MacMac s Notes

7/29/2019 MacMac s Notes

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PART IIIPOWERS OF THE LOCAL GOVERNMENT UNITS

Corporate Powers Section 22, RA 7160a) Every local government unit, as a corporation, shall have the following

powers:1) To have continuous succession in its corporate name;2) To sue and be sued;3) To have and use a corporate seal;4) To acquire and convey real or personal property;5) To enter into contracts; and6) To exercise such other powers as are granted to corporations,

subject to the limitations provided in this Code and other laws.b) Local government units may continue using, modify, or change their

existing corporate seals: Provided, That newly established localgovernment units or those without corporate seals may create their own

corporate seals which shall be registered with the Department of theInterior and Local Government: Provided, further, That any change ofcorporate seal shall also be registered as provided herein.

c) Unless otherwise provided in this Code, contract may be entered into bythe local chief executive in behalf of the local government unit withoutprior authorization by the sanggunian concerned. A legible copy of suchcontract shall be posted at a conspicuous place in the provincial capitolor the city, municipal or barangay hall.

d) Local government units shall enjoy full autonomy in the exercise of theirproprietary functions and in the management of their economicenterprises, subject to the limitations provided in this Code and

other applicable laws.

Authority to negotiate and secure grants and incurringindebtedness - Section 23, RA 7160

Local chief executives may, upon authority of the sanggunian,negotiate and secure financial grants or donations in kind, in support of thebasic services or facilities enumerated under Section 17 hereof, from localand foreign assistance agencies without necessity of securing clearance orapproval therefor from any department, agency, or office of the nationalgovernment or from any higher local government unit: Provided, That

projects financed by such grants or assistance with national securityimplications shall be approved by the national agency concerned: Provided,further, That when such national agency fails to act on the request forapproval within thirty (30) days from receipt thereof, the same shall bedeemed approved.The local chief executive shall, within thirty (30) days upon signing of suchgrant agreement or deed of donation, report the nature, amount, and termsof such assistance to both Houses of Congress and the President.


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Build-Operate-Transfer- Section 302, RA 7160Financing, Construction, Maintenance, Operation, and Management ofInfrastructure Projects by the Private Sector.

(a) Local government units may enter into contracts with any dulyprequalified individual contractor, for the financing, construction, operation,and maintenance of any financially viable infrastructure facilities, under thebuild-operate-and-transfer agreement, subject to the applicable provisions ofRepublic Act Numbered Sixty-nine hundred fifty-seven (R.A. No. 6957)authorizing the financing, construction, operation and maintenance ofinfrastructure projects by the private sector and the rules and regulationsissued thereunder and such terms and conditions provided in this Section.

(b) Local government units shall include in their respective localdevelopment plans and public investment programs priority projects that

may be financed, constructed, operated and maintained by the privatesector under this Section. It shall be the duty of the local government unitconcerned to disclose to the public all projects eligible for financing underthis Section, including official notification of duly registered contractors andpublication in newspapers of general or local circulation and in conspicuousand accessible public places. Local projects under the build-operate-and-transfer agreement shall be confirmed by the local development councils.

(c) Projects implemented under this Section shall be subject to the followingterms and conditions:

(1) The provincial, city, or municipal engineer, as the case may be,

upon formal request in writing by the local chief executive, shall prepare theplans and specifications for the proposed project, which shall be submitted tothe sanggunian for approval.

(2) Upon approval by the sanggunian of the project plans andspecifications, the provincial, city, or municipal engineer shall, as the casemay be, cause to be published once every week for two (2) consecutiveweeks in at least one (1) local newspaper which is circulated in the region,province, city or municipality in which the project is to be implemented, anotice inviting all duly qualified contractors to participate in a public biddingfor the projects so approved. The conduct of public bidding and award ofcontracts for local government projects under this Section shall be in

accordance with this Code and other applicable laws, rules and regulations.In the case of a build-operate-and-transfer agreement, the contract

shall be awarded to the lowest complying bidder whose offer is deemed mostadvantageous to the local government and based on the present value of itsproposed tolls, fees, rentals, and charges over a fixed term for the facility tobe constructed, operated, and maintained according to the prescribedminimum design and performance standards, plans, and specifications. Forthis purpose, the winning contractor shall be automatically granted by the


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local government unit concerned the franchise to operate and maintain thefacility, including the collection of tolls, fees, rentals, and charges inaccordance with subsection (c-4) hereof.

In the case of a build-operate-and-transfer agreement, the contractshall be awarded to the lowest complying bidder based on the present value

of its proposed schedule of amortization payments for the facility to beconstructed according to the prescribed minimum design and performancestandards, plans, and specifications.

(3) Any contractor who shall undertake the prosecution of any projectunder this Section shall post the required bonds to protect the interest of theprovince, city, or municipality, in such amounts as may be fixed by thesanggunian concerned and the provincial, city, or municipal engineer shallnot, as the case may be, allow any contractor to initiate the prosecution ofprojects under this Section unless such contractor presents proof or evidencethat he has posted the required bond.

(4) The contractor shall be entitled to a reasonable return of its

investment in accordance with its bid proposal as accepted by the localgovernment unit concerned. In the case of a build-operate-and-transferagreement, the repayment shall be made by authorizing the contractor tocharge and collect reasonable tolls, fees, rentals, and charges for the use ofthe project facility not exceeding those proposed in the bid and incorporatedin the contract: Provided, That the local government unit concerned shall,based on reasonableness and equity, approve the tolls, fees, rentals andcharges: Provided, further, That the imposition and collection of tolls, fees,rentals and charges shall be for a fixed period as proposed in the bid andincorporated in the contract which shall in no case exceed fifty (50) years:Provided, finally, That during the lifetime of the contract, the contractor shall

undertake the necessary maintenance and repair of the facility inaccordance with standards prescribed in the bidding documents and in thecontract. In the case of a build-operate-and-transfer agreement, therepayment shall be made through amortization payments in accordance withthe schedule proposed in the bid and incorporated in the contract. In case ofland reclamation or construction of industrial estates, the repayment planmay consist of the grant of a portion or percentage of the reclaimed land orthe industrial estate constructed.

(5) Every infrastructure project undertaken under this Section shall beconstructed, operated, and maintained by the contractor under the technicalsupervision of the local government unit and in accordance with the plans,

specifications, standards, and costs approved by it.

(d) The provincial, city or municipal legal officer shall, as the case may be,review the contracts executed pursuant to this Section to determine theirlegality, validity, enforceability and correctness of form.

Land Reclassification


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FORTICH vs. CORONAFacts:This pertains to the two (2) separate motions for reconsiderationfiled by herein respondent and the applicants for intervention,seeking a reversal of our April 24, 1998 Decision nullfying the

so-called "win-win" Resolution dated November 7, 1997, issued by theOffice of the President in O.P. Case No. 96-C-6424, and denying theapplicants Motion For Leave To Intervene.

The issue in this case stems from a proposed agro-economicdevelopment of the disputed land which the province of Bukidnon andthe municipality of Sumilao, Bukidnon intend to undertake. Expressingfull support for the proposed project, the Sangguniang Bayan ofSumilao, Bukidnon on March 4, 1193 enacted Ordinance No. 24 convertingor reclassifying the subject 144-hectare land from agricultural toindustrial/institutional use. It was intended to provide an

opportunity to attract investors, who can inject new economicvitality, provide more jobs and raise the income of its people.Bukidnon Provincial Board also supported the said project.

Issue: Whether or not the power of the local government units toreclassify lands is subject to the approval of the Department ofAgrarian Reform (DAR)

Held:

Local Government Units need not obtain the approval of the DAR to

convert or reclassify lands from agricultural to non-agricultural use.It should be stressed that when the March 29, 1996 OP Decision wasdeclared final and executory, vested rights were acquired by theherein petitioners, namely, the province of Bukidnon, the municipalityof Sumilao, Bukidnon, and the NQSR Management and DevelopmentCorporations, and all others who should be benefited by the saiddecision. The issue here is not a question of technicality but that ofsubstance and merit. Whether the Sangguniang Bayan of Sumilao has thelegal authority to reclassify the land into industrial/institutionaluse, the March 29, 1996 OP Decision has thoroughly and properlydisposed the issue. Converting the land in question from agricultural

to agro-industrial would open great opportunities for employment andbring about real development in the area towards a sustained economicgrowth of the municipality.

Procedural lapses in the manner of identifying/reclassifying thesubject property for agro-industrial purposes cannot be allowed todefeat the very purpose of the law granting autonomy to localgovernment units in the management of their local affairs. Stated more


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failure to observe due process does not give the court the power toadjudicate over petitioners application for land conversion. DAR ischarged with the mandate of approving applications for landconversion. They have the tools and experience needed to evaluatesuch applications; hence, they are the proper agency with which

applications for land use conversion are lodged. DAR should be given achance to correct their defects with regard to petitioners right to dueprocess.

Petitioner dismissed.Note: Pertinent section although not mentioned in the case is Sec. 20 of theLGC on power of LGU to reclassify land. However, the code also provides thatthe CARL prevails over LGC provisions.

Zoning Ordinance

Patalinhug v. CAFacts: The Sangguniang Panlungsod of Davao City enacted Ordinance 363,series of 1982 otherwise known as the "Expanded Zoning Ordinance ofDavao City," Section 8 of which states: Sec. 8. USE REGULATIONS IN C-2DISTRICTS (Shaded light red in the Expanded Zoning Map) AC-2 District shallbe dominantly for commercial and compatible industrial uses as providedhereunder: 3.1 Funeral Parlors/Memorial Homes with adequate off streetparking space (see parking standards of P.D. 1096) and provided that theyshall be established not less than 50 meters from any residential structures,churches and other institutional buildings. Upon prior approval andcertification of zoning compliance by Zoning Administrator issued on

February 10, 1987 Building Permit No. 870254 in favor of petitioner for theconstruction of a funeral parlor in the name and style of Metropolitan FuneralParlor at Cabaguio Avenue, Agdao, Davao City.Thereafter, petitioner commenced the construction of his funeral parlor.Acting on the complaint of several residents of Barangay Agdao, Davao Citythat the construction of petitioner's funeral parlor violated OrdinanceNo. 363, since it was allegedly situated within a 50-meter radius from theIglesia ni Kristo Chapel and several residential structures, the SangguniangPanlungsod conducted an investigation and found that "the nearestresidential structure, owned by Wilfred G. Tepoot is only 8 inches to thesouth. . . . ."

Notwithstanding the findings of the Sangguniang Panlungsod, petitionercontinued to construct his funeral parlor which was finished on November 3,1987.Consequently, private respondents filed on September 6, 1988 a case for thedeclaration of nullity of a building permit with preliminary prohibitory andmandatory injunction and/or restraining order with the trial court.

Issue:


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1. WON the CA erred in concluding that the Tepoot building adjacent topetitioner's funeral parlor is residential simply because it was allegedlydeclared as such for taxation purposes, in complete disregard ofOrdinance 363 declaring the subject area as dominantly forcommercial and compatible industrial uses. YES.

A tax declaration is not conclusive of the nature of the property forzoning purposes. A property may have been declared by its owner asresidential for real estate taxation purposes but it may well be within acommercial zone. A discrepancy may thus exist in the determination ofthe nature of property for real estate taxation purposes vis-a-vis thedetermination of a property for zoning purposes.

Even if we are to examine the evidentiary value of a tax declarationunder the Real Property Tax Code, a tax declaration only enables theassessor to identify the same for assessment levels. In fact, a taxdeclaration does not bind a provincial/city assessor, for under Sec. 22of the Real Estate Tax Code, appraisal and assessment are based on

the actual use irrespective of "any previous assessment or taxpayer'svaluation thereon," which is based on a taxpayer's declaration. In fact,a piece of land declared by a taxpayer as residential may be assessedby the provincial or city assessor as commercial because its actual useis commercial.

The trial court's determination that Mr. Tepoot's building is commercialand, therefore, Sec. 8 is inapplicable, is strengthened by the fact thatthe Sangguniang Panlungsod has declared the questioned area ascommercial or C-2. Consequently, even if Tepoot's building wasdeclared for taxation purposes as residential, once a local governmenthas reclassified an area as commercial, that determination for zoning

purposes must prevail. While the commercial character of thequestioned vicinity has been declared thru the ordinance, privaterespondents have failed to present convincing arguments tosubstantiate their claim that Cabaguio Avenue, where the funeralparlor was constructed, was still a residential zone. Unquestionably,the operation of a funeral parlor constitutes a "commercial purpose,"as gleaned from Ordinance 363.

The declaration of the said area as a commercial zone thru a municipalordinance is an exercise of police power to promote the good orderand general welfare of the people in the locality. Corollary thereto, thestate, in order to promote the general welfare, may interfere withpersonal liberty, with property, and with business and occupations.

Persons may be subjected to certain kinds of restraints and burdens inorder to secure the general welfare of the state and to thisfundamental aim of government, the rights of the individual may besubordinated. The ordinance which regulates the location of funeralhomes has been adopted as part of comprehensive zoning plans forthe orderly development of the area covered thereunder.


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Ortigas & Co., Limited Partnership vs. Feati Bank and Trust Co.No. L-24670December 14, 1979

Facts:Plaintiff is engaged in real estate business, developing and selling lots to thepublic, particularly the Highway Hills Subdivision along EDSA, Mandaluyong,Rizal.On March 4, 1952, plaintiff entered into separate agreements of sale withAugusto Padilla y Angeles and Natividad Angeles over 2 parcels of land (LotsNos. 5 and 6, Block 31, of the Highway Hills Subdivision). On July 19, 1962the vendees transferred their rights and interests over the said lots to EmmaChavez. The plaintiff executed the corresponding deeds of sale in favor ofEmma Chavez upon payment of the purchase price. Both the agreements

and the deeds of sale contained the stipulation that the parcels of landsubject of the deeds of sale shall be used by the Buyer exclusively forresidential purposes. The restrictions were later annotated in the TCTscovering the lots issued in Chavez' name.Eventually, Feati Bank and Trust Co., acquired Lots No. 5 and 6 with thebuilding restrictions also annotated in their corresponding TCTs. Lot No.5 wasbought directly from Chavez free from all liens and encumbrances whileLot No.6 was acquired through a Deed of Exchange from Republic FlourMills.Plaintiff claims that the restrictions were imposed as part of its generalbuilding scheme designed for the beautification and development of the

Highway Hills Subdivision which forms part of its big landed estate wherecommercial and industrial sites are also designated or established.Feati Bank and Trust Co., maintains that the area along the western part ofEDSA from Shaw Boulevard to the Pasig River, has been declared acommercial and industrial zone, per Resolution No.27 of the MunicipalCouncil of Mandaluyong. It alleges that plaintiff completely sold andtransferred to third persons all lots in said subdivision facing EDSA" and thesubject lots were acquired by it only on June 23, 1962 or more than 2 yearsafter the area xxx had been declared a commercial and industrial zone.On or about May 5, 1963, Feati Bank and Trust Co., began construction of abuilding devoted to banking purposes but which it claims could also be used

exclusively for residential purposes. The following day, the plaintiffdemanded in writing that the construction of the commercial building bestopped but the defendant refused to comply contending that theconstruction was in accordance with the zoning regulations.

Issues:1. Whether Resolution No. 27 s-1960 is a valid exercise of police power.


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may be subjected to all kinds of restraint and burdens, in order tosecure the general comfort, health and prosperity of the state, andto this fundamental aim of the Government, the rights of the individual aresubordinated.

Closure and Opening of Roads

Cabrera v. CAFacts: The Provincial Board of Catanduanes adopted Resolution No. 158closing the old road leading to the new Capitol Building of this province totraffic and giving the owners of the properties traversed by the new roadequal area as per survey by the Highway District Engineer's office from theold road adjacent to the respective remaining portion of their properties.Pursuant thereto, Deeds of Exchange were executed under which theProvince of Catanduanes conveyed to Remedios R. Bagadiong, FredeswindoF. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro,

Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchangefor their own respective properties, on which was subsequently laid a newconcrete road leading to the Capitol Building. In 1978, part of the northernend of the old road fronting the petitioner's house was planted to vegetablesin 1977 by Eulogia Alejandro. Anselmo Pea, who had bought AngelesVargas's share, also in the same part of the road, converted it into a piggeryfarm. Learning about Resolution 158, the petitioner filed on December 29,1978, a complaint with the Court of First Instance of Catanduanes for"Restoration of Public Road and/or Abatement of Nuisance, Annulment ofResolutions and Documents with Damages." He alleged that the landfronting his house was a public road owned by the Province of Catanduanes

in its governmental capacity and therefore beyond the commerce of man. Hecontended that Resolution No. 158 and the deeds of exchange were invalid,as so too was the closure of the northern portion of the said road.In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., whileholding that the land in question was not a declared public road but a mere"passageway" or "short-cut," nevertheless sustained the authority of theprovincial board to enact Resolution No. 158 under existing law. 1 Appealwas taken to the respondent court, 2 which found that the road was a publicroad and not a trail but just the same also upheld Resolution 158. Itdeclared:Pursuant to Republic Act No. 5185, municipal authorities can close, subjectto the approval or direction of the Provincial Board, thoroughfares underSection 2246 of the Revised Administrative Code. Although in this case theroad was not closed by the municipality of Catanduanes but by the provincialboard of Catanduanes, the closure, nevertheless, is valid since it was orderedby the approving authority itself. However, while it could do so, the provincialgovernment of Catanduanes could close the road only if the persons


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are acts well within the ambit of the power to close a city street. Thecity council, it would seem to us, is the authority competent todetermine whether or not a certain property is still necessary for publicuse. Such power to vacate a street or alley is discretionary. And thediscretion will not ordinarily be controlled or interfered with by the

courts, absent a plain case of abuse or fraud or collusion. Faithfulnessto the public trust will be presumed. So the fact that some privateinterests may be served incidentally will not invalidate the vacationordinance.

While it is true that the above cases dealt with city councils and notthe provincial board, there is no reason for not applying the doctrineannounced therein to the provincial board in connection with theclosure of provincial roads. The provincial board has, after all, the dutyof maintaining such roads for the comfort and convenience of theinhabitants of the province. Moreover, this authority is inferable fromthe grant by the national legislature of the funds to the Province of

Catanduanes for the construction of provincial roads. The lower court found the petitioner's allegation of injury and prejudice

to be without basis because he had "easy access anyway to thenational road, for in fact the vehicles used by the Court and the partiesduring the ocular inspection easily passed and used it, reachingbeyond plaintiff's house." However, the CA ruled that the he "wasprejudiced by the closure of the road which formerly fronted his house.He and his family were undoubtedly inconvenienced by the loss ofaccess to their place of residence for which we believe they should becompensated."

Favis: The general rule is that one whose property does not abut on

the closed section of a street has no right to compensation for theclosing or vacation of the street, if he still has reasonable access to thegeneral system of streets. The circumstances in some cases may besuch as to give a right to damages to a property owner, even thoughhis property does not abut on the closed section. But to warrantrecovery in any such case the property owner must show that thesituation is such that he has sustained special damages differing inkind, and not merely in degree, from those sustained by the publicgenerally.

Richmond v. City of Hinton : The Constitution does not undertake toguarantee to a property owner the public maintenance of the mostconvenient route to his door. The law will not permit him to be cut offfrom the public thoroughfares, but he must content himself with suchroute for outlet as the regularly constituted public authority may deemmost compatible with the public welfare. When he acquires cityproperty, he does so in tacit recognition of these principles. If,subsequent to his acquisition, the city authorities abandon a portion ofthe street to which his property is not immediately adjacent, he may


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delivery of basic services in Metro Manila. One of these basic servicesis traffic management which involves the regulation of the use ofthoroughfares to insure the safety, convenience and welfare of thegeneral public. It is alleged that the police power of MMDA wasaffirmed by this Court in the consolidated cases of Sangalang v.

Intermediate Appellate Court. From the premise that it has policepower, it is now urged that there is no need for the City of Makati toenact an ordinance opening Neptune street to the public.

Police power is an inherent attribute of sovereignty. It has beendefined as the power vested by the Constitution in the legislature tomake, ordain, and establish all manner of wholesome and reasonablelaws, statutes and ordinances, either with penalties or without, notrepugnant to the Constitution, as they shall judge to be for the goodand welfare of the commonwealth, and for the subjects of the same.The power is plenary and its scope is vast and pervasive, reaching andjustifying measures for public health, public safety, public morals, and

the general welfare. It bears stressing that police power is lodged primarily in the National

Legislature. It cannot be exercised by any group or body of individualsnot possessing legislative power. The National Legislature, however,may delegate this power to the President and administrative boards aswell as the lawmaking bodies of municipal corporations or LGUs. Oncedelegated, the agents can exercise only such legislative powers as areconferred on them by the national lawmaking body.

A local government is a "political subdivision of a nation or state whichis constituted by law and has substantial control of local affairs." TheLGC of 1991 defines a LGU as a "body politic and corporate", one

endowed with powers as a political subdivision of the NationalGovernment and as a corporate entity representing the inhabitants ofits territory. LGUs are the provinces, cities, municipalities andbarangays. They are also the territorial and political subdivisions of thestate.

Our Congress delegated police power to the LGUs in the LGC of 1991.LGUs exercise police power through their respective legislative bodies.The legislative body of the provincial government is the sangguniangpanlalawigan, that of the city government is the sangguniangpanlungsod, that of the municipal government is the sangguniangbayan, and that of the barangay is the sangguniang barangay. TheLGC of 1991 empowers the sangguniang panlalawigan, sangguniangpanlungsod and sangguniang bayan to "enact ordinances, approveresolutions and appropriate funds for the general welfare of the[province, city or municipality, as the case may be], and its inhabitantspursuant to Section 16 of the Code and in the proper exercise of thecorporate powers of the [province, city municipality] provided underthe Code. The same Code gives the sangguniang barangay the power


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to "enact ordinances as may be necessary to discharge theresponsibilities conferred upon it by law or ordinance and to promotethe general welfare of the inhabitants thereon."

Metropolitan or Metro Manila is a body composed of several LGUs - i.e.,twelve (12) cities and five (5) municipalities, namely, the cities of

Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon,Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and themunicipalities of Malabon, , Navotas, , Pateros, San Juan and Taguig.With the passage of Republic Act (R. A.) No. 7924 [24] in 1995,Metropolitan Manila was declared as a "special development andadministrative region" and the Administration of "metro-wide" basicservices affecting the region placed under "a development authority"referred to as the MMDA.

"Metro-wide services" are those "services which have metro-wideimpact and transcend local political boundaries or entail hugeexpenditures such that it would not be viable for said services to be

provided by the individual LGUs comprising Metro Manila." There areseven (7) basic metro-wide services and the scope of these servicescover the following: (1) development planning; (2) transport and trafficmanagement; (3) solid waste disposal and management; (4) floodcontrol and sewerage management; (5) urban renewal, zoning andland use planning, and shelter services; (6) health and sanitation,urban protection and pollution control; and (7) public safety. The basicservice of transport and traffic management includes the following:"(b) Transport and traffic management which include the formulation,coordination, and monitoring of policies, standards, programs andprojects to rationalize the existing transport operations, infrastructure

requirements, the use of thoroughfares, and promotion of safe andconvenient movement of persons and goods; provision for the masstransport system and the institution of a system to regulate roadusers; administration and implementation of all traffic enforcementoperations, traffic engineering services and traffic education programs,including the institution of a single ticketing system in MetropolitanManila;"

The scope of the MMDAs function is limited to the delivery of theseven (7) basic services. One of these is transport and trafficmanagement which includes the formulation and monitoring ofpolicies, standards and projects to rationalize the existing transport

operations, infrastructure requirements, the use of thoroughfares andpromotion of the safe movement of persons and goods. It also coversthe mass transport system and the institution of a system of roadregulation, the administration of all traffic enforcement operations,traffic engineering services and traffic education programs, includingthe institution of a single ticketing system in Metro Manila for trafficviolations. Under this service, the MMDA is expressly authorized "to setthe policies concerning traffic" and "coordinate and regulate the


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implementation of all traffic management programs." In addition, theMMDA may "install and administer a single ticketing system," fix,impose and collect fines and penalties for all traffic violations.

It will be noted that the powers of the MMDA are limited to thefollowing acts: formulation, coordination, regulation, implementation,

preparation, management, monitoring, setting of policies, installationof a system and administration. There is no syllable in R. A. No. 7924that grants the MMDA police power, let alone legislative power. Eventhe Metro Manila Council has not been delegated any legislative power.Unlike the legislative bodies of the LGUs, there is no provision in R. A.No. 7924 that empowers the MMDA or its Council to "enact ordinances,approve resolutions and appropriate funds for the general welfare" ofthe inhabitants of Metro Manila. The MMDA is, as termed in the charteritself, a "development authority."It is an agency created for thepurpose of laying down policies and coordinating with the variousnational government agencies, peoples organizations, non-

governmental organizations and the private sector for the efficient andexpeditious delivery of basic services in the vast metropolitan area. Allits functions are administrative in nature.

Contrary to petitioners claim, the two Sangalang cases do not apply tothe case at bar. Firstly, both involved zoning ordinances passed by themunicipal council of Makati and the MMC. In the instant case, the basisfor the proposed opening of Neptune Street is contained in the noticeof December 22, 1995 sent by petitioner to respondent BAVA, throughits president. The notice does not cite any ordinance or law, either bythe Sangguniang Panlungsod of Makati City or by the MMDA, as thelegal basis for the proposed opening of Neptune Street. Petitioner

MMDA simply relied on its authority under its charter "to rationalize theuse of roads and/or thoroughfares for the safe and convenientmovement of persons." Rationalizing the use of roads andthoroughfares is one of the acts that fall within the scope of transportand traffic management. By no stretch of the imagination, however,can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not thesame entity as the MMC in Sangalang. Although the MMC is theforerunner of the present MMDA, an examination of PresidentialDecree (P. D.) No. 824, the charter of the MMC, shows that the latterpossessed greater powers which were not bestowed on the present

MMDA. The MMC was the "central government" of Metro Manila for the

purpose of establishing and administering programs providing servicescommon to the area. As a "central government" it had the power tolevy and collect taxes and special assessments, the power to chargeand collect fees; the power to appropriate money for its operation, andat the same time, review appropriations for the city and municipalunits within its jurisdiction. It was bestowed the power to enact or


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President merely exercises supervisory authority. This emphasizes theadministrative character of the MMDA.

Clearly then, the MMC under P. D. No. 824 is not the same entity as theMMDA under R. A. No. 7924. Unlike the MMC, the MMDA has no powerto enact ordinances for the welfare of the community. It is the LGUs,

acting through their respective legislative councils, that possesslegislative power and police power. In the case at bar, theSangguniang Panlungsod of Makati City did not pass any ordinance orresolution ordering the opening of Neptune Street, hence, its proposedopening by petitioner MMDA is illegal and the respondent CA did noterr in so ruling.

SANGALANG V. INTERMEDIATE APPELLATE COURT

*This case is about how Jupiter street was opened up to the public by a cityordinance contrary to the wishes of the Bel Air village residents who wanted

to keep it closed for their private use.

FACTS:

1. Bel-Air Village is located north of Buendia Avenue extension (now Sen.Gil J. Puyat Ave.) across a stretch of commercial block from Reposo Streetin the west up to Zodiac Street in the east.

Plaintiffs are all either residents of Bel Air village or the Bel Air VillageAssociation (BAVA).

In the 1950's Bel Air Village property was sold by Makati DevelopmentCorporation which was later merged with Ayala Corporation.

The lots were subject to certain restrictions namely: 1)All lot owners wouldautomatically be a member of BAVA and 2) The lots may only be used fordomestic purposes, which would last for a period of 50 years.

At the time the area was open to all kinds of people and even animals.The residents decided to build a wall along the commercial side of jupiterstreet.

Eventually Ayala Corporation decided to sell the lots on the commercialside of jupiter street to the public. In 1972, Bava and Ayala agreed thatthe lot owners would be members of BAVA and would be subject to the

same deed of restriction of other residents in the subdivision. On April 4, 1975, the municipal council of Makati enacted its ordinance no

81, providing for the zonification of makati. Uner this ordinance, Bel airvillage was classified as a class A residential zone with its boundary in thesouth EXTENDING TO THE CENTER LINE OF JUPITER STREET. The otherside of the street in between buendia and until the center line of Jupiterstreet was made an Administrative Office Zone.


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a) The municipality may levy fees for the sealing and licensing of weightsand measures at such reasonable rates as shall be prescribed by thesangguniang bayan.b) The sangguniang bayan shall prescribe the necessary regulations for the

use of such weights and measures, subject to such guidelines as shall beprescribed by the Department of Science and Technology. The sanggunianconcerned shall, by appropriate ordinance, penalize fraudulent practices andunlawful possession or use of instruments of weights and measures andprescribe the criminal penalty therefor in accordance with the provisions ofthis Code. Provided, however, That the sanggunian concerned may authorizethe municipal treasurer to settle an offense not involving the commission offraud before a case therefor is filed in court, upon payment of a compromisepenalty of not less than Two hundred pesos (P=200.00).

Establishment of Waterworks SystemSection 468.Powers, Duties, Functions and Compensation.

(a) The sangguniang panlalawigan, as the legislative body of theprovince, shall enact ordinances, approve resolutions and appropriatefunds for the general welfare of the province and its inhabitantspursuant to Section 16 of this Code in the proper exercise of thecorporate powers of the province as provided for under Section 22 ofthis Code, and shall:

(4) Approve ordinances which shall ensure the efficient andeffective delivery of basic services and facilities as provided for

under Section 17 of this Code, and, in addition to said servicesand facilities, shall:(ii) Subject to applicable laws, facilitate or provide for theestablishment and maintenance of waterworks system ordistrict waterworks for supplying water to inhabitants ofcomponent cities and municipalities;

Slaughter House RegulationSEC. 17. Basic Services and Facilities. - (a) Local government units shallendeavor to be self-reliant and shall continue exercising the powers anddischarging the duties and functions currently vested upon them. They shall

also discharge the functions and responsibilities of national agencies andoffices devolved to them pursuant to this Code. Local government units shalllikewise exercise such other powers and discharge such other functions andresponsibilities as are necessary, appropriate, or incidental to efficient andeffective provision of the basic services and facilities enumerated herein.Such as Public markets, slaughterhouses and other municipal enterprises


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Abatement of Nuisance

State of Gregoria Francisco vs. CAESTATE OF GREGORIA FRANCISCO v. COURT OF APPEALS, G.R. No.95279, 25 July 1991, 199 SCRA 595

Melencio-Herrera, J.

FACTS: Basilan Municipal Mayor Benjamin Valencia summarily ordered thedemolition of an antiquated and dilapidated quonset warehouse situated inPort Area, Strong Boulevard, Isabela, Basilan, outside the zone forwarehouses. The legal possessor of the quonset sought the prohibition of theOrder but was denied by the RTC. The CA originally overturned the RTC butsubsequently reversed itself. In question in this case is the validity of suchorder by the Municipal Mayor, which was in effect an abatement of nuisance,without prior judicial authority.

ISSUE: Whether or not Respondent Mayor could summarily and extra-judicially order the demolition of petitioner's quonset building.

HELD: NO

Ordinance No. 147 relied upon by Respondents should not be interpreted asauthorizing the summary removal of a non-conforming building by themunicipal government. For if it does, it must be struck down for being incontravention of the requirements of due process, as originally held bythe Court of Appeals.

Moreover, the enforcement and administration of the provisions of theOrdinance resides with the Zoning Administrator. It is said official who maycall upon the City Fiscal to institute the necessary legal proceedings toenforce the provisions of the Ordinance. And any person aggrieved by thedecision of the Zoning Administrator regarding the enforcement of theOrdinance may appeal to the Board of Zoning Appeals.

Violation of a municipal ordinance neither empowers the Municipal Mayor toavail of extra-judicial remedies. On the contrary, the Local Government Codeimposes upon him the duty "to cause to be instituted judicial proceedings inconnection with the violation of ordinances" (Local Government Code, Sec.141 [2] [t]).

Respondents cannot seek cover under the general welfare clauseauthorizing the abatement of nuisances without judicialproceedings, which applies only to a nuisance per se or one which affectsthe immediate safety of persons and property and may be summarily abatedunder the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123


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[1982]). The storage of copra in the quonset building is a legitimatebusiness. By its nature, it cannot be said to be injurious to rights of property,of health or of comfort of the community. If it be a nuisance per accidens itmay be so proven in a hearing conducted for that purpose. It is not per se anuisance warranting its summary abatement without judicial intervention.

The provincial governor, district engineer or district health officer is notauthorized to destroy private property consisting of dams and fishpondssummarily and without any judicial proceedings whatever under the pretensethat such private property constitutes a nuisance. A dam or a fisheryconstructed in navigable rivers is not a nuisance per se. A dam or fishpondmay be a nuisance per accidens where it endangers or impairs the health ordepreciates property by causing water to become stagnant. (Monteverde v.Generoso, supra).

While the Sangguniang Bayan may provide for the abatement of a nuisance

(Local Government Code, Sec. 149 [ee]), it can not declare a particular thingas a nuisance per se and order its condemnation. The nuisance can only beso adjudged by judicial determination.

[Municipal councils] do not have the power to find as a fact thata particular thing is a nuisance when such thing is not a nuisanceper se nor can they authorize the extra judicial condemnationand destruction of that as a nuisance which, in its nature,situation or use is not such. These things must be determined inthe ordinary courts of law. In the present case, . . . the ice factoryof the plaintiff is not a nuisance per se. It is a legitimate

industry . . . . If it be in fact a nuisance due to the manner of itsoperation, that question cannot be determined by a mereresolution of the board. The petitioner is entitled to a fair andimpartial heating before a judicial tribunal. (Iloilo Cold Storage v.Municipal Council, 24 Phil. 47 [1913]).

Petitioner was in lawful possession of the lot and quonset building by virtueof a permit from the Philippine Ports Authority (Port of Zamboanga) whendemolition was effected. It was not squatting on public land. Its property wasnot of trifling value. It was entitled to an impartial hearing before a tribunalauthorized to decide whether the quonset building did constitute a nuisance

in law. There was no compelling necessity for precipitate action. It followsthen that respondent public officials of the Municipality of Isabela, Basilan,transcended their authority in abating summarily petitioner's quonsetbuilding. They had deprived petitioner of its property without due process oflaw. The fact that petitioner filed a suit for prohibition and was subsequentlyheard thereon will not cure the defect, as opined by the Court of Appeals, thedemolition having been a fait accompli prior to hearing and the authority todemolish without a judicial order being a prejudicial issue.


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NOTES:

Nuisances are of two classes: Nuisances per se and per accidens. Asto the first, since they affect the immediate safety of persons and property,

they may be summarily abated under the undefined law of necessity. But ifthe nuisance be of the second class, even the municipal authorities, undertheir power to declare and abate nuisances, would not have the right tocompel the abatement of a particular thing or act as a nuisance withoutreasonable notice to the person alleged to be maintaining or doing the sameof the time and place of hearing before a tribunal authorized to decidewhether such a thing or act does in law constitute a nuisance. (Monteverdev. Generoso, 52 Phil. 123 (1982), citing Iloilo Ice and Cold Storage Co. vs.Municipal Council of Iloilo [{1913}, 24 Phil., 471])

Petitioner's business could not be considered a nuisance which respondent

municipality could summarily abate in the guise of exercising its policepowers. The abatement of a nuisance without judicial proceedings is possibleonly if it is a nuisance per se. A gas station is not a nuisance per se or oneaffecting the immediate safety of persons and property,17 hence, it cannotbe closed down or transferred summarily to another location. (PARAYNO v.JOVELLANOS, G.R. No. 148408, 14 July 2006 citing Monteverde v. Generoso,52 Phil. 123 (1982)

Technology Developers v. CAFacts: TD received a letter from acting mayor Cruz, ordering the fullcessation of the operation of its plant located at Guyong, Sta. Maria, Bulacan,

until further order. The letter likewise requested its plant manager to bringwith him to the office of the mayor the following: a) Building permit; b)Mayor's permit; c) Region III-Pollution of Environment and Natural ResourcesAnti-Pollution Permit. In compliance with said undertaking, petitionercommenced to secure "Region III-Department of Environmental and NaturalResources Anti-Pollution Permit," although among the permits previouslysecured prior to the operation of petitioner's plant was a "Temporary Permitto Operate Air Pollution Installation" issued by the then National PollutionControl Commission (now Environmental Management Bureau) and is now ata stage where the Environmental Management Bureau is trying to determinethe correct kind of anti-pollution devise to be installed as part of petitioner's

request for the renewal of its permit.TD's attention having been called to its lack of mayor's permit, it sent

its representatives to the office of the mayor to secure the same but werenot entertained. On April 6, 1989, without previous and reasonable noticeupon petitioner, respondent acting mayor ordered the Municipality's stationcommander to padlock the premises of petitioner's plant, thus effectivelycausing the stoppage of its operation.


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plant of petitioner goes directly to the surrounding houses andthat no proper air pollution device has been installed.

5. Petitioner failed to produce a building permit from themunicipality of Sta. Maria, but instead presented a buildingpermit issued by an official of Makati on March 6,1987.

6. While petitioner was able to present a temporary permit tooperate by the then National Pollution Control Commission onDecember 15, 1987, the permit was good only up to May 25,1988. Petitioner had not exerted any effort to extend orvalidate its permit much less to install any device to controlthe pollution and prevent any hazard to the health of theresidents of the community. TD: huge investment. SC: such is concomitant with the

need to promote investment and contribute to the growthof the economy is the equally essential imperative ofprotecting the health, nay the very lives of the people,

from the deleterious effect of the pollution of theenvironment.

Laguna Lake Development Authority vs. Court of AppealsFacts:The Laguna Lake Development Authority (LLDA) was created through RA No.4850 in order to execute the policy towards environmental protection andsustainable development so as to accelerate the development and balancedgrowth of the Laguna Lake area and the surrounding provinces and towns.PD No. 813 amended certain sections of RA 4850 since water quality studieshave shown that the lake will deteriorate further if steps are not taken to

check the same.EO 927 further defined and enlarged the functions and powers of the LLDAand enumerated the towns, cities and provinces encompassed by the termLaguna de Bay Region.Upon implementation of RA 7160 (Local Government Code of 1991), themunicipalities assumed exclusive jurisdiction & authority to issue fishingprivileges within their municipal waters since Sec.149 thereof provides:Municipal corporations shall have the authority to grant fishery privileges inthe municipal waters and impose rental fees or charges thereforeBig fishpen operators took advantage of the occasion to establish fishpens &fish cages to the consternation of the LLDA.

The implementation of separate independent policies in fish cages & fish penoperation and the indiscriminate grant of fishpen permits by the lakeshoremunicipalities have saturated the lake with fishpens, thereby aggravatingthe current environmental problems and ecological stress of Laguna Lake.The LLDA then served notice to the general public that (1) fishpens, cages &other aqua-culture structures unregistered with the LLDA as of March 31,1993 are declared illegal; (2) those declared illegal shall be subject todemolition by the Presidential Task Force for Illegal Fishpen and Illegal


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Fishing; and (3) owners of those declared illegal shall be criminally chargedwith violation of Sec.39-A of RA 4850 as amended by PD 813.A month later, the LLDA sent notices advising the owners of the illegallyconstructed fishpens, fishcages and other aqua-culture structures advisingthem to dismantle their respective structures otherwise demolition shall be

effected.Issues:1.Which agency of the government the LLDA or the towns andmunicipalities comprising the region should exercise jurisdiction over theLaguna lake and its environs insofar as the issuance of permits for fisheryprivileges is concerned?2. Whether the LLDA is a quasi-judicial agency?Held:1. Sec.4(k) of the charter of the LLDA, RA 4850, the provisions of PD 813,andSec.2 of EO No.927, specifically provide that the LLDA shall have exclusivejurisdiction to issue permits for the use of all surface water for any projects

or activities in or affecting the said region. On the other hand, RA 7160 hasgranted to the municipalities the exclusive authority to grant fisheryprivileges on municipal waters. The provisions of RA 7160 do notnecessarily repeal the laws creating the LLDA and granting the latterwater rights authority over Laguna de Bay and the lake region.Where there is a conflict between a general law and a specialstatute, latter should prevail since it evinces the legislative intentmore clearly than the general statute.The special law is to be taken asan exception to the general law in the absence of special circumstancesforcing a contrary conclusion. Implied repeals are not favored and, as muchas possible, effect must be given to all enactments of the legislature. A

special law cannot be repealed, amended or altered by asubsequent general law by mere implication.The power of LGUs to issue fishing privileges was granted for revenuepurposes. On the other hand, the power of the LLDA to grant permits forfishpens, fish cages, and other aqua-culture structures is for the purpose ofeffectively regulating & monitoring activities in the Laguna de Bay regionand for lake control and management. It partakes of the nature of policepower which is the most pervasive, least limitable and mostdemanding of all state powers including the power of taxation.Accordingly, the charter of the LLDA which embodies a valid exercise ofpolice power should prevail over the LGC of 1991 on matters affecting

Laguna de Bay.2. The LLDA has express powers as a regulatory and quasi-judicial body inrespect to pollution cases with authority to issue a cease and desist orderand on matters affecting the construction of illegal fishpens, fish cages andother aqua-culture structures in Laguna de Bay.


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December 23, 1951, and, therefore, contrary to Article III, section 1, clause10 of the Constitution. The request, however, was not granted.On September 4, 1952, the lessee instituted this proceedings in the courtbelow seeking to have Resolution 3, series of 1952, of the municipal councilof Naujan, declared null and void, for being unconstitutional, and praying for

an order enjoining the defendant municipality from conducting a publicbidding for the leasing of the Naujan fisheries to any person other than theplaintiff during the period from January 1, 1953 to December 31, 1957.Answering the complaint, the defendant asserted the validity of Resolution 3,series of 1951, alleging by the way of special defense that the resolutionauthorizing the original lease contract, reducing the lease rentals andrenewing the lease are null and void for not having been passed inaccordance with law. Defendant further put up a counterclaim for theamount representing the illegal reduction of 20% of the original rentals, plusthe sum of P2,191.60 per month beginning December 1, 1952 until the caseshall have been terminated. After trial, the lower court rendered judgment

upholding the validity of the lease contract, as well at is extension, anddeclaring Resolution 3, series of 1952, null and void. The municipality ofNaujan has taken this appeal.Issue: WON Resolution No. 3, series of 1952, revoking Resolution 222, seriesof 1951, of the municipal council of Naujan is valid.

The law (Sec. 2323 of the Revised Administrative Code) requires thatwhen the exclusive privilege of fishery or the right to conduct a fish-breeding ground is granted to a private party, the same shall be let tothe highest bidder in the same manner as is being done in exploiting aferry, a market or a slaughterhouse belonging to the municipality. Therequirement of competitive bidding is for the purpose of inviting

competition and to guard against favoritism, fraud and corruption inthe letting of fishery privileges

There is no doubt that the original lease contract in this case wasawarded to the highest bidder, but the reduction of the rental and theextension of the term of the lease appear to have been grantedwithout previous public bidding.

Caltex (Phil.), Inc., et al. vs. Delgado Bros., Inc.:the amendment to anarrastre contract was declared null and void on the ground that it wasmade without previous public bidding. In so declaring, this Court hasadopted the following opinion:. . . it is the opinion of the Court that thesaid agreement .. executed and entered into without previous public

bidding, is null and void, and cannot adversely affect the rights of thirdparties . . . and of the public in general. The Court agrees with thecontention of counsel for the plaintiffs that the due execution of acontract after public bidding is a limitation upon the right of thecontradicting parties to alter or amend it without another publicbidding, for otherwise what would a public bidding be good for if afterthe execution of a contract after public bidding, the contracting partiesmay alter or amend the contract or even cancel it, at their will? Public


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adobe stone (cascajo) and 1,400 cubic meters of gravel. In compliance withthe contract, the petitioner delivered crushed adobe stone and gravel to themunicipality at the places designated by the municipal mayor. On 29 July1950 the petitioner wrote to the municipal treasurer, through the provincialauditor, calling his attention to the fact that the sum of P19,339.56 due him

as payment for the value of crushed adobe stone and gravel delivered to themunicipality had not yet been paid and that as the fiscal year 1949-1950 hadalready expired, he requested that the sum be included in the appropriationsfor the incoming fiscal year 1950-1951 as an outstanding obligation. On 2August 1950, the principal clerk, acting in behalf of the municipal treasurer,informed the petitioner that "The Municipal Council (had) agreed to put saidamount as standing obligation of the municipality authorizing payment andauthorizing the Municipal Treasurer to pay as soon as funds are available."On 16 October 1951 the municipal council passed Resolution No. 68 ratifyingthe public bidding called by the municipal treasurer for the supply of roadconstruction materials, and the contract entered into by the municipal mayor

in behalf of the municipality on 31 August 1949. On 30 October 1951 thepetitioner filed a complaint against the municipality of Malolos in the Court ofFirst Instance of Bulacan to collect the sum of P19,235 for the value ofcrushed adobe stone and gravel delivered by the petitioner under thecontract. On 8 May 1952 the petitioner amended his complaint. On 8 January1954 the Court dismissed the case without prejudice. On 11 January 1954the petitioner sought the intervention of the Presidential Complaints andAction Committee, which forwarded the petitioner's claim through properchannels to the Office of the Auditor General. On 14 January 1955 theDeputy Auditor General denied the petitioner's claim on the ground that asthere was no sum of money appropriated to meet the obligation incurred

before the execution of the contract, as required by section 607 of theRevised Administrative Code, the said contract is void, as provided in section608 of the same Code; and that even if there was such sum appropriated tomeet such obligation, the alleged deliveries of crushed adobe stone andgravel could no longer be verified by the Provincial Auditor of Bulacan or hisrepresentative. On 1 March 1955, the petitioner requested the DeputyAuditor General to reconsider his decision. On 5 March 1955, before the saidofficer could take action on the request for reconsideration, the petitionerfiled his notice of appeal with the Office of the Auditor General, and thispetition for review in this Court. On 9 March 1955, on motion of thepetitioner, this Court resolved to suspend the service of notice upon the

Auditor General pursuant to section 4, Rule 45, and granted the petitionerfive days from receipt of notice of the action taken by the Auditor General onhis request for reconsideration, within which to file a supplement to hispetition for review. On 2 June 1955 the Deputy Auditor General denied hisrequest for reconsideration, reiterating the grounds previously relied upon inhis decision on 14 January 1954. On 21 June 1955 the petitioner filed asupplement to his petition for review in this Court.


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Facts: On August 19, 1949 the municipality of Malolos called for bids forfurnishing and delivering materials to be used in the maintenance and repairof barrio roads. Rivera won in the bidding and was asked by the MunicipalTreasurer to come to his office for execution of the corresponding contract.

On August 31, 1949 the contract was signed by appellant and by Maclang inhis capacity as Municipal Mayor of Malolos. Pursuant thereto appellantsubsequently delivered to the municipality gravel and adobe stones valuedat P19,235.00. On October 16, 1951 the Municipal council of Malolos passeda resolution approving the contract, but in spite of repeated demands byappellant the price of the materials was not paid.In 1954 appellant sought the intervention of the Presidential Complaint andAction Commission, which referred the matter to the General Auditing Office.That office turned down the claim for payment, whereupon appellant filed inthis Court a petition for review, docketed as SC-G.R. No. L-8847. In itsdecision of October 31, 1957 this Court sustained the action of the General

Auditing Office and held that the contract in question was void as far as themunicipal government of Malolos was concerned on the ground that nomoney had been appropriated to meet the obligation prior to the executionof the contract, as required by section 607 Revised Administrative Code.However, in the same decision this Court indicated that section 608 of thesame Code afforded appellant a remedy. Consequently, he filed the presentaction against defendant- appellee in his personal capacity pursuant to thesaid provision. The trial court dismissed the complaint, stating that inasmuchas in the previous case the contract entered into between appellant and theMunicipality of Malolos had been declared null and void by this Court, "itcannot produce any legal effect for which thereafter no recovery can be

made."

Issue: WON the dismissal is erroneous. Our ruling in the previous case is that the contract was null and void

vis-a-vis the Municipality of Malolos, by reason of noncompliance withthe requirement of section 607 of the Revised Administrative Code,which states that "except in the case of a contract for supplies to becarried in stock, no contract involving the expenditure by any province,municipality, chartered city, or municipal district of two thousandpesos or more shall be entered into or authorized until the treasurer ofthe political division concerned shall have certified to the officer

entering into such contract that funds have been duly appropriated forsuch purpose and that the amount necessary to cover the proposedcontract is available for expenditure on account thereof."

It should be noted that the present action is against defendant-appellee in his personal capacity on the strength of section 608 of thesame code, which provides as follows: SEC. 608.Void contract Liability of officer. A purported contract entered into contrary to therequirements of the next preceding section hereof shall be wholly void,


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governmental powers on the one hand, and corporate or proprietary orbusiness powers on the other, as the latter class is variously describedin the reported cases, has long been recognized in the United Statesand there is no dissent from the doctrine.

The municipality is not liable for the acts of its officers or agents in the

performance in the performance of its governmental functions.Governmental affairs do not lose their governmental character bybeing delegated to the municipal government. Nor does the fact thatsuch duties are performed by such officers of the municipality which,for convenience, the state allows the municipality to select, changetheir character. To preserve the peace, protect the morals and healthof the community and so on is to administer government, whether it bedone by the central government itself or is shifted to a localorganization. And the state being immune for injuries suffered byprivate individuals in the administration of strictly governmentalfunctions, like immunity is enjoyed by the municipality in the

performance of the same duties, unless it is expressly made liable bystatute.

"The state cannot, without its consent expressed through legislation,be sued for injuries resulting from an act done in the exercise of itslawful governmental powers and pertaining to the administration ofgovernment. . . . Municipal corporations are agents of the state in theexercise of certain governmental powers. The preservation of thehealth and peace of its inhabitants and fire protections afforded theproperty owner, are governmental functions."

A municipality is not exempt from liability for the negligentperformance of its corporate or proprietary or business functions. In

the administration of its patrimonial property, it is to be regarded as aprivate corporation or individual 153113-13 so far as its liability to thirdpersons on contract or in tort is concerned. Its contracts, valid enteredinto, may be enforced and damages may be collected from it for thetorts of its officers or agents within the scope of their employment inprecisely the same manner and to the same extent as those of privatecorporations or individuals. As to such matters the principlesrespondeat superior applies. It is for these purposes that themunicipality is made liable to suits in the courts.

"Municipal corporations are subject to be sued upon contracts and intort. In a previous chapter we have considered at length the authorityof such corporations to make contracts, the mode of exercising, andthe effect of transcending the power. This leaves but little to add inthis place respecting their liability in actions ex contractu. Upon anauthorized contract ---- that is, upon a contract within the scope of thecharter or legislative powers of the corporation and duly made by theproper officers or agents ---- they are liable in the same manner and tothe same extent as private corporations or natural persons."


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proprietary in character. Easily, no governmental or public policy of thestate is involved in the celebration of a town fiesta.

2. WON under the doctrine of respondent superior, petitioner-municipalityis to be held liable for damages for the death of Vicente Fontanilla ifthat was attributable to the negligence of the municipality's officers,

employees, or agents. YES. "Art. 2176, Civil Code: Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for thedamage done. . . ." "Art. 2180. Civil Code: The obligation imposed byarticle 2176 is demandable not only for one's own acts or omission, butalso for those of persons for whom one is responsible . . ."

On this point, the Court of Appeals found and held that there wasnegligence. The trial court gave credence to the testimony of AngelNovado, a witness of the defendants (now petitioners), that a memberof the "extravaganza troupe" removed two principal braces located onthe front portion of the stage and used them to hang the screen or

"telon", and that when many people went up the stage the lattercollapsed. This testimony was not believed however by respondentappellate court, and rightly so. According to said defendants, those twobraces were "mother" or "principal" braces located semi-diagonallyfrom the front ends of the stage to the front posts of the ticket boothlocated at the rear of the stage and were fastened with a bambootwine. That being the case, it becomes incredible that any person in hisright mind would remove those principal braces and leave the frontportion of the stage practically unsupported. Moreover, if that didhappen, there was indeed negligence as there was lack of supervisionover the use of the stage to prevent such an occurrence. At any rate,

the guitarist who was pointed to by Novado as the person whoremoved the two bamboo braces denied having done so. The Court ofAppeals said. "Amor by himself alone could not have removed the twobraces which must be about ten meters long and fastened them on topof the stage for the curtain. The stage was only five and a half meterswide Surely, it would be impractical and unwieldy to use a ten meterbamboo pole, much more two poles, for the stage curtain." Theappellate court also found that the stage was not strong enoughconsidering that only P100.00 was appropriate for the construction oftwo stages and while the floor of the "zarzuela" stage was of woodenplanks, the posts and braces used were of bamboo material. We

likewise observe that although the stage was described by thepetitioners as being supported by "24" posts, nevertheless there wereonly 4 in front, 4 at the rear, and 5 on each side. Where were the rest?

The Court of Appeals thus concluded: "The court a quo itself attributedthe collapse of the stage to the great number of onlookers whomounted the stage. The municipality and/or its agents had thenecessary means within its command to prevent such an occurrence.Having failed to take the necessary steps to maintain the safety of the


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stage for the use of the participants in the stage presentation preparedin connection with the celebration of the town fiesta, particularly, inpreventing nonparticipants or spectators from mounting andaccumulating on the stage which was not constructed to meet theadditional weight, the defendants-appellees were negligent and are

liable for the death of Vicente Fontanilla." The findings of the respondent appellate court that the facts as

presented to it establish negligence as a matter of law and that theMunicipality failed to exercise the due diligence of a good father of thefamily, will not disturbed by Us in the absence of a clear showing of anabuse of discretion or a gross misapprehension of facts. Liability restson negligence which is "the want of such care as a person of ordinaryprudence would exercise under the circumstances of the case."

Thus, private respondents argue that the "Midas Extravaganza" whichwas to be performed during the town fiesta was a "donation" offeredby an association of Malasiqui employees of the Manila Railroad Co. in

Caloocan, and that when the Municipality of Malasiqui accepted thedonation of services and constructed precisely a "zarzuela stage" forthe purpose, the participants in the stage show had the right to expectthat the Municipality through its "Committee on entertainment andstage" would build or put up a stage or platform strong enough tosustain the weight or burden of the performance and take thenecessary measures to insure the personal safety of the participants.We agree.

Sanders v. City of Long Beach, 1942, which was an action against thecity for injuries sustained from a fall when plaintiff was descending thesteps of the city auditorium. The city was conducting a "Know your City

Week" and one of the features was the showing of a motion picture inthe city auditorium to which the general public was invited and plaintiffSanders was one of those who attended. In sustaining the award fordamages in favor of plaintiff, the District Court of Appeal, Seconddistrict, California, held inter alia that the "Know your City Week" was a"proprietary activity" and not a "governmental one" of the city, thatdefendant owed to plaintiff, an "invitee", the duty of exercisingordinary care for her safety, and plaintiff was entitled to assume thatshe would not be exposed to a danger (which in this case consisted oflack of sufficient illumination of the premises) that would come to herthrough a violation of defendant's duty.

We can say that the deceased Vicente Fontanilla was similarly situatedas Sanders. The Municipality of Malasiqui resolved to celebrate thetown fiesta in January of 1959; it created a committee in charge of theentertainment and stage; an association of Malasiqui residentsresponded to the call for the festivities and volunteered to present astage show; Vicente Fontanilla was one of the participants who like


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Sanders had the right to expect that he would be exposed to danger onthat occasion.

Lastly, petitioner or appellant Municipality cannot evade responsibilityand/or liability under the claim that it was Jose Macaraeg whoconstructed the stage. The municipality acting through its municipal

council appointed Macaraeg as chairman of the sub-committee onentertainment and in charge of the construction of the "zarzuela"stage. Macaraeg acted merely as an agent of the Municipality. Underthe doctrine of respondent superior mentioned earlier, petitioner isresponsible or liable for the negligence of its agent acting within hisassigned tasks.

". . . when it is sought to render a municipal corporation liable for theact of servants or agents, a cardinal inquiry is, whether they are theservants or agents of the corporation. If the corporation appoints orelects them, can control them in the discharge of their duties, cancontinue or remove them, can hold them responsible f or the manner

in which they discharge their trust, and if those duties relate to theexercise of corporate powers, and are for the peculiar benefit of thecorporation in its local or special interest, they may justly be regardedas its agents or servants, and the maxim of respondent superiorapplies."

3. WON municipality councilors who enacted the ordinance and createdthe fiesta committee are liable.

The Court of Appeals held the councilors jointly and solidarily liablewith the municipality for damages under Article 27 of the Civil Codewhich provides that "any person suffering material or moral lossbecause a public servant or employee refuses or neglects, without just

cause, to perform his official duty may file an action for damages andother relief against the latter."

In their Petition for review the municipal councilors allege that theCourt of Appeals erred in ruling that the holding of a town fiesta is nota governmental function and that there was negligence on their partfor not maintaining and supervising the safe use of the stage, inapplying Article 27 of the Civil Code against them, and in not holdingJose Macaraeg liable for the collapse of the stage and the consequentdeath of Vicente Fontanilla.

We agree with petitioners that the Court of Appeals erred in applyingArticle 27 of the Civil Code against them, for this particular articlecovers a case of non-feasance or non-performance by a public officerof his official duty; it does not apply to a case of negligence ormisfeasance in carrying out an official duty. If We are led to set asidethe decision of the Court of Appeals insofar as these petitioners areconcerned, it is because of plain error committed by respondent courtwhich however is not invoked in petitioners' brief.


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Miguel v. CA: the Supreme Court is vested with ample authority toreview matters not assigned as errors in an appeal if it finds that theirconsideration and resolution are indispensable or necessary in arrivingat a just decision in a given case, and that this is authorized under Sec.7, Rule 51 of the Rules of Court. We believe that this pronouncement

can well be applied in the instant case. The Court of Appeals in its decision now under review held that the

celebration of a town fiesta by the Municipality of Malasiqui was not agovernmental function. We upheld that ruling. The legal consequencethereof is that the Municipality stands on the same footing as anordinary private corporation with the municipal council acting as itsboard of directors. It is an elementary principle that a corporation has apersonality, separate and distinct from its officers, directors, orpersons composing it and the latter are not as a rule co-responsible inan action for damages for tort or negligence (culpa aquiliana)committed by the corporation's employees or agents unless there is a

showing of bad faith or gross or wanton negligence on their part. "The ordinary doctrine is that a Director, merely by reason of his office,

is not personally liable for the torts of his corporation; he must beshown to have personally voted for or otherwise participated in them."

"Officers of a corporation 'are not held liable for the negligence of thecorporation merely because of their official relation to it, but becauseof some wrongful or negligent act by such officer amounting to abreach of duty which resulted in an injury . . . To make an officer of acorporation liable for the negligence of the corporation there musthave been upon his part such a breach of duty as contributed to, orhelped to bring about, the injury; that is to say, he must be a

participant in the wrongful act." "Directors who merely employ one togive n fireworks exhibition on the corporate grounds are not personallyliable for the negligent acts of the exhibitor."

On these principles We absolve the municipal councilors from anyliability for the death of Vicente Fontanilla. The records do not showthat said petitioners directly participated in the defective constructionof the "zarzuela" stage or that they personally permitted spectators togo up the platform.

City of Manila vs Teotico

FACTS: In January 1958, at about 8pm, Teotico was about to board a jeepneyin P. Burgos, Manila when he fell into an uncovered manhole. This causedinjuries upon him. Thereafter he sued for damages under Article 2189 of theCivil Code the City of Manila, the mayor, the city engineer, the city healthofficer, the city treasurer, and the chief of police. CFI Manila ruled againstTeotico. The CA, on appeal, ruled that the City of Manila should pay damages


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purpose - "to avoid a litigation" - occurs when there is a threat of animpending litigation. At this point, no case has yet reached the courts.The moment a case has been filed in court then the second purpose -"to put an end to one already commenced" - applies. In the hereincase, We are concerned with the second purpose. The latter purpose is

given effect in Article 2037 of the New Civil Code which reads: "Article2037. A compromise has upon the parties the effect and authority ofres judicata; but there shall be no execution except in compliance witha judicial compromise."

A compromise agreement not contrary to law, public order, publicpolicy, morals or good customs is a valid contract which is the lawbetween the parties themselves. A judgment on a compromise is afinal and executor. It is immediately executor in the absence of amotion to set the same aside on the ground of fraud, mistake orduress.

In fact in the herein case before Us, execution has already been issued.

Considering this in the light of Article 2041 of the New Civil Code, towit: "Art. 2041. If one of the parties fails or refuses to abide by thecompromise, the other party may either enforce the compromise orregard it as rescinded and insist upon his original demand."

it is obvious that the respondent-appellee did not only succeed inenforcing the compromise but said plaintiff-appellee likewise wants torescind the said compromise. It is clear from the language of the law,specifically Article 2041 of the New Civil Code that one of the parties toa compromise has two options: 1) to enforce the compromise; or 2) torescind the same and insist upon his original demand. The respondent-appellee in the case herein before Us wants to avail of both of these

options. This can not be done. The respondent-appellee cannot ask forrescission of the compromise agreement after it has already enjoyedthe first option of enforcing the compromise by asking for a writ ofexecution resulting thereby in the garnishment of the Pasay City fundsdeposited with the Philippine National Bank which eventually wasdelivered to the respondent-appellee.

Upon the issuance of the writ of execution, the petitioner-appellantsmoved for its quashal alleging among other things the exemption ofthe government from execution. This move on the part of thepetitioner-appellant is at first glance laudable for "all governmentfunds deposited with the Philippine National Bank by any agency orinstrumentality of the government, whether by way of general orspecial deposit, remain government funds and may not be subject togarnishment or levy (Commissioner of Public Highways vs. San Diego,L-30098, 31 SCRA 616 [Feb. 18, 1970]). But, inasmuch as an ordinancehas already been enacted expressly appropriating the amount ofP613,096.00 of payment to the respondent-appellee, then the hereincase is covered by the exception to the general rule stated in the case


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section 2321 of the Revised Administrative Code. Grant of fishery. Amunicipal council shall have authority, for purposes of profit, to grantthe exclusive privileges of fishery or right to conduct a fish-breedingground within any definite portion, or area, of the municipal waters."Municipal waters", as herein used, include not only streams, lakes,

and tidal waters, include within the municipality, not being the subjectof private ownership, but also marine waters include between two linesdrawn perpendicular to the general coast line from points where theboundary lines of the municipality touch the sea at high tide, and thirdline parallel with the general coast line and distant from it three marineleagues. Where two municipalities are so situated on opposite shoresthat there is less than six marine leagues of marine waters betweenthem the third line shall be a line equally distant from the oppositeshores of the respective municipalities.

Now, is this particular usufruct of the municipality of Paoay over itsmunicipal waters, subject to execution to enforce a judgment against

the town? We are not prepared to answer this question in theaffirmative because there are powerful reasons against its proprietyand legality. In the first place, it is not a usufruct based on or derivedfrom an inherent right of the town. It is based merely on a grant, moreor less temporary, made by the Legislature. Take the right of fisheryover the sea or marine waters bordering a certain municipality. Thesemarine waters are ordinarily for public use, open to navigation andfishing by the people. The Legislature thru section 2321 of theAdministrative Code, as already stated, saw fit to grant the usufruct ofsaid marine waters for fishery purpose, to the towns bordering saidwaters. Said towns have no visited right over said marine waters. The

Legislature, for reasons it may deem valid or as a matter of publicpolicy, may at any time, repeal or modify said section 2321 and revokethis grant to coastal towns and open these marine waters to the public.Or the Legislature may grant the usufruct or right of fishery to theprovinces concerned so that said provinces may operate or administerthem by leasing them to private parties.

All this only goes to prove that the municipality of Paoay is not holdingthis usufruct or right of fishery in a permanent or absolute manner soas to enable it to dispose of it or to allow it to be taken away from it asits property through execution.

Another reason against subjecting this usufruct or right of fishery over

municipal waters, to execution, is that, if this were to be allowed andthis right sold on execution, the buyer would immediately step into theshoes of the judgment-debtor municipality. Such buyer presumablybuys only the right of the municipality. He does not buy the fisheryitself nor the municipal waters because that belongs to the State. Allthat the buyer might do would be to let out or rent to privateindividuals the fishery rights over the lots into which the municipalwaters had been parceled out or divided, and that is, after public


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power to exercise the right of eminent domain and its SangguniangBayan the capacity to promulgate said resolution, pursuant to theearlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows thatResolution No. 43-89 is valid and binding and could be used as lawfulauthority to petition for the condemnation of petitioners' property.

Accusation of political oppression: it is alleged that Percival Modayincurred the ire of then Mayor Bustillo when he refused to support thelatter's candidacy for mayor in previous elections. Petitioners claimthat then incumbent Mayor C. Bustillo used the expropriation toretaliate by expropriating their land even if there were other propertiesbelonging 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 sketchplan.

The limitations on the power of eminent domain are that theuse must be public, compensation must be made and due process of

law must be observed. The Supreme Court, taking cognizance of suchissues as the adequacy of compensation, necessity of the taking andthe public use character or the purpose of the taking, 23 has ruled thatthe necessity of exercising eminent domain must be genuine and of apublic character. Government may not capriciously choose whatprivate property should be taken. After a careful study of the records ofthe case, however, we find no evidentiary support for petitioners'allegations. The uncertified photocopy of the sketch plan does notconclusively prove that the municipality does own vacant land adjacentto petitioners' property suited to the purpose of the expropriation. Inthe questioned decision, respondent appellate court similarly held that

the pleadings and documents on record have not pointed out any ofrespondent municipality's "other available properties available forthe same purpose." The accusations of political reprisal are likewiseunsupported by competent evidence. Consequently, the Court holdsthat petitioners' demand that the former municipal mayor bepersonally liable for damages is without basis.

Camarines Sur v. CA

Facts: The Sangguniang Panlalawigan of the Province of Camsur passedResolution No. 129, Series of 1988, authorizing the Provincial Governor to

purchase or expropriate property contiguous to the provincial capitol site, inorder to establish a pilot farm for non-food and non-traditional agriculturalcrops and a housing project for provincial government employees. Camsurfiled expropriation cases against the San Joaquins as well as a motion for theissuance of writ of possession. The SJs failed to appear at the hearing of themotion. They moved to dismiss the complaints on the ground of inadequacyof the price offered for their property.


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