LOC GOV.. ATTY FERNANDEZ See Secs. 19, 20, and 21 Cases: - Moday vs.

CA, 243 SCRA 152 - Municipality of Paranaque vs. VM Realty Corp, 292 SCRA 676 - Pilapil vs. CA, 216 SCRA 33 - Macasiano vs. Diokno, 212 SCRA 464 - Cabrera vs. CA, 195 SCRA 314 - Cebu Oxygen vs. Berciles, 66 SCRA 481 - Favis vs. City of Baguio, 29 SCRA 456 - Cruz vs. CA, 153 SCRA 142

the registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party defendants. On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon the Possession of Subject Matter of This Case stating that it had already deposited with the municipal treasurer the necessary amount in accordance with Section 2, Rule 67 of the Revised Rules of Court and that it would be in the government's best interest for public respondent to be allowed to take possession of the property. Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court granted respondent municipality's motion to take possession of the land. The lower court held that the Sangguniang Panlalawigan's failure to declare the resolution invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review the ordinances and resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old Local Government Code and that the exercise of eminent domain is not one of the two acts enumerated in Section 19 thereof requiring the approval of the Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's Order dated July 2, 1991 reads: WHEREFORE, it appearing that the amount of P632.39 had been deposited as per Official Receipt No. 5379647 on December 12, 1989 which this Court now determines as the provisional value of the land, the Motion to Take or Enter Upon the Possession of the Property filed by petitioner through counsel is hereby GRANTED. The Sheriff of this Court is ordered to forthwith place the plaintiff in possession of the property involved. Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose of ascertaining the just compensation or fair market value of the property sought to be taken, with notice to all the parties concerned. SO ORDERED.
6

G.R. No. 107916 February 20, 1997 PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners, vs. COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR AND MUNICIPALITY OF BUNAWAN, respondents.

ROMERO, J.: The main issue presented in this case is whether a municipality may expropriate private property by virtue of a municipal resolution which was disapproved by the Sangguniang Panlalawigan. Petitioner seeks the reversal of the Court of Appeals decision and resolution, promulgated on July 15, 1992 and October 22, 1992 respectively, 1 and a declaration that Municipal Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void. On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No. 43-89, "Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports Facilities." 2 In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the Sangguniang Panlalawigan for its approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved said Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still available lots in Bunawan for the establishment of the government center." 3 The Municipality of Bunawan, herein public respondent, subsequently filed a petition for Eminent Domain against petitioner Percival Moday before the Regional Trial Court at Prosperidad, Agusan del Sur. 4 The complaint was later amended to include

Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991. Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion on the part of the trial court, but the same was dismissed by respondent appellate court on July 15, 1992. 7 The Court of Appeals held that the public purpose for the expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed. Respondent appellate court also denied petitioners' motion for reconsideration on October 22, 1992. 8 Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of Barangay Councils (ABC) Hall, the Municipal Motorpool,

both wooden structures, and the Bunawan Municipal Gymnasium, which is made of concrete. In the instant petition for review filed on November 23, 1992, petitioner seeks the reversal of the decision and resolution of the Court of Appeals and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null and void. On December 8, 1993, the Court issued a temporary restraining order enjoining and restraining public respondent Judge Evangeline Yuipco from enforcing her July 2, 1991 Order and respondent municipality from using and occupying all the buildings constructed and from further constructing any building on the land subject of this petition. 9 Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a Resolution on March 15, 1995, citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to demolish the "blocktiendas" which were built in violation of the restraining order.
10

The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly provided for in Batas Pambansa Blg. 337, the local Government Code 18 in force at the time expropriation proceedings were initiated. Section 9 of said law states: Sec. 9. Eminent Domain. A local government unit may, through its head and acting pursuant to a resolution of its sanggunian, exercise the right of eminent domain and institute condemnation proceedings for public use or purpose. What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang Panlalawigan disapproved Resolution No. 43-89. Section 153 of B.P. Blg. 337 provides: Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days after receiving copies of approved ordinances, resolutions and executive orders promulgated by the municipal mayor, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial fiscal, who shall examine them promptly and inform the sangguniang panlalawigan in writing of any defect or impropriety which he may discover therein and make such comments or recommendations as shall appear to him proper. (2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such ordinance, resolution or executive order invalid in whole or in part, entering its actions upon the minutes and advising the proper municipal authorities thereof. The effect of such an action shall be to annul the ordinance, resolution or executive order in question in whole or in part. The action of the sangguniang panlalawigan shall be final. xxx xxx xxx (Emphasis supplied.) The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not render said resolution null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual milieu then obtaining, the Court's pronouncements in Velazco v. Blas, 19 where we cited significant early jurisprudence, are applicable to the case at bar. The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the council or president making the same." Absolutely no other ground is recognized by the law. A strictly legal question is before the provincial board in its consideration of a municipal

Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8, 1995 election. 11 The incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of the Temporary Restraining Order" and Memorandum on June 11, 1996 for the Municipality of Bunawan. 12 Petitioners contend that the Court of Appeals erred in upholding the legality of the condemnation proceedings initiated by the municipality. According to petitioners, the expropriation was politically motivated and Resolution No. 43-89 was correctly disapproved by the Sangguniang Panlalawigan, there being other municipal properties available for the purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo be ordered to pay damages for insisting on the enforcement of a void municipal resolution. The Court of Appeals declared that the Sangguniang Panlalawigan's reason for disapproving the resolution "could be baseless, because it failed to point out which and where are those available lots.'" Respondent court also concluded that since the Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid, expropriation of petitioners' property could proceed. 13 The Court finds no merit in the petition and affirms the decision of the Court of Appeals. Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. 14 It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. 15 Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. 16 For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation. 17

resolution, ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative function of the municipal council or president. Such has been the consistent course of executive authority. 20 Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property. As regards the accusation of political oppression, it is alleged that Percival Moday incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch plan. 21 The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process of law must be observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking, 23 has ruled that the necessity of exercising eminent domain must be genuine and of a public character. 24 Government may not capriciously choose what private property should be taken. After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations. The uncertified photocopy of the sketch plan does not conclusively prove that the municipality does own vacant land adjacent to petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent appellate court similarly held that the pleadings and documents on record have not pointed out any of respondent municipality's "other available properties available for the same purpose." 25 The accusations of political reprisal are likewise unsupported by competent evidence. Consequently, the Court holds that petitioners' demand that the former municipal mayor be personally liable for damages is without basis. WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and Resolution of the Court of Appeals in the case of "Percival Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are AFFIRMED. The Temporary Restraining Order issued by the Court on December 8, 1993 is LIFTED. SO ORDERED.

G.R. No. 97764 August 10, 1992 LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, Petitioner, vs. HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OF PARAAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE, Respondents. MEDIALDEA, J.: chanrobles virtual law library This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court of Makati, Branch 62, which granted the writ of preliminary injunction applied for by respondents Municipality of Paraaque and Palanyag Kilusang Bayan for Service (Palanyag for brevity) against petitioner herein.chanroblesvirtualawlibrary chanrobles virtual law library The antecedent facts are as follows: chanrobles virtual law library On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions.chanroblesvirtualawlibrary chanrobles virtual law library On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent municipality subject to the following conditions: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose the establishment of the flea market/vending areas thereon; chanrobles virtual law library 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; chanrobles virtual law library 3. That the time during which the vending area is to be used shall be clearly designated; chanrobles virtual law library 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter into contract with any

service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas.chanroblesvirtualawlibrary chanrobles virtual law library On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter shall operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the municipal government of Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets.chanroblesvirtualawlibrary chanrobles virtual law library On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag.chanroblesvirtualawlibrary chanrobles virtual law library On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall be dismantled.chanroblesvirtualawlibrary chanrobles virtual law library Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus with damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of preliminary injunction.chanroblesvirtualawlibrary chanrobles virtual law library On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16, 1990 pending the hearing on the motion for writ of preliminary injunction.chanroblesvirtualawlibrary chanrobles virtual law library On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag.chanroblesvirtualawlibrary chanrobles virtual law library Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to lack or excess of jurisdiction on the part of the trial judge in issuing the assailed order.chanroblesvirtualawlibrary chanrobles virtual law library The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Paraaque authorizing the lease and use of public streets or thoroughfares as sites for flea markets is valid.chanroblesvirtualawlibrary chanrobles virtual law library The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public properties; that as such, they cannot be subject to private appropriation or private contract by any person, even by the respondent Municipality of Paraaque. Petitioner submits that a property already

dedicated to public use cannot be used for another public purpose and that absent a clear showing that the Municipality of Paraaque has been granted by the legislature specific authority to convert a property already in public use to another public use, respondent municipality is, therefore, bereft of any authority to close municipal roads for the establishment of a flea market. Petitioner also submits that assuming that the respondent municipality is authorized to close streets, it failed to comply with the conditions set forth by the Metropolitan Manila Authority for the approval of the ordinance providing for the establishment of flea markets on public streets. Lastly, petitioner contends that by allowing the municipal streets to be used by market vendors the municipal council of respondent municipality violated its duty under the Local Government Code to promote the general welfare of the residents of the municipality.chanroblesvirtualawlibrary chanrobles virtual law library In upholding the legality of the disputed ordinance, the trial court ruled: . . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government units, the Municipality of Paraaque as such, is empowered under that law to close its roads, streets or alley subject to limitations stated therein (i.e., that it is in accordance with existing laws and the provisions of this code). xxx xxx xxx chanrobles virtual law library The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an encroachment of power legally vested to the municipality, precisely because when the municipality enacted the ordinance in question - the authority of the respondent as Police Superintendent ceases to be operative on the ground that the streets covered by the ordinance ceases to be a public thoroughfare. (pp. 33-34, Rollo) We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on the public streets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 337, otherwise known as Local Government Code, in connection with established principles embodied in the Civil Code an property and settled jurisprudence on the matter.chanroblesvirtualawlibrary chanrobles virtual law library The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article 424 of Civil Code states: Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities.chanroblesvirtualawlibrary chanrobles virtual law library All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and are therefore considered public properties of respondent municipality. Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga, L24440, March 28, 1968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress. One such example of this authority given by Congress to the local governments is the power to close roads as provided in Section 10, Chapter II of the Local Government Code, which states: Sec. 10. Closure of roads. - A local government unit may likewise, through its head acting pursuant to a resolution of its sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or place or any part of thereof shall be close without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed. (Emphasis ours). However, the aforestated legal provision which gives authority to local government units to close roads and other similar public places should be read and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting such authority of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic principle that properties of public dominion devoted to public use and made available to the public in general are outside the commerce of man and cannot be disposed of or leased by the local government unit to private persons. Aside from the requirement of due process which should be complied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other public property from public use when circumstances show that such property is no longer intended or necessary for public use or public service. When it is already withdrawn from public use, the property then becomes patrimonial property of the local government unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality can "use or convey them for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as Local Government Code. In one case, the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not being included in the City Development Plan. Thereafter, the City Council passes another resolution authorizing the sale of the said abandoned road through public bidding. We held therein that the City of Cebu is empowered to close a city street and to vacate or withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily used for vehicular traffic are still considered public property devoted to public use. In such case, the local government has no power to use it for another purpose or to dispose of or lease it to private persons. This limitation on the authority of the local government over public properties has been discussed and settled by this Court en banc in "Francisco

V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No. 93654, May 6, 1992." This Court ruled: There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease or others contract (Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860).chanroblesvirtualawlibrary chanrobles virtual law library As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect.chanroblesvirtualawlibrary chanrobles virtual law library The Executive Order issued by acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians. Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to noncompliance by respondent municipality of the conditions imposed by the former for the approval of the ordinance, to wit: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not oppose the establishment of the flea market/vending areas thereon; chanrobles virtual law library 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; chanrobles virtual law library 3. That the time during which the vending area is to be used shall be clearly designated; chanrobles virtual law library 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. (p. 38, Rollo)

Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of the ordinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of the residents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will show that this first condition has been met. Likewise, the designation by respondents of a time schedule during which the flea market shall operate is absent.chanroblesvirtualawlibrary chanrobles virtual law library Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the other observations of the Solicitor General when he said: . . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using the roads for a more direct access to the fire area, have to maneuver and look for other streets which are not occupied by stalls and vendors thereby losing valuable time which could, otherwise, have been spent in saving properties and lives.chanroblesvirtualawlibrary chanrobles virtual law library Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their patients to the hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine the tragedy of losing a life just because of a few seconds delay brought about by the inaccessibility of the streets leading to the hospital.chanroblesvirtualawlibrary chanrobles virtual law library The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is disrupted and school children have to get off at a distance still far from their schools and walk, rain or shine.chanroblesvirtualawlibrary chanrobles virtual law library Indeed one can only imagine the garbage and litter left by vendors on the streets at the end of the day. Needless to say, these cause further pollution, sickness and deterioration of health of the residents therein. (pp. 21-22, Rollo) Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to focus its attention solely on the argument that the use of public spaces for the establishment of a flea market is well within the powers granted by law to a local government which should not be interfered with by the courts.chanroblesvirtualawlibrary chanrobles virtual law library Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws such as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective,

the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare.chanroblesvirtualawlibrary chanrobles virtual law library As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls in public roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city streets and restore them to their specific public purpose.chanroblesvirtualawlibrary chanrobles virtual law library The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws applicable during its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already been repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other source of prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such rights were vested.chanroblesvirtualawlibrary chanrobles virtual law library ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which granted the writ of preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.

CEBU OXYGEN & ACETYLENE CO., INC., Petitioner, vs. HON. PASCUAL A. BERCILLES Presiding Judge, Branch XV, 14th Judicial District, and JOSE L. ESPELETA, Assistant Provincial Fiscal, Province of Cebu, representing the Solicitor General's Office and the Bureau of Lands, Respondents. CONCEPCION, Jr., J.: This is a petition for the review of the order of the Court of First Instance of Cebu dismissing petitioner's application for registration of title over a parcel of land situated in the City of Cebu.chanroblesvirtualawlibrary chanrobles virtual law library The parcel of land sought to be registered was only a portion of M. Borces Street, Mabolo, Cebu City. On September 23, 1968, the City Council of Cebu, through Resolution No. 2193, approved on October 3, 1968, declared the terminal portion of M. Borces Street, Mabolo, Cebu City, as an abandoned road, the same not being included in the City Development Plan. 1Subsequently, on December 19, 1968, the City Council of Cebu passed Resolution No. 2755, authorizing the Acting City Mayor to sell the land through a public bidding. 2Pursuant thereto, the lot was awarded to the herein petitioner being the highest bidder and on March 3, 1969, the City of

Cebu, through the Acting City Mayor, executed a deed of absolute sale to the herein petitioner for a total consideration of P10,800.00. 3By virtue of the aforesaid deed of absolute sale, the petitioner filed an application with the Court of First instance of Cebu to have its title to the land registered. 4 chanrobles virtual law library On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that the property sought to be registered being a public road intended for public use is considered part of the public domain and therefore outside the commerce of man. Consequently, it cannot be subject to registration by any private individual. 5 chanrobles virtual law library After hearing the parties, on October 11, 1974 the trial court issued an order dismissing the petitioner's application for registration of title. 6Hence, the instant petition for review.chanroblesvirtualawlibrary chanrobles virtual law library For the resolution of this case, the petitioner poses the following questions: (1) Does the City Charter of Cebu City (Republic Act No. 3857) under Section 31, paragraph 34, give the City of Cebu the valid right to declare a road as abandoned? and chanrobles virtual law library (2) Does the declaration of the road, as abandoned, make it the patrimonial property of the City of Cebu which may be the object of a common contract? (1) The pertinent portions of the Revised Charter of Cebu City provides: Section 31. Legislative Powers. Any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers: chanrobles virtual law library xxx xxx xxx chanrobles virtual law library

Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. (2) Since that portion of the city street subject of petitioner's application for registration of title was withdrawn from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract.chanroblesvirtualawlibrary chanrobles virtual law library Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." chanrobles virtual law library Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and unequivocal terms, states that: "Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." chanrobles virtual law library Accordingly, the withdrawal of the property in question from public use and its subsequent sale to the petitioner is valid. Hence, the petitioner has a registerable title over the lot in question.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the order dated October 11, 1974, rendered by the respondent court in Land Reg. Case No. N-948, LRC Rec. No. N-44531 is hereby set aside, and the respondent court is hereby ordered to proceed with the hearing of the petitioner's application for registration of title.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. G.R. No. 127820 July 20, 1998

(34) ...; to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed. From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road or street. In the case of Favis vs. City of Baguio, 7where the power of the city Council of Baguio City to close city streets and to vacate or withdraw the same from public use was similarly assailed, this court said: 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use.chanroblesvirtualawlibrary chanrobles virtual law library

MUNICIPALITY OF PARAAQUE, petitioner, vs. V.M. REALTY CORPORATION, respondent. PANGANIBAN, J.: A local government unit (LGU), like the Municipality of Paraaque, cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. The Local Government Code expressly and clearly requires an ordinance or a local law for the purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice. On the other hand, the principle of res judicata does not bar subsequent proceedings for the expropriation of the same property when all the legal requirements for its valid exercise are complied with.

Statement of the Case These principles are applied by this Court in resolving this petition for review on certiorari of the July 22, 1996 Decision 1 of the Court of Appeals 2 in CA GR CV No. 48048, which affirmed in toto 3 the Regional Trial Court's August 9, 1994 Resolution. 4 The trial court dismissed the expropriation suit as follows: The right of the plaintiff to exercise the power of eminent domain is not disputed. However, such right may be exercised only pursuant to an Ordinance (Sec. 19, R.A No. 7160). In the instant case, there is no such ordinance passed by the Municipal Council of Paraaque enabling the Municipality, thru its Chief Executive, to exercise the power of eminent domain. The complaint, therefore, states no cause of action. Assuming that plaintiff has a cause of action, the same is barred by a prior judgment. On September 29, 1987, the plaintiff filed a complaint for expropriation involving the same parcels of land which was docketed as Civil Case No. 17939 of this Court (page 26, record). Said case was dismissed with prejudice on May 18, 1988 (page 39, record). The order of dismissal was not appealed, hence, the same became final. The plaintiff can not be allowed to pursue the present action without violating the principle of [r]es [j]udicata. While defendant in Civil Case No. 17939 was Limpan Investment Corporation, the doctrine of res judicata still applies because the judgment in said case (C.C. No. 17939) is conclusive between the parties and their successors-in-interest (Vda. de Buncio vs. Estate of the late Anita de Leon). The herein defendant is the successor-in-interest of Limpan Investment Corporation as shown by the "Deed of Assignment Exchange" executed on June 13, 1990. WHEREFORE, defendant's motion for reconsideration is hereby granted. The order dated February 4, 1994 is vacated and set aside. This case is hereby dismissed. No pronouncement as to costs. SO ORDERED.
5

made an offer to enter into a negotiated sale of the property with private respondent, which the latter did not accept. 10 Finding the Complaint sufficient in form and substance, the Regional Trial Court of Makati, Branch 134, issued an Order dated January 10, 1994, 11 giving it due course. Acting on petitioner's motion, said court issued an Order dated February 4, 1994, 12 authorizing petitioner to take possession of the subject property upon deposit with its clerk of court of an amount equivalent to 15 percent of its fair market value based on its current tax declaration. On February 21, 1994, private respondent filed its Answer containing affirmative defenses and a counterclaim, 13 alleging in the main that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as required by RA 7160 (the Local Government Code); and (b) the cause of action, if any, was barred by a prior judgment or res judicata. On private respondent's motion, its Answer was treated as a motion to dismiss. 14 On March 24, 1991, 15 petitioner filed its opposition, stressing that the trial court's Order dated February 4, 1994 was in accord with Section 19 of RA 7160, and that the principle of res judicata was not applicable. Thereafter, the trial court issued its August 9, 1994 Resolution 16 nullifying its February 4, 1994 Order and dismissing the case. Petitioner's motions for reconsideration and transfer of venue were denied by the trial court in a Resolution dated December 2, 1994. 17 Petitioner then appealed to Respondent Court, raising the following issues: 1. Whether or not the Resolution of the Paraaque Municipal Council No. 93-95, Series of 1993 is a substantial compliance of the statutory requirement of Section 19, R.A. 7180 [sic] in the exercise of the power of eminent domain by the plaintiff-appellant. 2. Whether or not the complaint in this case states no cause of action. 3. Whether or not the strict adherence to the literal observance to the rule of procedure resulted in technicality standing in the way of substantial justice. 4. Whether or not the principle of res judicata is applicable to the present case. 18 As previously mentioned, the Court of Appeals affirmed in toto the trial court's Decision. Respondent Court, in its assailed Resolution promulgated on January 8, 1997, 19 denied petitioner's Motion for Reconsideration for lack of merit. Hence, this appeal.
20

Factual Antecedents Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, 6 the Municipality of Paraaque filed on September 20, 1993, a Complaint for expropriation 7 against Private Respondent V.M. Realty Corporation over two parcels of land (Lots 2-A-2 and 2-B-1 of Subdivision Plan Psd-17917), with a combined area of about 10,000 square meters, located at Wakas, San Dionisio, Paraaque, Metro Manila, and covered by Torrens Certificate of Title No. 48700. Allegedly, the complaint was filed "for the purpose of alleviating the living conditions of the underprivileged by providing homes for the homeless through a socialized housing project." 8 Parenthetically, it was also for this stated purpose that petitioner, pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, 9 previously

The Issues

Before this Court, petitioner posits two issues, viz.: 1. A resolution duly approved by the municipal council has the same force and effect of an ordinance and will not deprive an expropriation case of a valid cause of action. 2. The principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily involved. 21 The Court's Ruling The petition is not meritorious. First Issue: Resolution Different from an Ordinance Petitioner contends that a resolution approved by the municipal council for the purpose of initiating an expropriation case "substantially complies with the requirements of the law" 22 because the terms "ordinance" and "resolution" are synonymous for "the purpose of bestowing authority [on] the local government unit through its chief executive to initiate the expropriation proceedings in court in the exercise of the power of eminent domain." 23 Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the Rules and Regulations Implementing the Local Government Code, which provides. "If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU may expropriate said property through a resolution of the Sanggunian authorizing its chief executive to initiate expropriation proceedings." 24 (Emphasis supplied.) The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. 25 An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter's control and restraints, imposed "through the law conferring the power or in other legislations." 26 In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. It provides as follows: Sec. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax

declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. (Emphasis supplied) Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. 27 In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. Petitioner cites Camarines Sur vs. Court of Appeals 28 to show that a resolution may suffice to support the exercise of eminent domain by an LGU. 29 This case, however, is not in point because the applicable law at that time was BP 337, 30 the previous Local Government Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160, 31 the present Local Government Code which was already in force when the Complaint for expropriation was filed, explicitly required an ordinance for this purpose. We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. 32 An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. 33 If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local Government Code, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance. Indeed, "[l]egislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be resorted to only where a literal interpretation would be either impossible or absurd

or would lead to an injustice." 34 In the instant case, there is no reason to depart from this rule, since the law requiring an ordinance is not at all impossible, absurd, or unjust. Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people. 35 Accordingly, the manifest change in the legislative language from "resolution" under BP 337 to "ordinance" under RA 7160 demands a strict construction. "No species of property is held by individuals with greater tenacity, and is guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtful interpretation." 36 Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said rule which merely seeks to implement it. 37 It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Besides, what the discrepancy seems to indicate is a mere oversight in the wording of the implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent domain, the chief executive of the LGU act pursuant to an ordinance. In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the Constitution, which provides that "territorial and political subdivisions shall enjoy local autonomy." It merely upholds the law as worded in RA 7160. We stress that an LGU is created by law and all its powers and rights are sourced therefrom. It has therefore no power to amend or act beyond the authority given and the limitations imposed on it by law. Strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior" domain, since it must conform to the limits imposed by the delegation, and thus partakes only of a share in eminent domain. 38 Indeed, "the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it." 39 Complaint Does Not State a Cause of Action In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation. 40 This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was mentioned by private respondent, and only in passing. 41 In any event, this allegation does not cure the inherent defect of petitioner's Complaint for expropriation filed on September 23, 1993. It is hornbook doctrine that

. . . in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted before the court for determination is the sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is beside the point, for their truth is hypothetically admitted by the motion. The issue rather is: admitting them to be true, may the court render a valid judgment in accordance with the prayer of the complaint? 42 The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently, the Court of Appeals committed no reversible error in affirming the trial court's Decision which dismissed the expropriation suit. Second Issue: Eminent Domain Not Barred by Res Judicata As correctly found by the Court of Appeals 43 and the trial court, 44 all the requisites for the application of res judicata are present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it. Be that as it may, the Court holds that the principle of res judicata, which finds application in generally all cases and proceedings, 45 cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can "reach every form of property which the State might need for public use." 46 "All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it." 47 Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. 48 By the same token, our ruling that petitioner cannot exercise its delegated power of eminent domain through a mere resolution will not bar it from reinstituting similar proceedings, once the said legal requirement and, for that matter, all others are properly complied with. Parenthetically and by parity of reasoning, the same is also true of the principle of "law of the case." In Republic vs. De Knecht, 49 the Court ruled that the power of

the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the property to be expropriated has become the law of the case as to the parties. The State or its authorized agent may still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule otherwise will not only improperly diminish the power of eminent domain, but also clearly defeat social justice. WHEREFORE, the petition is hereby DENIED without prejudice to petitioner's proper exercise of its power of eminent domain over subject property. Costs against petitioner. SO ORDERED

SANCHEZ, J.: Key targets in plaintiff's complaint for the restoration of the original measurement 8 meters wide of the dead end of Lapu-Lapu Street are: (1) Resolution No. 132, Series of 1961, authorizing the lease by the City of Baguio (hereinafter referred to as the City) to Shell Company of the Philippines, Limited (Shell, for short) of Lot 25 of the Baguio Market Subdivision and a portion of LapuLapu Street abutting said lot; and (2) Resolution No. 215, Series of 1961, amending the first mentioned resolution by authorizing the vacation of the leased portion of Lapu-Lapu Street and the conversion of the remainder by the side thereof into an alley of 5 meters wide (4 meters in actual use). Plaintiff wants these resolutions stricken down as invalid. The court below ruled in the negative. This appeal is the offshoot. The facts are as follows: On April 30, 1957, Antonio Favis bought a parcel of land of about 1,000 square meters Lot 2-E-3-B-3-B-2 of the subdivision plan (LRC) Psd-2179 from the Assumption Convent, Inc. Said lot is bounded on the southwest by Lot 2-E-3-B3-B-1 (proposed road), owned by Assumption Convent, Inc. and part of subdivision plan Psd-2179. Simultaneous with the sale, Assumption donated to the City "for road purposes" the lot indicated in its subdivision plan as the proposed road Lot 2E-3-B-3-B-1 aforesaid. This donated road is used by Favis as his means of egress and ingress from his residence to a public street called Lapu-Lapu Street. Lapu-Lapu Street is actually Lot 27 in the amendatory plan (Bcs-56-Amd 2, Residence Section "B") And is a portion of a big tract of land registered in the name of the City, known as Baguio Market Subdivision, for all of which the City holds Transfer Certificate of Title No. 2209. branches out to various parts of the market subdivision. From its intersecting point with Dagohoy Street and going northward, Lapu-Lapu Street is eight (8) meters wide; 1 it abruptly ends as it meets portions of two lots the donated road aforementioned and the lot owned by Olmina Fernandez (Lot 2-E-3-B-1-A, Bsd-26963). Fernandez' lot is fenced, with buildings; and there is a sharp depression of at least 2 meters at the precise point it meets Lapu-Lapu Street. Ocular inspection conducted by the trial court disclosed that at the exact connecting point of Lapu-Lapu Street and the donated road (which leads to appellant's land), the road opening is only 2.5 meters wide. Lot 25 of the Baguio Market Subdivision is northernmost in said subdivision and contains an area of approximately 400 square meters. Immediately next to it, to the north, is the lot of Olmina Fernandez aforesaid. As far back as June, 1947, the City, by virtue of Resolution No. 115, Series of 1947, of the City Council of Baguio leased this Lot 25 to Shell for a ten-year period renewable for another ten years. Shell constructed thereon a service station of about 335 square meters. On May 10, 1961, the City Council of Baguio passed Resolution No. 132 authorizing the City thru its Mayor to lease to Shell two parcels of land described as follows:

Digest MUNICIPALITY OF PARAAQUE VS. VM REALTY CORPORATION [292 SCRA 676; G. R. NO. 127820; 20 JUL 1998] Facts: Petitioner sought to exercise its power of eminent domainbased on a resolution by the municipal council. Petitioner cites a previous case wherein a resolution gave authority to exercise eminent domain. Petitioner also relies on the Implementing Rules, which provides that a resolution authorizes a Local Government Unit to exercise eminent domain.

Issue: Whether or Not an LGU can exercise its power of eminent domain pursuant to a resolution by its law-making body.

Held: Under Section 19, of the present Local Government Code (RA 7160), it is stated as the first requisite that LGUs can exercise its power of eminent domain if there is an ordinance enacted by its legislative body enabling the municipal chief executive. A resolution is not an ordinance, the former is only an opinion of a lawmaking body, the latter is a law. The case cited by Petitioner involves BP 337, which was the previous Local Government Code, which is obviously no longer in effect. RA 7160 prevails over the Implementing Rules, the former being the law itself and the latter only an administrative rule which cannot amend the former.

G.R. No. L-29910

April 25, 1969

ANTONIO C. FAVIS, plaintiff-appellant, vs. THE CITY OF BAGUIO and THE SHELL COMPANY OF THE PHILIPPINES, LIMITED, defendants-appellees. Juan L. Fontanilla for plaintiff-appellant. Lichauco, Picaso and Agcaoili and Roman Mabanta, Jr. for defendant-appellee Shell Company. The City Attorney for defendant-appellee City of Baguio.

A parcel of land, known as Lot No. 25 of the Market Subdivision and shown as "Lot A" on Sketch Plan ... marked "Exhibit A" and made a part hereof, situated in the City of Baguio, containing an area of 335 sq. m.... and Also a parcel of land containing an area of 100 sq. m. more or less, marked as "Lot B" on Sketch Plan... Lot 25 (Lot A), it is to be noted, is the same lot leased to Shell way back in June, 1947 and the lease of Lot B is merely an addition thereto. This additional area taken from Lapu-Lapu Street is five (5) meters wide and twenty (20) meters long and abuts Lot 25. About three weeks later, the City, thru its Mayor entered into a formal contract of lease with Shell. 2 Shell filed an application with the Office of the City Engineer of Baguio for a building permit for the construction of a new and bigger gasoline station on the leased premises. Said office, in a letter to the City Council thru the City Mayor dated June 30, 1961, noted that the leased "[1] to 'B' which consists of 100 square meters is exactly within the road right-of-way of Lapu-Lapu Street," is for public use, and may not be leased. On July 5, 1961, appellant Antonio C. Favis lodged a letter-protest against the additional lease made in favor of Shell. He claimed that it would diminish the width of Lapu-Lapu Street to five meters only; that it would destroy the symmetry of the said street thus making it look very ugly; and that the City was bereft of authority to lease any portion of its public streets in favor of anyone. Apparently to obviate any and all objections to the lease of the additional area to Shell, the City Council of Baguio, on July 19, 1961, passed Resolution No. 215, amending Resolution No. 132, Series of 1961, by converting that "portion of Lapu-Lapu Street lying southeast from Lot B of the sketch plan prepared March 10, 1961 by Private Land Surveyor Perfecto B. Espiritu, beginning at this portion's intersection with Dagohoy Street, into an alley 5.00 meters wide (4 m. now in actual use); declaring for this purpose, that said Lot B shall not be a part of this alley." On November 29, 1961, Favis commenced suit for the annulment of the lease contract with damages in the Court of First Instance of Baguio. 3 He prayed that (1) defendants be ordered to stop, remove and/or demolish whatever constructions had been introduced at the additional leased area on Lapu-Lapu Street; (2) the building permit and contract of lease entered into by and between the defendants be cancelled and revoked for being null and void; and (3) defendants be directed to pay, jointly and severally, actual, compensatory, corrective and consequential damages totalling P50,000, attorneys' fees in the sum of P2,000, and the costs. After hearing, the lower court, on May 21, 1962, rendered judgment uphelding the two questioned resolutions and dismissing the complaint, with costs.

We first address ourselves to the preliminary questions raised in the appeal.lawphi1.nt 1. Amongst these is appellant's charge that the resolutions directing the partial closing of Lapu-Lapu Street and the lease thereof are invalid. Because, so appellant avers, those resolutions contravene the City Charter. He relies on subsection (L) of Section 2553 of the Revised Administrative Code. It provides that the powers granted to the City including the power to close streets shall be carried "into effect by ordinance." This objection is directed at form, not at substance. It has been held that "even where the statute or municipal charter requires the municipality to act by ordinance, if a resolution is passed in the manner and with the statutory formality required in the enactment of an ordinance, it will be binding and effective as an ordinance." 4 Such resolution may operate regardless of the name by which it is called. 5 Resolutions No. 132 and 215, Series of 1961, were unanimously approved with all the councilors present and voting, carried the seal of the city council, were signed by the City Vice-Mayor, the Presiding Officer, approved by the City Mayor, and attested by the City Secretary. With the presumption of validity of the resolution and the other presumption that official duty has been regularly performed, the embattled resolutions are just as good as ordinances and have the same force. 2. Appellant cites lack of advertisement or direct notice to owners of contiguous properties whose rights might be affected, as another ground to show invalidity of the resolutions. The pertinent provision of the charter reads, thus: . ... to carry into effect by ordinance the powers hereinbefore granted in this subsection, but no ordinance shall provide for more than one project of any of the kinds named herein, nor create more than one district, assessment, and fund necessary and appropriate therefor, and in each and every such ordinance provision shall be made for notice to any and all persons interested, giving them and each of them not less than two weeks from and after the date of depositing a notice in the post-office at Baguio in a securely sealed postpaid wrapper addressed to each person affected thereby and assessed thereunder at his last known place of residence, or at Baguio if no place of residence is known, or to an agent who may be or may have been appointed by such person in writing, in which to appear and file objection to either the work itself, the method or manner of assessment, the time or times and method of payment therefor, or to all thereof and such other and further objection or objections as may seem to any such person or persons reasonable and proper in the premises: such notice shall set forth the nature of the proposed improvement, the estimated cost therefor, the total amount of the assessment to be levied therefor, and the amount to be levied upon each parcel of the property or possession of the addressee; any and every such appearance and objection shall be made and heard only before the city council, and council may, at any such hearing alter, modify, or increase the area of such district, the total assessment thereof, or any individual area or assessment objected to therein, and shall decide any and every such objection within ten days after the filing thereof and give notice of such decision to the person or

persons interested in the manner hereinbefore provided for notice of such assessment within five days thereafter....6 The requirement of notice specified in the aforequoted provision of the city charter is not applicable to the case at bar. It will be observed that the notice is to be given "to any, and all persons interested", to be placed in a securely sealed postpaid wrapper addressed "to each person affected thereby and assessed thereunder." The accent is on the word and. The person "affected" must also be "assessed". And then, "such notice shall set forth the nature of the proposed improvement, the estimated cost therefor, the total amount of the assessment to be levied therefor, and the amount to be levied upon each parcel of the property or possession of the addressee." In turn, the council, after hearing objections, may "alter, modify, or increase the area of [the] district, the total assessment thereof, or any individual area or assessment objected to therein." Clearly then, this method of giving notice applies only when an ordinance calls for an assessment. So that where no assessment has been made or is to be made, such notice need not be given. In the case at bar, the resolutions in question do not at all call for any kind of assessment against appellant or his land. Hence, the notice that appellant would want to have, need not be given. Besides, appellant did actually protest Resolution 132 authorizing the lease to Shell. Such protest was, however, overruled. And the council passed Resolution 215, in effect, confirming the lease. The purpose of notice on the assumption that appellant is entitled thereto is subserved. Appellant has no cause for complaint. 3. We now direct attention to appellant's plaint that the questioned resolutions narrowed down, much to his prejudice, the width of Lapu-Lapu Street at its connecting point with the donated road which, in turn, leads to his land. The reduction of the usable width from 8 meters to 4 meters cannot be done, so he argues, because said resolutions violate Executive Order No. 113, Series of 1955, issued by President Ramon Magsaysay, particularly the following: IV. MUNICIPAL ROADS: All highways not included in the above classifications, Municipal and city roads shall have a right-of-way of not less than ten (10) meters; provided that the principal streets of town sites located on public lands shall have a width of sixty (60) meters and all other streets a width of not less than fifteen (15) meters.7 We do not go along with appellant. First, because the 2.5 meter opening connecting the donated road and Lapu-Lapu Street has always been that wide since the donated road was opened. The fact that this opening is 2.5 meters, is confirmed by the ocular inspection personally made by the trial judge himself. The occupancy by Shell of a portion of the road right-of-way did not in any way put appellant to any more inconvenience than he already had. His outlet to Lapu-Lapu Street of 2.5 meters still remains the same.

In the second place, the resolutions in question do not have the effect of decreasing the width of the opening because said opening is far from the leased portion of Lapu-Lapu Street. The said leased portion is on the left side of Lapu-Lapu Street, whereas the opening lies on the right uppermost part of Lapu-Lapu Street. That leased strip does not reach said opening. In fact, while the lease contract authorized Shell to take 5 meters wide of Lapu-Lapu Street, Shell occupied only 4 meters wide. 8 Thirdly, the executive order could not have been violated because even before its promulgation, Lapu-Lapu Street was only 8 meters wide, and the said executive order did not demand widening to 10 meters of existing streets. For it to have so ordered would have entailed huge expenditure not only on the part of Baguio City but many other municipal corporations as well which have streets less than 10 meters wide. For, compensation for the expropriation of private property would have to be given. 4. The main thrust of appellant's arguments is that the city council does not have the power to close city streets like Lapu-Lapu Street. He asserts that since municipal bodies have no inherent power to vacate or withdraw a street from public use, there must be a specific grant by the legislative body to the city or municipality concerned. Considering that "municipal corporations in the Philippines are mere creatures of Congress; that, as such, said corporations possessed, and may exercise, only such power as Congress may deem fit to grant thereto", 9 a reference to the organic act of the City of Baguio appears to be in order. In subsection (L) of Section 2558 of the Review Administrative Code (Baguio Charter), the language of the grant of authority runs thus (L) To provide for laying out, opening, extending, widening, straightening, closing up, constructing, or regulating, in whole or in part, any public plaza, square, street, sidewalk, trail, park, waterworks, or water remains, or any cemetery, sewer, sewer connection or connections, either on, in, or upon public or private property; .... 10 Undoubtedly, the City is explicitly empowered to close a city street. We may drive home the point by presenting here the converse of the rule as set forth in Unson vs. Lacson, supra. There, as here, the municipal board passed an ordinance (No. 3470) withdrawing the northern portion of Callejon del Carmen from public use, declaring it patrimonia property of the City of Manila and authorizing its lease to Genato Commercial Corporation. Unson had a lot bordering Callejon del Carmen on which several buildings stood. One of such buildings was known as "Commerce Building". Prior to the construction of Genato's building on the leased premises, Unson's lot had on its southern boundary two exits on Callejon del Carmen which had to be closed upon the construction of said building. Unson went to court alleging that the ordinance and the contract of lease with Genato were illegal. The trial court upheld the city's authority to withdraw such alley for public use and to convert it into patrimonial property. But, on appeal, we held: In this connection, respondents have been unable to cite any legal provision specifically vesting in the City of Manila the power to close

Callejon del Carmen. Indeed, section 18(x) of Republic Act No. 409 upon which appellees rely authorizes the Municipal Board of Manila "subject to the provisions of existing laws, to provide for the laying out, construction and improvement ... of streets, avenues, alleys ... and other public places," but it says nothing about the closing of any such places. The significance of this silence becomes apparent when contrasted with section 2246 of the Revised Administrative Code, explicitly vesting in municipal councils of regularly organized municipalities the power to close any municipal road, street, alley, park or square, provided that persons prejudiced thereby are duly indemnified, and that the previous approval of the Department Head shall have been secured. The express grant of such power to the aforementioned municipalities and the absence of said grant to the City of Manila lead to no other conclusion than that the power was intended to be withheld from the latter.11 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. 12 Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. 13 Deemed as material factors which a municipality must consider in deliberating upon the advisability of closing a street are: "the topography of the property surrounding the street in the light of ingress and egress to other streets; the relationship of the street in the road system throughout the subdivision; the problem posed by the 'dead end' of the street; the width of the street; the cost of rebuilding and maintaining the street as contrasted to its ultimate value to all of the property in the vicinity; the inconvenience of those visiting the subdivision; and whether the closing of the street would cut off any property owners from access to a street." 14 We now take a look at the factors Considered by the City Council of Baguio in vacating a portion of Lapu-Lapu Street. These appear in the resolution (Resolution 215) itself, thus: WHEREAS, that portion of the road right-of-way of Lapu-Lapu Street, Baguio, beginning with its intersection, with Dagohoy Street does not have much traffic, being in fact a dead end street; AND WHEREAS, the conversion of this portion of Lapu-Lapu Street into a five-meter alley would neither prejudice nor damage any person or property; AND WHEREAS, in the subdivision scheme of the burned area of the City Market Subdivision, already approved by the City Council, provision

was made for another road behind Lapu-Lapu Street interesting Dagohoy Street. Besides, there are the specific findings by the trial court that the "2.5 opening is sufficient for Plaintiff to enter and exit from the lot he purchased from Assumption Convent, Inc."; that the "present road right of way was rendered narrow by surrounding properties and is sufficient for the needs of the Plaintiff"; and that the "portion leased to Shell Company was not necessary for public use." We are bound by these findings of fact. By the embattled resolutions, no right of the public is overwhelmed, none defeated. Public interest was not at all disregarded. On the contrary, some benefit did flow from the withdrawal of a portion of the street and the lease thereof. The City saves from the cost of maintenance, gets some income yet. Given the precept that the discretion of a municipal corporation is broad in scope and should thus be accorded great deference in the spirit of the Local Autonomy Law (R.A. 2264), and absent a clear abuse of discretion, we hold that the withdrawal for lease of the disputed portion of Lapu-Lapu Street and the conversion of the remainder of the dead-end part thereof into an alley, does not call for, and is beyond the reach of, judicial interference. 6. From the fact that the leased strip of 100 square meters was withdrawn from public use, it necessarily follows that such leased portion becomes patrimonial property. Article 422 of the Civil Code indeed provides that property of public domain, "when no longer intended for public use or public service, shall form part of the patrimonial property of the State." Authority is not wanting for the proposition that property for public use of provinces and towns are governed by the same principles as property of public dominion of the same character." 15 There is no doubt that the strip withdrawn from public use and held in private ownership may be given in lease. For amongst the charter powers given the City of Baguio (Section 2541, Revised Administrative Code [Charter of the City of Baguio] ) is to "lease ... real ... property, for the benefit of the city...." 7. We now look into appellant's averment that by reducing the original width of Lapu-Lapu Street, his entrance and exit to and from his property has become very difficult; that it is now impossible for his big trucks and trailers to turn around; that it made the area around it very dangerous in case of fire; and that it has caused perpetual danger, annoyance, irreparable loss and damage not only to the public in general but especially to heroin plaintiff in particular. For all these, he asks for damages. First to the governing principle: "The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in from those sustained by kind, and not merely in degree, the public generally." 16

In the case at bar, no private right of appellant has been invaded. No special damage or damages he will incur by reason of the closing of a portion of Lapu-Lapu Street at its dead-end. His property does not abut that street. In fact, the court has found that the remaining portion of Lapu-Lapu Street, which actually is 4 meters in width, is sufficient for the needs of appellant and that the leased portion subject of this suit "was not necessary for public use." Furthermore, it is physically impossible to connect Lapu-Lapu Street in its entire width 8 meters with the area donated to the City or Assumption Convent, for the reason that the only outlet between them is 2.5 meters wide. Even appellant's allegation that by reducing the width of Lapu-Lapu Street it is now impossible for his big trucks to turn around is of dubious veracity on the face of his testimony that turning around at the original Lapu-Lapu Street or at the junction of Lapu-Lapu Street and the donated road has not been tried before and that his trucks actually do their maneuvering at the intersection of Dagohoy Street and Lapu-Lapu Street. 17 Further, as stated in the resolution, provision has been "made for another road behind Lapu-Lapu Street and intersecting Dagohoy Street." It has been said that The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door. The law will not permit him to be cut off from the public thoroughfares, but he must content himself route for outlet as the regularly constituted public with such authority may deem most compatible with the public welfare. When he acquires city property, he does so in tacit recognition of these principles. If, subsequent to his appreciation, the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is damnum absque injuria.18 For the reasons given, the appealed judgment of the Court of First Instance of Baguio declaring valid Resolution No. 132, Series of 1961, and Resolution No. 215, Series of 1961, both of the City Council of Baguio, and ordering the dismissal of the complaint as well as the counterclaim, is hereby affirmed. Costs against plaintiff-appellant.

the 8 meter wide passage being used by Favis. Favis assailed this contract. There was also a law in place that time stating that streets and roads should be not less than 10 meters (but existing roads which are less than 10 meters are retained to avoid massive expenses in expropriation cases in case the 10 meter is strictly imposed). Said law is argued by Favis to be violated. Favis also argues that the city council does not have the power to close city streets like Lapu-Lapu Street. He asserts that since municipal bodies have no inherent power to vacate or withdraw a street from public use, there must be a specific grant by the legislative body to the city or municipality concerned. ISSUE: Whether or not the City can withdraw parts of a street from public use and use the remainder as a mere alley. HELD: Yes. Looking at the citys charter, the city is empowered to close a city street (Section 2557 of Revised Administrative Code Baguio Charter). Considering that municipal corporations in the Philippines are mere creatures of Congress; that, as such, said corporations possessed, and may exercise, only such power as Congress may deem fit to grant thereto, as what actually happened in the case at bar, the city was granted such power via its charter. Favis may not challenge the city councils act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council is the authority competent to determine whether or not a certain property is still necessary for public use or public service (patrimonial property). Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Favis, being a property owner in city, recognizes when he bought said property that is after such buying of property the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is damnum absque injuria.

Digest

Favis vs. City of Baguio, 29 SCRA 456 Municipal Corporation Damnum Absque Injuria Patrimonial Property Discretionary Power Favis owns a parcel of land fronting Lapu-Lapu street in Baguio City. There is an 8 meter wide passage from his property to the street. In 1961, the city authorized a new contract of lease between it and Shell. The contract stipulated a widened lot for Shell to build its structure and this necessitates the taking of at least 4 meters from