Consti Premid Final

8/6/2019 Consti Premid Final

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Room 409Pre- Midterm Memory Aid in Constitutional Law IISubject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

PUBLIC LAW branch of law which deals with the State, state agencies and the protection of state interests

(Branches: Political Law, Criminal Law, International Law.)

PRIVATE LAW - branch of law which deals with the relationship between and among the individuals

(Branches: Civil Law, Commercial Law)

POLITICAL LAW branch of public law which deals with the organization and operation of the governmenta

organs of the State and defines the relations of the State with the inhabitants of its territory. (Subdivisions: Law on

Public Administration, Constitutional Law, Administrative Law, Law on Public Corporations.)

CONSTITUTIONAL LAW a term used to designate the law embodied in the constitution and the legal

principles growing out of the interpretation and application made by the courts of the provisions of the constitution

in specific cases. Sinco

CONSTITUTION body of rules and maxims with which the powers of the sovereignty are habitually

exercised. Cooley

CONSTITUTIONAL LAW II deals with the relationship between the State and the inhabitants of its

territory. [The RELATIONSHIP refers to rights and obligations.]

JUDICIAL REVIEW the power of the courts to test the validity of executive and legislative

acts in light of their conformity with the Constitution.

(1) Ordinary Judicial Review will determine only the issue of legality or constitutionality.

(2) Expanded Judicial Review whether or not there has been a grave abuse of discretion

amounting to lack or excess application of power.

JUDICIAL POWER includes the power of the court to settle actual controversies involving

rights which are legally demandable and enforceable.

FUNCTIONS OF JUDICIAL REVIEW

(1) CHECKING invalidating a law or an executive act that is found to be contrary to the

Constitution.

(2) LEGITIMATING upholding the validity of the law which results from a mere dismissal of a

case challenging the validity of the law.

(3) SYMBOLIC to educate the bench and bar as to the controlling principles and concepts

on matters of great public importance.

REQUISITES OF JUDICIAL REVIEW

(1) Actual Case or Controversy

A conflict of legal rights, an assertion of opposite legal claims susceptible of judicia

determination.

A request for an advisory opinion is not an actual case or controversy. But an action fo

declaratory relief is proper for judicial determination.


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Issues raised must not be moot and academic; nevertheless, courts will decide a

question otherwise moot, if it is capable of repetition yet evading review.

(2) Proper Party

The constitutional question must be raised by the proper party.

A proper party is one who has sustained or is in the imminent danger of sustaining an

injury as a result of the act complained of.

Legal Standing is defined as a personal and substantial interest in the case such tha

the party has sustained or will sustain direct injury as the result of the government act.

Interest means a material interest, an interest in issue affected by the decree.

Additional Requirements:

(3) As a general rule, the question of constitutionality must be raised as the earliesopportunity, so that if not raised by the pleading ordinarily it may not be raised at the trial, and

if not raised in the trial court, it will not be considered on appeal.

Exception: Courts in the exercise of sound discretion, may determine the time when a

question affecting constitutionality of a statute should be presented (PP v. Vera, 65 Phil 56).

(4) As a general rule, courts will not touch the issue of unconstitutionality unless it is really

unavoidable or is the very list mota of the case.

DOCTRINE OF CONSTITUTIONAL SUPREMACY

Implications:

1. Constitution itself, that it is deemed written in every contract and statutes. (Mla

Prince Hotel v. GSIS)

2. As the fundamental law, the Constitution is always supreme.

3. In times of conflict, the Constitution will always prevail.

Fundamental Powers of the State

1. Police Power thepower of the State authority to enact legislations that may interfere with persona

liberty and property in order to promote the general welfare. (Agustin v. Edu)

An inherent attribute of sovereignty. (MMDA v. Bel-Air)

Power vested in the legislature to make, ordain, and establish all manner of wholesome and reasonable

laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they

shall judge to be for the good and welfare of the commonwealth. (MMDA v. Bel-Air)

a. Police Power can be viewed in two ways:


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>Positive the power to prescribe regulations to promote the health, morals, peace, education, good

order or safety, and general welfare of the people.

>Negative that inherent and plenary power in the State which enables it to prohibitall things hurtful to

the comfort, safety and welfare of society. (Agustin v. Edu)

b. Scope

Police power is so extensive and so comprehensive that the courts have refused to give it an

exact definition; neither have they attempted to define its definition its limitation depends the security

of social order the life and health of the citizens, the comfort of an existence in a thickly populated

community, the enjoyment of private and social life and the beneficial use of property. It extends to the

protection of the lives, limbs, health, comfort and quiet of all persons and the protection of all property

within the state.(U.S. v. Torribio).

It has been said the police power is so far - reaching in scope, that it has become almost

impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it

does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection

and survival, and as such it is the most positive and active of all governmental processes, the most

essential, insistent and illimitable. Especially is it so under a modern democratic framework where the

demands of society and of nations have multiplied to almost unimaginable proportions; the field and

scope of police power has become almost boundless, just as the fields of public interest and

public welfare have become almost all-embracing and have transcended human foresight

Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this

constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of

police power by which and through which the State seeks to attain or achieve interest or welfare

So it is that Constitutions do not define the scope or extent of the police power of the State; what they do

is to set forth the limitations thereof. The most important of these are the due process clause and the

equal protection clause.(Ichong v Hernandez).

Far reaching as long as it coverspublic interestandpublic welfare.

The most essential, insistentand least illimitable powers extending to all great public needs.

Must be elastic and must be responsive to various social conditions. (Sangalang v. IAC, cited in

Binay v. Domingo)

Note: Police power is not capable of an exact definition, if we will put a definition this would

tantamount to limiting a flexible concept.

c. How exercised?

- Through legislation

d. Who can exercise?

There can be no doubt that the exercise of the police power of the Philippine Government

belongs to the Legislature and that this power is limited only by the Acts of Congress and those


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fundamentals principles which lie at the foundation of all republican forms of government. An Ac

of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power

and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. Bu

where the Act is reasonably within a proper consideration of and care for the public health, safety,

or comfort, it should not be disturbed by the courts. The courts cannot substitute their own views

for what is proper in the premises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the

United States Supreme Court states the rule thus: "If no state of circumstances could exist to justify such

statute, then we may declare this one void because in excess of the legislative power of this state; but if i

could, we must presume it did. Of the propriety of legislative interference, within the scope of the

legislative power, a legislature is the exclusive judge."(cited in Churchill v Rafferty).

Note:

can be exercised only by an agency with legislative power.

State [Congress] it is inherent

Consequence: 1. Needs no constitutional conferment.

2. Limited judicial intervention, because of the Supreme Courts

expanded certiorari jurisdiction. (see discussion on eminent domain. )

Local Government Units (LGU) the power is delegated

Consequence: 1. Should be conferred by a statute or law

2. Exercise is limited; it should be performed in accordance with the

mandate of the delegating agency.

3. Greater elbow room for judicial review.

e. Elements for valid exercise

There is no need to redefine here the police power of the State. Suffice it to repeat that the power is

validly exercised if (a) the interests of the public generally, as distinguished from those of a

particular class, require the interference of the State, and (b) the means employed are reasonably

necessary to the attainment of the object sought to be accomplished and not unduly oppressive

upon individuals. (DECS vs. San Diego)

1. Interest of the public generally, as distinguished from that of a particular class

[lawful subject].

2. The means employed are reasonably necessary to the attainment of the object

sought to be accomplished and not unduly oppressive upon individuals [lawfu

means].

f. What may be regulated under the Police Power?


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1. Lawful subject: anything which touches on the interest of the public (refer to the

subsequent cases)

2. Lawful means: reasonably necessary to achieve the subject. (refer to the

subsequent cases)

Note: lawful subject: public safety

Lawful means: three-flunked rule

The subject of the challenged regulation is certainly within the ambit of the police power. It is the righ

and indeed the responsibility of the State to insure that the medical profession is not infiltrated by

incompetents to whom patients may unwarily entrust their lives and health.

The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it

arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and

ultimately the medical profession from the intrusion of those not qualified to be doctors.

While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This

is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to

one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not

dissipated or, no less worse, not used at all. These resources must be applied in a manner that will best promote

the common good while also giving the individual a sense of satisfaction.

A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be

a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be

forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token,

a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in

nursing, however appropriate this career may be for others.(DECS vs. san diego)

Note: lawful subject: public safety

Lawful means: 500 meter gas station rule

It is a well recognized function of the police power to promote the public safety by regulating

dangerous occupation, restraining dangerous practices, and prohibiting dangerous structures.

The storing handing, and use of inflammable and explosive substances, being attended with danger, may

be regulated under the police power. Thus the explosion of fireworks may be prohibited; and it is within the

police power of a municipality, when it is deemed necessary for public safety, to prohibit the blasting of rocks with

gunpowder within the city limits without the written consent of the board of aldermen.

Cities and towns have power, under the general welfare provisions of statutes and charters, to enact

reasonable ordinances relating to the selling and distribution oil, gasoline, an other petroleum product,

within their boundaries, defining where and how filling station may be constructed and operated and


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regulating the use of right ways across sidewalks to such stations; and a vested right cannot be asserted

against the proper exercise of such police power.

An ordinance forbidding the granting of a permit or license for such a station in any location where, by

reason of traffic condition or fire hazards, it would imperil the public safety, or authorizing the denial of

the same if such station is found to be against the public interest, is a proper exercise of the police

power, and is not invalid as denying the equal of the police power, and is not invalid as denying the equa

protection of the law or leaving the granting or refusal of the permit to the arbitrary will of the municipal

official with the issuance thereof. (42 C. J., p. 1306; State vs. Fleming, supra.)

According to the above-cited authorities it is evidence that the municipal board of the City of Manila had

the power to enact ordinance No. 1985 by virtue of the police power delegated to it by the Legislature

and consequently, said ordinance is valid and binding.(Javier vs. Earnshaw).

Note: Lawful subject: public morals

Lawful means: registration in motels must be in full view in order to crash out clandestine

entry and therefore shutter prostitution and adultery.

There is no question but that the challenged ordinance was precisely enacted to minimize certain

practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as

annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and

fornication in Manila traceable in great part to the existence of motels, which "provide a necessary

atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes

and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of

transients and guests of these establishments by requiring these transients and guests to fill up a

registration form, prepared for the purpose, in a lobby open to public view at all times, and by

introducing several other amendatory provisions calculated to shatter the privacy tha

characterizes the registration of transients and guests." Moreover, the increase in the licensed fees

was intended to discourage "establishments of the kind from operating for purpose other than legal" and

at the same time, to increase "the income of the city government." It would appear therefore that the

stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently

for it. (Ermita-Malate Hotel Operators Assoc v. City of Manila)

Note: Lawful subject: public health and safety

Lawful means: all 1st run theaters/ cinematographs should register their seating capacity

with the city treasurer.


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To the foregoing must be added, and this is of common knowledge, that the films which are shown for

the first time attract a large attendance, and the theatre or cinematograph, whether it is first or second

class, presenting shows for the first time, would be suffocatingly overcrowded if the number o

tickets were not limited. This is the reason for the prohibition of the sale of tickets in excess of the

seating capacity. The prohibition applies with equal force wherever the same reason exists, that is, to firs

and second class theatres which show films for the first time. (pp v. chan)

Note: Lawful subject: public welfare (affordable drugs)

Lawful means: generics drugs act

The prohibition against the use by doctors of "no substitution" and/or words of similar import in their

prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right

to choose between the brand name and its generic equivalent since his doctor is allowed to write both the

generic and the brand name in his prescription form. If a doctor is allowed to prescribe a brand-name drug

with "no substitution," the patient's option to buy a lower-priced, but equally effective, generic equivalent

would thereby be curtailed. The law aims to benefit the impoverished (and often sickly) majority of

the population in a still developing country like ours, not the affluent and generally healthy

minority.(del Rosario vs. Bengzon)

2. Eminent Domain

1987 Consti. Article III, Section 9: Private property shall not be taken for public use without just

compensation.

I. Definition, Nature and Functions

Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a

fundamental State power that is inseparable from sovereignty. It is government's right to appropriate

in the nature of a compulsory sale to the State, private property for public use or purpose

Inherently possessed by the national legislature, the power of eminent domain may be validly

delegated to local governments, other public entities and public utilities. For the taking of private

property by the government to be valid, the taking must be for public use and there must be just

compensation. (Moday vs. CA)

xxx It is recognized by all writers that the power of eminent domain is inseparable from

sovereignty being essential to the existence of the State and inherent in government even in

its most primitive forms. Philosophers and legists may differ as to the grounds upon which the

exercise of this high power is to be justified, but no one can question its existence. No law, therefore

is ever necessary to confer this right upon sovereignty or upon any government exercising sovereign

or quasi-sovereign powers.


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The power of eminent domain does not depend for its existence on a specific grant in the

constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition

of it in the constitution. The provisions found in most of the state constitutions relating to the taking of

property for the public use do not by implication grant the power to the government of the state, but limi

a power which would otherwise be without limit. (Visayan Refining Co. vs. Camus and Paredes)

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

particular uses to promote public welfare. It is an indispensable attribute of sovereignty; a power

grounded in the primary duty of government to serve the common need and advance the general welfare

Thus, the right of eminent domain appertains to every independent government without the necessity fo

constitutional recognition. The provisions found in modern constitutions of civilized countries relating to

the taking of property for the public use do not by implication grant the power to the government, but limit

a power which would otherwise be without limit. Thus, our own Constitution provides that "[p]rivateproperty shall not be taken for public use without just compensation." Furthermore, the due process and

equal protection clauses act as additional safeguards against the arbitrary exercise of this governmental

power. (Heirs of Alberto Suguitan vs. City of Mandaluyong)

Eminent domain, also often referred to as expropriation and, with less frequency, as

condemnation, is, like police power and taxation, an inherent power of sovereignty. It need not be

clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject are

meant more to regulate, rather than to grant, the exercise of the power. Eminent domain is generally so

described as the highest and most exact idea of property remaining in the government that may be

acquired for some public purpose through a method in the nature of a forced purchase by the State. It is

a right to take or reassert dominion over property within the state for public use or to meet a

public exigency. It is said to be an essential part of governance even in its most primitive form

and thus inseparable from sovereignty. The only direct constitutional qualification is that private

property shall not be taken for public use without just compensation. This proscription is intended to

provide a safeguard against possible abuse and so to protect as well the individual against whose

property the power is sought to be enforced.(Manosca vs. CA)

II. How exercised?

- Through legislation

III. Who may exercise?

1. Congress

2. Local Government Units

>Issue of Necessity

a. Congress political question


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b. LGU justiciable question

Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot

intervene except for the purpose of determining the value of the land in question, there is much lega

legislature. Much has been written upon both sides of that question. A careful examination of the

discussions pro and con will disclose the fact that the decisions depend largely upon particula

constitutional or statutory provisions. It cannot be denied, if the legislature under proper authority

should grant the expropriation of a certain orparticular parcelof land for some specified public

purpose, that the courts would be without jurisdiction to inquire into the purpose of tha

legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipa

corporation to expropriate private land forpublic purposes, we think the courts have ample

authority in this jurisdiction, under the provisions above quoted, to make inquiry and to hear

proof, upon an issue properly presented, concerning whether or not the lands were private andwhether the purpose was, in fact,public.

xxx The legislature, in providing for the exercise of the power of eminent domain, may

directly determine the necessity for appropriating private property for a particular improvement

for public use, and it may select the exact location of the improvement. In such a case, it is wel

settled that the utility of the proposed improvement, the extent of the public necessity for its construction,

the expediency of constructing it, the suitableness of the location selected and the consequent necessity

of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the

courts have no power to interfere, or to substitute their own views for those of the representatives of the

people. (City of Manila vs. Chinese Community of Manila)

Remember: Courts to determine

a. If the law or authority exists for the exercise of the right of Eminent Domain

b. If the right or authority is exercised in accordance with law.

The power of eminent domain is essentially legislative in nature. It is firmly settled, however, tha

such powermay be validly delegated to local government units, other public entities and public

utilities, although the scope of this delegated legislative power is necessarily narrower than that of the

delegating authority and may only be exercised in strict compliance with the terms of the delegating law.

(Heirs of Alberto Suguitan vs. City of Mandaluyong)

1987 Consti. Art. VIII Section 5. The Supreme Court shall have the following powers:

1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over

petitions forcertiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal orcertiorari, as the law or the Rules of Court may

provide, final judgments and orders of lower courts in:


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(a) All cases in which the constitutionality or validity of any treaty, international or executive

agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in

question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed

in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary

assignment shall not exceed six months without the consent of the judge concerned.

(4) Order a change of venue or place of trial to avoid a miscarriage of justice.

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and

procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged

Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for allcourts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts

and quasi-judicial bodies shall remaineffective unless disapproved by the Supreme Court.

(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

Remember: the expanded certiorari jurisdiction of the Supreme Court stated above, enables

the Court to determine whether or not there has been grave abuse of discretion resulting to

excess or lack of jurisdiction on the part of Congress in the performance of their actions.

3. Private Corp.

- Or quasi-public authorities

- As long as there is a public function

- Requirement: as long as there is a law which empowers it.

IV. Requisites for the exercise of Eminent Domain by the LGU:

The courts have the obligation to determine whether the following requisites have been

complied with by the local government unit concerned:

a. An ordinance is enacted by the local legislative council authorizing the local chief

executive, in behalf of the local government unit, to exercise the power of eminent

domain or pursue expropriation proceedings over a particular private property .


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>Difference of an Ordinance and a Resolution:

The Court in no uncertain terms have pronounced that a local government unit cannot authorize an

expropriation of private property through a mere resolution of its lawmaking body. R.A. No. 7160

otherwise known as the Local Government Code expressly requires an ordinance for the purpose and a

resolution that merely expresses the sentiment of the municipal council will not suffice

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

settled:

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

is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An

ordinance possesses a general and permanent character, but a resolution is temporary in nature

Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but

not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply

adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from

the previous Local Government Code, Sec. 19 of R.A. [No.] 7160 categorically requires that the local chie

executive act pursuant to an ordinance. x x x

As respondent's expropriation in this case was based merely on a resolution, such expropriation is clearly

defective. While the Court is aware of the constitutional policy promoting local autonomy, the court cannot

grant judicial sanction to an LGU's exercise of its delegated power of eminent domain in contravention o

the very law giving it such power (Beluso vs. Municipality of Panay)

b. The power of eminent domain is exercised for public use, purpose or welfare, or for the

benefit of the poor and the landless.

c. There is payment of just compensation, as required under Section 9, Article III of the

Constitution, and other pertinent laws.

d. A valid and definite offer has been previously made to the owner of the property sough

to be expropriated, but said offer was not accepted. (Heirs of Alberto Suguitan vs. City

of Mandaluyong)

V. Taking

Taking' under the power of eminent domain may be defined generally as entering upon private

property for more than a momentary period, and, under the warrant or color of legal authority

devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such

a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.


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Pursuant to the aforecited authority, a number of circumstances must be present in the "taking" o

property for purposes of eminent domain.

First, the expropriator must enter a private property. This circumstance is present in the instant case, when by

virtue of the lease agreement the Republic, through the AFP, took possession of the property of Castellvi.

Second, the entrance into private property must be for more than a momentary period. "Momentary"

means, "lasting but a moment; of but a moment's duration" (The Oxford English Dictionary, Volume VI

page 596); "lasting a very short time; transitory; having a very brief life; operative or recurring at every

moment" (Webster's Third International Dictionary, 1963 edition.) The word "momentary" when applied to

possession or occupancy of (real) property should be construed to mean "a limited period" no

indefinite or permanent. The aforecited lease contract was for a period of one year, renewable from year

to year. The entry on the property, under the lease, is temporary, and considered transitory. The fact that

the Republic, through the AFP, constructed some installations of a permanent nature does not alter the

fact that the entry into the land was transitory, or intended to last a year, although renewable from year to

year by consent of 'The owner of the land. By express provision of the lease agreement the Republic, as

lessee, undertook to return the premises in substantially the same condition as at the time the property

was first occupied by the AFP. It is claimed that the intention of the lessee was to occupy the land

permanently, as may be inferred from the construction of permanent improvements. But this "intention"

cannot prevail over the clear and express terms of the lease contract. Intent is to be deduced from the

language employed by the parties, and the terms 'of the contract, when unambiguous, as in the instant

case, are conclusive in the absence of averment and proof of mistake or fraud the question being no

what the intention was, but what is expressed in the language used. (City of Manila v. Rizal Park Co., Inc.

53 Phil. 515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover, in order to judge the

intention of the contracting parties, their contemporaneous and subsequent acts shall be principally

considered (Art. 1371, Civil Code). If the intention of the lessee (Republic) in 1947 was really to occupy

permanently Castellvi's property, why was the contract of lease entered into on year to year basis? Why

was the lease agreement renewed from year to year? Why did not the Republic expropriate this land of

Castellvi in 1949 when, according to the Republic itself, it expropriated the other parcels of land that it

occupied at the same time as the Castellvi land, for the purpose of converting them into a jet air base? 1

It might really have been the intention of the Republic to expropriate the lands in question at some future

time, but certainly mere notice - much less an implied notice of such intention on the part of the

Republic to expropriate the lands in the future did not, and could not, bind the landowner, nor bind theland itself. The expropriation must be actually commenced in court (Republic vs. Baylosis, et al., 96 Phil

461, 484).

Third, the entry into the property should be under warrant or color of legal authority. This circumstance in the

"taking" may be considered as present in the instant case, because the Republic entered the Castellvi property as

lessee.

Fourth, the property must be devoted to a public use or otherwise informally appropriated or injuriously

affected. It may be conceded that the circumstance of the property being devoted to public use is present

because the property was used by the air force of the AFP.


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Fifth, 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 the instant case, the entry of the Republic into the property and its

utilization of the same for public use did not oust Castellvi and deprive her of all beneficial enjoyment of the

property. Castellvi remained as owner, and was continuously recognized as owner by the Republic, as shown by

the renewal of the lease contract from year to year, and by the provision in the lease contract whereby the

Republic undertook to return the property to Castellvi when the lease was terminated. Neither was Castellv

deprived of all the beneficial enjoyment of the property, because the Republic was bound to pay, and had been

paying, Castellvi the agreed monthly rentals until the time when it filed the complaint for eminent domain on June

26, 1959. (Republic vs. Vda. De Castellvi).

Remember: For simplification, the elements of taking are,

1. The expropriator must enter a private property.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based

on the assumption that air time is finished product which, it is said, become the property of the company

like oil produced from refining or similar natural resources after undergoing a process for thei

production. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v

F.C.C., which upheld the right of a party personally attacked to reply, licenses to broadcast do not confe

ownership of designated frequencies, but only the temporary privilege of using them. Consequently, a

license permits broadcasting, but the licensee has no constitutional right to be the one who holds the

license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the

First Amendment which prevents the Government from requiring a licensee to share his frequency with

others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices

which are representative of his community and which would otherwise, by necessity, be barred from the

airwaves. As radio and television broadcast stations do not own the airwaves, no private property

is taken by the requirement that they provide air time to the COMELEC. (TELEBAP vs

COMELEC)

Note: The object of Eminent Domain is private property. Therefore public properties are not

subject to Eminent Domain proceedings.

2.The entrance into the private property must be for more than a momentary period.

3. The entry into the property should be under warrant or color of legal authority.

In this case, the petitioners entrance in 1978 was without intent to expropriate or was not made

under warrant or color of legal authority, for it believed the property was a public land covered by

Proclamation No. 1354. When the private respondent raised his claim of ownership sometime in 1979, the

petitioner flatly refused the claim for compensation, nakedly insisted that the property was public land and

wrongly justified its possession by alleging it had already paid financial assistance to Marawi City in

exchange for the rights of the property. Only in 1990, after more than a decade of beneficial use, did the


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petitioner recognize the private respondents ownership and negotiated for the voluntary purchase of the

property. xxx Clearly, this is not the intent nor the expropriation contemplated by law. This is a

simple attempt at a voluntary purchase and sale. (NAPOCOR vs. CA)

Remember: Entry under the warrant or color of authority therefore means that at the onset thepurpose for the taking of the property is for expropriation.

4. The property must be devoted to a public use or otherwise informally appropriated or

injuriously affected.

Note: Socialized Housing is for Public Use

Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as amended, for the

purpose of condemnation proceedings is not "public use" since it will benefit only "a handful of people

bereft of public character."

"Socialized housing" is defined as, "the construction of dwelling units for the middle and lower class

members of our society, including the construction of the supporting infrastructure and other facilities"

The "public use" requirement for a and exercise of the power of eminent domain is a flexible and evolving

concept influenced by changing conditions. In this jurisdiction, the statutory and judicial trend has been

summarized as follows: The taking to be valid must be for public use. There was a time when it was felt that a

literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public

to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not anymore. As long as

the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the

constitution in at least two cases, to remove any doubt, determines what is public use. One is the expropriation of

lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the

exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that a

present whatever may be beneficially employed for the general welfare satisfies the requirement of public us

[Heirs of Juancho Ardona v. Reyes, G.R. Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA 220 (1983) at

234-5 quoting E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 523-4, (2nd ed., 1977) Emphasis

supplied].

The term "public use" has acquired a more comprehensive coverage. To the literal import of the term

signifying strict use or employment by the public has been added the broadernotion of indirect public benefi

or advantage. As discussed in the above cited case ofHeirs of Juancho Ardona:

Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized as a public

purpose, not only because of the expanded concept of public use but also because of specific provisions in the

Constitution. The 1973 Constitution made it incumbent upon the State to establish, maintain and ensure adequate

social services including housing [Art. 11, sec. 7]. The 1987 Constitution goes even further by providing that:

The state shall by law, and for the common good, undertake, in cooperation with the private sector, a continuin

program of urban land reform and housing which will make available at affordable cost decent housing and bas

services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote


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adequate employment opportunities to such citizens. In the implementation of such program the State shal

respect the rights of small property owners. (Art. XIII, sec. 9, Emphaisis supplied)

Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and

significantly affects public health, safety, the environment and in sum, the general welfare. The public

character of housing measures does not change because units in housing projects cannot be occupied

by all but only by those who satisfy prescribed qualifications. A beginning has to be made, for it is not

possible to provide housing for are who need it, all at once.

Population growth, the migration to urban areas and the mushrooming of crowded makeshift dwellings is a

worldwide development particularly in developing countries. So basic and urgent are housing problems that the

United Nations General Assembly proclaimed 1987 as the "International Year of Shelter for the Homeless" "to

focus the attention of the international community on those problems". The General Assembly is Seriously

concerned that, despite the efforts of Governments at the national and local levels and of internationa

organizations, the driving conditions of the majority of the people in slums and squatter areas and rura

settlements, especially in developing countries, continue to deteriorate in both relative and absolute terms." [G.A

Res. 37/221, Yearbook of the United Nations 1982, Vol. 36, p. 1043-4]

In the light of the foregoing, this Court is satisfied that "socialized housing" fans within the confines of

"public use". It is, particularly important to draw attention to paragraph (d) of Pres. Dec. No. 1224 which

opportunities inextricably linked with low-cost housing, or slum clearance, relocation and resettlement, or slum

improvement emphasize the public purpose of the project. (Sumulong vs. Guerrero)

The governing law that deals with the subject of expropriation for purposed of urban land reform and housing in

Republic Act No. 7279 (Urban Development and Housing Act of 1992) and Sections 9 and 10 of whichspecifically provide as follows:

Sec. 9. Priorities in the acquisition of Land Lands for socialized housing shall be acquired in the following order:

(a) Those owned by the Government or any of its sub-divisions, instrumentalities, or agencies, including

government-owned or controlled corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvemen

and Resettlement Program sites which have not yet been acquired;

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

(f) Privately-owned lands.

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities

mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site

development of government lands.

Sec. 10. Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include

among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation t

the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, Th


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expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided furthe

That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted fo

purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and

escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court.

For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by

the local government units, or by the National Housing Authority primarily through negotiated purchase:

Provided, That qualified beneficiaries who are actual occupants of the land shall be given the right of first refusal.

(Filstream Intl Inc vs. CA)

Note: Cultural Enhancement is for public Use

The term public use, not having been otherwise defined by the constitution, must be considered

in its general concept of meeting a public need or a public exigency . Black summarizes the

characterization given by various courts to the term; thus:

Public Use. Eminent domain. The constitutional and statutory basis for taking property by eminent domain. Fo

condemnation purposes, public use is one which confers same benefit or advantage to the public; it is not

confined to actual use by public. It is measured in terms of right of public to use proposed facilities for

which condemnation is sought and, as long as public has right of use, whether exercised by one or many

members of public, a public advantage or public benefit accrues sufficient to constitute a public use

Public use, in constitutional provisions restricting the exercise of the right to take private property in

virtue of eminent domain, means a use concerning the whole community as distinguished from particula

individuals. But each and every member of society need not be equally interested in such use, or be personally

and directly affected by it; if the object is to satisfy a great public want or exigency, that is sufficient. Rindge Co.

vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The term may be said to mean public

usefulness, utility, or advantage, or what is productive of general benefit. It may be limited to the

inhabitants of a small or restricted locality, but must be in common, and not for a particular individual.

The use must be a needful one for the public, which cannot be surrendered without obvious general loss and

inconvenience. A public use for which land may be taken defies absolute definition for it changes with varying

conditions of society, new appliances in the sciences, changing conceptions of scope and functions o

government, and other differing circumstances brought about by an increase in population and new modes o

communication and transportation. Katz v. Brandon, 156 Conn., 521, 245 A.2d 579,586.

The validity of the exercise of the power of eminent domain for traditional purposes is beyond question; it is not at

all to be said, however, that public use should thereby be restricted to such traditional uses. The idea that public

use is strictly limited to clear cases of use by the public has long been discarded. This Court in Heirs of Juancho

Ardona v. Reyes, quoting from Berman v. Parker (348 U.S. 25; 99 L. ed. 27), held:

x x x A historical research discloses the meaning of the term public use to be one of constant growth.

As society advances, its demands upon the individual increase and each demand is a new use to which

the resources of the individual may be devoted. x x x for whatever is beneficially employed for the

community is a public use.


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xxx This attempt to give some religious perspective to the case deserves little consideration, for what should be

significant is the principal objective of, not the casual consequences that might follow from, the exercise of the

power. The purpose in setting up the marker is essentially to recognize the distinctive contribution of the

late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and

leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of the

Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely

incidental and secondary in nature. Indeed, that only a few would actually benefit from the expropriation o

property does not necessarily diminish the essence and character of public use. (Manosca vs. CA)

5. The utilization of the property should be in such a way to oust the owner and deprive

him of all beneficial enjoyment of the property.

It is hard to conceive how the jurisdiction, supervision and control of the appellee's waterworks system

may be vested in the appellant without destroying the integrity of the appellee's right of dominion

Ownership is nothing without the inherent rights of possession, control and enjoyment. Where the owne

is deprived of the ordinary and beneficial use of his property or of its value by its being diverted to public

use, there is taking within the constitutional sense. Taada & Fernando, Constitution of the Philippines

4th ed., Vol. I, pp. 215-216. Such deprivation would be the certain consequence if, as prayed for by the

appellant, it should be allowed to assume jurisdiction, supervision and control over the waterworks system

of the appellee. That would be little less than an assumption of ownership itself and not of mere

administration. (Municipality of La Carlota vs. NAWASA)

Note: even if the Municipality was the owner of the Waterworks system, they were deprived of

the jurisdiction, supervision and control of it. This deprivation of the benefits of the waterworks

system is tantamount to taking.

xxx that while the Republic may not compel the PLDT to celebrate a contract with it, the Republic may

in the exercise of the sovereign power of eminent domain, require the telephone company to permit

interconnection of the government telephone system and that of the PLDT, as the needs of the

government service may require, subject to the payment of just compensation to be determined by the

court. Nominally, of course, the power of eminent domain results in the taking or appropriation oftitle to, and possession of, the expropriated property; but no cogent reason appears why the said

power may not be availed of to impose only a burden upon the owner of condemned property

without loss of title and possession. It is unquestionable that real property may, through expropriation

be subjected to an easement of right of way. The use of the PLDT's lines and services to allow inter-

service connection between both telephone systems is not much different. In either case private property

is subjected to a burden for public use and benefit. If, under section 6, Article XIII, of the Constitution, the

State may, in the interest of national welfare, transfer utilities to public ownership upon payment of just

compensation, there is no reason why the State may not require a public utility to render services in the


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general interest, provided just compensation is paid therefor. Ultimately, the beneficiary of the

interconnecting service would be the users of both telephone systems, so that the condemnation would

be for public use. (Republic vs. PLDT)

Note: Deprivation of ownership is tantamount to taking (in Eminent Domain cases).

VI. Just Compensation

Just compensation means the value of the property at the time of the taking. It means a fair and ful

equivalentfor the loss sustained. All the facts as to the condition of the property and its surroundings, its

improvements and capabilities, should be considered. (EPZA vs. Dulay)

a. Stages in Eminent Domain (expropriation) proceedings :

x x x The firstis concerned with the determination of the authority of the plaintiff to exercise

the power of eminent domain and the propriety of its exercise in the context of the 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 the date

of the filing of the complaint x x x.

The secondphase 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 three (3) commissioners. x x x. (Municipality of Binan vs.

Garcia)

b. Computation

Just Compensation = Fair Market Value + [Consequential Damages Consequential Benefits]

JC = FMV + [CD- CB]

Note: the formula will apply if only a portion of the property is taken.

Fair Market Value is the price arrived at by one who is not compelled to buy and one who is

not willing to sell.

c. Reckoning point:

Thus, the value of the property must be determined either as of the date of the taking of the

property or the filing of the complaint, "whichever came first." Even before the new rule, however, i

was already held in Commissioner of Public Highways v. Burgos that the price of the land at the time of

taking, not its value after the passage of time, represents the true value to be paid as just compensation

It was, therefore, error for the Court of Appeals to rule that the just compensation to be paid to responden

should be determined as of the filing of the complaint in 1990, and not the time of its taking by the NIA in


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1981, because petitioner was allegedly remiss in its obligation to pay respondent, and it was responden

who filed the complaint. In the case of Burgos, it was also the property owner who brought the action fo

compensation against the government after 25 years since the taking of his property for the construction

of a road.

Indeed, the value of the land may be affected by many factors. It may be enhanced on account of its taking fo

public use, just as it may depreciate. As observed in Republic v. Lara:

[W]here property is taken ahead of the filing of the condemnation proceedings, the value thereof may be

enhanced by the public purpose for which it is taken; the entry by the plaintiff upon the property may have

depreciated its value thereby; or there may have been a natural increase in the value of the property from the time

it is taken to the time the complaint is filed, due to general economic conditions. The owner of private property

should be compensated only for what he actually loses; it is not intended that his compensation shall extend

beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is

the only way that compensation to be paid can be truly just, i.e., "just" not only to the individual whose property is

taken, "but to the public, which is to pay for it" (MCIAA vs. Rodriguez)

Note: if the taking and filing coincides, the reckoning point is the filing.

If the taking preceded the filing, the reckoning point will be the taking.

PRINCIPLE: If consequential benefits exceeds the consequential damages, the computation

will be JC = FMV, the [CD- CB] should be disregarded, because expropriator should indemnify

the lose acquired by the owner.

d. Who determines just compensation?

The determination of "just compensation" in eminent domain cases is a judicial function. The

executive department or the legislature may make the initial determinations but when a party claims a

violation of the guarantee in the Bill of Rights that private property may not be taken for pubhc use withou

just compensation, no statute, decree, or executive order can mandate that its own determination shag

prevail over the court's findings. Much less can the courts be precluded from looking into the "just-ness" o

the decreed compensation.

xxx It is violative of due process to deny to the owner the opportunity to prove that the valuation in the tax

documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to allow the haphazard

work of a minor bureaucrat or clerk to absolutely prevail over the judgment of a court promulgated only afte

expert commissioners have actually viewed the property, after evidence and arguments pro and con have been

presented, and after all factors and considerations essential to a fair and just determination have been judiciously

evaluated. (EPZA vs. Dulay)

Rule 67 of the Rules of Court (Expropriation)


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Sec. 5. Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoin

not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the

court the just compensation for the property sought to be taken. The order of appointment shall designate the time

and place of the first session of the hearing to be held by the commissioners and specify the time within which

their report shall be submitted to the court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners

shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after al

the commissioners shall have received copies of the objections.

Sec. 6. Proceedings by commissioners. Before entering upon the performance of their duties, the

commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners

which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either

party before the commissioners who are authorized to administer oaths on hearings before them, and the

commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and

examine the property sought to be expropriated and its surroundings, and may measure the same, after which

either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential

damages to the property not taken and deduct from such consequential damages the consequential benefits to be

derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the

corporation or the carrying on of the business of the corporation or person taking the property. But in no case shal

the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of

the actual value of his property so taken.

Sec. 7. Report by commissioners and judgment thereupon. The court may order the commissioners to repor

when any particular portion of the real estate shall have been passed upon by them, and may render judgment

upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the

property sought to be expropriated, and may from time to time so deal with such property. The commissioners

shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be

effectual until the court shall have accepted their report and rendered judgment in accordance with thei

recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60)

days from the date the commissioners were notified of their appointment, which time may be extended in the

discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all

interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings ofthe report, if they so desire.

Sec. 8. Action upon commissioners report. Upon the expiration of the period of ten (10) days referred to in the

preceding section, or even before the expiration of such period but after all the interested parties have filed their

objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report

and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the

commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may

accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure


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to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just

compensation for the property so taken.

e. Entry into the property

a. LGU

R.A. 7160, SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and acting

pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the

benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the

Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised

unless a valid and definite offer has been previously made to the owner, and such offer was not accepted:

Provided, further, That the local government unit may immediately take possession of the property upon the filing

of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%

of the fair market value of the property based on the current tax declaration of the property to be expropriated:

Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the prope

court, based on the fair market value at the time of the taking of the property.

b. other expropriators.

Revised Rules of Court, Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary.

Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shal

have the right to take or enter upon the possession of the real property involved if he deposits with the authorized

government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be

held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the

court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines

payable on demand to the authorized government depositary.

If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shal

be promptly fixed by the court.

After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in

possession of the property involved and promptly submit a report thereof to the court with service of copies to the

parties.

f. Just Compensation: how payable?

Payable in cash, exception: agrarian expropriation where the expropriator can pay by means o

government bonds.

g. Just Compensation: when payable?

In summation, while the prevailing doctrine is that the non-payment of just compensation does not entitle

the private landowner to recover possession of the expropriated lots,[however, in cases where the

government failed to pay just compensation within five (5) years from the finality of the judgment in


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the expropriation proceedings, the owners concerned shall have the right to recover possession of thei

property. This is in consonance with the principle that the government cannot keep the property and

dishonor the judgment. To be sure, the five-year period limitation will encourage the government to pay

just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the

government, whenever it takes property from private persons against their will, to facilitate the payment o

just compensation. In Cosculluela v. Court of Appeals,[29]we defined just compensation as not only the

correct determination of the amount to be paid to the property owner but also the payment of the property

within a reasonable time. Without prompt payment, compensation cannot be considered just.

(People vs. Lim)

h. Who should be made party to an expropriation proceedings?

The defendants in an expropriation case are not limited to the owners of the property condemned. They

include all other persons owning, occupying or claiming to own the property. When a parcel of land is taken by

eminent domain, the owner of the fee is not necessarily the only person who is entitled to compensation. In theAmerican jurisdiction, the term "owner" when employed in statutes relating to eminent domain to designate the

persons who are to be made parties to the proceeding, refers, as is the rule in respect of those entitled to

compensation, to all those who have lawful interest in the property to be condemned, including a mortgagee

a lessee and a vendee in possession under an executory contract. Every person having an estate or interest at

law or in equity in the land taken is entitled to share in the award. If a person claiming an interest in the land

sought to be condemned is not made a party, he is given the right to intervene and lay claim to the

compensation. (de Knecht vs. CA)

VII. Allied Provisions

1987 Consti. Artcile XII, Section 17. In times of national emergency, when the public interest so requires, the

State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the

operation of any privately-owned public utility or business affected with public interest.

The above provision pertains to the right of the State in times of national emergency, and in the exercise

of its police power, to temporarily take over the operation of any business affected with public interest. In

the 1986 Constitutional Commission, the term national emergency was defined to include threat

from external aggression, calamities or national disasters, but not strikes unless it is of such

proportion that would paralyze government service. The duration of the emergency itself is the

determining factor as to how long the temporary takeover by the government would last. The temporary

takeover by the government extends only to the operation of the business and not to the ownership

thereof. As such the government is not required to compensate the private entity-owner of the said

business as there is no transfer of ownership, whether permanent or temporary. The private entity

owner affected by the temporary takeover cannot, likewise, claim just compensation for the use of the

said business and its properties as the temporary takeover by the government is in exercise of its police

powerand not of its power of eminent domain.
http://www.supremecourt.gov.ph/jurisprudence/2005/jun2005/161656.htm#_ftn29http://www.supremecourt.gov.ph/jurisprudence/2005/jun2005/161656.htm#_ftn29http://www.supremecourt.gov.ph/jurisprudence/2005/jun2005/161656.htm#_ftn29


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PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision on temporary

government takeover and obligate the government to pay reasonable cost for the use of the Termina

and/or Terminal Complex. Article XII, section 17 of the 1987 Constitution envisions a situation wherein the

exigencies of the times necessitate the government to temporarily take over or direct the operation of any

privately ownedpublic utility or business affected with public interest. It is the welfare and interest of the public

which is the paramount consideration in determining whether or not to temporarily take over a particula

business. Clearly, the State in effecting the temporary takeover is exercising its police power. Police power is the

most essential, insistent, and illimitable of powers. Its exercise therefore must not be unreasonably hampered

nor its exercise be a source of obligation by the government in the absence of damage due to arbitrariness of its

exercise. Thus, requiring the government to pay reasonable compensation for the reasonable use of the property

pursuant to the operation of the business contravenes the Constitution. (Agan vs. PIATCO, May 2003)

VIII. Eminent Domain as Differentiated from Police Power

But while property may be regulated in the interest of the general welfare, and in its pursuit, the State

may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may

not, under the guise of police power, permanently divest owners of the beneficial use of their property and

practically confiscate them solely to preserve or assure the aesthetic appearance of the community. As

the case now stands, every structure that may be erected on appellants' land, regardless of its own

beauty, stands condemned under the ordinance in question, because it would interfere with the view ofthe public plaza from the highway. The appellants would, in effect, be constrained to let their land remain

idle and unused for the obvious purpose for which it is best suited, being urban in character. To legally

achieve that result, the municipality must give appellants just compensation and an opportunity to be

heard. (Pp vs. Fajardo)

Police power has been defined as the "state authority to enact legislation that may interfere with persona

liberty or property in order to promote the general welfare." It consists of two essential elements. First, i

is an imposition of restraint upon liberty or property. Second, the power is exercised for the benefit of the

common good. Its definition in elastic terms underscores its all-encompassing and comprehensive

embrace. It is and still is the most essential, insistent, and illimitable of the States powers. It is familia

knowledge that unlike the power of eminent domain, police power is exercised without provision

for just compensation for its paramount consideration is public welfare.

It is also settled that public interest on the occasion of a national emergency is the primary consideration when the

government decides to temporarily take over or direct the operation of a public utility or a business affected with

public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as

the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the


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temporary takeover as dictated by the exigencies of the time. As we ruled in our Decision, this power of the State

can not be negated by any party nor should its exercise be a source of obligation for the State . (Agan vs

PIATCO, Jan. 2004)

Note:

\\adsum

\\godzoila

Police Power Eminent Domain

1. Restricts/ divests/ limits the use of

property.

2. No compensation.

1. Property is applied/ appropriated for

public use.

2. With just compensation.

Documents

Consti Premid Final