Public Corporation (ulep Notes)

I. HISTORY AND EVOLUTION OF LOCAL GOVERNMENT UNITS A. In General B. Pre-Spanish Times b. 1 The Sumakwel Code In 1212, after fleeing from the oppressive regime of Datu Makatunaw in Borneo, 10 datus set up their own tribal colonies in the Visayan Islands. One of them, Datu Sumakwel, established on the Island of Panay the Confederation of Madiaas and its constitution, the Code of Maragtas or the Code of Sumakwel. The Code of Sumakwel was considered among the first Filipino laws enacted before the Pre-Hispanic times. It consisted of 10 articles, mainly focusing on punishment for laziness. An American historian, Paul Morrow debunks the Sumakwel Code as nothing more than the product of Guillermo Cuino’s imagination. Cuino was the first person to write about the Code Sumakwel in an essay in 1858 wherein he claimed to have translated the Code from an ancient Filipino document. However, Cuino presented no other proof other than his dubious essay. Nevertheless, Paul Morrow laments, much of the Filipino education system to this day still preaches the Sumakwel Code as gospel historical truth. b. 2 The Code of Kalantiaw Datu Kalantiaw was among the ancient Visayans who built a kingdom with its own tribal code known as the Code of Kalantiaw, supposedly around 1150. It contains 18 articles, which consists mainly of punishment for criminal acts ranging from the traditional ones such as homicide, theft and nonpayment of debts to the bizarre and superstitious such as disrespect for revered trees or killing black cats during the new moon. The Code of Kalantiaw also has feudalistic overtones such as obligating those with the beautiful daughters to give them up to the sons of chiefs as well as providing special punishment for those who commit particular crimes against the tribal headmen as stated in the Code. Punishments for the crimes stated in the Code are cruel by today’s standards; for example, those who sing while traveling by night are beaten for two days while those who commit homicide and theft are condemned to death by being drowned in the river or in boiling water. In 1968, William Henry Scott, another American historian revealed the Code of Kalantiaw as an outright hoax perpetuated by forger Jose Marco. Marco gave the Philippine Library and Museum as ancient document claiming to be the Code of Kalantiaw in 1912. The supposed Code and Marco’s claims on how he obtained the ancient document had too many discrepancies and anomalous reference to historical facts that could not have existed during the time of the Code’s supposed existence. Only recently have a few historians such as Sonia M. Zaide regarded the Code as a fraud but, as Paul Morrow says, the lie still lives on. C. The Spanish Era c. 1 Harty v. Mun of Victoria 13 Phil. 152 Facts: Monsignor Harty, an archbishop of the Roman Catholic Church based in Manila, claims that his parish owns the plaza located in the municipality of Victoria, Tarlac, claiming to be in peaceful possession of it for more than 60 years up to 1901. The defendant municipality replied that Victoria was constituted into a town in 1855 and that the parish of Tarlac was established many years afterwards; therefore the latter cannot claim title to the plaza. Evidence seemed to show that the original owner, Casimiro Tanedo, of the land wherein the plaza is located, donated said land to the church in general and not to the town curate, since a permanent curate was not appointed in Victoria until 1867. However, from the moment the town was created, both the town curate and the townspeople have enjoyed free access of the plaza. Still, Monsignor Harty claims the parish of Tarlac owns the plaza on the grounds of 1) prescription and 2) that the act of the curates and the gobernadorcillos of planting fruit trees and plants on the plaza constituted private ownership. Held: Monsignor Harty’s contentions are incorrect. Reasons: 1. It was a Philippine custom then that upon the establishment of a new town, a large tract of land is always reserved in its center for the creation of a plaza. Before Victoria became a town it was a mere barrio. It must be assumed that the principal residents of Victoria wanted to have a public plaza should their barrio be converted into a town. Therefore, even before Victoria became a town, the land now in dispute was always intended to be a public plaza. 2. There was no sufficient proof that the late Casimiro Tanedo intended to donate the portion of the land intended to be a public plaza to the church in general 3. It has been fully proven that the plaza has always been used by the people of Victoria from the moment the town was created 4. Plazas destined for public use are not subject to prescription (Art. 1936, the Old Civil Code) 5. Planting of fruit trees by the curates, etc. do not constitute an act of private ownership but either evidence of public use or as embellishments for the benefit of the townspeople.

c. 2 Rubi v. Provincial board of Mindoro 39 Phil. 660 Facts: Rubi and his fellow Manguianes filed an application for habeas corpus on the ground that they were being deprived of their liberty by the provincial officials of Mindoro. Rubi claimed they were being held against their will at a reservation in Tigbao, Mindoro while one Dabalos was imprisoned for having run away from the reservation. The provincial officials of Mindoro however, countered that they were authorized under section 2145 of the Administrative Code of 1917 to implement measures for the advancement of the non-Christian people of Mindoro by obliging them to live in one place in order to educate them. Held: The Supreme Court ruled in favor of the provincial officials of Mindoro on the grounds that: 1. They were merely exercising the police power of the state for a lawful purpose and through lawful means, which can validly limit the exercise of Civil liberty. The Supreme Court cited past legislation implemented in the Philippines which justified the placing in a reservation of the Manguianes such as: a. Book 6, Title 3 – A compilation of laws implemented during the Spanish forcing the Indios to leave poblaciones (communities) or reducciones in order to instruct them to the Catholic faith and enable them to live in a civilized manner. b. Decree of the Governor-General of January 14, 1881- Decree ordering the Indios to be governed by the common law and not allowing them, unless with absolute necessity, to change their residence. c. Letter of Instructions by President McKinley – Uncivilized tribes are allowed to keep their tribal governments, subject to regulation by the Americans. d. The Philippine Bill of 1902 – The Philippine Commission (which composed ½ of the Philippine Legislature, the other being the Philippine Assembly) was given exclusive jurisdiction over the territory inhabited by the Moros and other non-Christian tribes of the Philippines e. The Jones Law 2. Although the Maguianes were labeled as “non-Christian,” the intent of the law was not to refer to any particular religions or geographical discrimination but is predicated on the lack of civilization by them, which the measure implemented by the provincial officials of Mindoro intended to correct. 3. The measure implemented was a valid delegation of legislative power by the Philippine legislature as it was done in accordance with Administrative Code of 1917 c.3 The Maura Law Queen Regent Maria Cristina of Spain, upon the recommendation of Colonial Minister Antonio Maura, promulgated the Royal Decree of May 19, 1893 which provided for an autonomous local government in the Philippines. Under the Maura Law there was constituted a Municipal Tribunal of five, the captain and 4 lieutenants. It was given charge of the active work of governing the municipality, such as administration of public works, etc. and the details of taxation. In addition, each of its members was required to have special qualifications. These positions were honorary. The term of office was 4 years. The officers, together with 2 substitutes, were elected by 12 delegates of the principalia. The principalia was composed of all persons who has held certain offices (such as cabeza de barangay or former captains) or who has paid a land tax of P50. The Governor General and the provincial governor retained disciplinary jurisdiction over the council and its individual members, the Provincial Board also had supervision of the municipal council (Malcolm, Gov’t. of the Philippines Islands, pp. 69-71, Document 362, The Maura Law of 1893) c. 4 The Treaty of Paris The Treaty of Paris officially ended the Spanish-American War of 1898. It was ratified by Spain and the United States on December 10, 1898. It contained 17 articles, important provisions including: Art. 1 – Relinquishment by Spain of its claim of sovereignty and title to Cuba. Art. 2 – Cession to the U.S. of the islands of Puerto Rico and Marianas. Art. 3 – Cession to the U.S. of the Philippines for the sum of $20 million. Art. 9 – Allowing Spanish subjects which are natives of the Philippines to remain in the Philippines if they so desire. The civil rights and political status of the native inhabitants of the territories hereby ceded to the U.S. shall be determined by Congress. Art. 11 – Relinquishment of all civil and criminal jurisdictions over all territories ceded. Art. 12 – Provides for rules on deciding judicial proceedings pending at the time of the ratification of the treaty.

D. The American Period d.1 The Jones Law The Jones Law of 1893 was virtually an American-made constitution providing for a complete form of semiautonomous government in the Philippines. It defined government functions into an executive to be appointed by the U.S. President with the consent of the Senate, who was called the American Governor-General in the Philippines. The legislative power was vested in an elective bicameral/legislature – a Senate and a House of Representatives. The judicial power was exercised by the Supreme-Court and other lower courts, with Filipino and American justices. The Jones Law also extended the Bill of Rights, defined Filipino citizenship and provided for other safeguards and restrictions. The bulk of the Jones Law comprised mainly of defining the executive, legislative and judicial powers of the government.

E. The Japanese Occupation e.1 Topacio Nueno Angeles, 76 Phil. 12 Facts: Jose Topacio Nueno and 3 other petitioners ran for and eventually obtained seats in the Municipal Board of Manila in 1940. World War II and the subsequent Japanese occupation however took place. After the war, 6 new board members were appointed by the President. Nueno, et. al. claimed that the appointment was null and void because 1) their term of office had not expired due to the world war and 2) even if 1) were not true, they still had the right to hold over their officers until their new successors were elected and qualified. Held: Nueno and his goons were incorrect. Reasons: 1) The word “term” is different from “tenure.” There is no law which allows the extension of terms of office by reason of war. 2) As for tenure, the same may be shortened or extended for various reasons, such as the death of the incumbent or as otherwise provided by law. The principle of the right to hold over may validly extend the tenure of office. However, Nueno, et. al. cannot invoke this right because under 16 (a) of the Commonwealth Act, the President has the discretion of appointing temporary board members until duly elected board members can be qualified. F. The Post War Years f. 1 R.A. 2264, as amended – The Local Autonomy Act Entitled, “An Act Amending the Laws governing Local Governments by Increasing their Autonomy and Reorganizing the Provincial Governments,” the Act provides for, among other things: Procedure in establishing the provincial, city, municipal and regularly organized municipal district budgets for each fiscal year, taxation sources; appropriation of funds for the general welfare of the public; grant of the power of eminent domain; composition of the provincial board; qualifications of members of the provincial board, governors, vice-governors, mayors and vice-mayor; appointment power of provincial governor, city mayor and municipal mayor; and assignment of other powers to the provincial board, municipal board or city councils. Any fair and reasonable doubt as to the interpretation of the Local Autonomy Act shall be resolved in favor of the local government and shall be presumed to exist. f. 2 R.A. 2370 – The Barrio Charter Act “Barrios” are units of municipalities or municipal districts in which they are located. They are quasi-municipal corporations endowed with such powers as herein provided in said Act for the performance of particular government functions to be exercised by and through their respective barrio governments in conformity with law. Barrios may be created or its name changed by a petition of the majority of voters in the areas affected. They may sue and be sued and may be deal with any real or personal property in the manner provided by law. No barrio may be created if its population is less than 500 people or out of chartered cities, or poblaciones of municipalities.

The Act also provides for the barrio council headed by the barrio lieutenant. The barrio council shall meet with the qualified voters of the barrio at least once a year in a barrio assembly to discuss, among others, election of new officers, raising of funds and adopt measures for the welfare of the barrio. The Act also provides for the qualifications of the barrio council members and their powers and responsibilities, such as the taxation power and its sources. f. 3 R.A. 3590 – Revised Barrio Charter Act This Act is essentially the same as its predecessor, with the following pertinent amendments;

1) A plebiscite may be called to decide on the recall of any member of the barrio council member or approve any budgetary, supplement appropriations or special tax ordinances. 2) Renaming the barrio lieutenant as barrio captain

3) Right of succession in case of vacancy in the barrio captain position (there is no vice-barrio captain in both Acts). 4) The municipal mayor shall have power of supervision over barrio officials\ 5) Procedure in barrio council, such as holding of meetings every month 6) Effectively of barrio ordinances (unless otherwise, after 60 days after its passage or 15 days after its confirmation in a plebiscite) f. 4 R.A. 5185 – The Decentralization Act of 1967 This Act further strengthens the autonomous powers of local governments by providing for the following pertinent provisions: 1) Provincial and city governments are empowered to undertake field agricultural work and rural health work whenever deemed to be necessary to assist in national programs or services. 2) Appointment of heads, assistant heads of local officers and their subordinates 3) Suspension and removal of elective local officials (grounds: disloyalty to RP, dishonesty, oppression and misconduct in the office) 4) Restriction in practice of law by members of provincial, city or municipal board of vice-governor and vice-mayor.

5) Succession to office

6) Filling of special vacancies in local legislative bodies. 7) Filling of elective officers in newly created and newly classified provinces, cities, municipalities or municipal districts 8) List of actions of provincial, city and municipal officials and provincial boards declared immediately effective. 9) Certain duties and powers of local chief executives not to be subject to direction and review of any national official 10) Release and apportionment of certain government funds positions: provincial engineer, city public works official, provincial attorney and city legal officer

11) Creation of following

12) Creation of Joint Local Government Reform Commission (for continuing studies on local autonomy of Local Government and prepare local government code)

G. The Martial Law Epoch g. 1 P.D. 145 This decree amended Section 2 of R.A. 2264 or Local Autonomy Act because the said section was ineffective in carrying out the Secretary of Finance’s power to suspend the effectively of any local tax ordinance which in his opinion is

unjust, excessive or oppressive or contrary to national policy. Said decree improves this situation by giving the local legislative body either 30 days to modify the tax ordinance or appeal the suspension order of the Secretary of Finance in a court of competent jurisdiction; otherwise, the tax ordinance or its part of parts in question is considered revoked g. 2 B.P. 337 – The Local Government Code of 1983 This Code provides for the pertinent following provision: 1) General powers and attributes of local government units. 2) Powers and restrictions of Local Government Units to: Create sources of revenue; eminent domain; closure of roads; suability; enter into contracts; convey property; limited non-liability for damages. 3) National supervision over local governments 4) Relationship between Province-city, province-municipality; city-barangay, municipality-barangay; city-barangay; public officials-LGUs 5) Fiscal matters; Expenditure of government funds; preparation of budget 6) Requirement and prohibitions of local gov’t. officials; vacancy and succession 7) Qualification and election of local gov’t. officials; vacancy and succession 8) Recall, suspension and removal of elective officials 9) Creation of local school boards 10) Personnel Administration 11) Settlement of municipal and barangay boundary disputes 12) Details on barangay and barangay officials; municipal and municipal officials; city and city officials; province and province officials

H. The Present h. 1 R.A. 7160 – The Local Government Code of 1991. From the LGC of 1983, the following pertinent provisions were added: 1) Operative principles of decentralization 2) Authority by Congress or any political subdivision to create, divide, merge, abolish or alter boundaries 3) Emphasis on general welfare and imposition of basic services and facilities on political subdivisions 4) Reclassification of lands 5) Authority of LGUs to secure and negotiate grants 6) Creation of Local Prequalification, Bids and Awards Committee 7) Other procedural and technical changes

II. PRIMARY LAW AND GENERAL PROVISIONS A. Read Article X, Section 9 and Article XVIII, 1987 Constitution

a.1 Article X, Section 10 – No province, city, municipality or barangay may be created, divided, merged abolished or its boundaries substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. NOTE: Read the whole of Article X of the 1987 Constitution as well, as it refers to local, governments in general. It contains 21 sectors. Also Prof. Ulep must have meant Season 10 and not 5 in his outline. a. 2 Article XVIII, Sec. 8 - Unless otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila Area. Article XVIII, Sec. 9 – A sub-province shall continue to exist and operate until it is converted into a regular province or its component municipalities are reverted to the mother province. NOTE: There’s no point in reading all other sections of Article XVIII. See for yourself. B. Read R.A. 7924(Metropolitan Manila Development Authority) This Act states the policy of the State to treat Metro Manila as a special development and administrative region and certain basic services affecting or involving Metro Manila as metro wide services more efficiently and effectively planned, supervised and coordinated by a development authority as created herein, without prejudice to the autonomy of the affected LGU. Among its pertinent provisions are: 1) Scope of MMDA (metro-wide) services: Development planning; transport and traffic management; solid waste disposal and management; Flood control; Urban renewal; zoning and land use planning; health sanitation; Urban protection and pollution control; pu8blic safety; 2) Creation of Metro Manila Council (MMC) consisting of all mayors in Metro Manila 3) Powers and Functions of MMDA, mainly to formulate, coordinate, and regulate implementation of above metro-wide services 4) Functions of MMC, mainly to approve projects of MMDA 5) Function of MMDA chairman: Execute policies of MMC and manage operations of MMDA; appointment power; prepare budget of MMDA; disciplinary power on subordinates; ex officio board member (or his representative) of departments related to activities of MMDA such as DOTC, DOH, etc. 6) Institutional linkages of MMDA: NEDA, NGOs , accredited people’s organizations b. 1 Lopez, Jr. v. COMELEC, 136 SCRA 633 Facts: Mel Lopez, et. Al. questioned the validity of P, D. 824 which provides for the creation of Metro Manila Commission which shall hold sway over 4 cities (Manila, Quezon, Caloocan, and Pasay) and 13 municipalities. P.D. He says it runs counter to Art. 11, Sec. 3 of the 1973 Constitution which states that: “No province, city, municipality or barrio may be created, divided, abolished, merged or its boundaries substantially altered, except in accordance with the criteria established in the Local Government Code and subject to the approval of the majority of votes cast in a plebiscite in the unit or units affected.” No plebiscite was conducted to vote for the creation of Metro Manila. He also claims the P.D. is a denial of the equal protection clause as other cities and municipalities were not similarly organized into such. Also the President cannot exercise direct supervision and control over the Metropolitan Manila Commission as it runs counter to the autonomy of local governments. Held: Mel Lopez is incorrect. Reasons:

1. Although a plebiscite was not conducted, a referendum was held Feb. 27, 1975 wherein the residents of the Greater Manila area authorized the President to reorganize the cities and municipalities under the Metro Manila Commission. The requirements for a plebiscite were therefore deemed satisfied. Besides, at the time of the referendum, there was no Local Government Code in existence then which provided the need for a plebiscite. By virtue of martial law and the absence of an interim Batasang Pambansa at that time, the President had authority to enact said P.D. 2. There is reasonable classification in organizing said 4 cities and 13 municipalities into a metropolitan area 3. Article 8, Sec. 2 of the 1973 Constitution expressly recognizes the juridical entity known as Metropolitan Manila 4. There is presumption of constitutionality in the President’s power of direct supervision and control over the Metropolitan Manila Commission. The presidential power of control can and should be constructed to mean that said control is limited to those that may be considered national in character. b. 2 MMDA v. Bel-Air Assn, Inc., 328 SCRA 836 Facts: Pursuant to R.A. 7924 which created the MMDA, MMDA issued a notice to the Bel-Air Village Assoc. (BAVA) that the former will open Neptune Street owned by the latter in Bel-Air Village, as well as tear down a perimeter wall owned by said village. Both actions, the MMDA said, is necessary for the decongestion of traffic along the said areas.

BAVA petitioned the trail court and later on the Court of Appeals to enjoin the implementation of MMDA’s proposed actions. BAVA’s petition was granted. The MMDA thus now seeks recourse with the Supreme Court, claiming among others that its proposed actions were in the exercise of the police power. Held: MMDA is wrong. The reason is that R.A. 7924 did not expressly or impliedly delegate any police power to the MMDA, most notably the power to enact ordinances necessary for the implementation of its plans, programs and projects aimed at the delivery of metro-wide services in Metro Manila, without diminution of the autonomy of the LGUs concerning purely local matters (See. 2, R.A. 7924) MMDA’s proposed actions were not under the authority of any ordinance (What’s funny is that the MMC, the governing board of the MMDA, is composed of the different mayors of Metro Manila, and these guys, as mayors per se, have the power or at least, the political will to enact ordinances) C. Read R.A. 6732 (Organic Act for ARMM [Autonomous Region in Muslim Mindanao]) Mindanao, encompassing 13 provinces and 9 cities, through a plebiscite for that purpose. This government shall operate within the framework of the Regional Government. The executive power is conferred on the Regional Governor. The legislative power is conferred in the Regional Assembly. The Supreme Court, the Court of Appeals and the lower courts shall continue to exercise their power as mandated in the Constitution; however, there shall be a Shari’ah Appellate Court which shall also be learned in Islamic law and jurisprudence. The Shari’ah Court’s decisions shall be final and executory subject to the original and appellate jurisdiction of the Supreme Court. Tribal Appellate Courts for cases dealing with tribal codes shall also be established. The Regional Government shall have fiscal autonomy or the power to create its own sources of revenue, subject to the limitations of the Constitution and this Organic Act. The Organic Act also provides for: Protection of ancestral lands, ancestral domain and indigenous cultural communities; urban and rural planning and development; power to enact laws pertaining to the national economy and patrimony responsive to the needs of the Regional Government; public order and security; education, science and technology and sports development; social justice and services; and power to amend or revise the Organic Act, either by Congress or by the Regional Assembly, the latter being subject to approval by Congress. c. 1 Abbas v. COMELEC, 179 SCRA 287 Facts: Datu Firdausi Abbas, et.al. challenged the constitutionality of R.A. 6734 on the following grounds: 1) R. A. 6734 conflicts with the Tripoli Agreement (what conflicts the case doesn’t say) 2) R. A. 6734 provides for the unconditional creation of the ARMM and not through the mode of a plebiscite as provided in the Constitution 3) The Constitution provides that ARMM shall be approved by a majority of votes cast in a plebiscite by all voters residing in the provinces and cities affected, but R.A. 6734 says “by a majority or votes cast by the constituent units in a plebiscite and only those provinces and cities where a majority of votes cast in favor of the Organic Act shall be included in the Autonomous Region. R.A. 6734 thus conflicts the Constitution 4) R. A. 6734 includes provinces and cities which do not have the same cultural and historical heritage and other relevant characteristics needed for admission to the ARMM 5) R. A. 6734 violates constitutional guarantee on freedom of exercise of religion as some its provisions run counter to the Koran 6) The creation of an Oversight Committee to supervise the transfer of power to the ARMM is contrary to the constitutional mandate that the creation of the autonomous region hinges solely on the result of the plebiscite 7) R. A. 6734 says “…that only the provinces and cities voting favorably in such plebiscite shall be included in the ARMM. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided however, that the President may, by administrative determination, merge the existing regions. This provision, Abbas claims, is contrary to the Constitutional mandate that, “No province city, municipality or barangay may be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established with the local government code and subject to approval by a majority of the votes cast in a plebiscite in the units directly affected.” (Art. 10, Sec. 10, 1987 Constitution) Held: Abbas is wrong. Reasons: 1) R. A. 6734 as an enactment of Congress, is superior to the Tripoli Agreement, being a subsequent law to the Tripoli Agreement (though in my opinion it wouldn’t matter if R. A. 6734 was prior to the Tripoli Agreement) 2) The transitory provisions of R. A. 6734 does provide for a plebiscite (1 guess nobody reads the transitory provisions) 3) The framers of the Constitution must have intended that the majority of votes must come from each of the constituent units and not all the votes of the provinces and cities (I couldn’t understand how the justices arrived at this conclusion) 4) It is not for the Court to decide on the wisdom of the law concerning the inclusion of provinces and cities which Abbas claims should not be included in a plebiscite 5) There is no actual controversy yet as to any violation of freedom of religion, only a potential one

6) The creation of an Oversight Committee is merely procedural and in fact will aid in the timely creation of the ARMM 7) The power of the President to merge administrative regions is inherent in his power of general supervision over local governments. Besides, administrative regions are not territorial or political regions. Examples of administrative regions are Regions I to XII and the NCR c. 2 Chiongbian v. Orbos, 245 SCRA 253 Facts: In 1990, President Aquino issued E. O. No. 439 wherein she picked certain provinces and cities, some of which did not participate in the inclusion to the ARMM, to the reorganized to new regions (e.g. Misamis Occidental, which did not participate in the ARMM plebiscite, was transferred from Region X to Region XI). Aquino issued said E. O. pursuant ant R. A. 6734, which says: “…That only the provinces and cities voting favorably in suitable plebiscites shall be included in the ARMM. The provinces and cities which plebiscite no vote for inclusion in the Autonomous Region shall remain in the existing administrative regions. Provided however, that the President may, by administrative determination, merge existing regions. James Chiongbian, a Sultan Kudarat congressman, filed a certiorari prohibition to protest the E. O., claiming that President Aquino had no power to reorganize administrative regions because said provision in R. A. 6734 1) also states that provinces, cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative regions 2) the Constitution does not expressly provide the President the power to merge administrative regions; in fact Art. 10, Sec. 10 of the Constitution (see II of your outline) prohibits this and 3) even granting that the President is allowed to merge administrative regions, there is law setting standard on how it is to be done. Held: Chiongbian is wrong. Reasons: 1) The sentence “…shall remain in the existing administrative regions, is further qualify by the phrase, “Provided however that the President may, by administration determination merge the existing regions.” 2) Past legislation, particularly R. A. 5345 issued in 1968, authorized the President the help of a Commission on Reorganization, to reorganize the different example departments including administrative regions. This shows that traditional power to reorganize administrative regions has always been lodged in the President 3) The standard is found in R. A. 5345 which states “to promote simplicity, economic efficiency in the government to enable it to pursue programs consistent with no goals for accelerated social and economic development and to improve service transaction of the public business.” D. Read R. A. 6766 (Organic Act for Cordillera Autonomous Region of 1989) This Act provides for creation of the Cordillera Autonomous Region (CAR) shall consist of the cities and provinces that shall vote favorable in a plebiscite pursuant ant 10, Sec. 18 of the Constitution. Those cities and provinces are Benguet, Ifugao, Muslim Province, Abra, Kalinga-Apayao and Baguio The Act consists of the following pertinent articles: 1) Guiding principles and policies similar to that of Art. 2 of the 1987 Constitution 2) Vesting of legislative power in the Cordillera Assembly; executive power Cordillera governor with a deputy governor as well; creation of indigenous special courts whose decisions are final and executory but subject to the original and appellate jurisdiction of the Supreme Court 3) Creation of a Regional Commission on Appointments 4) Measures to protect and develop the ancestral lands and ancestral domains of indigenous cultural communities as well as the national economy and patrimony The rest of its provisions are roughly similar to the Organic Act for ARMM (see11-c) CAR never came to existence. Only Ifugao province voted in favor of CAR, so the Supreme Court in Ordillo v. COMELEC ruled that Ifugao could no constitute itself into the CAR> d. 1 Ordillo v. COMELEC, 192 SCRA 100 Facts: CAR Regional Assembly member Alexander Ordillo raised the question in his petition on whether the province of Ifugao, being the only province which voted favorably for the creation of the CAR, can alone legally and validly constitute such region. Held: Ordillo’s petition is meritorious. Reasons: 1) Statutory construction of Art. X, Sec. 15 of the 1987 Constitution shows that the word “region” is to be made up of more than one constituent unit 2) Section 2 or R. A. 6766 says “The Regional Government shall exercise powers and functions necessary for the proper governance and development of all provinces, cities, barangays and municipalities within the CAR.” Therefore, Congress could not have intended that only a single province would constitute CAR 3) It would be illogical for Ifugao to have 2 sets of officials, one for Ifugao and one for the CAR, when Ifugao is the only member of the CAR d. 2 Cordillera Board Coalitions v. COMELEC, 181 SCRA 495

Facts: Pending the convening of Congress after President Aquino was swept into power in 1986, she issued E. O. 220 which petitioner Cordillera Board Coalitions claimed created the CAR, thus preempting the constitutional mandate that Congress shall be the one to pass an Organic Act providing for the creation of CAR. Petitioner also questions the constitutionality of the CAR as it runs contrary to Article 10, Sec. 10 of the 1987 Constitution (See 11-1). Finally petitioner claims the CAR will interfere with the local autonomy of individual cities and provinces in general. Held: Cordillera Board Coalition is wrong. Reasons: 1. The presumption of constitutionality of laws shall be applied in the case. E. O. 220 was actually envisioned to consolidate and coordinate the delivery of services of line departments and agencies of the National Government in the areas covered by the CAR as a step preparatory to the grant of autonomy to the Cordillera. It was not intended to preempt Congress 2. CAR is not a public corporation or a territorial or political subdivision. It is in the same genre as an administrative region for the purpose of coordinating the planning and implementation of program and services in the covered areas. Thus no new territorial or political subdivision was created or merged with another. 3. Local autonomy is administrative autonomy. In the case of CAR and Muslim Mindanao, they are granted both administrative and political autonomy. Petitioner has failed to show specifically how the creation of administrative regions will interfere with local autonomy. d. 3 E.O. 459 dated May 17, 1991 This E. O. is entitled “Devolving to the Autonomous Region” Government of the Autonomous region in Muslim Mindanao Certain Powers of the DECS, the Control and Supervision Over Its Offices in the Region and for other Offices. The E. O. aims to implement Sec. 1, Article XV of R. A. 6734 which states that, “The Autonomous Region shall establish, maintain and support a complete and integrated system of quality education and adopt an educational framework that is meaningful, relevant and responsive to the needs, aspirations and ideals of the people in the region.” To this end, the Regional Government is made responsible for the regional educational framework of the ARMM, such as formulating and implementing programs to improve education in general in the region. E. Read R. A. 7901, dated Feb. 23, 1995 (Creating the CARAGA Administrative Region) This Act is entitled “An Act Creating Region 13 to be known as the CARAGA Administrative Region, and For Other Purposes.” It consists of the provinces of Agusan del Norte, Agusan del Sur, Surigao del Norte, Surigao del Sur and the cities of Butuan and Surigao. The Act also transfers Sultan Kudarat to Region 11. F. Local Government Unit Defined Definition: A political subdivision of the state constituted by law and possessed a substantial control over its own affairs. Supporting Definition: The LGU is autonomous in the sense that it is given more power authority, responsibilities and resources remaining to be an intra sovereign subdivision of a sovereign nation, but no intended to be an imperium in imperia state within a state f. 1 Alvarez v. Guingona, Jr. 252 SCRA 695 Facts: Senator Heherson Alvarez, et. al. filed a petition for prohibition with prayer TRO and preliminary prohibitory injunction assailing R. A. 7720, Said R. A. provides for a conversion of the municipality of Santiago, Isabela into a City. Alvarez said the municipality of Santiago failed to meet the requirement of Sec. 450 of the LGC that, for a municipality to become a component city, it must have an annual income of P20M. The reason is that in the computation of the average annual income, the Internal Revenue Allotments (IRA) should have been deducted from the total income. Instead, the IRAs were added to the total income. Held: Alvarez is wrong. IRAs are the local government unit’s rightful share to the national taxes. Section 450(c) of the LGC provides that “the average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and any recurring income.” IRAs are a regular, recurring source of income; they are not special funding transfers since Sec. 17(g) of the LGC gives a technical description for the IRA for purposes of the LGC G. Local Autonomy explained 1. Autonomy – either decentralization of administration or decentralization of power (Limbona v. Mangelin) 2. Decentralization of Administration – Occurs when the central government delegate administrative powers to political subdivision in order to broaden the basic government power and in the process to make local government more responsive accountable” and “Ensure their fullest development as self-reliant communities make them more effective partners in the pursuit of national development and progress.” At the same time, it relieves the central government of the bureau managing local affairs and enables it to concentrate or national concerns (Supra) 3. Decentralization of power – An abdication of political power in favor of local government units declared to be autonomous. In that case the local government is free to chart its own destiny and shape its future with minimum intervention from central government authorities. According to a constitution author (Father Bernas) decentralization of

power amounts to “self-immolation” since in that event, the autonomous government becomes accountable not to the central authorities but to its own constituency (Supra) 4. Local Autonomy, Philippine Concept – The national government does not completely relinquish all its power over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social developments at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as whole the programs and policies effected locally must be integrated and coordinate towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. In Magtajas v. Pryce Properties Corp. Inc., municipal governments are still agents of the national government (Pimentel v. Aguirre) 5. Fiscal autonomy – Local government have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to the allocate their resources in accordance with their own priorities. g. 1 Malonzo, et, al v. Zamora, et, al 311 SCRA 224 NOTE: Dates and peso figures are crucial to this case. Facts: In 1994, the Sangguniang Panlungsod of Caloocan City issued Ordinance No. 0168, authorizing Caloocan City mayor Macario Asistio Jr. to initiate expropriation proceedings for lot 26 of the Maysilo Estate owned by the CLT Realty Development Corp. An amount of P39, 352,047.75 was appropriated for this purpose. CLT however countered with an interpleaded and prayer for TRO on August 6, 1997, on the ground that Maysilo estate actually straddled both Caloocan City and the municipality of Malabon; therefore the Caloocan City and Malabon municipal governments should be restrained and CLT must interplead and litigate among themselves their conflicting rights to claim such taxes. In the meantime, the voluntary sale of the CLT property failed to push through so the city government field a suit for eminent domain against CLT on March 23, 1998. Some months afterwards, Rey Malonzo became mayor of Caloocan City. The expropriation of the CLT property was then declared discontinued, thus the appropriation of P50M for the budgetary item “Expropriation of properties” could now be reverted for use in supplement budget. Ordinance No. 0254 was then passed appropriating an amount of P39, 343,028.00 for the immediate repair of offices and hiring of additional personnel. Because of this, the office of the President (OP), acting on an administrative complaint filed against Malonzo et. al., were adjudged guilty of misconduct and meted the penalty of suspension. Malonzo’s refuted the decision, claiming that 1) the interpleader filed by CLT was an unavoidable discontinuance of the expropriation project; thus the amount of P39, 352,047.00 could be reverted into savings and 2) said amount was could be denominated as “Expropriation of Properties” and classified under “Current Operating Expenditures. The OP countered that the amount of P39, 352,047.75 was a capital outlay that must be spent for the project it is intended for, thus under Sec. 322 of the LGC it could not be reverted into savings for another use 2) the filling of the interpleader could not be considered as an unavoidable discontinuance since months after the interpleader, the Caloocan City government even filed an expropriation case for the CLT property 3) The Sangguniang Panlungsod, at the time of passing Ordinance No. 0254 did not adopt new or updated rules of procedure for the current year; this was shown by the hurried passage in one day of the said ordinance and 4) the appropriation of P50M for “Expropriation of Properties” actually did not exist this was merely a subterfuge by Malonzo to dip his hands into the P39, 352. 017.75 intended for the CLT property expropriation project. Held: Malonzo is correct. Reasons: 1) During the oral arguments and pleadings, it was clear that the amount of P39, 352, 017.75 and whether it was a capital outlay or continuing appropriation was not the issue; rather the issue was the budgetary item “Expropriation of Properties” wherein the amount of P50M was appropriated for said use but was later discontinued, and later on, an amount of P39, 313, 028.00 from the P50M was appropriated for office repair and other miscellaneous expenses. Malonzo’s explanation that the P50M was not intended for the purchase of CLT property but for expenses incidental to expropriation, such as relocation of squatters, appraisal fee, etc. was believed by the Court. (So what happened to the P39, 352, 047.75, if Malonzo’s explanation is to be believed? Justice Kapunan and 2 others dissented, believing the OP’s argument that there was actually no P50M existing to fund the “Expropriation of Properties item. In fact, Malonzo used the nonexistent P50M appropriation as a cover-up to illegally spend the P32, 352, 047.75 for repair of offices and hiring of personnel. Can you say kickback?) 2) The failure to adopt new or updated rules of procedure of the Sangguniang Panlungsod as mandated by Sec. 50 and 52 of the LGC is not intended to paralyze said Sanggunian from doing its job. An interpretation of Sec. 50 and 52 of the LGC that will avoid inconvenience and absurdity must be adopted, thus the OP’s contention is mistaken. g. 2 Sec. 1, Chapter 1, Title XII, E. O. 292 “Declaration of policy. The State shall ensure the autonomy of local governments. For this purpose, it shall provide for a more responsive and accountable local government structure instituted through a system of decentralization. The allocation of powers and resources to loose government units shall be promoted and inter-local government grouping, consolidation a coordination of resources shall be encouraged. The state shall guarantee the local government units their

just share in national taxes and their equitable shares in proceeds from the use natural resources, and afford them wider latitude for resource generation.” g. 3 Pimentel v. Aguirre, G. R. No. 132988, July 19, 2000 Facts: In 1997, President Ramos issued A. O. No. 372 which caught the ire of Senator Aquilino Pimentel because of certain 2 provisions which state 1) All government departments and agencies, including state universities and colleges, government-owned and controlled corporation and local government units will identify and implement measures in FY 1998 that will reduce total expenditures for the year by at least 25% of authorized regular appropriation for non-personal service items, along the following suggested areas… and 2) Pending of assessment and evaluation of the Development Budget Coordinating Committee of the emergency fiscal situation, the amount equivalent to 10% of the Internal Revenue Allotment (IRA) to LGUs shall be withheld. Pimentel claims that both provisions do not comply with Section 284 of LGC, which provides for the 4 requisites before the President may interfere in local fiscal matters 1) an unmanaged public sector deficit of the national government 2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of various local leagues 3) the corresponding recommendation of the secretaries of the DOF, DILG and DBM and 4) any adjustment in the allotment shall in no case be less than 30% of the collection of national internal revenue taxes of the third fiscal year preceding the current one. Specially, Pimentel claims that there was no showing that there was actually an unmanaged public sector deficit and that there was no consultations conducted with the different leagues of local governments. Held: Pimentel is partly correct. Reasons: 1. The Supreme Court is prepared to believe the Solicitor General’s assurance that the first provision above stated is merely an advisory or guiding policy for local executives to follow, thus local autonomy is not interfered upon. 2. The second provision is violative of local fiscal autonomy because its basic feature, the automatic release of the shares of LGUs in the national internal revenue, is missing. This is mandated in Article 10, Sec. 6 of the Constitution. Furthermore, Section 286 of the LGC provides that the release shall be made directly to the LGU concerned within 5 days after every quarter of the year and shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. The withholding of 10% of the IRA is definitely a holdback. H. Public Corporation defined Definition 1: Those formed or organized for the government of a portion of the State (Act 1459, Sec.2) Definition 2: Those corporations created by the State as its own device and agency for the accomplishment of parts of its own public works (Eliot, Mun. Corp. p. 1) I. Essential Elements of a Municipal Corporation 1) A legal creation or incorporation 2. A corporate name by which the artificial personality or legal entity is known and in which all corporation acts are done. 3) Inhabitants constituting the population who are invested with the political and corporate powers which are executed through duly constituted officers and agents; 4) a place or territory within which the local civil government and corporate functions are exercised (Martin, Pub. Corp., 1971) J. Two fold character of a municipal corporation; its significance 1) Government – the municipal corporation is an agent of the State for the government of the territory and the inhabitants within the municipal limits. The municipal corporation exercises by delegation a part of the sovereignty of the State. 2) Private – the MC acts in a similar category as a business corporation, performing functions not strictly government or political. The MC stands for the community in the administration of local affairs w/c is wholly beyond the sphere of the public purposes for which its governmental powers are conferred K. What is Federalism? Definition: A system in which political power is divided between a central (national) government and smaller government units. Supporting Definition: The central government is often called the federal government and the smaller units, states or provinces. In a true federal system, citizens owe their loyalty directly to the central government, even though they live in states or provinces. The central government has direct authority over the people concerning powers granted to it in the constitution. III. CREATION AND ABOLITION OF MUNICIPAL CORPORATION

Sec. 6, LGC: Authority to create Local Government Units. A local government unit may be created divided, merged, abolished or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality or any other political subdivision of by ordinance passed by the Sangguniang Panlalawigan or Sangguniang Panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. A. Requisites for creation of Local Government Units 1. Income. It must be sufficient based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the LGU concerned. 2. Population. It shall be determined as the total number of inhabitants of the within the territorial jurisdiction of the LGU concerned. 3. Land Area. It must be contiguous unless it comprises 2 or more islands or is separated by an LGU independent of the other properly identified by metes and bounds with technical descriptions and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be arrested by the Department of Finance, the NSO and the Land Management Bureau of the DENR. B. Decided cases: b. 1 Pelaez V. Auditor General, 15 SCRA 569 Facts: In 1964, President Macapagal issued several EOs creating 33 new municipalities, mainly in Northern Luzon and Mindanao. The President based his power from Sec. 68 of the Revised Penal Code of 1917. Vice President Emmanuel Pelaez filed a petition for writ of prohibition with preliminary injunction, against the Auditor General, restraining him from passing in audit any expenditure of public funds in implementation of said executive order and/or any disbursement by said municipalities. Pelaez contends that: 1) Sec 68 of the Revised Administration Code has been impliedly repealed by R.A 2370, the Barrio Charter Act. 2) Sec. 68 is an undue delegation of legislative power to the President and 3) Sec. 68 can allow the president to interfere in local government affairs. Held: Pelaez is correct. Reasons: 1. The Barrio Charter Act states that “barrios may not be created nor their boundaries altered or their names changed except by act of Congress of the corresponding municipal board upon petition of the majority of voters in the areas affected and the recommendation of the municipality or municipalities in which the proposed barrio is situated” This implies that if the President cannot create barrios, what more municipalities? (But I think this is not a very good argument coz it’s implying way too much). 2. A law must be: a) Complete in itself so that there is nothing left for the delegate to do but to implement the statute and b) Fix a standard the limits of which are sufficiently determinable The standard set by Sec. 68 is “as the public welfare may require” This standard, in relation to the law in question, is so broad that is virtually unfettered. 3. The creation of Municipal Corporation is essentially legislative in character. If the president can create municipalities, situations may arise where he can submit local officials to his dictation by creating a new municipality and including therein the barrio wherein the officials preside, thus said officials’ positions would suddenly becomes vacant. The power of control by the president over local government is denied by the 1935 Constitution b. 2 Tan v. COMELEC 142 SCRA 727 Facts: B.P. No. 885 was passed allowing for the creation of the province of Negros del Norte on the Island of Negros. Petitioner Patricio Tan claimed that B.P. no 885 violated Article XI, Section 3 of the Constitution which states: “No province, city, municipality or barrio may be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected”. Specifically, the remaining areas in the province of Negros Occidental were not allowed to participate in the plebiscite for the creation of Negros del Norte. Petitioner also claims the proposed province of Negros del Norte failed to meet the requirements of Sec. 197 of the LGC of 1983, specially that a future province must have at least an area of 3,500 sq. km. Negros del Norte, Petitioner avers, is actually only 2,856.56 sq km. Respondent claims the issue was already rendered moot and academic as the new province of Negros del Norte was already proclaimed. Moreover, the area of Negros del Norte is really 4,019.95 sq km, since the waters falling under the jurisdiction and control of Negros del Norte must be included in the total area of the province. Held: Tan is correct. The plebiscite is declared null and void Reasons: 1) The phrase “subject to the approval by a majority of the votes in a plebiscite in the unit or units affected” must be construed to mean that the remaining areas in the province of Negros Occidental should have been allowed to participate in the said plebiscite. The reason is that cities belonging to Negros Occidental will be added to Negros del Norte, thus Negros Occidental’s land area will be dismembered. Certainly, the

people of Negros Occidental should have been allowed to vote in the plebiscite as they are directly affected by the diminution in land size of their province. 2) A reading of the last sentence of the first paragraph of Section 197 LGC of 1983 says. “The territory need not be contiguous if it comprises 2 or more islands”. The use of the word ‘territory” clearly reflects that the law refers only to the land mass and excludes the waters over which the political unit has control. In other words, Negros del Norte failed to meet the required land area of 3,500 sq. km for it to become a province. b. 3 Paredes v. Executive Secretary 128 SCRA 6 Facts: By virtue of B.P. Blg 56, certain barangays in the municipality of Mayoyao, Ifugao held a plebiscite to determine whether they want to constitute themselves into the new municipality of Aguinaldo. Governor Zosimo Paredes et. al. however claimed that the rest of the barangays on Mayoyao should be allowed to participate in the plebiscite by virtue of Art. XI, Sec of the 1973 Constitution as the other barangays are also affected by the creation of the municipality of Aguinaldo. Held: Paredes is wrong. Presumption of constitutionality should be applied in this case. B.P. Blg. 56 is a reflection of local autonomy on the part of the barangay wanting to constituent themselves into a new municipality. Said barangays should be given leeway in becoming self-reliant communities. Moreover, the people in said barangays are the ones who will constitute the new municipality of Aguinaldo, not the other barangays of Mayoyao excluded from B.P. Blg. 56

b. 4 Mun. of Candijay, Bohol v. Ca 251 SCRA 182 Facts: The municipality of Candijay petitioned the RTC of Tagbilaran, Bohol, claiming that its boundary line actually covered barrio Pagahat, since the municipality of Alicia claims to have current territorial jurisdiction over said barrio. The RTC awarded Pagahat to Candijay Alicia appealed to the Court of Appeals. The CA ruled in favor of Alicia on the grounds that 1) applying the rule of equiponderance of evidence (a principle in Civil Procedure) with Candijay as plaintiff and Alicia as defendant in the lower court, the court must rule in favor of the defendant. The equiponderance of evidence rule states: “Where the scale shall stand upon equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant. Under said principle, the plaintiff must rely on the strength of his evidence and not on the weakness of defendant’s claim. Even if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance of evidence on his side if such evidence is insufficient in itself to establish his cause of action.” In this case, both municipalities failed to satisfactorily back their claims that they owned barrio Pagahat: and 2) if Candijay’s boundary line claim was true, then not only would they claim Pagahat but also other certain barrios as well, which would as a result, certainly expand Candijay’s territory far beyond than what the law allows her, Candijay petitioned is review on certiorari with the SC, claiming that 1) the CA misapplied the equiponderance of evidence rule and 2) the municipality of Alicia had no juridical personality, having been created under avoid E.O. ( E.O. No.265) since Sec. 68 of the RAC of 1917 from which the said E.O. derived its authority, was declared unconstitutional in Pelaez v. Audition General (See III-b 1). Held: The Municipality of Candijay is incorrect Reasons: 1. The SC sees no need in reviewing the equiponderance rule as it was not arrived whimsically or capriciously by the CA 2. The Municipality of Alicia was created by virtue of E.O. 265 in 1949. 16 years late when Pelaez v. Auditor General was promulgated. And yet even after, various government acts, most notably the recognition by the 1987 Constitution of Alicia as one of the 20 municipalities of the Third District of Bohol, indicate the State’s recognition and acknowledgement of the existence thereof. Alicia therefore, can claim the benefits of Sec. 442 (d) of the LGC of 1991 which states “Municipal District organized pursuant to presidential issuances and E.O. and which have their respective set of municipal officials holding officials holding office at the time of the effectivity of the code shall henceforth be considered as regular municipalities. Sec. 442 (d) is therefore a curative law in favor of Alicia. The objection against it being a municipal corporation should have been done before the LGC was enacted in 1991. b. 5 Municipality of Jimenez v. Baz, Jr. 265 SCRA 182 NOTE: Dates in this case are important because essentially Jimenez lost on account of the slow wheels of justice Facts: In 1949, President Quirino issued E.O. 258, creating the municipality of Sinacaban in the Province of Misamis Occidental. In 1988 by virtue of said E.O. Sinacaban filed a claim with the provincial Board of Misamis Occidental against the municipality of Jimenez territorial possession of about 5 barrios. Jimenez in its reply with the provincial Board that same year and later on with the RTC in 1990, said that Sinacaban had no juridical personality to file a suit because it was created under a void E.O. as promulgated in Pelaez Auditor General and 2) the disputed barrios belong to Jimenez since in 1950 the municipalities entered into an agreement duly approved by the Provincial Board of Misamis Occidental back then which recognized Jimenez’s jurisdiction over the disputed barrio in 1992, the RTC ruled in favor of Sinacaban using as its basis the curative benefits of Sec. 2 of the LGC of 1991. Angrily, Jimenez added in its petition with the Supreme Court the RTC’s decision was null and void because it failed to decide the case within one year mandated by the LGC of 1983 and the Constitution.

Held: Jimenez is incorrect Reasons: 1. Sinacaban can claim the benefits of Sec.442 (d) of the LGC of 1991, since various government acts through the years after the Pelaez case of 1965 indicate the recognition by the years after the Pelaez case 1965 indicate the recognition by the state of the municipality of Sinacaban, most notably when the 1987 Constitution recognized Sinacaban as part of the 2nd District of Misamis Occidental. 2. Whatever agreement Sinacaban and Jimenez entered into 1950 must still conform with the territorial metes and bounds set forth in E.O. 258, otherwise the agreement in void (A relocation survey was ordered but the results of the survey was not stated in the case) 3. Even granting that the RTC was deliberately slow, its decision is not rendered void. The only remedy left would be to file administrative sanctions against it. b. 6 Mendenilla v. Onandia 5 SCRA 536 Facts: In 1954, the mayor of the municipality of Legaspi appointed Emilio Mendenilla as Chief of Police. Then, in 1959, Congress passed R.A. 2234 converting the municipality of Legaspi into the City of Legaspi R.A. 2234 provides that the position of Chief of Police of the city of Legaspi is to be appointed by the President. Therefore, when Jose Manuel Onandia was appointed by the President City Chief of Police, Mendenilla assailed the legality of such a move, claiming that his position as chief of police was not abolished when Legaspi was converted from a city to a municipality 2) Under R.A. 557 his employment status as Chief of Police may not be abolished except in the manner specified in R.A. 557 and 3) The Civil Service Law guarantees his security of tenure. Held: Mendenilla is incorrect Reasons: 1. The position of Chief of Police of a municipality is totally different from the position of the Chief of Police of a city. Therefore, R.A. 2234 abolished the position of municipality Chief of Police and replaced it with a city Chief of police. In support of this contention, the Supreme Court cited Sec. 96, Article XVII of the charter which provides that the City Mayor the Vice Mayor, etc. are allowed to continue in office upon the effectivity of the charter until the expiration of their terms in office. Nowhere does it mention the Chief of Police in the said list of officials. Expressio unius est exclusio alterius. 2. Notwithstanding both R.A. 557 and the Civil Service Law, it is within the legal competence of Congress to enact R.A. 2234. Congress has the plenary power to make laws, meaning its power to make any kind of law is, in theory, unlimited. Quiz: If the municipality of a municipal judge is converted into a city, can the judge continue to serve in the new city? Answer: Yes. A judge is not a municipal official. He does not derive his power or his appointment from a city charter; he derives them from the Constitution and other Laws. b. 7 Mathay v. CA 320 SCRA 703 NOTE: Don’t confuse CSU with CSC Facts: During his term, Mayor Brigido Simon appointed 16 people to positions in the Civil Service Unit (CSU) of the local government of Quezon City. Simon’s authority to appoint was based upon P.D. 51. The Secretary of Justice rendered an Opinion, stating that P.D. 51 was never published in the Gazette, therefore, conformably with the Tanada v. Tuvera ruling P.D. 51 never became law at all. The Civil Service Commission (CSC) thus ordered the revocation of all appointments in the CSU. However, the effects of such revocation were temporarily cushioned when the city council issued an ordinance creating the Department of Public Order and Safety (DPOS). All present personnel of the CSU, the said ordinance stated are to be absorbed into the DPOS. However, the regular positions in the DPOS never got filled due to insufficient number of said positions and lack of funds. Simon and later on his successor, Mayor Ismael Mathay, remedied the situation by offering the CSU personnel contractual appointment. When Mathay refused to renew their appointments, the CSU personnel complained to the CSC. The CSC replied by issuing resolutions ordering the CSU personnel reinstated. Mathay now asserts that the CSC cannot order him to reinstate the said personnel as it is. In effect, giving the appointing power he possesses, as city Mayor to the CSC. Held: Mathay is correct. Reasons: 1) First of all, the law applicable is B.P. 337 or the old LGC and not the LGC of 1991 since the material events of the case took place during the time of the old LGC. 2) Under B.P. 337, the power to appoint rests in the local chief executive in the case the Mayor. When the city council issued the ordinance allowing for the absorption of CSU personnel into the DPOS, it specifically made use of the wordings “Present Personnel” and not positions, thus the city council arrogated upon itself the appointing power by dictating who shall occupy the DPOS positions. Even in the local government level, the separation of powers must be respected. 3) The reasoning in no. 2 also applies to the CSC. The CSC claims that by virtue of the ordinance enacted by the city council, the CSU personnel became regular employees and such they have gained the protection of the Civil Service Law. Such reasoning is wrong because in the first place the CSU never existed at all, thus they were

never part of the Civil Service to begin with. Thus when Simon and later on Mathay offered them contractual appointments, they were at the mercy of the appointing power of the said mayors, as they have the option not to renew their appointments b. 8 Samson v. Aguirre, 315 SCRA 53 Facts: R.A. 8535 was signed into law creating the City of Novaliches out of 15 barangays in Quezon City. Quezon City councilor Moises Samson questioned the constitutionality of said R.A. claiming that 1) certifications as to income, land area and population of Novaliches were not presented during the deliberations that led to the passage of R.A. 8535 2) a certification attesting to the fact that the mother LGU, Quezon City, would not be adversely affected by the creation of Novaliches city in terms of income, land area and population, was also not presented 3) a copy of the petition of concerned barangays calling or the creation of City of Novaliches was not presented to the Quezon City Council, as mandated by the Implementing Rules of the LGC, 1991 and 4) R.A. 8535 failed to specify the seat of government of the proposed City of Novaliches as mandated by Sec. 11 (a) of the LGC, 1991. Held: Samson is wrong. Reasons: 1. The presumption of constitutionally of laws shall be applied in this case, meaning that Samson has burden of proof to show that R.A. 8535 was unconstitutional. Samson did not present any proof that no certifications were presented during the deliberations. And even granting that no certifications were indeed presented, the representatives of the DOF, NSO, DENR and even Quezon City mayor Ismael Mathay were present during the deliberations. The official statements attesting to the income, land area and population of Novaliches could serve the certifications contemplated by law 2. Mathay was present during the deliberation. If Quezon City would object to the creation of the City of Novaliches, he would be the first representative to do so. But he didn’t. 3. The failure to provide the QC council a petition of concerned barangays calling for the creation of the City of Novaliches is not fatal as such petition is meant only to inform the QC council of such creation. With the mass media publicizing the creation of the city of Novaliches, Samson could not claim he was not informed of the proposed creation 4. The failure of R.A.8535 to provide a seat of government for Novaliches is not fatal. Sec. 12 of the LGC provides that a government center shall be established by the LGU as far as practicable. Government centers can also serve as seats of government. 5. The fact that the City of Novaliches was not included among the 17 cities and municipalities listed in the ordinance attached to the 1987 constitution does not mean that a constitutional amendment is necessary in order for Novaliches to become a city. The ordinance attached to the Constitution merely apportions the seat of the House of Representatives to the different legislative districts in the country. Nowhere, does it provide that Metro Manila shall be forever composed of 17 cities and municipalities. NOTE: the proposed City of Novaliches was later voted down in a plebiscite held for that purpose C. How are existing sub-provinces converted to provinces? * Sec. 10 LGC: Plebiscite Requirement. No creation, division, merger, abolition or substantial alteration of boundaries of LGUs shall take effect unless approved by a majority of the voted cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the COMELEC within 120 days from the date of effectivity of the law or ordinance effecting such action, unless the law or ordinance fixes another date. * Sec. 462 LGC: Existing Sub-provinces Existing sub-provinces are hereby converted into regular provinces upon approval of the voters cast in a plebiscite to be held in the said sub provinces and the original provinces directly affected. The plebiscite shall be conducted by the COMELEC simultaneously with the national elections following the effectivity of this code. The new legislative district created as a result of such conversion shall continue to be represented in Congress by the duly elected representatives of the original districts out of which said new province or districts were created unit their own representative shall have been elected in the next regular congressional elections and qualified The incumbent elected officials of the said sub-provinces converted into regular provinces shall continue to hold office until June 30, 1992. Any vacancy occurring in the offices occupied by said incumbent elected officials, or resulting from expiration of resulting from expiration of their terms of office in case of negative votes in the plebiscite results, shall be filled by appointment by the President. The appointees shall hold office until their successors shall have been elected in the regular local elections following the plebiscite mentioned herein and qualified. After effectivity of such conversion, the President shall fill up the position of governor of the newly created province through appointment if none has yet been appointed to the same as hereinbefore provided, and shall also appoint a vice governor and other members of the Sanggunian Panlalawigan, all of whom shall likewise hold office unit their successors shall have been elected in the next local election and qualified. All qualified appointive officials and employees in the career service of the said sub-provinces at the time of their conversion into regular provinces shall continue in accordance with civil service law, rules and regulation. C 1. Grino v. COMELEC, 213 SCRA 672

Facts: Pursuant to Sec. 462, LGC, a plebiscite to determine whether the sub-province of Guimaras (its mother province was Iloilo) wants to become a regular province was held simultaneously with the May 11, 1992 elections. The participants in the said plebiscite were the residents of Iloilo (except Iloilo city) and the 3 municipalities of Guimaras. Surprisingly, the ballots issued in the said 3 municipalities did not provided any space for the election of governor, vicegovernor and the members of the Sangguniang Panlalawigan of the province of Iloilo. LDP Iloilo governor-candidate Simplicio Grino claims that the COMELEC erred in not allowing the said 3 municipalities to vote for the provincial officials of Iloilo, since at the time of the plebiscite Guimaras was still a sub-province of Iloilo. Grino says if Guimaras voted for regular “provincehood” then there would have been no need for them at all to vote for the provincial officials of Iloilo. But what if Guimaras votes to remain as a sub-province? Should special election be held for the 3 municipalities so that they can vote for the provincial official of Iloilo? Held: Obviously, Grino’s petition was rendered moot and academic when Guimaras voted to become regular province. Besides it’s too late to undo what COMELEC has done. If Guimaras did vote to remain as a sub province, Grino’s petition would have been meritorious. D. Conversion of a component city into a highly urbanized city and reclassification (implementing Rules and regulations, LGC). * Art 12 Conversion of a component city into a highly urbanized city a) Requisites for conversion. A component city shall not be converted into a highly urbanized city unless the following requirements are present: 1. Income latest annual income of not less than P50M based on 1991 constant prices, as certified by the city treasure. The annual income shall included the income accruing to the general fund exclusive of special funds, transfers and non-recurring income and 2. Population, which shall not be less than 200,000 inhabitants as certified by NSO. b) Procedure for conversion: 1. Resolution. The interested component city shall submit to the office of the President a resolution of its Sanggunian adopted by a majority of all it’s members in a meeting duly called for the purpose, and approved and endorsed by the city mayor. Said resolution shall be accompanied by certifications as to income and population 2. Declaration of conversion. Within 30 days from receipt of such resolution, the President shall, after verifying that the income and population requirements have been met, declare the component city as highly urbanized 3. Plebiscite. Within 120 days from the declaration of the President or as specified in the declaration, the COMELEC shall conduct a plebiscite in the city proposed to the converted such plebiscite shall be preceded by a comprehensive information campaign to be conducted by the COMELEC with the assistance of national and local government officials, media, NGO’s and other interested parties. c) Effect of conversion The conversion of a component city into a highly-urbanized city shall make it independent of the province where it is geographically located Reclassification (See cases below and III-e) d. 1 Ceniza v. COMELEC 95 SCRA 763 Facts: on Dec. 22 1979, the interim Batasang Pambansa enacted B.P. Blg. 51 providing for local elections on Jan 30, 1980. Its section 3, the subject of controversy, reads as follows: xxx Until cities are reclassified into highly urbanized and component comes in accordance with standard established in the LGC as province for in Art XI, Sec 4 (1) of the Constitution. Any city now existing with an annual regular income derived from infrastructure and general funds of not less than P40M at the time of the approval of the act shall be classified as a highly urbanized city. All other cities shall be considered components of the provinces where they are geographically located. xxx The registered voters may be entitled to voter in the election of the official of the province of which that city is a component. If it’s charter so provides. However, voters in a highly urbanized city, as hereinabove defined shall no participate nor vote in the election of the official of the province in which the highly urbanized city is geographical located. Robert Ceniza et.al. filed a case as tax payers and registered voters in the cities of Cebu ad Mandaue assailing Sec. 3 Specially, they questioned the use of annual income of a given city as basis for classification of whether or not a particular city is a highly urbanized city whose voters may no participate in the election of provincial officials of the province in which the city is geographically located. Ceniza and his fellow goons claim Sec.3 regulates the exercise of freedom of suffrage and violates the equal protection of the law. Moreover, they attacked R.A. 5519 the law creating the City of Mandaue, which went to effect without the benefit of ratification by the residents of Mandaue in the plebiscite or referendum. They particularly cited the charter’s provision denying Mandaue the right to participate in provincial elections.

Held: Ceniza et. at. is mistaken. Reasons: 1. The thrust of the 1973 Constitution is towards the fullest autonomy of LGU’s Corollary to independence however, is the concomitant loss of right to participate in provincial affairs, more particularly the selection of elective provincial officials since these provincial officials have ceased to exercise any government jurisdiction and authority over said city. 2. Regular annual income of a given city is substantial distinction for classification. The revenue of a city would show whether or not it is capable of existence and development as a relatively independent economic, social and political unit. Thus, the equal protection of the laws in not violated. 3. Freedom of suffrage is not imperiled since the Constitution does not give the city voter the right to participate in provincial elections for territorial reasons 4. The city of Mandaue came into existence. In 1969, the constitutional requirement that the creation, alteration, etc. of a city, province, etc. is subject to a plebiscite only came into being when the 1973 Constitution was enacted and therefore cannot be applied retroactively. d. 2 Tobias v. Abalos 239 SCRA 106 Facts: Robert Tobias, et. al. invoking their right as taxpayers and as residents of Mandaluyong City, assailed the constitutionality of R.A. No. 7675, known as “An act Converting the City of Mandaluyong into a Highly urbanized city known as the City of Mandaluyong.” They cited, among others, Art. VIll, Sec. 49 of R.A. 7675, which provides that “As a highly urbanized city, the City of Mandaluyong shall have its own legislative district with the first representative to be elected in the next national elections after the passage of this Act. The remainder of the former legislative district of San Juan/Mandaluyong shall become the new legislative district of San Juan with its first representative to be elected at the same region” Said provision Tobias claims is not germane to the title of R.A. 7675 thus being contrary to the one title-one subject rule since it creates a legislative district whereas the title expressly provides only for the conversion of Mandaluyong into highly urbanized city. Also, Tobias, et. al. contend that the people of san Juan should have been made to participate in the plebiscite as the same involves a change in their legislative district. Held: Tobias, et.al. are grossly erroneous Reasons: 1. The creation of a new legislative district is a natural logical consequence of its conversion into a highly urbanized city. 2. The contention that the people of San Juan should have been made to participate in the plebiscite on R.A. 7675 as the same involved a change in their legislative district is benefit of merit. The reason is that the principle subject involved I the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus the inhabitants of San Juan were properly excluded from the said plebiscite as they have nothing to do with the changed in status of neighboring Mandaluyong. (This argument is rather strange for me). d.3 Miranda v. Aguirre 314 SCRA 603 Facts: On May 5, 1994 R.A. 7720 was passed converting the municipality of Santiago, Isabel into an independent component city. On Feb 14, 1998 R.A. 8528 was passed amending R.A. 7720 on 2 points: 1 Sec. 2 of R.A. 7720 is hereby amended by deleting the words, “an independent” so that the municipality of Santiago will be converted into a component city only and 2) the voters of Santiago could now vote again for the provincial officials of the province of Isabela. Jose Miranda, the mayor of Santiago and other petitioners assailed the constitutionality of R.A. 8528. He says that said law lacks the provision requiring that the plebiscite be held for its ratification. Alexander Aguirre, the Executive Secretary and other respondents on the other hand countered that (1) Miranda et. al. had no standing to file their petition 2) the issue is a political question and 3) R.A. 8528 did not created divide, etc or after any boundaries of Santiago it merely reclassified Santiago from an independent component city into a component city. Held: Aguirre and his cohorts are gravely mistaken. Reasons: 1. Miranda had standing, he field the petition in his capacity as mayor of Santiago. 2. The issue is justiciable, Petitioners assail the constitutionality of R.A. 8528, since it runs contrary to article X, Sec 10 of the 1987 Constitution. The court has the power to decide the constitutionality of any law. 3. The reclassification will downgrade Santiago’s status from an independent component city into a component city. Far reaching changes will then take place. Its political independence will diminish. The city mayor will be placed under the administrative supervision of the provincial governor. Ordinance and resolution passed by the city council of Santiago will have to be reviewed by the Provincial Board of Isabel. Taxes collected by the city would then be shared with the province. All these changes merit the need of a plebiscite so that the people at Santiago can air their side on the issue. Moreover, if a plebiscite can be held for the upgrading of an LGU, should not a plebiscite be held for its downgrading as well? NOTE: Mendoza’s strong dissent was anchored on Art. X Sec. 10 of the 1987 Constitution. Said section refers to alteration of boundaries of Santiago were substantially altered nor any of its income, population or land area been

radically changes Santiago was neither recreated into another LGU nor abolished, much less its boundaries alter. (This good justice is implying the reclassification was administrative in nature. E. Classification of provinces, cities and municipalities (Read E.O. 349) This act is entitled “providing for a new income classification of provinces, cities and other municipalities” Pertinent provisions include: Sec. 1. Classification of provinces and cities. Provinces and cities except Manila and Quezon City, which shall be considered as special class cities, are hereby divided into 6 main classes according to the annual average income they actually realized during the last 4 calendar years immediately preceding as follows: a) First class P30M or more b) Second class P20M-P30M; c) Third class P15M-P20M; d) Fourth class P10M-15M, e) Fifth class P5M-10-M; f) Sixth class less than P5M Sec. 2. Classification of Municipalities x x x according to the annual average income they actually realized during the last 4 calendar years immediately preceding as follows; a) First class, P15M or more b) second class, P10M-15M c) Third class, P5M-10M d) fourth class P3M-P5M e) Fifth class, P1M-3M f) Sixth Class, less than P1M. Sec. 3. Period of General Reclassification of Province, Cities and Municipalities. Upon the effectivity of this E.O. and for each period of 4 consecutive calendar years thereafter, the Secretary of Finance shall reclassify the all provinces, cities, except Manila and Quezon City, Which shall remain as special class cities, and municipalities, on the basis of the foregoing schedules of the average annual income of each province, city or municipality derived during the last 4 consecutive calendar years immediately such reclassification according to the provisions hereof. Sec. 4. Definition of Terms. As used this E.O. a. Annual Income revenues and receipts realized by provinces, cities and municipalities from regular sources of the local general and infrastructure funds including the internal revenue and specific tax allotments provided for in PDs 144 and 436, both as amended but exclusive of non-recurring receipt, such as other national ads, grants, financial assistance, loan proceeds, sales of fixed assets and similar others b. Average annual income- sum of the “annual income”- sum of the “Annual Income” as herein defined actually obtained by a province, cities and municipalities. Sec. 5 Use of income classification of provinces, cities, and municipalities. xxx as basis for: a) Fixing of maximum tax ceiling imposable by the local government b) Determination of statutory and administrative aids, Financial grants and other forms of assistance to local government c) Establishment of salary scales and rates of allowances per diems, and other emoluments that local government officials and personnel may be entitled to d) Implementation of personnel policies on promotions, transfers, details or secondment, and related matters at the local government levels e) formulation and execution of local government budget policies and f) Determination of the financial capability of local government units to undertake development programs and priority projects NOTE: There are 7 more sections, mainly on salaries and taxes- you know, ways to put more money into the pocket of our bureaucrats F. Settlement of boundary disputes( Sec. 118, LGC, Sec 15-19, IRR) * Section 118. Judicial Responsibility for settlement of Boundary Dispute. Boundary dispute between and among LGUs shall, as much as possible. Be settled amicably. To this end: a. Boundary disputes involving 2 or more barangays in the same city or municipality shall be referred for settlement to the Sangguniang Panlungsod Sangguniang Bayan concerned. b. Boundary disputes involving 2 or more municipalities within the same province shall be referred for settlement to the Sangguniang Panlalawigan concerned. c. Boundary dispute involving municipalities or component cities of different provinces shall be jointly referred for settlement to the Sangguniang of the province concerned. d. Boundary dispute involving a component city or municipality on the one hand and a highly urbanized city on the other or 2 or more highly urbanized cities, shall be jointly referred for settlement to the respective Sangguniang of the parties e. In the event the Sangguniang fails to present an amicable settlement within 60 days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter the dispute shall be formally tried by the Sangguniang concerned which shall decide the issue within 60 days from the date of the certification referred to above. *Sec. 15 definition and policy. There is a boundary dispute when a portion or a whole of the territorial area of an LGU is claimed by 2 or more LGUs. Boundary disputes between or among LGUs shall, as much as possible, be settled amicably.

* Sec.16 Jurisdictional Responsibility. Boundary disputes shall be referred for settlement to the following: a. Sangguniang Panlungsod or Sangguniang for those involving 2 or more barangays in the same city or municipality as the case may be. b. Sangguniang Panlalawigan for those involving 2 or more municipalities with in the same province. c. Jointly, to the Sanggunian of provinces concerned, for those involving component cities or municipalities of different provinces. d. Jointly, to the respective Sangguniang for those involving a component city or municipality and highly urbanized city of 2 or more highly urbanized cities. * Sec. 17 Procedures for settling Boundary Disputes they are 1) filing of petition 2) contents of petition 3) documents attached to petition (e.g. provincial, city or barangay map as the case may be technical description of the boundaries of the LGUs concerned 4) Joint hearing 5) failure to settle amicably (a certification shall be submitted to the effect 6) Decision 7) Appeal (To the proper RTC) *Sec 18. Maintenance of Status Quo. Pending final resolution of the dispute, the status of the affected area prior to the dispute shall be maintained and continued for all purposes. * Sec 19. Official Custodian. The DILG shall be the official custodian of all documents on boundary disputes of LGUs. f 1. City of Pasig v. COMELEC et.al. 314 SCRA 179 Facts: 2 petitions were raised by the City of Pasig and the municipality of Cainta respectively. Both Questioned the priority of the suspension of the scheduled plebiscites for the proposed creation of Barangay Karangalan and barangay Napico (pursuant to 2 ordinances passed by both cities) Cainta had contended that the proposed barangays involve areas included in the boundary dispute between her and Pasig; hence the suspension of the scheduled plebiscites is justified. Pasig however contends otherwise. Despite this, the COMELEC ruled against Cainta and the plebiscite for the creation of barangay Napico pushed through. The core issues now are 1) whether or not the said barangay dispute is a prejudicial question which must be resolved before any plebiscite can be held and 2) Whether the plebiscite already conducted ratifying the creation of Barangay Napico has rendered the issue as to it moot and academic. Held: Cainta is correct. Reasons 1. Pasig cannot deny that there is a pending boundary dispute between her and Cainta Surely, whether the area in controversy shall be decided as within the territorial jurisdiction of the Municipality of Cainta or the City of the Pasig has material bearing to the proposed barangay Karangalan and Napico. The importance of drawing with precise strokes the territorial boundaries of an LGU cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of an LGU. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of LGUs will sow costly conflicts in the exercise of government powers which will ultimately the people’s welfare. 2. As was done before in Tan v. COMELEC, the plebiscite already conducted for the creation of Barangay Napico can be annulled and set aside. Held: SC held that the plebiscite should be held in abeyance. f. 2 DILG Opinion No. 161-1994 (still to search) G. Naming of LGU naming of LGUs and public places, streets and structures * Sec 13, LGC, Art 20-23, IRR a. The Sangguniang Panlalawigan may in consultation with the Philippine Historical Commission (PHC), change the name of the following within territorial jurisdiction: 1. Component cities and municipalities upon the recommendation of the Sangguniang concerned. 2. Provincial roads, boulevards, avenue, thoroughfares and bridges 3. Public vocational or technical school and other post-secondary and tertiary schools 4. Provincial hospitals, health centers and other health facilities 5. Any other place or building owned by the provincial government. b. The Sangguniang of highly urbanized cities and of component cities whose charters prohibit their voters from voting for provincial electrical officials, hereinafter referred to in this code as independent component cities may in consultation with the PHC change the name of the following within its territorial jurisdiction: 1. City barangays, upon the recommendation of the Sangguniang barangay 2-5 essentially the same as (a) nos. 2-5 above except only to those within its

concerned. territorial jurisdiction.

c. The sanggunians of component cities and municipalities may, in consultation with its territorial. d. None of the foregoing LGUs institutions, places, or buildings shall be named after a living person nor a change of name be made unless for a justifiable reason and in any case not oftener than once every 10 years. The name of an LGU or a public place, street or structure with historical, culture or ethic significance shall not be changed, unless by a unanimous vote of the sanggunian concerned and in consultation with the PHC. e. A change in name of a public school shall be made only upon the recommendation of the local school board concerned. f. A change in name of public hospitals, health centers, and other health facilities shall be made only upon the local board concerned. g. In any change of name, the office of the president, the representative of the legislative district concerned and the bureau of posts shall be notified. Note: Letters (d) to (b) are the limitations in the change of name of a local government unit institution or places or buildings. * Art. 20-22 IRR These articles are essentially copied from sec 13 (a) (b) and (c),LGC See for yourself * Art.23, IRR Guidelines and limitation a. No name of LGUs, public places, street and structures with historical, culture or ethnic significances shall be changed, unless with unanimous vote of the sanggunian and in consultation with the National Historical Institution (NHI). b. No change in the name of an LGU shall be effective unless ratified in a plebiscite called for that purpose. c. Naming shall be subject to the following conditions: 1. Naming after leaving person shall be not followed. 2. A chance in the name shall only be for a just able reason. 3. Any change shall not be made more than once every ten years. 4. A chance in name of a local public school shall be made upon the recommendation of the school board. 5. A chance in name of local public hospital, health center and other health facilities only upon the recommendation of the local school board. 6. The whole line of the street shall have only. 7. The name of the family in a particular community whose members contributed significantly to the welfare of the Filipino people maybe used. d. The office of the president, the representative of the legislative district concerned, and the postal service shall be notified of any change in name of LGUs, public places, streets and structures H. Rules of interpretation, (Sec 5, LGC) *Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: a. Any provision on a power of local government shall be liberally interpreted its favor, and in case of doubt, any question thereof shall be reserved in favor of devolution of powers and the lower LGU. Any and reasonable doubt as to the existence of the power shall be interpreted in favor of LGU concerned. b. In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the LGU enacting it, and liberally in favor of the tax buyer. Any tax exemption, relief of incentive granted by any LGU pursuant to the provisions of this code shall be construed strict against the person claiming it. c. The general welfare provision of this code shall be liberally interpreted to give more powers LGUs in accelerating economic development and upgrading the quality of life for the people in the community. d. Rights and obligations existing on the effective of this code and a rising out contact or any other source of presentation involving an LGU shall be governed by the original terms conditions of contracts or the law in force at the time such rights were vested. e. In the resolution of controversies arising under this code where no legal provision of jurisprudence applies, resort may be had to the customers and traditions of the place where the controversies took place. h.1 Principle of devolution (See Sec 17 [4] (c) and (i) LGC} * Sec 17, LGC. Basic Services and Facilities. a. LGUs shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this code. Local government shall likewise exercise such other powers and

discharge such other functions and responsibilities as are necessary appropriate or incidental to efficient and effective provision of the basic services and facilities enumerated herein; [4] For a city All the services and facilities of the municipally and province, and in addition thereto, the following: a. Adequate communication and transportation facilities. b. Support for education, police and fire services and facilities b. National agencies or offices concerned shall devolve to LGUs the responsibility for the provision of basic service and facilities enumerated in this section within six months from the effect of this code As used in this code the term devolution refers to the act by which the National Government confers power and authority upon the various LGUs to perform specific functions and responsibilities. c. The devolution contemplated in this Code shall include the transfer to LGUs of the records ,equipment, and other assets and personnel of national agencies and offices corresponding to the develop powers, function and responsibilities personnel of said national agencies or office shall be absorb by the local government units to which they belong or in whose areas they are assigned to the extend that it is administratively viable as determined by the said oversight community Provided, That the right accorded to such personnel pursuant to civil service law, rules of similar regulation shall not be impaired Provided for their, That regional directors who are career service executed officers and other officers of similar rank in the said regional offices who cannot be absorbed by the LGU shall be retained by the National Government, without any revolution of rank, salary or tenure. h. 2 Badua v. Cordillera Bodong Administration, 94 SCRA 10 Facts: In 1996.David Quema as the owner of 2 parcels of land in Lacaga, Lumaba, Villaviciosa, Abra mortgaged said parcels of land of 6,000 to Dra. Erotida Valera. He was able to redeem the land of 22 years later, long after Dra. Valera had already died. He allegedly was able to pay the redemption price of Dra. Valera’s heir. Spouses Leonor and Rosa Badua alleged however that Dra. Valera sold the land to her while she was still alive. However, Rosa could not produce the deed of sale because it was allegedly in the possession of Vice-governor Benesa. As Quema was prevented by Rosa from cultivating the land, Quema, instead of filling a case with the provincial courts, filed it instead with the Maeng Tribal Court of the Cordillera Bondong Administration (CBA) In 1989, The tribal court rule in favor of Quema when the Baduas refused to vacate the subject land, they (the Baduas) received a warning order from the Cordillera People’s Liberation Army. The Baduas the felid a special and extraordinary relief with the SC, which was duly treated as a petition for certiorari and prohibition, questioning the jurisdiction and legal personality of the Maeng Tribal Court, the CBA and the CPLA. Held: The petition is that the Cordillera Autonomous Region (CAR) never came into legal existence as a consequence of the Ordillo v. COMELIC ruling. As a result, the Maeng Tribal Court was not constituted into an advisory or special court under R. A.6766. Instead, it is just an ordinary tribal court with mere advisory and conciliatory power to make peace, settle and compromise. Such courts are not considered part of Philippine judicial system. By analogy to the pangkat or conciliatory panels created under P.D.1508, if the Badua had failed to seasonably repudiate the Maeng Tribal Court’s decision, said decision would have had the force and effect of a final judgment in court. As was shown, the Baduas did file a timely petition with the SC. IV. POWERS OF MUNICAL CORPORATION (MC) A. Sources of Power 1. Constitution of a state 2. Statutes of a state including a) those applicable to all municipal corporation or to the class to which the particular municipal corporation belongs and b) special act of the legislature, as far as authorized, applicable to the particular municipal corporation. 3. The charter 4. Doctrine of inherent right of self-government with respect to certain municipal matters (applicable to states which adhere to it). B. Classification of Power 1.) Express, implied and inherent power a. Express - those granted in express word by the special charter or the general law under which corporation is organized. b. Implied- those granted which arise by natural implication from the granted of express power or by necessary inference from the purposes or function of the corporation (e.g. an ordinance to prevent fires necessarily carries with it the authority to chase fire trunks). c. Inherent-those which are necessary and inseparable from every corporation, and which come into existence as a matter of course as soon as an MC is created they are:

1. To have perpetual succession 2. To sue and be sued, implead, grant and receive by its corporation name and other acts as a judicial person 3. To make by laws and ordinances for the government of the corporation. 4. To make and ordinance for the government of the corporation. Note: Usually these so-called inherent powers are expressly provided in MCs charter. 2.) Legislative and executive powers a. Legislative – authority to make laws b. Executive – authority to enforce laws NOTE: The test to determine what is legislative and what is administrative is whether the ordinance is one making a new or one executing law already in existence. The former is legislative; the latter’s executive. 3.) Intramural and extramural powers 1.) Intramural – those exercised within the corporate limits of a municipal corporation. 2.) Extramural – those exercised without like those given for the protection of water supply, prevention of Nuisance, and also for police purposes. 4.) Governmental and municipal powers 1.) Governmental – those exercised by the corporation in administering the powers of the state and promoting the public welfare within. They include those which are legislative, judicial, public and political. Specific examples are: Administration of justice, police power; eminent domain; promotes public education; fire prevention and safety; and all other powers to be exercised by the MC as an agent the State, for the benefit of the public or of the exercise of which the corporation receives consideration. 2.) Municipal – those exercised for the specified benefits and advantage of the urban community and they include those which are ministerial, preemptory, private and corporate plans of which the corporation receives no compensation. 5.) mandatory and discretionary powers a.) Mandatory – those the exercise of which are required of municipal corporations. b.) Discretionary – those which the corporations may perform or not depending upon own judgment and discretion. III. Kinds of Powers A. Police Power (General Welfare Clause) and the limitations on the exercise (Sec. 16, LGC) 1. Police Power – the power to prescribe regulations to promote health, moral, peace, education, good order or safety and general welfare of the people. It is the most essential insistent and illimitable of power. It is elastic and must be responsive to various social conditions. Police power is inherent in the State but not in municipal corporations. In order that a municipality corporation may exercise police power, there must be a legislative grant which necessarily also sets limits for the exercise of the power. 2. General Welfare Clause (Sec. 16, LGC) Every LGU shall exercise the power expressly granted, those necessarily implied there from, as well as the powers necessary, appropriated incidental for its efficient and effective governance, and those which are essential to the promotion of general welfare. Within their respective territorial jurisdictions, LGU’s shall ensure and support among other things, he preservation and enrichment of culture, promote health and safety, enhance the right people to balanced ecology, encourage and support the development of appropriate the self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order and preserve the comfort and convenience of their inhabitant. 3. Limitations on the exercise - a police power measure may be struck down as invalid if it does not meet tests a.) The interest of the public generally, as distinguish from those of a particular class, requires the exercise of the police power and b.) The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 1. Binay y Domingo 201 SCRA 508 Facts: On Sept 27, 1988, the Municipality of Makati, through its Council, approved Resolution No. 60, which provided for a burial assistance program by the office of the mayor. Said program aims to extend financial assistance of P500 to bereaved families whose income does not exceed P2, 000. The Commission on Audit (COA) disapproved Res. No. 60 on the grounds that the said resolution 1.) did not have an obvious or real connection to the public safety, health, morals or general welfare in order to be sustained as a legitimate exercise of police power; and 2.) said resolution only benefits few individuals when it should benefit the inhabitants of the municipality as a whole. Mayor Jejomar Binay now petitions the SC that the Resolution be declared a valid exercise of the police power. Held: The COA is wrong Reasons:

1. COA tried to redefine for itself the meaning of police power. Police power is not capable of an exact definition. It is not limited to peace, order, morals and all the crap but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and everything worthwhile for the preservation of comfort of the inhabitants of the corporation. (wow) 2. COA is not attuned to the changing times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. The drift is toward social welfare legislation geared towards state policies to provide adequate social services, the promotion of the general welfare, social justice, as well as human dignity and respect for human rights. 2. American Mail Line v. City of Basilan 2 SCRA 309 Facts: On Sept. 12, 1955, the City Council of Basilan City enacted Ordinance No. 180, amending Title Iv, Ordinance No. 7, which read as follows: “Article IV Regulation of berthing, mooring, docking and anchoring at piers or wharves at any point within the City of Basilan and for anchoring at any open bay, channel or any point within the territorial waters of the City of Basilan.” Ordinance No. 180 also added a new paragraph as an amendment with read: “Any foreign vessel engaged in otherwise trade which may anchor at any open bay, channel or any loading point within the territorial limits of the City of the City of Basilan for the purpose of unloading logs or passengers and other cargoes shall pay an anchorage fee of ½ centavo (P0.50) per registered gross ton of the vessel for the first 24 hours or part of thereof and for succeeding hours part thereof, provided that maximum charge shall not exceed P75 per day, irrespective of the greater tonnage of shippage.” Several foreign shipping companies, including American Mail Lines questioned the validity of such an ordinance with regards to the right of City of Basilan to impose such a fee. The City of Basilan answered that heir power to enact such an ordinance is based on a city’s exercise of its revenue raising or of its police power. To support their contention, Basilan presented their Charter (R.A. 288) which states: “Sec. 14 General Powers and Duties of the Council. Except as otherwise provided by law, and subject to the conditions and limitations thereof, the Council, the Council shall have the following legislative powers: a.) To levy and collects taxes for general and special purposes in accordance with law x x x c) To enact ordinances for the maintenance and preservation of peace and good morals x x x v) fix the charges to be paid by all watercraft at or using public wharves, docks, levees, or landing places. Moreover, Basilan said the fees in question are for a regulatory purpose, the reason being the island is a potential haven for smugglers and other illegal activities (the understatement of the century). Who is correct? Held: American Mail Line is correct Reasons: 1. First of all, the phrase, in accordance with the law in Sec. 14 a.) of the Charter means that the City of Basilan is not given a blanket taxation power. 2. It is automatic that the power to regulates as an exercise of police power does not include the power to impose fees for revenue purposes. Thereof, Basilan’s claim that Ordinance No. 180 is for a regulatory purpose and not just for revenue purpose won’t save said Ordinance from invalidity. Moreover, the maximum charge of P75 is more than what the National Government imposes for harbor fees. 3. Basilan’s Charter also grants Basilan the power to fix charges to be paid by all watercraft landing at or using public wharves, docks, and levies or landing places. Said provision does not authorize Basilan to collect anchorage fees as can be shown by the need of Basilan to enact the amendatory ordinance. (Huh? Excuse me?) 3. Villanueva y Castaneda Jr. 154SCRA 142 Facts: On Nov. 7, 1961, the municipal council of San Fernando passed Resolution no. 218 allowing some 24 market vendors to construct their stalls along the vicinity of public market in San Fernando, Pampanga. The action was protested in Civil Case No. 2040 in the CFE of Pampanga and a preliminary injunction was issued to prevent construction of said stalls. While the case was pending, the municipal council then passed Resolution no. 29 which declared the subject area as a parking place and a public plaza, thereby impliedly repealing Resolution no. 218. In 1968, Civil Case no. 20 was decided and held that the land occupied by the market vendors was beyond the commerce of man and could not be the subject of private occupancy. The decision was apparently not enforced. The market vendors even claim that in 1971, the municipal government allotted them specific areas for which hey paid daily fees to municipal government. By 1982, the number of vendors has ballooned to 200. The clamor to enforce Resolution no. 29 grew. After an investigation by he municipal attorney, the OIC of the Office of the Mayor Vicente Macalino, ordered the demolition of the stall. The vendors protested (they apparently had little legal basis coz’ all they did was protest) Held: Resolution no. 29 must be enforced. The reason is that, under the Civil Code, public plazas are properties of public dominion to be devoted for public use. And even assuming that here was a lease agreement actually existing between the vendors and municipal government as the vendors claimed the resolution could have effectively terminated the agreement. It is settled that the police power cannot be surrendered or bargained away through the medium of a contract. In fact, every contract affecting the public interest suffers a congenial infirmity that it contains an implied reservation of the police power as a postulate of existing legal order. This power can be activated at any time to change the provision of contract, or even abrogate it entirely, for promotion and protection the general welfare. Such act will not militate against the impairment clause, which is subject to and limited by the police power.

4. De la Cruz v. Paras 123 SCRA 569 Facts: The Municipal Council of Bocaue, Bulacan passed Ordinance No. 84 which among others, state: “ Being the principal cause in the decadence of morality and because of their other adverse effects on the community as explained above no operator night club, cabarets and dance halls shall henceforth be issued permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be issued to any professional hostess, hospitality girls and professional dance for employment in any of the aforementioned establishments. The prohibition x x x shall include the prohibition in the renewal thereof.” Vicente de la Cruz and other club owners assailed this Ordinance (among the respondents was Edgardo L. Paras, the judge who ruled against them at the lower court and who was a former Associate Justice of the SC), claiming that1.) Municipality had no authority to prohibit a lawful business or calling and 2.) the Ordinance violated their right to due process and equal protection of the laws as they and the professional hostess, et. Al who works for them are being deprived of their property rights without due process of law. Held: The Court ruled in favor of de la Cruz Reasons. 1. In the guise of a police regulation, the Ordinance invaded personal or property rights personal in the case of those individuals desirous of patronizing their night clubs, and property in terms of the investments made and salaries to e earned by those therein employed. 2. Under the LGC of 1983, the Sanggunian Bayan is allowed to regulate, among others, the establishment and operation of billiard pools, theatrical performances, circuses and other forms of entertainment…”That the Municipal Council of Bocaue is allowed to regulate but not to altogether prohibit such establishment is all too clear. 5. Velasco y Villegas 120 SCRA 568 Facts: The City of Manila passed Ordinance no. 4964 which said, “It shall be prohibited for any operator of any barber shop to conduct the business of massaging customers or other persons in any adjacent room or rooms of said barber shop, or in any room or rooms within the same building where the barber shop is located as long as the operator of the barber shop and the room where massaging is conducted is the same person.” Tomas Velasco and other members of he Sta. Cruz Barber Shop Association deplored said ordinance as tantamount to deprivation of property, specifically of their means of livelihood without due process of law (Astor Villegas, the respondent, is the mayor of Manila at that time.) Held: Villegas’ contention doesn’t deserve even an inkling of sympathy. The reason is that, as indicated in the ordinance, the objective said Ordinance are: 1.) to be able to impose payment of the license fee for engaging in the business of the massage clinic under Ordinance no. 3659 as amended by Ordinance no. 4767, an entirely different measure than the ordinance regulating the business of barbershops and 2.) in order to forestall possible immorality which might grow out of the construction of separate rooms for massage of customers. The SC has been most liberal in sustaining ordinances based on the general welfare clause. 6. US v. Pompeya 31 Phil 245 Facts: On June 1, 1914, Silvestre Pompeya was charged with violation of municipality ordinance of Iloilo, E. O. No. 1 series of 1914 based on section 40 (m) of Municipal Cod. Said ordinance, as based from Act 1309, states. “With the approval of provincial governor, when a province of municipality is infested with ladrones or outlaws the municipality council is empowered to authorize the able-bodied male residents of the municipality between the ages of 18 to 50 years, to assist, for a period not exceeding 5 days in any one month, in apprehending ladrones, robbers and other lawbreakers and suspicious characters and to act as patrols for the protection of the municipality, not exceeding one day in each week.” Violation of said ordinance is penalized by a fine not less than P100 or 3 months imprisonment or both. Pompeya argues that the said ordinance violates the citizen provisional right to liberty. Held: Pompeya is just plain lazy (in other words, Pompeya is wrong). Way back during the feudal age, lords of manors have called upon their vassals to defend the very land they till upon. Even up to the time remote towns and countries have made it obligatory upon their citizens to defend their territory from felons. The ancient obligation to assist in the protection of peace and good order of the community is still recognized in all well-organized governments in the “posse comitatus” (power of the country). Posse comitatus is in other words common law and Act 1309 is statutory recognition of such common-law right. Overall, the State is simply exercising its police power. 7. Iloilo Cold Storage v. Municipal Council 24 Phil 471 Facts: The Municipal Council of Iloilo granted the Iloilo Ice Cold Storage Company (ICS) authority to construct an ice cold storage plant in the city of Iloilo. Some time later, residents within the vicinity of said plant complained of the smoke and fumes emitted by the smokestacks of the said plant. The Municipal Council thus ordered the ICS to elevate the subject smokestacks; otherwise the plant would be enforced to close down. ICS replied that the Municipal Council has no power under the Municipal Code to declare their plant as a nuisance. Only the counts may do so. Held: ICS is correct Reasons: 1.) it is conceded that 39(j) of the Municipal code empowers the Municipal Council to declare and abate nuisances, However, there is a distinction between a nuisance per se and nuisance per accidens. The first refers to those which are unquestionably and under all circumstances, nuisances. The second is well obviously, the opposite of the first. 2.) The question now is whether the Municipal Council has the blanket authority to declare anything as a nuisance. The court ruled in the negative, the reason being that everything would be at the uncontrolled will of the local

authorities, In order words, while the Municipal Council has the power to declare and abate nuisance it does not have the power to declares such nuisance as a fact and that it exists. Only the ordinary courts can determine the fact of nuisance. The ice plant in question can be definitely said to be not nuisance per se. 8. Technological developers, Inc. y CA 193 SCRA 147 Facts: Technology Developers Inc. (TDI) is a domestic private corporation engaged in the manufacture and export of charcoal briquette. It received an order from Acting Mayor Pablo Cruz ordering he full cessation of TDI’s plant in Guyong Sta. Maria, Bulacan. Also TDI Plant manager Armando Meneses was ordered to appear before the said mayor and produce the following a.) Building permit b.) Mayor’s Permit c.) Region III Pollution of Environment and Natural Resources Anti-Pollution Permit, and other documents. TDI was found to lack a Mayor’s Permit and the Region III-Pollution of Environment and Natural Resources AntiPollution Permit. Without previous and reasonable notice to TDI, Acting Mayor Cruz ordered the padlock of TDI’s plant. TDI was granted a writ of preliminary injunction against the Acting Mayor’s order. Upon motion for reconsideration, Acting Mayor Cruz presented evidence that TDI’s plant produce hazardous fumes which endangered the lives of the people living nearby. Based on the evidence presented, the trial court dissolved the writ. An appeal by TDI with the CA proves fruitless. Thus, TDI sought relief with the SC. Held: TDI's petition has no merit. The simple reason is that TDI failed to secure a Mayor’s Permit and Region IIIPollution of Environment and natural Resources Anti-Pollution Permit. The Temporary Permit it received from the national Pollution Control Commission has already expired. 9. US v. Toribio 15 Phil. 86 Facts: Act No. 1147 regulates the registration, branding and slaughter of cattle. Its provisions state among others that 1.) no large cattle shall be slaughter or killed for food at the municipal slaughterhouse except upon permit secured from the municipal treasure and 2.) any person violating this Act shall be punished by line of up to P500 or imprisonment of up to 6 months or both. Convicted under said Act, Luis Toribio insists that he had not violated any law since. If you read the provision quite carefully, there was no showing that the animal he slaughtered was committed inside a municipal slaughterhouse and that thereof, any animal he slaughters elsewhere does not require a permit from the municipal treasure. Held Toribio is wrong. The act primarily seeks to protect large cattle of the Philippines against them and to make easy the return and recovery of such cattle to their proper owners when lost. Strayed or stolen therefore the act can also be constructed as to require a permit for all slaughter of cattle whether in or out of a municipal slaughterhouse. And if as a result, the language of the statue is fairly susceptible of two or more constructions, that construction can be adopted which will tell most to give effect to the manifest intent of the law maker and promote the object for which the statue was enacted, and a construction should be rejected which will tend most to tender abortive other provision of the statue. Thus, Toribio’s construction of the law should not be adopted and be replaced instead with the omniscient SC. Another reason for the adoption of the second construction is that it is more attuned to the exercise of the police power of the state, in order to protect the community from the lost of service of such animals by their slaughter by improvised owners. 10. Solicitors Generally MMA No. 204 SCRA No. 837 Facts: On May 24, 1990 the Metropolitan Manila Authority (MMA) issued ordinance No. 11 series of 1991 authorizing itself “to detach the license plates of motor vehicles for traffic violation was not among the sanction imposed by the Metro Manila Commission under PD 1605 and was permitted only under the conditions laid down by Letter of Instruction 43 in the case of stalled vehicles obstructing the public street. It was there also observed that even confiscation of drivers licenses for traffic violations was not directly prescribe by the degree nor was it allowed by the decree to be impose by the commission Months later, several complaints again proliferated all over metro Manila concerning the confiscation of driver’s licenses and license plates. Several officers offered different defenses justifying the confiscation, the more popular once being that, the confiscations were valid pursuant to ordinance no.7 series of 1988 and that the Gonong decision should be interpreted to mean that only the confiscation of license plates are prohibited. Director General Cesar Nazareno of the PNP even insisted that his office has never authorized the removal of license plates of illegally parked vehicles and has in fact, event the directed full compliance of the Gonong decision in memorandum dated February 28, 1991. On July 2, 1991, the SC issued a resolution asking the solicitor general and the MMA to file their comments regarding the issue. The solicitor general involves the view that ordinance no.11 is null and void for begin unrivalled exercise of the delegated legislative power since PD 1605 does not permit and thus impliedly prohibits, the removal of license plates and the confiscation of driver’s license (Expresio unuis est exclusion alterius). The MMA however, invokes EO 392 the law providing for MMA’s creation, which vested in it among others the responsibility of promulgating resolutions and other is issuances of Metropolitan Wide Application, approval of a code of basic services requiring coordination and the exercise of its role making powers. Also MMA said that the ordinance cannot be attacked collaterally but only in a direct action challenging its validity. Held: The MMA is wrong. Reasons:

1) Considering the confusion over what law to follow regarding the confiscation, with some officers even declaring that Gonong decision was wrong the SC decided to rule on the issue squarely despite the fact that ordinance No.11 was not challenged in a direct action. Besides, the SC squarely said, said rule concerning direct actions is not an inflexible one. 2) As to the merits, the SC admits that the power to promulgate measures to promote the comfort and convenience of the public and to alleviate the worsening traffic problems due in a large part to stimulation of traffic rules (E.O. 392 and the general welfare clause LGC) is valid delegation of legislative power. But the real issue is not the validity of the delegation of legislative power. It is the validity of such exercise of delegated power. A municipal ordinance to be valid a) Must not contravene the Constitution b) Must not be unfair or oppressive c) Must not be partial or discriminatory d) Must not prohibit but may regulate trade and e) Must be general and consistent with public policy. 11. Acebedo Optical Co. Inc. v CA 329 SCRA 314 Facts: Acebedo Optical Co. applied with the office of the City Mayor Iligan for a business permit. City Mayor Camilo Cabili issued the said permit but subject to the following conditions. 1) Since it is a corporation, Acebedo cannot put up an optical clinic but only an optical store. 2) Acebedo cannot examine and/or prescribe reading and similar optical glasses for patients, because these are function of optical clinics. 3) Acebedo cannot sell reading and similar eye glasses without a prescription having been first made by an independent optometrist (not its employee) or independent optical clinic. Acebedo can only sell directly to the public without need of prescriptions, Ray ban and similar eye glasses. 4) Acebedo cannot advertise optical lenses and eyeglasses but can advertise Ray ban and similar glasses and frames. 5) Acebedo is allowed to grind glasses but only upon the prescriptions of an independent optometrist. The Samahan ng Optometrist ng Pilipinas (SOPI) however, ledged a complaint against Acebedo, alleging that Acebedo violated all the conditions impose on its business permit. Acebedo in response, protested the conditions impose by the city mayor stating that 1) The conditions impose are beyond what the city mayor can impose within his authority as they have no basis in any law or ordinance and 2) Acebedo’s acceptance of the business permit does not stop it from challenging the said conditions as ultra vires since a permit is not a binding contract. Held: Acebedo is correct. Reason: 1) The court has already ruled in SOPI v. Acebedo International that in the absence of a law prohibiting the hiring by corporation of optometrist, there is then no prohibition against the hiring by corporations of optometrist (this is in reference to the No.3 conditions of the business permit). The current optometry law (R.A. 8050) contains no such prohibitions, 2) a license of contract is not a contract between the sovereignty and the licensee or permitted and is not a property in the constitutional sense. A license is rather in the nature of a special privilege of permission or authority to do what is within its term. It is not anyway vested permanent or absolute. Therefore the business permit in the case at bar not being a contract Acebedo is not stopped from challenging the conditions therein as ultra vires. 3) Overall, the primary purpose of the optometry law in regulating the practice of optometry to insure that opt metrical services are too be rendered by competent and licensed person in order protect the health and physical welfare of the people from the dangers endangered by unlicensed practice. Such purpose may be fully accomplished although the person rendering the service is employed by a corporation. NOTE: In effect, the only condition challenged by Acebedo was condition No. 3 NOTE: Is optometry a profession or a mechanical art? Both the majority (as penned by just Purisima) and dissenting opinions (as penned by justice Vitug) could not agree on this question. Distinction is important because if optometry is a profession, then the optometry, Law should be reexamined as there is the danger that corporation , in hiring optometrist, may be perceived as engaged in the practice of optometry is a profession, them corporation might compromise the professional accountability of optometry as the motivation to sell eyeglasses may prevail over professional ethics. For instance, the control exercised by corporations over optometrist hired as employees might force said optometrist in sacrificing their professional opinion for the for the sake of selling the corporation’s products (All these arguments about optometry being a profession is BS. The SOPI is just afraid of the competition offered by corporation, but the Court, in its infinite wisdom not touch on that) B) Eminent Domain

1. Requisites for the Exercise *Sec. 19, LGC – Eminent Domain, An LGU 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 benefits of the poor and landless upon payment of just compensation pursuant to the provision of the Constitution and pertinent laws: provided however that the power of eminent domain may not be exercised unless a valid and definite offering has been previously made to the owner and such offer was not accepted. Provided further , that the LGU may immediately take possession of the property upon the filing of expropriation proceeding and upon making a deposit with the proper court of at least 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. *Art 32.IRR – Eminent Domain when exercise a) an LGU may through its chief executive and acting pursuant to an ordinance exercise the power of eminent domain for public use purpose welfare of the poor and landless upon payment of just compensation, pursuant to the provision the Constitution and pertinent laws b) 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. *Art, 36 IRR – a) if the LGU fails to acquire private property for public use purpose or welfare through purchase, LGU may expropriate said property through a resolution of the Sangguniang authorizing its chief executive to initiate expropriation proceeding b) The local chief executive shall cause the provincial, city or municipal attorney concern or: in his absence , the provincial or city prosecutor to file expropriation proceeding in the proper court in accordance with rule of Court and other pertinent laws c) The LGU may immediately take possession of the property upon the filing expropriation proceeding and upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated *Art 37, IRR – Payment. The amount to be paid for the expropriated property shall determined by the proper court based on the fair market value at the time of the taking of the property. *Rule 67, 1997 Rules of Civil Procedure This rule consists of 14 sections enumerating the procedure to be followed in eminent domain. Briefly the rule enumerates the following section: 1) The Complaint 2) entry of plaintiff depositing value with National or provincial Treasure (but this section No. 2 has been repealed by P.D. No. 42) 3) defenses and objection 4) order of condemnation 5) ascertainment of compensation 6) proceeding by commission 7) report by commission and judgment thereupon 8) action upon commissioner report 9) uncertain ownership/conflicting claim 10) right of plaintiff after judgment and payment entry not delayed by appeal, effect of reversal 12) cost, by whom paid 13) recording, payment and its effect 14) power of guardian in such proceedings. P.D. No.42 in a relation to Section 2 of Rule 67, effectively removes the discretion of the counting determining the provisional volume. What is to be deposited is an amount equivalent to the assessed value for taxation purposes. No hearing is required for the purpose. All that is needed is noticed to the owner of the property sought to be condemned. NOTE: So that you don’t have to bother reading the crappy 14 sections enumerated in Rule 76, let’s use instead the summary given by the Court regarding the 3 stages of every action of expropriation in NAPOCOR v. Jocson: 1) The first is concerned with the determination of the authority of the plaintiffs to exercise the power of eminent domain ant the property of its exercise in the context of the facts involved in the suit. It ends with an order if not of dismissal of the action, “of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of date of the filling of the complaint.” An order of dismissal, if this is to be ordained, would be a final one since it finally disposes of the action and leaves the Court with nothing more to be done on the merits. So too, would an order of condemnation be a final one, for thereafter, the Rules expressly state in the proceedings before the Trial Court, “no objection to exercise of the right of condemnation (or the propriety thereof) shall be filled or heard. 2) The second phase of the eminent domain action is concerned with the determination by the Court of the “just compensation for the property sought to be taken.” This is done by the Court with the assistance of not more than 3 commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners will be final too. It would finally dispose of the second stage of the suit, and leave nothing more for the Court to be done by the Court regarding the issue. 3) However, upon the filling of the complaint or at anytime thereafter, the petitioner has the right to take or enter upon the possession of the property involved upon compliance with P.D. 42 which requires the petitioner, after due notice to the defendant, to deposit with the PNB in its main office or any of its branches or agencies “an amount equivalent to the assessed value of the property for purposes of taxation.” The assessed value is that indicated in the tax declaration.

*DILG Opinion No. 10-1996 The researcher isn’t too keen in going to the DILG to get their opinions. “R” 2) Purposes of expropriation a. In the Philippines, regular provinces are authorized to exercise the power of eminent domain for the following purposes: the construction and extension of roads, streets, sidewalks, bridges, ferries, levees, wharves or piers; the construction of the public buildings including schoolhouses; and the making of necessary improvements in connection therewith; the establishment of parks, playground, plazas, market places, artesian wells or systems for the supply of water, and the establishment of cemeteries, crematories, drainage system, cesspools, or sewage systems. b. Municipalities in regular provinces are authorized to exercise the power of eminent domain for any of the following purposes: the construction or extension of roads, streets, sidewalks, bridges, ferries, levees, wharves or piers; the construction buildings, including schoolhouses, and the making of improvements on parks, playground, plazas, marketplaces, artesian wells, or system for the supply of Water, and the establishment of cemeteries, crematories, drainage system, cesspools, or sewage systems. 3) Illustrative cases: 1. National Power Corporation v. Jocson 206 SCRA 520 Facts: The NAPOCOR is a GOCC created and existing by virtue of RA No. 6395, as amended, for the purpose of undertaking the development of hydraulic power, the production of power from any source, particularly by constructing, operating and maintaining power plants, auxiliary plants, dams, reservoirs, pipes, mains, transmission lines, power station and other works for the purpose of developing hydraulic power from any river, creek, lake, spring and waterfall in the Philippines and supplying such power to the inhabitants thereof. In order to carry out these purposes, it is authorized to carry out the power of eminent domain. On March 30, 1990, NAPOCOR filled 7 cases of eminent domain against 7 private citizens before the RTC of Bacolod city for the acquisition of a right of way easement over portion of the parcels of land described in the complaint for its Negros Panay Interconnection Project, particularly the Bacolod Tamonton Transmission Line. The complaints uniformly a allege that petitioner urgently needs position of the affected land to enable it to construct its tower and transmission line in a manner that’s is compatible with the greatest good while at the same time causing the least private injury, the purpose for which the lands are principally developed will not be injured by the transmission lines as it will only acquire a right of easement thereon , and it had negotiated with the offered to pay defendants for the portion affected by the Bacolod Tamonton Transmission Line, but the parties failed to reach an agreement despite long and repeated negotiations, and be pray that, among others, that the RTC fix the provisional value of the portion of the parcels of land sought to be expropriated pursuant to Sec.2, Rule 67 of the Rules of the Court. On June 25, 1990, the RTC, after finding the existence of public interest which may be serve by the expropriation, fixed the provisional values of the 7 subject areas and directed the NAPOCOR to deposit the amounts with the PNB in escrow of the benefits of the defendants pending decision on the merits. The market values mentioned in the Order are the same values appearing in the fax declarations of the properties and the notices of Assessment issued by the Assessor. In compliance with said Order. NAPOCOR deposited the sum of P23, 180,828.00 with the PNB. Two of the defendants however, filled motions for reconsideration. The first one – filled by Jesus, Fernando, Michael and Ma. Cristina Gonzaga (the Gonzaga Four) – alleged that the provisional value of the property involved therein has been set much to low, the reason being that the expropriation of their areas “would render the remaining portion practically at a loss considering that the presence of the transmission lines will pose a danger to the inhabitants in the area as well as destroy the marketability of the remaining potion after expropriation. Moreover, the subject areas are located near several posh subdivisions. “The second one – filled by Louis Gonzaga, et, al. – sought for a re-evaluation of the areas owned by them as said areas were contiguous to the Gonzaga Four and were thus affected by the same condition. The RTC granted their motion and the NAPOCOR, in compliance, deposited the additional amount of P22,866,860,00 with the PNB. On July 18, 1990 the RTC Judge Enrique Jocson issued another Order increasing the amounts to be received as compensation on the part of the Gonzaga Four, Louis Gonzaga and 3 other defendants’ amounts. NAPOCOR in a response filled a complaint of grave abuse of discretion against the said judge, saying the increases he ordered are excessive and unconscionable. Nevertheless, due to the urgent need to complete the interconnection project as soon as possible, NAPOCOR deposited the order additional amounts. Still despite doing so, NAPOCOR claimed the Judge stubbornly refused to issue the writ of possession. Did the Judge act with grave abuse of discretion? Held: Yes. Reasons:

1. The Judge ignore P.D.No.42 ( see the info titled “ Rule 67,Rules of Court”, page 27 of this reviewer).He fixed the provisional values of the subject properties at their market values and daily opportunity profits, something which should not be done. The values should be fixed at an amount equivalent to the assessed value for taxation purpose. 2. More importantly, when the Judge, although erroneously, fixed the provisional values of the subject property and NAPOCOR in turn deposited the said amounts, the said Judge last plenary control over the order fixing the amount of the deposit and has no power to annul, amend or modify it matters of substance pending the course of the condemnation proceedings. The reason for this is that a contrary ruling would defeat the very purpose of the law which is to provide for a speedy and summary procedure whereby the peaceable possession of the property subject of the expropriation proceedings “may be secured without the delays incident to prolonged and vexatious litigation touching the ownership and value of such lands, which should not be permitted to delay the progress of the work.” 3. The Judge also, in effect, gave the defendants the final authority to determine just compensation when in fact; the determination of just compensation in expropriation proceedings is a judicial function. Moreover, he did not even appoint the 3 commissioners as mandated by Sec. 5 of Rule 67 of Court in order to ascertain and report to him the just compensation sought to be taken. He even ruled that the writ of possession shall be issued only after the defendants have received the amounts, which should not be the ease. All these show the gross ignore of the Judge and his orders and rulings must be reversed. 2. City Government of QC v. Ericta 129 SCRA 759 Facts: The Quezon City Council passed Ordinance No.6118 S-94 entitled “ Ordinance regulating the establishment, maintenance and operation of private memorial type cemetery or burial ground within the jurisdiction of Q.C and providing penalties for he violation thereof. “Said ordinance provides, among others: “Sec.9 .At least 6% o f the total area of the memorial park cemetery shall be seta side for a charity burial of deceased persons who are paupers and have been residents of Q.C for at least 5 years prior to their death, to be determined by competent City Authorities. The area so designated shall immediately be developed and should be open for operation not later than 6 months from the date of approval of the application.” For 7 years, the ordinance was not enforced by city authorities, but when the Q.C Council decided to enforce it by passing a resolution to that effect, Himlayang Pilipino, Inc. responded by filling a petition for declaratory relief, prohibition and mandamus with preliminary injunction with the CFI in Q.C praying that the ordinance be declared null and void. Said petition was granted. The question now raised is: Is the said ordinance a valid exercise of the police power? Held: No. Reasons: 1. The Charter of Q.C grants Q.C. the power to tax, fix the license fee and regulate such other Business, trade and occupation as may be established or practiced in the City. The power to regulate however, does not include the power to prohibit. A portion, the power to regulate does not include the power to confiscate. The ordinance not only confiscates but also prohibits the operation of a memorial park cemetery because under Sec. 13 of said ordinance, violation of its provisions is punishable by fine, imprisonment and/or that the permit to operate and maintain a private cemetery shall be revoked or cancelled. Sec.9 is not mere police regulation but an outright confiscation of private property without due process of law may, even without compensation. 2. When the Local Government Code of 1983 provided that a Sangguniang Panlungsod may provide, for the burial of the dead in such manner as prescribed by law or ordinance it simply authorized the city to provide its owned city owned land or to buy of expropriate private properties to construct public cemeteries. Expropriation however, requires payment of just compensation. Thus, Himlayang Pilipino Inc. cannot be said to have impliedly acknowledge sequestration of 6 % of its property without just compensation when it accepted the permits to operate from the city government. 3. Heirs of Juancho Ardona v.Reyes 125 SCRA 221 Facts: The Philippine Tourism Authority (PTA) filed 4 complaints with the CFI of Cebu City for the expropriation of some 282 hectares of rolling land situated in Barangays Malubog and Babag, Cebu City, under PTA’s express authority, as mandated in its Charter, “ to acquire by purchase, by negotiation or by condemnation proceedings any private land within and without the tourist zones “ for the development into integrated resort and sport complexes of selected and well- defined geographic areas with potential tourism value. The defendants, numbering 40, filed motions to dismiss on the ground that the taking was not for Public use, specifically that the there is no constitutional provision authorizing the taking of private property for tourism purposes. Moreover, the defendants claimed that the land they own subject of the expropriation is actually covered by certificate of land transfer (CLT) and emancipation patents Thereby making the lands expropriated within the coverage of the land reform area under P.D No.2The defendants argue that the agrarian reform program occupies a higher level in the order of priorities than other state policies like those relating to the health and physical well-being of the people. Held : The Ardona’s forty’s petition should be dismissed. Reasons: 1. The concept of public use is not limited to traditional purposes like the construction of roads, bridges, parks and the like. Public use is not use by the public.” It also mean, public well-fare and such a concept are broad, and inclusive. The values it represents are spiritual, as well as physical, aesthetic as well as monetary. It is within the power of the

legislature to determine that the community should be beautiful as well as healthy, spacious, as well as clean, well balanced as well as carefully patrolled. Once the object is within the authority of Congress, the right to realize it through the exercise of Eminent Domain is clear. As a general rule then, as long as the taking is public, the power of eminent domain comes into pay. 2. The fact that private concessionaires such as private firms, food outlets, etc. will lease the subject areas will not diminish the public character of the expropriation ( In other words, the place is open to anybody for as long as she or he can pay). 3. The records show that the only 2 of the 40 defendants have CLT’s or emancipation patents. And those CLT’s in their possession covers only less than 1 hectare of the 282 hectares intended fore expropriation. Moreover, the less-than 10-hectare portion of land is not even part of the resort and sports complex proper but is part of the 32 hectare resettlement are for all persons affected by the expropriation. Certainly, the human settlement needs of the many beneficiaries of the 32 hectare Resettlement area should prevail over the property rights of two of their compatriots. (This last sentence did not sit well which Justice Makasiar and 2 others dissenters because the two persons who had CLT’s were conveniently ignored). 4. City of Manila v. Chinese Community 40 Phil. 349 Facts: On Dec. 11.1916, the City of Manila presented a petition in the CFI of Manila praying that for the purpose of constructing a public improvement, namely the extension of Rizal Avenue, Manila, it is necessary for the City of Manila to acquire ownership in fee simple of certain parcels of land situated in the district of Binondo of said city within Block 83 of said district. The proposed extension of Rizal Avenue however will take a part of the Chinese cemetery, a public cemetery at that the Chinese Community of Manila thus contended that 1) the City of Manila cannot appropriate the cemetery or a portion thereof as said cemetery is public property, only private property may be expropriated and 2) there is no necessity for the improvement as a whole in the first place. Is the Chinese Community correct? Held: The Chinese community is correct as to its contention Reasons: 1. First of all, the matter regarding the extent of the court’s authority in expropriation cases must settled. An examination of Sec.243 in Act No.190 (the predecessor of today’s Rule 67 of the Rules of Court) reveals, “if the Court shall find upon trial that the right to expropriate the land exists, it shall then appoint commissioners.” The City of Manila contends that since expropriation is exclusively a Legislative function, the authority of the courts then is limited to determining the following a whether a law granting the expropriation exists and b) the value of the land in question. This contention is partly meritorious. There is no question that the court has authority to fix the values of the land question. As to the authority of determining whether a law granting the expropriation exists, a distinction must be made between a) laws granting special purpose and b) laws grating a general authority. If the law in question grants expropriation of a particular parcel of land and for a specific public purpose, then the Court’s would he without jurisdiction to inquire into the purpose of that legislation, regardless on whether or not the land in question is private or public. But if the Legislature should grant general authority to a municipal corporation then to expropriate private lands, for public purpose, the courts then would have Authority then to make inquiry and to hear proof, upon an issue properly presented concerning whether Or not the land in question was private and whether the purpose was in fact, public. In the instant case, since the City of Manila was given a general grant of authority to expropriate private lands under its Charter, the Court has authority to inquire on whether the exercise of such expropriation by the City of Manila is indeed public- in other words, the Court may inquire into the necessity of the expropriation. 2. As mentioned above public property may be expropriated provided a special grant of Authority for a particular parcel of land was passed by the Legislature. The City of Manila was not granted such a special authority. Therefore, the Chinese Cemetery or a portion thereof may not be expropriated. 3. It is axiomatic that the taking of private property for public use is not justified unless there is a genuine public necessity for the taking. In the present case, even if granting that a necessity exists for The opening of the street in question, the record contain no proof of the necessity of opening the same through the cemetery. The records show that adjoining and adjacent lands and have been offered to the city free of charge, which will answer every purpose of the city. 5. National Power Corporation v. CA 254 SCRA 577 Facts: In 1978, NAPOCOR took possession of a 21,995 sq. m. land which is a portion of Lot 1 Of the subdivision plan (LRC) Psd_116169 situated in Marawi City, owned by Macapanton Mangondato, Under the mistaken belief that it forms part of the public land reserved for use by NAPOCOR of Hydroelectric power purposes under Proclamation No. 1354 of the President of the Philippines dated Dec.3, 1974. NAPOCOR alleged that the subject land was until then possessed and administered by Marawi City so that in exchange for the city’s waiver and quitclaim of any right over the property, NAPACOR had paid the city a :financial assistance : of P40 sq. m. In 1979, when NAPOCOR started building its Agus 1 (Hydroelectric plant) project, Mangondato demanded compensation from NAPOCOR. NAPOCOR refused to compensate insisting that the property is public land and that it has already paid “financial assistance “to Marawi City in exchange for the rights over the property. Mangondato claimed that the subject land is his duly registered property covered by a TCT in his name that he was not privy to agreement between Marawi City and NAPOCOR and that any Payment made to said city cannot be considered as payment to him.

More than a decade later, NAPOCOR acceded to the fact that the property belongs to Mangondato. On August 14, 1990, NAPOCOR‘s National power Board (hereafter Power Board) passed a resolution resolving to pay Mangondato the base price of P40 per sq.m for only a 12,132 sq.m portion Of the subject property (P 485,280,001) plus 12% interest per annum from 1978 (P698, 808.00) pending A determination by NAPOCOR’s regional legal council on whether P100.00 is the fair market value of Property. Pursuant to the aforementioned resolution, Mangondato paid P1, 184.088.00. On May 17, 1991, the power Board passed a resolution resolving to pay Mangondato P100 per sq.m excluding the 12 % interest per annum. In a letter, Mangondato disagrees with the power board’s new resolution. He said that this property was worth even more than p300 per sq.m but he was willing to settle for P300 per sq.m greedy bastard). On May 25,192, NAPOCOR authorized its president to negotiate with Mangondato for the payment of P100 for the land plus 12 % per annum from 1978 less the payments already made 10 Mangodato and to Marawi City on the portion of his land. On July 7, 1992, the greedy bastard replied by filling a civil case seeking to recover possession of he property described in the complaint as Lot of the subdivision plan against NAPOCOR, the payment of a P15, 000 monthly rent until the surrender of the property, and the issuance of a TRO and a writ of preliminary mandatory injunction to restrain NAPOCOR from proceeding with any construction and/or improvements on Mangondato’s land or from committing any act of dispossession. On July 27, 1992, NAPOCOR countered by filling a complaint for eminent domain against Mangondato. The lower court then ordered, after duly appointing 2 commissioners, that NAPOCOR deposit the amount of P10, 997,500.00 with the PNB, provisionally fixing the value of the land at P500 per sq. m., P100 lower than the assessed value of the land appearing in its tax declaration for 1992 which was P100. In its decision, the lower court denied the recovery of possession by Mangondato but ordered NAPOCOR to pay the former a monthly rent of P 15,000 from 1978 to 1992 with 12 % interest per annum and condemning the property in favor of NAPOCOR effective July 1992 upon payment of P1000 per sq.m. or P21,995,000.00 as just compensation. NAPACOR contested the decision. In its assignment of errors, NAPOCOR said that the lower court erred in affirming that the just compensation for the property is its value in 1992, when the complaint was filed, and not its value in 1978, when he property was taken by petition, ergo, the court erred in fixing the value of just compensation at P1, 000 per sq.m instead of P40 per sq.m Held: NAPOCOR is wrong. Reasons: 1. The general rule in determining just compensation in eminent domain is the value of the property as of the date of the filling of the complaint Sec.4 rule 67, Rules of Court. Normally, the time of taking coincides with the filling of the complaint for just compensation. However, if the time of taking does not coincides with the time of the filling, the rule is that the value of the property should be computed from the time the property as taken into possession from the time he was deprived thereof while the value itself it’s determined at the time of the filling of the complaint. 2. The taking for the purpose of determining the value of the property, is determined when the following elements concur. a) The expropriator must enter a private property. b) The entrance into private property must be for more than a momentary period. c) The entry into the property should be under warrant or color of legal authority. d) The property must be devoted to a public use or otherwise informally appropriated or injuriously affected. e) The utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. In NAPOCOR’s case, element no.3 was not present when NAPOCOR took possession of the subject property in 1978 since NAPOCOR falsely believed that the subject property was public land reserved for its own use under Proclamation No. 1354. Only in 1992, when it initiated expropriation proceedings, did it obtain color of legal authority. The provisional value of the same would then be assessed as of 1992. 6. Province of Camarines Sur v. CA 222 SCRA 173 Facts: On Dec. 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur passed Resolution No.129,S-88, authorizing, the Provincial governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non- traditional agricultural crops and a housing project for provincial government employees. Pursuant to the resolution, the Province of Camarines Sur, through Governor Luis Villafuerte filed two separate cases of expropriation against Ernesto and Efren San Joaquin, with the RTC of Pill, Camarines Sur. Forthwith, and the said province filed a motion for the issuance of the write of possession. The San Joaquins failed to appear at the hearing of the motion. The San Joaquins filed a motion to dismiss on the ground of inadequacy of the price offered for their property. The court denied the motion to dismiss and authorized the Province to take possession of the said property upon the deposit with the Clerk of Court of the amount P5, 714.00, the amount provisionally fixed by the trial court to answer for damages that the San Joaquins may suffer in the event that the expropriation cases do not prosper.

The trial court ruled in favor of the Province. On appeal, the CA ruled in favor of the San Joaquins, stating among others that the trial court suspend the expropriation proceedings until after the province shall have submitted toe requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non- agricultural land (this is in deference to the Solicitor General’s view that the Province must first secure the approval of the Department of Agrarian Reform ( DAR) regarding the plan to expropriate the lands of the San Joaquins for use as a housing project. The province now defends its expropriation of the subject lands, claiming its authority from Sections 4 and 7 of the Local Government Code of 1983, and that the expropriation was for a public purpose. Held: The Province of Camarines Sur is correct. Reasons: 1. Public use now means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like are sort community or a housing complex. In the cage, the expropriation here is for public purpose. The establishment of a pilot center would inure to the direct benefit and advantage of the people of the Province. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of fisherman, farmers, and craftsmen’s would be enhanced. The housing project also satisfies the public purpose requirement of the Constitution. 2. As to the issue whether the approval of the DAR (for the purpose of realizing the housing project intent of the expropriation) is needed before expropriation proceedings can continue, the Court simply ruled that the same is not needed, simply because the L:GC of 1983 nor any other laws does not require the same. 7. Moday v. CA 268 SCRA 586 Facts: On July 23,, 1989, the Sangguniang Bayan of Bumawan in Agusan del Sur passed Resolution No. 43-89 authorizing the Municipal Mayor to initiate the 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 the Bunawan Farmers Center and other Government Sports Facilities. Said Resolution was approved by then Municipal Mayor Anuncio Bustillo and transmitted to the Sangguniang Panlalawigan. The Sangguniang Panlalawigan however disapproved the resolution on the ground that the “expropriation was unnecessary considering that there are still available lots in Bunawan for the establishment of government center.” Undaunted, the Municipality of Bunawan nevertheless filed a petition for Eminent Domain against Moday. After depositing the necessary amount in accordance with Rule 67 of the Rules of Court with the municipal treasurer, the Municipality filed a Motion to Take or Enter Upon the Possession of the Subject Matter. Despite Moday’s opposition and after the hearing of the merits, the RTC ruled in favor of the Municipality, saying that among others, that since the Sangguniang Panlalawigan failed to declare the Municipality’s resolution as invalid, the same should be deemed effective. (Wow, the RTC has 2 different meanings for ‘invalid’ and ‘disapproval’). An appeal to the CA also proved fruitless. In the meantime, the Municipality created 3 buildings on the subject property. Upon petition by Moday, the SC issued a TRO to prevent the Municipality from using the buildings it already constructed as well as constructing future buildings. Moday, in his petition to the SC, also adds that since the Sangguniang Panlalawigan disapproved the resolution, the same is void and thus the Municipality could not insist in pushing through with the expropriation. Held: Moday is wrong. Reasons: 1) The Municipality’s power to exercise the right of eminent domain is not disputed. Sec. 9 of the LGHC of 1983 states, “LGUs 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”. 2) A reading of Sec. 153, LGC of 1983 states, “If the Sangguniang Panlalawigan (SP) shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the Sangguniang bayan (SB) or the Mayor, it shall declare such ordinance, resolution or Executive Order invalid in whole or in part xxx. The effect of such action shall be to annul the ordinance, resolution or Executive Order in question in whole or in part. The action of the SP shall be final”. Said section gives the condition “if such resolution is beyond the power conferred upon by the Sangguniang Bayan or Mayor xxx”. Obviously, it is well within the power of the Municipality to exercise the right of eminent domain and thus, the SB has the capacity to promulgate a resolution pursuant to the exercise of such a right. The SP therefore, was without authority to disapprove said resolution. 3. Finally, Moday claimed the expropriation against his property was motivated by political revenge since he did not support Mayor Bustillo’s candidacy in the previous elections. If that were true, then Moday’s petition would have been meritorious since the taking of private property for public use must be genuine. The SC simply ruled that there was no evidence to support such claim. Besides, the records do not show that there was indeed another available property for the same purpose. C) Power of Taxation (Five requisites for the exercise, publication requirements and public hearing) Five requisites for the exercise:

1. Municipal revenue obtainable by taxation shall be derived from such sources only as are expressly authorized by law. 2. Taxation shall be just and uniform in each municipality. 3. It shall not be in the power of the municipal council to impose tax in any form, whatever upon goods and merchandize carried into the municipality, or out of the same, and any attempt to impose an import or export tax upon such goods in the guise of an unreasonable charge for wharfage, use of bridges or otherwise, shall be void. Note: Compare this with Sec 133 (e) of LGC 1991, “Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities and barangays shall not extend to the levy of the following xxx (e) taxes, fees and charges and other impositions upon goods carried into or out of, or passing through, the territorial jurisdictions of LGUs in the guise of charges of wharfage, tolls for bridges or otherwise, or other taxes, fees or charges in any form whatsoever upon such goods or merchandise.” 4. In no case shall the collection of municipal taxes be left to any person. 5. Except as allowed by law, municipal funds shall be devoted exclusively to local public purpose. Publication Requirements: 1. Two modes of apprising the public of a new ordinance according to Sec. 43 Local Tax Code (based on the Allied Thread v. City of Manila case) a. By means of publication in a newspaper of general circulation, or b. By means of posting of copies thereof in the local legislative hall or premises and 2 other conspicuous places within the territorial jurisdiction of the local government. 2. Publication of Tax Ordinances and Revenue Measures (Sec. 188, LGC of 1991) 3. Within 10 days after their approval, certified true copies of all provincial, city and municipal ordinances of revenue measures shall be published in full for 3 consecutive days in a newspaper of local circulation. Provided, however, that in provinces, cities and municipalities where there are no newspapers of local circulation, the same may be posted in at least 2 conspicuous and accessible places. Public Hearing: 1. Procedure for Approval and Effectivity of Tax Ordinances and revenue Measures; Mandatory Public Hearings (sec 187, LGC of 1991) - The procedure for the approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided that any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within 30 days from the effectivity thereof to the Secretary of Justice who shall render a decision within 60 days from the date of the receipt of the appeal. Provided, however, that such appeal do not have the effect of suspending the effectivity of ordinance and the accrual and payment of the tax, fee or charge therein. Provided, finally, that within 30 days after the receipt of the decision or the lapse of the 60-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction. 2. Power to Levy Other Taxes, Fees and Charges ( Sec. 186, LGC of 1991) Local governments may exercise the power to levy taxes, fees or charges on any base or subject not otherwise enumerated herein or taxed under the provisions of the National Internal Revenue Code (NLRC), as amended, or other applicable laws. Provided, that the taxes, fees or charges shall not be unjust, excessive, confiscatory or contrary to declared national policy; Provided further, that the ordinance levying such taxes, fees or charges shall not be enacted without any prior public hearing conducted for the purpose. 1.a Allied Thread Co. v. City Mayor of Manila 133 SCRA 338 Facts: Allied Thread Co is engaged in the business of manufacturing of sewing thread and yarn under duly registered trademark and labels. It operates its factories and maintains an office in Pasig, Rizal. In order to sell its products in Manila and other parts of the Philippines, Allied Thread Co engaged the services of a sales broker, Ker and Company Ltd, the latter deriving commission for every sale made for its principal. On June 12, 1974, the Municipal Board of the City of Manila enacted Ordinance No. 7516 imposing on manufacturers, importer, porters or producers, doing business in the city of Manila, business taxes based on gross sales recorded on a graduated basis. A s used by the Ordinance, “graduated basis” meant that “60% of all sales recorded in the principal offices of all businesses are located in the City of Manila, the same shall be taxable as well by said City. As for the branches of businesses, all sales recorded by it shall be taxable by the City of Manila provided they are also located in the said City.” The Mayor of Manila approved said Ordinance on June 15, 1974. In less than two months, however, the ordinance underwent a series of amendments. The last amendment was approved by the Mayor on July 29, 2974. Having affected by the aforementioned Ordinance, being manufacturers and sales brokers, Allied Thread Co filed a petition for declaratory relief contending that Ordinance 7516 is not valid or enforceable as the same is contrary to Sec

52 of PD 426, as clarified by Local Tax Regulation No 1-71. To quote said Regulation: “A local tax ordinance shall go into effect on the 15th day after approved by the local chief executive in accordance with Sec 41 of the Code. In view hereof and considering the provisions of Art 54 of the Code regarding the accrual of taxes a local tax ordinance intended to take effect on July 1, 1974 should be enacted by the local chief executive not later than June 15, 1974.” Otherwise stated, Allied Thread Co asserts that due to the series of amendments in the Ordinance 7516, the same Ordinance fell short of the deadline set forth by Sec 54 of PD 426 that “for an ordinance intended to take effect on July 1, 1974, it must be enacted on or before June 15, 1954.” As mentioned earlier, the last amendment of the ordinance was approved on July 29, 1974. Allied Thread also contended that the questioned Ordinance did not comply with the necessary publication requirement in a newspaper of general circulation as mandated by Sec43 of the Local Tax Code. Moreover, Allied Thread claimed that it should not be covered by the said Ordinance as amended; because it does not operate or maintain a branch office in Manila and that its principal office and factory are located in Pasig, Rizal. Held: Allied Thread is wrong. Reasons: 1. Ordinance No 7516 was approved by the City Mayor in June 15, 1974. Therefore, he made the deadline (barely). The subsequent amendments did not in any way invalidate nor move the date of its effectivity. To hold otherwise would limit the power of the defunct Municipal Board of Manila to amend an existing ordinance as exigencies require. 2. The Court is persuaded that there was substantial compliance of the law on publication. The City of Manila complied with the second mode of notice. 3. Allied Thread does its business through its agent, Ker and Company. The power to levy an excise tax upon the performance of an act or the engaging of an occupation does not depend on the domicile of the person subject to the excise nor upon the physical location of the property and in connection with the act or occupation taxed but depend upon the place in which the act is performed or occupation engaged in – in this case, upon the place where the respected sales transactions is perfected and consummated. 1.b Reyes v. CA 320 SCRA 486 Facts: The Sangguniang Bayan of San Juan, Metro Manila implemented 5 tax ordinances. Antonio Reyes and 2 others (the Reyes Three) filed an appeal with the Department of Justice alleging the constitutionality of these tax ordinances allegedly because they were promulgated without previous public hearings thereby constituting deprivation of property without due process of law. Secretary of Justice Franklin Drilon however, dismissed the appeal for being filed out of time since the last of the 5 ordinances took effect on Oct 29, 2992 while the Reyes Three filed their appeal only on May 21, 1993, way past the 30-day period from the effectivity thereof for appeal as allowed by Sec 187 of the LGC of 1993. The CA also ruled in favor of Franklin Drilon. Undaunted, the Reyes Three, in a petition for review with the SC, claim that notwithstanding the 30-day period imposed by the law for appeal, an ordinance enacted without the requisite of public hearing is unconstitutional and thus void from the beginning ( in other words, an action to declare anything unconstitutional does not prescribe since it is reduction as absurdum). Also the Reyes Three ask if constitutionality of Sec. 187 can be raised for the first time on appeal. (see ‘Public Hearing’ of this reviewer). Held: The Reyes Three are wrong: Reasons: 1. There is a reason why protests over tax ordinances are required to be done within certain time frames. A municipal tax ordinance empowers an LGU to impose taxes. The power to tax is one of the most effective instruments to raise needed revenues to finance and support the myriad activities of LGUs for the delivery of basic services essential to the promotion of the general welfare and enhancement of peace, progress and prosperity of the people. Consequently, any delay in tax measures would be to the detriment of the public. 2. While it is true that the public hearings are required to be conducted prior to the enactment of a tax ordinance, the Reyes Three did not show any proof that the Sangguniang Bayan of San Juan failed to conduct the required public hearings. The reason is that the lack of a public hearing is a negative allegation essential to a petitioner cause of action. Hence, as the Reyes Three are the ones asserting the lack of a public hearing, they have the burden of proof. Since the Reyes Three failed to rebut the presumption of validity in favor of the subject ordinances and to discharge the burden of proving that no public hearings were conducted prior to the enacted thereof, the Court is constrained to uphold their constitutionality or legality. This is true despite the fact that the Sanggunian has the control of records or the better means of proof regarding the alleged, and the Reyes Three are not relieved from the burden of proving their averments. 3. On the validity of Sec. 187 of LGC of 1991, the Court stresses that the constitutionality of an act of Congress will not be passed upon by the Court unless at the first opportunity that question is properly raised and presented in an appropriate case, and is necessary for the determination of the case, particularly where the issue of constitutionality is the very lis mota presented. The constitutionality of a statutory provision should not be entertained by the Court where it was not specifically raised below, insisted upon and adequately argued. The Court finds no real necessity in tackling the constitutionality of Sec. 187 of LGC of 1991. 2. Limitations on municipal taxing power

* Sec. 133, LGC of 1991. Common Limitations on the Taxing Power of LGUs. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: a. Income tax, except when levied on banks and other financial institutions b. Documentary stamp tax c. Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa, except as otherwise provided therein d. Customs duties, registration of fees of vehicles and wharfages on wharves, tonnage dues and all other kinds of custom fees, charges and dues except wharfage of wharves constructed and maintained by the LGU concerned. e. Taxes, fees, and charges and other impositions upon goods carried into, or out of, or passing through the territorial jurisdictions of LGUs in the guise of charges for wharfage, tolls for bridges ort otherwise, or other taxes, fees in any form whatsoever upon such goods and merchandise f. Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen g. Taxes on business enterprises certified by the BOI as pioneer or non-pioneer for a period of 6 or 4 years, respectively from the date of the registration. h. Excise taxes on articles enumerated under the NIRC, as amended, and taxes, fees or charges on petroleum products. i. Percentage on VAT sales, barters or exchanges or similar transactions on goods and services except as otherwise provided herein j. Tax on gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight by hire and common carriers by air, land or water, except as provided in this Code k. Taxes paid on premiums by way of reinsurance or retrocession l. Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles. m. Taxes, fees or other charges actually exported, except as otherwise provided herein n. Taxes, fees or charges on Countryside and Barangay Business Enterprise and Cooperatives duly registered under R.A. 6180 and R.A. 6938 otherwise known as the Cooperative Code of the Philippines respectively o. Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities, and LGUs *The Basic Rule of Municipal Taxing Power Under the now prevailing Constitution, where there is neither a grant nor a prohibition by statute, the tax power must be deemed to exist although Congress may provide statutory limitations and guidelines. The basic rationale for the current rule is to safeguard the viability and self-sufficiency of local government units by directly granting them general and broad tax powers. Nevertheless, the fundamental law did not intend the delegation to be absolute and unconditional; the constitutional objective obviously is to ensure that, while the local government units are being strengthened and made more autonomous, the legislature must still see to it that a) the taxpayer will not be overburdened or saddled with multiple and unreasonable impositions; b) each local government unit will have its fair share of available resources; c) the resources of the national government will not be unduly disturbed; and d) local taxation will be fair, uniform, and just (MERALCO v. Province of Laguna) 2.a Pepsi Cola Bottling Co. v. City of Butuan 24 SCRA 789 Facts: Pepsi Cola seeks to recover the taxes paid by it to the City of Butuan and collected by the letter. Pursuant to its Municipal Ordinance No. 110, as amended by Municipal Ordinance No. 122, both series of 1960, which Pepsi assail as null and void and to prevent the enforcement thereof. Pepsi maintains that the disputed ordinance is null and void because (1) it partakes of the nature of an important tax; (2) it amounts to double taxation; (3) it is excessive, oppressive and confiscatory; (4) it is highly unjust and discriminatory; and (5) section 2 of Republic Act No. 2264, upon the authority of which it was enacted, is an unconstitutional delegation of legislative powers. Said Ordinance, as amended, imposes as a tax on any person, association, etc., of P0.10 per case of 24 bottles of Pepsi-Cola and Pepsi paid under protest the amount of P4,926.63 from August 16 to December 31, 1960 and the amount of P9,250.40 from January 1 to July 30, 1961. Held: Pepsi’s contentions are partly tenable. Reasons: (1) The Second and last objections are manifestly devoid of merit. Indeed, independently of whether or not the tax in question, when considered in relation to the sales tax prescribed by Acts of Congress, amounts to double taxation, on which the Court need not and does not express any opinion-double taxation, in general, is not forbidden by the Constitution. The Philippines has not adopted, as part thereof, the injunction against double taxation found in the Constitution of the United States. Then, again, the general principle against , delegation of legislative powers, in consequence of the theory of separation of powers is subject to one wellestablished exception, namely; legislative powers may be delegated to local government to which said theory does not apply in respect of matters of local concern.

(2) The third objection is, likewise, untenable. The tax of “P0.10 per case of 24 bottles,” of soft drinks of carbonated drinks in the production and sale of which plaintiff is engaged or less than P0.0042 per bottle is manifestly too small to be excessive, oppressive, or confiscatory.

(3) The first and the fourth objection merit, however, serious consideration. As amended by Ordinance no. 122, the tax is imposed only upon ”any agent and/or consignee of any person, association, partnership, company or corporation engaged in selling… soft drinks or carbonated drinks.” As defined in section 3-A of Ordinance no. 122, a consignee of agent shall mean any person, association, partnership, company or corporation who acts in the place of another by authority from him or one entrusted with the business of another or to whom is consigned or shipped no less than 1,000 cases of hard liquors or soft drinks every month for resale, either retail or wholesale.” As a consequence, merchants engaged in the sale of soft drinks of carbonated drinks, are not subjected to the tax, unless they are agents and/or consignee of another dealer, who, in the very nature of things, must be one engaged in the business outside the City. The intention to limit the application of the ordinance to soft drinks and carbonated drinks brought into city from outside thereof becomes apparent. Viewed from this angle, the tax partakes of the nature of an import duty, which is beyond defendant’s authority to impose by express provision of law. The tax in question would still be invalid, as discriminatory, and hence, violative of the uniformity required by the Constitution and the law thereof, since only sales by “agents of consignee” of outside dealers would be subject to tax. Sales by local dealers, not acting for or on behalf of other merchants, regardless of the volume of their sales, and even if the same exceeded those made by said agents or consignee of producers or merchants established outside the City of Butuan, would be exempt from the disputed tax. 2. b Province of Bulacan v. CA 299 SCRA 442 Facts: on June 26, 1992, the Sangguniang Panlalawigan of Bulacan passed Provincial Ordinance No. 3, known as “an Ordinance Enacting the Revenue Code of the Bulacan Province.” Which was to take effect on July 1, 1992. Section 21 of the ordinance provides as follows: Sec. 21. Imposition of Tax. There is hereby levied and collected a tax of 10% of the fair market value in the locality per cubic meter of ordinary stones, sand, gravel, earth and other quarry resources, such. But not limited to marble, granite, volcanic cinders, basalt, tuff and rock phosphate. Extracted from public lands or from bed of seas, lakes, rivers, streams, creeks and other public waters within its territorial jurisdiction.” Pursuant thereto, the Provincial Treasurer of Bulacan, in a letter dated November 11, 1993, assessed private respondent Republic Cement corporation (hereafter Republic Cement) O2,524,692.13 for extracting limestone, shale and silica from several parcels of private land in the province during the third quarter of 1992 until the second quarter of 1993. Believing that the province, on the basis of above-said ordinance, had no authority to impose taxes o quarry resources extracted from private lands, Republic Cement formally contested the same on December 23, 1993. The same was however, denied by the Provincial Treasurer on January 17, 1994. Republic Cement consequently filed a petition for declaratory relief with the Regional Trial Court of Bulacan on February 14, 1994. The province filed a motion to dismiss Republic Cement’s petition, which was granted by the trial court on May 13, 1993, which ruled that declaratory relief was improper, allegedly because a breach of the ordinance had been committed by Republic Cement. On July 11, 1994, Republic Cement filed a petition for certiorari with the Supreme Court seeking to reverse the trial court’s dismissal of their petition. The Court, in a resolution dated July 27, 1994, referred the same to the Court of Appeals. In the interim, the Province of Bulacan issued a warrant of levy against Republic Cement, allegedly because of its unpaid tax liabilities. Negotiations between Republic Cement and the province resulted in an agreement and modus vivendi on December 12, 1994, whereby Republic Cement Agreed to pay under protest P1,262,364.00, 50% of the tax assessed by petitioner, in exchange for the lifting of the warrant of levy. Furthermore, Republic Cement and the Province Agreed to limit the issue for resolution by the Court of Appeals to the question as to whether or not the provincial government could pursuant to Section 21of Provincial Ordinance No. 3. The CA ruled that the Province had no authority to issue Ordinance No. 3, hence this appeals to the SC. Held: (1)

(2)

The decision of the CA must be sustained. Reasons: Ordinance No. 3 is based on Sec. 158 of the LGC of 1991 which states: “The province may levy and collect not more than ten percent (10%) of fair market value in the locality per cubic meter of ordinary stones, sand, gravel, earth and other quarry resources, as defined under the National Internal Revenue Code, as amended, extracted from private lands. Need we say more? It is true that under Sec. 133 (h), the exercise of the taxing powers of provinces, cities, municipalities and barangays shall not extend to the levy of exercise taxes on articles enumerated under the National Internal Revenue Code (NIRC). Section 151 of the NIRC, by the way levies excise taxes on all quarry resources, regardless of origin, whether extracted from public or private land. Thus an LGU may not ordinarily impose taxes on stones, sand, earth and other quarry resources, as the same are already taxed under the National Internal Revenue Code, However an LGU can still impose a tax on stones, sand, gravel, earth and other quarry resources extracted from public land because it is

expressly empowered to do so under the LGU. But again it only says “Public” The Province of Bulacan cannot tax Republic Cement because it’s extracting minerals from “private” lands. Don’t forget, public versus private. 3. Other Illustrative Cases: 3. a Basco v. PAGCOR 197 SCRA 52 Facts: Atty. Humberto Basco, the Chairman on the committee of Laws of the City Council of Manila, and 3 other lawyers, (the Basco Four) filed a petition seeking to annul the Phil. Amusement and Gaming Corporation (PAGCOR) because among others. 1) It waived the Manila City government’s right to impose taxes and license fees, which is recognized by law and 2) for the same reason stated in the immediately preceding paragraph, the law has intruded into the local government’s right to impose local taxes and license fees in contravention of the constitutionally enshrined principle of the local autonomy. Held: The Basco four contentions are all unmeritorious Reasons: 1) Any petitioner assailing the constitionality of the law must realize that said law is armed with the presumption of constitionality. With this in mind, the petitioner has the burden of proof to show that the law he wishes to assail is unconstitutional. 2) The Basco Four assailed Sec. 13 par. 2 of P.D 1869 which states that LGUs cannot impose on PAGCOR taxes on any kind (except for the 5% franchise tax) Said provision, they claim is a violation of local autonomy it waives the City of Manilas right to impose taxes and license fees. The court answered that. a) The City of Manila being a Mere municipal corporation has no inherent right to impose taxes. Thus, the Charter or statute must plainly show am intent to confer that power or the municipality cannot assume it. Its power to tax therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the inherent power to tax. b) The charter of the City of Manila is subject to control by congress. It should be stressed that “municipal corporation are mere creatures of Congress” which has the power to “create and abolish municipal corporation” due to its legislative powers” Congress, therefore, has the power of control over Local. And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemption or even take back the power. c) The City of Manila’s power to impose licenses fees on gambling has long been revoked. As early as 1975, the power of local government to regulate gambling thru the grant of “franchise, licenses or permits” was withdrawn by P.D. No. 771 and was vested exclusively on the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All its stocks are owned by the National Government: it has dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local Government. (3) The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal government. This doctrine emanates from the “supremacy” of the National Government over local governments. Otherwise, mere creatures of the state can defeat National policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as “a tool for regulation.” (4) The Basco Four cannot also invoke Article X, sec 5 of the 1987 Constitution which says, “Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall exclusively to the local government.” The power of local government to “impose taxes and fees” is always subject to “limitations” which Congress may provide by law. 3. b Mactan Cebu Int’l Airport v. Marcos Facts: Mactan Cebu International Airport Authority (MCIAA) was created by virtue of Republic Act No. 6958 mandated to “principally undertake to economical, efficient and effective control, management and supervision of the Mactan International Airport in the province of Cebu and the Lahug Airport in Cebu City,… and such other Airports as may be established in the province of Cebu. It is also mandated to a) encourage, promote and develop international and domestic air traffic in the Central Visayas and Mindanao regions as a means of making the regions centers of international trade and tourism, and accelerating the development of the means of transportation and communication in the country; and b) upgrade the service and facilities of the airports and to formulate internationally acceptable standards of accommodation and service. Since the time of its creation, petitioner MCIAA enjoyed the privilege of exemption from payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies and instrumentalities in accordance with Section 14 of its charter.

However, on Oct. 11, 1994, the city of Cebu claimed started demanding payment on parcels of land belonging to MCIAA. The city of Cebu claimed that MCIAA cannot rely on Sec. 14 of its charter because- as MCIAA is a GOCC- its tax exemption privilege has been withdrawn by Sections 193 and 234 of the LGC as follows; “Sec. 193. Withdrawal of Tax Exemption Privilege. Unless otherwise provided in this code, tax exemptions or incentive granted to, or presently enjoyed by all persons whether natural or juridical, including government-owned or controlled corporations, except local water districts, cooperatives duly registered under RA No. 6938, non-stock, and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code x x x Sec. 234. Exemptions from Real Property taxes. x x x except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by all persons, whether natural or juridical, including government – owned or controlled corporation, are herby withdrawn upon the effectivity of this code. For its defense, MCIAA relies on Sec. 133 (o) of the LGC which says “unless otherwise provided herein (in this Code), the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following x x x (o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities, and LGUs. MCIAA relies on the ruling of Basco v. PAGCOR, which stated that local governments have no power to tax instrumentalities of the National Government and that PAGCOR, it is performing both proprietary and government functions. MCIAA claims that like PAGCOR, it is performing a governmental function as well (read the first paragraph above again), thus, it should be exempt from taxation by the City of Cebu. Held: MCIAA is wrong. Reasons: 1) Basco v. PAGCOR was decided before the enactment of the LGC of 1991. It thus finds no application in this case because the arguments here rely heavily on said LGC. 2) Then there is the curious Sec 234 which states, “Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof had been granted, for reconsideration or otherwise, to a taxable person x x x except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or controlled corporations, are hereby withdrawn upon the effectivity of this code. “Can MCIAA claim that is parcels of land are basically owned by the Republic of the Philippines in Cebu thus lands are exempt from real property tax? The court answered no, because under MCIAA’s charter, all lands owned by existing airports belonging to the Republic of the Philippines in Cebu are transferred to the MCIAA, meaning, there was an absolute conveyance of ownership to MCIAA. The Republic of the Philippines is no longer the owner of the lands in question, thus MCIAA is not spared from real property taxes. 3) While MCIAA is correct in invoking Sec 133 (o) above which disallows LGUs to tax the National Government, its agencies and instrumentalities, and LGUs, Sec 133 (o) is also qualified by the phrase, “unless otherwise provided herein.” (in this code). The tax imposed upon MCIAA concerns real property taxes. Thus MCIAA is also subject to Sec 234 and for reasons mentioned in no.2). MCIAA is not spared from property taxes. 4) The ultimate fact remains that Sec 193 of the LGC of 1991 has repealed the tax exemption privilege enjoyed by MCIAA as stated in Sec. 14 of its charter. This policy is consistent with the State’s policy to ensure genuine and meaningful autonomy to LGUs. NOTE: the “Republic of the Philippines” is not the same as “National Government” (Wow!). To better understand this situation, let’s have a rundown of some boring definitions: a) Republic of the Philippines – synonymous with “Government of the Republic of the Philippines”; the corporate government entity through which the function of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial city, municipal or barangay subdivisions or other forms of local government. b) National Government – the entire machinery of the central government (executive, legislative and juridical) as opposed to the forms of local governments. c) Agency – any of the various units of the Government, including a department, bureau, office instrumentality, or GOCC or a local government or a distinct unit therein d) Instrumentality – any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy; usually though a charter e.g. regulatory agencies, chartered institutions and GOCCs 3. c MERALCO v Province of Laguna 306 SCRA 750 Facts: On various dates. Certain municipalities of the Province of Laguna, including, Biñan, Sta. Rosa, San Pedro, Luisiana, Canluan and Cabuyao, by virtue of existing laws then effect, issued resolution through their respective municipal councils granting franchise in favor of petitioner Manila Electric Company (“MERALCO”) for the supply of electric light, heat and power within their concerned areas. On 19 January 1983, MERALCO was likewise granted a

franchise by the National Electrification Administration to operate an electric light and power service in the Municipality of Calamba, Laguna. On 12 September 1991, Republic Act No. 7160, otherwise known as the “Local Government, Code of 1991,” was enacted to take effect on 01 January 1992, enjoying local government units expressed therein own sources of revenue and to levy taxes, fees and charges, subject to the limitations expressed therein, consistent with the basic policy of local autonomy. Pursuant to the provisions of the Code, respondent province enacted Laguna Provincial Ordinance No. 01-92, effective 01 January 1993, imposing a tax on business enjoying a franchise. On the basis of the above ordinance, respondent Provincial Treasurer sent a demand letter to MERALCO for the corresponding tax payment. MERALCO, however, contented that the imposition of a franchise tax under Section 2.09 of Laguna Provincial Ordinance No. 01-92, insofar as it concerned MERALCO, contravened the provisions of Section 1 of P.D. 551 which read: “Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax payable by all grantees of franchises to generate, distribute and sell electric current for light, heat and power shall be two per cent (2%) of their gross receipt received from the sale of electric current and from transactions incident to the generation, distribution and sale of electric current. Such franchise tax x x x shall any provision of the Local Tax Code or any other law to the contrary notwithstanding, be in lieu of all taxes and assessments of whatever nature imposed by any national or local authority on earnings, receipt, income and privilege of generation, distribution and sale of electric current. (Note the italicized sentence) MERALCO now contents that 1) the phrase “shall be in lieu of all taxes x x x in sec 1 of P.D. 551 prevents the province of Laguna from imposing franchise taxes on it 2) whether the ordinance is violative of the non-impairment clause and 3) whether the LGC of 1991 has repealed, modified or amended P.D. 551. Held: All contentions by MERALCO are incorrect. Reasons: 1) Indicative of the legislative intent to carry out the Constitutional mandate of vesting broad tax powers to local government units, the Local Government Code has effectively withdrawn under Section 193 thereof, tax exemptions or incentives therefore enjoyed by certain entities. This is also supported by Section 137 which states, “Notwithstanding any exemption granted by any law or other special law, the province may impose a tax on business enjoying a franchise x x x and also by Sec. 534, the repealing clause, which declares. “All general and special laws, acts, city charters, decrees, executive orders, proclamation and administrative regulation, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.” 2) In the recent case of the City Government of San Pablo, etc., et al. vs. Hon. Beinvenido V. Reyes, et. Al., the Court has held the phrase “in lieu of all taxes” has to give way to the peremptory language of the Local Government Code specifically providing for the withdrawal of such exemptions, privileged, and that “upon the effectivity of the Local Government Code all exemptions except only as provided therein can no longer be invoked by MERALCO to disclaim liability for the local tax.” 3) While the court has, not too infrequently, referred to tax exemptions contained in special franchises as being in the nature of contracts and a part of the inducement for carrying on the franchise, these exemptions, nevertheless, are far from being strictly contractual in nature. Contractual tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly, be invoked, are those agreed to by the taxing authority in contracts, such as those contained in special government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. Truly, tax exemptions of this kind may not be revoked without impairing the obligations of contracts. These contractual tax exemptions, however, are not to be confused with tax exemptions granted under franchise. A franchise partakes the nature of a grant which is beyond the purview of the non-impairment clause of the Constitution. Indeed, Article XII, section 11, of the 1987 Constitution, like its precursor provisions in the 1935 and the 1973 Constitutions, is explicit that no franchise for the operation of a public utility shall be granted except under the condition that such privilege shall be subject to amended, alternation or repeal by Congress as and when the common good so requires. 3. d Municipality of San Fernando v. Sta. Romana 149 SCRA 27 Facts: The Municipality of San Fernando, La Union which was undertaking a cement road construction around its Supermarket and other municipal projects, needed sufficient gravel and sand from their source, the Municipality of Luna, La Union but its trucks sent to the latter municipality to haul said road construction materials were allegedly charged unreasonable fees per truck load. Said fees charged by Luna were based on Section 1 of Ordinance No. 1 enacted by it which reads, “There shall be collected from any person, partnership or corporation engaged in any business, occupation or calling or enjoying any privilege hereunder enumerated the following municipal license and/or fees x x x “ On March 18, 1968, the Municipality of San Fernando represent by its incumbent Municipal Mayor Lorenzo L. Dacanay filed a complaint for injunction with Writ of preliminary Injunction at the Court of First Instance of La Union against the Municipality of Luna and its officials and authorized agents, praying that the Municipality of Luna be immediately enjoined from preventing San Fernando’s its from obtaining road construction from Luna, La Union and from levying unreasonable and after trial to make the injunction permanent. The lower court granted said petition.

The main issue in this case is whether the Municipality of Luna has the authority to pass Ordinance No.1 and impose the license fees in question. Held: The answer is No, but for a surprising reason. The reason is that this issue in the case at is governed by President Decree No. 231, enacting a Local Tax Code (for Provinces, Cities, municipalities and Barrios) which took effect on July 1, 1973. The Code provides: “SEC 10. Sand and gravel fee. The province may levy and collect a fee of not exceeding twenty-five centavos per cubic meter of ordinary stones, sand, gravel earth and other materials selected from lakes, rivers, streams, creeks and other public waters within the jurisdiction of the province. “SEC 22. Specific limitations on power. Except as otherwise provided in this Code, the municipality shall not levy the following: (a) Taxes, fees and charges that the province or city is authorized to levy in this Code x x x” Section 10 of aforesaid decree was later amended by Presidential Decree No. 426 dated March 1974, and now reads: Sand and gravel tax. The province may levy and collect a tax of not exceeding seventy-five centavos per cubic meter of ordinary stones, sand, gravel earth and other materials extracted from public and private lands of the government or from the beds of seas, lakes, streams, creeks, and other public waters within the jurisdiction of the province. The municipality where the materials extracted shall share in the proceeds of the tax herein authorized at a rate of not more than thirty per cent thereof as may be determined by the Provincial Board. The permit to extract the materials shall be issued by the Direction of Mines or his duly authorized representative and the extraction thereof shall be governed by regulations issued by the Director of Mines. Under the above-quoted provisions of the Local Tax Code, there is no question that the authority impose the license fees in dispute, properly belongs to the province concerned and not to the Municipality of Luna which is specifically prohibited under Section 22 of same Code “from levying fees and charges that the province or city is authorized to levy in this Code. “On the other hand, Municipality of San Fernando cannot extract sand and gravel from the Municipality of Luna without the corresponding taxes or fees that may be imposed by the province of La Union. NOTE: This is a lousy case. The LGC wasn’t even used as legal basis in the decision, but then was an old case. What if we decide this case using the LGC of 1991? Was San Fernando forming a governmental or proprietary function in constructing roads? In either case, based on these of facts alone, can the municipality of Luna tax the municipality of San Fernando? 3. e Compania General de Tabacos v. City of Manila 8 SCRA 367 Facts: Compania General Tabacos de Filipinas (Tabacalera for short) filed this action in the court of First Instance of Manila to recover from appellants, City of Manila and its Treasurer, Marcelino Sarmiento also hereinafter referred to as the city the sum of P15, 280.00 allegedly overpaid by it as on its wholesale and retail sales of liquor for the period from the third quarter of 1954 to the second quarter of 1957, inclusive, under Ordinances Nos. 3634, 3301, and 3816. Tabacalera’s action for refund is based on the theory tat, in connection with its liquor sales, it could pay the license fees prescribe by Ordinance No. 2258 but not the municipal sales taxes imposed Ordinances Nos. 3634, 3301, and 3816; and since it already paid the license fees aforesaid, the sales paid by the amounting ton sum of P 15,208.00 under the three ordinance mentioned heretofore is overpayment made by mistake and therefore refundable. The city, on the other hand, contends that for permit issued to it granting proper authority to conduct or engage in the sale of alcoholic beverages or liquors” Tabacalera is subject to pay the license prescribed by Ordinance No. 3358, aside from the sales taxes imposed by Ordinances Nos. 3634, and 3816 that even assuming that Tabacalera is not subject to the payment of the sales taxes prescribed by the said three ordinances as regards its liquor sales, it is not entitled to the refund for the following reasons: 1) the said amount was paid by the plaintiff voluntarily and without protest: 2) If at all the alleged overpayment was made by mistake, such mistake was one of law and impose from the plaintiff neglect of duty; 3) The said amount had been added by the plaintiff to the selling price of the liquor sold by it and passed to the consumers; 4) The said amount had been already expended by the defendant City for public improvement and essential services of the City government, the benefits of which are enjoyed and being enjoyed by the plaintiff. Held: Tabacalera’s contentions are untenable. What is collected under Ordinance No. 3358 is a license fee for the privilege of engaging in the sale of liquor a calling in which it is obviously not anyone or anybody may freely engage, considering that the sale of liquor indiscriminately may endanger public health and morals. On the other hand, what the three ordinances mentioned herefore impose is a tax for revenue purposes based on the sales made of the same article or merchandise. It is already settled on this connection that both a license fee and a tax may be imposed on the same business or occupation for selling the same article, this not being in violation of the rule against double taxation. This is precisely the case with the ordinances involved in the case at bar. 3. f Ty v. Trampe 250 SCRA 500 Facts: On 06 January 1994, the Municipal Assessor of Pasig sent a notice of assessment concerning certain real properties owned by Alejandro B Ty located in Pasig, Metro Manila. A similar notice for the same reason was also sent to MVR Picture Tube. Inc. located in Pasig, Metro Manila. In a dated 18 March 1994, petitioners Ty and MVR Picture Tube

Inc. (Ty and Company) through counsel “requested the Municipal Assessor to consider the subject assessments.” Not satisfied, Ty and Company on 29 March 1994 filed with the RTC of the National Capital Judicial Region, Branch 163, presided over by Judge Aurelio Trampe, a Petition for Prohibition with prayer for a restraining order or writ of preliminary injunction to declare null and void the new tax assessment and to enjoin the collection of real estate taxes based on said assessments. The judge denied said petition. Ty and Company now contends that 1)the Court gravely erred in holding that Presidential decree No. 921, including its implementing rules and regulations, were expressly repealed by R.A 7160 the Court erred in not declaring the confiscatory and oppressive nature of the assessments as illegal ab initio and unconstitutional constituting a deprivation of property without due process of law and the Court erred in declaring that Ty and company failed to exhaust administrative remedies provided the law by not paying tax although under protest instead (Sec. 252, LGC). To put it in words justice Panganiban, who loves to ask a question before writing his decisions, are the increased real state taxes imposed by and collected by the Municipality of Pasig, effective from the year 1994, legal? (With all due respect to the good Justice, the real question is: Does the municipal, provincial city assessor [as the case may be]. Acting alone, have the authority to prepare the Schedule of Values real property as mandated by R.A. 7160, or is the schedule of Values prepared by a group of assessors as mandated by P.D. 921? Obviously, we have 2 conflicting laws here). Held: Ty and Company’s petition is meritorious. Reasons: 1) To resolve Ty and Company’s first contention, we have to examine certain 3 laws. The first is R.A. 15 of P.D. 464, the Real Property Tax Code which states, “Preparation of Schedules of Value before any general revision of property assessments is made as provided in this Code, there shall be prepared for the province or a schedule of Market Value for the different classes of real property therein situated in such form and detail as shall be prescribed by the Secretary of Finance.” The second is Section 9 of P.D. 921 which states, “Preparation of Schedule of Value for Real Property within the Metropolitan Area. The Schedule of Value that will serve as the basis for the appraisal and assessment for taxation purposes of real properties located within the Metropolitan Area. Shall be prepared jointly by the City Assessors of the Districts created under Section one hereof, with the City Assessors of Manila acting as Chairman, in accordance with the pertinent provisions of Presidential Decree No. 464, as amended, otherwise known as the Real Property Tax Code, and the implementing rules and regulations thereof issued by the Secretary of Finance.” The second is Section 9 of P.D. 921 which states. “Preparation of Schedule of Values that will serve as the basis for the appraisal and assessment for taxation purposes of real properties located within the Metropolitan Area shall be prepared jointly by the City Assessors of the Districts created under Section one hereof, with the City Assessor of Manila acting as Chairman, in accordance with the pertinent provisions of Presidential Decree No. 464, as amended, otherwise known as the Real Property Tax Code, and the implementing rules and regulations thereof issued by the Secretary of Finance. Also, we have Section 1, same P.D., which states, “Division of Metropolitan Manila into Local Treasury and Assessment Districts. For purposes of effective fiscal management, Metropolitan Manila is hereby divided into the following Local Treasury and Assessment Districts: First District Second District Third District Fourth District

Manila Quezon City, Pasig, Marikina, Mandaluyong and San Juan Caloocan City, Malabon, Navotas and Valenzuela Pasay City, Makati, Parañaque, Muntinlupa, Las Piñas, Pateros and Taguig

Manila, Quezon City, Caloocan City and Pasay City shall be the respective Centers of the aforesaid Treasury and Assessment Districts. The third is Sec. 212 of the LGC, 1991 which states, “Preparation of Schedule of Fair Market Values. Before any general revision of property assessment is made pursuant to the provisions of this Title, there shall be prepared a schedule of fair market values by the provincial, city and the municipal assessors of the municipalities within the Metropolitan Manila Area for the different classes of real property situated in their respective local government units for enactment by ordinance of the sanggunian concerned x x x.” The question now is, who will prepared the schedule of Fair Market Values: the guys under P.D. 921 of the guys under LGC of 1991? It should be noted that the LGC did not expressly repeal P.D. 921. Did the former impliedly repeal the latter then? The court answered no. I t is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed unless it is convincingly and unambiguously demonstrated that the two laws are so clearly repugnant and patently inconsistent that they cannot co-exist. This is based on the rationale that the will of the legislature cannot be overturned by judicial function of construction and interpretation. Courts cannot take the place of Congress in repealing statutes. Their function is to try to harmonize, as much as possible, seeming conflicts in the laws and resolve doubts in favor of their validity and co-existence. It is obvious that harmony in these provisions is not only possible, but in fact desirable, necessary and consistent with the legislative intent and policy. By reading together and harmonizing these two provisions, we arrive at the following steps in the preparation of the said schedule, as follows:

a) The assessors in each municipality or city in the Metropolitan Manila area shall prepare his/her proposed schedule of values, in accordance with Sec. 212 R.A. 7160. b) Then, the Local Treasury and Assessment District shall meet per Sec. 9 P.D. 921. In the instant case, that district shall be composed of the assessors in Quezon City, Pasig , Marikina, Mandaluyong and San Juan, pursuant to Sec. 1 of said P.D. In this meeting, the different assessors shall compare their individual assessments, discuss and thereafter jointly agree and produce a schedule of values for their districts, taking into account the preamble of said P.D. that they should evolve “a progressive revenue raising program that will not unduly burden the taxpayers.” c) The schedule jointly agreed upon by the assessors shall they be published in a newspaper of general circulation and submitted to the sanggunian concerned for enactment by ordinance, per Sec. 212, R.A. 7160.

2) Although as a rule, administrative remedies must first be exhausted before resort to judicial action can prosper, there is a well-settled exception in cases where the controversy does not involve question of fact but of la. Ty and company are not merely questioning the amounts of increase in the tax, they are questioning the very authority and power of the assessor, acting solely and increase in the tax, they are questioning the very authority and power of the assessor, acting solely and independently, to impose the assessment and of the treasurer to collect the tax. Therefore, there is no reason for Ty and company to exhaust the administrative remedies provided for in the LGC, namely Sec 226 (appeal to the Local Board of Assessment Appeals) and Sec. 252 (Payment under protest).

3) Finally the court will not pass upon the constitutionality of the law if the controversy can be settled on other grounds, like in this case, by harmonizing the conflicting provisions of P.D. 921 and the LGC. D) Power to Open and Close Roads (Sec. 21, LGC, Art. 43-45, IRR) * Sec. 21. Closure and Opening of Roads (a) An LGU may, pursuant to an ordinance permanently or temporarily close or open any local road, alley, park or square falling within its jurisdiction: provided however, that in the case of permanent closure, such ordinance must be approved by at least 2/3 of all members of the sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure provided. (b) No such way or place or any part thereof shall be permanently closed “without making provisions for the maintenance of public safety therein. A property thus permanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the LGU concerned may be lawfully used or conveyed . Provided however, That no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. (c) Any national or local road, alley, park or square may be temporarily closed during an actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public works and highways, telecommunications and waterworks projects, the duration of which shall be specified by the local chief executive concerned in a written order. Provided however, that no national or local road, alley, park or square shall be temporarily closed for athletic, cultural or civic activities not officially sponsored, recognized or approved by the LGU concerned. (d) Any city, municipality or barangay may by a duly enacted ordinance, temporarily close and regulate the use of an any local street road thoroughfare or any other public place where shopping malls, Sunday, flea or night markets or shopping areas may be established and where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold and dispensed to the general public. * Art 43. Authority to Close or Open. An LGU may, through an ordinance permanently or temporarily close or open any road, alley, park or square within its jurisdictions. * Art 44. Permanent Closure. (a) No permanent closure of any local road, street, alley, park or square shall be effected unless there exists a compelling reason or sufficient justification therefore such as, but not limited to change in land use, establishment of infrastructure facilities, projects or such other justifiable reasons as public welfare may require. (b) When necessary, an adequate substitute for the public facility that is subject to closure shall be provided. No freedom park shall be closed permanently without provision for its transfer or relocation to a new site (c) No such way or place or any part thereof shall be permanently closed without making provisions for the maintenance of a public system therein (d) A property permanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to property may be lawfully used or conveyed. (e) (The ordinance authorizing permanent closure must be approved by at least 2/3 of all members of the Sanggunian. Public hearings shall first be conducted before any ordinance

authorizing permanent closure of any local roads, alley, park or square is enacted. Notices of such hearings and copies of the proposed ordinance shall be posted for a minimum of 3 consecutive weeks in conspicuous places in the provincial capitol, or in the city, municipal, or barangay hall of LGU and within the vicinity of the street or park proposed to be closed. * Art. 45. Temporary Closure. Any national of local road, alley, park, or square may be temporarily closed during actual emergency or fiesta celebrations, public rallies, agricultural or industrial fairs, or undertakings of pubic works and high ways, telecommunications and waterworks projects, the duration of which shall be specified by the local chief executive concerned in a written order as follows: (1) During fiestas for a period not exceeding 9 days (2) During agricultural or industrial fairs or expositions, for a period as may be determined to be necessary and reasonable (3) When public works projects or activities are being undertaken, for a period as may be determined necessary for the safety, security, health or welfare of the public or when such closure is necessary to facilitate completion of the projects or activities (4) An LGU may temporarily close and regulate the use of any local street, road, thoroughfare, or public place where shopping malls, Sunday market, flea or night market, or shopping areas may be established and where goods, merchandise, foodstuff, commodities, or articles of commerce may be sold and dispensed to the general public (5) No national or local road, alley, park, or square shall be temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized or approved by the LGU. Factors to consider in vacating a street a) Topography of the property surrounding the street in the light of ingress and egress to other streets b) Relationship of the street in the road system throughout the subdivision c) Problem posed by the ‘dead end’ of the street d) Width of the street e) Cost of rebuilding and maintaining the street as contrasted to its ultimate value to all of the property in the vicinity f) Inconvenience of those visiting the subdivision g) Whether the closing of the street would cut off any property owners from access to a street. d.1 Favis v. City of Baguio 27 SCRA 1060 Facts: This case took place in Baguio City. On April 30, 1957, Antonio Favis bought a parcel of land from the Assumption Convent, Inc. This land is surrounded by the following areas (go get a pen and paper and draw a map of this land to better understand this case): 1. Lot 2-E-3-B-3-B-1 – this lot is owned by Assumption and is located southwest of Favis’ land; this lot was donated to the City because it was the site for a proposed road. This donated road is Favis’ only means of ingress and egress to Lapu-lapu Street, a public street. 2. Lapu-lapu Street – this street is a portion of the Baguio Market Subdivision, a big tract of land registered in the name of the City. Lapu-lapu street is connected at one end to two lots: a) Lot 2-E-3-B-3-B-1; and b) a lot owned by Olmina Fernandez. Generally, Lapu-lapu Street is 8 m. in width, but at its connecting point with Lot 2-E-3-B-3-B-1, it’s only 2.5 m. in width. 3. Lot 25 – this lot is located in the northern portion of Baguio Market Subdivision and is right beside Fernandez’s lot. The shell Oil Company leased this lot in 1947 for its use as a service station. 10 years later, Shell leased Lot 25 again and a portion of Lapu-lapu Street as well, reducing the latter’s width to only 5 meters. The City approved the renewal of the lease thru Resolution No. 132-61. Favis protested the lease because it reduced the width of Lapu-lapu Street, thus (1) his entrance and exit to and from his property has become very difficult; (2) it became impossible for his big trucks and trailers to turn around; (3) it made the area around it very dangerous in case of fire; and (4) it has caused perpetual danger, annoyance, irreparable loss and damage not only to the public in general but especially to Favis himself. In response, the City approved Resolution 215-61, converting the remaining 5 m.-width portion of Lapu-lapu street into an alley (lousy resolution…). Unsatisfied with the City’s response, Favis Commenced suit to annul the lease contract for the reasons mentioned above and also because of the following: 1) the power to close streets should be effected thru an ordinance and not thru a resolution; 2) the City failed to give notice to owners of contiguous properties whose rights might be affected; and 3) the city council of Baguio and municipal bodies in general, have no inherent right to vacate or withdraw a street from public use, either in whole or in part, thus there must be a specific grant by the legislative body to the city or municipality concerned. Held: Favis contentions are unmeritorious. Reasons: 1) The embattled resolutions are just as good as ordinances. The objection is only of forms, not of substance.

2) Notice is not needed because the City Charter requires notice only when the ordinance in question also calls for an assessment regarding a project to be implemented. In this case, no assessment was called for and was in fact, not necessary. 3) While Favis is correct that municipal bodies have no inherent right to close a public street, still the City Charter does authorize Baguio City to close public roads in its discretion absent a plain case of abuse, or fraud or collision. Faithfulness in public trust is presumed. Public interest is served thru 1) savings from cost of road maintenance; and 2) gaining by the City of some income thru leasing. 4) Favis’ private rights were not invaded. Lapu-lapu street does not abut his parcel of land. 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. 2. Other illustrative cases: d.1. Cabrera v. CA 195 SCRA 314 Facts: On Sept. 19, 1969, the Provincial Board of Catanduanes passed Resolution 158 authorizing the closure of the old road leading to the Capitol City of Catanduanes. A new road was built which traversed the land of Remedios Bagadiong and several others similarly affected. Bagadiong and friends were given portions of the old road as compensation for the properties they lost as a result of the construction of the new road. One man, Bruno Cabrera, did not like the idea of the old road being gone. He filed a complaint for “Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages” alleging that the old road in question was a public road owned by the Province of Catanduanes in its governmental capacity and was thus beyond the commerce of man. It stands to reason then, that said road cannot be the subject of private contracts, such as barter or exchange. Moreover, Cabrera insists, control over public roads lies with Congress, not with the Provincial Board. Held: Cabrera is wrong. Reasons: 1) Resolution 158 states, in black and white ink, that it is for the closure of a public road and not for a contract of barter or exchange. RA 5185 Sec 11 (a) (An Ant Granting Further Local Autonomy to Local Governments), in relation to Sec. 2246 of the revised Administration Code, is the pertinent law from which Resolution 158 derives its authority. 2) The barter or exchange is legal ‘coz it’s in accordance with Sec. 412 of the Civil Code, which states: “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.” Note: The power to open or close roads is expressly provided for in Art. 43, IRR of the LGC, 1991. d.2.Dacanay v. Asistio 208 SCRA 404 Facts: Way back in January 5, 1979, the Metropolitan Manila Commission (MMC) enacted MMC Ordinance 7902, which allowed certain city and municipal public streets and roads to be sites for many vendors applied for licenses to conduct such activities in said streets. On Dec. 20, 1987, the RTC of Caloocan City ruled that the streets were of public dominion and ordered the demolition of said stalls. But Mayor Martinez, who had advocated the demolition of the said stalls, has been replaced by Mayor Asistio. Mayor Asistio did not carry out the order of the RTC, for humanitarian reasons. Francisco Dacanay, a concerned citizen and a resident along Heroes del ’96 street, filed a petition for mandamus to compel the Mayor, thru the City Engineer, to remove the said stalls. Will the petition prosper? Held: Yes, for the plain and simple reason that public roads cannot be the object of leases and thus cannot be bargain away thru contracts. Public roads should serve the purpose for which they were built: for public use as arteries of travel for vehicles and pedestrians. d.3. Macasiano v. Diokno 212 SCRA 464 Facts: On June 13, 1990, the municipality of Paranaque passed Ordinance no. 90, series of 1990, which authorized the closure of 5 streets located at Baclaran, Paranaque for the establishment there of a flea market. On July 20, 1990, the Metropolitan Manila Authority approved the said ordinance but subject to the following conditions: 1. That the afore-named 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; 2. That the 2 meter middle road to be used for flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; 3. That the time during which the vending area is to be used shall be clearly designated; 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.

Palanyag Kilusang Bayan for Service, a service cooperative, then entered into a contract with Paranaque for the construction and operation of market stalls in the said streets. Some months later, Brg. Gen. Levy Macasiano, PNP Superintendent of the Metropolitan Traffic Command, entered the picture. He wrote Palanyag a letter demanding the latter to discontinue the flea market, otherwise the market stalls would be dismantled. Macasiano’s beef was that Ordinance No. 90which authorized the lease and use of public thoroughfares as site for flea markets is not valid because it is on legal basis. Was he correct? Held: Yes. Reasons: 1) The Municipality of Paranaque did not follow Sec. 10, Chapter 11, LGC 1983, to the letter. Its states that: “Closure of roads. A local Government unit may likewise, through its head acting pursuant to resolution of its sanggunian and in accordance with existing law and the provisions of this Code, states any barangay, municipal, city or provincial road, street, alley, park or square. No such way or any part of thereof shall be close without indemnifying any person prejudiced thereby. A property thus withdrawn form 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.” Note the italicized phrase “and in accordance with existing law and the provisions of this Code. ”The power to close roads by LGUs is still subject to existing law. In this light, Art. 424 of the Civil Code is relevant. It essentially says that if public property is withdrawn from public use, the property becomes patrimonial property of the LGU concerned and may thus be subject to ordinary contracts. This is all assuming if the public are still open to vehicular traffic and are thus still devoted to public use. 2) Following the argument of the # 1 above, it goes to show that Paranaque did not follow condition as imposed by the MMA for Ordinance 90 tie be valid. The legality of Ordinance 90, under the circumstances, cannot be sustained. d.4. Sangalang v. IAC 176 SCRA 719 Facts: As far back in 1977, Makati, Metro Manila has always been plagued by traffic. For this reason, during that time, Mayor Nemesio Yabut of Makati ordered that studies be made on ways on how to alleviate the traffic problem, particularly in the areas along the public streets adjacent to Bel-Air Village. The studies revealed that the subdivision plan of Bel-Air was approved by the Court of First. Distance of Rizal on the condition, among others, that its major thoroughfares connecting to public streets and highways shall be opened to public traffic. Accordingly, it was deemed necessary by the Municipality of Makati in the interest of the general public to open to traffic Amapola, Mercedes, Zodiac, Jupiter, Neptune, Orbit and Pasco de Roxas streets. As a result, the gates owned by BAVA at Jupiter and Orbit were ordered demolished. Mayor Yabut justified the opening of the streets on the following grounds: 1) Some time ago, Ayala Corporation donated Jupiter and Orbit Streets to Bel-Air on the condition that, under certain reasonable conditions and restrictions, the general public shall always be open to the general public. These conditions were evidenced by a deed of donation executed between Ayala and Bel-Air. 2) The opening of the streets was justified by public necessity and the exercise of the police power. 3) Bel-Air Village Association’s (BAVA) articles of incorporation recognized Jupiter Street as a mere boundary to the southwest – thus it cannot be said to be for the exclusive benefit of Bel-Air residents. 4) BAVA cannot hide behind the non-impairment clause on the ground that is constitutionally guaranteed. The reason is that it is not absolute, since it has to be reconciled with the legitimate exercise of police power. BAVA, on the other hand, contended: 1) Rufino Santos, president of BAVA, never agreed to the opening of the said streets 2) BAVA has always kept the streets voluntarily open anyway Moreover, BAVA claims the demolition of the gates abovementioned was a deprivation of property without process of law or expropriation without just compensation. Who is correct: the Mayor or BAVA? Held: The Mayor is correct, for the reasons mentioned above. Also, the demolition of the gates is justified under Art. 436 of the Civil Code. “When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified.” In this case, BAVA has the burden of showing that the seizure of the gates is unjustified because police power can be exercised without provision for just compensation. The Court is of the opinion that the Mayor did not act unreasonably nor was the opening of the gates unjustified. In fact, the gates could even be considered public nuisances, of which summary abatement, as decreed under Art. 701 of the Civil Code, may be carried out by the Mayor. d.5.Cebu Oxygen v. Bercilles 66 SCRA 481 Facts: The subject of the dispute is a portion of M. Borces Street, Mabolo, Cebu City (10 years from now, would this name really matter?). One day, on Sept. 23, 1968, the City Council of Cebu passed a resolution declaring the abovementioned street to be abandoned. Subsequently, the council passed another resolution authorizing the Acting City Mayor to sell the street

(which was actually a parcel of land) thru a public bidding. Cebu Oxygen and Acetylene Co. Inc. then bought the said parcel of land. However, when Cebu Oxygen tried to have its land registered, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that it is a public road intended for public use and thus was outside the commerce of man. The question now is whether the City of Cebu is empowered to close a city road or street. Held: Yes, for the simple reason that the City Charter of Cebu authorizes the same (Note that today, LGUs may close roads or streets under the authority of the LGU of 1991, charter of no charter). d.6.Pilapil v. CA 216 SCRA 33 Facts: This case spanned for a period of 6 years only to reach an unexpected, tragic conclusion for the spouses Colomida. Spouses Pilapil own a parcel of land in Bahak, Poblacion, Liloan, Cebu. Spouses Colomida, on the other hand, bought a parcel of land located also in Bahak. Now this land owned by the Colomidas has for its ingress and egress to the National Road a camino vecinal (barrio road). However, this camino vecinal transverses the property of the Pilapil, which was the root of all their problems. The Pilapil denied the existence of the camino vecinal. Socrates Pilapil, the husband, presented himself as witness (which was lousy) as well as Engineer Epifanio Jordan, Municipal Planning and Development Coordinator of Liloan. The engineer said that while that zoning map of Poblacion, Liloan made reference to a camino vecinal, said reference was but a mere proposal of its existence to the Sangguniang Bayan of Liloan. The Colomidas, on the other hand, relied on old-timers as witnesses – witnesses such as Florentino Pepito, who attested to the existence of the Camino vecinal and its availability to the general public since practically time immemorial. The trial court ruled in favor of the Colomidas because the zoning map used as evidence by the Pilapil did not specifically indicate that the amino vecinal was indeed merely “proposed” since other roads and streets were classified as such. The CA upheld that trial court, basically because it said that findings of facts by the trial court, as a general rule, should be undisturbed. Would the SC uphold the CA ruling? Held: No. In its infinite wisdom, the SC said that it didn’t matter what opinion the Colomidas or the engineer gave regarding the existence of the camino vecinal. What really mattered is the zoning plan (the Urban Land Use Plan) as finally approved by the Sangguniang Bayan of the Municipality of Liloan. The zoning plan showed that the camino vecinal was declared closed. CLOSED! It’s so crystal clear, can’t you see? And it’s beyond dispute that the abandonment, closure or establishment of the camino vecinal is the sole prerogative of the Municipality of Liloan under the LGU of 1983. The SC rebuked the parties for not having resorted to a pre-trial conference which would have prevented the dragging of a trivial case for six years. E) Corporate Powers (Sec. 22, LGC, Art. 46, IRR) * Sec. 22, LGC, Corporate Powers. A) Every LGU, as a corporate, 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; and 6. To exercise such other powers as are granted to corporations, subject to the limitations provided in this Code and other laws. b) LGUs may continue using, modify, or change their existing corporate seals. Provided, that newly established LGUs or those without corporate seals may create their own corporate seals which shall be registered with the DILG. Provided further, that may change of corporate seal shall also be registered as provided herein. c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the LGU without prior authorization by the sanggunian concerned. A legible copy of such contrast shall be posted at a conspicuous place in the province capitol or the city, municipal or barangay hall. d) LGUs shall enjoy full local autonomy to the exercise of their proprietary functions and in the management of their economic enterprises, subject to the limitations provided in this Code and other applicable laws. *Article 46, IRR. Note: It’s exactly the same as Sec. 22, LGC. *Municipality Liability A. General Rule Municipal liabilities arise from various sources in the conduct of municipal affairs, both governmental and proprietary. Broadly, claims against municipalities include all obligations upon all municipal contracts and upon all outstanding bonds, notes, and warrants issued by them. Strictly, however, these claims are demands for payments for

articles, furnished or services rendered to a municipality in the conduct of its affairs, or demands asserting the tort liability of the municipality. B. Exceptions 1. As provided by law a) Article 2189, New Civil Code – “Provinces, cities and municipalities shall be liable for damages for the death of or injuries suffered by any person by reason of the defective conditions of roads, streets, bridges, public buildings, and other public works their control and supervision.” Cases: e.1. City of Manila v. Teotico 22, SCRA 267 Facts: On Jan. 27, 1958, at about 8 p.m., Genaro Teotico was at the corner of the Old Luneta and P. Burgos Avenue, Manila, waiting for a jeepney to take him downtown. After 5 minutes, he managed to hail a jeepney that came along to a stop. As he stepped down from the curb to board the jeepney, and took a few steps he fell inside an uncovered and unlighted manhole on P. Burgos Avenue. Teotico sustained a lacerated wound in his left eyelid, conclusion on his left thigh, the upper left thigh… oh my goodness, every injury imaginable! (Use Atty. Ulep’s tone of voice). Teotico was hospitalized and the anti-tetanus injections administered to him caused allergic eruptions which required further medical treatment. Teotico filed an action for damages (actual and moral damages) against the City of Manila. The City denied liability contending that Sec. 4 of the City Charter (RA 409) should prevail over Art. 2189 of the Civil Code because the former is a special law intended exclusively for the City of Manila, whereas the Civil Code is a general law applicable to the entire Philippines. Held: Sec. 4 of RA 409 refers to liability arising from negligence in general regardless of the object thereof whereas Art. 2189 governs liability due to defective streets in particular. Since the presentation action is based upon the detective condition of a road, said Art. 2189 is decisive. Under Art. 2189, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said Article requires is that the province, city or municipality has either control or supervision over said street or road. Even if P. Burgos were, therefore, a national highway, this circumstance would not necessarily detract from its “control of supervision” by the City of Manila, under RA 409. The City of Manila is therefore liable to Teotico for damages. e.2. Jimenez v. City of Manila 150 SCRA 510 Facts: Bernardino Jimenez was the unlucky said who fell in an uncovered opening o the ground located within the premises of the Sta. Ana public market. At that time, the market was flooded with ankle-deep rainwater which prevented the opening form being seen. Jimenez, for his part, went to that market to buy bagoong despite the rains. He sustained an injury due to a rusty 4-inch nail which pierced his left leg. Jimenez sued the Asiatic Integrated Corporation (AIC) and the City of Manila for his misfortune. The Sta. Ana Market at that time was under the administration of the AIC by virtue of a management and Operating Contract it had with the City of Manila. The trial court held the AIC responsible but absolved the City of Manila. Is the City of Manila indeed not liable? Held: The City of Manila is liable. Reasons: 1) Again, Art. 2189 comes into play, since the injury took place in a public building. 2) Also, Art. 2189 requires that the LGU must retain supervision and control over the public work in question for it to be held liable. The evidence showed that the Management and Operating Contract explicitly stated that the City of Manila retained supervision and control over the Sta. Ana Market. Also, in a letter to Finance Secretary Cesar Virata, Mayor Raymond Bagatsing admitted this fact of supervision and control. Moreover, Sec. 30(g) of the Local Tax Code says that public markets shall be under the immediate supervision, administration and control of the City Treasurer. 3) Jimenez could not be held for negligence. A customer in a store has every right to presume that the owner will comply with his duty to keep his premises safe for customers. The owner of the market, on the other hand, was proven to have been negligent in not providing a cover for the said opening. The negligence of the City of Manila is the proximate cause of the injury suffered. NOTE: It is not necessary for the LGU to have ownership over the public work in question; mere control and supervision is sufficient. e.3. Guilatco v. City of Dagupan 171 SCRA 382 Facts: Florentina Guilatco, a court interpreter, was about to board a tricycle at a sidewalk located at Perez Boulevard when she accidentally fell into a manhole located in said side walk, causing her right leg to be fractured. She was hospitalized and also as a result, suffered loss of income and moral damages. Guilatco sued the City of Dagupan. The City replied that Perez Boulevard, where the deadly manhole was located, is a national road not under the control and supervision of Dagupan. It is submitted that it is actually the Ministry

of Public Highways that has control and supervision thru the Highway Engineer, who by mere coincidence, is also the City Engineer of Dagupan (malas naman namin, City Engineer). Is the City of Dagupan liable? Held: Yes, Reasons: 1) We again apply Art. 2189. But the bigger question is , does the City of Dagupan have control and supervision over Perez Boulevard in order for it to be held liable? The answer is yes. Why? Read on. 2) The City of Dagupan argued that the supervision and control over Perez Boulevard belongs more to his function as ex-officio Highway Engineer, thus the Ministry of Public Highways should be held liable. However, the court gave this arguments: “Alfredo G. Tangco, in his official capacity as City Engineer of Dagupan, as Ex-Officio Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the following monthly compensation: P1,810.66 from Dagupan City, P200.00 from the Ministry of Public Highways, P100.00 from the Bureau of Public Works and P500.00 by virtue of P>D 1096, respectively. This function of supervision over streets, public buildings, and other public works pertaining to the City Engineer is coursed through Maintenance Foeman and a Maintenance Engineer. Although these last two officials are employees of the National Government, they are detailed with the City of Dagupan and hence receive instruction and supervision from the city through the City Engineer. There is , therefore, no doubt that the City Engineer exercises control or supervision over the public works in question. Hence, the liability of the city to the petitioner under article 2198 of the City Code is clear.” (Duh? What kind of explanation is that? Personally, I can’t understand it, but if the SC says the City of Dagupan is liable, then we must trust the wisdom of the omniscience SC). e.4. Dumlao v. CA 114 SCRA 247 Facts: These events took place in Dagupan City. On Feb. 28, 1964, about 11:30 p.m., the spouses Elizalde were driving a jeep thru Telomes Bridge when suddenly; they came upon a huge hole about 1 meter in diameter and 8 feet deep at the south end of the bridge. The Elizaldes managed to avoid the boulders but instead slammed into a truck owned by Hermanos de Yap and driven by Dulcesimo Ducoy. The truck came from the opposite direction on the wrong lane. The Elizaldes died as a result of the incident. The heirs of the Elizaldes included in defendants in its complaint the City of Davao and Samuel Dumlao, the City Engineer. Specifically, Dumlao was sued in his personal capacity. Dumlao argued that he cannot be held liable is his personal capacity. Is he correct? Held: Yes. 1) The allegations in the complaint clearly state that he was being sued in his official capacity as City Engineer. 2) There was no showing that there was bad faith or malice which would warrant Dumlao personally liable in connection with the discharge of his duties. 3) The best that could be imputed to him is an act of culpable neglect, inefficiency and gross negligence in the performance of his official duties. b) Article 2180, Civil Code “The obligation imposed by Article 2176 is demandable was only for one’s own acts or omission, but also for those of persons for whom one is responsible. “The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. “The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. “Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. “The State is responsible in like manner when it acts thru a special agent but not when the damage has been caused by the official to whom the task done properly pertains, in which caused what is provided in Article 2176 shall be applicable. “Lastly, teachers or head of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. “The responsibility treated of in this article cease when the persons herein mentioned proved that they observed all the diligence of a good father of a family to prevent damages. e.5. Palafox v. Province of Ilocos Norte 102 Phil. 1186 Facts: Palafox filed a suit to recover damages from the provincial government for the death of his son caused by the negligence of a regular chauffer of the provincial government. The accident occurred while the chauffer was working at the highway construction. The questions now are: 1) May the province be held liable? 2) Does the doctrine of respondent superior apply? Held: The answers to both questions are given below (obviously):

1) To attach liability to the State for the negligence of its officer or employee, the latter must be not upon whom properly devolved the duty of driving the truck on that occasion. This principle applies both to the national and municipal governments. The province is liable. 2) The doctrine of respondeat superior or corporate liability for the negligence or tort of its officers, applies only where the government is engaged in proprietary or business functions. When engaged in government functions, as the construction and maintenance of roads, the doctrine does not apply. The reason for the exemption is the government does not undertake to guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve in all its operations endless embarrassments, difficulties and losses subversive of the public interest. 2. Liability for torts if engaged in proprietary function Cases: 1. Torio v. Fontanilla 85S CRA 599 Facts: The Municipal Council of Malasiqui, Pangasinan passed a resolution celebrating a town fiesta for 3 days on January, 1959. The resolution created on Executive Committee which would oversee the operations of the town fiesta. The Executive Committee in turn had a sub-committee in charge of building 2 stages, one of which was for a zarzuela program. Vicente Fontanilla was one of the actors of the zarzuela. While the zarzuela was going on the stage where the play was set collapsed. Fontanilla, who has at the rear of the stage, was pinned underneath and died the following day. The family and heirs of Fontanilla filed a complaint against the Municipality of Malasiqui, the Municipal Council and the individual members of the Municipal Council. Can they be held liable? Held: The Municipality of Malasiqui is liable and the individual members of the Municipal Council are not liable. Reasons: 1) The basic rule to be first followed is that a municipal corporation cannot be held liable for an injury caused in the course of performance of a governmental function. With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable upon contracts and in torts. 2) The next question to be answered is that whether the fiesta above-quota was performed by the municipality in the exercise of its governmental or proprietary function. According to 2282 of the revised Administrative Code, municipalities are authorized to hold fiesta, but it is not their duty to conduct such. Thus, the fiesta is proprietary in nature. The same analogy can be applied to the maintenance of parks, which is a private undertaking, as opposed to the maintenance of public schools and jails, which are for the public service. (The key word then is duty.) 3) Under the doctrine of respondent superior (see first paragraph of Art. 2180), the municipality can be held liable for the death of Fontanilla if a) the municipality was performing a proprietary function at that time and b) negligence can be attributed to the municipality’s officers, employees or agents performing the proprietary function. The evidence proved that the committee overseeing the construction of the stage failed to build a strong enough to insure the safety of zarzuela participants. Fontanilla was entitled to ensure that he would be exposed to danger on that occasion. 4) Finally, the municipal council is not responsible. The Municipality stands on the same footing as an ordinary private corporation with the municipal council acting as its board of directors. It is an elementary principle that a corporation has a personality, separate and distinct from its officers, directors, or persons composing it and the latter are not as a rule co-responsible in an action for damages for tort or negligence culpa aquillana committed by the corporation’s employees of agents unless there is a showing of bad faith or gross or wanton negligence on their part. To make an officer of a corporation liable for the negligence of the corporation there must have been upon his part such a breach of duty as contributed to or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act. 2. Municipality of San Fernando, La Union v. Firing 195 SCRA 692 Facts: Laurence Banino, Sr., along with several other passengers in a jeepney they were riding in, died after collision involving said jeepney, a privately owned graved and sand trucks and a dump truck owned by the Municipality of San Fernando, La Union, driven by Alfredo Bislig, a regular employee of said municipality. The heirs included in its complaint the municipality and the dump trucks driver. The municipality invokes non-suability of the State. Is it correct? Held: Yes. 1) The general rule is that the State may not be sued except when it gives consent to be sued. Consent takes the form of express of implied consent. Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi – delict. Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint thus opening itself to a counterclaim.

Municipal corporations for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. 2. A distinction should first be made between suability and liability. “Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a State is suable does not necessarily mean that it is liable; on the other hand, it can never be held allowing itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.” 3. About the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality is performing governmental of propriety functions. As emphasized in the case of Torio vs. Fontanilla, the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a propriety capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant is not acting in its governmental capacity when the injury was committed or that the case comes under exceptions recognized by law. Failing this, the claimant cannot recover. 4. In the case at bar, the driver of the dump truck of the municipality insists that “he was on his way to Naguilian River to get a load of sand and gravel for the repair of San Fernando’s municipal streets.” In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3 (m) of Rule 131 of the Revised Rules of Court, Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office. 3. Read RA 7678 – DIGITEL Franchise The title states: Republic Act no. 7678, February 17, 1994: An Act granting the Digital Telecommunications Philippines, Incorporated, a franchise to install, operates and maintains telecommunications systems throughout the Philippines and for other purposes. Section 13 states: “Warranty in Favor of the National and Local Government. The grantee shall hold the national, provincial, city and municipal governments harmless from all claims, accounts, demands or actions arising out of accidents or injuries, whether to property or to persons, caused by the installation and operation of the telecommunications systems of the grantee.” * Liability for Contract Municipal corporations are liable on contracts entered into in their behalf by their authorized agents acting within the scope of their authority, provided that the municipal corporations are authorized to enter into said contracts by their charter. * Section 24, LGC. Liability for damages LGU’s and their officials are not exempt from liability for death or injury or damage to property. 4. City of Manila v. JAC 179 SCRA 423 Facts: The City of Manila leased a lot of the North Cemetery to Irene Sto. Domingo. The period of the lease is from June 6, 1971 to June 6, 2001. Irene’s husband died and was buried in said lot on June 6, 1971. The authorities of the North cemetery however, ordered the lot exhumed on January 25, 1978, according to their interpretation in good faith of AO No. 5, 1975, which provided for a uniform procedure and guidelines in the processing of documents pertaining to and for the use and disposition of burial lots and plots within the North Cemetery, etc. Naturally, Irene and her family were shocked, Adding to their dismay was that the remains of her husband was callously dumped in a warehouse of a cemetery were thousands of other sacks of bones were kept. The risk, according to her, of claiming the wrong set of bones was high. Irene filed a claim for damages against the city. Will the suit prosper?

Held: Yes, reasons: 1. In connection with its powers as a municipal corporation, the City of Manila may acquire property in its public or governmental capacity, and private or propriety capacity. The NCC divides such properties into property for public use as provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provisions, cities or municipalities, all other property is patrimonial without prejudice to the provisions of special laws.

2. In the absence of special law, the North Cemetery is a patrimonial property of the City of Manila, which was created by resolution of the Municipal Board of August 27, 1903 and January 7, 1904. With its acts of dominion, there is therefore no doubt that the North Cemetery is within the class of property which the City of Manila owns in its propriety of private character. Furthermore, there is no dispute that the burial was leased in favor of the Sto. Domingo. Hence, obligations arising from contracts have the force of law between them. Therefore, a breach of contractual provision entitles the other party to damages even of no penalty for such breach is prescribed in the contract. 3. It should also be noted that the Charter of Manila states that it may sue and be sued. By virtue if this and the doctrine of respondent superior, the City is liable for the negligent acts of its agents in failing to verify the duration of the lease above- quoted. The agents’ reliance in AO No.5 is unavailing because said AO covers only new leases. * Doctrine of Implied Municipal Liability (Contra personal liability) To hold a municipal corporation for benefits received under an implied contract: a.

It is necessary to show that the implied contract be within the contractual powers of the corporation and that the officers who entered into contract were fully authorized.

b.

It must be further shown that the benefits were voluntarily accepted under such circumstances as will indicate that payment was intended by the parties or that justice and equity would require the payment of compensation.

1. Inciong v. Domingo 211 SCRA 139 Facts: This case basically concerns the implied liability of a municipal corporation in paying the fees of an attorney it hired. But first, the useless facts. The Philippines Sugar Commission (PHILSUCOM) owned a sugar refinery at Barangay Caloocan, Balayan, Batangas. However, PHILSUCOM failed to pay the real state taxes due on said sugar refinery. So the Provincial Treasurer of Batangas scheduled for the sale of the sugar refinery thru a public auction. PHILSUCOM, however, was granted a restraining order maintaining the status quo. In the meantime, Barangay Caloocan, thru Atty. Ceferino Inciong, intervened in the case as it had 10% property tax share to be collected form PHILSUCOM. To make the long story short, Atty. Inciong eked out a compromise agreement for both warring parties so everybody went home happy except for Atty. Inciong. It seemed that the request of the Barangay Captain of Caloocan for petitioner’s legal assistance was not taken up nor approved by the Sangguniang Barangay nor was there any showing that it was approved by the Solicitor General and concurred in by COA as required under COA Circular No. 86 – 255, dated April 2, 1986. Also it seemed that the hiring of petitioner by the Punong Barangay did not carry with it the approval of the Sangguniang Barangay as required under Section 91 (1-1) of the B.P. 377, nor was there any appropriation therefore; the hiring was not approved by the Solicitor General and concurred in by COA. In other words, Barangay Caloocan doesn’t want to pay Atty. Inciong. Is that correct? Held: Our companero must be paid. Reasons: 1.

We don’t want to see a kindred spirit get unpaid or else we lawyers will have to go on strike.

2.

As correctly stated by the Office of the Solicitor General, the position of respondent Chairman of the COA disallowing payment of attorney’s fees to petitioner Atty. Ceferino Inciong is not proper in the light of the following considerations: a. The employment by Barangay Caloocan of petitioner as its counsel, even if allegedly unauthorized by the Sangguniang Barangay, is binding on Barangay Caloocan as it took no prompt measure to repudiate petitioner’s employment. b. The decision of the RTC directing Barangay Caloocan to pay attorney’s fees to petitioner has become final and executory and is binding upon Barangay Caloocan. c.

3.

COA Circular No. 86 – 255 cannot diminish the substantive right of petitioner to recover attorney’s fees under the final and executory decision dated August 9, 1989 of the Regional Trial Court. The respondent COA Chairman states that PHILSUCOM paid the amount of 7,199,887. 51 pesos to the Municipal Treasurer under the Amnesty Compromise Agreement. Out of this amount, the Municipal Treasurer allocated to Barangay Caloocan as its share the amount of 719,988.75 pesos. This allocation is erroneous because pursuant to Republic Act No. 5447, Barangay Caloocan should only share from the basic tax which is 50% of what PHILSUCOM paid because the other half should go to the Special Education Fund. Under the said Republic Act No. 5447, the rightful share of Barangay Caloocan should be 359,944.38 pesos only.

The Chairman prayed that in the event the Court orders the payment of attorney’s fees to petitioner this amount of 359,944.38 pesos should be made the basis therefore. The Court replied in a booming voice, “WHEREFORE, the petition is GRANTED and respondent is ordered to direct the payment of attorney’ fees to petitioner Atty. Ceferino Inciong in an amount equivalent to 10% of 359,994.38 pesos.” 2. Province of Cebu v. JAC 147 SCRA 447 Facts: Again, this case concerns the implied liability of a municipal corporation in paying the fees of an attorney hired – but the attorney ended up with only a pittance. There was a time when Cebu City almost became the owner of practically the whole of the Province of Cebu. This happened in Feb. 4. 1964 when the Vice – Governor and the Provincial Board of Cebu, taking advantage of Governor Rene Espina’s absence (he was away on an official business trip [ows?]} donated 210 lots or 380 hectares of provincial patrimonial land to Cebu City. When Governor Espina finally heard of the donation, he filed a case to declare the donation void for being illegal and immoral. The defendants in the case were Cebu City, City mayor Sergio Osmena and the dumb provincial officials responsible for the donation. Governor Espina hired Atty. Pablo Garcia, a private lawyer, as his counsel. Atty. Garcia toiled for 8 years on the case, but for some reason, he was no longer counsel when the parties settled for a compromise agreement. Nevertheless, Atty. Garcia claims he is entitled to fees worth 30% of the worth of the properties or 36 million pesos (a staggering amount, considering that the amount was based on the peso - dollar rates of 1979). The province of Cebu City however refused to give him even one centavo. They said Sec. 1683 of the RAC and Sec. 3 of the Local Autonomy Law is clear that only the provincial fiscal and municipal attorney can represent a province or municipality in its lawsuits. More importantly, if the province of Cebu were to hire a private lawyers (such as when the provincial fiscal is disqualified) the Provincial Board must pass a resolution to allow such a move. The Trial court awarded attorney’s fees based on quantum merit. On appeal, the IAC awarded 5% worth of properties. The questions now are 1. Should the province pay Atty. Garcia and 2? If so how much is Atty. Garcia entitled to? Held: The province must pay Atty. Garcia but he is entitled only to quantum merit. Reasons: 1.

Ibi quid generaliter conceditur; inest haee exception, si non aliquid sit contra jus fasque. (Where anything is granted generally, this exception is implied; that nothing shall be contrary to law and right). This simply means that every rule, no matter how strict or harsh, must have an exception. Here, equity comes into play. To deny Atty. Garcia compensation for his professional services would amount to a deprivation of property without due process of law.

2.

The argument that the hiring of private lawyers by a province must first gain the approval of the Provincial Board is absurd. First of all, the service of the Provincial Fiscal has already been engaged

by the Provincial Board. More importantly, it’s so stupid for the Provincial Board to pass a resolution grant the hiring of a private lawyer who would litigate against them. The Provincial Board may just not pass such a resolution. The legal maxim which we can use as a basis for this situation is “Nemo tenetur ad impossibile” (The law obliges no one to perform an impossibility) 3.

Until the contrary is clearly shown, an attorney is presumed to be acting under authority of the litigant whom he purports to represent. His authority to appear for and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to file the complaint and appear for his client. Even where an attorney is employed by an unauthorized person to represent a client, the latter will be bound where it has knowledge of the fact that it is being represented by an attorney in a particular litigation and takes no prompt measure to repudiate the assumed authority. Such acquiescence in the employment of an attorney as occurred in this case is tantamount to ratification. The act of the successor provincial board and provincial officials in allowing Atty. Pablo P. Garcia to continue as counsel and in joining him in the suit led the counsel to believe his services were still necessary.

4.

Atty. Garcia is entitled only to quantum merit. He simply was not counsel when the compromise agreement was made. He gets only 30,000 pesos,

* Instances where the municipal mayor was held liable for back salaries of, or damages to dismissed municipal employees, to the exclusion of the municipality Salcedo vs. Court of Appeals – the municipal mayor was held liable for the back salaries of the Chief of Police he had dismissed, not only because the dismissal was arbitrary but also because the mayor refuse to reinstate him in defiance of an order of the Commissioner of Civil Service to reinstate. Nemenzo vs. Sabillano – the municipal mayor was held personally liable for dismissing a police corporal who possessed the necessary civil service eligibility, the dismissal being done without justifiable cause and without any administrative investigation. Rama vs. Court of Appeals- the governor, vice – governor, member of the Sangguniang Panlalawigan, provincial auditor, provincial treasurer and provincial engineer were ordered to pay jointly and severally in their individual and personal capacity damages to some 200 employees of the province of Cebu who were eased out from their positions because of their party affiliations. * Instance where the municipality was also held liable along with municipal mayor 3. Laganapan v. Asedillo 154 SCRA 377 Facts: Solano Laganapan was appointed Chief of Police. However, he was summarily dismissed from his position by respondent Mayor Elpidio Asedillo of Kalayaan, Laguna on the ground that his appointment was provisional and that he has no civil service eligibility. Respondent Epifanio Ragotero was appointed acting chief of police of Kalayaan, Laguna on the same day in place of the petitioner. Subsequently, the Municipal Council of Kalayaan, Laguna abolished the appropriation for the salary of the chief of police of Kalayaan, Laguna. Laganapan thus filed a complaint against Mayor Asedillo and the Municipality of Kalayaan for reinstatement and payment of back wages. May Laganapan be reinstated? Is the Municipality also liable? Held: The municipality is liable but Laganapan cannot be reinstated. Reasons: 1.

Laganapan was summarily dismissed without any semblance of compliance with due process. No charges were filed, no notice or hearing was made, no nothing. The Court finds no merit in the mayor’s contention that, since the appointments extended to Laganapan as chief of police of Kalayaan, Laguna, were all provisional in nature, and not permanent, his services could be terminated with or without cause at the pleasure of the appointing officer. While it may be true that Laganapan was holding a provisional appointment at the time of his dismissal, he was not a temporary official who could be dismissed at any time. His provisional appointment could only be terminated thirty (30) days after receipt by the appointing officer of a list of eligible form the Civil Services Commission. Here no such certification was received by Mayor Asedillo thirty (30) days prior to his dismissal of Laganapan.

Furthermore, it is of record that, after the summary dismissal of Laganapan by Asedillo, the Municipal Council of Kalayaan instead of opposing or at least protesting Laganapan’s summary dismissal of his position, even abolished the

appropriation for the salary of the Chief of Police of Kalayaan – Laguna. The Court considers this act of the Municipal Council as an approval or confirmation of the act of respondent Mayor in summarily dismissing Laganapan, as to make said municipality equally liable as the mayor for the reinstatement of Laganapan and for the payment of his back salaries. Finally it should be noted that Asedillo was sued not personally, but in his capacity as mayor. 2.

Laganapan cannot be reinstated. PD 482, recently enacted at that time, calls for the appointment of a permanent Chief of Police (known as Station Commander), in certain provinces including Laguna. His reinstatement is not feasible. The Mayor and the municipality are instead liable for payment of back salaries.

4. Salcedo v. CA 81 SCRA 408 Facts: Arsenio Salcedo was appointed Chief of Police of Candelaria, Quezon. Records show that Salcedo then held civil service eligibility, having passed the U.S. Civil Service Examination for Messenger and Skilled laborer in 1928. Considering his eligibility appropriate to the position of Chief of Police, the Commissioner of Civil Service validated the same and attested the appointment of Salcedo as permanent. Since then Salcedo has discharged the functions of his office An administrative complaint for misconduct and serious irregularities was later filed against Salcedo. It seemed however that the mayor of Candelaria, Venancio Dia wanted him kicked out right away so he terminated the services of the poor guy. The basis of the termination was erroneous and illegal, since Salcedo didn’t possess the appropriate eligibility for the position of Chief of Police (his civil service eligibility arose form a U.S based test, remember?) Salcedo appealed to the Commissioner of Civil Service. Although the Commissioner found him guilty of conduct unbecoming of a police officer, he was nevertheless reinstated and was given a fine and a warning instead. The Mayor however really hated the guy. He refused to have Salcedo reinstated. The CA agrees with the mayor. The lone issue in this instant action is whether the respondent mayor can legally terminate Salcedo’s services notwithstanding the attestation of the latter’s appointment as permanent by the Commissioner of Civil Service. Held: The mayor cannot terminate Salcedo’s services. The reason is that even though he did not take the required examination either under the Old or New Civil Service Law, that wasn't his fault. His claim to eligibility came from the U. S. Civil Service Examination he took in 1928 when the Philippines was still a U.S Colony. Salcedo cannot be required to take the examination again after his eligibility had already been declared permanent by the Commission. The respondent mayor persistently ignored the order of reinstatement given by the Commissioner of Civil Service. He defied the directive of a superior body with final authority on the matter which is the mayor's duty to comply. For acting arbitrarily and without legal justification in terminating the services of petitioner and refusing to reinstate him as Chief of Police, the mayor must be held personally liable for the back salaries of Salcedo, except for the time Salcedo was suspended. Legislative Powers * Requisites of a valid ordinance 1. 2. 3. 4. 5. 6. 7.

Must not contravene the constitution or statute Must not be oppressive Must not impartial, fair and general Must not prohibit, but may regulate trade Must not contravene common right Must be consistent with public Must not be unreasonable NOTE: See also Solicitor General V. MMA, p. 25 of this reviewer

•

Distinction between an Ordinance and a Resolution An ordinance prescribes a permanent rule of conduct government; whereas a resolution is of temporary character only

*Article 107, IRR. Ordinances and Resolutions. The following rules shall govern the enactment of ordinances and resolutions:

1. Legislative actions in a general and permanent character shall be enacted in the form of ordinances, while those temporary characters shall be passed in the form of resolutions. Matters relating to propriety functions and to private concerns shall be enacted in a resolution. 2. Proposed ordinances and resolutions shall begin writing and shall contain an assigned number, a title or caption, an enacting or ordaining clause and the date of its proposed effectivity. In addition, every proposed ordinance shall be accompanied by a brief explanatory note contain the justification for its approval. It shall be signed by the author or authors and submitted to the secretary to the sanggunian who shall report the same to the sanggunian at the next meeting. 3. A resolution shall be enacted in the same manner prescribed for an ordinance, except that it need not go through a third reading for its final consideration unless decided otherwise by a majority of the sanggunian members. 4. No ordinance or resolution shall be considered on second reading in any regular meeting unless it has been reported out by the proper committee to which it was referred or certified as urgent by the local chief executive. 5. Any legislative matter duly certified by the local chief executive as urgent whether or not it is included in the calendar of business, may be presented and considered by the body at the same meeting without need of suspending the rules. 6. The secretary to the sanggunian of the province, city or municipality shall prepare copies of the proposed ordinance or resolution in the form it was passed on second reading and shall distribute to each sanggunian member a copy thereof, except that a measure certified by the local chief execute as urgent may be submitted for final voting immediately after debate or amendment during the second reading. 7. No ordinance or resolution passed by the sanggunian in a regular or special session duly called for the purpose shall be valid unless approved by majority of the members present, there being a quorum. Any ordinance or resolution authorizing or directing the payment of money or creating liability, shall require the affirmative vote of all the sanggunian members for its passage. 8. Upon passage of all ordinances and resolution directing the payment of money or creating liability, and at the request of any members, of any resolution or motion, the sanggunian shall record the ayes and nays. Each approved ordinance or resolution shall be stamped with the seal of the sanggunian and recorded in a book kept for the purpose. *Article 108 – 144, IRR, LGC As we go along this reviewer, we'll ferret out the cream from the crap – which articles deserve to be read again and again and which should be considered stinker, articles of such jaw - dropping ineptitude that the hapless law student has no recourse but to shake her head and mutter, “What the hell they were thinking?.” But then, this is just probably the author talking lazy, so go read the codal instead. 1. Mascunana v. Provincial Board of Negros Occidental 79 SCRA 339 Facts: The case doesn’t really teach mush -if anything at all – about the coordinates and resolution but anyway... Angel Mascunana and Angeles Veldeflor lived near a piece of land which was the subject of controversy of this case. The two claimed that this piece of land was actually part of the extension of Burgos Street. On this piece of land were squatters and their houses. One of the squatters was an influential councilor named Leon Treyes. The two requested the municipal mayor of Talisay, Negros Occidental that the land in question be cleared of squatters so that the public can make use of that portion of Burgos Street. A debate resulted on whether the land had been used as street or has it been withdrawn form public. The municipal council of Talisay made an ocular inspection of the place and declared that there was no reason for opening it to vehicular traffic (note that Treyes is a member of the municipal council). The municipal council thus passed Resolution no. 59 ordering the said land closed. The provincial board of Negros Occidental approved Res. No. 59 thru its res. NO. 1035 Mascunana and Veldeflor filed a complaint with the VCFI of Negros Occidental questioning the validity of the two resolutions. They wanted the street opened because it was a property of public dominion and if the same was not possible, then they should have been indemnified for damages under Sec. 2246 of the RAC since their properties were adjacent near the questioned land. The CFI however dismissed their complaint summarily in a minute resolution. The reason, the CFI explained, is that the issue concerns a resolution passed by a municipal corporation and therefore does

not need to be resolved thru an action for declaratory relief. Section 1, Rule 64 of the Rules of Court, the pertinent rule to be followed in this case, refers only to an ordinance and not a resolution. Should the CFI pass on the merits of the case of Mascunana and Veldeflor? Held: Yes. A trial court's order dismissing a complaint or petitions is appealable like a final judgment. Also, Mascunana, et. al.'s action is not an action for declaratory relief but an ordinary action for the enforcement of Sec. 2246 of the RAC. The issue on whether the complaint involved an ordinance or a resolution is irrelevant. 2. Magtajas v. Pryce Properties July 20, 1994 Facts: This case is interesting because local autonomy was defeated unwittingly perhaps by the same statute granting it. The LGC of 1991. PAGCOR, drunk with the success because it was able to open casinos in several cites, announce plans of opening one in Cagayan de Oro City. The reaction of the Sangguniang Panlungsod of said city was swift: it passed 2 ordinances preventing the operation of casinos in its territory. Mayor Pablo Magtajas, one of the petitioners, said the ordinances were valid because 1. the Sangguniang Panlungsod have the power to enact ordinances to prevent, suppress and impose appropriate penalties for gambling and other prohibited games of chance (Art. 468, LGC, 1991); 2. the ordinance were an expression of the police power under the General Welfare Clause; and 3. the LGC of 1991 modified the charter of the PAGCOR as the LGC of 1991 was a later enactment of Congress. Is Magtajas correct? Held: No. Reasons: 1. Art. 48 of the LGC clearly refers only to prohibit gambling and other games of chance. Casinos are not prohibited because they are expressly allowed by P.D. 1869. the law creating PAGCOR.

2. The ordinances in question cannot contravene PD 1839. It must be remembered that a municipal ordinance to be valid, must among others not contravene the constitution or any statute. The reason is that municipal governments are mere agents of the state. 3. The repealing clause of LGC of 1991 did not expressly repeal PD 1869. Implied repeal, on the other hand are not lightly presumed in the absence of a clear and unmistakable showing of such intention. There was no sufficient indication of an implied repeal of PD 1869. In fact, later enactments after the LGC of 1991 recognize the existence of PD 1869. The rule in legal hermeneutics is that statues should not be pit against each other but instead, every effort by the courts must be made to harmonize them. As a becoming respect to a co - equal (idiotic?) branch of government. V. INTERGOVERNMENTAL RELATIONS OF PUBLIC CORPORATIONS (ART. 59, 64, IRR) Article 59, IRR... General supervision of the province over component cites and municipalities. a. The province, thru its governor, shall exercise supervisory authority over component cities and municipalities within its territorial jurisdiction to ensure that they act within the scope of their prescribed powers and function. Highly urbanize cites and independent component cities shall be independent of the province. b. The scope of the supervision by the province over component cites and municipalities shall include but not limited to the following: 1. The governor shall review executive order issued by the mayor of the component city or municipality, subject to the concurrence of the sangguniang panlalawigan, except as otherwise provided under the Constitution and special statutes. If the governor and the sangguniang panlalawigan failed to act on said executive order within 30 days form receipt thereof, the same shall be deemed consistent with law and therefore valid. 2. The sangguniang panlalawigan shall review all approved city or municipal ordinance and resolution approving the development plans and public investment programs formulated by the city or municipal development councils. 3. The SP shall review the ordinances authorizing annual or supplemental appropriations of component cities and municipalities in the same manner and within the same period prescribe for the review of other ordinances of the LGU. 4. The governor shall visit component cities and municipalities of the province at least once every 6 months to fully understand their problems and conditions, listen and give appropriate counsel to local officials and inhabitants, inform the officials and inhabitants of component cites and municipalities of general laws and ordinances which

especially concern them and conduct visits and inspections to the end that the governance of the province shall improve the quality of life of the inhabitants. 5. The governor shall coordinate plans of the province in coordination with mayors of cites and municipalities as well as NGO's concerned to: a. Formulate peace and order plan of the province in coordination with mayors of component cities and municipalities and the National Police Commission. b. Adopt adequate measure to safeguard and conserve land, mineral, marine, forest and other resources of the province, in coordination with mayors of component cities and municipalities. c.

Coordinate efforts of component cites and municipalities in the national or regional palaro or sports development activities; and

d Call conventions, seminars, conferences or meetings of any elective and component cities and municipalities.

and appointed officials of the province

6. The proceeds of the basic real property tax, including interest thereon and proceeds form the use, leas or disposition, sale or redemption of property acquired at a public auction shall be shared by the province, municipality and barangay in the manner prescribed in Rule XXXI of these Rules. 7. The province shall share its collections form the tax on sand, gravel and other quantity resources within its component city and municipality and the barangay where said resources are extracted. * Article 62, IRR. Role of people's organizations, non – governmental organizations and the private sector LGU's shall promote the establishment and operation of people's organizations, NGOs and the private sector to make them active partners in the pursuit of local autonomy. For this purposes, people's organization, NGO's and the private sector shall be directly involved in the following plans, programs, projects and activities of LGUs: a. Local special bodies; b. Delivery of basic services and facilities c. Joint ventures and cooperative programs and undertakings d. Financial and other forms of assistance e. Preferential treatment for organizations and cooperatives of marginalized fishermen f. Preferential treatment for cooperatives development and g. Financing, cooperative, maintenance, operation, and management of infrastructure projects * 1. Between the national government and the local governments: 2. With PNP: 3. With component cites and municipalities: 4. With People's and Non – Governmental Organizations (Sec. 25-36, LGC) Sec. 25. National supervision over local governments a. Consistent with the basic policy on local autonomy, the President shall exercise general supervision over LGU's to ensure that their acts are within the scope of their prescribed powers and functions. The President shall exercise supervisory authority directly over provinces, highly urbanized cities and independent component cities, thru the province with respect to component cities and municipalities and the city and municipalities with respect to barangays. b. National Agencies and offices with the project implementation functions shall coordinate with one another and with the LGU's concerned in the discharge of these functions. They shall ensure the participation of LGU's both in the planning and implementation of the said projects. c.

The President may, upon request of the LGU concerned, direct the appropriate national agency provide financial, technical or other forms of assistance to the LGU. Such assistance shall be extended at extra cost to the LGU concerned

d. National agencies and offices including government – owned or controlled corporations with field under or branches in a province, city or municipality shall furnish the local chief executive concerned, for information and guidance, monthly reports including duly certified budgetary allocations and expenditures.

Sec. 26. Duty of national government agencies in the maintenance of ecological balance (just go and read the code or JGRC) Sec. 27. Prior consultations required (JGRC) Sec. 28. Powers of local chief executives over the units of the Philippine National Police The extent of operational management and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of RA 6975, otherwise known as the “DILG Act of 1990”, the rules and regulations issued are pursuant thereto. Sec. 29. Provincial relations with component cites and municipalities The province, thru the governor, shall ensure that every component cities and municipality within its territorial jurisdiction acts within the scope of its prescribed powers and functions. Highly urbanized cities and independent component cities shall be independent of the province. Sec. 30. Review of executive orders a. Except as otherwise provided under the Constitutions and special statues, the governor shall review executive orders promulgated by the component city or municipal mayor within his jurisdiction. The city municipal mayor shall review all EO's promulgated by the punong barangay within his jurisdiction. Copies of such orders shall be forward to the governor or the city or municipal mayor, as the case may be, within 3 days from their issuance. In all instances of review, the local chief executive concerned shall ensure that such EO's are within the powers granted by law and in conformity with provincial, city or municipal ordinances. b. If the governor or city or municipal mayor fails to act on said EO's within 30 days of submission, the same shall be deemed consistent with law and therefore valid. Sec 31. Submission of municipal question to the provincial legal officer or prosecutor In the absence of municipal legal officer, the municipal government may secure the opinion of the provincial legal officer and in the absence of the latter, that of the provincial prosecutor on any legal question affecting the municipality Sec 32. City and municipal supervision over their respective barangays The city or municipality, thru the city or municipal mayor concerned shall exercise general supervision after component barangay to ensure that said barangays act within the scope of their prescribed powers and functions. Sec 33. Cooperative undertakings among LGU's LGUs' may, thru appropriate ordinances, group themselves, consolidate, or coordinate their efforts, services and resources for purposes commonly beneficial to them. In support of such undertakings, the LGU's involved may, upon approval by the sanggunian concerned after a public hearing for the purpose, contribute lands, real estate, equipment, and other king of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating local units thru Memoranda of Agreement. Sec. 34. Role of people's and non – governmental organizations LGU's shall promote the establishment and operation of people's and non – governmental organization to become active partners in the pursuit of local autonomy. Sec. 35. Linkages with people's and non – governmental organizations LGU's may enter into joint ventures and such other cooperative agreements with people's and non – governmental organizations to engage in the delivery of basic services, capability – building and livelihood projects, and top develop local enterprises designed to improve productivity and income, diversity, agriculture, spur industrialization, promote ecological balance and enhance the economic and social well – being of the people. Sec 36. Assistance to people's and non – governmental organizations

An LGU may thru its local chief executive and with the concurrence of the sanggunian concerned, provide assistance, financial or otherwise to such people's and non – governmental organizations for economic , socially – oriented, environmental, or cultural projects to be implemented within its jurisdiction. REQUIREMENTS AND PROHIBITIONS APPLICABLE TO ALL LOCAL OFFICIALS AND EMPLOYEES (Sec 90, 94, 94, Art 177, 179, IRR) Section 90. Practice of Profession a. All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. b. Sanggunian officials may practice their professions, engage in any occupation, or teach in schools except during session hours. Provided, that sanggunian members who are also members of the Bar shall not: 1. Appear as counsel before any court in any civil case wherein and LGU or any office, agency or instrumentality of the government is the adverse party 2. Appear as counsel in any criminal case wherein an official or employee of the national or local government is accused of an offense committed in relation to his office 3. Collect any fee for their appearance in administrative proceedings involving the LGU of which he is an official 4. Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. c.

Doctors of medicine may practice their profession even during official hours of work only on occasion of emergency. Provided, that the official do not derive any monetary income profession.

Section 94. Appointment of elective and appointive local officials: candidates who lost in an election a. No elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure Unless otherwise allowed by law or primary functions of his position, no elective or appointive local official shall hold any other office or employment in the Government or any subdivision or agency, or instrumentality thereof, including government – owned or controlled corporation (GOCC) or their subsidiaries; b. Except for losing candidates in barangay elections, no candidate who lost in any elections shall within 1 year after such election be appointed to any office in the Government or any GOCC or in any of the subsidiaries Section 95. Additional or double compensation No elective or appointive local official or employee shall receive additional, double or indirect compensation unless specifically authorized by law, nor accept, without the consent of Congress, any present, emoluments, office, or title of any kind form any foreign government. Pensions or gratuities shall not be considered additional or double or indirect compensation. Article 177. IRR. Practice of profession. Same as Section 90, LGC Article 179. IRR Prohibited business and pecuniary interest. a. It shall be unlawful for any local government official or employee whether directly or indirectly, to: 1. Engage in any business transaction with the LGU in which he is an official or employee or over which he has the power of supervision or with any of its authorized boards, officials, agents or attorneys where money is to be paid, or property or any other thing of value is to be transferred, directly or indirectly, out of the resources of the LGU to such person or firm; 2. Hold such interests in any cockpit or other games licensed by LGU 3. Purchase any real estate or other property forfeited in favor of an LGU for unpaid taxes or assessment or by virtues of a legal process at the instance of the said LGU 4. Be a surety for any person contracting or doing business with an LGU for which a surety is acquired; and

5. Possess or use any public property of an LGU for private purposes b., All other prohibitions governing the conduct of national public officers relating to prohibited business and pecuniary interest so provided in RA 6713, otherwise known as the Code of Conduct and Ethical Standards of Public officials and Employees, and other rules and regulations shall also be applicable to local government officials and employees. Read SC Circular No. 12 dated June 30, 1988 Circulars passed by the SC and administrative agencies are a bit more difficult to research. They're probably not that important anyway – probably. 1. Javellana v. DILG 212 SCRA 475 Facts: Attorney Edwin Javellana was a city councilor of Bago City, Negros Occidental. He was accused of engaging in the practice of law without securing authority form the Regional Director of the Department of Local Government. He also filed a case against the City Engineer, obviously a fellow city official. Javellana contends that the 2 ordinances and Sec. 90 of the LGC of 1991 which served as the basis of the charges against him were unconstitutional because, according to Article VIII Section 5 of the 1987 Constitution, only the Supreme Court may promulgate rules and regulations for the practice of law. He also attacked the said laws for being discriminatory for they ganged upon lawyers and doctors when other similar professions like teachers and morticians were not affected. Held: Javellana is wrong. Reasons: 1. His contention that Section 90 of the LGC of 1991 and DLG Memorandum Circular No. 90-81 violate Article VII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Court's power and authority to prescribe rules on the practice of law. The LGC and DLG Memorandum Circular No. 90- 81 simply prescribes rules of conduct for public officials to avoid conflict of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it. 2. Section 90 of the LGC does not discriminate against the lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members “may practice their professions, engage in any occupation or teach in school except during session hours”. If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than other to relate to or affect the area of public service 2. Villegas v. Legazpi 113 SCRA 39 Facts: Raul Villegas was an Assemblyman of the Batasang Pambansa form the province of Cebu. Estanislao Fernandez was also an Assemblyman (from where, the case doesn't say, but that's not important). Both were accused of violating Sec. 11 Article VIII of the 1973 Charter which states that: “No member of the National Assembly shall appear as counsel before any court inferior to a court without appellate jurisdiction. The records show they appeared as counsel for cases which were exercised by the CFIs in their original jurisdiction. Did they violate the constitutional prohibition? Held: Yes. Stated positively, the constitutional provision allows Assemblyman to appear only when the court handling their case exercise appellate jurisdiction. Only Appellate jurisdiction is permitted because the office of the Assemblyman carry so much influence and prestige that they might unduly influence upon the administration of justice. 3. Noriega v. Sison 125 SCRA 293 Facts: The name of the guy here is Emmanuel Sison. We place emphasize on the name here coz the complainant Hermino Noriega made such a big deal out of it Noriega claimed that Sison, an attorney who works as a Hearing Officer for the SEC, held himself out to the public as “Atty. Manuel Sison” and under such a gross misrepresentation of his name handled a case for a close family friend. Noriega said that Sison violated the prohibition on government employees’ form practicing their professions. Sison replied that the SEC, thru associate commissioner, authorized him to allow as counsel for such and that he did it for free. Held: Sison's appearance as counsel as cited was an isolated case, the same therefore did not constitute practice of law since he did not receive pecuniary benefit (Note that this case took place before the advent of the Cayetano v Monsod ruling). The case against him seemed more like an instrument of harassment Noriega since the latter once lost to Sison in a SEC case. There is simply no evidence that the interchanges his name for a fraudulent purpose (the guy's entitled to use a nickname like everybody else, right?) nor this pleading which revealed his name to be “Manuel Sison” be tainted with deception since it was a mistake of Sison's part and he consistently tried to correct the same by pointing it out in court. ELECTIVE OFFICIALS A. Qualification and Election 1. Frivaldo v. COMELEC 257 SCRA 727

Facts: The dissenting opinion by Justice Davide here is both prophetic and ironic because he spoke that sovereignty cannot be fragmentized because such fragment cannot be treated as a whole. Davide was talking about the rule that the popular will of the people (of Sorsogon) in electing Juan Frivaldo as governor should not be frustrated since he garnered the most votes. Yet Frivaldo won under a cloud of doubt because he may not have legally reacquired his citizenship in time for the elections. To allow Frivaldo as governor just because the popular will of the electorate should not be frustrated – but setting aside the rule of law in the process – would be anarchy. Davide said (How ironic that it was Davide himself who swore in GMA as President during EDSA II) The majority opinion however, fortunately or otherwise, is the prevailing rule, Frivaldo filed his certificate of candidacy for governor on March 20, 1995. Raul Lee, the eventual second placer, filed a petition with the COMELEC to disqualify Frivaldo because he was not yet a Filipino citizen at the time. The COMELEC ruled in favor of Lee but since Frivaldo moved for reconsideration, his candidacy continued. Frivaldo eventually topped the elections but on June 30, 1995, the COMELEC acting on Lee's petition, proclaimed Lee as governor. A week later, Frivaldo filed a petition claiming that on June 30, 1995 (day of Lee's proclamation), he took his oath of allegiance as a Filipino citizen after his August 17, 1994 petition for repatriation has been granted. The COMELEC thus proclaimed Frivaldo as winner. Lee contends: 1. that Frivaldo's disqualification due to his lack of citizenship is a continuing condition and rendered him ineligible to run for governor; and 2. the alleged repatriation of Frivaldo cannot be retroactive. Held: Lee is wrong (or maybe, wronged). Reasons:

1. Under Sec. 39 of the LGC of 1991, there is no showing that a candidate for an electoral position must be a Filipino citizen at any particular date and time. Admittedly, there was the objection that since a candidate must have been a registered voter beforehand, he must have therefore possessed Filipino citizenship in order to become a registered voter. The Court gave an explanation – that the qualification of citizenship for a registered voter and that for a candidate are separate. The registration requirement of a candidate moreover, is for the purpose of registering him as a voter in the area or requirement of a candidate moreover, is only for the purpose of registering him as a voter in the area or territory he seeks to govern. He does not actually have to vote (Ang layo! The issue is citizenship, not voting. The issue of being a registered voter was merely raised to bolster the claim that the qualification of citizenship is a continuing one and thus cannot be acquired at a later time. The Court is saying, “Run now, acquire citizenship later,” which is lousy. Is this the way we treat our precious citizenship?) 2. The alleged repatriation of Frivaldo can be retroactive. PD 725 declares that repatriation creates a “new right” in order to cure a defect in the existing naturalization law. In Frivaldo's cause he was stateless at the time he took his Filipino oath of allegiance since in his comment, he has long renounced his American citizenship (a self serving statement). Moreover since he ran for governor several times prior to 1995, he necessarily must have taken the Filipino oath of allegiance several times as well, which is another indication of renunciation of his American citizenship (Davide countered that it is the US, not Frivaldo, who decides who is and who is not her nationals, a principle in international law). Therefore, to prevent prejudice to Frivaldo by letting him remain stateless for a substantial period of time while in the meantime being deprived of his rights, it is clear then that PD 725 was intended to be retroactive. In short, Frivaldo's repatriation retracted to Aug 17, 1994, the day he filed his application for such and not just on June 30, 1995. 2. Salomon v. NEA 169 SCRA 507 Facts: Natividad Salomon was a Director for the La Union Electric Corporation (LULECO). Because she was also a Barangay Captain of Natividad, Naguilan, La Union, the Minister of Local Government of La Union appointed her as a member of the sangguniang Panlalawigan of La Union. The National Electrification Administration, however, disqualified her from further acting as LULECO director by authority of Sec. 21 of PD 269 which says, “Elective officers of the government, except barrio captain and councilors, shall be ineligible to become officers and/or directors of any (electric cooperative).” (Section 21 PD No. 269). The legal provision is also incorporated in section 3, Article IV of the LULECO's by – laws which runs: “No persons shall be eligible to become or to remain a board member of the cooperative who holds an elective office in the government above the level of a barangay captain.” Salomon simply argued that she is not an elective officer but an appointive officer as the facts above show. Is she therefore exempt form the prohibition? Held: No, the spirit of the law would be undermined – that incumbents of elective offices be prevented form exerting political influence and pressure on the management of the cooperative. The spirit of the law is as much a part of what is was written (wow). B. Vacancies and succession 1. Permanent Vacancies * Sec 44. Permanent vacancies in the office of the governor, vice – governor, mayor and vice mayor.

a. If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs on the office of the governor, vice – governor, mayor, or vice – mayor as the case may be. Subsequent vacancies in the said office shall be filled automatically by other sangguniang members according to their ranking as defined therein. b. If a permanent vacancy occurred in the office of the punong barangay, the highest ranking sangguniang barangay member or, in the case of his permanent inability, the second highest ranking sanggunian member shall become the punong barangay. c. A tie between or among the highest ranking sangguniang members shall be resolved by the drawing of lots d. The successors as defined herein shall serve only the unexpired portions of their predecessors. For purposes of this chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in this chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. * Sec 45. Permanent vacancies in the sanggunian a. Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the manner provided: 1. The President, thru the Executive Secretary, in the case of the Sangguniang Panlalawigan and the Sanggunian Panlungsod of highly urbanized cites and independent component cities; 2. The governor, in case of the sangguniang panlungsod of component cites and the sangguniang bayan 3. The city or municipal mayor, in case of the sangguniang barangay, upon recommendation of the sangguniang bayan concerned b. Except for the sangguniang barangay, only the nominee of the political party under which the sangguniang member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the same manner herein provided. The appointee shall come form the same political party as that of the sangguniang member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non and any appointment without such nomination shall be null and void and shall be a ground for administrative action against the official thereof. c. In case the permanent vacancy in the representation of the youth and barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank by the organization concerned 2. Temporary Vacancies * Section 46 Temporary vacancies in the office of the local chief executive a. When the governor city or municipal mayor or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as but not limited to, leave of absence, travel abroad, suspension from office, the vice-governor, city or municipal vice-mayor or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties of the local chief executive concerned except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of the temporary incapacity exceeds for 30 working days b. Said temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has to return back to office. In cases where the temporary incapacity is due to legal causes the local chief executive concerned shall also submit necessary documents that said legal causes no longer exist. c. When the incumbent local chief executive is traveling within the country but outside his territorial jurisdiction for period not exceeding 3 consecutive days, he may designate in writing an officer-in-charge of the said office. Such authorization shall specifies the powers and functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees d. In the event, however, that the local chief executive concerned fails or refuses to issue such authorization, the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume powers, duties and function of the said office on the 4 th day of absence of the said local chief executive, subject to the limitation provided in subsection (C) hereof.

e. Except as provided above the local chief executive in no case authorized any local official to assume the powers, duties and functions, other than the vice-governor, the city or municipal vice-mayor, the highest sangguniang barangay member, as the case may be. 3. Resignation * Article 82 IRR. Resignation a. Resignation of elective local officials shall be deemed effective only upon acceptance of the following authorities: 1. By the President, in the case of governor and vice-governor, mayors and vice-mayors of highly urbanized cities, independent component cities and municipalities within the Metro Manila and other metropolitan political subdivisions as may be created by law. 2. By the governor, in case of municipal mayor, municipal vice-mayors, mayors and vice-mayors of component cities 3. By the sanggunian concerned, in the case of sanggunian members: and 4. By the city or the municipal mayor, in the case of barangay officials b. The DILG shall be furnished copies of the letters of the resignation letters of elective local officials together with the action taken by the authorities concerned c. The resignation shall be deemed accepted if not acted upon by the authority concerned within 15 days from receipt thereof d. Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records. This provision shall not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribed of acting upon such resignations. 1. Panis v. Civil Service Commission 229 SCRA 589 Facts: The Cebu City Medical Center (CCMC) is a government hospital of Cebu City. One day, a new office in said hospital was created by virtue by a valid reorganization – the Assistant Chief of Hospital for Administration. Two candidates for the appointive position cropped up. Jaime Panis and Bella Veloso, Panis loved to crow about his seniority status and thought he would be chosen for the position. However, the city mayor appointed Veloso, Panis now claims that the appointment of Veloso was made in violation of law, existing civil service rules and established jurisprudence because the seniority and next in rank rules were disregarded. Held: Panis is wrong. First, even if granting that Veloso was originally an outsider as she came from the private sector, it will not prohibit her employment as long as she has her civil service eligibility. Second, the next rank rule applies only in cases of promotion. The position being fought was newly created. Assuming however, that said position could only be filled up through promotion, still the next in rank rule is not mandatory – it nearly gives preferential treatment. Ultimately, the power to appoint lies within the discretion of the local chief executive vested with the power, provided that appointee possesses the minimum requirements provided by law. 2. Menson v. Petilla 197 SCRA 251 Facts: For a time, the province of Leyte had not proclaimed any governor. So on February 16, 1988, the secretary of local government appointed vice-governor Leopoldo Petilla as acting governor of the province of Leyte. Now the position of vice-guy was vacant. The secretary of local government thus appointed Aurelio Menson, a senior member of sangguniang panlalawigan as vice-governor. Everything would have been fine except for one thing: the LGC of 1983 does not provide for succession of the office of the vice-governor (even the LGC of 1991 as well). Still, Menzon did serve for more than a year as vice-governor. On July 7, 1989, after some serious debate on the legality of Menson's appointment, the sangguniang panlalawigan issued a resolution holding invalid the appointment of Menson as vice-governor. Their reasoning: legally speaking, there is no vacancy in the office of the vice-governor cause no law recognizes its existence. And granting that such vacancy legally exists, the law does not authorize secretary of local government to have an appointment thereto. As a result, poor Menson was not paid emoluments attached to his office as vice-governor. Was there really a vacancy? Is Menson entitled to the emoluments? Held: 1. Menson was appointed precisely to avoid such scenario. Besides, the law on public officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. In a scenario there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. Applying the definition of vacancy in this case, it can be readily seen that the office of the vice-governor was left vacant when the duly elected vice-governor Leopoldo Petilla was appointed acting governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the vice-governor

2. It may be noted under commonwealth act no. 588 and the revised administrative code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Admittedly, both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the local government code and in the best interest of public service, the SC saw no-cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. Petilla et. al. contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local government as provided by law and the members of the board who are junior to the vice-governor, the SC has no problem ruling in favor of the president, until the law provides otherwise. 3. In view of the foregoing, Menson's right to be paid the salary attached to the office of the vice-governor is indubitable. And, even granting that the President, acting through the secretary of local government, possesses no power to appoint the petitioner, at the very least, the petitioner is de facto officer entitled to compensation. 4. The SC explained that the vacancy must always be filled, in this wise: “A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of the right of the representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc, the management of governmental affairs, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the governor or the vice-governor is missing” 3. Sangguniang Bayan of San Andres, Catanduanes v. CA 284 SCRA 276 Facts: Augusto Antonio was a barangay captain of Sapang Palay, San Andres, Catanduanes in March 1989. This guy later became president of the Association of Barangay Councils or ABC. Thanks to the LGC of 1983, his position also entitles him to be a member of the sangguniang bayan of the Municipality of San Andres. Meanwhile, the election for president of the Federation of the Association of Barangay Councils (ABC) was for the municipality. FABC was for the province was declared void for lack of quorum so the provincial council was forced to reorganize. As a result, the DILG secretary, in recognition of Antonio as a power hungry politician, designated him as a temporary member of the Sangguniang Panlalawigan. Nenito Aquino, the ABC vice-president took his place. Antonio however, never questioned Aquino as his replacement. Antonio tendered his resignation from the sangguniang bayan (but not as ABC president) and would later on serve the sangguniang panlalawigan for 2 years. Some time afterwards, the election for president of FABC above quoted, which was once declared void, was reversed by the SC. Also, was found to unqualified for membership in the Sangguniang Panlalawigan so he got promptly kicked-out. A year passed. Then Antonio heard that Aquino resigned from the presidency of the ABC. Antonio now wants his old job back as ABC president. The Sangguniang Bayan refused to take him back, saying he resigned from the Sangguniang Bayan a long time ago. Antonio replied that the third requirement for his valid resignation – acceptance by the president or his alter ego was missing. Moreover, if his resignation was valid he did not resign as ABC president – and said position still carries with it the benefit of being an ex-officio member of the Sangguniang Bayan. The Sangguniang Bayan countered that he either did one of two things – resignation or abandonment of his old post. Held: Antonio did not effectively resign but he did abandon his post. Reasons: 1. Resignation as the “Act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form expressed or implied or the intention to surrender renounce and relinquish the office and the acceptance by competent and lawful authority.” To constitute a complete and operative resignation from public office, there must be: a. an intention to relinquish a part of the term; b. an act of relinquishment; and c. an acceptance by the proper authority. The last one is required by reason of Article 238 of the Revised Penal Code. Antonio did not effectively resign because the third element is missing. While it is true that the LGC is silent as to who shall accept the resignation of a Sanggunian Bayan member, jurisprudence has held that in the absence of statutory provisions as to whom resignations shall be submitted, the appointing person or body shall receive the resignation. The president or his alter ego is the appointing person in this case and there was no evidence that either of them have received Antonio's resignation. 2. Antonio however, abandoned his post. Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder with the intention of terminating his possession and control thereof. The following clearly manifest the intention of private respondent to abandon his position: 1. his failure to perform his function as member of the Sangguniang Bayan. 2. his failure to collect the corresponding remuneration for the position, 3. his failure to object to the appointment of Aquino as his replacement in the Sangguniang Bayan, 4. his prolonged failure to initiate any act to re assume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.

On the other hand, the following, the following overt acts demonstrate that he had affected his intention 1. his letter of resignation from the Sangguniang Bayan, 2. his assumption of office as member of said Sanggunian Panlalawigan 3. his faithful discharge of his duties and functions as member of said Sanggunian and 4. his receipt of the remuneration for such post. While it was true that Antonio was designated as member of the Sanggunian Panlalawigan – meaning his appointment there was merely to discharge duties in addition to his regular responsibilities as a Sanggunian Bayan Members – still his express and implied acts clearly indicate hi abandonment of the latter. 3. Lastly, Antonio, who remained ABC president, claims the legal right to be a member of the Sangguniang Bayan by virtue of Section 146 of BP Blg 337. However, his right thereto is not self – executory, for the law itself requires another positive act an appointment by the President or the secretary of local government per EO 342. What Antonio could have done in order to be able to re assume his post after Aquino's resignation was to seek a reappointment form the President of the secretary of local government. By large, Antonio cannot claim an absolute right to the office which. By his own actuations, he is deemed to have relinquished. 4. Gamboa Jr. v. Aguirre Jr. 310 SCRA 867 Facts: In the 1995 elections, we have the following winners from Negros Occidental: Rafael Coscolluela as governor; Romeo Gamboa as vice governor; and Marcelo Aguirre and Juan Araneta as Sangguniang Panlalawigan (SP). Now, under the LGC of 1991, the vice governor shall also be the officer of the SP. Keep this in mind later on. The governor went away on an official trip abroad. Before he left, he designated vice governor as acting governor. So the vice governor became acting governor. But when vice governor Gamboa, who was now acting governor as well, tried to preside over SP sessions, some SP members resented and even filed a case in court to prohibit him from doing so. The court even declared Gamboa as “temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the acting governor.” Was the trial court correct? Held: Yes, if you'll look at the composition of the SP, no presence of the governor. can be found. Since Gamboa became acting governor., he technically had given up his SP membership notwithstanding him being still vice governor. since the LGC of 1991 is clear that the composition of the SP should not have even the slightest hint of governor's presence – not even his smell. What the law enumerates, the law necessarily excludes. An acting give smells like a governor. For all other purposes however, Gamboa still remains as vice governor. In such case, since the vice governor. cannot preside, the SP members present and constituting a quorum shall elect a temporary presiding officer form among themselves (Sec 49b, LGC) C. Recall(See 69-75, LGC and Art 154 – 162, IRR) * Sec 69, LGC. By whom exercised. The power of recall for loss of confidence shall be exercised by regular voters of an LGU to which the local elective official subject to such recall belongs. * Sec 70 Initiation of the recall process a. Recall may be initiated by a preparatory recall assembly or by the registered voters of the LGU to which the local elective official to such recall belongs. b. There shall be a preparatory recall assembly in every province, city, district and municipality which shall be composed of the following: 1. Provincial level. All the mayors, vice – mayors and sanggunian members of the municipalities and component cities 2. City level: all punong barangay and sangguniang barangay members in the city 3. Legislative district level. In case where sangguniang panlalawigan members are elected by district, all elective municipal officers in the district and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district and 4. Municipal level. All punong barangay and sangguniang barangay members in the municipality. c. A majority of all the preparatory recall assembly members may convene in session in a public place initiate a recall proceeding against any elective official in the LGU concerned. Recall of city, provincial and municipal officials shall be validly initiated through a resolution adopted by a majority of all the preparatory recall assembly concerned during its session called for the purpose. d. recall of any elective provincial, city, or municipal or barangay official may also be validly initiated on petition of at least 25% of the total number of registered voters in the LGU concerned during the election which the local official sought to be recalled was elected. 1. A written petition for recall duly signed before the election registrar or his rep and in the absence of rep of the petitioner and a rep of the official sought to be recalled and in a public lace in the province, city or municipality or barangay as the case maybe, shall be filed with the COMELEC thru its office of the LGU concerned. The COMELEC or its duly

authorized rep shall cause the publication of the petition in a public and conspicuous place for a period of not less than 10 days nor more than 20 days for the purpose of ratifying the authenticity and genuineness of the petition and the required percentage of voters. 2. Upon the lapse of the aforesaid period, the COMELEC or its duly authorize rep shall announce the acceptance of candidates to the position and thereafter prepare a list of candidates which shall include the name of the official sought to be recalled. *Sec 71 Election on recall. Upon filing of a valid resolution or petition for recall with the appropriate local office of the COMELEC, the Commission or its duly recognized rep shall set the date of the election on recall, which shall be not later than 30 days after the filing of the resolution or petition for recall in the case of the barangay, city, or municipal officials and 45 days in the case of provincial officials. The official officials sought to be recalled shall automatically be considered as a duly registered candidate or candidates to pertinent positions and like other candidates, shall be entitled to be voted upon. *Sec 72 effectivity of recall. The recall of an elective local official shall be effective only upon the secretion and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed and he shall continue in office. *Sec 73 Prohibition form resignation. The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. *Sec 74 Limitations on recall a. An elective local official may be the subject of a recall election only once during the term of his office or loss of confidence. b. No recall shall take place within 1 year from the date of the official's assumption to office of 1 year immediately preceding a regular local election. * Sec 75. Expenses incidental to recall elections. All expenses incidental to recall elections shall be borne by the COMELEC. For this purpose, there shall be included in the annual General Appropriation Act a Contingency fund at the disposal of the COMELEC for the conduct of recall elections. * Art 154 – 162, IRR. Exactly the same as above, but with addition of “Who may be recalled” (see below) 1. Requisites If there's such a thing as requisites of a recall, it's probably found buried in Section 69 and 70 of the LGC of 1991. The requisites probably are: a. Initiation, either thru direct action by the people or thru a preparatory recall assembly; and b. Election •

2. Who may be recalled Art 155. IRR Who may be recalled. Any elective provincial, city, municipal or barangay official may be recalled for loss of confidence in the manner prescribed in this rule provided that no recall may be instituted against said elective local official who have been the subject of a previous recall election held during the same term of office.

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3. Grounds for recalls Loss of confidence, which is a political question 4. When recall may not be held See Section 74, LGC of 1991 5. Procedure for recall See Section 70, supra 6. Effectivity of recall See Section 72, supra 1. Garcia v. COMELEC 227 SCRA 100 Facts: Enrique Garcia was elected Governor of Bataan in the 1992 elections. Some mayors, vice mayors and Sangguniang Bayan members of the 12 municipalities of Bataan however convened and constitute themselves into a Preparatory Recall Assembly to initiate the recall of Garcia. The PRA's first resolution calling for the recall of Garcia was however shot down by the SC because it was found that the backers of the PRA sent only selective notices to local

officials most likely sympathetic to their cause. The PRA thus cured this defect in their second resolution. Scared, Garcia now assails the constitutionality of Section 70 of the LGC of 1991, which allows a preparatory recall assembly to initiate a recall of an elective official. Garcia says that it’s highly possible that the dominant political party in government can use a recall as a tool in ousting their incumbent opponents; 2) the RPA is not reflective of the people’s will; 3) the right to initiate recall rests with the people itself. Held: Garcia is wrong reasons: 1) All powers are subject to abuse anyway. To deny power because it can be abused by the grantee is to render government powerless and no people need a toothless government. This is the reason behind the presumption that public officials are actually performing their duties in good faith. 2) The PRA is merely a step in the recall process. The recall it self still has to be submitted to the people for affirmation thru an election. The PRA is not the recall itself, thus it cannot be said to be reflective of the people’s will. 3) The PRA is also initiation of recall by the people themselves, although done indirectly through their representatives. The reason for using PRA as a mode for initiating recall is because admittedly, initiating recall thru direct action by the people is difficult and expensive. 4) Davide’s dissent: the power to initiate recall includes the power not to initiate. The power to initiate becomes meaningless if another body is authorized to do it for the electorate. It’s not hard to see that in reality, it’s far easy get majority of the PRA to initiate a recall proceeding. In effect a small group can easily negate the power of the vast electorate to initiate recall (therefore, the good justice is doubtful of the republican system of the government). What congress should have done is to reduce the minimum 25% requirement down to 15 or 20% (which is good idea). 2. Evardone v. COMELEC 204 SCRA 464 Facts: The guys here calling for a recall of an elective official failed because they initiated the recall a bit too late. Felipe Evardone won as mayor of municipality of Sulat, Eastern Samar in the 1988 election. 2 years later, Alexander Apelado and friends filed a petition for the recall of Evardone. The COMELEC approved the signing of the said petition for recall. There was some ballyhoo regarding a TRO issued by the SC retraining Apelado and friends from proceeding of the signing of the petition, but that’s not important. What Everdone complaining about is that the COMELEC cannot formulate rules and regulations governing the procedure of recall elections because according to the 1987 Constitution, Congress is supposed to pass a new local government code which would provide for the procedure in recall elections. Since such a code wasn’t passed at the time, the initiation for recall must fail because there’s no procedure in existence to follow anyway. Held: The initiation of recall must fail, but for a different reason. 1) Its true tat the LGC of 1991 has yet to be passed. However, the LGC of 1983 (BP 337) was still in force in hat time as can be shown in the proceedings of the 1986 Constitutional Commission where the effectiveness of BP 337 was expressly recognized. BP 337 authorizes the COMELEC to supervise and control recall elections and promulgate the necessary rules and regulations. 2) However, the SC promulgated this decision in 1991. The 1992 elections was only 7 months away, BP 337 disallows the holding of recall elections one year immediately preceding a regular local election. 3. Paras v. COMELEC 264 SCRA 49 Facts: Pati SK elections ba naman pinatulan ng recall. Danilo Paras won as Punong Barangay in the 1994 barangay elections of Pula, Cabanatuan City. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Paras managed to delay the holding of the recall elections 3 times (note that the term of a Punong Barangay is for 3 years only). The third attempt at a recall election was slated for January 13, 1996. Paras gleefully noted that the recall action was barred by representation as no recall shall take place. 1 year immediately preceding a regular election as managed by SEC.74(b), LGC of 1991. Held: A Sangguniang Kabataan (SK) election is not a regular local election, at least within the contest of Section 74 because said Section 74, when taken together as a whole, is intended for elective positions with minimum terms of 4 years. Para’s interpretation of the statute is too literal and absurd. The spirit, rather than the letter of the law, determines it’s contents. However Para’s delaying tactics worked. The next regular elections concerning the barangay office concerned is merely 7 moths away. Recall is no longer possible by virtue of same election 74(b). Para’s still merges as the winner (Moral lesson: Wag mo ng patulan ang SK elections 3 taon lang naman natiis yan eh). 4. Mercado v. Board of Elections Supervisors of Ibaan, Batangas 243 SCRA 422 Facts: Jose Mercado was proclaimed SK chairman of Barangay Mabalor, Ibaan Batangas during the 1992 elections. His rival, Crisanto Pangilinan, filed a protest with the Board of Elections Supervisors (BES) on the ground that some votes, were invalidated by the Board of Election Tellers (BET) Chairman without insulting his fellow members. Pangilinan won in the recount

Mercado assailed in the authority of the BES act on the protest filed by his rival. He said the ground created by Pangilinan was in the nature of an election protest properly cognizable by the Metropolitan or Municipal Trial Court (as mandated by Section 252 of the Omnibus Election Code) and not by some never heard BES, a body created by the COMELEC thru its Resolution No. 2499. The RTC dismissed Mercado’s complaint saying that Resolution No. 2499 of the COMELEC did not vest in the RTC jurisdiction to try SK elections. Mercado then argued at the SC that Res. No. 2499 was null and void in the first place because SK elections are governed by the Omnibus Election Code and not by some numb resolution passed without legal basis by the COMELEC. Held: Mercado is mistaken. Reasons: 1) The SK election is not an election involving elective barangay officials within the context of the Omnibus Election Code and the Constitution. The position of SK chairman is not include as one of the elective members of the Sangguniang Barangay (which consist of the punong barangay and 7 regular sangguniang barangay members). An SK chairman is at best merely an ex-officer member of Sangguniang Barangay. Therefore, SK elections are not governed by the Omnibus Election Code. 2) Article 203 of the IRR of the LGC 1991 states that SK elections shall be governed by the rules promulgated by the COMELEC. Therefore, the BES, as a creation of COMELEC Res. No. 2499, has legal authority to take cognizance of the SK election protest. 5. Claudio v. COMELEC 311 SCRA 388 Facts: Jovito Claudio won as mayor of Pasay City in the 1998 elections. In May, 1999, less than a year later, several barangay chairs gathered to discuss the filing of a petition for recall against Mayor Claudio and the Convening of the PRA. It took only less than 2 weeks for the members of the PRA to obtain a majority vote for the passing of a resolution calling for said recall. Claudio however complained that what his opponents did was contrary to section 74 of the LGC 1991, because of the word “recall” in said section should be interpreted not only to mean a recall election alone, but is also intended to include the convening of the PRA and the filling by it of a recall resolution. If Claudio’s interpretation is correct, then his enemies may have indeed violated the statutory prohibition that “no recall shall take place within 1 year from the date of the official’s assumption to office” since the PRA did indeed convene less than a year from Claudio’s assumption into office. Claudio also argued that the phrase “regular local election” in said Section 74(b) includes the election period for that regular election and not only the date of such election. Held: Claudio is wrong. Reasons: 1) The word recall in Section 74(b) refers to the recall election and not the preliminary proceedings to recall. Section 74 speaks of limitations on “recall” which, according to section 69, is a power which exercised by the registered voters of an LGU. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the 1 year period provided. 2) Another reason why the initiation of recall proceedings is not prohibited within the 1 year period provided in 74(b) is that to hold the otherwise would be to unduly restrict the constitutional right of speech and of assembly of its members. Indeed, it would be wrong to assume that such assemblies will always eventuate in a recall election. To the contrary, they may result in the expression of confidence in incumbent. 3) The election period is not included in the phrase “regular local election.” Claudio’s interpretation would severely limit the period during which a recall election may be held. Such an interpretation must be rejected because it would devitalize the right of recall which is designed to make LGU’s more responsive and accountable D. Local Initiative and Referendum (Sec. 120-127, Art. 133-153, IRR) *Sec. 120, LGC. Local initiatives defined. Local initiative is the legal process whereby the registered voters of an LGU may directly propose, enact, or amend any ordinance. *Sec. 121. Who may exercise. The power of local initiative and the referendum may be exercised by all registered voters of the provinces, cities, municipalities and barangays. *Sec. 122. Procedure in local initiative. a) Not less than 1,000 registered voters in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the sanggunian concerned proposing the adoption, enactment, repeal or amendment of an ordinance. b) If no favorable action is taken thereon by the sanggunian concerned within 30 days from its presentation, the proponents, thru their duly authorized representatives, may invoke their power of initiative giving notice thereof to the sanggunian concerned. c) The proposition shall be numbered serially from Roman numeral I. The COMELEC or its designated representative shall extend assistance in the formulation of the proposition.

d) 2 or more propositions may be submitted in an initiative. e) Proponents shall have 90 days in the case of provinces and cities, 60 days in the case of municipalities, and 30 days in the case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures. f) The petition shall be singed before the election registrar, or his designated rep. in the presence of the representative of the proponent and a rep. of sanggunian concerned, in a public place in the LGU, as the case may be. Stations for collecting signatures must be established in as many places as may be warranted. g) Upon the lapse of the period herein provided, the COMELEC, thru its office in the LGU concerned for their approve within 60 days from the date of certification by the COMELEC, as provided in subsection (g) hereof, 45 days in the case of municipalities, and 30 days in the case of barangays. The initiative shall then be heard on the date set, after which the result thereof shall be certified and proclaimed by the COMELEC. *Sec. 123. Effectively of local propositions. If the proposition is approved by a majority of a vote cast, it shall take effect 15 days after certification by the COMELEC as if affirmative action thereon had been position is considered defeated. *Sec. 124. Limitations of local initiative. a) The power of local initiative shall not be exercised more than once a year. b) Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact. c) If at any time before the initiative is held, the sanggunian concerned adopts in to the proposition presented and the local chief executive approves the same, the initiative shall be canceled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. *Sec. 125. Limitations upon sanggunian. Any proposition or ordinance adopted thru the system of initiative and referendum as herein provided shall not be repealed, modified, or amended by the sanggunian concerned within 6 months from the date approval thereof and may be amended, modified, or repealed within 3 years thereafter by a vote of ¾ of its members: Provided, that in case of barangays, the period shall be 18 moths after the approval thereof. *Sec. 126. Local referendum defined. Local referendum is the legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the direction and control of the COMELEC within the 60 days in case of provinces and cities, 45 days in case of municipalities and 30 days in the case of barangays. The COMELEC shall certify and proclaim the results of the said referendum. *Sec. 127. Authority of courts. Nothing in this chapter shall prevent or preclude the power courts from declaring null and void any proposition approved pursuant to this Chapter for the violation of the Constitution or want of capacity of the sanggunian concerned to enact the said measure. NOTE: Articles 133-153, IRR are roughly the same Section 120-127 above. However, we should take note of Art. 145, IRR, which basically states the number of signature required. 1) In a province or city – at least 10% of the registered voters therein, with each legislative district represented by at least 3 % of the registered voters therein. 2) In a municipality – at least 10% of registered voters therein, with each barangay represented by at least 3% of registered voters therein. 3) In a barangay – 10% of registered voters therein. 1. Garcia v. COMELEC 237 SCRA 279 Facts: The Sangguniang Bayan (SB) ng Morong, Bataan passed Resolution No. 10 wherein agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accordance with RA 7227 Enrique Garcia (who’s this guy? His name keeps popping out of nowhere) and friends filed a petition with the SB to annul the said resolution. When their petition went unheeded, Garcia resorted to the power of initiative under the LGC of 1991. The COMELEC however denied the petition for local initiative on the ground that under the LGC of 1991m the subject of local initiative refers only to an ordinance and not a solution. Is the COMELEC correct? Held: No. and the SC made COMELEC pay by dumping tons of legal basis providing that resolutions can also be the subject of local initiatives thus making the case as written unnecessarily long. Some reasons are: 1) Sec. 32 of Article VI of the Constitution says that initiative and referendum is a system wherein the people can directly propose and enact laws or approve or reject any act or law. The word “act” makes it clear that resolutions are also included initiatives. 2) RA 6735 defines 3 system of initiative, one of them being initiative on local legislation which included, among others, resolution.

3) In the LGC itself, Section 124 says, “Initiatives shall extend only to subjects or matters which are within the legal powers of the Sanggunian to enact.” Definitely, the scopes of Sanggunian’s powers include resolutions which make them covered under initiatives. E. Disciplinary Action (Art. 124, IRR) *Article 124. Grounds for Disciplinary Action. a) An elective local official may be censured, reprimanded, suspended or removed from office after due notice and hearing on the following grounds: 1) Disloyalty to the republic of the Philippines. 2) Culpable violation of the Constitution. 3) Dishonesty, oppression, misconduct in office, gross negligence or dereliction of duty. 4) Commission of any offense including moral amplitude or an offense punishable by at least prison mayor which is from 6 years and 1 day to 12 years imprisonment. 5) Abuse Authority 6) Unauthorized absence of 15 consecutive working days, in the case of the local chief executive and 4 consecutive sessions in the case of members of the sanggunian panlalawigan, sanggunian panlungsod, sangguniang bayan and sangguniang barangay. 7) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and 8) such other grounds as may be provided by the Code, RA 6713, RAC of 1987, RPC and all other applicable general and special laws. b) An elective local official may be removed from office on the grounds enumerated in paragraph a, of this article by order of the proper court, or the disciplinary authority whichever first acquires jurisdiction to the exclusion if the other. 1. Grounds for Suspension and Removal (Sec. 60, LGC) *Sec. 60 Grounds for disciplinary action. (Same as Article 124, IRR above). 1. Espiritu v. Melgar 206 SCRA 256 Facts: A certain Ramir Garing filed a complaint against Mayor Nelson Melgar of Naujan, Oriental Mindoro, charging him with grave misconduct, abuse of authority, oppression, culpable violation if the Constitution (no kidding, Garing practically threw the revised penal code at him). Garing claimed the mayor punched and kick him willfully unlawfully and feloniously (you know, the usual “I’m innocent, believe me” way of introducing a complaint) while the latter was delivering a public speech. After evaluating the complaint, Governor Benjamin Espiritu had the mayor preventively suspended for 60 days. Upon petition by the mayor, the RTC of Oriental Mindoro issued a writ of preliminary injunction preventing the governor’s order of suspension. Was the injunction proper? Held: No, Reasons: 1) The provincial governor of Oriental Mindoro is authorized by the law to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist: a. When there is reasonable ground to believe that the respondent has committed the act or acts complained of. b. When the evidence of the culpability is strong. c. When the gravity of the offense so warrants; or d. When the continuance in office of the respondent could influences the witnesses or pose a threat to the safety and integrity if the records and other evidence. (LGC of 1893). 2) As a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and the sufficiency of the cause. So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separations of powers demand that the action of said officer or body should be left undisturbed. 2. Llamas v. Orbos 202 SCRA 844 Facts: Mariano Un Ocampo III was the incumbent governor of the province of Tarlac in 1989. he was charged by the vise governor Rodolfo Llamas of violating RA 3019, the Anti-Graft and Corrupt Practices Act Specifically, he was charged with executing a loan agreement with a non-stock and a non-profit organization headed by the governor himself as chairman wherein said agreement was grossly inimical to the interest of the Provincial Government (because the loan, among others, did not provide for interest and security). The Department of Local Government Secretary Oscar Orbos, after reviewing the governor’s case, slapped a 90 days suspension (not preventive suspension) on the hapless governor. Thereafter, the vise governor took over as acting governor. The governor filed a motion for reconsideration. However the DLG secretary, in the spirit of Christmas perhaps, filed a resolution granting executive clemency to the governor by reducing his sentence to that portion had already served. The vise governors now question the legality of issuing executive clemency or pardon to the administrative case when the same should apply only to criminal cases.

Held: Llamas is incorrect. The 1987 Constitution makes no distinction as to criminal or administrative cases. The phrase “after conviction of final judgment” does not make explicit reference to criminal cases fact, the Constitution does not allow pardon in impeachment cases. That the Constitution does not make a same exemption to the administrative cases shows that executive clemency can be granted in administrative cases. Section 43 of PD 807 also recognizes executive clemency in administrative cases “in meritorious case by commutation or removal” Padilla’s Dissent: the spirit and intent of pardons is to afford relief from the enforcement of the criminal which imposes penalty and which appears unduly harsh. To grant pardons to release private obligations prevent or destroy civil rights is plain abuse. 3. Aguinaldo v. Santos 212 SCRA 768 Facts: Rodolfo Aguinaldo was elected governor of Cagayan in 1988. Two years later, after due no hearing, the Department of Local Government Secretary Luis Santos found Aguinaldo’s guilty of disloyalty to the Republic and of culpable violation of the Constitution. Santos ordered Aguinaldo’s removal from of Pending criminal charges of disloyalty to the republic, under Art. 137, RPC were also lodged against him: Aguinaldo questioned the legality of his removal with the SC. In the meantime, Aguinaldo filed certificate of candidacy for governor again. 3 disqualification cases were filed against him on the ground he was removed from office. Still, he was allowed to run and won a landslide victory. Held: Since Aguinaldo was re-elected as governor, the pending administration case against regarding his removal from office was rendered moot and academic. The reason is that the electorate clearly forgiven him for the administrative misconduct he committed during the last term. This is the rule along with the theory that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer’s misconduct to the extent of cutting of the right to remove him therefore. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. NOTE: Under the qualified agency doctrine, alter egos of the President have the power to discipline, suspend or remove elective officials under the grounds provided by law. 4. Yulo v. CSC 219 SCRA 470 Facts: Back in November 24, 1986, Officer-In-Charged Apolonio Elasigue of the municipality of Calamba, Laguna terminated the services of Teofilio Mamplata and 43 other employees of said municipality. The basis municipality for the termination was reorganization and the approval of a new starting pattern. At first, the later-Agency Review Committee created under the Freedom Constitution reviewed the case of the said employees. The Merits System Protection Board (MSFB) of the CSC handled the case of the 43 employees. Pending the disposition of the case however, Elasigue last in the mayoralty race to Jesus Miguel Yulo. Yulo was just as unsympathetic as Elasigue regarding the plight of the dismissed employees. However, the MSFB found no sufficient evidence to prove the guilt of the dismissed employees (the charges against them were “questionable integrity” as insinuated by Yulo) and ordered the reinstatement of some 28 of them (which was reduced further to 21 due to the death and/or reemployment of some of them) and payment of their back wages. The CSC affirmed the MSFB’s decision. Yulo now tried a different tack: that the termination of employment of the said employees was justified under a transitory provision of the Freedom Constitution which states, “All elective and appointive officials under the 1973 Constitution shall continue to office until otherwise provided by the proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within the period of 1 year from February 25, 1986.” Held: The argument is devoid of merit. On his narration of facts, Yulo himself admitted that private respondent’s services were terminated pursuant to the reorganization and approval of the new staffing pattern of Calamba on November 3, 1986. Yulo’s argument to the effect that respondents were separated from the service by virtue of the Freedom Constitution or Executive Order No. 17 is palpably an afterthought. It may be reiterated here that the main reason why the then inter-Agency Review Committee refused to take cognizance of the instant case was because Mamplata et al were not removed pursuant to Executive Order No. 17, such declaration by the said Committee destroys whatever argument Yulo tried to build using the Freedom Constitution as a basis. More importantly, it is undeniable that private respondent’s employment with the municipality was a lawfully terminated. On this score alone, the dismissed employees ought to and must be reinstated. Illegal removal of career civil service employees in violation of their Constitutional right to security of tenure will not be condoned under the guise of reorganization.

5. Grego v. COMELEC 274 SCRA 461 Facts: Back in October 31, 1981, Humberto Basco was removed from his position as Deputy Sheriff by the SC itself after a finding of serious misconduct in an administrative case filed against him. The dispositive portion of the decision is important in this case so its given special mention: “Wherefore, finding the respondent Deputy Sheriff Humberto Basco of the City Court of Manila guilty of all retirement benefits and with prejudice to reinstatement to any position in the national or local government, including its agencies and instrumentalities or government-owned or controlled corporations.” But this guy doesn’t give up in the face of adversity. He ran for councilor 3 times – in 1988, 1992 and 1995 – in the City of Manila and won each time. His second and third campaigns as councilor was however mired by disqualification lawsuits from left and right as his sins from 1981 came back to haunt him. Particularly, his third campaign for councilor ran into some serious legal obstacle. One of them come from Sec. 40(b) of the LGC of 1991 which states that persons running for any elective office are disqualified if they were previously removed from office as a result if an administrative case. Another was that his proclamation as councilor for the third time was allegedly void because his disqualification case was still pending. Lastly, it seemed that the SC decision from 1981 forever barred him from seeking public office. Will Humberto “Lucky” Basco overcome the odds and win? Held: Yes, Reasons: 1) The LGC of 1991 cannot be applied retroactively, since no provision allows for it. Basco misgivings happened way back in 1981 long before the inception of the LGC. 2) The suspension of the proclamation of a winning candidate on the ground of a pending disqualification case lies within the discretion of the COMELEC according to its evaluation of the evidence (Section 6, RA 6646). The findings of facts and conclusions of the COMELEC, absence of a showing of grave, abuse of discretion, must be generally respected and even given finality. Besides, absent and any determination of irregularity in the election returns, it is a mandatory ministerial duty of the Board of Canvassers to count the votes and declare the result. 3) The 1981 SC decision uses the word “reinstatement” (see above). Rules and regulations issued by the Civil Service Commission defined reinstatement as the reappointment of a person who was previously separated from the service x x x. Obviously, Basco is not seeking to get reappointed but to get elected and re-elected. He is not therefore barred from seeking public office. 2. Procedure (Sec. 84, LGC) *Sec. 84. Administrative discipline. Investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal shall be in accordance in the civil service law and rules and order pertinent laws. Te result of such administrative investigations shall be reported to the CSC. 3. Preventive Suspension (Section 63-64, 85-87, LGC, Art. 127, IRR) Read also section 42, PD 807 (now Sec. 52, RAC of 1987) *Section 63. Preventive Suspension. a) Preventive Suspension may be imposed: 1) By the president, if the respondent Is an elective official of a province, highly urbanized or independent component city. 2) By the governor, if the respondent is an elective official of a component city or municipality. 3) By the mayor, if the respondent is an elective official of a barangay. b) preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in the office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: provided, that any single preventive suspension of local elective officials shall not extend beyond 60 days: provided further, that in the event that several administrative cases are filed against and elective official, he cannot be preventively suspended for more than 90 days within the single year on the same ground or grounds existing and known at the time of the first suspension. c) Upon expiration of the preventive suspension, the suspended elected official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within 120 days from the time he as formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. *Sec. 64. Salary of respondent pending suspension. The respondent official preventively suspended from office shall receive salary or compensation including such emoluments accruing during such suspension. *Sec. 85. Preventive suspension of appointive local officials and employees.

a) the local chief executives may preventively suspend for a period not exceeding 60 days any subordinate official or employee under his authority pending investigation if the charged against such officials or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. b) Upon expiration of the preventive suspension, the suspended official or employee shall be automatically reinstated in office without prejudice to the continuation of the administrative proceedings against him until its termination. If the delay in the proceeding of the case is due to the fault, negligence or request of the respondent, the time of the delay shall not be counted in the computing of the period of the suspension herein provided. *Sec.86. Administrative investigation. In any LGU, administrative investigation may be conducted by a person or committee duly authorized by the local chief executive. Said person or employee shall conduct hearings on the cases brought against appointive local officials and employees and submit their findings and recommendations in the local chief executive concerned within 15 days from the conclusion of the hearings. The administrative cases herein mentioned shall be decided within 90 days from the time the respondent is formally notified by the charges. *Sec. 87. Disciplinary charges. Except other wise provided by the law, the local chide executive may impose the penalty of removal from service, demotion in tank, suspension for not more than 1 year without any fine in an amount not exceeding 6 months salary, of reprimand and other wise disciplined subordinate officials and employees under his jurisdiction. If the penalty imposed is suspension without pay for not more than 30 days, the decision shall be appealable to the CSC, which shall decide the case within 30 days from receipt thereof. *Article 127, IRR. Exactly the same as Sec. 63, LGC *Sec 52, RAC of 1987. Lifting of preventive suspension pending administrative investigation (Book V, Subtitle A on CSC, chapter 6). When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of 90 days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: provided, that when the delay in disposition of the case is due to the fault, negligent or the petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. Kinds of preventive suspension (with regards to civil service employees who are charged with offense punishable with suspension or removal) (revised administrative code of 1987) 1) Preventive suspension, pending investigation. 2) Preventive suspension pending appeal, if the penalty imposed by the disciplining authority suspension or dismissal. I. Garcia v. Mojica 314 SCRA 207 Facts: On May 7, 1988, Cebu city mayor Alvin Garcia signed a contract with F.E. Zuellig for the supply of asphalt to the city, 4 days later national elections were held and Mayor Garcia won reelection contract, in the other hand, took effect on September 1998. On march, 1999, news reports came out that the said purchase of asphalt was anomalous investigation but the special prosecution officer of the office of the Ombudsman revealed that (1) the contract for supply of asphalt to Cebu city was designed to favor F.E. Zuellig, (2) the amount quoted on the contract was too expensive compared for the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risk attendance to a fluctuating exchange rate, and (3) the interest of the city under the administrative cases be filed against Mayo Garcia. The deputy Ombudsman handled Garcia’s case and recommended 6 moths preventive suspension against the latter – the maximum imposable under RA 6770, the Ombudsman Law. Garcia now raises the following issues: 1. What is the effect of the reelection of the petitioner on the investigation of acts done before his reelection? Did the Ombudsman for Visayas gravely abuse his discretion in conducting the investigation of petitioner and ordering his preventive suspension? 2. Assuming that the ombudsman properly took cognizance of the case, what law should apply to the investigation being conducted by him, the LGC R.A 7160 of the ombudsman law (R.A 6770)? Was the procedure in the law properly observed? 3. Assuming further that the ombudsman has jurisdiction, is the preventive suspension of the petitioner based on “strong evidence” as required by law? Held: The answers are: 1. Garcia cannot anymore be held administratively liable for an act committed during a previous term. The meeting of minds to the contract, especially with regards to the stipulation deemed prejudicial to the city has already occurred during the mayor’s previous term. It hardly matters that the benefits of the contract are to be delivered during Garcia’s current term.

However, the ombudsman did not commit the grave abuse of discretion. It was Garcia’s misfortune that the office of the ombudsman, as empowered by the constitution, decided to investigate his case on its own initiative (Article XI, Sec. 13 1987 Constitution). The ombudsman derives his authority to assume jurisdiction over Garcia’s case under the constitution and RA 6670, the ombudsman law. And the power of the ombudsman to preventively suspend an official subject to its administrative investigation is expressly provided by RA 6670 as well. 2. Either law can apply to Garcia’s case but since the ombudsman decided, its own initiative, to investigate Garcia, RA 6670 must prevail. There is no violation of the LGC of 1991 because RA 6670 is a special law distinct from that of the LGC and therefore, administrative complaints filed under RA 6670 must be treated under its provisions and not with that of the LGC. 3. The news reports describing in detail Garcia’s misdeeds constituted strong evidence to preventively suspend Garcia. However, the actual documentary evidence was obtained after the mayor had already been preventively suspended. Considering that the purpose of preventing suspension is to enable the investigating authority to gather documents without intervention from petitioner, it can now be said that the purpose in preventively suspending Garcia has already been achieved since actual documentary evidence has already been discovered. The order preventively suspending Garcia is deemed too harsh and should be shortened to the period he has already served. NOTE: duration of preventive suspension under the following laws: 1) LGC of 1991 – maximum of 60 days 2) RA 6670 (Ombudsman Law) – maximum of 6 moths 3) RA 3019 (Anti-Graft and Corrupt Practices Act) – maximum of 90 days. The LGC of 1991 applies to elective officials and employees but, of applicable, a special law independent and distinct from the LGC can be applied to them instead. The 1987 Revised Administrative Code applies to appointive officials and employees. 2. Gonzaga v. Sandiganbayan 201 SCRA 417 Facts: Corazon Gonzaga, a public school principal of Malabon Municipal High School, was charged with malversation of public funds before the Sandiganbayan. The Sandiganbayan preventively suspended Gonzaga under RA 3019, but her suspension was decreed as indefinite. Held: Preventive suspension of indefinite duration is rejected by the Constitution as it raises, at the very least, questions of denial of due process and equal protection of the law, in other words, preventive suspension is justifiable for as long as its continuance is for a reasonable length of time, secondly, preventive suspension is not a penalty, a person under preventive suspension, especially in a criminal action, remains entitled to the Constitutional presumption of innocence as his culpability must still be established, thirdly, the rule is that every law has in its favor the presumption of validity, and that to declare a law unconstitutional, the basis for such a declaration must be clearly established. The rule is that a person charged under RA3019 or PD 807 serve a maximum of 90 days preventive suspension only. 3. Garcia v. CA 306 SCRA 287 Facts: this area is an offshoot from the 1991 case of Manila Public School Teachers v. Laguio. In that case, many teachers were fired because of their participation in a strike which was declared by the SC to be illegal. However, Nicanor Margallo and 3 other teachers were able to survive the carnage of dismissals. These survivors however, although they are not participating in the strike, did not report during the same. The DECS secretary preventively suspended the survivors for 90 days. Later in they were found guilty as charged and their penalties ranged from dismissal to 6 moths suspension. The survivors appealed with the Merit System and Protection Board (MSPB) and later on, with the CSC, and managed to get lighter penalties of reprimands instead (in effect they were exonerated of the graver charges filed against them). The survivors now want to obtain the salaries during the period for which they were preventively suspended. Since they were also preventively suspended pending appeal of their cases and were later declared exonerated, they claim to be entitled to back salaries for that period of time as well. Should they? Held: The survivors are not entitled to back salaries for the period they were preventively suspended pending investigation. However, they are entitled to back salaries for the period they were preventively suspended pending appeal. Reasons: 1) Actually, it is possible to obtain one’s back salaries for the period she was preventively suspended pending investigation. However, 2 requisites must concur to make this possible: a) The employee must be found innocent of the charges which cause his suspension; and b) The suspension is unjustified. Here, the second element is lacking, the reason being that the preventive suspension of civil service employees charge with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the CSC. It cannot, therefore, be considered “unjustified,” even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding the public office requires for the public good. For this

reason, it is limited to 90 days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is finished, the law provides that the employee shall be automatically reinstated. 2) An employee is entitled to back salaries during the preventive suspension pending appeal. It must be remembered that preventive suspension pending investigation is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, S 47 (4) (Book V, Chapter 6, RAC 1987) states that respondent shall be considered as under preventive suspension during the pungency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. It is precisely because the respondents are penalized before his sentence is confirmed that he should be paid as salaries in the event he is exonerated. It would be unjust to deprive him of his pay as the result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed to sustain the government’s theory would be to make the administrative decision not only executor but final executor. The fact is that S.47 (2) and (4) are similar to the execution of judgment pending appeal under Rule 39, S.5 of the Rules of Court Rule 39 S.5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages of equity and justice may require. 4. Right of the Respondent (Art. 129, IRR) *Art. 129. Right of respondent, IRR. The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor thru the compulsory process of subpoena or subpoena duce’s locum. 5. Administrative Investigation and Appeals (Art. 131, IRR) *Art. 130. Investigation and decision. a) The investigation of the case shall be terminated within 90 days from the start thereof. Unreasonable failure to complete the investigation after same period of 90 days by the person or persons assigned to investigate shall be a ground for disciplinary action. b) Within 30 days after the end of the investigation, the Office of the president or the Sanggunian concerned shall render a decision stating clearly and distinctly the facts and reasons for such decisions. Copies of decision shall be immediately furnished the respondent and all interested parties. In case of failure of the Sanggunian concerned to render a decision on the resolution recommended on the investigation within 30 days after the end of the investigation, the recommended resolution shall be considered the decision. c) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of 6 months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. d) The penalty of removal from office shall be considered a bar to the candidacy of the respondent for any elective position. *Art. 131. Administrative appeals, IRR. Decisions in administrative cases may, within 30 days from receipt thereof, may be appealed to the following: 1) The Sangguniang Panlalawigan, in the case of decisions of the Sangguniang Panlungsod of component cities and the Sangguniang bayan, and 2) The office of the president, in case of decisions of Sangguniang Panlalawigan, Sangguniang Panlungsod of highly urbanized cities and independent component cities, and the sangguniang bayan of municipalities within MMA. Decisions of the office of the president shall be final executory. 1. Joson v. Tones 290 SCRA 179 Facts: This is a long boring case. It explains in sordid detail what happens during an administrative investigation AO 24 dated Dec. 17, 1992 figured prominently in this case its entirety if you want to know more about AO 24 (as if you would) One fine morning in September 12, 1996, the SP of Nueva Ecija was about to start their routine session when Governor Eduardo Joson barged into their session hall. Armed goons accompanied the governor. The governor threatened the SP members because they refused to support governor’s plan to obtain a loan of 150M from the PNB. The SP members did not take the governor’s threat sitting down. They filed a complaint with the office of the president (OP), charging the governor with the grave misconduct and abuse of authority. Governor Joson was requested to file an answer. Instead, the governor asked for 3 extensions of 30 days to file his answer. When 3 months pass and Joson, instead of filing his answer, filed instead Motion to Dismiss, Executive Secretary slapped him with a 60 day preventive suspension.

Governor Joson then filed a motion to conduct formal investigation as mandated by the LGC and AO 23. The DILG, the department investigating his case, denied the governor’s motion. Proceedings before the DILG thus continued without the benefit of a formal investigation. The case was resolved using position papers submitted by both parties. In its resolution, the DILG found the governor guilty as charged and imposed a 6 months suspension without pay on him. Joson now claims he cannot be denied of his right to a formal investigation granted under AO 21, thus the resolution finding him guilty should be declared null and void. Is he correct? Held: Yes, rejection of Joson’s right to a formal investigation is denial of procedural due process Sec. __ of AO 23 states that only the parties to the case have the right to decide whether they desire a formal investigation. AO 23 does not give the investigating authority (which is the DILG Secretary by specific mandate of AO 23) the discretion to determine whether a formal investigation should be conducted. The rights of the respondent must be respected (Art. 129, IRR). Another reason why Joson’s right to a formal investigation cannot be denied is because he is an elective official. The rules on the removal and suspension of elective local officials are more stringent because the official has only a limited term of office. Suspension and removal will shorten this term of office, thus the official must be accorded his rights under the law in order that the people who elected him into office will not be unduly deprived of his services. The procedure of requiring position papers in lieu of a hearing in administrative cases is expressly allowed with respect to appointive officials but not to those elected. 2. Lupo v. Administrative Action Board 190 SCRA 69 Facts: Fructuso Arroyo, the OIC/CDO, Message Center and former CDO of Telecom filed a complaint for dishonesty thru falsification (multiple) of official documents against Maria Lupo, who committed said transgression in her capacity as Chief of Personnel if Telecom, Region V. the telecom investigator conducted an informal fact-finding inquiry. He came out with a memorandum recommending that Lupo be sternly warned and that a repeat of such offense will merit her graver penalties. The Secretary of the Department of Transportation and Communication however, examined the memorandum. Based on said memorandum, the secretary filed a resolution slipping6 Lupo with 1 year suspension and suspending her from promotion for a period of 1 year. Lupo appealed to the CSC. The CSC thru its Merit System Board ordered the case to be remanded back to the telecom office for further investigation after which the administrative action board (AAB) was to hear the merits of the case thru a trial. The AAB however proceeded with the trial of the case without waiting for the investigation to commence. Lupo now complains she was not accorded procedural due process because no formal charge has been filed against her and that the investigation conducted by the telecom investigation was not a formal investigation but a mere fact-fact finding inquiry. Held: Lupo is correct. Complaints against employees belonging to the CSC system is governed by PD 807 says that a formal complaint that should first be filed after which the respondent must be given the option to submit her self to a formal investigation if her answer to the complaint is found to be unsatisfactory. Here, not only was Lupo is given a chance to submit her self to a formal investigation, the DOTC secretary immediately slapped her with a 1 year suspension based only a mere informal inquiry. Also, the AAB started hearing her case without the benefit of a formal investigation. The cardinal primary rights of due to process in administrative hearings must always be observed. Lupo must not be denied her right to a formal and full blown administrative proceeding. F. Read RA 6770 – the Ombudsman Act of 1989 Read the case of Garcia v. Mojica (see p. 69) preferably in it’s entirely, in order to best see how the Ombudsman Act was applied in an actual case G. 1 Read AO No. 23, December 17, 1992 Read the case Joson v. Torres, (see p. 71) preferably in its entirely, in order to best see how AO 23 was applied in an actual case. G. 2 Read AO No. 121, March 10, 1992 VII. KATARUNGAN PAMBARANGAY LAW Read sections 399 to 420, LGC. (Not e: the following information on the KBL and the League of Local Government Units were lifted from the Political Law Reviewer by Nachura). A. The Barangay 1. Chief Officials and Officers a) There shall be in each barangay a PB; 7 SB members, the SK chairman, a barangay secretary and a barangay treasurer. There shall also be in every barangay a lupong tagapamayapa. The SB may from community

brigades and create such other positions or officers as may be deemed necessary to carry out the purposes of barangay government. 1) For purposes of the RPC, the PB, SB members, lupong tagapamayapa in each barangay shall be deemed as persons in authority in the jurisdiction, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment, and any barangay member who come to the all of persons authority, shall be deemed agents persons in authority in Milo v. Salonga, 152 SCRA 113, the barangay chairman is a public officer who may be charged with arbitrary detention. In People v. Monton (1998), it was held that the barangay chairman is entitled to posses and carry firearm within the territorial jurisdiction of the barangay (Sec. 88(3), B.P. 337). He may not be therefore prosecuted for illegal possession of firearms. 2. The Barangay Assembly There shall be a barangay assembly composed of all person who are actual residents of the barangay for at least 6 months 15 years of age over citizens of the Philippines and duly registered in the list of barangay assembly members. It shall meet at least twice a year to hear and discuss a semestral report of the SB concerning its activities and finances as well as problems affecting the barangay. a) Powers of the barangay assembly. Read Sec. 398, R.A 7160 3. Katarungang Pambarangay a) Lupong Tagapamayapa. There is here by created in each barangay a LT composed of the PB as chairman and 10 to 20 members. The lupon shall be constituted every 3 years. 1) Powers of the Lupon (i) exercise administrative supervision over the conciliation panels; (ii) meet regularly once a month to provide a forum for exchange of ideas among its members and the members to share with one another their observations and experiences in effecting speedy resolution of disputes and; (iii) exercise such other powers and perform such other duties as may be prescribed by law or ordinance. b) Pangkat ng Tagapagkasundo. There shall constituted for each, dispute brought before the lupon a conciliation panel to be known as the pangkat ng tagapagkasundo, consisting 3 members who shall be chosen by the parties to the dispute from the list of members of the lupon. Should the parties fail to agree on the pangkat membership, the same shall be determined by lots drawn by the lupon chairman. c) Subject matter of amicable settlement; procedure, conciliation, arbitration, effects of settlement and arbitration award. 4. Sangguniang Kabataan a) Creation; composition. There shall be every barangay a SK to be composed of chairman 7 members, a secretary and a treasurer. An official who during his term of office shall have passed the age of 21 shall be allowed to serve the remaining position for the term for which he was elected. 1) Powers and functions. Read Sec. 426 RA 7160 b) Katipunan ng mga Kabataan: Shall be composed of citizens of the Philippines actually residing in the barangay for at least 6 months, who are 15 but not more than 21 years of age, who are duly registered in the list of the SK or in the official barangay list in the custody of the barangay secretary. He shall meet once every 3 months or at the call of the SK chairman, or upon written petition of at least 1/20 of its members. c) Pederasyon ng mga SK. There shall be an organization of all the pederasyon ng mga SK i) In municipalities, the pambansang pederasyon ii) in cities, panlungsod na pederasyon iii) In provinces, panlalawigang pederasyon iv) In special metropolitan political subdivisions, pangmetropolitang pederasyon; v) On the national level; pambansang pederasyon B. The Municipality. Read Sec. 440-447 RA 7160 C. The City. Read Sec. 448-548 RA 7160 D. The Province. Read Sec. 459- 468, RA 7160 1. Uy v. Contreras 237 SCRA 167 Facts: Felicidad Uy and Susanna Atayde got involved in a catfight (nagsasabunutan) involving a dispute over a sublease. Atayde and her employee, Winnie Javier sustained minor injuries as a result. Atayde later filed 2 criminal cases for minor injuries against Uy with the MTC. Uy sought to dismiss the 2 criminal cases on the ground that since the complaint involved a crime where the penalty is at best arresto menor, the same should have been first filed with the Lupong Tagapamayapa of the proper

barangay (which should have actually been Katarungang Barangay). The MTC judge however denied the motion to dismiss. Was the denial proper? Held: No, Uy managed to seasonably file her motion to dismiss based upon a valid ground. She cannot therefore be said to have waived her right to avail of the KB to resolve their dispute. 2. Felizardo v. CA 233 SCRA 220 Facts: Nemesio Jose as owner-lessor of a house and lot located in Bajac-bajac, Quezon City filed an ejectment case against lessee Quintin Felizardo in the MTC of Olongapo city. Felizardo, in his answer, claimed that Jose’s allegations were false and were only meant to evade the requirements of PD 1508 for barangay conciliation. The MTC ruled that it could act on the complaint field by Jose and later on rendered a decision in favor of Jose. Felizardo thus filed a petition for certiorari questioning the jurisdiction of the MTC. Held: When MTC ruled that it could act on the complaint for ejectment filed by the private respondent even without prior barangay conciliation proceedings, it committed a mere error of judgment and not of jurisdiction. The SC has held in many cases that while the referral of a case to the lupong tagapamayapa is a condition precedent for the filing of a complaint in court, non-compliance therewith cannot affect the jurisdiction which the court has already acquired over the subject matter and over the person of the defendant. 3. Diu v. CA 251 SCRA 472 Facts: Patricia Pagba owed spouses Diu a debt worth P7,862.55 incurred in 1988. The spouses Diu brought the matter to the barangay chairman for resolution; however Pagba twice failed to appear. The barangay chairman thus gave the go signal for Diu’s to file their case with the MTC. The MTC ruled in favor of Pagba. The RTC reversed deciding the case on the merits. The CA however ruled once more for Pagba agreeing with the latter that there was no substantial compliance with the procedure outlined in Katarungang Barangay Law because of the failure by the barangay chairman to constitute a pangkat to resolve the parties’ differences. Was the CA correct in its contention? Held: No. Even though there was a failure to constitute a pangkat should the barangay chairman, by himself fail to resolve the parties differences still is not denied that the parties met the office of the barangay chairman for possible settlement. The efforts of the barangay chairman, however proved futile as no agreement was reached. Although no pangkat was formed, the SC believes that there was substantial compliance with the law. From the foregoing facts, it is undeniable that there was substantial compliance with presidential decree No. 1508 which does not require strict technical compliance with its procedural requirements. Under the factual antecedents, it cannot be said that the failure of the parties to appear before the pangkat caused any prejudice to the case for private respondents considering that they already refused conciliation before the barangay chairman. To indulge the Pagbas in their stratagem will not only result in a circuitous procedure but will necessarily entail undue and further delay injustice. This is inevitable if this court should dismiss the complaint and require the parties to meet before the pangkat, only to bring the case all over again through the hierarchy of courts and ultimately back to us for decision on the merits. Obviously, this is the game plan of the Pagbas. For, when the Pagbas appealed to respondent court, they did not at all assail the propriety or correctness of judgment of the RTC holding them liable to petitioners for the sum of money involved. Such primary substantive issue, therefore, has been laid to rest, but private respondents would wish to keep the case alive merely on a conjured procedural issue invoking their supposed right to confrontation before the pangkat. LIGA NG MGA BARANGAY A. Liga ng mga Barangay - Organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, thru proper and legal means, solutions thereto. Read Sec. 491-495. B. League of Municipalities. Organized for the primary purpose of ventilating, articulating and crystallizing issues affecting municipal government administration, and securing, thru proper and legal means, solutions thereto. Read Sec. 496-498 C. League of Cities. Read Sec. 499-501 D. League of provinces. Read Sec. 502-203 E. League and federation of Local Elective Officials. Read Sec. 508-510 I. Galarosa v. Valencia 227 SCRA 728

Facts: Basically the main issue here is only how to properly interpret Section 494 of the LGC 1991, which says: “Ex officio membership in sanggunians. The duly elected presidents of the liga ng mga barangay at the municipal, city and provincial levels, including the component cities and municipalities of metropolitan manila, shall serve as ex-officio members of the sangguniang barangay, sangguniang panlungsod, sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the liga chapters which in no case shall be beyond the term of office of the SC” Raul Galarosa is a president of the Katipunang Bayan of the municipality of Sorsogon. Like the LGC of 1991, the (old) LGC of 1983 or BP 337 grants Galarosa the right to serve as ex-officio member of the sangguniang bayan. However, when the new LGC of 1991 finally took effect, Rodolfo Lasay filed a case against Galarosa in his capacity as taxpayer questioning the right of Galarosa to remain as an ex-officio member of the sangguniang bayan. Lasay claimed that the new LGC of 1991 provided for the liga ng mga barangay, which, although admittedly was structurally and functionally the same as katipunan ng mga barangay, nevertheless abolished the katipunan ng mga barangay, thereby a new set of officers have to be appointed by the President of the Philippines. Is Lasay correct? Held: Yes. The LGC of 1991 does not explicitly provide that upon his effectivity the katipunan ng mga barangay under B.P Blg. 337 automatically became the liga ng mga barangay under the LGC and then the president of the ABC automatically became the president of the liga whose term as ex-officio member of the first sangguniang bayan un the 1987 constitution is coterminous with that of the other regular members if the SB on until 30 June, 1992 pursuant to section 494 of the LGC in relation to section 2 Article XVIII of the 1987 constitution 20 and section 5 of RA No. 6636. absent such explicitness and considering (1) that the opening clause of section 491 is expressed in the 1991 and (2) that section 494 speaks of “duly elected presidents of the liga” thereby clearly implying as election after the organization of the liga, the conclusion to be drawn is that the legislature never intended that section 494 would apply to the incumbent presidents of the katipunang bayan. There is, however, no law which prohibits Galarosa from holding over as a member of the sangguniang bayan. On the contrary, aforementioned IRR, prepared and issued by the Oversight Committee upon specific mandate of section 533 of the LGC, expressly recognizes and grants that hold-over authority to ABC presidents. The hold-over rule must be applied, because to the rule other wise would lead to a vacancy in the office, causing an interruption in the public service. 2. Alquisola Sr. v. Ocol 343 SCRA 273 Facts: Ramon Arquizola won the position of punong barangay of barangay Tubod, Iligan City. He then terminated the services of the barangay treasurer, barangay secretary utility workers who were appointed under the term of a previous punong barangay. The barangay treasurer and his similarly situated friendly friends pointed out that section 389 of the LGC requires that the approval by a majority of the sangguniang barangay members is needed before the punong barangay can exercise his power of replacing them. Held: It should be noted that the barangay officials who were dismissed are not provided with a definite of office under the LGC. The reason is that they were merely appointed to their posts by punong barangay. However, since the punong barangay who appointed the respondents has already stepped down from office, they are now at the mercy of the new punong barangay who also possess the power of appointment. The power of appointment is discretionary and thus implies that the power to remove is also inherent in the former, since by necessity, the new punong barangay may choose to remove the incumbent appointive barangay officials in order to make way for his choice of new barangay officials. It would be absurd to give section 389 an interpretation which would render impotent the power of a newly elected punong barangay to choose his barangay officials. Once the punong barangay has already appointed his choice officials however, section 389 should then be applied in the sense that said officials cannot be removed by the punong barangay who appointed them without the approval of the sanggunian barangay. VIII. LOCAL SPECIAL BODIES (ART. 181-188, IRR) *Article 181 names the different local special bodies. The rest of the articles describe the compositions and functions of each local special body. Only Article 181 will be reproduced here. *Article 181. Local special bodies. There shall be organized in the LGU concerned the following local special bodies (every LGU, from the province down, shall have this local special bodies the PLEB however shall be governed by RA 6975) (a) Local Development Council (b) Local Prequalification, Bids and Awards Committee (c) Local Scholl Boards (d) Local Health Board (e) Local Peace and Order Council (f) People Law Enforcement Boards

a) LDC (sec. 106, LGC). Each LGU shall have comprehensive multi-sector development plan to be instituted by its development council and approved by its sanggunian. For the purpose, the development council at the provincial, city, municipal or barangay level shall assist the responding sanggunian in setting the direction of economic and social development, and coordinating development efforts within its territorial jurisdiction. a.1) EO 463, May 17, 1991 - Entitled “Establishing the relationship between the Regional Planning and Development Board of the Autonomous Regional Government (of Muslim Mindanao) and the national economic and development authority (NEDA) board” - Sec. 1. The ARG shall be guided by the synchronized planning, programming and budgeting system (SPPBS) namely: The Medium – term Philippine development plan (MTPDP), the medium term technical assistance program (MTTAP) and the regional development investment program (RDIP) in its planning, programming, and budgeting activities. - Sec. 2. The regional planning and development board of the autonomous regional government shall prepare: a) Regional Development Plan (RDP) consistent with the national development policies, goals, objectives and priorities embodied in the Medium-Term Philippine Development Plan (MTPDP); and b) Regional Development Investment Program (RDIP) and regional technical assistance program which shall be included in the Medium Term Public Investment Program (MTPIP) and the Medium Term Technical Assistance Program (MTTAP). The RDP, RDIP and supporting technical assistance programs shall be submitted directly to the office of the president for review and evaluation of their consistency with the MTPDP and the MTPIP/MTTAP. - Sec. 5. The Local Development Council (provincial, city/municipal) shall be maintained the strengthened in order to ensure continuity in the development planning process. The ARG may choose to reorganize the LDC through regional legislation. a. 2) RA 7640, December 9, 1962 a) RA 7640, December 9, 1962 b) Local PABC (sec. 37, LGC) – There shall is hereby created a local prequalification, bids and awards committee in every province, city and municipality, which shall be primarily responsible for the conduct of prequalification of contractors, bidding, evaluation of bids, and the recommendation of awards concerning local infrastructure projects x x x. c) Local School Boards (sec. 98, LGC) – Creation, composition and function. (The LSBs do the following: 1) determine, in accordance with the criteria set by the DECS, the annual supplementary needs for the operation and maintenance of public high schools in the LGU concerned; in other words, the annual school budget; 2) authorize the LGU treasurer to disburse funds pursuant to budget; 3) serve as advisory committee on educational matters; 4) recommended changer in name of public schools within its assigned territorial jurisdiction; 5) act as an consultant on appointment of division superintendent, district supervisor, school officials, etc.) c. 1) LOI 1462, May 31, 1985 Eh? d) Local Health Board (sec. 102, LGC) – Creation and Composition. (The LHB do the following: 1) Consistent with DOH rules, propose to sanggunian concerned; 2) serve as advisory committee to sanggunian on local appropriations for public health purposes; 3) consistent with DOH standards, create committees which shall advise local health agencies on matters such as personnel selection and promotion, etc. d. 1) sec. 21, EO292 - Entitled “INSTITUTING THE “ADMINISTRATIVE CODE OF 1987” -Sec. 21, Chapter 5, Sec. IX on Health basically states that DOH shall review and for the establishment, operation and maintenance of health agencies funded by local governments. e) Local Peace and Order Councils (Section 116, LGC) – Basically, the local peace and order councils will have the same composition and functions as prescribed in EO 309. EO09, on the other hand is entitled “REORGANIZING THE PEACE AND ORDER COUNCIL” - Sec. 2. Responsibility of the National Peace and Order Council. The peace and Order Council the national level shall be responsible for the following functions: a) To prepare and recommended for the approval of the President, proposals, measures, thrusts and strategies that would effectively respond to peace and order problems. b) To coordinate and monitor peace and order plans, projects and operation of Civilian Volunteer SelfDefense Organizations such as other counter-insurgency programs and activities. c) To perform such other duties and functions as the President may direct.

- Sec. 3. Duties and Functions of Sub-National Councils. The Regional, Provincial and City/Municipal Peace and Order Council shall have the following duties and functions: a) Formulate plans and recommended such measures which will improve or enhance peace and order and public safety in their respective areas of responsibility. b) To monitor the implementation of peace and order programs projects at the provincial, city or municipal levels and the operation of Civilian Volunteer Self-Defense Organizations and such as other counter-insurgency programs and activities. c) Make periodic assessments of the prevailing peace and order situation in their respective areas of responsibility and submit a report thereon with recommendations to the Chairman of the National Peace and Order Council. d) Perform all other functions assigned by law, the President, or the National Peace and Order Council. f) People’s Law Enforcement Board f.1. Section 43, RA 6975 – Some features: - Is created only by the sangguniang panlungsod/bayan and found only in cities and municipalities. - Composed of 1 sanggunian member (any), 1 barangay captain (any), 3 respected members of the community, at least 1 who is member of the Bar, or if in absence thereof, any college graduate or principal of central elementary school - There must be 1 PLEB for every municipality and 1 in every legislative district of the city - Procedure in PLEB shall be summary in nature - PLEB decisions are final and executory - The National Police Commission shall establish rules regarding the graduated penalties which may be imposed by the PLEB. f.2. Fianza v. PLEB 243 SCRA 165 Facts: Several policemen filed two separate complaints against two of their superiors with the People’s Law Enforcement Board. In the first complaint, they alleged that their transfer from the Baguio City Police Station to other stations and their being dropped from the rolls wore irregularly and illegally made. The orders issued by Supt. Camilo S. Dugayen, apparently upon the direction of Supt. Florencio D. Fianza, here petitioner, were, according to respondent policemen, instigated by or made in retaliation to the raids they conducted on jueteng operations in Baguio. The policemen claim that Supt. Dugayen, their Station Commander, twice castigated them for conducting said raids and ordered the release of the cash and paraphernalia seized, as well as persona accosted, as a consequence of the raids. In the second complaint, the respondent policemen contend that Supt. July Cordoviz was guilty of grave threats against them in connection with the issue regarding the first case, although Supt. Cordoviz was not under the command of Supt. Fianza. Fianza contended, through counsel that cases of this nature are not within the competence and jurisdiction of public respondent PLEB since it involves an internal organizational matter of the PNP. The respondent policemen answered, however, that although they are policemen, they do not cease to become citizens of the Philippines despite the uniform they wear. The PLEB ruled that they have jurisdiction over the case. The National Police Commission affirmed the PLEB’s stand. Are the PLEB and NAPOLCOM correct? Held: No. First, the complaint is not a citizen’s complaint because, as defined under the PLEB rules, a citizen’s complaint is one filed by a private citizen against a member of the PNP for the redress of injury, damage or disturbance cause by the latter’s illegal or irregular acts. Statutory construction will tell you that words of a statute are to be given their plain, literal meaning. While the policemen are indeed citizens, that cannot be certainly be said to be private citizens in their ordinary meaning. Second, nowhere in the PNP’s enabling act does it grant the PLEB jurisdiction to try any of the PNP’s members. Lastly, internal disciplinary matters within the PNP are best solved by the members of the PNP themselves as they are the best position to understand the standard of conduct within its organization. It is doubtful that a civilian body can better police the ranks of policemen.