ Co/elec 3pace$ M The Co//ission shall procure free print space of not less than one half A1B page in at least one

newspaper of general circulation in e*er) pro*ince or cit) for use as Co/elec 3pace fro/ ?arch 8 1665 in the case of candidates for senator and fro/ ?arch 1 1665 until ?a) 1 1665$ In the absence of said newspaper Co/elec 3pace shall be obtained fro/ an)

/agazine or periodical of said pro*ince or cit)$



3ec$ @$ -ses of Co/elec 3pace$ M Co/elec 3pace shall be allocated b) the Co//ission free of charge a/ong all candidates

within the area in which the newspaper /agazine or periodical is circulated to enable the candidates to /a;e ;nown their ualifications

their stand on public issues and their platfor/s and progra/s of go*ern/ent$

Co/elec 3pace shall also be used b) the Co//ission for disse/ination of *ital election infor/ation$

3ec$ D$ "llocation of Co/elec 3pace$ M AaB Co/elec 3pace shall also be a*ailable to all candidates during the periods stated in

3ection hereof$ Its allocation shall be eual and i/partial a/ong all candidates for the sa/e office$ "ll candidates concerned shall be

furnished a cop) of the allocation of Co/elec 3pace for their infor/ation guidance and co/pliance$

Petitioner Philippine Press Institute Inc$ APPIB a nonprofit organization of newspaper and /agazine publishers as;s the 3upre/e Court to declareCo/elec !esolution #o$ 77 unconstitutional and *oid on the ground that it *iolates the prohibition i/posed b) the Constitution upon the

go*ern/ent against the ta;ing of pri*ate propert) for public use without +ust co/pensation$ 4n behalf of the respondent Co/elec the 3olicitor

<eneral clai/ed that the !esolution is a per/issible e2ercise of the power of super*ision Apolice powerB of the Co/elec o*er the infor/ation

operations of print /edia enterprises during the election period to safeguard and ensure a fair i/partial and credible election$

Issue: ,hether or not Co/elec !esolution #o$ 77 is unconstitutional$

Held: The 3upre/e Court declared the !esolution as unconstitutional$ It held that to co/pel print /edia co/panies to donate &Co/elec space(

a/ounts to &ta;ing( of pri*ate personal propert) without pa)/ent of the +ust co/pensation reuired in e2propriation cases$ ?oreo*er the ele/ent of

necessit) for the ta;ing has not been established b) respondent Co/elec considering that the newspapers were not unwilling to sell ad*ertising

space$ The ta;ing of pri*ate propert) for public use is authorized b) the constitution but not without pa)/ent of +ust co/pensation$ "lso !esolution

#o$ 77 does not constitute a *alid e2ercise of the police power of the state$ In the case at bench there is no showing of e2istence of a national

e/ergenc) to ta;e pri*ate propert) of newspaper or /agazine publishers$

Aeri=n Print ors v. L@ren=e

whether the destruction of the building to pre*ent the spread of fire authorized the blowing up of the goods contained within it but not whether the)

were authorized to blow up the /aterials of which the building was co/posed$

right of e/inent do/ain publicright it arises fro/ the laws of societ) and is *ested in the state or benefitof the state or those acting under itJ

right of necessit) under the laws of societ) or societ) itself right of selfdefense or selfpreser*ation$

REPU3LIC OF THE PHILIPPINES, p0inti::-ppe00nt, vs. LA ORDEN DE PP. 3ENEDICTINOS DE FILIPINAS, !e:en!nt-ppe00ee.

G.R. No. L-%5 Fe;r*r? /, %5'%

To ease and sol*e the dail) traffic congestion on Legarda 3treet the <o*ern/ent drew plans to e2tend "zcarraga street fro/ its +unction with

?endiola street up to the 3ta$ ?esa !otonda 3a/paloc ?anila$ To carr) out this plan it offered to bu) a portion of appro2i/atel) 8000 suare

/eters of a bigger parcel belonging to La 4rden de PP$ 'enedictinos de Filipinas a do/estic religious corporation that owns the 3an 'eda College

a pri*ate educational institution situated on ?endiola street$ #ot ha*ing been able to reach an agree/ent on the /atter with the owner the

<o*ern/ent instituted the present e2propriation proceedings$

4n ?a) 7 1657 the trial court upon application of the <o*ern/ent M hereinafter referred to as appellant M issued an order fi2ing the pro*isional

*alue of the propert) in uestion at P70000$00 and authorizing appellant to ta;e i//ediate possession thereof upon depositing said a/ount$ The

deposit ha*ing been /ade with the Cit) Treasurer of ?anila the trial court issued the corresponding order directing the 3heriff of ?anila to place

appellant in possession of the propert) aforesaid$

4n >une % 1657 as directed b) the !ules of Court the herein appellee in lieu of an answer filed a /otion to dis/iss the co/plaint based on the

following grounds:

I$ That the propert) sought to be e2propriated is alread) dedicated to public use and therefore is not sub+ect to e2propriation$

II$ That there is no necessit) for the proposed e2propriation$

III$ That the proposed "zcarraga 2tension could pass through a different site which would entail less e2pense to the <o*ern/ent and which would

not necessitate the e2propriation of a propert) dedicated to education$

I=$ That the present action filed b) the plaintiff against the defendant is discri/inator)$

=$ That the herein plaintiff does not count with sufficient funds to push through its pro+ect of constructing the proposed "zcarraga 2tension and to

allow the plaintiff to e2propriate defendantKs propert) at this ti/e would be onl) to needlessl) depri*e the latter of the use of its propert)$$

The go*ern/ent filed a written opposition to the /otion to dis/iss A!ecord on "ppeal pp$ @0@7B while appellee filed a repl) thereto AId$ pp$ @%D%B$

4n >ul) 6 1657 without recei*ing e*idence upon the uestions of fact arising fro/ the co/plaint the /otion to dis/iss and the opposition theretofiled the trial court issued the appealed order dis/issing the case$

The appealed order shows that the trial court li/ited itself to deciding the point of whether or not the e2propriation of the propert) in uestion is

necessar) A!ec$ on "p$ p$ 50B and ha*ing arri*ed at the conclusion that such e2propriation was not of e2tre/e necessit) dis/issed the

proceedings$



It is to be obser*ed that paragraph I= of the co/plaint e2pressl) alleges that appellant needs a/ong other properties the portion of appelleeKs

propert) in uestion for the purpose of constructing the "zcarraga street e2tension and that paragraph =II of the sa/e co/plaint e2pressl) alleges

that in accordance with 3ection 8DAbB of the !e*ised "d/inistrati*e Code the President of the Philippines had authorized the acuisition thru

conde/nation proceedings of the aforesaid parcel of land belonging to appellee as e*idenced b) the third indorse/ent dated ?a) 15 1657 of the

2ecuti*e 3ecretar) 4ffice of the President of the Philippines a cop) of which was attached to the co/plaint as "nne2 C and /ade an integral

part thereof$ In denial of these allegations appelleeKs /otion to dis/iss alleged that there is no necessit) for the proposed e2propriation$ Thus the

uestion of fact decisi*e of the whole case arose$

It is the rule in this +urisdiction that pri*ate propert) /a) be e2propriated for public use and upon pa)/ent of +ust co/pensationJ that conde/nation

of pri*ate propert) is +ustified onl) if it is for the public good and there is a genuine necessit) therefor of a public character$ Conseuentl) the courts

ha*e the power to inuire into the legalit) of the e2ercise of the right of e/inent do/ain and to deter/ine whether or not there is a genuinenecessit) therefor ACit) of ?anila *s$ Chinese Co//unit) D0 Phil$ @D6J ?anila !ailroad Co/pan) *s$ Hacienda 'enito Inc$ @7 4$<$ 1657B$

-pon the other hand it does not need e2tended argu/ent to show that whether or not the proposed opening of the "zcarraga e2tension is a

necessit) in order to relie*e the dail) congestion of traffic on Legarda 3t$ is a uestion of fact dependent not onl) upon the facts of which the trial

court *er) liberall) too; +udicial notice but also up on other factors that do not appear of record and /ust therefore be established b) /eans of

e*idence$ ,e are therefore of the opinion that the parties should ha*e been gi*en an opportunit) to present their respecti*e e*idence upon these

factors and others that /ight be of direct or indirect help in deter/ining the *ital uestion of fact in*ol*ed na/el) the need to open the e2tension of

"zcarraga street to ease and sol*e the traffic congestion on Legarda street$

,H!F4! the appealed order of dis/issal is set aside and the present case is re/anded to the trial court for further proceedings in

accordance with this decision$ ,ithout costs$

THE CIT# OF "ANILA, p0inti::-ppe00nt, vs. CHINESE CO""UNIT# OF "ANILA, ET AL.

G.R. No. L-%644

The i/portant uestion presented b) this appeal is: In e2propriation proceedings b) the cit) of ?anila /a) the courts inuire into and hear proof

upon the necessit) of the e2propriationN

That uestion arose in the following /anner:

4n the 11th da) of .ece/ber 1618 the cit) of ?anila presented a petition in the Court of First Instance of said cit) pra)ing that certain lands

therein particularl) described be e2propriated for the purpose of constructing a public i/pro*e/ent$ The petitioner in the second paragraph of the

petition alleged:

That for the purpose of constructing a public i/pro*e/ent na/el) the e2tension of !izal "*enue ?anila it is necessar) for the plaintiff to acuire

ownership in fee si/ple of certain parcels of land situated in the district of 'inondo of said cit) within 'loc; %@ of said district and within the

+urisdiction of this court$

The defendant the Co/unidad de Chinos de ?anila EChinese Co//unit) of ?anila answering the petition of the plaintiff alleged that it was a

corporation organized and e2isting under and b) *irtue of the laws of the Philippine Islands ha*ing for its purpose the benefit and general welfare of

the Chinese Co//unit) of the Cit) of ?anilaJ that it was the owner of parcels one and two of the land described in paragraph of the co/plaintJ

that it denied that it was either necessar) or e2pedient that the said parcels be e2propriated for street purposesJ that e2isting street and roads

furnished a/ple /eans of co//unication for the public in the district co*ered b) such proposed e2propriationJ that if the construction of the street

or road should be considered a public necessit) other routes were a*ailable which would full) satisf) the plaintiffKs purposes at /uch less e2pense

and without disturbing the resting places of the deadJ that it had a Torrens title for the lands in uestionJ that the lands in uestion had been used b)

the defendant for ce/eter) purposesJ that a great nu/ber of Chinese were buried in said ce/eter)J that if said e2propriation be carried into effect it

would disturb the resting places of the dead would reuire the e2penditure of a large su/ of /one) in the transfer or re/o*al of the bodies to so/e

other place or site and in the purchase of such new sites would in*ol*e the destruction of e2isting /onu/ents and the erection of new /onu/ents

in their stead and would create irreparable loss and in+ur) to the defendant and to all those persons owning and interested in the gra*es and

/onu/ents which would ha*e to be destro)edJ that the plaintiff was without right or authorit) to e2propriate said ce/eter) or an) part or portion

thereof for street purposesJ and that the e2propriation in fact was not necessar) as a public i/pro*e/ent$

The defendant Ildefonso Ta/bunting answering the petition denied each and e*er) allegation of the co/plaint and alleged that said e2propriation

was not a public i/pro*e/entJ that it was not necessar) for the plaintiff to acuire the parcels of land in uestionJ that a portion of the lands in

uestion was used as a ce/eter) in which were the gra*es of his ancestorsJ that /onu/ents and to/bstones of great *alue were found thereonJ

that the land had beco/e uasipublic propert) of a bene*olent association dedicated and used for the burial of the dead and that /an) dead were

buried thereJ that if the plaintiff dee/ed it necessar) to e2tend !izal "*enue he had offered and still offers to grant a right of wa) for the said

e2tension o*er other land without cost to the plaintiff in order that the sepulchers chapels and gra*es of his ancestors /a) not be disturbedJ that

the land so offered free of charge would answer e*er) public necessit) on the part of the plaintiff$

The defendant Feliza Concepcion de .elgado with her husband >ose ?aria .elgado and each of the other defendants answering separatel)

presented substantiall) the sa/e defense as that presented b) the Co/unidad de Chinos de ?anila and Ildefonso Ta/bunting abo*e referred to$

The foregoing parts of the defense presented b) the defendants ha*e been inserted in order to show the general character of the defenses

presented b) each of the defendants$ The plaintiff alleged that the e2propriation was necessar)$ The defendants each alleged AaB that no necessit)

e2isted for said e2propriation and AbB that the land in uestion was a ce/eter) which had been used as such for /an) )ears and was co*ered withsepulchres and /onu/ents and that the sa/e should not be con*erted into a street for public purposes$

-pon the issue thus presented b) the petition and the *arious answers the Honorable 3i/plicio del !osario +udge in a *er) elucidated opinion

with *er) clear and e2plicit reasons supported b) a/bulance of authorities decided that there was no necessit) for the e2propriation of the

particular strip of land in uestion and absol*ed each and all of the defendants fro/ all liabilit) under the co/plaint without an) finding as to costs$



Fro/ that +udg/ent the plaintiff appealed and presented the abo*e uestion as its principal ground of appeal$

The theor) of the plaintiff is that once it has established the fact under the law that it has authorit) to e2propriate land it /a) e2propriate an) land

it /a) desireJ that the onl) function of the court in such proceedings is to ascertain the *alue of the land in uestionJ that neither the court nor the

owners of the land can inuire into the ad*isible purpose of purpose of the e2propriation or as; an) uestions concerning the necessities thereforJ

that the courts are /ere appraisers of the land in*ol*ed in e2propriation proceedings and when the *alue of the land is fi2ed b) the /ethod

adopted b) the law to render a +udg/ent in fa*or of the defendant for its *alue$

That the cit) of ?anila has authorit) to e2propriate pri*ate lands for public purposes is not denied$ 3ection D6 of "ct #o$ 711 ACharter of the cit)

of ?anilaB pro*ides that the cit) A?anilaB $ $ $ /a) conde/n pri*ate propert) for public use$

The Charter of the cit) of ?anila contains no procedure b) which the said authorit) /a) be carried into effect$ ,e are dri*en therefore to the

procedure /ar;ed out b) "ct #o$ 160 to ascertain how the said authorit) /a) be e2ercised$ Fro/ an e2a/ination of "ct #o$ 160 in its section D1

we find how the right of e/inent do/ain /a) be e2ercised$ 3aid section D1 pro*ides that The <o*ern/ent of the Philippine Islands or of an)

pro*ince or depart/ent thereof or of an) /unicipalit) and an) person or public or pri*ate corporation ha*ing b) law the right to conde/n pri*ate

propert) for public use shall e2ercise that right in the /anner hereinafter prescribed$

3ection D pro*ides that a co/plaint in e2propriation proceeding shall be presentedJ that the co/plaint shall state with certaint) the right of

conde/nation with a description of the propert) sought to be conde/ned together with the interest of each defendant separatel)$

3ection D@ pro*ides that if the court shall find upon trial that the right to e2propriate the land in uestion e2ists it shall then appoint co//issioners$

3ections DD D5 and D8 pro*ide the /ethod of procedure and dut) of the co//issioners$ 3ection D% pro*ides for an appeal fro/ the +udg/ent

of the Court of First Instance to the 3upre/e Court$ 3aid section D% gi*es the 3upre/e Court authorit) to inuire into the right of e2propriation on

the part of the plaintiff$ If the 3upre/e Court on appeal shall deter/ine that no right of e2propriation e2isted it shall re/and the cause to the Court

of First Instance with a /andate that the defendant be replaced in the possession of the propert) and that he reco*er whate*er da/ages he /a)

ha*e sustained b) 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 e2propriate e2ists /eans si/pl)

that if the court finds that there is so/e law authorizing the plaintiff to e2propriate then the courts ha*e no other function than to authorize the

e2propriation and to proceed to ascertain the *alue of the land in*ol*edJ that the necessit) for the e2propriation is a legislati*e and not a +udicial

uestion$

-pon the uestion whether e2propriation is a legislati*e function e2clusi*el) and that the courts cannot inter*ene e2cept for the purpose of

deter/ining the *alue of the land in uestion there is /uch legal legislature$ ?uch has been written upon both sides of that uestion$ " careful

e2a/ination of the discussions pro and con will disclose the fact that the decisions depend largel) upon particular constitutional or statutor)

pro*isions$ It cannot be denied if the legislature under proper authorit) should grant the e2propriation of a certain or particular parcel of land for

so/e specified public purpose that the courts would be without +urisdiction to inuire into the purpose of that legislation$

If upon the other hand howe*er the Legislature should grant general authorit) to a /unicipal corporation to e2propriate pri*ate land for publicpurposes we thin; the courts ha*e a/ple authorit) in this +urisdiction under the pro*isions abo*e uoted to /a;e inuir) and to hear proof upon

an issue properl) presented concerning whether or not the lands were pri*ate and whether the purpose was in fact public$ In other words ha*e no

the courts in this +urisdiction the right inas/uch as the uestions relating to e2propriation /ust be referred to the/ Asec$ D1 "ct #o$ 160B for final

decision to as; whether or not the law has been co/plied withN 3uppose in a particular case it should be denied that the propert) is not pri*ate

propert) but public /a) not the courts hear proof upon that uestionN 4r suppose the defense is that the purpose of the e2propriation is not public

but pri*ate or that there e2ists no public purpose at all /a) not the courts /a;e inuir) and hear proof upon that uestionN

The cit) of ?anila is gi*en authorit) to e2propriate pri*ate lands for public purposes$ Can it be possible that said authorit) confers the right to

deter/ine for itself that the land is pri*ate and that the purpose is public and that the people of the cit) of ?anila who pa) the ta2es for its support

especiall) those who are directl) affected /a) not uestion one or the other or both of these uestionsN Can it be successfull) contended that the

phrase used in "ct #o$ 160 and if the court upon trial shall find that such right e2ists /eans si/pl) that the court shall e2a/ine the statutes

si/pl) for the purpose of ascertaining whether a law e2ists authorizing the petitioner to e2ercise the right of e/inent do/ainN 4r when the case

arri*es in the 3upre/e Court can it be possible that the phrase if the 3upre/e Court shall deter/ine that no right of e2propriation e2ists that that

si/pl) /eans that the 3upre/e Court shall also e2a/ine the enact/ents of the legislature for the purpose of deter/ining whether or not a lawe2ists per/itting the plaintiff to e2propriateN

,e are of the opinion that the power of the court is not li/ited to that uestion$ The right of e2propriation is not an inherent power in a /unicipal

corporation and before it can e2ercise the right so/e law /ust e2ist conferring the power upon it$ ,hen the courts co/e to deter/ine the uestion

the) /ust onl) find AaB that a law or authorit) e2ists for the e2ercise of the right of e/inent do/ain but AbB also that the right or authorit) is being

e2ercised in accordance with the law$ In the present case there are two conditions i/posed upon the authorit) conceded to the Cit) of ?anila: First

the land /ust be pri*ateJ and second the purpose /ust be public$ If the court upon trial finds that neither of these conditions e2ists or that either

one of the/ fails certainl) it cannot be contended that the right is being e2ercised in accordance with law$

,hether the purpose for the e2ercise of the right of e/inent do/ain is public is a uestion of fact$ ,hether the land is public is a uestion of factJ

and in our opinion when the legislature conferred upon the courts of the Philippine Islands the right to ascertain upon trial whether the right e2ists

for the e2ercise of e/inent do/ain it intended that the courts should inuire into and hear proof upon those uestions$ Is it possible that the owner

of *aluable land in this +urisdiction is co/pelled to stand /ute while his land is being e2propriated for a use not public with the right si/pl) to beg

the cit) of ?anila to pa) hi/ the *alue of his landN .oes the law in this +urisdiction per/it /unicipalities to e2propriate lands without uestionsi/pl) for the purpose of satisf)ing the aesthetic sense of those who happen for the ti/e being to be in authorit)N 2propriation of lands usuall)

calls for public e2pense$ The ta2pa)ers are called upon to pa) the costs$ Cannot the owners of land uestion the public use or the public necessit)N



"s was said abo*e there is a wide di*ergence of opinion upon the authorit) of the court to uestion the necessit) or ad*isabilit) of the e2ercise of

the right of e/inent do/ain$ The di*ergence is usuall) found to depend upon particular statutor) or constitutional pro*isions$

It has been contended M and /an) cases are cited in support of that contention and section 15% of *olu/e 10 of !uling Case Law is cited as

conclusi*e M that the necessit) for ta;ing propert) under the right of e/inent do/ain is not a +udicial uestion$ 'ut those who cited said section

e*identl) o*erloo;ed the section i//ediatel) following Asec$ 156B which adds: 'ut it is ob*ious that if the propert) is ta;en in the ostensible behalf

of a public i/pro*e/ent which it can ne*er b) an) possibilit) ser*e it is being ta;en for a use not public and the ownerKs constitutional rights call for

protection b) the courts$ ,hile /an) courts ha*e used sweeping e2pression in the decisions in which the) ha*e disclai/ed the power of

super*ising the power of super*ising the selection of the sites of public i/pro*e/ents it /a) be safel) said that the courts of the *arious states

would feel bound to interfere to pre*ent an abuse of the discretion delegated b) the legislature b) an atte/pted appropriation of land in utter

disregard of the possible necessit) of its use or when the alleged purpose was a cloa; to so/e sinister sche/e$ A#orwich Cit) *s$ >ohnson %8Conn$ 151J 'ell *s$ ?attoon ,aterwor;s etc$ Co$ D5 Ill$ 5DDJ ,heeling etc$ !$ !$ Co$ *s$ Toledo !)$ etc$ Co$ 7 4hio 3t$ @8%J 3tate *s$

3tewart 7D ,is$ 80$B

3aid section 15% A10 !$ C$ L$ 1%@B which is cited as conclusi*e authorit) in support of the contention of the appellant sa)s:

The legislature in pro*iding for the e2ercise of the power of e/inent do/ain /a) directl) deter/ine the necessit) for appropriating pri*ate propert)

for a particular i/pro*e/ent for public use and it /a) select the e2act location of the i/pro*e/ent$ In such a case it is well settled that the utilit) of

the proposed i/pro*e/ent the e2tent of the public necessit) for its construction the e2pedienc) of constructing it the suitableness of the location

selected and the conseuent necessit) of ta;ing the land selected for its site are all uestions e2clusi*el) for the legislature to deter/ine and the

courts ha*e no power to interfere or to substitute their own *iews for those of the representati*es of the people$

Practicall) e*er) case cited in support of the abo*e doctrine has been e2a/ined and we are +ustified in /a;ing the state/ent that in each case the

legislature directl) deter/ined the necessit) for the e2ercise of the right of e/inent do/ain in the particular case$ It is not denied that if the

necessit) for the e2ercise of the right of e/inent do/ain is presented to the legislati*e depart/ent of the go*ern/ent and that depart/ent decides

that there e2ists a necessit) for the e2ercise 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 /a;e inuir) concerning the necessit)$ 'ut in the case of ,heeling etc$ !$ !$ Co$ *s$ Toledo !) etc$ Co$ A7 4hio 3t$ @8% E108

"/$ 3t$ rep$ 8 8%B which was cited in support of the doctrine laid down in section 15% abo*e uoted the court said:

'ut when the statute does not designate the propert) to be ta;en nor how /a) be ta;en then the necessit) of ta;ing particular propert) is a

uestion for the courts$ ,here the application to conde/n or appropriate is /ade directl) to the court the uestion Aof necessit)B should be raised

and decided in li/ene$

The legislati*e depart/ent of the go*ern/ent was rarel) underta;es to designate the precise propert) which should be ta;en for public use$ It has

generall) li;e in the present case /erel) conferred general authorit) to ta;e land for public use when a necessit) e2ists therefor$ ,e belie*e that it

can be confidentl) asserted that under such statute the allegation of the necessit) for the appropriation is an issuable allegation which it is

co/petent for the courts to decide$ AL)nch *s$ Forbes 181 ?ass$ @0 ED "/$ 3t$ !ep$ D0 D07$B

There is a wide !istin=tion between a legislati*e declaration that a /unicipalit) is gi*en authorit) to e2ercise the right of e/inent do/ain and a

decision b) the /unicipalit) that there e2ist a necessit) for the e2ercise of that right in a particular case$ The first is a declaration simpl' that there

e*ist reasons &h' the right should be conferred upon municipal corporation$ &hile the second is the application of the right to a particular case.

Certainl) the legislati*e declaration relating to the ad*isabilit) of granting the power cannot be con*erted into a declaration that a necessit) e2ists

for its e2ercise in a particular case and especiall) so when perhaps the land in uestion was not within the territorial authorit) was granted$

,hether it was wise ad*isable or necessar) to confer upon a /unicipalit) the power to e2ercise the right of e/inent do/ain is a uestion with

which the courts are not concerned$ 'ut when that right or authorit) is e2ercised for the purpose of depri*ing citizens of their propert) the courts are

authorized in this +urisdiction to /a;e inuir) and to hear proof upon the necessit) in the particular case and not the general authorit)$

=olu/e 15 of the C)clopedia of Law and Procedure AC)c$B page 86 is cited as a further conclusi*e authorit) upon the uestion that the necessit)

for the e2ercise of the right of e/inent do/ain is a legislati*e and not a +udicial uestion$ C)clopedia at the page stated sa)s:

In the absence of so/e constitutional or statutor) pro*ision to the contrar) the necessit) and e2pedienc) of e2ercising the right of e/inent do/ain

are uestions essentiall) political and not +udicial in their character$ The deter/ination of those uestions Athe necessit) and the e2pedienc)B

belongs to the so*ereign powerJ the legislati*e depart/ent is final and conclusi*e and the courts ha*e no power to re*iew it Athe necessit) and thee2pedienc)B $ $ $ $ It Athe legislatureB /a) designate the particular propert) to be conde/ned and its deter/ination in this respect cannot be

re*iewed b) the courts$

It is true that nab) decisions /a) be found asserting that what is a public use is a legislati*e uestion and /an) other decisions declaring with

eual e/phasis that it is a +udicial uestion$ 'ut as long as there is a constitutional or statutor) pro*ision den)ing the right to ta;e land for an) use

other than a public use it occurs to us that the uestion whether an) particular use is a public one or not is ulti/atel) at least a +udicial uestion$

The legislati*e /a) it is true in effect declare certain uses to be public and under the operation of the well;nown rule that a statute will not be

declared to be unconstitutional e2cept in a case free or co/parati*el) free fro/ doubt the courts will certainl) sustain the action of the legislature

unless it appears that the particular use is clearl) not of a public nature$ The decisions /ust be understood with this li/itationJ for certainl) no court

of last resort will be willing to declare that an) and e*er) purpose which the legislati*e /ight happen to designate as a public use shall be

conclusi*el) held to be so irrespecti*e of the purpose in uestion and of its /anifestl) pri*ate character 'lac;stone in his Co//entaries on the

nglish Law re/ar;s that so great is the regard of the law for pri*ate propert) that it will not authorize the least *iolation of it e*en for the public

good unless there e2ists a *er) great necessit) therefor$

The e2ercise of the right of e/inent do/ain whether directl) b) the 3tate or b) its authorized agents is necessaril) in derogation of pri*ate rights

and the rule in that case is that the authorit) /ust be strictl) construed$ #o species of propert) is held b) indi*iduals with greater tenacit) and none

is guarded b) the constitution and laws /ore sedulousl) than the right to the freehold of inhabitants$ ,hen the legislature interferes with that right

and for greater public purposes appropriates the land of an indi*idual without his consent the plain /eaning of the law should not be enlarged b)

doubtl) interpretation$ A'ensel) *s$ ?ountainla;e ,ater Co$ 1@ Cal$ @08 and cases cited E7@ "/$ .ec$ 578$B



In the present case e*en granting that a necessit) e2ists for the opening of the street in uestion the record contains no proof of the necessit) of

opening the sa/e through the ce/eter)$ The record shows that ad+oining and ad+acent lands ha*e been offered to the cit) free of charge which will

answer e*er) purpose of the plaintiff$

For all of the foregoing we are full) persuaded that the +udg/ent of the lower court should be and is hereb) affir/ed with costs against the

appellant$ 3o ordered$

.I<3T

TH CIT 4F ?"#IL" *s$ CHI#3 C4??-#IT 4F ?"#IL" T "L$

Facts: 4n .ec$ 11 1618 presented a petition in the CFI of ?anila pra)ing that certain lands used b) the Chinese Co//unit) as their ce/eter)

be e2propriated for an e2tension of !izal "*enue$ The Co/unidad de Chinos de ?anila alleged that if e2propriation would ta;e effect it would

disturb the resting places of the dead and would reuire a large su/ of /one) to transfer the bodiesJ further/ore the e2propriation was

unnecessar) as a public i/pro*e/ent$ PlaintiffRs theor) howe*er is that once it has established the fact under the law that it has authorit) to

e2propriate land it /a) e2propriate an) land it /a) desireJ that the onl) function of the court in such proceedings is to ascertain the *alue of the

land in uestionJ that neither the court nor the owners of the land can inuire into the ad*isible purpose of purpose of the e2propriation or as; an)

uestions concerning the necessities thereforJ that the courts are /ere appraisers of the land in*ol*ed in e2propriation proceedings and when the

*alue of the land is fi2ed b) the /ethod adopted b) the law to render a +udg/ent in fa*or of the defendant for its *alue$

Issue: If the Cit) of ?anila /a) e2propriate the lands used as ce/eter) for e2tending !izal "*enue$

Held: -nder 3ection D6 of "ct #o$ 711 ACharter of the Cit) of ?anilaB the cit) has the authorit) to e2propriate pri*ate lands for public

purposes$ Howe*er said charter contains no procedure b) which the authorit) /a) be carried not effect and how e/inent do/ain /a) be

e2ercised$ The Court then opines that the power of the court is not li/ited to deter/ining ,4# a law e2ists per/itting the plaintiff to e2propriate$

The right of e2propriation is not inherent in /unicipal corporations and before it can e2ercise such so/e law /ust e2ist to confer such power$ ,hen

the courts deter/ine the uestion the) /ust find onl) that a law e2ists for such a reason and that the right or authorit) being e2ercised is in

accordance with the law$ In the present case there are two conditions i/posed upon the authorit) conceded to the Cit) of ?anila: 1 the land /ust

be pri*ate and the purpose /ust be public$ If the court upon trial finds that neither e2ists or either fails it cannot be contended that the right is

being e2ercised in accordance with law$ The necessit) for ta;ing propert) under the right of e/inent do/ain is not a +udicial uestion$ The

legislature in pro*iding for the e2ercise of the power of e/inent do/ain /a) directl) deter/ine the necessit) of appropriating pri*ate propert) for a

particular i/pro*e/ent for public use and /a) select the e2act location of the i/pro*e/ent$ The uestions of utilit) of proposed i/pro*e/ent the

e2tent of public necessit) for its construction the e2pedienc) f constructing it the suitableness of its location and the necessit) of ta;ing the land for

its site are all uestions e2clusi*e for the legislature to deter/ine$ The ta;ing of pri*ate propert) for an) use which is not reuired b) the necessities

or con*enience of the inhabitants of the state is an unreasonable e2ercise of the right of e/inent do/ain and be)ond the power of the legislature

to delegate$

,o# the ce/eter) is pri*ate or public is i//aterial$ The Court opines that it is difficult to belie*e that e*en the legislature would adopt a

law pro*iding e2pressl) that such places under such circu/stances should be *iolated$ To disturb the /ortal re/ains of those endeared to us in life

beco/es so/eti/es the sad dut) of the li*ing but e2cept in cases of necessit) or for laudable purposes the sanctit) of the gra*e should be/aintained$ In the present case e*en granting that a necessit) e2ists for the opening of the street in uestion the record shows no proof of the

necessit) of opening the sa/e through the ce/eter)$ The record shows that the ad+oining and ad+acent lands ha*e been offered to the cit) free of

charge which should answer e*er) purpose of the plaintiff$

Rep*;0i= v PLDT G.R. No. L-%//%

Facts: PL.T and !C" Co//unications Inc Awhich is not a part) to this case but has contractual relations with the parties entered into an

agree/ent where telephone /essages co/ing fro/ the -3 and recei*ed b) !C"Ks do/estic station could auto/aticall) be transferred to the lines

of PL.T and *ice *ersa$

The 'ureau of Teleco//unications set up its own go*ern/ent Telephone s)ste/ b) renting the trun; lines of PL.T to enable go*ern/ent offices to

call pri*ate parties$ 4ne of the /an) rules prohibits the use of the ser*ice for his pri*ate use$

!epublic of the Philippines entered into an agree/ent with !C" for a +oint o*erseas telephone ser*ice where the 'ureau would con*e) radio$Telephone o*erseas calls recei*ed b) the !C"Ks station to and fro/ local residents$

PL.T co/plained that the 'ureau was *iolating the conditions for using the trun; lines not onl) for the use of go*ern/ent offices but e*en to ser*e

pri*ate persons or the general public$ PL.T ga*e a notice that if *iolations were not stopped PL.T would se*er the connections which PL.T did$

!epublic sued PL.T co//anding PL.T to e2ecute a contract through the 'ureau for the use of the facilities of defendantKs telephone s)ste/

throughout the Philippines under such ter/s and conditions as the court finds it reasonable$

Issue: ,hether or not !epublic can co//and PL.T to e2ecute the contract

Held: #o$ The 'ureau was created in pursuance of a state polic) reorganizing the go*ern/ent offices to /eet the e2igencies attendant upon

the establish/ent of a free <o*Kt of the Phil$

Ta>ing up first the appeal of the Republic$ the latter complains of the action of the trial court in dismissing the part of its complaint see>ing to compel the defendant to enter into an interconnecting contract &ith it$ because the parties could not agree on the terms and conditions of the

interconnection$ and of its refusal to fi* the terms and conditions therefor.



7e agree &ith the court belo& that parties can not be coerced to enter into a contract &here no agreement is had bet&een them as to the principal

terms and conditions of the contract. Dreedom to stipulate such terms and conditions is of the essence of our contractual s'stem$ and b' e*press

proision of the statute$ a contract ma' be annulled i f tainted b' iolence$ intimidation$ or undue influence Articles 103$ 13$ 15$ =iil =ode of

the %hilippines#. But the court a 4uo has apparentl' oerloo>ed that &hile the Republic ma' not compel the %CFT to celebrate a contract &ith it$ the

Republic ma'$ in the e*ercise of the soereign po&er of eminent domain$ re4uire the telephone compan' to permit interconnection of the

goernment telephone s'stem and that of the %CFT$ as the needs of the goernment serice ma' re4uire$ sub/ect to the pa'ment of /ust

compensation to be determined b' the court. Nominall'$ of course$ the po&er of eminent domain results in the ta>ing or appropriation of title to$ and

possession of$ the e*propriated propert'( but no cogent reason appears &h' the said po&er ma' not be aailed of to impose onl' a burden upon

the o&ner of condemned propert'$ &ithout loss of title and possession. It is un4uestionable that real propert' ma'$ through e*propriation$ be

sub/ected to an easement of right of &a'. The use of the %CFT@s lines and serices to allo& inter<serice connection bet&een both telephone

s'stems is not much different. In either case priate propert' is sub/ected to a burden for public use and benefit. If$ under section 3$ Article EIII$ of the =onstitution$ the 2tate ma'$ in the interest of national &elfare$ transfer utilities to public o&nership upon pa'ment of /ust compensation$ there is

no reason &h' the 2tate ma' not re4uire a public utilit' to render serices in the general interest$ proided /ust compensation is paid therefor.

ltimatel'$ the beneficiar' of the interconnecting serice &ould be the users of both telephone s'stems$ so that the condemnation &ould be for

public use.

,hen the 'ureau subscribed to the trun; lines defendant ;new or should ha*e ;nown that their use b) the subscriber was /ore or less public and

all e/bracing in nature$ The acceptance b) the defendant of the pa)/ent of rentals despite its ;nowledge that the plaintiffs had e2tended the use

of the trun; lines to co//ercial purposes i/plies assent b) the defendant to such e2tended use$ 3ince this relationship has been /aintained for a

long ti/e and the public has patronized both telephone s)ste/s and their interconnection is to the public con*enience it is too late for the defendant

to clai/ /isuse of its facilities and it is not now at libert) to unilaterall) se*er the ph)sical connection of the trun; lines$ To uphold PL.TKs

contention is to subordinate the needs of the general public$

PLDT vs. NTC n! E>press Te0e=o*ni=tions $ETCI), $G.R. No. //(, O=to;er %/, %55()

F"CT3: TCI filed an application with public respondent #TC for the issuance of a Certificate of Public Con*enience and #ecessit) ACPC#B to

construct install establish operate and /aintain a Cellular ?obile Telephone 3)ste/ and an "lpha #u/eric Paging 3)ste/ in ?etro ?anila and in

the 3outhern Luzon regions with a pra)er for pro*isional authorit) to operate Phase " of its proposal within ?etro ?anila$

PL.T filed an 4pposition with a ?otion to .is/iss based pri/aril) on the following grounds: A1B TCI is not capacitated or ualified under its

legislati*e franchise to operate a s)ste/ wide telephone or networ; of telephone ser*ice such as the one proposed in its applicationJ AB TCI lac;s

the facilities needed and indispensable to the successful operation of the proposed cellular /obile telephone s)ste/J A@B PL.T has itself a pending

application with #TC Case #o$ %8%8 to install and operate a Cellular ?obile Telephone 3)ste/ for do/estic and international ser*ice not onl) in

?anila but also in the pro*inces and that under the prior operator( or &protection of in*est/ent( doctrine PL.T has the priorit) or preference in the

operation of such ser*iceJ and ADB the pro*isional authorit) if granted will result in needless unecono/ical and har/ful duplication a/ong others$

"fter e*aluating the reconsideration sought b) PL.T the #TC in 4ctober 16%% /aintained its ruling that liberall) construed applicantRs franchise

carries with it the pri*ilege to operate and /aintain a cellular /obile telephone ser*ice$

4n 1 .ece/ber 16%% #TC issued the first challenged 4rder$ 4pining that &public interest con*enience and necessit) further de/and a second

cellular /obile telephone ser*ice pro*ider and finds P!I?" F"CI e*idence showing applicantRs legal financial and technical capabilities to pro*ide

a cellular /obile ser*ice using the "?P3 s)ste/( #TC granted TCI pro*isional authorit) to install operate and /aintain a cellular /obile

telephone s)ste/ initiall) in ?etro ?anila Phase " onl) sub+ect to the ter/s and conditions set forth in the sa/e 4rder$

I33-: ,hether #TC acted without +urisdiction or with gra*e abuse of discretion a/ounting to lac; or e2cess of +urisdiction in granting

pro*isional authorit) to TCI$

HL.: #o$ There was no gra*e abuse of discretion tanta/ount to lac; of or e2cess of +urisdiction on the part of the #ational

Teleco//unications Co//ission$

The decisi*e considerations are public need public interest and the co//on good$ Those were the o*erriding factors which /oti*ated #TC in

granting pro*isional authorit) to TCI$ "rticle II 3ection D of the 16%7 Constitution recognizes the *ital role of co//unication and infor/ation innation building$ It is li;ewise a 3tate polic) to pro*ide the en*iron/ent for the e/ergence of co//unications structures suitable to the balanced flow

of infor/ation into out of and across the countr)$

.espite the fact that there is a *irtual /onopol) of the telephone s)ste/ in the countr) at present$ 3er*ice is sadl) inadeuate$ Custo/er de/ands

are hardl) /et whether fi2ed or /obile$ There is a unani/ous cr) to hasten the de*elop/ent of a /odern efficient satisfactor) and continuous

teleco//unications ser*ice not onl) in ?etro ?anila but throughout the archipelago$

Free co/petition in the industr) /a) also pro*ide the answer to a /uchdesired i/pro*e/ent in the ualit) and deli*er) of this t)pe of public utilit)

to i/pro*ed technolog) fast and hand) /obile ser*ice and reduced user dissatisfaction$ "fter all neither PL.T nor an) other public utilit) has a

constitutional right to a /onopol) position in *iew of the Constitutional proscription that no franchise certificate or authorization shall be e2clusi*e in

character or shall last longer than fift) A50B )ears$ "dditionall) the 3tate is e/powered to decide whether public interest de/ands that /onopolies

be regulated or prohibited A16%7 Constitution$ "rticle II 3ection 16B$

FULL TE2T1

Petitioner Philippine Long .istance Telephone Co/pan) APL.TB assails b) wa) of certiorari and Prohibition under !ule 85 two AB 4rders of public

respondent #ational Teleco//unications Co//ission A#TCB na/el) the 4rder of 1 .ece/ber 16%% granting pri*ate respondent 2press

Teleco//unications Co$ Inc$ ATCIB pro*isional authorit) to install operate and /aintain a Cellular ?obile Telephone 3)ste/ in ?etro?anila

APhase "B in accordance with specified conditions and the 4rder dated % ?a) 16%% den)ing reconsideration$



4n >une 165% !ep$ "ct #o$ 060 was enacted otherwise ;nown as "n "ct <ranting Feli2 "lberto and Co/pan) Incorporated a Franchise to

stablish !adio 3tations for .o/estic and Transoceanic Teleco//unications$ Feli2 "lberto 9 Co$ Inc$ AF"CIB was the original corporate na/e

which was changed to TCI with the a/end/ent of the "rticles of Incorporation in 168D$ ?uch later CLLC4? Inc$ was the na/e sought to be

adopted before the 3ecurities and 2change Co//ission but this was withdrawn and abandoned$

4n 1@ ?a) 16%7 alleging urgent public need TCI filed an application with public respondent #TC Adoc;eted as #TC Case #o$ %7%6B for the

issuance of a Certificate of Public Con*enience and #ecessit) ACPC#B to construct install establish operate and /aintain a Cellular ?obile

Telephone 3)ste/ and an "lpha #u/eric Paging 3)ste/ in ?etro ?anila and in the 3outhern Luzon regions with a pra)er for pro*isional authorit)

to operate Phase " of its proposal within ?etro ?anila$

PL.T filed an 4pposition with a ?otion to .is/iss based pri/aril) on the following grounds: A1B TCI is not capacitated or ualified under its

legislati*e franchise to operate a s)ste/wide telephone or networ; of telephone ser*ice such as the one proposed in its applicationJ AB TCI lac;s

the facilities needed and indispensable to the successful operation of the proposed cellular /obile telephone s)ste/J A@B PL.T has itself a pending

application with #TC Case #o$ %8%8 to install and operate a Cellular ?obile Telephone 3)ste/ for do/estic and international ser*ice not onl) in

?anila but also in the pro*inces and that under the prior operator or protection of in*est/ent doctrine PL.T has the priorit) or preference in the

operation of such ser*iceJ and ADB the pro*isional authorit) if granted will result in needless unecono/ical and har/ful duplication a/ong others$

In an 4rder dated 1 #o*e/ber 16%7 #TC o*erruled PL.TKs 4pposition and declared that !ep$ "ct #o$ 060 A165%B should be liberall) construed

as to include a/ong the ser*ices under said franchise the operation of a cellular /obile telephone ser*ice$

In the sa/e 4rder TCI was reuired to sub/it the certificate of registration of its "rticles of Incorporation with the 3ecurities and 2change

Co//ission the present capital and ownership structure of the co/pan) and such other e*idence oral or docu/entar) as /a) be necessar) to

pro*e its legal financial and technical capabilities as well as the econo/ic +ustifications to warrant the setting up of cellular /obile telephone and

paging s)ste/s$ The continuance of the hearings was also directed$

"fter e*aluating the reconsideration sought b) PL.T the #TC in 4ctober 16%% /aintained its ruling that liberall) construed applicantKs franchise

carries with it the pri*ilege to operate and /aintain a cellular /obile telephone ser*ice$

4n 1 .ece/ber 16%% #TC issued the first challenged 4rder$ 4pining that public interest con*enience and necessit) further de/and a second

cellular /obile telephone ser*ice pro*ider and finds P!I?" F"CI e*idence showing applicantKs legal financial and technical capabilities to pro*ide

a cellular /obile ser*ice using the "?P3 s)ste/ #TC granted TCI pro*isional authorit) to install operate and /aintain a cellular /obile

telephone s)ste/ initiall) in ?etro ?anila Phase " onl) sub+ect to the ter/s and conditions set forth in the sa/e 4rder$ 4ne of the conditions

prescribed ACondition #o$ 5B was that within ninet) A60B da)s fro/ date of the acceptance b) TCI of the ter/s and conditions of the pro*isional

authorit) TCI and PL.T shall enter into an interconnection agree/ent for the pro*ision of adeuate interconnection facilities between applicantKs

cellular /obile telephone switch and the public switched telephone networ; and shall +ointl) sub/it such interconnection agree/ent to the

Co//ission for appro*al$

In a ?otion to 3et "side the 4rder granting pro*isional authorit) PL.T alleged essentiall) that the interconnection ordered was in *iolation of dueprocess and that the grant of pro*isional authorit) was +urisdictionall) and procedurall) infir/$ 4n % ?a) 16%6 #TC denied reconsideration and set

the date for continuation of the hearings on the /ain proceedings$ This is the second uestioned 4rder$

PL.T urges us now to annul the #TC 4rders of 1 .ece/ber 16%% and % ?a) 16%6 and to order TCI to desist fro/ suspend andor discontinue

an) and all acts intended for its i/ple/entation$

4n 15 >une 16%6 we resol*ed to dis/iss the petition for its failure to co/pl) full) with the reuire/ents of Circular #o$ 1%%$ -pon satisfactor)

showing howe*er that there was in fact such co/pliance we reconsidered the order reinstated the Petition and reuired the respondents #TC

and TCI to sub/it their respecti*e Co//ents$

4n 7 Februar) 1660 we issued a Te/porar) !estraining 4rder en+oining #TC to Cease and .esist fro/ all or an) of its ongoing proceedings

and TCI fro/ continuing an) and all acts intended or related to or which will a/ount to the i/ple/entatione2ecution of its pro*isional authorit)$

This was upon PL.TKs urgent /anifestation that it had been ser*ed an #TC 4rder dated 1D Februar) 1660 directing i//ediate co/pliance with its

4rder of 1 .ece/ber 16%% otherwise the Co//ission shall be constrained to ta;e the necessar) /easures and bring to bear upon PL.T the fullsanctions pro*ided b) law$

,e reuired PL.T to post a bond of P 5?$ It has co/plied with the state/ent that it was postAingB the sa/e on its agree/ent andor consent to

ha*e the sa/e forfeited in fa*or of Pri*ate !espondent TCICLLC4? should the instant Petition be dis/issed for lac; of /erit$ TCI too;

e2ception to the sufficienc) of the bond considering its initial in*est/ent of appro2i/atel) P 5? but accepted the forfeiture proferred$

TCI /o*ed to ha*e the T!4 lifted which we denied on 8 ?arch 1660$ ,e stated howe*er that the inaugural cere/on) TCI had scheduled for

that da) could proceed as the sa/e was not co*ered b) the T!4$

PL.T relies on the following grounds for the issuance of the ,rits pra)ed for:

1$ !espondent #TCKs sub+ect order effecti*el) licensed andor authorized a corporate entit) without an) franchise to operate a public utilit)

legislati*e or otherwise to establish and operate a teleco//unications s)ste/$

$ The sa/e order *alidated stoc; transactions of a public ser*ice enterprise contrar) to andor in direct *iolation of 3ection 0AhB of the

Public 3er*ice "ct$

@$ !espondent #TC ad+udicated in the sa/e order a contro*erted /atter that was not heard at all in the proceedings under which it was

pro/ulgated$



"s correctl) pointed out b) respondents this being a special ci*il action for certiorari and Prohibition we onl) need deter/ine if #TC acted without

+urisdiction or with gra*e abuse of discretion a/ounting to lac; or e2cess of +urisdiction in granting pro*isional authorit) to TCI under the #TC

uestioned 4rders of 1 .ece/ber 16%% and % ?a) 16%6$

The case was set for oral argu/ent on 1 "ugust 1660 with the parties directed to address but not li/ited to the following issues: A1B the status

and co*erage of !ep$ "ct #o$ 060 as a franchiseJ AB the transfer of shares of stoc; of a corporation holding a CPC#J and A@B the principle and

procedure of interconnection$ The parties were thereafter reuired to sub/it their respecti*e ?e/oranda with which the) ha*e co/plied$

,e find no gra*e abuse of discretion on the part of #TC upon the following considerations:

1$ #TC >urisdiction

There can be no uestion that the #TC is the regulator) agenc) of the national go*ern/ent with +urisdiction o*er all teleco//unications entities$ It

is legall) clothed with authorit) and gi*en a/ple discretion to grant a pro*isional per/it or authorit)$ In fact #TC /a) on its own initiati*e grant

such relief e*en in the absence of a /otion fro/ an applicant$

3ec$ @$ Pro*isional !elief$ M -pon the filing of an application co/plaint or petition or at an) stage thereafter the 'oard /a) grant on /otion of the

pleaders or on its own initiati*e the relief pra)ed for based on the pleading together with the affida*its and supporting docu/ents attached thereto

without pre+udice to a final decision after co/pletion of the hearing which shall be called within thirt) A@0B da)s fro/ grant of authorit) as;ed for$

A!ule 15 !ules of Practice and Procedure 'efore the 'oard of Co//unications Anow #TCB$

,hat the #TC granted was such a pro*isional authorit) with a definite e2pir) period of eighteen A1%B /onths unless sooner renewed and which

/a) be re*o;ed a/ended or re*ised b) the #TC$ It is also li/ited to ?etro ?anila onl)$ ,hat is /ore the /ain proceedings are clearl) to continue

as stated in the #TC 4rder of % ?a) 16%6$

The pro*isional authorit) was issued after due hearing reception of e*idence and e*aluation thereof with the hearings attended b) *arious

oppositors including PL.T$ It was granted onl) after a pri/a facie showing that TCI has the necessar) legal financial and technical capabilities

and that public interest con*enience and necessit) so de/anded$

PL.T argues howe*er that a pro*isional authorit) is nothing short of a Certificate of Public Con*enience and #ecessit) ACPC#B and that it is

/erel) a distinction without a difference$ That is not so$ 'asic differences do e2ist which need not be elaborated on$ ,hat should be borne in

/ind is that pro*isional authorit) would be /eaningless if the grantee were not allowed to operate$ ?oreo*er it is clear fro/ the *er) 4rder of 1

.ece/ber 16%% itself that its scope is li/ited onl) to the first phase out of four of the proposed nationwide telephone s)ste/$ The installation and

operation of an alpha nu/eric paging s)ste/ was not authorized$ The pro*isional authorit) is not e2clusi*e$ Its lifeti/e is li/ited and /a) be

re*o;ed b) the #TC at an) ti/e in accordance with law$ The initial e2penditure of P1@0? /ore or less is rendered necessar) e*en under a

pro*isional authorit) to enable TCI to pro*e its capabilit)$ "nd as pointed out b) the 3olicitor <eneral on behalf of the #TC if what had been

granted were a CPC# it would constitute a final order or award re*iewable onl) b) ordinar) appeal to the Court of "ppeals pursuant to 3ection 6A@B

of 'P 'lg$ 16 and not b) certiorari before this Court$

The final outco/e of the application rests within the e2clusi*e prerogati*e of the #TC$ ,hether or not a CPC# would e*entuall) issue would

depend on the e*idence to be presented during the hearings still to be conducted and onl) after a full e*aluation of the proof thus presented$

$ The Co*erage of TCIKs Franchise

!ep$ "ct #o$ 060 grants TCI Afor/erl) F"CIB the right and pri*ilege of constructing installing establishing and operating in the entire Philippines

radio stations for reception and trans/ission of /essages on radio stations in the foreign and do/estic public fi2ed pointtopoint and public base

aeronautical and land /obile stations $$$ with the corresponding rela) stations for the reception and trans/ission of wireless /essages on

radiotelegraph) andor radiotelephon) $$$$ PL.T /aintains that the scope of the franchise is li/ited to radio stations and e2cludes telephone

ser*ices such as the establish/ent of the proposed Cellular ?obile Telephone 3)ste/ AC?T3B$ Howe*er in its 4rder of 1 #o*e/ber 16%7 the

#TC construed the technical ter/ radiotelephon) liberall) as to include the operation of a cellular /obile telephone s)ste/$ It said:

In resol*ing the said issue the Co//ission ta;es into consideration the different definitions of the ter/ radiotelephon)$ "s defined b) the #ewInternational ,ebster .ictionar) the ter/ radiotelephon) is defined as a telephone carried on b) aid of radiowa*es without connecting wires$ The

International Teleco//unications -nion AIT-B defines a radiotelephone call as a telephone call originating in or intended on all or part of its route

o*er the radio co//unications channels of the /obile ser*ice or of the /obile satellite ser*ice$ Fro/ the abo*e definitions while under !epublic

"ct 060 a s)ste/wide telephone or networ; of telephone ser*ice b) /eans of connecting wires /a) not ha*e been conte/plated it can be

construed liberall) that the operation of a cellular /obile telephone ser*ice which carries /essages either *oice or record with the aid of

radiowa*es or a part of its route carried o*er radio co//unication channels is one included a/ong the ser*ices under said franchise for which a

certificate of public con*enience and necessit) /a) be applied for$

The foregoing is the construction gi*en b) an ad/inistrati*e agenc) possessed of the necessar) special ;nowledge e2pertise and e2perience and

deser*es great weight and respect A"sturias 3ugar Central Inc$ *$ Co//issioner of Custo/s et al$ L16@@7 3epte/ber @0 1686 6 3C!" 817B$

It can onl) be set aside on proof of gross abuse of discretion fraud or error of law ATupas Local Chapter #o$ 676 *$ #L!C et al$ L805@@@

#o*e/ber 5 16%5 1@6 3C!" D7%B$ ,e discern none of those considerations sufficient to warrant +udicial inter*ention$

@$ The 3tatus of TCI Franchise

PL.T alleges that the TCI franchise had lapsed into none2istence for failure of the franchise holder to begin and co/plete construction of the

radio s)ste/ authorized under the franchise as e2plicitl) reuired in 3ection D of its franchise !ep$ "ct #o$ 060$ 1 PL.T also in*o;es Pres$

.ecree #o$ @8 enacted on #o*e/ber 167 which legislates the /andator) cancellation or in*alidation of all franchises for the operation of

co//unications ser*ices which ha*e not been a*ailed of or used b) the part) or parties in whose na/e the) were issued$



Howe*er whether or not TCI and before it F"CI in contra*ention of its franchise started the first of its radio teleco//unication stations within AB

)ears fro/ the grant of its franchise and co/pleted the construction within ten A10B )ears fro/ said dateJ and whether or not its franchise had

re/ained unused fro/ the ti/e of its issuance are uestions of fact be)ond the pro*ince of this Court besides the wellsettled procedural

consideration that factual issues are not sub+ects of a special ci*il action for certiorari ACentral 'an; of the Philippines *s$ Court of "ppeals <$!$ #o$

D1%56 % ?arch 16%6 171 3C!" D6J ga) *s$ scareal <$!$ #o$ DD1%6 % Februar) 16%5 1@5 3C!" 7%J Filipino ?erchantKs Insurance Co$ Inc$

*s$ Inter/ediate "ppellate Court <$!$ #o$ 718D0 7 >une 16%% 18 3C!" 886B$ ?oreo*er neither 3ection D !ep$ "ct #o$ 060 nor Pres$ .ecree

#o$ @8 should be construed as selfe2ecuting in wor;ing a forfeiture$ Franchise holders should be gi*en an opportunit) to be heard particularl) so

where as in this case TCI does not ad/it an) breach in consonance with the rudi/ents of fair pla)$ Thus the factual situation of this case differs

fro/ that in "ngeles !) Co$ *s$ Cit) of Los "ngeles A6 Pacific !eporter D60B cited b) PL.T where the grantee therein ad/itted its failure to

co/plete the conditions of its franchise and )et insisted on a decree of forfeiture$

?ore i/portantl) PL.TKs allegation parta;es of a Collateral attac; on a franchise !ep$ "ct #o$ 060B which is not allowed$ " franchise is a propert)

right and cannot be re*o;ed or forfeited without due process of law$ The deter/ination of the right to the e2ercise of a franchise or whether the right

to en+o) such pri*ilege has been forfeited b) nonuser is /ore properl) the sub+ect of the prerogati*e writ of uo warranto the right to assert which

as a rule belongs to the 3tate upon co/plaint or otherwise A3ections 1 and @ !ule 88 !ules of CourtB the reason being that the abuse of a

franchise is a public wrong and not a pri*ate in+ur)$ " forfeiture of a franchise will ha*e to be declared in a direct proceeding for the purpose brought

b) the 3tate because a franchise is granted b) law and its unlawful e2ercise is pri/aril) a concern of <o*ern/ent$

" $$$ franchise is $$$ granted b) law and its $$$ unlawful e2ercise is the concern pri/aril) of the <o*ern/ent$ Hence the latter as a rule is the part)

called upon to bring the action for such $$$ unlawful e2ercise of franchise$ AI=' =$ F!"#CI3C4 6% E168@ ed$ citing Cruz *s$ !a/os %D Phil$

8B$

D$ TCIKs 3toc; Transactions

TCI ad/its that in 168D the "lbertos as original owners of /ore than D0 of the outstanding capital stoc; sold their holdings to the 4rbes$ In

168% the "lbertos reacuired the shares the) had sold to the 4rbes$ In 16%7 the "lbertos sold /ore than D0 of their shares to Horacio alung$

Thereafter the present stoc;holders acuired their TCI shares$ ?oreo*er in 168D TCI had increased its capital stoc; fro/ PD0000$00 to

P@80000$00J and in 16%7 fro/ P@80000$00 to PD0?$

PL.T contends that the transfers in 16%7 of the shares of stoc; to the new stoc;holders a/ount to a transfer of TCIKs franchise which needs

Congressional appro*al pursuant to !ep$ "ct #o$ 060 and since such appro*al had not been obtained TCIKs franchise had been in*alidated$ The

pro*ision relied on reads in part as follows:

3CTI4# 10$ The grantee shall not lease transfer grant the usufruct of sell or assign this franchise nor the rights and pri*ileges acuired

thereunder to an) person fir/ co/pan) corporation or other co//ercial or legal entit) nor /erge with an) other person co/pan) or corporation

organized for the sa/e purpose without the appro*al of the Congress of the Philippines first had$ $$$

It should be noted howe*er that the foregoing pro*ision is directed to the grantee of the franchise which is the corporation itself and refers to a

sale lease or assign/ent of that franchise$ It does not include the transfer or sale of shares of stoc; of a corporation b) the latterKs stoc;holders$

The sale of shares of stoc; of a public utilit) is go*erned b) another law i$e$ 3ection 0AhB of the Public 3er*ice "ct ACo//onwealth "ct #o$ 1D8B$

Pursuant thereto the Public 3er*ice Co//ission Anow the #TCB is the go*ern/ent agenc) *ested with the authorit) to appro*e the transfer of /ore

than D0 of the subscribed capital stoc; of a teleco//unications co/pan) to a single transferee thus:

3C$ 0$ "cts reuiring the appro*al of the Co//ission$ 3ub+ect to established stations and e2ceptions and sa*ing pro*isions to the contrar) it

shall be unlawful for an) public ser*ice or for the owner lessee or operator thereof without the appro*al and authorization of the Co//ission

pre*iousl) had

222 222 222

AhB To sell or register in its boo;s the transfer or sale of shares of its capital stoc; if the result of that sale in itself or in connection with

another pre*ious sale shall be to *est in the transferee /ore than fort) per centu/ of the subscribed capital of said public ser*ice$ "n) transfer

/ade in *iolation of this pro*ision shall be *oid and of no effect and shall not be registered in the boo;s of the public ser*ice corporation$ #othing

herein contained shall be construed to pre*ent the holding of shares lawfull) acuired$ A"s a/ended b) Co/$ "ct #o$ D5DB$

In other words transfers of shares of a public utilit) corporation need onl) #TC appro*al not Congressional authorization$ ,hat transpired in TCI

were a series of transfers of shares starting in 168D until 16%7$ The appro*al of the #TC /a) be dee/ed to ha*e been /et when it authorized the

issuance of the pro*isional authorit) to TCI$ There was full disclosure before the #TC of the transfers$ In fact the #TC 4rder of 1 #o*e/ber

16%7 reuired TCI to sub/it its present capital and ownership structure$ Further TCI e*en filed a ?otion before the #TC dated % .ece/ber

16%7 or /ore than a )ear prior to the grant of pro*isional authorit) see;ing appro*al of the increase in its capital stoc; fro/ P@80000$00 to PD0?

and the stoc; transfers /ade b) its stoc;holders$

" distinction should be /ade between shares of stoc; which are owned b) stoc;holders the sale of which reuires onl) #TC appro*al and the

franchise itself which is owned b) the corporation as the grantee thereof the sale or transfer of which reuires Congressional sanction$ 3ince

stoc;holders own the shares of stoc; the) /a) dispose of the sa/e as the) see fit$ The) /a) not howe*er transfer or assign the propert) of a

corporation li;e its franchise$ In other words e*en if the original stoc;holders had transferred their shares to another group of shareholders the

franchise granted to the corporation subsists as long as the corporation as an entit) continues to e2ist The franchise is not thereb) in*alidated b)

the transfer of the shares$ " corporation has a personalit) separate and distinct fro/ that of each stoc;holder$ It has the right of continuit) or perpetual succession ACorporation Code 3ec$ B$

To all appearances the stoc; transfers were not +ust for the purpose of acuiring the TCI franchise considering that as heretofore stated a series

of transfers was in*ol*ed fro/ 168D to 16%7$ "nd contrar) to PL.TKs assertion the franchise was not the onl) propert) of TCI of /eaningful



*alue$ The zero boo; *alue of TCI assets as reflected in its balance sheet was plausibl) e2plained as due to the accu/ulated depreciation o*er

the )ears entered for accounting purposes and was not reflecti*e of the actual *alue that those assets would co//and in the /ar;et$

'ut again whether TCI has offended against a pro*ision of its franchise or has sub+ected it to /isuse or abuse /a) /ore properl) be inuired

into in uo warranto proceedings instituted b) the 3tate$ It is the condition of e*er) franchise that it is sub+ect to a/end/ent alteration or repeal

when the co//on good so reuires A16%7 Constitution "rticle II 3ection 11B$

5$ The #TC Interconnection 4rder

In the pro*isional authorit) granted b) #TC to TCI one of the conditions i/posed was that the latter and PL.T were to enter into an

interconnection agree/ent to be +ointl) sub/itted to #TC for appro*al$

PL.T *ehe/entl) opposes interconnection with its own public switched telephone networ;$ It contends: that while PL.T welco/es interconnections

in the furtherance of public interest onl) parties who can establish that the) ha*e *alid and subsisting legislati*e franchises are entitled to appl) for

a CPC# or pro*isional authorit) absent which #TC has no +urisdiction to grant the/ the CPC# or interconnection with PL.TJ that the 7@ telephone

s)ste/s operating all o*er the Philippines ha*e a *iabilit) and feasibilit) independent of an) interconnection with PL.TJ that the #TC is not

e/powered to co/pel such a pri*ate raid on PL.TKs legiti/ate inco/e arising out of its gigantic in*est/entJ that it is not public interest but purel)

a pri*ate and selfish interest which will be ser*ed b) an interconnection under TCIKs ter/sJ and that to co/pel PL.T to interconnect /erel) to

gi*e *iabilit) to a prospecti*e co/petitor which cannot stand on its own feet cannot be +ustified in the na/e of a none2istent public need APL.T

?e/orandu/ pp$ D% and 50B$

PL.T cannot +ustifiabl) refuse to interconnect$

!ep$ "ct #o$ 8%D6 or the ?unicipal Telephone "ct of 16%6 appro*ed on % Februar) 1660 /andates interconnection pro*iding as it does that all

do/estic teleco//unications carriers or utilities $$$ shall be interconnected to the public switch telephone networ;$ 3uch regulation of the use and

ownership of teleco//unications s)ste/s is in the e2ercise of the plenar) police power of the 3tate for the pro/otion of the general welfare$ The

16%7 Constitution recognizes the e2istence of that power when it pro*ides$

3C$ 8$ The use of propert) bears a social function and all econo/ic agents shall contribute to the co//on good$ Indi*iduals and pri*ate groups

including corporations cooperati*es and si/ilar collecti*e organizations shall ha*e the right to own establish and operate econo/ic enterprises

sub+ect to the dut) of the 3tate to pro/ote distributi*e +ustice and to inter*ene when the co//on good so de/ands A"rticle IIB$

The interconnection which has been reuired of PL.T is a for/ of inter*ention with propert) rights dictated b) the ob+ecti*e of go*ern/ent to

pro/ote the rapid e2pansion of teleco//unications ser*ices in all areas of the Philippines $$$ to /a2i/ize the use of teleco//unications facilities

a*ailable $$$ in recognition of the *ital role of co//unications in nation building $$$ and to ensure that all users of the public teleco//unications

ser*ice ha*e access to all other users of the ser*ice where*er the) /a) be within the Philippines at an acceptable standard of ser*ice and at

reasonable cost A.4TC Circular #o$ 60D%B$ -ndoubtedl) the enco/passing ob+ecti*e is the co//on good$ The #TC as the regulator) agenc)

of the 3tate /erel) e2ercised its delegated authorit) to regulate the use of teleco//unications networ;s when it decreed interconnection$

The i/portance and e/phasis gi*en to interconnection dates bac; to ?inistr) Circular #o$ %%1 dated 8 .ece/ber 16% pro*iding:

3ec$ 1$ That the go*ern/ent encourages the pro*ision and operation of public /obile telephone ser*ice within local subbase stations particularl)

in the highl) co//ercialized areasJ

3ec$ 5$ That in the e*ent the authorit) to operate said ser*ice be granted to other applicants other than the franchise holder the franchise operator

shall be under obligation to enter into an agree/ent with the do/estic telephone networ; under an interconnection agree/entJ

.epart/ent of Transportation and Co//unication A.4TCB Circular #o$ %71%% issued in 16%7 also decrees:

1$ "ll public co//unications carriers shall interconnect their facilities pursuant to co/parati*el) efficient interconnection ACIB as defined b)

the #TC in the interest of econo/ic efficienc)$

The sharing of re*enue was an additional feature considered in .4TC Circular #o$ 60D% dated 1D >une 1660 la)ing down the Polic) on

Interconnection and !e*enue 3haring b) Public Co//unications Carriers thus:

,H!"3 it is the ob+ecti*e of go*ern/ent to pro/ote the rapid e2pansion of teleco//unications ser*ices in all areas of the PhilippinesJ

,H!"3 there is a need to /a2i/ize the use of teleco//unications facilities a*ailable and encourage in*est/ent in teleco//unications

infrastructure b) suitabl) ualified ser*ice pro*idersJ

,H!"3 in recognition of the *ital role of co//unications in nation building there is a need to ensure that all users of the public

teleco//unications ser*ice ha*e access to all other users of the ser*ice where*er the) /a) be within the Philippines at an acceptable standard of

ser*ice and at reasonable cost$

,H!F4! $$$ the following .epart/ent policies on interconnection and re*enue sharing are hereb) pro/ulgated:

1$ "ll facilities offering public teleco//unication ser*ices shall be interconnected into the nationwide teleco//unications networ;s$

222 222 222

D$ The interconnection of networ;s shall be effected in a fair and nondiscri/inator) /anner and within the shortest ti/efra/e practicable$

5$ The precise points of interface between ser*ice operators shall be as defined b) the #TCJ and the apportion/ent of costs and di*ision of

re*enues resulting fro/ interconnection of teleco//unications networ;s shall be as appro*ed andor prescribed b) the #TC$



222 222 222

3ince then the #TC on 1 >ul) 1660 issued ?e/orandu/ Circular #o$ 71@60 prescribing the !ules and !egulations <o*erning the

Interconnection of Local Telephone 2changes and Public Calling 4ffices with the #ationwide Teleco//unications #etwor;s the 3haring of

!e*enue .eri*ed Therefro/ and for 4ther Purposes$

The #TC order to interconnect allows the parties the/sel*es to discuss and agree upon the specific ter/s and conditions of the interconnection

agree/ent instead of the #TC itself la)ing down the standards of interconnection which it can *er) well i/pose$ Thus it is that PL.T cannot

+ustifiabl) clai/ denial of clue process$ It has been heard$ It will continue to be heard in the /ain proceedings$ It will surel) heard in the negotiations

concerning the interconnection agree/ent$

"s disclosed during the hearing the interconnection sought b) TCI is b) no /eans a parasitic dependence on PL.T$ The TCI s)ste/ can

operate on its own e*en without interconnection but it will be li/ited to its own subscribers$ ,hat interconnection see;s to acco/plish is to enable

the s)ste/ to reach out to the greatest nu/ber of people possible in line with go*ern/ental policies laid down$ Cellular phones can access PL.T

units and *ice *ersa in as wide an area as attainable$ ,ith the broader reach public interest and con*enience will be better ser*ed$ To be sure

TCI could pro*ide no /ean co/petition Aalthough PL.T /aintains that it has nothing to fear fro/ the innocuous interconnectionB and eat into

PL.TKs own toll re*enue crea/ PL.T re*enue in its own wordsB but all for the e*entual benefit of all that the s)ste/ can reach$

8$ -lti/ate Considerations

The decisi*e consideration are public need public interest and the co//on good$ Those were the o*erriding factors which /oti*ated #TC in

granting pro*isional authorit) to TCI$ "rticle II 3ection D of the 16%7 Constitution recognizes the *ital role of co//unication and infor/ation in

nation building$ It is li;ewise a 3tate polic) to pro*ide the en*iron/ent for the e/ergence of co//unications structures suitable to the balanced flow

of infor/ation into out of and across the countr) A"rticle =I 3ection 10 Ibid$B$ " /odern and dependable co//unications networ; rendering

efficient and reasonabl) priced ser*ices is also indispensable for accelerated econo/ic reco*er) and de*elop/ent$ To these public and national

interests public utilit) co/panies /ust bow and )ield$

.espite the fact that there is a *irtual /onopol) of the telephone s)ste/ in the countr) at present$ ser*ice is sadl) inadeuate$ Custo/er de/ands

are hardl) /et whether fi2ed or /obile$ There is a unani/ous cr) to hasten the de*elop/ent of a /odern efficient satisfactor) and continuous

teleco//unications ser*ice not onl) in ?etro ?anila but throughout the archipelago$ The need therefor was dra/aticall) e/phasized b) the

destructi*e earthua;e of 18 >ul) 1660$ It /a) be that users of the cellular /obile telephone would initiall) be li/ited to a few and to highl)

co//ercialized areas$ Howe*er it is a step in the right direction towards the enhance/ent of the teleco//unications infrastructure the e2pansion

of teleco//unications ser*ices in hopefull) all areas of the countr) with chances of co/plete disruption of co//unications /ini/ized$ It will thus

i/pact on the total de*elop/ent of the countr)Ks teleco//unications s)ste/s and redound to the benefit of e*en those who /a) not be able to

subscribe to TCI$

Free co/petition in the industr) /a) also pro*ide the answer to a /uchdesired i/pro*e/ent in the ualit) and deli*er) of this t)pe of public utilit)

to i/pro*ed technolog) fast and hand) /obile ser*ice and reduced user dissatisfaction$ "fter all neither PL.T nor an) other public utilit) has a

constitutional right to a /onopol) position in *iew of the Constitutional proscription that no franchise certificate or authorization shall be e2clusi*e in

character or shall last longer than fift) A50B )ears Aibid$ 3ection 11J "rticle I= 3ection 5 167@ ConstitutionJ "rticle I= 3ection % 16@5ConstitutionB$ "dditionall) the 3tate is e/powered to decide whether public interest de/ands that /onopolies be regulated or prohibited A16%7

Constitution$ "rticle II 3ection 16B$

,H!F4! finding no gra*e abuse of discretion tanta/ount to lac; of or e2cess of +urisdiction on the part of the #ational Teleco//unications

Co//ission in issuing its challenged 4rders of 1 .ece/ber 16%% and % ?a) 16%6 in #TC Case #o$ %7@6 this Petition is .I3?I33. for lac; of

/erit$ The Te/porar) !estraining 4rder heretofore issued is LIFT.$ The bond issued as a condition for the issuance of said restraining 4rder is

declared forfeited in fa*or of pri*ate respondent 2press Teleco//unications Co$ Inc$ Costs against petitioner$

34 4!.!.$

Rep*;0i= o: t8e P8i0ippines vs. V!. De Cste00vi $G.R. No. L-('()

Facts:

In 16D7 the republic through the "r/ed Forces of the Philippines A"FPB entered into a lease agree/ent o*er a land in Pa/panga with Castell*i on

a )earto)ear basis$ ,hen Castell*i ga*e notice to ter/inate the lease in 1658 the "FP refused because of the per/anent installations and other

facilities worth al/ost P500000$00 that were erected and alread) established on the propert)$ 3he then instituted an e+ect/ent proceeding against

the "FP$ In 1656 howe*er the republic co//enced the e2propriation proceedings for the land in uestion$

Issue: ,hether or not the co/pensation should be deter/ined as of 16D7 or 1656$

!uling:

The 3upre/e Court ruled that the ta;ing should not be rec;oned as of 16D7 and that +ust co/pensation should not be deter/ined on the basis of

the *alue of the propert) that )ear $

The reuisites for ta;ing are:

1$ The e2propriator /ust enter a pri*ate propert)J

$ The entr) /ust be for /ore than a /o/entar) periodJ



@$ It /ust be under warrant or color of authoritiesJ

D$ The propert) /ust be de*oted for public use or otherwise infor/all) appropriated or in+uriousl) affectedJ and

5$ The utilization of the propert) for public use /ust be such a wa) as to oust the owner and depri*e hi/ of beneficial en+o)/ent of the propert)$

4nl) reuisites 1 @ and D are present$ It is clear therefore that the &ta;ing( of Castell*iRs propert) for purposes of e/inent do/ain cannot be

considered to ha*e ta;en place in 16D7 when the republic co//enced to occup) the propert) as lessee thereof$

!euisite nu/ber is not present according to the 3upre/e Court &/o/entar)( when applied to possession or occupanc) of real propert) should

be construed to /ean &a li/ited period( not indefinite or per/anent$ The aforecited lease contract was for a period of one )ear renewable fro/

)ear to )ear$ The entr) on the propert) under the lease is te/porar) and considered transitor)$ The fact that the !epublic through "FP

constructed so/e installations of a per/anent nature does not alter the fact that the entr) into the lant was transitor) or intended to last a )ear

although renewable fro/ )ear to )ear b) consent of the owner of the land$ ') e2press pro*ision of the lease agree/ent the republic as lessee

undertoo; to return the pre/ises in substantiall) the sa/e condition as at the ti/e the propert) was first occupied b) the "FP$ It is clai/ed that the

intention of the lessee was to occup) the land per/anentl) as /a) be inferred fro/ the construction of per/anent i/pro*e/ents$ 'ut this

&intention( cannot pre*ail o*er the clear and e2press ter/s of the lease contract$

The 5th reuire/ent is also lac;ing$ In the instant case the entr) of the !epublic into the propert) and its utilization of the sa/e for public use did

not oust Castell*i and depri*e her of all beneficial en+o)/ent of the propert)$ Cstell*i re/ained as owner and was continuousl) recognized as

owner b) the !epublic as shown b) the renewal of the lease contract fro/ )ear to )ear and b) the pro*ision in the lease contract whereb) the

!epublic undertoo; to return the propert) to Castell*i when the lease was ter/inated$ #either was Castell*i depri*ed of all the beneficial en+o)/ent

of the propert) because the !epublic was bound to pa) and had been paing Castell*i the agreed /onthl) rentals until the ti/e when it filed the

co/plaint for e/inent do/ain on >une 8 1656$

It is clear therefore that the &ta;ing( of Castell*iRs propert) for purposes of e/inent do/ain cannot be considered to ha*e ta;en place in 16D7 when

the !epublic co//enced to occup) the propert) as lessee thereof and that the +ust co/pensation to be paid for the Castell*iRs propert) should not

be deter/ined on the basis of the *alue of the propert) as of that )ear$ The lower court did not co//it an error when it held that the &ta;ing( of the

propert) under e2propriation co//enced with the filing of the co/plaint in this case$

-nder 3ec$ D !ule 87 of the !ules of Court &+ust co/pensation( is to be deter/ined as of the date of the filing of the co/plaint$ The 3upre/e

Court has ruled that when the ta;ing of the propert) sought to be e2propriated coincides with the co//ence/ent of the e2propriation proceedings

or ta;es place subseuent to the filing of the co/plaint for e/inent do/ain the +ust co/pensation should be deter/ined as of the date of the filing

of the co/plaint$

Unite! Sttes v. L?n8, %// U.S. 4 $%5(6)

3)llabus

"ll pri*ate propert) is held sub+ect to the necessities of go*ern/ent and the right of e/inent do/ain underlies all such rights of propert)$

,hen the -nited 3tates go*ern/ent appropriates propert) which it does not clai/ as its own it does so under an i/plied contract that it will pa) the

*alue of the propert) it so appropriates$

,hen it is alleged in an action that the go*ern/ent of the -nited 3tates in the e2ercise of its powers of e/inent do/ain and regulation of

co//erce through officers and agents dul) e/powered thereto b) acts of Congress places da/s training walls and other obstructions in the

3a*annah !i*er in such /anner as to hinder its natural flow and to raise the water so as to o*erflow the land of plaintiff along the ban;s to such an

e2tent as to cause a total destruction of its *alue and the go*ern/ent does not den) the ownership ad/its that the wor; was done b) authorit) of

Congress and si/pl) denies that the wor; has produced the alleged in+ur) and destruction the circuit court of the -nited 3tates has +urisdiction to

inuire whether the acts done b) the officers of the -nited 3tates under the direction of Congress ha*e resulted in such an o*erflow and in+ur) of

the land as to render it absolutel) *alueless and if thereb) the propert) was in conte/plation of law ta;en and appropriated b) the go*ern/ent to

render +udg/ent against it for the *alue of the propert) so ta;en and appropriated$

,here the go*ern/ent of the -nited 3tates b) the construction of a da/ or other public wor;s so floods lands belonging to an indi*idual as to

totall) destro) its *alue there is a ta;ing of pri*ate propert) within the scope of the Fifth "/end/ent$

The proceeding /ust be regarded as an actual appropriation of the land including the possession and the fee and when the a/ount awarded as

co/pensation is paid the title the fee and whate*er rights /a) attach thereto pass to the go*ern/ent which beco/es henceforth the full owner$

#otwithstanding that the wor; causing the in+ur) was done in i/pro*ing the na*igabilit) of a na*igable ri*er and b) the Constitution Congress is

gi*en full control o*er such i/pro*e/ents the in+uries cannot be regarded as purel) conseuential and the go*ern/ent cannot appropriate

propert) without being liable to the obligation created b) the Fifth "/end/ent of pa)ing +ust co/pensation$

4n Februar) D 1%67 defendants in error co//enced their action in the Circuit Court of the -nited 3tates for the .istrict of 3outh Carolina to

reco*er of the -nited 3tates the su/ of U10000 as co/pensation for certain real estate Abeing a part of a plantation ;nown as =erzenobreB ta;en

and appropriated b) the defendant$

The petition alleged in the first paragraph the citizenship and residence of the petitionersJ in the second that the) had a clai/ against the -nited

3tates under an i/plied contract for co/pensation for the *alue of propert) ta;en b) the -nited 3tates for public useJ third that the) were the

owners as tenants in co//on of the plantation and in the fourth and se*enth paragraphs:



Fourth$ That for se*eral )ears continuousl) and now continuousl) the said go*ern/ent of the -nited 3tates of "/erica in the e2ercise of its power

of e/inent do/ain under the Constitution of the -nited 3tates and b) authorit) of the acts of Congress dul) e/powering its officers and agents

thereto in that case /ade and pro*ided did erect build and /aintain and continuousl) since ha*e been erecting building and /aintaining and

are now building erecting and /aintaining in and across the said 3a*annah !i*er in the bed of the said 3a*annah !i*er certain da/s training

walls and other obstructions obstructing and hindering the natural flow of the said 3a*annah !i*er through in and along the natural bed thereof

and raising the said 3a*annah !i*er feet at the point of and abo*e the said obstructions and da/s in the bed of the said 3a*annah !i*er and

causing the said waters of the 3a*annah !i*er aforesaid to be ;ept bac; and to flow bac; and to be raised and ele*ated abo*e the natural height of

the 3a*annah !i*er along its natural bed at the points of the said da/s training walls and obstructions and at points abo*e the said da/s training

walls and obstructions in said ri*er$

3e*enth$ "nd )our petitioners further show that the said acts of the go*ern/ent of the -nited 3tates as aforesaid ha*e been done and are beingdone lawfull) b) the officers and agents of the -nited 3tates under the authorit) of the -nited 3tates in the e2ercise of its powers of e/inent do/ain

and regulation of co//erce under the Constitution of the -nited 3tates and the laws of Congress for the public purpose of the i/pro*e/ent of the

harbor of 3a*annah and deepening the waters of the 3a*annah !i*er at the port of 3a*annah a port of entr) of the -nited 3tates and seaport of

the -nited 3tates of "/erica situated within the 3tate of <eorgia on the 3a*annah !i*er and with the purpose of deepening and enlarging the

na*igable channel and highwa) for co//erce of the said 3a*annah !i*er for the public use purpose and benefit of interstate and foreign and

international trade and co//erce and for other public purposes uses and benefits$

The re/aining paragraphs set forth the effect of the placing b) the go*ern/ent of the da/s restraining walls and other obstructions in the ri*er

together with the *alue of the propert) appropriated b) the o*erflow$ The answer of the go*ern/ent a*erred:

First$ That this defendant has no ;nowledge or infor/ation sufficient to for/ a belief as to the truth of the allegations contained in the first and third

paragraphs of the said petition and co/plaint$

3econd$ That this defendant denies all of the allegations contained in the second fourth fifth si2th se*enth and eighth paragraphs of the said

petition and co/plaint e2cept so /uch of the fourth paragraph as alleges that the said -nited 3tates heretofore erected certain da/s in the

3a*annah !i*er pursuant to power *ested in it b) law and e2cept so /uch of the se*enth paragraph as alleges that the said da/s heretofore

erected b) the -nited 3tates were lawfull) erected b) its officers and agents$

For a further defense the statute of li/itations was pleaded$ The case ca/e on for trial before the court without a +ur) which /ade findings of fact

and fro/ the/ deduced conclusions of law and entered a +udg/ent against the defendant for the su/ of U10000$ The findings were to the effect

that the plaintiffs were the owners of the plantation deri*ing title b) proper /esne con*e)ances fro/ a grant b) the lordKs proprietors of 3outh

Carolina /ade in 17@8$ 4ther findings pertinent to the uestions which /ust be considered in deciding this case were as follows:

I=$ " certain parcel of these plantations /easuring about D0 acres had been reclai/ed b) drainage and had been in actual continued use for

se*ent) )ears and upwards as a rice plantation used solel) for this purpose$ This rice plantation was dependent for its irrigation upon the waters of

the 3a*annah !i*er and its ditches drains and canals through and b) which the waters of the ri*er were flowed in and upon the lands and were

then drained therefro/ were adapted to the natural le*el of the said 3a*annah !i*er and dependent for their proper drainage and culti*ation upon

the /aintenance of the natural flow of the said ri*er in through and o*er its natural channel along its natural bed to the waters of the ocean$

=$ This portion of the plantation fronting on the r i*er and dedicated to the culture of rice e2tended al/ost up to if not uite to low water /ar; and

a large part of it was between /ean high water and low water /ar; protected fro/ the ri*er b) an e/ban;/ent$ Through this e/ban;/ent trun;s

or waterwa)s were constructed with flood gates therein$ The outer opening of the trun; was about a foot or a little less abo*e the /ean low water

/ar; of the ri*er in which the tide ebbs and flows$ ,hen it is desired to flow the lands the flood gates are opened and the water co/es in$ ,hen it

is desired to draw off this water and to effect the drainage of the lands the flood gates are opened at low water and the water escapes$ It is

essential that the outlets of the trun;s or waterwa)s should alwa)s be abo*e the /ean low water /ar;$

The facts found show that b) reason of the obstruction in the 3a*annah !i*er the water has been directl) bac;ed up against the e/ban;/ent on

the ri*er and the ban;s on and in this plantation the superinduced addition of water actuall) in*ading it and destro)ing its drainage and lea*ing it

useless for all practical purposes$ The go*ern/ent does not in a sense ta;e this land for the purposes of putting its obstructions on it$ 'ut it forces

bac; the water of the ri*er on the land as a result necessar) to its purpose without which its purpose could not be acco/plished$ For the purpose of

the go*ern/ent that water in the ri*er /ust be raised$ The ban;s of this plantation /ateriall) assist this operation for b) their resistance the water

is ;ept in the channel$ The bac;ing up of the water against the ban;s to create this resistance raises the water in the plantation and destro)s the

drainage of the plantation$ This is a ta;ing$ KIt wouldK sa)s ?r$ >ustice ?iller

be a *er) curious and unsatisfactor) result if in construing a pro*ision of constitutional law alwa)s understood to ha*e been adopted for protection

and securit) to the rights of the indi*idual as against the go*ern/ent and which had recei*ed the co//endation of +urists states/en and

co//entators as placing the +ust principles of the co//on law on that sub+ect be)ond the power of ordinar) legislation to change or control the/ it

shall be held that if the go*ern/ent refrains fro/ the absolute con*ersion of real propert) to the uses of the public it can destro) its *alue entirel)

can inflict irreparable and per/anent in+ur) to an) e2tentJ can in effect sub+ect to total destruction without /a;ing an) co/pensation because in

the narrowest sense of that word it has not been ta;en for the public use$

Pu/pell) *$ <reen 'a) Co$ 1@ ,all$ 177 %0 -$ 3$ 17%$ In that case the bac;ing up of water on land was held to be a ta;ing$

=I$ The plantation of plaintiffs being actuall) in*aded b) superinduced addition of water directl) caused b) the go*ern/ent da/s and obstructions

bac;ing up the water of the 3a*annah !i*er and raising the water le*el at and in the rice plantation and /a;ing it unfit for rice culti*ation or for an)

other ;nown agriculture and plaintiffs ha*ing been co/pelled thereb) to abandon the plantation and this actual and practical ouster of possession

being continued and per/anent b) reason of the per/anent condition of the flooding of the plantation and the plantation being thereb) now anirreclai/able bog of no *alue/a;es the action of the go*ern/ent a ta;ing of lands for public purposes within the /eaning of the Fifth "/end/ent

for which co/pensation is due to the plaintiffs$ Pu/pell) *$ <reen 'a) Co$ 1@ ,all$ 1%J ?ugler *$ Vansas 1@ -$ 3$ 88%$

=II$ The go*ern/ent has not gone into actual occupanc) of this land but b) reason of these da/s and obstructions /ade necessar) b) this public

wor; and fulfilling its purpose the water in the 3a*annah !i*er has been raised at the plaintiffsK plantation and has been bac;ed up on it and



re/ains on it so that the drainage has been destro)ed and ditches filled up and superadded water per/anentl) ;ept on the land and forced up into

it /a;ing it wholl) unfit for culti*ation and the plaintiffs ha*e thereb) been practicall) and actuall) ousted of their possession$ This is ta;ing of the

land for public purposes for which co/pensation /ust be pro*ided$ Pu/pell) *$ <reen 'a) Co$ 1@ ,all$ 1%1$

The case in*ol*ing the application of the Constitution of the -nited 3tates was brought b) writ of error directl) to this Court$

?!$ >-3TIC '!,! deli*ered the opinion of the Court$

There are three principal uestions in this caseN First did the circuit court ha*e +urisdictionNJ second was there a ta;ing of the land within the

/eaning of the Fifth "/end/entNJ and third if there was a ta;ing was the go*ern/ent sub+ect to the obligation of /a;ing co/pensation thereforN

.id the circuit court ha*e +urisdictionN It /a) be pre/ised that this uestion was not raised in the circuit court nor was it presented to this Court on

the first argu/ent but onl) upon the reargu/ent$ This o/ission on the part of the learned counsel for the go*ern/ent is certainl) suggesti*e$

#e*ertheless as the uestion now for the first ti/e presented is one of +urisdiction it /ust be considered and deter/ined$ To sustain the challenge

of +urisdiction it is insisted b) the go*ern/ent that there was no i/plied contract but si/pl) tortious acts on the part of its officers and Hill *$ -nited

3tates 1D6 -$ 3$ 56@ and 3chillinger *$ -nited 3tates 155 -$ 3$ 18@ are relied upon$ Let us see what those cases were and what the) decided$ In

the for/er the plaintiff sued to reco*er fro/ the -nited 3tates for the use and occupation of land for a lighthouse$ The land upon which the

lighthouse was built was sub/erged land in Chesapea;e 'a)$ The go*ern/ent pleaded that it had a para/ount right to the use of the land and that

plea was de/urred to$ It was held that the circuit court had no +urisdiction and in the opinion deli*ered b) ?r$ >ustice <ra) it was said after

referring to se*eral cases App$ 1D6 -$ 3$ 56%566B:

In Langford *$ -nited 3tates it was accordingl) ad+udged that when an officer of the -nited 3tates too; and held possession of land of a pri*ate

citizen under a clai/ that it belonged to the go*ern/ent the -nited 3tates could not be charged upon an i/plied obligation to pa) for its use and

occupation$

It has since been held that if the -nited 3tates appropriates to a public use land which the) ad/it to be pri*ate propert) the) /a) be held as upon

an i/plied contract to pa) its *alue to the owner$ -nited 3tates *$ <reat Falls ?anufacturing Co/pan) 11 -$ 3$ 8D5 and 1D -$ 3$ 1D -$3$ 5%1$

It has li;ewise been held that the -nited 3tates /a) be sued in the Court of Clai/s for the use of a patent for an in*ention the plaintiffKs right in

which the) ha*e ac;nowledged$ Hollister *$ 'enedict ?anufacturing Co/pan) 11@ -$ 3$ 56J -nited 3tates *$ Pal/er 1% -$ 3$ 8$ 'ut in each of

these cases the title of the plaintiff was ad/itted and in none of the/ was an) doubt thrown upon the correctness of the decision in LangfordKs

case$ 3ee 3chillinger *$ -nited 3tates D Ct$Cl$ 7%$

The case at bar is go*erned b) LangfordKs case$ It was not alleged in this petition nor ad/itted in the plea that the -nited 3tates had e*er in an)

wa) ac;nowledged an) right of propert) in the plaintiff as against the -nited 3tates$ The plaintiff asserted a title in the land in uestion with the

e2clusi*e right of building thereon and clai/ed da/ages of the -nited 3tates for the use and occupation of the land for a lighthouse$ The -nited

3tates positi*el) and precisel) pleaded that the land was sub/erged under the waters of Chesapea;e 'a) one of the na*igable waters of the

-nited 3tates and that the -nited 3tates Kunder the law for the purpose of a lighthouse has a para/ount right to its use as against the plaintiff or

an) other personK and the plaintiff de/urred to this plea$

In the other case it appeared that the architect of the capitol contracted with <$ ,$ Coo; for the la)ing of pa*e/ent in the capitol grounds$ Thecontractor in la)ing the pa*e/ent infringed as petitioners clai/ed upon rights granted to the/ b) patent$ Thereafter this suit was brought not

against the part) guilt) of the alleged infringe/ent but against the -nited 3tates which had accepted the pa*e/ent in the construction of which as

petitioners clai/ed the contractor had infringed upon their rights$ In the opinion it was said Ap$ 155 -$ 3$ 170B:

Here the clai/ants ne*er authorized the use of the patent right b) the go*ern/entJ ne*er consented to but alwa)s protested against it

threatening to interfere b) in+unction or other proceedings to restrain such use$ There was no act of Congress in ter/s directing or e*en b)

i/plication suggesting the use of the patent$ #o officer of the go*ern/ent directed its use and the contract which was e2ecuted b) Coo; did not

na/e or describe it$ There was no recognition b) the go*ern/ent or an) of its officers of the fact that in the construction of the pa*e/ent there was

an) use of the patent or that an) appropriation was being /ade of clai/antKs propert)$ The go*ern/ent proceeded as though it were acting onl) in

the /anage/ent of its own propert) and the e2ercise of its own rights and without an) trespass upon the rights of the clai/ants$ There was no

point in the whole transaction fro/ its co//ence/ent to its close where the /inds of the parties /et or where there was an)thing in the

se/blance of an agree/ent$ 3o not onl) does the petition count upon a tort but also the findings show a tort$ That is the essential fact underl)ing

the transaction and upon which rests e*er) pretense of a right to reco*er$ There was no suggestion of a wai*er of the tort or a pretense of an)

i/plied contract until after the decision of the Court of Clai/s that it had no +urisdiction o*er an action to reco*er for the tort$

How different is the case at barW The go*ern/ent did not den) the title of the plaintiffs$ It a*erred in the answer si/pl) that it had no ;nowledge or

infor/ation sufficient to for/ a belief but did not couple such a*er/ent with an) denial nor did it pretend that it owned the propert) or had a

para/ount proprietar) right to its possession$ It did not put in issue the uestion of title but rested upon a denial that the acts its officers had done

b) its direction had o*erflowed the land and wrought the in+ur) as alleged or that such o*erflow and in+ur) created an i/plied contract and also

upon the bar of the statute of li/itations$ #owhere in the record did it set up an) title to the propert) antagonistic to that clai/ed b) the plaintiffs$ It

si/pl) denied responsibilit) for what it had caused to be done and pleaded that if it had e*er been liable the statute of li/itations had wor;ed a

bar$ #o officer of the go*ern/ent as in the Langford case clai/ed that the propert) found b) the court to be the propert) of the plaintiffs belonged

to the go*ern/ent$ ,hile there was no for/al ad/ission of record that the land belonged to the plaintiffs the case was tried alone upon the theor)

that the go*ern/ent could not be held responsible for what it had done$ It did not repudiate the actions of its officers and agents but on the

contrar) in ter/s ad/itted that the) acted b) authorit) of Congress and that all that the) did was lawfull) done$ 3o that if the o*erflow and

destruction of this propert) was as we shall presentl) inuire a ta;ing and appropriation within the scope of the Fifth "/end/ent to the

Constitution the +urisdictional uestion now presented is whether such appropriation directed b) Congress created an i/plied contract on the part

of the go*ern/ent to pa) for the *alue of the propert) so appropriated$ Let us see what this Court has decided$ In -nited 3tates *$ <reat Falls?anufacturing Co/pan) 11 -$ 3$ 8D5 Congress ha*ing /ade an appropriation therefor a da/ was constructed across the Poto/ac with the *iew

of suppl)ing the Cit) of ,ashington with water$ In the construction of such da/ certain lands belonging to the plaintiff were ta;en although such

lands were not b) the act of Congress specificall) ordered to be ta;en$ The propert) so ta;en not ha*ing been paid for plaintiff brought this action in

the Court of Clai/s to reco*er the *alue thereof and it was held that the action /ight be /aintained and in the opinion it was said Ap$ 11 -$ 3$

858B:



It see/s clear that these propert) rights ha*e been held and used b) the agents of the -nited 3tates under the sanction of legislati*e enact/ents

b) CongressJ for the appropriation of /one) specificall) for the construction of the da/ fro/ the ?ar)land shore to ConnKs Island was all the

circu/stances considered eui*alent to an e2press direction b) the legislati*e and e2ecuti*e branches of the go*ern/ent to its officers to ta;e this

particular propert) for the public ob+ects conte/plated b) the sche/e for suppl)ing the capital of the nation with wholeso/e water$ The /a;ing of

the i/pro*e/ents necessaril) in*ol*es the ta;ing of the propert) and if for the want of for/al proceedings for its conde/nation to public use the

clai/ant was entitled at the beginning of the wor; to ha*e the agents of the go*ern/ent en+oined fro/ prosecuting it until pro*ision was /ade for

securing in so/e wa) pa)/ent of the co/pensation reuired b) the Constitution upon which uestion we e2press no opinion there is no sound

reason wh) the clai/ant /ight not wai*e that right and electing to regard the action of the go*ern/ent as a ta;ing under its so*ereign right of

e/inent do/ain de/and +ust co/pensation$ Vohl *$ -nited 3tates 61 -$ 3$ @87 61 -$ 3$ @7D$ In that *iew we are of opinion that the -nited3tates ha*ing b) its agents proceeding under the authorit) of an act of Congress ta;en the propert) of the clai/ant for public use are under an

obligation i/posed b) the Constitution to /a;e co/pensation$ The law will i/pl) a pro/ise to /a;e the reuired co/pensation where propert) to

which the go*ern/ent asserts no title is ta;en pursuant to an act of Congress as pri*ate propert) to be applied for public uses$ 3uch an i/plication

being consistent with the constitutional dut) of the go*ern/ent as well as with co//on +ustice the clai/antKs cause of action in one that arises out

of i/plied contract within the /eaning of the statute which confers +urisdiction upon the Court of Clai/s of actions founded Kupon an) contract

e2press or i/plied with the go*ern/ent of the -nited 3tates$K

In <reat Falls ?anufacturing Co/pan) *$ "ttorne) <eneral 1D -$ 3$ 5%1 an action which li;e the preceding grew out of pro*isions /ade b)

Congress to suppl) water to the Cit) of ,ashington and in which the relief sought was the re/o*al of all structures on the pre/ises or if it should

appear that the propert) had been legall) conde/ned the fra/ing of an issue triable b) +ur) to ascertain the plaintiffKs da/ages and a +udg/ent for

the a/ount thereof it was said referring to the contention that there were certain defects in the proceedings ta;en b) the go*ern/ent Ap$ 1D -$ 3$

567B:

*en if the 3ecretar)Ks sur*e) and /ap and the publication of the "ttorne) <eneralKs notice did not in strict law +ustif) the for/er in ta;ing

possession of the land and water rights in uestion it was co/petent for the co/pan) to wai*e the tort and proceed against the -nited 3tates as

upon an i/plied contract it appearing as it does here that the go*ern/ent recognizes and retains the possession ta;en in its behalf for the public

purposes indicated in the act under which its officers ha*e proceeded$

In Hollister *$ 'enedict ?anufacturing Co/pan) 11@ -$ 3$ 56 an action b) the assignees of a patent against a -nited 3tates collector for

infringe/ent the law is thus stated Ap$ 11@ -$ 3$ 87B:

If the right of the patentee was ac;nowledged and without his consent an officer of the go*ern/ent acting under legislati*e authorit) /ade use

of the in*ention in the discharge of his official duties it would see/ to be a clear case of the e2ercise of the right of e/inent do/ain upon which the

law would i/pl) a pro/ise of co/pensation an action on which would lie within the +urisdiction of the Court of Clai/s such as was entertained and

sanctioned in the case of -nited 3tates *$ <reat Falls ?anufacturing Co/pan) 11 -$ 3$ 8D5$

In -nited 3tates *$ Pal/er 1% -$ 3$ 8 an action in the Court of Clai/s b) a patentee against the go*ern/ent to reco*er upon an i/plied

contract for the use of the patented in*ention it appeared that the petitioner was the patentee of certain i/pro*e/ents in infantr) euip/ents which

were adopted b) the 3ecretar) of ,ar as a part of the euip/ent of the infantr) soldiers of the -nited 3tates and sustaining the +urisdiction of the

Court of Clai/s it was said Ap$ 1% -$ 3$ 86B:

#o tort was co//itted or clai/ed to ha*e been co//itted$ The go*ern/ent used the clai/antKs i/pro*e/ents with his consent and certainl) with

the e2pectation on his part of recei*ing a reasonable co/pensation for the license$ This is not a clai/ for an infringe/ent but a clai/ of

co/pensation for an authorized use two things totall) distinct in the law as distinct as trespass on lands is fro/ use and occupation under a lease$

In -nited 3tates *$ 'erdan Fire"r/s Co/pan) 158 -$ 3$ 55 a +udg/ent of the Court of Clai/s against the -nited 3tates on an i/plied contract

for the use of an i/pro*e/ent in breechloading firear/s was sustained although there was no act of Congress e2pressl) directing the use of such

i/pro*e/ent$ In the opinion it was said Ap$ 158 -$ 3$ 587B:

,hile the findings are not so specific and e/phatic as to the assent of the go*ern/ent to the ter/s of an) contract )et we thin; the) are sufficient$

There was certainl) no denial of the patenteeKs rights to the in*ention no assertion on the part of the go*ern/ent that the patent was wrongfull)

issued no clai/ of a right to use the in*ention regardless of the patent no disregard of all clai/s of the patentee and no use in spite of protest or

re/onstrance$ #egati*el) at least the findings are clear$ The go*ern/ent used the in*ention with the consent and e2press per/ission of the ownerand it did not while so using it repudiate the title of such owner$

"nd then after uoting fro/ se*eral of the findings it was added Ap$ 158 -$ 3$ 586B:

The i/port of these findings is this: that the officers of the go*ern/ent charged speciall) with the dut) of superintending the /anufacture of

/us;ets regarded 'erdan as the in*entor of this e2tractor e+ectorJ that the difference between the spiral and flat spring was an i//aterial

differenceJ that therefore the) were using in the 3pringfield /us;et 'erdanKs in*entionJ that the) used it with his per/ission as well as that of his

assignee the petitioner and that the) used it with the understanding that the go*ern/ent would pa) for such use as for other pri*ate propert) which

it /ight ta;e and this although the) did not belie*e the/sel*es to ha*e authorit) to agree upon the price$

The rule deducible fro/ these cases is that when the go*ern/ent appropriates propert) which it does not clai/ as its own it does so under an

i/plied contract that it will pa) the *alue of the propert) it so appropriates$ It is earnestl) contended in argu/ent that the go*ern/ent had a right to

appropriate this propert)$ This /a) be conceded but there is a *ast difference between a proprietar) and a go*ern/ental right$ ,hen the

go*ern/ent owns propert) or clai/s to own it it deals with it as owner and b) *irtue of its ownership and if an officer of the go*ern/ent ta;espossession of propert) under the clai/ that it belongs to the go*ern/ent Awhen in fact it does notB that /a) well be considered a tortious act on his

part for there can be no i/plication of an intent on the part of the go*ern/ent to pa) for that which it clai/s to own$ =er) different fro/ this

proprietar) right of the go*ern/ent in respect to propert) which it owns is its go*ern/ental right to appropriate the propert) of indi*iduals$ "ll pri*ate

propert) is held sub+ect to the necessities of go*ern/ent$ The right of e/inent do/ain underlies all such rights of propert)$ The go*ern/ent /a)

ta;e personal or real propert) whene*er its necessities or the e2igencies of the occasion de/and$ 3o the contention that the go*ern/ent had a



para/ount right to appropriate this propert) /a) be conceded but the Constitution in the Fifth "/end/ent guarantees that when this

go*ern/ental right of appropriation this asserted para/ount right is e2ercised it shall be attended b) co/pensation$

The go*ern/ent /a) ta;e real estate for a post office a courthouse a fortification or a highwa) or in ti/e of war it /a) ta;e /erchant *essels and

/a;e the/ part of its na*al force$ 'ut can this be done without an obligation to pa) for the *alue of that which is so ta;en and appropriatedN

,hene*er in the e2ercise of its go*ern/ental rights it ta;es propert) the ownership of which it concedes to be in an indi*idual it i/pliedl) pro/ises

to pa) therefor$ 3uch is the i/port of the cases cited as well as of /an) others$

The action which was ta;en resulting in the o*erflow and in+ur) to these plaintiffs is not to be regarded as the personal act of the officers but as the

act of the go*ern/ent$ That which the officers did is ad/itted b) the answer to ha*e been done b) authorit) of the go*ern/ent and although there

/a) ha*e been no specific act of Congress directing the appropriation of this propert) of the plaintiffs )et if that which the officers of thego*ern/ent did acting under its direction resulted in an appropriation it is to be treated as the act of the go*ern/ent$ 3outh Carolina *$ <eorgia

6@ -$ 3$ D 6@ -$ 3$ 1@J ,isconsin *$ .uluth 68 -$ 3$ @76J -nited 3tates *$ <reat Falls ?anufacturing Co/pan) 11 -$ 3$ 8D5$

Congress for /an) successi*e ter/s appropriated /one) for the i/pro*e/ent of the 3a*annah !i*er$ 1 3tat$ D70 D%0J 3tat$16D 00J @ 3tat$

1D0J D 3tat$ @1 @@1J 5 3tat$ D1@J 8 3tat$ DDJ 7 3tat$ 101J % 3tat$ @51$ These appropriations were in the !i*er and Harbor bills and were

generall) of so /uch /one) for i/pro*ing the ri*er but so/e deser*e special /ention$ Thus in 1 3tat$ D70 it was pro*ided that one thousand

dollars /a) be applied to pa)/ent of da/ages for land ta;en for widening the channel opposite 3a*annah$ In D 3tat$ @@1 the 3ecretar) of ,ar

was directed to cause a sur*e) to be /ade of the 3a*annah !i*er fro/ crosstides abo*e 3a*annah to the bar with a *iew to obtaining twent)

eight feet of water in the channel$ The appropriation in 5 3tat$ D1@ was for the i/pro*e/ent of the ri*er co/pleting the present pro+ect and

co//encing the e2tended pro+ect contained in the report of engineer for )ear ending >une @0 1%%7$ "nd b) the sa/e statute D@1 a/ong the

/atters referred to the 3ecretar) of ,ar for sur*e) and e2a/ination was whether the da/age to the =erzenobre freshet ban; in 1%%7 was caused

b) the wor; at crosstides and whether the /aintenance of said ban; is essential to the success of the wor; at crosstides and what will be the

cost of so constructing said ban; as to confine the water of said ri*er to its bed$

The report of the engineers for the )ear 1%%7 referred to in the section abo*e uoted shows that part of the wor; which was being done b) the

go*ern/ent was in the construction of training walls and wing da/s b) which the width of the waterwa) was reduced$

Further the sa/e )ear 5 3tat$ 6D an act was passed entitled "n "ct to Facilitate the Prosecution of ,or;s Pro+ected for the I/pro*e/ent of

!i*ers and Harbors which authorized the 3ecretar) of ,ar to co//ence proceedings

for the acuire/ent b) conde/nation of an) land right of wa) or /aterial needed to enable hi/ to /aintain operate or prosecute wor;s for the

i/pro*e/ent of ri*ers and harbors for which pro*ision has been /ade b) lawJ $ $ $ Pro*ided howe*er that when the owner of such land right of

wa) or /aterial shall fi2 a price for the sa/e which in the opinion of the 3ecretar) of ,ar shall be reasonable he /a) purchase the sa/e at such

price without further dela)$

Thus be)ond the effect of the ad/ission in the answer and be)ond the presu/ption of ;nowledge which attends the action of all legislati*e bodies

it affir/ati*el) appears not onl) that Congress was /a;ing appropriations fro/ )ear to )ear for the i/pro*e/ent of the ri*er but also that it had

e2press notice of da/age to the ban;s along this *er) plantationJ that the wor;s which were being done b) the engineers had in *iew the narrowing

of the width of the waterwa)J that land would be da/aged as the result of those wor;s and that it authorized the 3ecretar) of ,ar to ta;eproceedings in e/inent do/ains to acuire the land right of wa) and /aterial which /ight be necessar) for /aintaining operating or prosecuting

wor;s of ri*er i/pro*e/ent or if the price could be agreed upon to purchase the sa/e$

This brings the case directl) within the scope of the decision in -nited 3tates *$ <reat Falls ?anufacturing Co/pan) supra where as here there

was no direction to ta;e the particular propert) but a direction to do that which resulted in a ta;ing and it was held that the owner /ight wai*e the

right to insist on conde/nation proceedings and sue to reco*er the *alue$

It does not appear that the plaintiffs too; an) action to stop the wor; done b) the go*ern/ent or protested against it$ Their inaction and silence

a/ount to an acuiescence an assent to the appropriation b) the go*ern/ent$ In this respect the case is not dissi/ilar to that of a landowner

who ;nowing that a railroad co/pan) has entered upon his land and is engaged in constructing its road without ha*ing co/plied with the statute in

respect to conde/nation is estopped fro/ thereafter /aintaining either trespass or e+ect/ent but is li/ited to a reco*er) of co/pensation$ !oberts

*$ #orthern Pacific !ailroad 15% -$ 3$ 1 15% -$ 3$ 11J #orthern Pacific !ailroad *$ 3/ith 171 -$ 3$ 80 and cases cited in the opinion$

The case therefore a/ounts to this: the plaintiffs alleged that the) were the owners of certain real estate bordering on the 3a*annah !i*erJ that the

go*ern/ent in the e2ercise of its powers of e/inent do/ain and regulation of co//erce through officers and agents dul) e/powered thereto b)

acts of Congress placed da/s training walls and other obstructions in the ri*er in such /anner as to hinder its natural flow and to raise its waters

so as to o*erflow the land of plaintiffs and o*erflow it to such an e2tent as to cause a total destruction of its *alue$ The go*ern/ent not den)ing the

ownership of plaintiffs ad/itted that the wor; which was done b) their officers and agents was done b) authorit) of Congress but denied that those

wor;s had produced the alleged in+ur) and destruction$ ,e are of opinion that under these pleadings and the issues raised thereb) the circuit court

had +urisdiction to inuire whether the acts done b) the officers of the -nited 3tates under the direction of Congress had resulted in such an

o*erflow and in+ur) of the plaintiffKs land as to render it absolutel) *alueless and if thereb) the propert) was in conte/plation of law ta;en and

appropriated b) the go*ern/ent to render +udg/ent against it for the *alue of the propert) so ta;en and appropriated$

,as there a ta;ingN There was no proceeding in conde/nation instituted b) the go*ern/ent no atte/pt in ter/s to ta;e and appropriate the title$

There was no ad+udication that the fee had passed fro/ the landowner to the go*ern/ent and if either of these be an essential ele/ent in the

ta;ing of lands within the scope of the Fifth "/end/ent there was no ta;ing$

3o/e uestion is /ade as to the /eaning of the findings$ It appears fro/ the fifth finding as a/ended that a large portion of the land flooded was

in its natural condition between high water /ar; and low water /ar; and was sub+ect to o*erflow as the water passed fro/ one stage to the otherJ

that this natural o*erflow was stopped b) an e/ban;/ent and in lieu thereof b) /eans of flood gates the land was flooded and drained at the will

of the owner$ Fro/ this it is contended that the onl) result of the raising of the le*el of the ri*er b) the go*ern/ent wor;s was to ta;e awa) the



possibilit) of drainage$ 'ut findings nine and ten show that both b) seepage and percolation through the e/ban;/ent and an actual flowing upon

the plantation abo*e the obstruction the water has been raised in the plantation about eighteen inchesJ that it is i/possible to re/o*e this o*erflow

of water and as a conseuence the propert) has beco/e an irreclai/able bog unfit for the purpose of rice culture or an) other ;nown agriculture

and depri*ed of all *alue$ It is clear fro/ these findings that what was a *aluable rice plantation has been per/anentl) flooded wholl) destro)ed in

*alue and turned into an irreclai/able bog and this as the necessar) result of the wor; which the go*ern/ent has underta;en$ .oes this a/ount to

a ta;ingN The case of Pu/pell) *$ <reen 'a) Co/pan) 1@ ,all$ 188 answers this uestion in the affir/ati*e$ "nd on the argu/ent it was

conceded b) the learned counsel for the go*ern/ent Aand properl) conceded in *iew of the findingsB that so far as respects the /ere /atter of

o*erflow and in+ur) there was no substantial distinction between the two cases$ In that case the <reen 'a) Co/pan) as authorized b) statute

constructed a da/ across Fo2 !i*er b) /eans of which the land of Pu/pell) was o*erflowed and rendered practicall) useless to hi/$ There as

here no proceedings had been ta;en to for/all) conde/n the land$ !eferring to this it was said Ap$ %0 -$ 3$ 177B:

The argu/ent of the defendant is that there is no ta;ing of the land within the /eaning of the constitutional pro*ision and that the da/age is a

conseuential result of such use of a na*igable strea/ as the go*ern/ent had a right to for the i/pro*e/ent of its na*igation$

It would be a *er) curious and unsatisfactor) result if in construing a pro*ision of constitutional law alwa)s understood to ha*e been adopted for

protection and securit) to the rights of the indi*idual as against the go*ern/ent and which has recei*ed the co//endation of +urists states/en

and co//entators as placing the +ust principles of the co//on law on that sub+ect be)ond the power of ordinar) legislation to change or control

the/ it shall be held that if the go*ern/ent refrains fro/ the absolute con*ersion of real propert) to the uses of the public it can destro) its *alue

entirel) can inflict irreparable and per/anent in+ur) to an) e2tentJ can in effect sub+ect it to total destruction without /a;ing an) co/pensation

because in the narrowest sense of that word it is not ta;en for the public use$ 3uch a construction would per*ert the constitutional pro*ision into a

restriction upon the rights of the citizen as those rights stood at the co//on law instead of the go*ern/ent and /a;e it an authorit) for in*asion of

pri*ate right under the prete2t of the public good which had no warrant in the laws or practices of our ancestors$

!eference was also /ade to the case of 3innic;son *$ >ohnson 17 #$>$L$ 16 in respect to which it was said:

The case is /ainl) *aluable here as showing that o*erflowing land b) bac;ing the water on it was considered as Kta;ingK it within the /eaning of the

principle$

"gain on page %0 -$ 3$ 176 it was said:

'ut there are nu/erous authorities to sustain the doctrine that a serious interruption to the co//on and necessar) use of propert) /a) be in the

language of ?r$ "ngell in his wor; on ,atercourses eui*alent to the ta;ing of it and that under the constitutional pro*isions it is not necessar)

that the land should be absolutel) ta;en$

"nd in a footnote the following authorities were cited: "ngell on ,ater Courses sec$ D85aJ Hoo;er *$ #ew Ha*en 9 #ortha/pton Co$ 1D Conn$

1D8J !owe *$ <ranite 'ridge Corporation 1 Pic;$ @DDJ Canal "ppraisers *$ People 17 ,end$ 80DJ Lac;land *$ #orth ?issouri !ailroad Co$ @1 ?o$

1%0J 3te*ens *$ ?iddlese2 Canal 1 ?ass$ D88$

It is clear fro/ these authorities that where the go*ern/ent b) the construction of a da/ or other public wor;s so floods lands belonging to an

indi*idual as to substantiall) destro) their *alue there is a ta;ing within the scope of the Fifth "/end/ent$ ,hile the go*ern/ent does not directl)proceed to appropriate the title )et it ta;es awa) the use and *alueJ when that is done it is of little conseuence in who/ the fee /a) be *ested$ 4f

course it results fro/ this that the proceeding /ust be regarded as an actual appropriation of the land including the possession the right of

possession and the fee and when the a/ount awarded as co/pensation is paid the title the fee with whate*er rights /a) attach thereto in this

case those at least which belong to a riparian proprietor pass to the go*ern/ent and it beco/es henceforth the full owner$

Passing to the third uestion it is contended that what was done b) the go*ern/ent was done in i/pro*ing the na*igabilit) of a na*igable ri*er that

it is gi*en b) the Constitution full control o*er such i/pro*e/ents and that if in doing an) wor; therefor in+ur) results to riparian proprietors or

others it is an in+ur) which is purel) conseuential and for which the go*ern/ent is not liable$ 'ut if an) one proposition can be considered as

settled b) the decisions of this Court it is that although in the discharge of its duties the go*ern/ent /a) appropriate propert) it cannot do so

without being liable to the obligation cast b) the Fifth "/end/ent of pa)ing +ust co/pensation$

In ?onongahela #a*igation Co/pan) *$ -nited 3tates 1D% -$ 3$ @1 1D% -$ 3$ @@8 it was said:

'ut li;e the other powers granted to Congress b) the Constitution the power to regulate co//erce is sub+ect to all the li/itations i/posed b)such instru/ent and a/ong the/ is that of the Fifth "/end/ent we ha*e heretofore uoted$ Congress has supre/e control o*er the regulation of

co//erce but if in e2ercising that supre/e control it dee/s it necessar) to ta;e pri*ate propert) then it /ust proceed sub+ect to the li/itations

i/posed b) this Fifth "/end/ent and can ta;e onl) on pa)/ent of +ust co/pensation$

In that case Congress had passed an act for conde/ning what was ;nown as the upper loc; and da/ of the ?onongahela #a*igation Co/pan)

and pro*ided that in esti/ating the su/ to be paid b) the -nited 3tates the franchise of said corporation to collect tolls should not be considered

or esti/ated but we held that this pro*iso was be)ond the power of Congress that it could not appropriate the propert) of the na*igation co/pan)

without pa)ing its full *alue and that a part of that *alue consisted in the franchise to ta;e tolls$ 3o in the recent case of 3cranton *$ ,heeler 176

-$ 3$ 1D1 176 -$ 3$ 15@ we repeated the proposition in these words:

-ndoubtedl) co/pensation /ust be /ade or secured to the owner when that which is done is to be regarded as a ta;ing of pri*ate propert) for

public use within the /eaning of the Fifth "/end/ent of the Constitution and of course in its e2ercise of the power to regulate co//erce

Congress /a) not o*erride the pro*ision that +ust co/pensation /ust be /ade when pri*ate propert) is ta;en for public use$

It is true that a /a+orit) of the Court held in that case that the destruction of access to land abutting on a na*igable ri*er b) the construction b)

Congress of a pier on the sub/erged lands in front of the upland was not a ta;ing of pri*ate propert) for public uses but onl) an instance of

conseuential in+ur) to the propert) of the riparian owner$ 'ut the right of co/pensation in case of a ta;ing was conceded$ There ha*e been /an)

cases in which a distinction has been drawn between the ta;ing of propert) for public uses and a conseuential in+ur) to such propert) b) reason of

so/e public wor;$ In the one class the law i/plies a contract a pro/ise to pa) for the propert) ta;en which if the ta;ing was b) the general



go*ern/ent will uphold an action in the Court of Clai/s while in the other class there is si/pl) a tortious act doing in+ur) o*er which the Court of

Clai/s has no +urisdiction$ Thus in Transportation Co/pan) *$ Chicago 66 -$ 3$ 8@5 the cit) dul) authorized b) statute constructed a tunnel

along the line of La3alle 3treet and under the Chicago !i*er$

The co/pan) clai/ed that it was depri*ed of access to its pre/ises b) and during the construction$ This depri*ation was not per/anent but

continued onl) during the ti/e necessar) to co/plete the tunnel and it was held that there was no ta;ing of the propert) but onl) an in+ur) and that

a te/porar) in+ur) thereto$ In the course of the opinion after referring to the Pu/pell) case supra and aton *$ 'oston Concord 9 ?ontreal

!ailroad Co/pan) 51 #$H$ 50D we said Ap$ 66 -$ 3$ 8DB:

In those cases it was held that per/anent flooding of pri*ate propert) /a) be regarded as a Kta;ing$K In those cases there was ph)sical in*asion of

real estate of the pri*ate owner and a practical ouster of his possession$ 'ut in the present case there was no such in*asion$ #o entr) was /adeupon the plaintiffsK lot$ "ll that was done was to render for a ti/e its use /ore incon*enient$

Chicago *$ Ta)lor 15 -$ 3$ 181 while recognizing and reaffir/ing the rule there laid down was decided upon the ground that a new rule was

established b) the Illinois Constitution of 1%70 which pro*ided that pri*ate propert) shall not be ta;en or da/aged for public use without +ust

co/pensation$ ?ontana Co/pan) *$ 3t$ Louis ?ining 9c$ Co/pan) 15 -$ 3$ 180 held that a /ere order for inspection of /ining propert) was

not a ta;ing thereof because all that was done was a te/porar) and li/ited interruption of the e2clusi*e use$ <ibson *$ -nited 3tates 188 -$ 3$

86 decided that where b) the construction of a d);e b) the -nited 3tates in the i/pro*e/ent of the 4hio !i*er the plaintiff a riparian owner was

through the greater part of the gardening season depri*ed of the use of her landing for the ship/ent of products fro/ and supplies to her far/

whereb) the *alue of her far/ was reduced U150 to U00 per acre there was no ta;ing of the propert) but onl) a conseuential in+ur)$ 3ee also

?archant *$ Penns)l*ania !ailroad 15@ -$ 3$ @%0J ?e)er *$ !ich/ond 17 -$ 3$ %$ In this connection ?ills *$ -nited 3tates D8 F$ 7@% decided in

the .istrict Court for the 3outhern .istrict of <eorgia is worth) of notice b) reason of its si/ilarit) in /an) respects and its clearl) /ar;ed

distinction in an essential /atter$ It was an action for in+uries to a rice plantation on the ban;s of the 3a*annah !i*er resulting fro/ wor;s done b)

the -nited 3tates in i/pro*ing the na*igabilit) of that ri*er apparentl) the *er) i/pro*e/ent /ade b) the go*ern/ent in the present case$ The

condition of the clai/antKs rice plantation prior to the i/pro*e/ent was substantiall) that of these plaintiffsK propert) and the lands were drained b)

opening the gates when the ri*er was at low water /ar;$ The co/plaint was that the erection b) the go*ern/ent of what was called the crosstides

da/ running fro/ the upper end of HutchinsonKs Island to the lower end of "rg)le Island cut off all the flow of water fro/ the strea/ connecting

the front and bac; ri*ers raised both the high and low water le*els in the front ri*er and not onl) destro)ed the facilities for draining these lands into

the front ri*er but rendered it necessar) to raise the le*ees around the rice fields to pre*ent flooding the fields at high water$ This it was alleged

unfitted the lands for rice culture and /ade it necessar) that new drainage into bac; ri*er be pro*ided where the water le*els were suitable$

4b*iousl) there was no ta;ing of the plaintiffKs lands but si/pl) an in+ur) which could be re/edied at an e2pense as alleged of U10000 and the

action was one to reco*er the a/ount of this conseuential in+ur)$ The court rightfull) held that it could not be sustained$ Here there is no finding no

suggestion that b) an) e2pense the flooding could be a*erted$ ,e /a) of course ;now that there is theoreticall) no li/it to that which engineering

s;ill /a) acco/plish$ ,e ;now that *ast tracts ha*e in different parts of the world been reclai/ed b) le*ees and other wor;s and so we /a)

belie*e that this flooding /a) be pre*ented that so/e da) all these sub/erged lands /a) be reclai/ed$ 'ut as a practical /atter and for the

purposes of this case we /ust under the findings regard the lands in contro*ers) as irreclai/able and their *alue wholl) and finall) destro)ed$

Therefore following the settled law of this Court we hold that there has been a ta;ing of the lands for public uses and that the go*ern/ent is under

an i/plied contract to /a;e +ust co/pensation therefor$

The +udg/ent is "ffir/ed$

Unite! Sttes v. C*s;? 6/ U.S. 4' $%5')

3)llabus

!espondents owned a dwelling and a chic;en far/ near a /unicipal airport$ The safe path of glide to one of the runwa)s of the airport passed

directl) o*er respondentsK propert) at %@ feet which was 87 feet abo*e the house 8@ feet abo*e the barn and 1% feet abo*e the highest tree$ It was

used D of the ti/e in ta;ing off and 7 of the ti/e in landing$ The <o*ern/ent leased the use of the airport for a ter/ of one /onth co//encing

>une 1 16D with a pro*ision for renewals until >une @0 1687 or si2 /onths after the end of the national e/ergenc) whiche*er was earlier$

=arious /ilitar) aircraft of the -nited 3tates used the airport$ The) freuentl) ca/e so close to respondentsK propert) that the) barel) /issed the

tops of trees the noise was startling and the glare fro/ their landing lights lighted the place up brightl) at night$ This destro)ed the use of the

propert) as a chic;en far/ and caused loss of sleep ner*ousness and fright on the part of respondents$ The) sued in the Court of Clai/s to

reco*er for an alleged ta;ing of their propert) and for da/ages to their poultr) business$ The Court of Clai/s found that the <o*ern/ent had ta;enan ease/ent o*er respondentsK propert) and that the *alue of the propert) destro)ed and the ease/ent ta;en was U000J but it /ade no finding

as to the precise nature or duration of the ease/ent$

Held:

1$ " ser*itude has been i/posed upon the land for which respondents are entitled to co/pensation under the Fifth "/end/ent$ Pp$ @% -$ 3$ 80

87$

AaB The co//on law doctrine that ownership of land e2tends to the peripher) of the uni*erse has no place in the /odern world$ Pp$ @% -$ 3$ 80

81$

AbB The air abo*e the /ini/u/ safe altitude of flight prescribed b) the Ci*il "eronautics "uthorit) is a public highwa) and part of the public do/ain

as declared b) Congress in the "ir Co//erce "ct of 168 as a/ended b) the Ci*il "eronautics "ct of 16@%$ Pp$ @% -$ 3$ 8081 @% -$ 3$ 88$

AcB Flights below that altitude are not within the na*igable air space which Congress placed within the public do/ain e*en though the) are within

the path of glide appro*ed b) the Ci*il "eronautics "uthorit)$ Pp$ @% -$ 3$ 8@8D$

AdB Flights of aircraft o*er pri*ate land which are so low and freuent as to be a direct and i//ediate interference with the en+o)/ent and use of the

land are as /uch an appropriation of the use of the land as a /ore con*entional entr) upon it$ Pp$ @% -$ 3$ 818 @% -$ 3$ 8D87$



$ 3ince there was a ta;ing of pri*ate propert) for public use the clai/ was founded upon the Constitution within the /eaning of X 1D1A1B of the

>udicial Code and the Court of Clai/s had +urisdiction to hear and deter/ine it$ P$ @% -$ 3$ 87$

@$ 3ince the courtKs findings of fact contain no precise description of the nature or duration of the ease/ent ta;en the +udg/ent is re*ersed and the

cause is re/anded to the Court of Clai/s so that it /a) /a;e the necessar) findings$ Pp$ @% -$ 3$ 878%$

AaB "n accurate description of the ease/ent ta;en is essential since that interest *ests in the -nited 3tates$ P$ @% -$ 3$ 87$

AbB Findings of fact on e*er) /aterial issue are a statutor) reuire/ent and a deficienc) in the findings cannot be rectified b) state/ents in the

opinion$ Pp$ @% -$ 3$ 878%$

AcB " con+ecture in lieu of a conclusion fro/ e*idence would not be a proper foundation for liabilit) of the -nited 3tates$ P$ @% -$ 3$ 8%$

10D Ct$Cls$ @D 80 F$3upp$ 751 re*ersed and re/anded$

The Court of Clai/s granted respondents a +udg/ent for the *alue of propert) destro)ed and da/age to their propert) resulting fro/ the ta;ing of

an ease/ent o*er their propert) b) lowfl)ing /ilitar) aircraft of the -nited 3tates but failed to include in its findings of fact a specific description of

the nature or duration of the ease/ent$ 10D Ct$Cls$ @D 80 F$3upp$ 751$ This Court granted certiorari$ @7 -$3$ 775$ !e*ersed and re/anded p$

@% -$ 3$ 8%$

?!$ >-3TIC .4-<L"3 deli*ered the opinion of the Court$

This is a case of first i/pression$ The proble/ presented is whether respondentsK propert) was ta;en within the /eaning of the Fifth "/end/ent b)

freuent and regular flights of ar/) and na*) aircraft o*er respondentsK land at low altitudes$ The Court of Clai/s held that there was a ta;ing andentered +udg/ent for respondent one +udge dissenting$ 80 F$3upp$ 751$ The case is here on a petition for a writ of certiorari which we granted

because of the i/portance of the uestion presented$

!espondents own $% acres near an airport outside of <reensboro #orth Carolina$ It has on it a dwelling house and also *arious outbuildings

which were /ainl) used for raising chic;ens$ The end of the airportKs northwestsoutheast runwa) is 0 feet fro/ respondentsK barn and 75

feet fro/ their house$ The path of glide to this runwa) passes directl) o*er the propert) which is 100 feet wide and 100 feet long$ The @0 to 1

safe glide angle EFootnote 1 appro*ed b) the Ci*il "eronautics "uthorit) EFootnote passes o*er this propert) at %@ feet which is 87 feet abo*e

the house 8@ feet abo*e the barn and 1% feet abo*e the highest tree$ EFootnote @ The use b) the -nited 3tates of this airport is pursuant to a lease

e2ecuted in ?a) 16D for a ter/ co//encing >une 1 16D and ending >une @0 16D with a pro*ision for renewals until >une @0 1687 or si2

/onths after the end of the national e/ergenc) whiche*er is the earlier$

=arious aircraft of the -nited 3tates use this airport bo/bers transports and fighters$ The direction of the pre*ailing wind deter/ines when a

particular runwa) is used$ The northwestsoutheast runwa) in uestion is used about four percent of the ti/e in ta;ing off and about se*en percent

of the ti/e in landing$ 3ince the -nited 3tates began operations in ?a) 16D its four/otored hea*) bo/bers other planes of the hea*ier t)peand its fighter planes ha*e freuentl) passed o*er respondentsK land buildings in considerable nu/bers and rather close together$ The) co/e close

enough at ti/es to appear barel) to /iss the tops of the trees and at ti/es so close to the tops of the trees as to blow the old lea*es off$ The noise

is startling$ "nd at night the glare fro/ the planes brightl) lights up the place$ "s a result of the noise respondents had to gi*e up their chic;en

business$ "s /an) as si2 to ten of their chic;ens were ;illed in one da) b) fl)ing into the walls fro/ fright$ The total chic;ens lost in that /anner was

about 150$ Production also fell off$ The result was the destruction of the use of the propert) as a co//ercial chic;en far/$ !espondents are

freuentl) depri*ed of their sleep and the fa/il) has beco/e ner*ous and frightened$ "lthough there ha*e been no airplane accidents on

respondentsK propert) there ha*e been se*eral accidents near the airport and close to respondentsK place$ These are the essential facts found b)

the Court of Clai/s$ 4n the basis of these facts it found that respondentsK propert) had depreciated in *alue$ It held that the -nited 3tates had

ta;en an ease/ent o*er the propert) on >une 1 16D and that the *alue of the propert) destro)ed and the ease/ent ta;en was U000$

I$ The -nited 3tates relies on the "ir Co//erce "ct of 168 DD 3tat$ 58% D6 -$3$C$ X 171 et se$ as a/ended b) the Ci*il "eronautics "ct of

16@% 5 3tat$ 67@ D6 -$3$C$ X D01 et se$ -nder those statutes the -nited 3tates has co/plete and e2clusi*e national so*ereignt) in the air

space o*er this countr)$ D6 -$3$C$ X 178AaB$ The) grant an) citizen of the -nited 3tates a public right of freedo/ of transit in air co//erce

EFootnote D through the na*igable air space of the -nited 3tates$ D6 -$3$C$ X D0@$ "nd na*igable air space is defined as airspace abo*e the/ini/u/ safe altitudes of flight prescribed b) the Ci*il "eronautics "uthorit)$ D6 -$3$C$ X 1%0$ "nd it is pro*ided that such na*igable airspace shall

be sub+ect to a public right of freedo/ of interstate and foreign air na*igation$ Id$ It is therefore argued that since these flights were within the

/ini/u/ safe altitudes of flight which had been prescribed the) were an e2ercise of the declared right of tra*el through the airspace$ The -nited

3tates concludes that when flights are /ade within the na*igable airspace without an) ph)sical in*asion of the propert) of the landowners there

has been no ta;ing of propert)$ It sa)s that at /ost there was /erel) incidental da/age occurring as a conseuence of authorized air na*igation$

It also argues that the landowner does not own superad+acent airspace which he has not sub+ected to possession b) the erection of structures or

other occupanc)$ ?oreo*er it is argued that e*en if the -nited 3tates too; airspace owned b) respondents no co/pensable da/age was shown$

"n) da/ages are said to be /erel) conseuential for which no co/pensation /a) be obtained under the Fifth "/end/ent$

It is ancient doctrine that at co//on law ownership of the land e2tended to the peripher) of the uni*erse O cu+us est solu/ e+us est usue and

coelu/$ EFootnote 5 'ut that doctrine has no place in the /odern world$ The air is a public highwa) as Congress has declared$ ,ere that not true

e*er) transcontinental flight would sub+ect the operator to countless trespass suits$ Co//on sense re*olts at the idea$ To recognize such pri*ate

clai/s to the airspace would clog these highwa)s seriousl) interfere with their control and de*elop/ent in the public interest and transfer into

pri*ate ownership that to which onl) the public has a +ust clai/$

'ut that general principle does not control the present case$ For the -nited 3tates conceded on oral argu/ent that if the flights o*er respondentsK

propert) rendered it uninhabitable there would be a ta;ing co/pensable under the Fifth "/end/ent$ It is the ownerKs loss not the ta;erKs gain

which is the /easure of the *alue of the propert) ta;en$ -nited 3tates *$ ?iller @17 -$ 3$ @86$ ?ar;et *alue fairl) deter/ined is the nor/al /easure

of the reco*er)$ Id$ "nd that *alue /a) reflect the use to which the land could readil) be con*erted as well as the e2isting use$ -nited 3tates *$



Powelson @16 -$ 3$ 88 @16 -$ 3$ 75 and cases cited$ If b) reason of the freuenc) and altitude of the flights respondents could not use this

land for an) purpose their loss would be co/plete$ EFootnote 8 It would be as co/plete as if the -nited 3tates had entered upon the surface of the

land and ta;en e2clusi*e possession of it$

,e agree that in those circu/stances there would be a ta;ing$ Though it would be onl) an ease/ent of flight which was ta;en that ease/ent if

per/anent and not /erel) te/porar) nor/all) would be the eui*alent of a fee interest$ It would be a definite e2ercise of co/plete do/inion and

control o*er the surface of the land$ The fact that the planes ne*er touched the surface would be as irrele*ant as the absence in this da) of the

feudal li*er) of seisin on the transfer of real estate$ The ownerKs right to possess and e2ploit the land that is to sa) his beneficial ownership of it

would be destro)ed$ It would not be a case of incidental da/ages arising fro/ a legalized nuisance such as was in*ol*ed in !ichards *$

,ashington Ter/inal Co$ @@ -$ 3$ 5D8$ In that case propert) owners whose lands ad+oined a railroad line were denied reco*er) for da/ages

resulting fro/ the noise *ibrations s/o;e and the li;e incidental to the operations of the trains$ In the supposed case the line of flight is o*er theland$ "nd the land is appropriated as directl) and co/pletel) as if it were used for the runwa)s the/sel*es$

There is no /aterial difference between the supposed case and the present one e2cept that here en+o)/ent and use of the land are not

co/pletel) destro)ed$ 'ut that does not see/ to us to be controlling$ The path of glide for airplanes /ight reduce a *aluable factor) site to grazing

land an orchard to a *egetable patch a residential section to a wheat field$ 3o/e *alue would re/ain$ 'ut the use of the airspace i//ediatel)

abo*e the land would li/it the utilit) of the land and cause a di/inution in its *alue$ EFootnote 7 That was the philosoph) of Ports/outh Harbor

Land 9 Hotel Co$ *$ -nited 3tates 80 -$ 3$ @7$ In that case the petition alleged that the -nited 3tates erected a fort on nearb) land established

a batter) and a fire control station there and fired guns o*er petitionerKs land$ The Court spea;ing through ?r$ >ustice Hol/es re*ersed the Court

of Clai/s which dis/issed the petition on a de/urrer holding that the specific facts set forth would warrant a finding that a ser*itude has been

i/posed$ EFootnote % 80 -$3$ at 80 -$ 3$ @@0$ "nd see .elta "ir Corp$ *$ Verse) 16@ <a$ %8 0 3$$d D5$ Cf$ -nited 3tates *$ @57$5 "cres

of Land 55 F$3upp$ D81$

The fact that the path of glide ta;en b) the planes was that appro*ed b) the Ci*il "eronautics "uthorit) does not change the result$ The na*igable

airspace which Congress has placed in the public do/ain is airspace abo*e the /ini/u/ safe altitudes of flight prescribed b) the Ci*il "eronautics

"uthorit)$ D6 -$3$C$ X 1%0$ If that agenc) prescribed %@ feet as the /ini/u/ safe altitude then we would ha*e presented the uestion of the

*alidit) of the regulation$ 'ut nothing of the sort has been done$ The path of glide go*erns the /ethod of operating of landing or ta;ing off$ The

altitude reuired for that operation is not the /ini/u/ safe altitude of flight which is the downward reach of the na*igable airspace$ The /ini/u/

prescribed b) the authorit) is 500 feet during the da) and 1000 feet at night for air carriers ACi*il "ir !egulations Pt$ 81 XX 81$7D00 81$7D01 Code

Fed$!eg$Cu/$3upp$ Tit$ 1D ch$ 1B and fro/ @00 to 1000 feet for other aircraft depending on the t)pe of plane and the character of the terrain$ Id$

Pt$ 80 XX 80$@5080$@505 Fed$!eg$Cu/$3upp$ supra$ Hence the flights in uestion were not within the na*igable airspace which Congress

placed within the public do/ain$ If an) airspace needed for landing or ta;ing off were included flights which were so close to the land as to render it

uninhabitable would be i//une$ 'ut the -nited 3tates concedes as we ha*e said that in that e*ent there would be a ta;ing$ Thus it is apparent

that the path of glide is not the /ini/u/ safe altitude of flight within the /eaning of the statute$ The Ci*il "eronautics "uthorit) has of course the

power to prescribe air traffic rules$ 'ut Congress has defined na*igable airspace onl) in ter/s of one of the/ the /ini/u/ safe altitudes of flight$

,e ha*e said that the airspace is a public highwa)$ et it is ob*ious that if the landowner is to ha*e full en+o)/ent of the land he /ust ha*e

e2clusi*e control of the i//ediate reaches of the en*eloping at/osphere$ 4therwise buildings could not be erected trees could not be planted and

e*en fences could not be run$ The principle is recognized when the law gi*es a re/ed) in case o*erhanging structures are erected on ad+oining

land$ EFootnote 6 The landowner owns at least as /uch of the space abo*e the ground as the can occup) or use in connection with the land$ 3ee

Hin/an *$ Pacific "ir Transport %D F$d 755$ The fact that he does not occup) it in a ph)sical sense b) the erection of buildings and the li;e is

not /aterial$ "s we ha*e said the flight of airplanes which s;i/ the surface but do not touch it is as /uch an appropriation of the use of the land

as a /ore con*entional entr) upon it$ ,e would not doubt that if the -nited 3tates erected an ele*ated railwa) o*er respondentsK land at the

precise altitude where its planes now fl) there would be a partial ta;ing e*en though none of the supports of the structure rested on the land$

EFootnote 10 The reason is that there would be an intrusion so i//ediate and direct as to subtract fro/ the ownerKs full en+o)/ent of the propert)

and to li/it his e2ploitation of it$ ,hile the owner does not in an) ph)sical /anner occup) that stratu/ of airspace or /a;e use of it in the

con*entional sense he does use it in so/ewhat the sa/e sense that space left between buildings for the purpose of light and air is used$ The

superad+acent airspace at this low altitude is so close to the land that continuous in*asions of it affect the use of the surface of the land itself$ ,e

thin; that the landowner as an incident to his ownership has a clai/ to it and that in*asions of it are in the sa/e categor) as in*asions of the

surface$ EFootnote 11

In this case as in Ports/outh Harbor Land 9 Hotel Co$ *$ -nited 3tates supra the da/ages were not /erel) conseuential$ The) were the product

of a direct in*asion of respondentsK do/ain$

"s stated in -nited 3tates *$ Cress D@ -$ 3$ @18 D@ -$ 3$ @%

$ $ $ it is the character of the in*asion not the a/ount of da/age resulting fro/ it so long as the da/age is substantial that deter/ines the

uestion whether it is a ta;ing$

,e said in -nited 3tates *$ Powelson supra p$ @16 -$ 3$ 76 that while the /eaning of propert) as used in the Fifth "/end/ent was a federal

uestion it will nor/all) obtain its content b) reference to local law$ If we loo; to #orth Carolina law we reach the sa/e result$ 3o*ereignt) in the

airspace rests in the 3tate e2cept where granted to and assu/ed b) the -nited 3tates$ <en$3tats$16D@ X 8@11$ The flight of aircraft is lawful

unless at such a low altitude as to interfere with the then e2isting use to which the land or water or the space o*er the land or water is put b) the

owner or unless so conducted as to be i//inentl) dangerous to persons or propert) lawfull) on the land or water beneath$

Id$ X 8@1@$ 3ub+ect to that right of flight ownership of the space abo*e the lands and waters of this 3tate is declared to be *ested in the se*eral

owners of the surface beneath$ Id$ X 8@1$ 4ur holding that there was an in*asion of respondentsK propert) is thus not inconsistent with the locallaw go*erning a landownerKs clai/ to the i//ediate reaches of the superad+acent airspace$

The airplane is part of the /odern en*iron/ent of life and the incon*eniences which it causes are nor/all) not co/pensable under the Fifth

"/end/ent$ The airspace apart fro/ the i//ediate reaches abo*e the land is part of the public do/ain$ ,e need not deter/ine at this ti/e what

those precise li/its are$ Flights o*er pri*ate land are not a ta;ing unless the) are so low and so freuent as to be a direct and i//ediate



interference with the en+o)/ent and use of the land$ ,e need not speculate on that phase of the present case$ For the findings of the Court of

Clai/s plainl) establish that there was a di/inution in *alue of the propert) and that the freuent lowle*el flights were the direct and i//ediate

cause$ ,e agree with the Court of Clai/s that a ser*itude has been i/posed upon the land$

II$ ') X 1D5A1B of the >udicial Code % -$3$C$ X 50A1B the Court of Clai/s has +urisdiction to hear and deter/ine

"ll clai/s Ae2cept for pensionsB founded upon the Constitution of the -nited 3tates or $ $ $ upon an) contract e2press or i/plied with the

<o*ern/ent of the -nited 3tates$

,e need not decide whether repeated trespasses /ight gi*e rise to an i/plied contract$ Cf$ Ports/outh Harbor Land 9 Hotel Co$ *$ -nited 3tates

supra$ If there is a ta;ing the clai/ is founded upon the Constitution and within the +urisdiction of the Court of Clai/s to hear and deter/ine$ 3eeHollister *$ 'enedict 9 'urnha/ ?fg$ Co$ 11@ -$ 3$ 56 11@ -$ 3$ 87J Hurle) *$ Vincaid %5 -$ 3$ 65 %5 -$ 3$ 10DJ earsle) *$ ,$ "$ !oss

Construction Co$ @06 -$ 3$ 1% @06 -$ 3$ 1$ Thus the +urisdiction of the Court of Clai/s in this case is clear$

III$ The Court of Clai/s held as we ha*e noted that an ease/ent was ta;en$ 'ut the findings of fact contain no precise description as to its nature$

It is not described in ter/s of freuenc) of flight per/issible altitude or t)pe of airplane$ #or is there a finding as to whether the ease/ent ta;en

was te/porar) or per/anent$ et an accurate description of the propert) ta;en is essential since that interest *ests in the -nited 3tates$ -nited

3tates *$ Cress supra D@ -$ 3$ @%@6 and cases cited$ It is true that the Court of Clai/s stated in its opinion that the ease/ent ta;en was

per/anent$ 'ut the deficienc) in findings cannot be rectified b) state/ents in the opinion$ -nited 3tates *$ snaultPelterie 66 -$ 3$ 01 66 -$

3$ 0508J -nited 3tates *$ 3e/inole #ation 66 -$ 3$ D17 66 -$ 3$ D$ Findings of fact on e*er) /aterial issue are a statutor) reuire/ent$

5@ 3tat$ 75 % -$3$C$ X %%$ The i/portance of findings of fact based on e*idence is e/phasized here b) the Court of Clai/sK treat/ent of the

nature of the ease/ent$ It stated in its opinion that the ease/ent was per/anent because the -nited 3tates no doubt intended to /a;e so/e sort

of arrange/ent whereb) it could use the airport for its /ilitar) planes whene*er it had occasion to do so$ That sounds /ore li;e con+ecture rather

than a conclusion fro/ e*idence and if so it would not be a proper foundation for liabilit) of the -nited 3tates$ ,e do not stop to e2a/ine the

e*idence to deter/ine whether it would support such a finding if /ade$ For that is not our function$ -nited 3tates *$ snaultPelterie supra p$ 66

-$ 3$ 08$

3ince on this record it is not clear whether the ease/ent ta;en is a per/anent or a te/porar) one it would be pre/ature for us to consider whether

the a/ount of the award /ade b) the Court of Clai/s was proper$

The +udg/ent is re*ersed and the cause is re/anded to the Court of Clai/s so that it /a) /a;e the necessar) findings in confor/it) with this

opinion$

!e*ersed$

NATIONAL POER CORPORATION v. HON. S#LVA G. AGUIRRE PADERANGA, et 0. ' SCRA /% $((4), THIRD DIVISION $Crpio

"or0es, B.)

The deter/ination of +ust co/pensation is a +udicial function and the reco//endation of the co//issioners is gi*en weight and consideration if the

sa/e is reasonable and +ust$

F"CT3:

#ational Power Corporation A#PCB filed a case for e2propriation against Petrona 4$ .ilao et al$ before !egional Trial Court of Cebu in*ol*ing

parcels of land located in Cebu$ 2propriation was instituted to i/ple/ent Le)teCebu Interconnection Pro+ect$ " da) after the co/plaint was filed

#PC filed an urgent e2 parte /otion for the issuance of writ of possession of the lands$

The !TC issued an order granting #PCYs /otion$ It appointed @ 'oard of Co//issioners to deter/ine +ust co/pensation$ The board reco//ended

appraisal of parcel of land coowned b) .ilao et al$ at P518$88 per suare /eter$ Howe*er #PC filed an opposition assailing the correctness of the

appraisal for failing to ta;e into account !epublic "ct #o$ 8@65 which pro*ides that the +ust co/pensation for rightofwa) ease/ent shall be

eui*alent to ten percent A10B of the /ar;et *alue of the propert)$ #PC asserted that .igao et al$ could still use the tra*ersed land for agricultural

purposes sub+ect onl) to its ease/ent$ It added that the lots were of no use to its operations e2cept for its trans/ission lines$ The !TC rendered itsdecision ordering #PC to pa) fair /ar;et *alue at P518$88 per suare /eter$ #PC appealed but the sa/e was denied due to failure to file and

perfect its appeal within the prescribed period$ " /otion for e2ecution of +udg/ent was subseuentl) filed b) .ilao et al$ which was granted b) the

lower court$ 4n appeal the C" affir/ed the lower courtYs decision$ Hence this petition$

I33-:

,hether or not !TC abused its authorit) b) /isappl)ing the rules go*erning fair *aluation

HL.:

In finding that the trial court did not abuse its authorit) in e*aluating the e*idence and the reports placed before it nor did it /isappl) the rules

go*erning fair *aluation the Court of "ppeals found the /a+orit) reportRs *aluation of P500 per suare /eter to be fair$ 3aid factual finding of the

Court of "ppeals absent an) showing that the *aluation is e2orbitant or otherwise un+ustified is binding on the parties as well as this Court$

Indeed e2propriation is not li/ited to the acuisition of real propert) with a corresponding transfer of title or possession$ The rightofwa) ease/ent

resulting in a restriction or li/itation on propert) rights o*er the land tra*ersed b) trans/ission lines as in the present case also falls within the

a/bit of the ter/ Ze2propriation$



Fro/ the Co//issionerYs report it cannot be gainsaid that #PCYs co/plaint /erel) in*ol*es a si/ple case of /ere passage of trans/ission lines

o*er .ilao et al$Ys propert)$ "side fro/ the actual da/age done to the propert) tra*ersed b) the trans/ission lines the agricultural and econo/ic

acti*it) nor/all) underta;en on the entire propert) is unuestionabl) restricted and perpetuall) ha/pered as the en*iron/ent is /ade dangerous to

the occupantYs life and li/b$ The deter/ination of +ust co/pensation in e2propriation proceedings being a +udicial function the Court finds the

co//issionersY reco//endation of P518$88 per suare /eter which was appro*ed b) the trial court to be +ust and reasonable co/pensation for

the e2propriated propert) of .ilao and her siblings$

Ri=8r!s v. s8in7ton Terin0 Co., 66 U.S. 4' $%5%)

3)llabus

"lthough in ngland Parlia/ent being o/nipotent /a) authorize the ta;ing of pri*ate propert) for public use without co/pensation the nglish

courts decline to place an un+ust construction on its acts and unless so clear as not to ad/it an) other /eaning do not interpret the/ as

interfering with rights of pri*ate propert)$

Legislation of Congress is different fro/ that of Parlia/ent as it /ust be construed in the light of that pro*ision of the Fifth "/end/ent which

forbids the ta;ing of pri*ate propert) for public use without co/pensation$

,hile Congress /a) legalize within the sphere of its +urisdiction what otherwise would be a public nuisance it /a) not confer i//unit) fro/ action

for a pri*ate nuisance of such a character as to a/ount in effect to a ta;ing of pri*ate propert) for public use$

,hile the owners of a railroad constructed and operated for the public use although with pri*ate propert) for pri*ate gain are not in the absence of

negligence sub+ect to action in behalf of owners of neighboring pri*ate propert) for the ordinar) da/ages attributable to the operation of the

railroad a propert) owner /a) be entitled to co/pensation for such special da/ages as de*ol*e e2clusi*el) upon his propert) and not euall)

upon all the neighboring propert)$

In this case held that an owner of propert) near the portal of a tunnel in the .istrict of Colu/bia constructed under authorit) of Congress while not

entitled to co/pensation for da/ages caused b) the usual gases and s/o;e e/itted fro/ the tunnel b) reason of the proper operation of the

railroad is entitled to co/pensation for such direct peculiar and substantial da/ages as speciall) affect his propert) and di/inish its *alue$

The facts which in*ol*e the right under the Fifth "/end/ent of an owner to be co/pensated for special and peculiar da/ages to his propert) b)

reason of the operation of a railroad near the pre/ises are stated in the opinion$

?!$ >-3TIC PIT# deli*ered the opinion of the Court$

Plaintiff in error who was plaintiff below co//enced this action in the 3upre/e Court of the .istrict of Colu/bia to reco*er for the da/age to his

propert) resulting fro/ the /aintenance of an alleged nuisance b) defendant b) /eans of the operation of a railroad and tunnel upon its own lands

near to but not ad+oining those of plaintiff$ .efendant ha*ing pleaded not guilt) the issue ca/e on for trial b) +ur) and at the conclusion of

plaintiffKs e*idence a *erdict was directed in fa*or of defendant$ The court of appeals affir/ed the +udg/ent A@7 "pp$.$C$ %6B and a writ of error

brings the contro*ers) under the re*iew of this Court$

"n agreed abridg/ent of the e*idence upon which the ruling of the trial +ustice was based is e/bodied in the bill of e2ceptions$ Fro/ this it appears

that plaintiff is and has been since the )ear 1601 the owner of Lot @D in 3uare 86@ in the Cit) of ,ashington ha*ing a frontage of 0 ft$ upon the

westerl) side of #ew >erse) "*enue 3outheast and an a*erage depth of %1 ft$ with i/pro*e/ents thereon consisting of a threestor) and

base/ent bric; dwelling house containing ten roo/s ;nown as #o$ D15 #ew >erse) "*enue$ The rear windows upon all the floors of the house

open in the direction of the railroad trac;s that lead fro/ defendantKs tunnel$ The south portal of this tunnel opens within 3uare 86@ and near its

northeasterl) corner and the tunnel e2tends thence in a northeasterl) direction passing under the Capitol and Librar) grounds and First 3treet #$$

to the -nion 3tation at ?assachusetts "*enue$ There are two sets of railroad trac;s in the tunnel and leading fro/ it and as these e/erge fro/ the

south portal the) e2tend in a general southwesterl) direction up an incline or grade across the central portion of 3uare 86@ on to an ele*ated

structure which carries the trac;s o*er and be)ond 3outh Capitol 3treet$ The tunnel and these trac;s are used for the passage of trains running

both northwardl) and southwardl) about thirt) each da) all of the/ being passenger trains with the e2ception of an occasional shifting engine$ The

trains freuentl) pass in and out of the tunnel without stopping but trains also *er) often stop at or near a switch tower that is situate near the

center of 3uare 86@$ Fro/ the nearest portion of plaintiffKs house to the center of the south portal the distance in a straight line is about 11D ft$

there being three inter*ening dwelling houses two of which ha*e been purchased and are now owned b) defendant$ Fro/ the rear end of plaintiffKslot to the /iddle of the trac;s southwestwardl) fro/ the portal the distance in a straight line is about 60 ft$ PlaintiffKs propert) has been da/aged b)

the *olu/es of dense blac; or gra) s/o;e and also b) dust and dirt cinders and gases e/itted fro/ the trains while passing o*er the trac;s and

in or out of the tunnel or standing upon the trac;s near the signal tower$ There is a fanning s)ste/ installed in the tunnel which causes the gases

and s/o;e e/itted fro/ engines while in the tunnel to be forced out of the south portal and these gases and s/o;e conta/inate the air and also

add to the incon*enience suffered b) plaintiff in the occupation of his propert)$ His house was pleasant and co/fortable for purposes of occupation

before the construction of the tunnel and trac;s but since then it has not onl) depreciated in *alue but the tenant re/o*ed therefro/ and plaintiff

was obliged to occup) the house hi/self b) reason of his inabilit) to rent it$ The propert) has depreciated fro/ a *alue of about U5500 to about

UD000 and the rental *alue fro/ U@0 per /onth to U0 per /onth$ The furniture and other belongings in the house ha*e been depreciated fro/ a

*alue of U100 to U800 all of which depreciation is due to the presence of s/o;e cinders and gases e/itted fro/ passing trains and fro/ the

/outh of the tunnel which s/o;e cinders and gases enter the dwelling house and settle upon the furniture and other personal propert) contained

in it conta/inating the air and rendering the house ob+ectionable as a habitation$ The house has also been da/aged b) *ibrations caused b) the

/o*e/ent of trains on the trac; or in the tunnel resulting in crac;ing the walls and wallpaper brea;ing glass in the windows and disturbing the

peace and slu/ber of the occupants$

The defendant the ,ashington Ter/inal Co/pan) is the owner of the tunnel and of the trac;s therein but its ownership of trac;s ceases at the

south portal$ The trac;s e2tending therefro/ in a southwesterl) direction are owned and used b) other railroad co/panies but the /o*e/ent of the

trains is controlled b) defendant$



The tunnel and the trac;s leading fro/ it across 3uare 86@ were located and constructed and are now /aintained under the authorit) of "cts of

Congress of Februar) 1 1601 and Februar) % 160@ @1 3tat$ 77D c$ @5DJ @ 3tat$ 606 c$ %58 in accordance with plans and specifications

appro*ed b) those acts$ #o clai/ is /ade b) plaintiff that the tunnel the trac;s in 3uare 86@ and the trains operated therein and thereon were

constructed operated or /aintained in a negligent /anner and it is conceded that the tunnel and trac;s were built upon propert) acuired b)

purchase or conde/nation proceedings and were constructed under authorit) of the acts of Congress and of per/its issued b) the Co//issioners

of the .istrict of Colu/bia$

3uch being the essential facts to be deduced fro/ the e*idence we ha*e reached the conclusion for reasons presentl) to be stated that with

respect to /ost of the ele/ents of da/age to which the plaintiffKs propert) has been sub+ected the courts below correctl) held the/ to be da/nu/

absue in+uriaJ but that with respect to such da/age as is attributable to the gases and s/o;e e/itted fro/ loco/oti*e engines while in the tunnel

and forced out of it b) /eans of the fanning s)ste/ through a portal located so near to plaintiffKs propert) that these gases and s/o;e /ateriall)contribute to in+ure the furniture and to render the house less habitable than otherwise it would be there is a right of reco*er)$

The acts of Congress referred to followed b) the construction of the tunnel and railroad trac;s substantiall) in the /ode prescribed had the effect

of legalizing the construction and operation of the railroad so that its operation while properl) conducted and regulated cannot be dee/ed to be a

public nuisance$ et it is sufficientl) ob*ious that the acts done b) defendant if done without legislati*e sanction would for/ the sub+ect of an action

b) plaintiff to reco*er da/ages as for a pri*ate nuisance$

"t the sa/e ti/e there is no e2clusi*e and per/anent appropriation of an) portion of plaintiffKs land which indeed does not e*en abut upon

defendantKs propert)$ The acts of Congress do not in ter/s pro*ide for the pa)/ent of co/pensation to propert) owners da/nified through the

construction and operation of the tunnel and railroad lines in uestion e2cept to those whose lands or a portion thereof were necessaril)

appropriated$ For da/ages whether direct or conseuential to noncontiguous parcels such as that of plaintiff there is no e2press pro*ision$ 'ut X

6 of the "ct of 160@ @ 3tat$ 618 c$ %58 authorizes the Ter/inal Co/pan) to acuire b) purchase or conde/nation the lands and propert)

necessar) for all and e*er) the purposes conte/plated b) the se*eral acts of Congress under which the tunnel and railroad were constructed and

are operated$ This grant of the power of conde/nation is *er) broad but it has not been acted upon b) the co/pan) in the case of the present

plaintiff$ "nd since he is not wholl) e2cluded fro/ the use and en+o)/ent of his propert) there has been no ta;ing of the land in the ordinar)

sense$

The courts of ngland in a series of decisions ha*e dealt with the general sub+ect now under consideration$ !e2 *$ Pease D 'arn$ 9 "d$ @0 D0 1

#e*$ 9 ?$ 860 L$>$ ?ag$ Cas$ #$3$ 8 ng$ !ul$ Cas$ 71J =aughan *$ Taff =ale !$ Co$ 5 Hurl$ 9 #or$ 876 6 L$>$ 2ch$ D7 1 ng$!ul$Cas$

68J >ones *$ Festiniog !)$ Co$ L$!$ @ [$'$ 7@@J Ha//ers/ith 9c$ !)$ Co$ *$ 'rand L$!$ D H$L$ 171 @% L$>$[$'$ 85 1 ng$!ul$Cas$ 8@J

?etropolitan "s)lu/ .istrict *$ Hill L$!$ 8 "pp$Cas$ 16@ 01 0@J London 9 'righton !)$ Co$ *$ Tru/an L$!$ 11 "pp$Cas$ D5$ The rule to be

deduced fro/ these cases is that while no action will lie for an in*asion of pri*ate rights necessaril) resulting fro/ the establish/ent and operation

of railwa)s and other public wor;s under the e2press sanction of an act of Parlia/ent )et that such acts are to be strictl) construed so as not to

i/pair pri*ate rights unless the legislati*e purpose to do so appears b) e2press words or necessar) i/plication$ In short Parlia/ent being

o/nipotent /a) authorize the ta;ing of pri*ate propert) for public use without co/pensation to the owner but the courts decline to place an un+ust

construction upon its acts and will not interpret the/ as interfering with rights of pri*ate propert) unless the language be so clear as to ad/it of no

other /eaning$

'ut the legislation we are dealing with /ust be construed in the light of the pro*ision of the Fifth "/end/ent #or shall pri*ate propert) be ta;en

for public use without +ust co/pensation and is not to be gi*en an effect inconsistent with its letter or spirit$ The doctrine of the nglish cases has

been generall) accepted b) the courts of this countr) so/eti/es with scant regard for distinctions growing out of the constitutional restrictions upon

legislati*e action under our s)ste/$ Thus it has been said that a railroad authorized b) law and lawfull) operated cannot be dee/ed a pri*ate

nuisanceJ that what the legislature has authorized to be done cannot be dee/ed unlawful etc$ These and si/ilar e2pressions ha*e at ti/es been

indiscri/inatel) e/plo)ed with respect to public and to pri*ate nuisances$ ,e dee/ the true rule under the Fifth "/end/ent as under state

constitutions containing a si/ilar prohibition to be that while the legislature /a) legalize what otherwise would be a public nuisance it /a) not

confer i//unit) fro/ action for a pri*ate nuisance of such a character as to a/ount in effect to a ta;ing of pri*ate propert) for public use$

Penns)l*ania !$ Co$ *$ "ngel D1 #$>$$ @18 @6J Costigan *$ Penns)l*ania !$ Co$ 5D #$>$L$ @@J Cogswell *$ #$$ #$H$ 9 H$ !$ Co$ 10@ #$$ 10J

<ar*e) *$ Long Island !$ Co$ 156 #$$ @@J 'ohan *$ Port >er*is <as Light Co$ 1 #$$ 1% 6J 3adlier *$ Cit) of #ew or; %1 #$$3$ @0%$

'ut the uestion re/ains in cases of the class now before us what is to be dee/ed a pri*ate nuisance such as a/ounts to a ta;ing of propert)N

"nd b) a great and preponderant weight of +udicial authorit) in those states whose constitutions contain a prohibition of the ta;ing of pri*ate

propert) for public use without co/pensation substantiall) in the for/ e/plo)ed in the Fifth "/end/ent it has beco/e established that railroads

constructed and operated for the public use although with pri*ate capital and for pri*ate gain are not sub+ect to actions in behalf of neighboringpropert) owners for the ordinar) da/ages attributable to the operation of the railroad in the absence of negligence$ 3uch roads are treated as

public highwa)s and the proprietors as public ser*ants with the e2e/ption nor/all) en+o)ed b) such ser*ants fro/ liabilit) to pri*ate suit so far as

concerns the incidental da/ages accruing to owners of nonad+acent land through the proper and s;illful /anage/ent and operation of the railwa)s$

"n) di/inution of the *alue of propert) not directl) in*aded nor peculiarl) affected but sharing in the co//on burden of incidental da/ages arising

fro/ the legalized nuisance is held not to be a ta;ing within the constitutional pro*ision$ The i//unit) is li/ited to such da/ages as naturall) and

una*oidabl) result fro/ the proper conduct of the road and are shared generall) b) propert) owners whose lands lie within range of the

incon*eniences necessaril) incident to pro2i/it) to a railroad$ It includes the noises and *ibrations incident to the running of trains the necessar)

e/ission of s/o;e and spar;s fro/ the loco/oti*es and si/ilar anno)ances inseparable fro/ the nor/al and nonnegligent operation of a railroad$

Transportation Co$ *$ Chicago 66 -$ 3$ 8@5 66 -$ 3$ 8D1J 'ese/an *$ Penns)l*ania !$ Co$ 50 #$>$L$ @5 D0 1@ "$ 18D affKd 5 #$>$L$ 1$

That the constitutional inhibition against the ta;ing of pri*ate propert) for public use without co/pensation does not confer a right to co/pensation

upon a landowner no part of whose propert) has been actuall) appropriated and who has sustained onl) those conseuential da/ages that are

necessaril) incident to pro2i/it) to the railroad has been so generall) recognized that in so/e of the states A"r;ansas California Colorado

<eorgia Illinois Louisiana ?ississippi ?issouri ?ontana #ebras;a #orth .a;ota 3outh .a;ota Te2as ,est =irginia and ,)o/ing are webelie*e a/ong the nu/berB constitutions ha*e been established pro*iding in substance that pri*ate propert) shall not be ta;en or da/aged for

public use without co/pensation$

The i//unit) fro/ liabilit) for incidental in+uries is attended with a considerable degree of hardship to the pri*ate landowner and has not been

adopted without so/e +udicial protest$ 'ut as pointed out b) Chief >ustice 'easle) in the 'ese/an case 50 #$>$L$ at p$ @% if railroad co/panies



were liable to suit for such da/ages upon the theor) that with respect to the/ the co/pan) is a tortfeasor the practical result would be to bring

the operation of railroads to a standstill$ "nd on the whole the doctrine has beco/e so well established that it a/ounts to a rule of propert) and

should be /odified if at all onl) b) the law/a;ing power$

'ut the doctrine being founded upon necessit) is li/ited accordingl)$ This Court in a leading case that we dee/ controlling upon the uestions

now at issue had occasion to recognize this and at the sa/e ti/e to appl) the distinction between public and pri*ate nuisances with respect to the

pri*ate right of action$ In 'alti/ore 9 Poto/ac !$ Co$ *$ Fifth 'aptist Church 10% -$ 3$ @17 the Court while recognizing Ap$ 10% -$ 3$ @@1B that the

legislati*e authorit) for operating a railwa) carried with it an i//unit) fro/ pri*ate actions based upon those incidental incon*eniences that are

una*oidabl) attendant upon the operation of a railroad ne*ertheless sustained the right of action in a case where a building for housing and

repairing loco/oti*e engines was unnecessaril) established in close pro2i/it) to a place of public worship and so used that the noises of the shop

and the ru/bling of the loco/oti*e engines passing in and out the blowing off of stea/ the ringing of bells the sound of whistles and the s/o;efro/ the chi/ne)s created a constant disturbance of the religious e2ercises$ The Court Aspea;ing b) ?r$ >ustice FieldB held that the authorit) of the

co/pan) to construct such wor;s as it /ight dee/ necessar) and e2pedient for the co/pletion and /aintenance of its road did not authorize it to

place the/ where*er it /ight thin; proper in the cit) without reference to the propert) and rights of others and that whate*er the e2tent of the

authorit) conferred it was acco/panied with the i/plied ualification that the wor;s should not be so placed as b) their use to unreasonabl)

interfere with and disturb the peaceful and co/fortable en+o)/ent of others in their propert)$ In the language of the opinion:

<rants of pri*ileges or powers to corporate bodies li;e those in uestion confer no license to use the/ in disregard of the pri*ate rights of others

and with i//unit) for their in*asion$

The reasoning proceeded upon the ground Ap$ 10% -$ 3$ @@B that no authorit) conferred b) Congress would +ustif) an in*asion of pri*ate propert)

to an e2tent a/ounting to an entire depri*ation of its use and en+o)/ent without co/pensation to the owner nor could such authorit) be in*o;ed to

+ustif) acts creating ph)sical disco/fort and anno)ance to others in the use and en+o)/ent of their propert) to a less e2tent than entire depri*ation

if different places fro/ those occupied could be used b) the corporation for its purposes without causing such disco/fort and anno)ance and

hence that the legislati*e authorization conferred e2e/ption onl) fro/ suit or prosecution for the public nuisance and did not affect an) clai/ of a

pri*ate citizen for da/ages for an) special incon*enience and disco/fort not e2perienced b) the public at large$

The present case in the single particular alread) alluded to that is to sa) with respect to so /uch of the da/age as is attributable to the gases

and s/o;e e/itted fro/ loco/oti*e engines while in the tunnel and forced out of it b) the fanning s)ste/ therein installed and issuing fro/ the

portal located near to plaintiffKs propert) in such /anner as to /ateriall) contribute to render his propert) less habitable than otherwise it would be

and to depreciate it in *alue and this without so far as appears an) real necessit) e2isting for such da/age is in our opinion within the reason

and authorit) of the decision +ust cited$ This case differs fro/ that of the 'aptist Church in that there the railroad co/pan) was free to select so/e

other location for the repair shop and engine house while here the e*idence shows that the location of the tunnel and its south portal was

established pursuant to law and not *oluntaril) chosen b) defendant$ This circu/stance howe*er does not as we thin; afford sufficient ground for

a distinction affecting the result$ The case shows that Congress has authorized and in effect co//anded defendant to construct its tunnel with a

portal located in the /idst of an inhabited portion of the cit)$ The authorit) no doubt includes the use of stea/ loco/oti*e engines in the tunnel

with the ine*itable conco/itants of foul gases and s/o;e e/itted fro/ the engines$ #o uestion is /ade but that it includes the installation and

operation of a fanning s)ste/ for ridding the tunnel of this source of disco/fort to those operating the trains and tra*eling upon the/$ "ll this being

granted the special and peculiar da/age to the plaintiff as a propert) owner in close pro2i/it) to the portal is the necessar) conseuence unless

at least it be feasible to install *entilating shafts or other de*ices for pre*enting the outpouring of gases and s/o;e fro/ the entire length of the

tunnel at a single point upon the surface as at present$ Construing the acts of Congress in the light of the Fifth "/end/ent the) do not authorize

the i/position of so direct and peculiar and substantial a burden upon plaintiffKs propert) without co/pensation to hi/$ If the da/age is not

pre*entible b) the e/plo)/ent at reasonable e2pense of de*ices such as ha*e been suggested then plaintiffKs propert) is necessar) for the

purposes conte/plated and /a) be acuired b) purchase or conde/nation A@ 3tat$ 618 c$ %58 X 6B and pending its acuisition defendant is

responsible$ If the da/age is readil) pre*entible the statute furnishes no e2cuse and defendantKs responsibilit) follows on general principles$

#o doubt there will be so/e practical difficult) in distinguishing between that part of the da/age which is attributable to the gases and s/o;e

e/itted fro/ the loco/oti*e engines while operated upon the railroad trac;s ad+acent to plaintiffKs land and with respect to which we hold there is

no right of action and da/age that arises fro/ the gases and s/o;e that issue fro/ the tunnel and with respect to which there appears to be a

right of action$ How this difficult) is to be sol*ed in order to deter/ine the da/ages that should be assessed in this action or the co/pensation that

should be awarded in case conde/nation proceedings are resorted to is a uestion not presented b) this record and upon which therefore no

opinion is e2pressed$

>udg/ent re*ersed and cause re/anded to the court of appeals with directions to re*erse the +udg/ent of the 3upre/e Court of the .istrict andre/and the cause to that court with directions for a new trial and for further proceedings in accordance with the *iews abo*e e2pressed$

J*e+on Cit? vs Eri=t Cse Di7est

<$!$ #o$ L@D615 >une D 16%@

F"CT3:

This is a petition for re*iew which see;s the re*ersal of the decision of the Court of First Instance of !izal 'ranch =III declaring 3ection 6 of

4rdinance #o$ 811% 38D of the [uezon Cit) Council null and *oid$ 3ection 6 of 4rdinance #o$ 811% 38D entitled 4!.I#"#C !<-L"TI#<

TH 3T"'LI3H?#T ?"I#T#"#C "#. 4P!"TI4# 4F P!I="T ??4!I"L TP C?T! 4! '-!I"L <!4-#. ,ITHI# TH

>-!I3.ICTI4# 4F [-G4# CIT "#. P!4=I.I#< P#"LTI3 F4! TH =I4L"TI4# TH!4F pro*ides: 3ec$ 6$ "t least si2 A8B percent of

the total area of the /e/orial par; ce/eter) shall be set aside for charit) burial of deceased persons who are paupers and ha*e been residents of

[uezon Cit) for at least 5 )ears prior to their death to be deter/ined b) co/petent Cit) "uthorities$ The area so designated shall i//ediatel) bede*eloped and should be open for operation not later than si2 /onths fro/ the date of appro*al of the application$ For se*eral )ears the

aforeuoted section of the 4rdinance was not enforced b) cit) authorities but se*en )ears after the enact/ent of the ordinance the [uezon Cit)

Council passed the following resolution: !34L=. b) the council of [uezon asse/bled to reuest as it does hereb) reuest the Cit) ngineer

[uezon Cit) to stop an) further selling andor transaction of /e/orial par; lots in [uezon Cit) where the owners thereof ha*e failed to donate the

reuired 8 space intended for paupers burial$ Pursuant to this petition the [uezon Cit) ngineer notified respondent Hi/la)ang Pilipino Inc$ in



writing that 3ection 6 of 4rdinance #o$ 811% 38D would be enforced !espondent Hi/la)ang Pilipino reacted b) filing with the Court of First

Instance of !izal 'ranch =III at [uezon Cit) a petition for declarator) relief prohibition and /anda/us with preli/inar) in+unction A3p$ Proc$ #o$

[1800B see;ing to annul 3ection 6 of the 4rdinance in uestion The respondent alleged that the sa/e is contrar) to the Constitution the [uezon

Cit) Charter the Local "utono/) "ct and the !e*ised "d/inistrati*e Code$ Petitioners argue that the ta;ing of the respondentKs propert) is a *alid

and reasonable e2ercise of police power and that the land is ta;en for a public use as it is intended for the burial ground of paupers$ The) further

argue that the [uezon Cit) Council is authorized under its charter in the e2ercise of local police power to /a;e such further ordinances and

resolutions not repugnant to law as /a) be necessar) to carr) into effect and discharge the powers and duties conferred b) this "ct and such as it

shall dee/ necessar) and proper to pro*ide for the health and safet) pro/ote the prosperit) i/pro*e the /orals peace good order co/fort and

con*enience of the cit) and the inhabitants thereof and for the protection of propert) therein$ 4n the other hand respondent Hi/la)ang Pilipino

Inc$ contends that the ta;ing or confiscation of propert) is ob*ious because the uestioned ordinance per/anentl) restricts the use of the propert)

such that it cannot be used for an) reasonable purpose and depri*es the owner of all beneficial use of his propert)$ The respondent also stressesthat the general welfare clause is not a*ailable as a source of power for the ta;ing of the propert) in this case because it refers to the power of

pro/oting the public welfare b) restraining and regulating the use of libert) and propert)$ The respondent points out that if an owner is depri*ed of

his propert) outright under the 3tateKs police power the propert) is generall) not ta;en for public use but is urgentl) and su//aril) destro)ed in

order to pro/ote the general welfare$ The respondent cites the case of a nuisance per se or the destruction of a house to pre*ent the spread of a

conflagration$

I33-: ,hether or not the 3ection 6 of 4rdinance #o$ 811% 38D is a *alid e2ercise of police powerN

HL.: ,e find the stand of the pri*ate respondent as well as the decision of the respondent >udge to be wellfounded$ ,e uote with appro*al

the lower courtKs ruling which declared null and *oid 3ection 6 of the uestioned cit) ordinance$ "n e2a/ination of the Charter of [uezon Cit) A!ep$

"ct #o$ 5@7B does not re*eal an) pro*ision that would +ustif) the ordinance in uestion e2cept the pro*ision granting police power to the Cit)$

3ection 6 cannot be +ustified under the power granted to [uezon Cit) to ta2 fi2 the license fee and regulate such other business trades and

occupation as /a) be established or practised in the Cit)$K The power to regulate does not include the power to prohibit$ " fortiori the power to

regulate does not include the power to confiscate$ The ordinance in uestion not onl) confiscates but also prohibits the operation of a /e/orial par;ce/eter) because under 3ection 1@ of said ordinance K=iolation of the pro*ision thereof is punishable with a fine andor i/prison/ent and that

upon con*iction thereof the per/it to operate and /aintain a pri*ate ce/eter) shall be re*o;ed or cancelled$K Police power is defined b) Freund as

Kthe power of pro/oting the public welfare b) restraining and regulating the use of libert) and propert)K$ It is usuall) e2erted in order to /erel)

regulate the use and en+o)/ent of propert) of the owner$ If he is depri*ed of his propert) outright it is not ta;en for public use but rather to destro)

in order to pro/ote the general welfare$ In police power the owner does not reco*er fro/ the go*ern/ent for in+ur) sustained in conseuence

thereof$ It will be seen fro/ the foregoing authorities that police power is usuall) e2ercised in the for/ of /ere regulation or restriction in the use of

libert) or propert) for the pro/otion of the general welfare$ It does not in*ol*e the ta;ing or confiscation of propert) with the e2ception of a few

cases where there is a necessit) to confiscate pri*ate propert) in order to destro) it for the purpose of protecting the peace and order and of

pro/oting the general welfare as for instance the confiscation of an illegall) possessed article such as opiu/ and firear/s$

PPI *s$ C4?LC AsupraB

Facts:

4n ?arch 1665 C4?LC pro/ulgated !esolution #o$ 77 stating that theCo//ission shall ha*e free print space of not less than onehalf

page in at least one newspaper in e*er) pro*ince or cit) as \ Co/elec 3pace] This ad space will be used b) candidates for their ca/paign and

platfor/s of go*ern/ent and for the Co//ission^s disse/ination of *italinfor/ation$ ?oreo*er C4?LC released a letterdirecti*e ordering the

different newspapersto co/pl) with the said resolution$ The petitioner Philippine Press Institute APPIB filed apetition contending that C4?LC

*iolated the prohibition i/posed b) the Constitution against the ta;ing of properties without +ust co/pensation due to 3ec $ ?oreo*er thedirecti*e

of C4?LC a/ounts to in*oluntar) ser*itude and *iolation of the freedo/ of e2pression and of the press due to 3ec %$ 4n the other hand

C4?LC asserts their directi*eis not /andator) and co/pelling$ The) onl) as; for a donation$ The) a*er that e*en if theorder is /andator) it

would still be *alid through the use of police power$

Issue:

Is C4?LCRs action constitutional through the e2ercise of police powerN

Held:

#o$ Loo;ing at 3ec it see/s that respondent is correct that the order to gi*e a free space to C4?LC is not /andator) as there is no

co/pelling language or an) cri/inal or ad/inistrati*e charges for *iolation$ The respondents reason for creating the resolution was due to the

*oluntar) offers gi*en b) the newspaper co/pan) in the 166 electionsto help the/ ad*ertise i/portant election /atters$ Howe*er the court will

ha*e to disagree that e*en if the order is /andator) it would still be *alid as an e2ercise of police power$ First onl) thelegislature can e2ercise

olice power e2cept if it is delegated to so/e other bod)$ The C4?LC did not gi*e an) effort to specif) e*idences that the) were gi*en police

ower $"ccording to the Constitution when a propert) is ta;en it /ust be gi*en a +ust co/pensation$ In the case at bar there is no +ust

co/pensation as the newspapers will gi*e the space for free as a donation$ ?oreo*er there was no showing of reasonable necessit) or

e/ergenc) for theta;ing of print space confronted the Co//ission$ Howe*er 3ec % still stands as it is within the power of C4?LC to control the

/edia influences of candidates to pre*ent uneualca/paigns$Petition is partiall) granted$ 3ec is not /andator) and 3ec % is *alid$

Consti 2 Full texts

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Transcript of Consti 2 Full texts