Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23810        December 18, 1925

CATALINO VALDERRAMA, plaintiff-appellee,
vs.
THE NORTH NEGROS SUGAR CO., INC., defendant-appellant.

--------------------------

G.R. No. L-23811        December 18, 1925

EMILIO RODRIGUEZ, plaintiff-appellee,
vs.
THE NORTH NEGROS SUGAR CO., INC., defendant-appellant.

--------------------------

G.R. No. L-23812        December 18, 1925

SANTOS URRA ET AL., plaintiffs-appellees,

vs.
THE NORTH NEGROS SUGAR CO., INC., defendant-appellant.

Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr., for appellant.
Camus & Delgado for appellees.

VILLAMOR, J.:

As appears from the record, on November 17, 1916, several hacienda owners Manapla, Occidental
Negros entered into a contract with Miguel J. Osorio, known as milling contract, wherein Osorio
agreed to install in Manapla a sugar central of a minimum capacity of 300 tons, for grinding and
milling all the sugar cane to be grown by the hacienda owners, who in turn bound themselves to
furnish the central with all the cane they might produce in their estates for thirty years from the
execution of the contract, all in accordance with the conditions specified therein.

Later on, the defendant North Negros Sugar Co., Inc., acquired the rights and interest of Miguel J.
Osorio in the milling contract aforesaid.

Two years thereafter, that is to say, on January 29, 1919 Catalino Valderrama (case No. 23810) and
on February 1st of the same year, Emilio Rodriguez (case No. 23811) and Santos Urra, Ignacio
Benito Huarte, Adolfo Huarte and Pedro Auzmendi (case No. 23812) made with the appellant other
milling contracts identical with the first one of November 17, 1916, with some new conditions which
are specified in detail in the aforesaid documents Exhibit A and 1. Santos Urra thereafter transferred
to Pedro Auzmendi, and the latter to Lorenzo Echarri, their interest in the milling contract executed
by them.

In view of the fact that the hacienda owners, who were up to that time customers of the central,
could not furnish sufficient cane for milling, as required by the capacity of said central, the defendant
made other milling contracts with various hacienda owners of Cadiz, Occidental Negros, in order to
obtain sufficient cane to sustain the central; and this gave rise to the plaintiffs filing their complaint,
alleging that the easement of way, which each of them has established in his respective hacienda,
was only for the transportation through each hacienda of the sugar cane of the owner thereof, while
the defendant maintains that it had the right to transport to its central upon the railroad passing
through the haciendas of the plaintiffs, not only the sugar cane harvested in said haciendas, but also
that of the hacienda owners of Cadiz, Occidental Negros.

The plaintiffs, in separate complaints, prayed the Court of First Instance of Occidental Negros to
pronounce judgment, holding that the defendant had no right, under the easement or otherwise, to
cause its locomotives and wagons to run across the estates of the plaintiffs for the purpose of
transporting sugar cane of any agriculturist of Cadiz, Occidental Negros.

The defendant answered the amended complaints, admitting some allegations thereof and denying
others. And as special defense, it alleged that the plaintiffs respectively granted the defendant, for
the period of fifty years from the date of the aforesaid contracts, an easement of way 7 meters wide
upon the lands of the plaintiffs for the construction and operation of a railroad for the transportation
of sugar cane; that said easement of way was established without any restriction whatsoever, as
regards the ownership of the cane to be transported over the said railroad; that said contract was
then in full force and effect and had never been annulled or modified.

After hearing the three cases, the trial court entered one single judgment for all of them, holding that
the defendant had no right to pass through the lands of the plaintiffs described in their amended
complaints for the transportation of sugar cane not grown from any of the haciendas of the plaintiffs.
From this judgment, the defendant appealed.

In view of the similarity of the facts and questions raised in the three complaints, they will herein be
considered jointly, as was done by the trail court.

The parties agree that the only question herein involved is as to the extent of the easement of way
which the plaintiffs have established in their respective haciendas in favor of the defendant, and
therefore it is important to know the terms in which such easement of way was established.

In the contract executed by the plaintiff Valderrama with the defendant on January 29, 1919, there
appears: "6th. That in order to have the obligations herein entered into by Mr. Valderrama duly
registered, in regard to the rural estates belonging to him and which are described hereinafter, an
easement of way 7 meter wide and for the period of 50 years from the date hereof is hereby created
in favor of the 'North Negros Sugar Co., Inc., ' upon his property hereinafter described, at such place
as said corporation may see fit for the construction of a railroad."

And in the contract of the plaintiff Rodriguez of February 1, 1919, there also appears" "6th. That in
order to have the obligations herein entered into by Mr. Emilio Rodriguez duly registered, in regard
to the rural estates belongings to him which are herein described, an easement of way 7 meters
wide and for the period of 50 years from the date hereof is hereby established by said Mr. Emilio
Rodriguez in favor of the 'North Negros Sugar Co., Inc.,' upon his estate aforementioned, at such
place as said corporation may see fit for the construction of a railroad."

And lastly in the contract of Santos Urra and others of February 1, 1919, there likewise appears:
"7th. That in order to have the obligations herein entered into by Santos Urra, Ignacio Benito Huarte,
Adolfo Huarte and Pedro Auzmendi duly registered in regard to their estate hereinafter
described, an easement of way 7 meters wide and for the period of 50 years from the date hereof is
hereby established in favor of the 'North Negros Sugar Co., Inc.,' upon their estate hereinafter
described, at such place as said corporation may see fit for the construction of a railroad." lawphi1 .net

As may be seen, the question raided depends upon the interpretation to be given to the clause of the
contracts of the plaintiffs above quoted. The plaintiffs allege that the aforesaid clause is ambiguous,
and under the first exception of section 285 of the Code of Civil Procedure, they have the right to
introduce extraneous evidence to explain the true intent of the parties. And it is ambiguous,
according to them, because it may applied to the transportation of the cane of the plaintiffs or other
producers, which is contrary to the intent of the contracting parties. If the above quoted clause is
ambiguous, the plaintiffs have the right to introduce circumstantial evidence to explain the true intent
of the parties, but it our opinion said clause is clear enough in its terms to express what the parties
have intended to agree upon. Had the clause mentioned only an "easement of way," there might be
a doubt as to whether or not the easement of way is for pedestrians, horsemen or carriages. But
when the clause says: "easement of way 7 meters wide for the period of 50 years for the
construction of the railroad," there can be no doubt about what the contracting parties have agreed
upon, to wit, that the plaintiffs have created upon their respective haciendas at a suitable place an
easement of way 7 meters wide and for a period of fifty years, in order to enable the defendant to
build and maintain a railroad for the transportation of sugar cane to the central. It is clear that the
cane of the plaintiffs was to be transported upon the railroad to the central; but to limit the use of the
road exclusively to the cane of the plaintiffs and within their respective haciendas would make the
contract in question ineffective, except as to the hacienda which is contiguous or nearest to the
central.

The object of such a milling contract, from which arises the easement in question, is undoubtedly to
obtain mutual benefit to the procedures of sugar cane and the corporation putting up the central. It is
only by taking this principal idea into account that it may be conceived why the parties had come to
an agreement to assume such obligation as are set forth in the milling contract. But the contract
could not produce any benefit to the parties, if the explanation given by the plaintiffs would be
admitted, as to their intention in creating the aforesaid easement of way upon their
respective haciendas, that it was only in favor of their respective haciendas. Such an explanation is
inadmissible because it is contrary to the object of the milling contract.

It is against the nature of the easement to pretend that it was established in favor of the servient
estates, because it is a well settled rule that things serve their owner by reason of ownership and not
by reason of easement.

This is a case of an easement for the benefit of a corporation, voluntarily created by the plaintiffs
upon their respective estates for the construction of a railroad connecting said estates with the
central of the defendant. Once the road is constructed, the easement is apparent because it is
continuously exposed to view by the rails which reveal the use and enjoyment of said easement. It is
evident, as above stated, that the cane of the plaintiffs if to be transported to the central by means of
wagons passing upon the railroad; but as the easement was created for the benefit of the
corporation, owner of the central, it may cause its wagons to pass upon the road as many times as it
may deem fit, according to the needs of the central. If the plaintiffs do not produce sufficient cane to
cover the capacity of the central, it would be unjust to impose upon the defendant corporation the
burden of maintaining a central, prohibiting it to obtain from another source sufficient cane with
which to maintain its business; this is specially true here, because in the milling contract with the
plaintiffs, there is nothing to prohibit the defendant from making milling contracts with other planters,
and obtain in that way all cane necessary to cover the capacity of the central.

Another reason advanced by the appellees in support of their theory is that by transporting upon the
road, through the servient estates, the cane of the planters of Cadiz, it would alter the easement,
making it more burdensome. It is true that the owner of the dominant estate, in making on the
servient estate the necessary works for the use and preservation of the easement, cannot alter it,
nor make it more burdensome (art. 543 of the Civil Code); but this does not mean that the defendant
cannot transport in the wagons passing upon the railroad other cane that of the plaintiffs. What is
prohibited by the legal provision above cited is that the defendant, in excavations or building
materials outside of the area of 7 meters, because in the first case, the easement will be altered, and
in the second it would become more burdensome. But nothing of the kind happens when the
defendant transport on the railroad, crossing the servient estates, the cane of the planters of Cadiz;
the railroad continues to occupy the same area on the servient estates, and the incumbrance
resulting from the easement continues to be the same, whether the tractors traverse the line 10, 20
or 30 times a day transporting cane for the central. lawphi1 .net

Furthermore, the record shows a circumstance indicating that at the time of the execution of the
milling contracts above referred to, there was no intention of the part of the contracting parties to
limit the use of the railroad to the transportation of cane grown by the plaintiffs in their
respective haciendas, and that is because, while the duration of the milling contracts is fixed at thirty
years, that of the easement is at fifty. So that if at the end of thirty years the plaintiffs or their
successors should no longer desire to furnish canes for milling in the central of the defendant, the
latter shall still have the right to the easement for the remaining period, but without transporting on
the railroad any cane for the central. An interpretation of the clause in question leading to such a
result is untenable.

For the foregoing, we are of the opinion that the trial court erred in finding that the appellant could
not transport on its railroad passing through the haciendas of the appellees, where it has an
easement of way established in its favor, the cane grown in the haciendas of the procedures of
Cadiz, Occidental Negros, to be milled in the central of the appellant. And, therefore, the judgment
appealed from must be reversed and the appellant absolved, as it is hereby absolved, from the
complaint, without special pronouncement as to costs. So ordered.
Avanceña. C. J., Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.

Begun and held in Metro Manila, on Monday, the twenty-eighth day of July, two thousand fourteen.

REPUBLIC ACT NO. 10659

AN ACT PROMOTING AND SUPPORTING THE COMPETITIVENESS OF THE SUGARCANE

INDUSTRY AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

Section 1. Short Title. – This Act shall be known as the "Sugarcane Industry Development Act of
2015".

Section 2. Declaration of Policy. – It is hereby declared the policy of the State to promote the
competitiveness of the sugarcane industry and maximize the utilization of sugarcane resources, and
improve the incomes of farmers and farm workers, through improved productivity, product
diversification, job generation, and increased efficiency of sugar mills.

For these purposes, the State shall: (a) establish productivity improvement programs; (b) provide the
needed infrastructure support; (c) enhance research and development of other products derived
from sugar, sugarcane, and their by-products; (d) provide human resource development and
extension services; and (e) provide financial assistance to small farmers.

Section 3. Productivity Improvement Programs. – To boost the production of sugarcane and sugar,
and increase the incomes of sugarcane farmers/planters and farm workers, the following Productivity
Improvement Programs shall be implemented:

(a) Block Farm Program. – The Block Farm Program for sugarcane farming being implemented by
the Sugar Regulatory Administration (SRA), the Department of Agriculture (DA), the Department of
Agrarian Reform (DAR), and other government agencies is hereby institutionalized and shall be
further enhanced and supported.

For purposes of this Act, the Program is the consolidation of small farms including farms of agrarian
reform beneficiaries, as one larger farm, with a minimum area of thirty (30) hectares within a two-
kilometer radius, to take advantage of the economies of scale in the production of sugarcane, such
that the activities in the small farms are aligned and implemented to ensure the efficient use of farm
machineries and equipment, deployment of workers, volume purchase of inputs, financing, and other
operational advantages, as well as recognition by sugar mills, government financial institutions,
private investors, but the ownership of each small farm remains with the landowners.

The SRA, the DA, the DAR and other concerned government agencies shall provide common
service facilities, such as farm machineries and implements, grants or start-up funding for the
needed production inputs, technology adoption, livelihood and skills training and other development
activities for the block farm and its members, and other support activities that may be identified.

To ensure the success of, and compliance to the objectives of the Program, the SRA shall:

(1) Develop guidelines for sugarcane farms to qualify for and continue to participate in the Program;

(2) Provide farm management, technical assistance, and professional services support to block
farms, in coordination with the DA, the DAR and other concerned government agencies;

(3) Monitor the development and productivity of block farms;

(4) Recommend, after six (6) years, the cessation of the Program on block farms that have failed to
improve productivity or raise efficiency, or graduation of block farms that have achieved high and
sustainable productivity and profitability on its operations; and
 (5) Implement a certification system as a mechanism to access grants, low interest financing, and
other incentives and support from Official Development Assistance (ODA); and market access of
sugarcane: Provided, That sugar mills, bioethanol distilleries and other markets of sugarcane shall
provide market access priority to the SRA-certified block farms.

(b) Farm Support Program. – For other farms that are not eligible under the Block Farm Program,
the SRA shall make available a support program which shall include, among others, the provision of
(1) socialized credit; and (2) farm management, technical assistance; and professional services:

(i) Socialized credit shall be made available, through the Land Bank of the Philippines (LBP), for the
acquisition of production inputs, farm machineries, and implements necessary for the continuous
production of sugarcane: Provided, That the loans shall be available to sugarcane farmers duly
registered with the SRA: Provided, further, That the lender shall have a lien on the quedan of
farmers who obtained a crop loan until the crop loan is fully paid: Provided, finally, That farmers
cannot be granted another loan until the loan is fully paid.

To ensure immediate payment of farmers and secure their income from sugarcane, farmers may
enter into any payment method with the sugar mills or distilleries for their sugarcane.

(ii) Farm Management, Technical Assistance and Professional Services –The SRA, the DA, the
DAR, the Department of Labor and Employment (DOLE), the Technical Education and Skills
Development Authority (TESDA), state universities and colleges (SUCs), and other concerned
private and nongovernment organizations (NGOs) shall formulate and implement a deployment
program of agricultural engineers, agriculturists and farm technicians for the provision of farm
management, technical assistance and professional services to these farms.

(c) Farm Mechanization Program. – Planters/farmers of sugarcane farms, including block farms and
farms of agrarian reform beneficiaries, shall be encouraged and trained to utilize appropriate
agricultural machineries and equipment necessary for the efficient planting, cultivation, care and
maintenance, harvesting and handling of sugarcane.

The SRA, the DA and the DAR, in partnership with local government units (LGUs), consistent with
the provisions of Republic Act No. 10601, otherwise known as the "Agricultural and Fisheries
Mechanization (AFMech) Law", shall:

(1) Introduce or expand the use of machineries for the different stages of sugarcane farming;

(2) Formulate and implement a Sugarcane Farm Mechanization Program at the mill district levels
and block farms; and

(3) Support the establishment, operation and maintenance of Agri-fisheries Machinery and
Equipment Service Centers, as provided in Section 9 of Republic Act No. 10601, in sugarcane areas
and, for this purpose, provide socialized credit to service centers: Provided, That these service
centers shall emphasize the provision of plowing, harrowing, weeding, fertilization, harvesting and
other farm mechanization services to sugarcane farms that do not have the capability to purchase or
maintain their own machineries and equipment.

To develop and deploy appropriate machineries and equipment, the SRA, through its research
centers, in collaboration with the Philippine Sugar Research Institute, the Philippine Center for Post-
Harvest Development and Mechanization, the Bureau of Agricultural Research, SUCs, other
concerned government agencies, and industry stakeholders, shall formulate and conduct a research,
development and extension program for sugarcane farm mechanization and engineering.

The LBP shall manage the socialized credit facility under the Farm Support Program and the Farm
Mechanization Program.

The SRA, the DA, the DAR, and the LBP shall issue the guidelines on the administration and lending
of the socialized credit facility.

Section 4. Research and Development. – The SRA, in coordination with the Department of Science
and Technology (DOST), as well as relevant state universities and government research and
development institutions and the private sector, shall intensify researches on sugarcane high
yielding or flood resistant varieties; pest control and prevention; latest farming, milling, refining and
biomass co-generation technologies; soil analysis and fertility mapping of sugarcane areas; weather
monitoring and climate change adaptation measures; sugar and sweetener consumption; and other
viable products that can be derived from sugarcane. The DA and the DOST shall likewise provide
assistance to the SRA to improve the latter’s crop forecasting and crop monitoring activities or
programs.

Section 5. Extension Services. – In addition to extension services provided by the DA, the DAR, the
SUCs and private and NGOs, extension services in sugar districts shall be provided by the SRA and
the mill district development councils (MDDCs). Extension services that can be provided shall
include, but not limited to, provision of technical assistance and advice, conduct of tests,
propagation, and dissemination of high yielding varieties, and operation of demonstration farms.

For its extension services, MDDCs may develop linkages with NGOs, peoples’ organizations, and
LGUs. It may likewise secure funding for its extension services from private sector sources.

Section 6. Human Resources Development. – All stakeholders in the sugarcane industry shall
contribute to the development of a sustainable human resource for the industry. Towards this end,
the DOLE, in collaboration with the SRA, the Commission on Higher Education, the TESDA, the
Professional Regulation Commission (PRC) and the private sector, shall formulate and implement a
Human Resources Development (HRD) Master Plan for the sugarcane industry which shall include,
but not limited to, the following:

(a) Capacity building, skills trainings, institutional strengthening of the sugarcane industry workers,
small farmers and agrarian reform beneficiaries and their organizations to actively contribute in
productivity and competitiveness;

(b) Scholarship program for the underprivileged but deserving college and post graduate students
who are taking up courses in relevant fields of discipline in SUCs which have programs in
agriculture, agricultural engineering and mechanics, and chemical engineering/sugar technology;
and for vocational courses and skills development for farmers and farm technicians, and skilled
workers in sugar mills, sugar refineries, distilleries and biomass power plants;

(c) Conduct of capability training or attendance to local or international trainings and seminars by
farmers, mill, refinery, distilleries and biomass power plant technicians, including the SRA technical
personnel on the latest technologies related to sugarcane farming, manufacture or production of
sugar and other products derived from sugarcane;

(d) Formulation and implementation of competency standards and training regulations for technical
vocational education and training for the sugarcane industry by the TESDA; and

(e) Upgrading of facilities, faculty development and strengthening of the on-the-job training program
of agri-based higher education institutions in sugarcane areas towards the production of highly
employable and globally competitive graduates needed by the sugarcane industry.

Section 7. Infrastructure Support. – To facilitate the transport of sugarcane to mills and distilleries,
enhance the marketing and export of sugar and other products derived from sugarcane, and
complement productivity improvement measures in this Act, transport infrastructure, farm-to-mill
roads, and irrigation facilities shall be provided.

(a) Transport Infrastructure. – The National Economic and Development Authority (NEDA), the
Department of Transportation and Communications (DOTC), the Department of Public Works and
Highways (DPWH), and the Philippine Ports Authority (PPA), shall include in their annual
Development Plans and Priority Investment Programs the immediate construction and/or
improvement of existing transloading ports for export or coast-wide transport of sugar and other
products derived from sugarcane in key sugarcane producing provinces. The SRA shall submit to
these agencies, six (6) months from the start of the effectivity of this Act, a priority list of transloading
ports covered by this provision.

(b) Farm-to-Mill Roads. – The NEDA, the DA, the DPWH, and concerned LGUs, shall include in their
annual Priority Investment Program the immediate construction and/or rehabilitation of farm-to-mill
roads in key sugarcane producing provinces. The SRA shall prepare and submit to these agencies
and LGUs, within six (6) months from the start of effectivity of this Act, a Farm-to-Mill Road Master
 Plan and priority farm-to-mill roads at the mill district as basis for the planning, programming and
investment prioritization.

(c) Irrigation. – The National Irrigation Administration (NIA), the Bureau of Soils and Water
Management, and concerned LGUs, in coordination with the SRA, shall construct appropriate,
efficient and cost effective irrigation facilities, pump and other pressurized irrigation systems, rain
capture and water impounding facilities in block farms and other sugarcane farms. The SRA shall
submit to these agencies the list of priority sugarcane areas within six (6) months from the start of
the effectivity of this Act. The DA and the NIA shall include in its annual budget the item or provision
on construction and rehabilitation of irrigation facilities, rain capture and water impounding facilities
in sugarcane areas.

To promote the conservation of water resources and encourage and involve the participation of
sugar mills, refineries and distilleries in providing irrigation to sugarcane areas, the utilization for
irrigation of wastewater discharge of mills, refineries, or distilleries, that meet the specifications of the
DA on the safe reuse of wastewater for irrigation, fertilization and other agricultural uses, is
considered "reuse" and, therefore, exempt from wastewater charges under the system provided
under Section 13 of Republic Act No. 9275, also known as the "Philippine Clean Water Act of 2004".

Section 8. Sugar Supply Monitoring System. – As the agency mandated to regulate the supply of
sugar in the country, in addition to its powers and functions under Executive Order No. 18, series of
1986, the SRA shall establish a supply chain monitoring system from sugarcane to sugar at the retail
level to ensure sufficiency and safety of sugar.

To accurately determine the supply of sugarcane and sugar in the country and to provide sound
basis for diversification, planning and policy, it is mandated that the following shall register with the
SRA:

(a) Sugarcane farmers, farmers’ associations/federations, mills/mill associations, sugarcane

consolidators and muscovado producers;

(b) Distilleries, using molasses, sugar or sugarcane as ingredient for alcohol: Provided, That

importers, and consignees of imported molasses regularly report to the SRA, among other
information, the volume of molasses imported;

(c) International and domestic sugar traders, including wholesale traders and repackers, muscovado
and molasses traders and customs bonded warehouses (CBWs) of food processors importing sugar
for reexport: Provided, That international and domestic sugar traders and the CBW food processors
shall likewise submit a list of all their warehouses of sugar;

(d) Warehouses of sugar, and business establishments that manufacture or sell bags or sacks for
packing sugar; and

(e) Cane hauling and harvesting service providers.

The SRA shall provide the forms and make sure that the manner of registration shall be the least
possible cost to the stakeholder concerned particularly agrarian reform beneficiaries. The
information gathered shall be used to develop a sugarcane industry database which shall be
administered and updated by the SRA. Any of the aforementioned entities that shall not register shall
be subject to penalties imposed by the SRA.

Section 9. Classification and Regulation of Supply of Sugar. – The SRA, in the exercise of its
regulatory authority, shall classify imported sugar according to its appropriate classification when
imported at a time that domestic production is sufficient to meet domestic sugar requirements. The
Bureau of Customs (BOC) shall require importers or consignees to secure from the SRA the
classification of the imported sugar prior to its release.

Section 10. Value-Added Tax (VAT) Zero-Rated on Refined Sugar for Export. – Pursuant to Section
106(A)(2)(a)(1) of the National Internal Revenue Code, VAT zero-rated shall be imposed on refined
sugar withdrawn from warehouses for actual physical export to the world market.

To differentiate refined sugar from raw sugar for VAT purposes, refined sugar refers to sugar whose
content of sucrose, by weight, in the dry state corresponds to a polarimeter reading of 99.5° and
 above, and raw sugar means sugar whose content of sucrose by weight, in the dry state,
corresponds to a polarimeter reading of less than 99.5°.

The Bureau of Internal Revenue, in consultation with the SRA and industry stakeholders, shall issue
the necessary regulation to implement this section.

Section 11. Mandated Appropriations. – The Department of Budget and Management (DBM) is

hereby mandated to include annually, starting the year 2016, an initial aggregate amount of Two
billion pesos (P2,000,000,000.00) in the President’s program of expenditures for submission to
Congress and allocated, as follows:

(a) Fifteen percent (15%) for grants to block farms under the Block Farm Program;

(b) Fifteen percent (15%) for socialized credit under the Farm Support and Farm Mechanization
Programs;

(c) Fifteen percent (15%) for research and development, capability building and technology transfer
activities under Research and Development, Extension Services, Human Resources Development,
and Farm Support Programs;

(d) Five percent (5%) for scholarship grants to be provided under paragraph (b) of Section 6, Human
Resources Development; and

(e) Fifty percent (50%) for infrastructure support programs.

In the identification and prioritization of specific programs and projects, the SRA shall conduct prior
consultation with representatives of block farms, sugarcane farmers and workers, sugar millers,
refiners, bioenergy producers, and producers of other products derived from sugarcane and its by-
products. The Department shall issue the necessary guidelines for this purpose.

For the current year, the DBM shall include in a supplemental budget, that may be formulated, the
amount of Two billion pesos (P2,000,000,000.00) and following the allocation prescribed in this
section.

Section 12. Non-Exemption from Comprehensive Agrarian Reform Program (CARP) Coverage. –

Nothing in this Act shall exempt any landholding from CARP Coverage.1âwphi1

Section 13. Implementing Rules and Regulations. – The DA, in consultation with concerned
government agencies and sugarcane industry stakeholders, shall issue the implementing rules and
regulations of this Act within ninety (90) days starting from the effectivity of this Act.

Section 14. Separability Clause. – If any provision of this Act is declared unconstitutional, the
validity of the remaining provisions hereof shall remain in full force and effect.

Section 15. Repealing Clause. – All laws, decrees, executive orders and rules and regulations or
part or parts thereof inconsistent with any provision of this Act are hereby repealed, modified or
amended accordingly.

Section 16. Effectivity. – This Act shall take effect after fifteen (15) days from its publication in
the Official Gazette or in at least two (2) newspapers of general circulation.

Approved,

(Sgd.) FELICIANO BELMONTE JR. (Sgd.) FRANKLIN M. DRILON

Speaker of the House President of the Senate
of Representatives

This Act which is a consolidation of Senate Bill No. 2400 and House Bill No. 4633 was finally passed
by the Senate and the House of Representatives on February 2, 2015 and February 3, 2015,
respectively.
 (Sgd.) MARILYN B. BARUA-YAP (Sgd.) OSCAR G. YABES
Secretary General Secretary of the Senate
House of Representatives

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-36201             October 29, 1931

THE MUNICIPAL COUNCIL OF LEMERY, BATANGAS, petitioner,

vs.
THE PROVINCIAL BOARD OF BATANGAS, VICENTE NOBLE and MODESTO
CASTILLO, respondents.

Guevara, Francisco and Recto for petitioner.

Attorney-General Jaranilla for respondents.

VILLA-REAL, J.:

This action against the provincial board of Batangas, Vicente Noble and Modesto Castillo, was
instituted by means of a petition filed by the municipal council of Lemery, Batangas, praying for the
reasons given, that resolution No. 289 of the respondent provincial board be declared null and void
and contrary to law, so as to leave resolution No. 18, series of 1931, of the plaintiff municipal council
in full force and effect, and that the preliminary injunction issued in the course of this proceeding be
made permanent, so as to require the respondents to abstain and refrain forever from performing the
acts complained of, with costs against the respondents.

In answer, the respondents denied each and every one of the allegations of the petition, and by way
of special defense contended that they did not exercise judicial functions, and even if they did so,
they were within their rights, and that the petitioner has plain, speedy, and adequate administrative
remedy, for which reason they prayed that the petition be denied.

The relevant facts necessary for the settlement of the points raised upon which there is no question,
are the following:

On February 16, 1931, the municipal council of Lemery, Batangas, passed resolution No. 18, series
of 1931, reading as follows:

[RESOLUTION NO. 18]

The budget again came up for discussion in regard to the item of porter service for the justice of the
peace court in this municipality, who, according to the budget, receive P150 per annum, with a view
to consolidating this position with that of the messenger for the office of the municipal president and
of the municipal secretary, Leon Marquez, giving the latter an increase of two pesos a month in
consideration of the additional work, which, together with his present salary of twenty-seven pesos a
month as messenger for the office of the president and of the secretary, equals twenty-nine pesos a
month. It was also proposed that Mr. Pablo Baradas, the present court porter for the justice of the
peace, should resign from the position on February 28, 1931, and be relieved by Leon Marquez who
is to start work on March 1, 1931, amending the proposed budget with regard to the court porter, so
as to read as follows: `Insert on page 5 of the General Budget for 1931, first line under the heading
"Adjudication; Inferior Court": the following: "Wages 1 Portero (B) P24.00."' Notice of this change
shall be given to the justice of the peace of this municipality for his information and action, as well as
to the municipal treasurer. The motion was seconded by Mr. V. Salazar. Mr. J. Diomampo, who had
 held out for the continuance of the office of the porter of the justice of the peace court as budgeted
and presented for the approval of this council after listening to the arguments of the president in
favor of the motion, voted for the abolition of the office of court porter, consolidating the work with
that of the present messenger for the office of the municipal president and of the municipal secretary
with an increase of two pesos a month to the present twenty-seven pesos a month which Leon
Marquez at present receives. The president took into account chiefly the economy to the municipality
in paying only one man to serve three different offices, that of the municipal president, the municipal
secretary, and the justice of the peace court, in the same line of work, without lessening the
efficiency of either service.

Unanimously approved.

A correct copy of this resolution having been forwarded to the provincial board of Batangas, in
accordance with section 2232 of the Administrative Code, the aforesaid board passed resolution No.
289, reading as follows:

[RESOLUTION NO. 289]

Resolution No. 18, current series, of the Municipal Council of Lemery, abolishing the position of
janitor in the office of the justice of the peace of that municipality, for reasons of economy, and
designating the messenger in the offices of the municipal president and the municipal secretary to
assume the duties thereof, as well as the communication of Mr. Ramon A. Cabrera, justice of the
peace of Taal and Lemery, dated February 26, 1931, requesting that said resolution be disapproved
and the municipal council ordered to keep the position in question intact, for the reasons therein set
forth, were presented.

After some deliberation upon the matter, due weight being given the reasons adduced by the
municipal council, on the one hand, and Mr. Cabrera, on the other, on motion of the Governor, it was

Resolved, That the resolution mentioned above is hereby DISAPPROVED, and municipal council
being duty bound under section 212 of the Administrative Code to furnish the justice of the peace
with all the necessary equipments and personnel including adequate janitor service. It seems
reasonable, moreover, that the man occupying the position of janitor be one enjoying the full
confidence of the justice of the peace, for, as pointed out by this official, he (the janitor) has free
access to this office where there are important papers under his sole keeping and responsibility, and
the incumbent of the position being abolished, who has been rendering faithful and satisfactory
service for six years, is this kind of man, according to the justice of the peace himself. This question
of confidence apparently is the main reasons underlying the regulation that appointees to positions
under the office of the justice of the peace should be proposed by him. Again, the position is already
provided for in the 1931 municipal budget approved by the provincial treasurer.

Ordered, That the secretary advise the Municipal Council of Lemery of this action.

Member Kasilag abstained from taking part in the deliberations, reasoning that the matter is one
which concerns only the justice of the peace and the municipal council.

When the municipal council was advised of the foregoing resolution of the provincial board of
Batangas on March 30, 1931, it resolved to appeal to the Chief of the Executive Bureau, in
accordance with section 2235 of the Administrative Code, transmitting to said official the
corresponding appeal, with correct copies of resolution No. 18, series of 1931, of the plaintiff
municipal council, and of resolution No. 289 of the respondent provincial board, attached.

On June 11, 1931, the Chief of the Executive Bureau decided against the appeal. On July 11, 1931,
the municipal council of Lemery petitioned the Chief of the Executive Bureau to reconsider his
decision, which was denied.

On September 7, 1931, the respondent Vicente Noble, as provincial governor of Batangas,

addressed the following communication to the municipal council of Lemery:

September 7, 1931
 The MUNICIPAL COUNCIL
Through the President
Lemery, Batangas

GENTLEMEN: I have the honor to invite your attention to the fact that on or about August 5th last,
the Provincial Board of Batangas, following instruction from the Chief of the Executive Bureau,
ordered you to include in this year's budget a sum sufficient to cover the salary of the porter or janitor
of the justice of the peace court in this municipality, whose position had been abolished by resolution
No. 18, present series, by your municipal council; but this resolution was disapproved by the
provincial board by means of resolution No. 289, of even series, upon the grounds stated therein;
that this latter resolution was appealed from to the Executive Bureau, which office by means of its
communication and endorsement dated June 11 and July 27, 1931, respectively, upheld the
aforementioned decision of the provincial board.

To date, however, that municipal council has not complied with the order, notwithstanding the fact
that a reasonable time has elapsed to allow of some action in the premises; you are therefore
hereby given a period of twenty days from the date of this letter to comply with the order of the
provincial board, in default of which, this office shall be under the painful necessity of proceeding
administratively against each and every one of the members of that body.

Please acknowledge receipt of this communication.

Very respectfully,                    

(Sgd.) VICENTE NOBLE          

Provincial Governor          

In order to prevent the threat contained in this letter from being carried out, the municipal council of
Lemery instituted this action and at the same time prayed for the issuance of a preliminary
injunction.

Counsel for the two parties are not in accord with respect to the nature of these proceedings;
counsel for the petitioner contends it is prohibition, and counsel for the respondents contend it
is certiorari.

Section 217 of the Code of Civil Procedure provides:

SEC. 217. Certiorari Proceedings. — When the ground of the complaint in an action in a Court of

First Instance is that an inferior tribunal, board, or officer exercising judicial functions, has exceeded
the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor any plain, speedy, and
adequate remedy, and the court, on trial, finds the allegations of the complaint to be true, it shall
render a judgment ordering such inferior tribunal, board, or officer, or other person having the
custody of the record or proceedings, at a specified time and place, to certify to the court a transcript
of the record and the proceedings (describing or referring to them with convenient certainly), that the
same may be reviewed by the court; and requiring the party, in the meantime, to desist from further
proceedings in the matter to be reviewed, if, in the judgment of the court, a stay ought to be granted.

Section 226 of the same Code says:

SEC. 226. Prohibition. — When the complaint in any action pending in any Court of First Instance
alleges that the proceedings of any inferior tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, were without or in excess of the jurisdiction of such
tribunal, corporation, board, or person, and the court, on trial, shall find that the allegations of the
complaint are true, and that the plaintiff has no other plain, speedy, and adequate remedy in the
ordinary course of law, it shall render a judgment in favor of the plaintiff, including an order
commanding the defendant absolutely to desist or refrain form further proceedings in the action or
matter specified therein.

According to section 217 of Act No. 190, quoted above, the purpose of the writ of certiorari is to
review the record or the proceedings of an inferior tribunal, board, or officer exercising judicial
functions, that has exceeded the jurisdiction of such tribunal, board, or officer, and there is no
appeal, nor any plain, speedy, and adequate remedy; whereas according to section 226 of said law,
the purpose of the writ of prohibition is to prevent an inferior tribunal, board, or person exercising
 judicial or ministerial functions without or in excess of the jurisdiction of such tribunal, board, or
person, from continuing to do so, and it lies whenever there is no other plain, speedy, and adequate
remedy.

The following may be found on the same question in 50 Corpus Juris, page 656, section 8:

CERTIORARI. Although similar to prohibition in that it will lie for what or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact that it is a corrective remedy
used for the reexamination of some action of an inferior tribunal, and is directed to the cause or
proceeding in the lower court and not to the court itself while prohibition is a preventative remedy
issuing to restrain future action, and is directed to the court itself. Statutory provisions changing the
common-law features of prohibition sometimes create further distinctions.

In view of the provisions of law and court rulings quoted above, it is evident that we are here
concerned with certiorari and not prohibition proceedings, inasmuch as the objective is to have the
proceedings of the provincial board of Batangas reviewed in order to ascertain whether it has
exceeded its jurisdiction, and not to prevent the continuance of its exercise of functions without or in
excess of its jurisdiction.

This being a certiorari proceeding, we shall proceed to pass upon the questions raised by the
respondents in their answer.

The respondents allege and maintain that the proceedings of the provincial board of Batangas in
disapproving resolution No. 18, series of 1931, of the municipal council of Lemery, by means of its
own resolution No. 289, are neither judicial nor quasi judicial, inasmuch as the petition does not
allege that the board then acted in the exercise of judicial or quasi-judicial functions.

With reference to the signification of "judicial functions" Corpus Juris (vol. 34, page 1182, section 18)
contains the following:

JUDICIAL FUNCTION. An act performed by virtue of judicial powers. The exercise of a judicial
function is the doing of something in the nature of the action of the court. While it is true that, where
there is exercise of neither judgment nor discretion, there is not the exercise of a judicial function, it
is not true that every function wherein judgment and discretion are exercised is a judicial function.
Judicial function presupposes the use of mental processes in the determination of law or fact, and at
times involves discretion as to how the power should be used. What is a judicial function does not
depend solely upon the mental operation by which it is performed or the importance of the act. Due
regard must be had to the organic law of the state and the division of powers of government.

And we find the following in volume 11, page 121, section 68, of the same work:

WHAT ARE JUDICIAL OR QUASI JUDICIAL ACTS. It is difficult, if not impossible, precisely to
define what are judicial or quasi judicial acts, and there is considerable conflict in the decisions in
regard thereto, in connection with the law as to the right to a writ of certiorari. It is clear, however,
that it is the nature of the act to be performed, rather than of the office, board, or body which
performs it, that determines whether or not it is the discharge of a judicial or a quasi judicial function.
It is not essential that the proceedings should be strictly and technically judicial, in the sense in
which that word is used when applied to courts of justice, but it is sufficient if they are quasi judicial.
It is enough if the officers act judicially in making their decision, whatever may be their public
character. . . .

In State ex rel. Board of Commrs. vs. Dunn (86 Minn., 301, 304), the following statements were
made:

The precise line of demarkation between what are judicial and what are administrative or ministerial
functions is often difficult to determine. The exercise of judicial functions may involve the
performance of legislative or administrative duties, and the performance of administrative or
ministerial duties may, in a measure, involve the exercise of judicial functions. It may be said
generally that the exercise of judicial functions is to determine what the law is, and what the legal
rights of parties are, with respect to a matter in controversy; and whenever an officer is clothed with
that authority, and undertakes to determine those questions, he acts judicially.

Section 2233 of the Administrative Code provides:

 SEC. 2233. Provincial board to pass on legality of municipal proceedings. — Upon receiving copies
of resolutions and ordinances passed by municipal councils and of executive orders promulgated by
municipal presidents, the provincial board shall examine the documents or transmit them to the
provincial fiscal, whose duty it shall thereupon become to examine the same promptly and inform the
provincial board of any defect or impropriety which he may discover therein, and make such other
comment or criticism as shall appear to him proper.

If the board should in any case find that any resolution, ordinances, or order, as aforesaid, is beyond
the powers conferred upon the council or president making the same it shall declare such resolution,
ordinances, or order invalid, entering its action upon the minutes and advising the proper municipal
authorities thereof. The effect of such action shall be to annul the resolution, ordinance, or order in
question, subject to action by the Chief of the Executive Bureau as hereinafter provided.

This court interpreted section 2233 of the Administrative Code just quoted, in the case of Gabriel vs.
Provincial Board of Pampanga (50 Phil., 686), cited in Cariño vs. Jamoralne (p. 188, ante), as
follows:

"The only ground upon which a provincial board may declare any municipal resolution, ordinance, or
order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the
council or president making the same" (Administrative Code, sec. 2233). Absolutely no other ground
is recognized by the law. A strictly legal question is before the provincial board in its consideration of
any municipal resolution, ordinance, or order. The provincial disapproval of any resolution,
ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or
order is outside the scope of the legal powers conferred by law."

In vesting provincial boards with power to annul resolutions, and ordinances, passed by municipal
councils in excess of their powers, the law granted such provincial boards quasi-judicial powers, for
the determination of whether an act is legal or no, is an essentially judicial function.

It follows from the foregoing that the function exercised by the provincial board of Batangas in
disapproving resolution No. 18, series of 1931, of the municipal council of Lemery, through
resolution No. 289, is a quasi-judicial function.

The second question to decide is whether the provincial board of Batangas, respondent herein,
exceeded its power in disapproving resolution No. 18, series of 1931, of the municipal council of
Lemery.

The said board in disapproving resolution No. 18, series of 1931, of the municipal council of Lemery,
relies not upon the basis that the municipal council acted in excess of its legislative powers in
consolidating the three positions of porter for the office of the municipal president, of the municipal
secretary, and of the justice of the peace, but upon the contention that the justice of the peace would
not receive adequate porter service, in violation of section 212 of the aforementioned Administrative
Code, which reads as follows:

SEC. 212. Court room and supplies. — The municipalities and townships to which a justice of the
peace pertains shall provide him with a room in the tribunal, or elsewhere in the center of population,
suitable for holding court and shall supply the necessary furniture, lights, and janitor service therefor,
and shall also provide him with such of the printed laws in force in the Philippine Islands as may be
required for his official use. The similar expenses of maintaining the office of a justice of the peace
appointed in unorganized territory shall be borne by the province.

Legal blanks and the dockets required by law, as well as the notarial seal to be used by the justice
as ex officio notary public, shall be furnished by the Bureau of Justice.

The law here prescribes that municipalities shall provide the justice of the peace with the necessary
janitor service, and not with the exclusive service of a confidential janitor.

The new dictionary of the Spanish Language issued by the Spanish Academy defines the word
"porter" as follows:

PORTER. One in charge of the entrance of any house or office, opening and shutting the doors,
delivering messages, etc.
 In Fagan vs. City of New York (84 N.Y., 348, 352), the word "janitor" was defined as follows:

JANITOR. A person employed to take charge of rooms or buildings, to see that they are kept clean
and in order, to lock and unlock them, and generally to care for them. (2 Bouvier's Law Dictionary, p.
1689.)

In the exercise of their legislative power and in compliance with their legislative duty to provide the
justice of the peace court with the necessary janitor service, the municipal council of Lemery has the
power to determine a priori what janitor service is necessary to the justice court, and the justice of
the peace has the power to determine a posteriori the sufficiency of the janitor service supplied by
the municipal council. While the janitor appointed in accordance with the resolution passed by the
municipal council does not assume the duties and perform the services of janitor in the justice court,
the justice of the peace is not in a position to know if such services are adequate or no. If the janitor
service supplied by the municipal council is inadequate to the needs of the justice court, the justice
of the peace may demand the said council to provide him with proper janitor service, and may
compel the council to do so, in accordance with section 212 of the Administrative Code. (Province of
Tarlac vs. Gale, 26 Phil., 338.)

It follows that the municipal council of Lemery acted within its legislative powers and duties in
consolidating the positions of janitor for the office of the municipal president, of municipal secretary,
and of justice of the peace. And the provincial board of Batangas, respondent herein, exceeded its
quasi-judicial powers in disapproving resolution No. 18, series of 1931, of said municipal council of
Lemery.1awphil.net

The third point to decide is whether the aforesaid municipal council of Lemery has any other plain,
speedy, and adequate remedy along administrative channels.

Counsel for the respondents contend that section 79 of the Administrative Code, in paragraph (c), as
amended by Act No. 2803 and Act No. 3535, confer upon the heads of departments the power of
direction and supervision over all the bureaus under their jurisdiction, and may reverse or modify all
decisions of the chiefs of said bureaus, and that, consequently, the municipal councils may appeal to
the Secretary of the Interior from the Chief of the Executive Bureau.

In the first place, the right of appeal is not inherent but conferred by law. The Administrative Code,
section 2235, only grants municipal councils the right to appeal from decisions of the provincial
board to the Chief of the Executive Bureau. Furthermore, the power of direction and supervision
granted by law to the heads of departments is limited to the decisions of the chief of bureaus under
their jurisdiction affecting the public good in general.

In view of the foregoing considerations, we are of opinion and so hold: (1) That the power exercised
by the provincial board in approving or disapproving a municipal resolution or ordinances is in the
nature of a quasi-judicial function; (2) that in disapproving resolution No. 18, series of 1931, of the
municipal council of Lemery, which consolidated the position of janitor for the office of the municipal
president, of the municipal secretary, and of the justice of the peace court, this action being within
the legislative powers of said municipal council, the provincia board of Batangas exceeded its quasi-
judicial powers; and (3) that there is no plain, speedy and adequate administrative remedy, for the
Administrative Code does not permit of an appeal from the decisions of the Chief of the Executive
Bureau to the Secretary of the Interior.

By virtue whereof, the petition is hereby granted, declaring resolution No. 289 of the provincial board
of Batangas null and void, which had disapproved resolution No. 18, series of 1931, of the municipal
council of Lemery, Batangas, and it is held that the latter is valid and lawful; the preliminary
injunction is hereby affirmed, and made permanent, with cost against the respondent. So ordered.

Avanceña, C.J., Street, Malcolm, Villamor, and Romualdez, JJ., concur.

Johnson, J., reserves his vote.

Separate Opinions

IMPERIAL, J., dissenting:

Section 212 of the Revised Administrative Code of 1917 (Act No. 2911) provides as follows:
 SEC. 212. Court room and supplies — The municipalities and townships to which a justice of the
peace pertains shall provide him with a room in the tribunal, or elsewhere in the center of population,
suitable for holding court and shall supply the necessary furniture, lights, and janitor service therefor,
and shall also provide him with such of the printed laws in force in the Philippine Islands as may be
required for his official use. The similar expenses of maintaining the office of a justice of the peace
appointed in unorganized territory shall be borne by the province.

Legal blanks and the dockets required by law, as well as the notarial seal to be used by the justice
as ex-officio notary public shall be furnished by the Bureau of Justice.

According to this provision of law the plaintiff municipality of Lemery is under duty to provide the
justice of the peace of that town with adequate janitor service. It is well known, that inasmuch as the
justice of the peace of a municipality has no other personnel than the janitor, the latter acts as
amanuensis, custodian of office property and supplies, messenger and porter at the same time. To
permit, therefore, that the janitor's position hitherto assigned to the justice court of Lemery should be
consolidated with that of janitor for the municipal president and for the municipal secretary,
combining three jobs in one, is practically to violate the section quoted above, for the justice of the
peace would not then be supplied with the adequate and necessary service to which he is entitled by
law.

I agree with the majority in holding that municipal autonomy should be sustained and safeguarded,
but this principle has no application where, as in this case, there is a positive and definite law
prescribing a mandatory and unavoidable duty. In my opinion the respondent provincial board'
resolution should be sustained, and the action dismissed.

Ostrand, J., concurs.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14355             October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.

City Fiscal Diaz for appellant.

Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and
Ramon Salinas for appellees.

JOHNSON, J.:

The important question presented by this appeal is: In expropriation proceedings by the city of
Manila, may the courts inquire into, and hear proof upon, the necessity of the expropriation?

That question arose in the following manner:

On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First
Instance of said city, praying that certain lands, therein particularly described, be expropriated for the
purpose of constructing a public improvement. The petitioner, in the second paragraph of the
petition, alleged:

That for the purpose of constructing a public improvement, namely, the extension of Rizal
Avenue, Manila, it is necessary for the plaintiff 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,
and within the jurisdiction of this court.
The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the
petition of the plaintiff, alleged that it was a corporation organized and existing under and by virtue of
the laws of the Philippine Islands, having for its purpose the benefit and general welfare of the
Chinese Community of the City of Manila; that it was the owner of parcels one and two of the land
described in paragraph 2 of the complaint; that it denied that it was either
necessary or expedient that the said parcels be expropriated for street purposes; that existing street
and roads furnished ample means of communication for the public in the district covered by such
proposed expropriation; that if the construction of the street or road should be considered a public
necessity, other routes were available, which would fully satisfy the plaintiff's purposes, at much less
expense and without disturbing the resting places of the dead; that it had a Torrens title for the lands
in question; that the lands in question had been used by the defendant for cemetery purposes; that a
great number of Chinese were buried in said cemetery; that if said expropriation be carried into
effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of
money in the transfer or removal of the bodies to some other place or site and in the purchase of
such new sites, would involve the destruction of existing monuments and the erection of new
monuments in their stead, and would create irreparable loss and injury to the defendant and to all
those persons owning and interested in the graves and monuments which would have to be
destroyed; that the plaintiff was without right or authority to expropriate said cemetery or any part or
portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a public
improvement.

The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of
the complaint, and alleged that said expropriation was not a public improvement; that it was not
necessary for the plaintiff to acquire the parcels of land in question; that a portion of the lands in
question was used as a cemetery in which were the graves of his ancestors; that monuments and
tombstones of great value were found thereon; that the land had become quasi-public property of a
benevolent association, dedicated and used for the burial of the dead and that many dead were
buried there; that if the plaintiff deemed it necessary to extend Rizal Avenue, he had offered and still
offers to grant a right of way for the said extension over other land, without cost to the plaintiff, in
order that the sepulchers, chapels and graves of his ancestors may not be disturbed; that the land
so offered, free of charge, would answer every public necessity on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of
the other defendants, answering separately, presented substantially the same defense as that
presented by the Comunidad de Chinos de Manila and Ildefonso Tambunting above referred to.

The foregoing parts of the defense presented by the defendants have been inserted in order to show
the general character of the defenses presented by each of the defendants. The plaintiff alleged that
the expropriation was necessary. The defendants each alleged (a) that no necessity existed for said
expropriation and (b) that the land in question was a cemetery, which had been used as such for
many years, and was covered with sepulchres and monuments, and that the same should not be
converted into a street for public purposes.

Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del
Rosario, judge, in a very elucidated opinion, with very clear and explicit reasons, supported by
ambulance of authorities, decided that there was no necessity for the expropriation of the particular
strip of land in question, and absolved each and all of the defendants from all liability under the
complaint, without any finding as to costs.

From that judgment the plaintiff appealed and presented the above question as its principal ground
of appeal.

The theory of the plaintiff is, that once it has established the fact, under the law, that it
has authority to expropriate land, it may expropriate any land it may desire; that the only function of
the court in such proceedings is to ascertain the value of the land in question; that neither the court
nor the owners of the land can inquire into the advisible purpose of purpose of the expropriation or
ask any questions concerning the necessities therefor; that the courts are mere appraisers of the
land involved in expropriation proceedings, and, when the value of the land is fixed by the method
adopted by the law, to render a judgment in favor of the defendant for its value.

That the city of Manila has authority to expropriate private lands for public purposes, is not denied.
Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may
condemn private property for public use."
The Charter of the city of Manila contains no procedure by which the said authority may be carried
into effect. We are driven, therefore, to the procedure marked out by Act No. 190 to ascertain how
the said authority may be exercised. From an examination of Act No. 190, in its section 241, we
find how the right of eminent domain may be exercised. Said section 241 provides that, "The
Government of the Philippine Islands, or of any province or department thereof, or of
any municipality, and any person, or public or private corporation having, by law, the right to
condemn private property for public use, shall exercise that right in the manner hereinafter
prescribed."

Section 242 provides that a complaint in expropriation proceeding shall be presented; that the
complaint shall state with certainty the right of condemnation, with a description of the property
sought to be condemned together with the interest of each defendant separately.

Section 243 provides that if the court shall find upon trial that the right to expropriate the land in
question exists, it shall then appoint commissioners.

Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section
248 provides for an appeal from the judgment of the Court of First Instance to the Supreme Court.
Said section 248 gives the Supreme Court authority to inquire into the right of expropriation on the
part of the plaintiff. If the Supreme Court on appeal shall determine that no right of expropriation
existed, it shall remand the cause to the Court of First Instance with a mandate that the defendant be
replaced in the possession of the property and that he recover whatever damages he may have
sustained by reason of the possession of the plaintiff.

It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find
the right to expropriate exists," means simply that, if the court finds that there is some
law authorizing the plaintiff to expropriate, then the courts have no other function than to authorize
the expropriation and to proceed to ascertain the value of the land involved; that the necessity for the
expropriation is a legislative and not a judicial 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 legal 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 particular constitutional or statutory provisions. It cannot be denied, if the legislature under
proper authority should grant the expropriation of a certain or particular parcel of land for some
specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of
that legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipal
corporation to expropriate private land for public 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 and whether the
purpose was, in fact, public. In other words, have no the courts in this jurisdiction the right, inasmuch
as the questions relating to expropriation must be referred to them (sec. 241, Act No. 190) for final
decision, to ask whether or not the law has been complied with? Suppose in a particular case, it
should be denied that the property is not private property but public, may not the courts hear proof
upon that question? Or, suppose the defense is, that the purpose of the expropriation is
not public but private, or that there exists no public purpose at all, may not the courts make inquiry
and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for public purposes. Can it be

possible that said authority confers the right to determine for itself that the land is private and that the
purpose is public, and that the people of the city of Manila who pay the taxes for its support,
especially those who are directly affected, may not question one or the other, or both, of these
questions? Can it be successfully contended that the phrase used in Act No. 190, "and if the court
upon trial shall find that such right exists," means simply that the court shall examine the statutes
simply for the purpose of ascertaining whether a law exists authorizing the petitioner to exercise the
right of eminent domain? Or, when the case arrives in the Supreme Court, can it be possible that the
phrase, "if the Supreme Court shall determine that no right of expropriation exists," that that simply
means that the Supreme Court shall also examine the enactments of the legislature for the purpose
of determining whether or not a law exists permitting the plaintiff to expropriate?
We are of the opinion that the power of the court is not limited to that question. The right of
expropriation is not an inherent power in a municipal corporation, and before it can exercise the right
some law must exist conferring the power upon it. When the courts come to determine the question,
they must only find (a) that a law or authority exists for the exercise of the right of eminent domain,
but (b) also that the right or authority is being exercised in accordance with the law. In the present
case there are two conditions imposed upon the authority conceded to the City of Manila: First, the
land must be private; and, second, the purpose must be public. If the court, upon trial, finds that
neither of these conditions exists or that either one of them fails, certainly it cannot be contended
that the right is being exercised in accordance with law.

Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact.
Whether the land is public, is a question of fact; and, in our opinion, when the legislature conferred
upon the courts of the Philippine Islands the right to ascertain upon trial whether the right exists for
the exercise of eminent domain, it intended that the courts should inquire into, and hear proof upon,
those questions. Is it possible that the owner of valuable land in this jurisdiction is compelled to stand
mute while his land is being expropriated for a use not public, with the right simply to beg the city of
Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities to
expropriate lands, without question, simply for the purpose of satisfying the aesthetic sense of those
who happen for the time being to be in authority? Expropriation of lands usually calls for public
expense. The taxpayers are called upon to pay the costs. Cannot the owners of land question
the public use or the public necessity?

As was said above, there is a wide divergence of opinion upon the authority of the court to question
the necessity or advisability of the exercise of the right of eminent domain. The divergence is usually
found to depend upon particular statutory or constitutional provisions.

It has been contended — and many cases are cited in support of that contention, and section 158 of
volume 10 of Ruling Case Law is cited as conclusive — that the necessity for taking property under
the right of eminent domain is not a judicial question. But those who cited said section evidently
overlooked the section immediately following (sec. 159), which adds: "But it is obvious that if the
property is taken in the ostensible behalf of a public improvement which it can never by any
possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for
protection by the courts. While many courts have used sweeping expression in the decisions in
which they have disclaimed the power of supervising the power of supervising the selection of the
sites of public improvements, it may be safely said that the courts of the various states would feel
bound to interfere to prevent an abuse of the discretion delegated by the legislature, by an attempted
appropriation of land in utter disregard of the possible necessity of its use, or when the alleged
purpose was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151; Bell vs.
Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72
Ohio St., 368; State vs. Stewart, 74 Wis., 620.)

Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention
of the appellant, says:

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 well
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.

Practically every case cited in support of the above doctrine has been examined, and we are justified
in making the statement that in each case the legislature directly determined the necessity for the
exercise of the right of eminent domain in the particular case. It is not denied that if the necessity for
the exercise of the right of eminent domain is presented to the legislative department of the
government and that department decides that there exists a necessity for the exercise of the right in
a particular case, that then and in that case, the courts will not go behind the action of the legislature
and make inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo,
Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the
doctrine laid down in section 158 above quoted, the court said:
 But when the statute does not designate the property to be taken nor how may be taken,
then the necessity of taking particular property is a question for the courts. Where the
application to condemn or appropriate is made directly to the court, the question (of
necessity) should be raised and decided in limene.

The legislative department of the government was rarely undertakes to designate the precise
property which should be taken for public use. It has generally, like in the present case, merely
conferred general authority to take land for public use when a necessity exists therefor. We believe
that it can be confidently asserted that, under such statute, the allegation of the necessity for the
appropriation is an issuable allegation which it is competent for the courts to decide.
(Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)

There is a wide distinction between a legislative declaration that a municipality is given authority to
exercise the right of eminent domain, and a decision by the municipality that there exist a necessity
for the exercise of that right in a particular case. The first is a declaration simply that there exist
reasons why the right should be conferred upon municipal corporation, while the second is the
application of the right to a particular case. Certainly, the legislative declaration relating to the
advisability of granting the power cannot be converted into a declaration that a necessity exists for
its exercise in a particular case, and especially so when, perhaps, the land in question was not within
the territorial authority was granted.

Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the
right of eminent domain, is a question with which the courts are not concerned. But when that right
or authority is exercised for the purpose of depriving citizens of their property, the courts are
authorized, in this jurisdiction, to make inquiry and to hear proof upon the necessity in the particular
case, and not the general authority.

Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive
authority upon the question that the necessity for the exercise of the right of eminent domain is a
legislative and not a judicial question. Cyclopedia, at the page stated, says:

In the absence of some constitutional or statutory provision to the contrary,

the necessity and expediency of exercising the right of eminent domain are questions
essentially political and not judicial in their character. The determination of those questions
(the necessity and the expediency) belongs to the sovereign power; the legislative
department is final and conclusive, and the courts have no power to review it (the necessity
and the expediency) . . . . It (the legislature) may designate the particular property to be
condemned, and its determination in this respect cannot be reviewed by the courts.

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted.
While time has not permitted an examination of all of said citations, many of them have been
examined, and it can be confidently asserted that said cases which are cited in support of the
assertion that, "the necessity and expediency of exercising the right of eminent domain are
questions essentially political and not judicial," show clearly and invariably that in each case the
legislature itself usually, by a special law, designated the particular case in which the right of eminent
domain might be exercised by the particular municipal corporation or entity within the state. (Eastern
R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park
Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S.
598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power
Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., 196
U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)

In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United States
said: "It is erroneous to suppose that the legislature is beyond the control of the courts in exercising
the power of eminent domain, either as to the nature of the use or the necessity to the use of any
particular property. For if the use be not public or no necessity for the taking exists, the legislature
cannot authorize the taking of private property against the will of the owner, notwithstanding
compensation may be required."

In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339, 356), we find the Supreme
Court of Porto Rico, speaking through Justice MacLeary, quoting approvingly the following, upon the
question which we are discussing: "It is well settled that although the legislature must necessarily
determine in the first instance whether the use for which they (municipalities, etc.) attempt to
exercise the power is a public one or not, their (municipalities, etc.) determination is not final, but is
subject to correction by the courts, who may undoubtedly declare the statute unconstitutional, if it
shall clearly appear that the use for which it is proposed to authorize the taking of private property is
in reality not public but private." Many cases are cited in support of that doctrine.

Later, in the same decision, we find the Supreme Court of Porto Rico says: "At any rate, the rule is
quite well settled that in the cases under consideration the determination of the necessity of taking
a particular piece or a certain amount of land rests ultimately with the courts." (Spring Valley etc.
Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .

In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A., N. S., 1024]),
the Supreme Court of Connecticut approvingly quoted the following doctrine from Lewis on Eminent
Domain (3d ed.), section 599: "In all such cases the necessity of public utility of the proposed work
or improvement is a judicial question. In all such cases, where the authority is to take property
necessary for the purpose, the necessity of taking particular property for a particular purpose is a
judicial one, upon which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71 S. C.,
457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390, 403.)

The taking of private property for any use which is not required by the necessities or convenience of
the inhabitants of the state, is an unreasonable exercise of the right of eminent domain, and beyond
the power of the legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, 633;
Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky., 692,
697.)

In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of
the State of Maryland, discussing the question before us, said: "To justify the exercise of this
extreme power (eminent domain) where the legislature has left it to depend upon the necessity that
may be found to exist, in order to accomplish the purpose of the incorporation, as in this case, the
party claiming the right to the exercise of the power should be required to show at least a reasonable
degree of necessity for its exercise. Any rule less strict than this, with the large and almost
indiscriminate delegation of the right to corporations, would likely lead to oppression and the
sacrifice of private right to corporate power."

In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn
property is not a general power of condemnation, but is limited to cases where a necessity for resort
to private property is shown to exist. Such necessity must appear upon the face of the petition to
condemn. If the necessary is denied the burden is upon the company (municipality) to establish it."
(Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind.,
252, 257 ; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)

It is true that naby decisions may be found asserting that what is a public use is a legislative
question, and many other decisions declaring with equal emphasis that it is a judicial question. But,
as long as there is a constitutional or statutory provision denying the right to take land for any use
other than a public use, it occurs to us that the question whether any particular use is a public one or
not is ultimately, at least, a judicial question. The legislative may, it is true, in effect declare certain
uses to be public, and, under the operation of the well-known rule that a statute will not be declared
to be unconstitutional except in a case free, or comparatively free, from doubt, the courts will
certainly sustain the action of the legislature unless it appears that the particular use is clearly not of
a public nature. The decisions must be understood with this limitation; for, certainly, no court of last
resort will be willing to declare that any and every purpose which the legislative might happen to
designate as a public use shall be conclusively held to be so, irrespective of the purpose in question
and of its manifestly private character Blackstone in his Commentaries on the English Law remarks
that, so great is the regard of the law for private property that it will not authorize the least violation of
it, even for the public good, unless there exists a very great necessity therefor.

In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of the United States said:
"That government can scarcely be deemed free where the rights of property are left solely defendant
on the legislative body, without restraint. The fundamental maxims of free government seem to
require that the rights of personal liberty and private property should be held sacred. At least no
court of justice in this country would be warranted in assuming that the power to violate and
disregard them — a power so repugnant to the common principles of justice and civil liberty —
lurked in any general grant of legislature authority, or ought to be implied from any general
expression of the people. The people ought no to be presumed to part with rights so vital to their
security and well-being without very strong and direct expression of such intention." (Lewis on
Eminent Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann.,
182.)

Blackstone, in his Commentaries on the English Law said that the right to own and possess land —
a place to live separate and apart from others — to retain it as a home for the family in a way not to
be molested by others — is one of the most sacred rights that men are heirs to. That right has been
written into the organic law of every civilized nation. The Acts of Congress of July 1, 1902, and of
August 29, 1916, which provide that "no law shall be enacted in the Philippine Islands which shall
deprive any person of his property without due process of law," are but a restatement of the time-
honored protection of the absolute right of the individual to his property. Neither did said Acts of
Congress add anything to the law already existing in the Philippine Islands. The Spaniard fully
recognized the principle and adequately protected the inhabitants of the Philippine Islands against
the encroachment upon the private property of the individual. Article 349 of the Civil Code provides
that: "No one may be deprived of his property unless it be by competent authority, for some purpose
of proven public utility, and after payment of the proper compensation Unless this requisite (proven
public utility and payment) has been complied with, it shall be the duty of the courts to protect the
owner of such property in its possession or to restore its possession to him , as the case may be."

The exercise of the right of eminent domain, whether directly by the State, or by its authorized
agents, is necessarily in derogation of private rights, and the rule in that case is that the authority
must be strictly construed. No species of property is held by individuals with greater tenacity, and
none is guarded by the constitution and laws more sedulously, than the right to the freehold of
inhabitants. When the legislature interferes with that right, and, for greater public purposes,
appropriates the land of an individual without his consent, the plain meaning of the law should not be
enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases
cited [73 Am. Dec., 576].)

The statutory power of taking property from the owner without his consent is one of the most delicate
exercise of government authority. It is to be watched with jealous scrutiny. Important as the power
may be to the government, the inviolable sanctity which all free constitutions attach to the right of
property of the citizens, constrains the strict observance of the substantial provisions of the law
which are prescribed as modes of the exercise of the power, and to protect it from abuse. Not only
must the authority of municipal corporations to take property be expressly conferred and the use for
which it is taken specified, but the power, with all constitutional limitation and directions for its
exercise, must be strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases
cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

It can scarcely be contended that a municipality would be permitted to take property for some public
use unless some public necessity existed therefor. The right to take private property for public use
originates in the necessity, and the taking must be limited by such necessity. The appellant contends
that inasmuch as the legislature has given it general authority to take private property for public use,
that the legislature has, therefore, settled the question of the necessity in every case and that the
courts are closed to the owners of the property upon that question. Can it be imagined, when the
legislature adopted section 2429 of Act No. 2711, that it thereby declared that it was necessary to
appropriate the property of Juan de la Cruz, whose property, perhaps, was not within the city limits
at the time the law was adopted? The legislature, then, not having declared the necessity, can it be
contemplated that it intended that a municipality should be the sole judge of the necessity in every
case, and that the courts, in the face of the provision that "if upon trial they shall find that a right
exists," cannot in that trial inquire into and hear proof upon the necessity for the appropriation in a
particular case?

The Charter of the city of Manila authorizes the taking of private property for public use. Suppose
the owner of the property denies and successfully proves that the taking of his property serves no
public use: Would the courts not be justified in inquiring into that question and in finally denying the
petition if no public purpose was proved? Can it be denied that the courts have a right to inquire into
that question? If the courts can ask questions and decide, upon an issue properly presented,
whether the use is public or not, is not that tantamount to permitting the courts to inquire into the
necessity of the appropriation? If there is no public use, then there is no necessity, and if there is no
necessity, it is difficult to understand how a public use can necessarily exist. If the courts can inquire
into the question whether a public use exists or not, then it seems that it must follow that they can
examine into the question of the necessity.

The very foundation of the right to exercise eminent domain is a genuine necessity, and that
necessity must be of a public character. The ascertainment of the necessity must precede or
accompany, and not follow, the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind.,
511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry. etc. Co., 72 Ohio St.,
368.)

The general power to exercise the right of eminent domain must not be confused with the right to
exercise it in a particular case. The power of the legislature to confer, upon municipal corporations
and other entities within the State, general authority to exercise the right of eminent domain cannot
be questioned by the courts, but that general authority of municipalities or entities must not be
confused with the right to exercise it in particular instances. The moment the municipal corporation
or entity attempts to exercise the authority conferred, it must comply with the conditions
accompanying the authority. The necessity for conferring the authority upon a municipal corporation
to exercise the right of eminent domain is admittedly within the power of the legislature. But whether
or not the municipal corporation or entity is exercising the right in a particular case under the
conditions imposed by the general authority, is a question which the courts have the right to inquire
into.

The conflict in the authorities upon the question whether the necessity for the exercise of the right of
eminent domain is purely legislative and not judicial, arises generally in the wisdom and propriety of
the legislature in authorizing the exercise of the right of eminent domain instead of in the question of
the right to exercise it in a particular case. (Creston Waterworks Co. vs. McGrath, 89 Iowa, 502.)

By the weight of authorities, the courts have the power of restricting the exercise of eminent domain
to the actual reasonable necessities of the case and for the purposes designated by the law.
(Fairchild vs. City of St. Paul. 48 Minn., 540.)

And, moreover, the record does not show conclusively that the plaintiff has definitely decided that
their exists a necessity for the appropriation of the particular land described in the complaint.
Exhibits 4, 5, 7, and E clearly indicate that the municipal board believed at one time that other land
might be used for the proposed improvement, thereby avoiding the necessity of distributing the quiet
resting place of the dead.

Aside from insisting that there exists no necessity for the alleged improvements, the defendants
further contend that the street in question should not be opened through the cemetery. One of the
defendants alleges that said cemetery is public property. If that allegations is true, then, of course,
the city of Manila cannot appropriate it for public use. The city of Manila can only
expropriate private property.

It is a well known fact that cemeteries may be public or private. The former is a cemetery used by
the general community, or neighborhood, or church, while the latter is used only by a family, or a
small portion of the community or neighborhood. (11 C. J., 50.)

Where a cemetery is open to public, it is a public use and no part of the ground can be taken for
other public uses under a general authority. And this immunity extends to the unimproved and
unoccupied parts which are held in good faith for future use. (Lewis on Eminent Domain, sec. 434,
and cases cited.)

The cemetery in question seems to have been established under governmental authority. The
Spanish Governor-General, in an order creating the same, used the following language:

The cemetery and general hospital for indigent Chinese having been founded and
maintained by the spontaneous and fraternal contribution of their protector, merchants and
industrials, benefactors of mankind, in consideration of their services to the Government of
the Islands its internal administration, government and regime must necessarily be adjusted
to the taste and traditional practices of those born and educated in China in order that the
sentiments which animated the founders may be perpetually effectuated.

It is alleged, and not denied, that the cemetery in question may be used by the general community of
Chinese, which fact, in the general acceptation of the definition of a public cemetery, would make the
cemetery in question public property. If that is true, then, of course, the petition of the plaintiff must
be denied, for the reason that the city of Manila has no authority or right under the law to expropriate
public property.
But, whether or not the cemetery is public or private property, its appropriation for the uses of a
public street, especially during the lifetime of those specially interested in its maintenance as a
cemetery, should be a question of great concern, and its appropriation should not be made for such
purposes until it is fully established that the greatest necessity exists therefor.

While we do not contend that the dead must not give place to the living, and while it is a matter of
public knowledge that in the process of time sepulchres may become the seat of cities and
cemeteries traversed by streets and daily trod by the feet of millions of men, yet, nevertheless such
sacrifices and such uses of the places of the dead should not be made unless and until it is fully
established that there exists an eminent necessity therefor. While cemeteries and sepulchres and
the places of the burial of the dead are still within
the memory and command of the active care of the living; while they are still devoted to pious uses
and sacred regard, it is difficult to believe that even the legislature would adopt a law expressly
providing that such places, under such circumstances, should be violated.

In such an appropriation, what, we may ask, would be the measure of damages at law, for the
wounded sensibilities of the living, in having the graves of kindred and loved ones blotted out and
desecrated by a common highway or street for public travel? The impossibility of measuring the
damage and inadequacy of a remedy at law is too apparent to admit of argument. To disturb the
mortal remains of those endeared to us in life sometimes becomes the sad duty of the living; but,
except in cases of necessity, or for laudable purposes, the sanctity of the grave, the last resting
place of our friends, should be maintained, and the preventative aid of the courts should be invoked
for that object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery
Association vs. The City of New Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744;
Beatty vs. Kurtz, 2 Peters, 566.)

In the present case, even granting that a necessity exists for the opening of the street in question,
the record contains no proof of the necessity of opening the same through the cemetery. The record
shows that adjoining and adjacent lands have been offered to the city free of charge, which will
answer every purpose of the plaintiff.

For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is
hereby affirmed, with costs against the appellant. So ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Separate Opinions

MALCOLM, J., concurring:

The Government of the Philippine Islands is authorized by the Philippine Bill to acquire real estate
for public use by the exercise of the right of eminent domain. (Act of Congress of July 1, 1902, sec.
63.) A portion of this power has been delegated by the Philippine Legislature to the city of Manila,
which is permitted to "condemn private property for public use." (Administrative Code of 1917, sec.
2429.) The Code of Civil Procedure, in prescribing how the right of eminent domain may be
exercised, also limits the condemnation to "private property for public use." (Sec. 241.) As under the
facts actually presented, there can be no question that a public street constitutes a public use, the
only remaining question is whether or not the Chinese Cemetery and the other property here sought
to be taken by the exercise of the right of eminent domain is "private property."

As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public and
private. A public cemetery is one used by the general community, or neighborhood, or church; while
a private cemetery is one used only by a family, or small portion of a community. (Lay vs. State, 12
Ind. App., 362; Cemetery Association vs. Meninger [1875], 14 Kan., 312.) Our specific question,
then, is, whether the Chinese Cemetery in the city of Manila is a public, or a private graveyard. If it
be found to be the former, it is not subject to condemnation by the city of Manila; if it be found to be
the latter, it is subject to condemnation.

The Chinese Cemetery of Manila was established during the Spanish administration in the
Philippines by public spirited Chinese. The order of the Governor-General giving governmental
recognition to the cemetery reads as follows: "The cemetery and general hospital for indigent
Chinese having been founded and maintained by the spontaneous and fraternal contribution of their
protectors, merchants and industrials, benefactors of mankind, in consideration of their services to
the Government of the Islands, its internal administration, government and regime, must necessarily
be adjusted to the taste and traditional practices of those born and educated in China in order that
the sentiments which animated the founders may be perpetually effectuated." Sometimes after the
inauguration of the new regime in the Philippines, a corporation was organized to control the
cemetery, and a Torrens title for the lands in question was obtained.

From the time of its creation until the present the cemetery has been used by the Chinese
community for the burial of their dead. It is said that not less than four hundred graves, many of them
with handsome monuments, would be destroyed by the proposed street. This desecration is
attempted as to the las t resting places of the dead of a people who, because of their peculiar and
ingrained ancestral workship, retain more than the usual reverence for the departed. These facts
lead us straight to the conclusion that the Chinese Cemetery is not used by a family or a small
portion of a community but by a particular race long existing in the country and of considerable
numbers. The case, then, is one of where the city of Manila, under a general authority permitting it to
condemn private property for public use, is attempting to convert a property already dedicated to a
public use to an entirely different public use; and this, not directly pursuant to legislative authority,
but primarily through the sole advice of the consulting architect.

Two well considered decisions coming from the American state courts on almost identical facts are
worthy of our consideration. The first is the case of The Evergreen Cemetery Association vs. The
City of New Haven ([1875], 43 Conn., 234), of cited by other courts. Here the City of New Haven,
Connecticut, under the general power conferred upon it to lay out, construct, and maintain all
necessary highways within its limits, proceeded to widen and straighten one of its streets and in so
doing took a small piece of land belonging to the Evergreen Cemetery Association. This association
was incorporated under the general statute. The city had no special power to take any part of the
cemetery for such purposes. It was found that the land taken was needed for the purposes of the
cemetery and was not needed for the purpose of widening and straightening the avenue. The court
said that it is unquestionable that the Legislature has the power to authorize the taking of land
already applied to one public use and devote it to another. When the power is granted to municipal
or private corporations in express words, no question can arise. But, it was added, "The same land
cannot properly be used for burial lots and for a public highway at the same time. . . . Land therefore
applied to one use should not be taken for the other except in cases on necessity. . . . There is no
difficulty in effecting the desired improvement by taking land on the other side of the street. . . . The
idea of running a public street, regardless of graves, monuments, and the feelings of the living,
through one of our public cemeteries, would be shocking to the moral sense of the community, and
would not be tolerated except upon the direst necessity." It was then held that land already devoted
to a public use cannot be taken by the public for another use which is inconsistent with the first,
without special authority from the Legislature, or authority granted by necessary and reasonable
implication.

The second decision is that of Memphis State Line Railroad Company vs. Forest Hill Cemetery Co.
([1906], 116 Tenn., 400.) Here the purpose of the proceedings was to condemn a right of way for the
railway company through the Forest Hill Cemetery. The railroad proposed to run through the
southeast corner of the cemetery where no bodies were interred. The cemetery had been in use for
about eight years, and during this period thirteen hundred bodies had been buried therein. The
cemetery was under the control of a corporation which, by its character, held itself out as being
willing to sell lots to any one who applies therefor and pays the price demanded, except to members
of the Negro race. 1awph!l.net

It was found that there were two other routes along which the railroad might be located without
touching the cemetery, while the present line might be pursued without interfering with Forest Hill
Cemetery by making a curve around it. In the court below the railroad was granted the right of
condemnation through the cemetery and damages were assessed. On appeal, the certiorari applied
for was granted, and the supersedeas awarded. The court, in effect, found that the land of the
Cemetery Company was devoted to a public purpose, and that under the general language of the
Tennessee statute of eminent domain it could not be taken for another public purpose. The court
said that in process of time the sepulchres of the dead "are made the seats of cities, and are
traversed by streets, and daily trodden by the feet of man. This is inevitable in the course of ages.
But while these places are yet within the memory and under the active care of the living, while they
are still devoted to pious uses, they are sacred, and we cannot suppose that the legislature intended
that they should be violated, in the absence of special provisions upon the subject authorizing such
invasion, and indicating a method for the disinterment, removal, and reinterment of the bodies
buried, and directing how the expense thereof shall be borne." Two members of the court, delivering
a separate concurring opinion, concluded with this significant and eloquent sentence: "The wheels of
commerce must stop at the grave."

For the foregoing reasons, and for others which are stated in the principal decision, I am of the
opinion that the judgment of the lower court should be affirmed.

STREET, J., dissenting:

It may be admitted that, upon the evidence before us, the projected condemnation of the Chinese
Cemetery is unnecessary and perhaps ill-considered. Nevertheless I concur with Justice Moir in the
view that the authorities of the city of Manila are the proper judges of the propriety of the
condemnation and that this Court should have nothing to do with the question of the necessity of the
taking.

MOIR, J., dissenting:

I dissent from the majority opinion in this case, which has not yet been written, and because of the
importance of the question involved, present my dissent for the record.

This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue
north. The petition for condemnation was opposed by the "Comunidad de Chinos de Manila" and
Ildefonso Tambunting and various other who obtained permission of the trial court to intervene in the
case.

All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts
through a part of the Chinese Cemetery, North of Manila, and necessitates the destruction of many
monuments and the removal of many graves.

The Court of First Instance of Manila, Honorable S. del Rosario, judge after hearing the parties,
decided that there was no need for constructing the street as and where proposed by the city, and
dismissed the petition.

The plaintiff appealed and sets up the following errors:

1. The court erred in deciding that the determination of the necessity and convenience of the
expropriation of the lands of the defendants lies with the court and not with the Municipal
Board of the city of Manila.

2. The court erred in permitting the presentation of proofs over the objection and exception of
the plaintiff tending to demonstrate the lack of necessity of the projected street and the need
of the lands in question.

3. The court erred in declaring that the plaintiff had no right to expropriate the lands in
question.

4. The court erred in dismissing the complaint.

The right of the plaintiff to expropriate property for public use cannot be denied. The "right of eminent
domain is inherent in all sovereignties and therefore would exist without any constitutional
recognition . . . . The right of eminent domain antedates constitutions . . . . The right can only be
denied or restricted by fundamental law and is right inherent in society." (15 Cyc., pp. 557-8.) .

This general right was recognized in the Philippine Code of Civil Procedure effective October 1st,
1901, which prescribed the manner of exercising the right. (Sections 241 et seq.)
It was further recognized in the Organic Act of July 1st, 1902, which provides in section 74 "that the
Government of the Philippine Islands may grant franchises . . . including the authority to exercise the
right of eminent domain for the construction and operation of works of public utility and service, and
may authorize said works to be constructed and maintained over and across the public property of
the United States including . . . reservations." This provisions is repeated in the Jones Law of
August, 1916.

The legislature of the Islands conferred the right on the city of Manila. (Section 2429, Administrative
Code of 1917; section 2402, Administrative Code of 1916.)

Clearly having the right of expropriation, the city of Manila selected the line of its street and asked
the court by proper order to place the plaintiff in possession of the land described in the complaint,
and to appoint Commissioners to inspect the property, appraise the value, and assess the damages.
Instead of doing so, the court entered upon the question of the right of the city to take the property
and the necessity for the taking.

The court says:

The controversy relates to whether or not the Chinese Cemetery, where a great majority of
this race is buried and other persons belonging to other nationalities have been formerly
inhumed, is private or public; whether or not said cemetery, in case it is public, would be
susceptible to expropriation for the purpose of public improvements proposed by the city of
Manila; whether or not the latter is justified of the necessity and expediency of similar
expropriation before its right to the same would be upheld by the courts of justice; and
whether or not the appreciation of said necessity pertains to the legislative or the judicial
department before which the expropriation proceedings have been brought.

Relative to the first point, it is not necessary for the court to pass upon its consideration, in
view of the conclusion it has arrived at the appreciation of the other points connected with
each other.

From the testimony of two reputable engineers produced by some of the defendants, it
appears that the land chosen by the plaintiff for the extension of Rizal Avenue to the
municipality of Caloocan is not the best or the less expensive, although upon it there may be
constructed a straight road, without curves or winding; but that in order to construct said road
upon said land, the city of Manila would have to remove and transfer to other places about
four hundred graves and monuments, make some grubbings, undergo some leveling and
build some bridges — the works thereon, together with the construction of the road and the
value of the lands expropriated, would mean an expenditure which will not be less than
P180,000.

Beside that considerable amount, the road would have a declivity of 3 per cent which, in
order to cover a distance of one kilometer, would require an energy equivalent to that which
would be expanded in covering a distance of two and one-half kilometers upon a level road.

On the other hand, if the road would be constructed with the deviation proposed by Ildefonso
Tambunting, one of the defendants, who even offered to donate gratuitously to the city of
Manila part of the land upon which said road will have to be constructed, the plaintiff entity
would be able to save more than hundreds of thousand of pesos, which can be invested in
other improvements of greater pressure and necessity for the benefit of the taxpayers; and it
will not have to employ more time and incur greater expenditures in the removal and transfer
of the remains buried in the land of the Chinese Community and of Sr. Tambunting, although
with the insignificant disadvantage that the road would be little longer by a still more
insignificant extension of 426 meters and 55 centimeters less than one-half kilometer,
according to the plan included in the records; but it would offer a better panorama to those
who would use it, and who would not have to traverse in their necessary or pleasure-making
trips or walks any cemetery which, on account of its nature, always deserves the respect of
the travellers. It should be observed that the proposed straight road over the cemetery,
which the city of Manila is proposing to expropriate, does not lead to any commercial,
industrial, or agricultural center, and if with said road it is endeavored to benefit some
community or created interest, the same object may be obtained by the proposed deviation
of the road by the defendants. The road traced by the plaintiffs has the disadvantage that the
lands on both sides thereof would not serve for residential purposes, for the reason that no
one has the pleasure to construct buildings upon cemeteries, unless it be in very
 overcrowded cities, so exhausted of land that every inch thereof represents a dwelling
house.

And it is against the ruling, that it lies with the court to determine the necessity of the proposed street
and not with the municipal board, that the appellant directs its first assignment of error.

It is a right of the city government to determine whether or not it will construct streets and where, and
the court's sole duty was to see that the value of the property was paid the owners after proper legal
proceedings ascertaining the value.

The law gives the city the right to take private property for public use. It is assumed it is unnecessary
to argue that a public road is a public use.

But it is argued that plaintiff must show that it is necessary to take this land for a public improvement.
The law does not so read, and it is believed that the great weight of authority, including the United
States Supreme Court, is against the contention.

The question of necessity is distinct from the question of public use, and former question is
exclusively for the legislature, except that if the constitution or statute authorizes the taking
of property only in cases of necessity, then the necessity becomes a judicial question.
(McQuillen Municipal Corporations, Vol. IV, pp. 3090-3091.)

In the absence of some constitutional or statutory provision to the contrary, the necessity and
expediency of exercising the right of eminent domain are questions essentially political and
not judicial in their character. The determination of those questions belongs to the sovereign
power; the legislative determination is final and conclusive, and the courts have no power to
review it. It rests with the legislature not only to determine when the power of eminent
domain may be exercised, but also the character, quality, method, and extent of such
exercise. And this power is unqualified, other than by the necessity of providing that
compensation shall be made. Nevertheless, under the express provisions of the constitution
of some states the question of necessity is made a judicial one, to be determined by the
courts and not by the legislature.

While the legislature may itself exercise the right of determining the necessity for the
exercise of the power of eminent domain, it may, unless prohibited by the constitution,
delegate this power to public officers or to private corporations established to carry on
enterprises in which the public are interested, and their determination that a necessity for the
exercise of the power exists is conclusive. There is no restraint upon the power except that
requiring compensation to be made. And when the power has been so delegated it is a
subject of legislative discretion to determine what prudential regulations shall be established
to secure a discreet and judicious exercise of the authority. It has been held that in the
absence of any statutory provision submitting the matter to a court or jury the decision of the
question of necessity lies with the body of individuals to whom the state has delegated the
authority to take, and the legislature may be express provision confer this power on a
corporation to whom the power of eminent domain is delegated unless prohibited by the
constitution. It is of course competent for the legislature to declare that the question shall be
a judicial one, in which case the court and not the corporation determines the question of
necessity. (15 Cyc., pp. 629-632.)

To the same effect is Lewis on Eminen Domain (3d Edition, section 597).

I quote from the notes to Vol. 5, Encyclopedia of United States Supreme Court Reports, p. 762, as
follows:

Neither can it be said that there is any fundamental right secured by the constitution of the
United States to have the questions of compensation and necessity both passed upon by
one and the same jury. In many states the question of necessity is never submitted to the
jury which passes upon the question of compensation. It is either settled affirmatively by the
legislature, or left to the judgment of the corporation invested with the right to take property
by condemnation. The question of necessity is not one of a judicial character, but rather one
for determination by the lawmaking branch of the government. (Boom Co. vs. Patterson, 98
U.S., 403, 406 [25 L. ed., 206]; United States vs. Jones, 109 U.S., 513 [27 L. ed., 1015];
Backus vs. Fort Street Union Depot Co., 169 U.S., 557, 568 [42 L. ed., 853].)
 Speaking generally, it is for the state primarily and exclusively, to declare for what local
public purposes private property, within its limits may be taken upon compensation to the
owner, as well as to prescribe a mode in which it may be condemned and taken.
(Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S., 239, 252 [49 L. ed., 462].)

Courts have no power to control the legislative authority in the exercise of their right to
determine when it is necessary or expedient to condemn a specific piece of property for
public purposes. (Adirondack R. Co. vs. New York States, 176 U.S., 335 [44 L. ed., 492].)

10 R. C. L. (p. 183), states the law as follows:

158. Necessity for taking ordinarily not judicial question. — The legislature, in providing for
the exercise the power of eminent domain, may directly determine the necessity for
appropriating private property for a particular improvement or public use, and it may select
the exact location of the improvement. In such a case, it is well 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
these of the representatives of the people. Similarly, when the legislature has delegated the
power of eminent domain to municipal or public service corporation or other tribunals or
bodies, and has given them discretion as to when the power is to be called into exercise and
to what extent, the court will not inquire into the necessity or propriety of the taking.

The United States Supreme Court recently said:

The uses to which this land are to be put are undeniably public uses. When that is the case
the propriety or expediency of the appropriation cannot be called in question by any other
authority. (Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting U.S. vs. Jones, 109, U.S.,
519.)

And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:

Plaintiff contends that the ordinance is void because the general statute which authorized the
appropriation violates both Article 1, paragraph 10, of the Federal Constitution, and the
Fourteenth Amendment, in that it authorizes the municipality to determine the necessity for
the taking of private property without the owners having an opportunity to be hear as to such
necessity; that in fact no necessity existed for any taking which would interfere with the
company's project; since the city might have taken water from the Little Cuyahoga or the
Tuscarawas rivers; and furthermore, that it has taken ten times as much water as it can
legitimately use. It is well settled that while the question whether the purpose of a taking is a
public one is judicial (Hairston vs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28
Sup. Ct. Rep., 331; 13 Ann. Cas., 1008]), the necessity and the proper extent of a taking is a
legislative question. (Shoemaker vs. United States, 147 U.S., 282, 298 [57 L. ed., 170, 184;
13 Supt. Ct. Rep., 361]; United States vs. Gettysburg Electric R. Co., 160 U.S. 668, 685 [40
L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-Dunbar Water Power
Co., 229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup. Ct. Rep., 667].)

I think the case should be decided in accordance with foregoing citations, but one other point has
been argued so extensively that it ought to be considered.

It is contended for the defense that this Chinese Cemetery is a public cemetery and that it cannot
therefore be taken for public use. In its answer the "Comunidad de Chinos de Manila" says it is "a
corporation organized and existing under and by virtue of the laws of the Philippine Islands," and that
it owns the land which plaintiff seeks to acquire. The facts that it is private corporation owning land
would seem of necessity to make the land it owns private land. The fact that it belongs to the
Chinese community deprives it of any public character.

But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the
city of Manila, can it not be taken for public use? Must we let the reverence we feel for the dead and
the sanctity of their final resting-place obstruct the progress of the living? It will be instructive to
inquire what other jurisdictions have held on that point.
On the Application of Board of Street Openings of New York City to acquire St. Johns Cemetery
(133 N.Y., 329) the court of appeal said:

. . . The board instituted this proceeding under the act to acquire for park purposes the title to
land below One Hundred and Fifty-fifth street known as St. John's cemetery which belonged
to a religious corporation in the city of New York, commonly called Trinity Church. It was
established as a cemetery as early as 1801, and used for that purpose until 1839, during
which time about ten thousand human bodies had been buried therein. In 1839 an ordinance
was passed by the city of New York forbidding interments south of Eighty-sixth street, and
since that time no interments have been made in the cemetery, but Trinity Church has
preserved and kept it in order and prevented any disturbance thereof.

It is contended on behalf of Trinity Church that under the general authority given by statute of
1887, this land which had been devoted to cemetery purposes could not be taken for a park.
The authority conferred upon the board by the act is broad and general. It is authorized to
take for park purposes any land south of One Hundred and Fifty-fifth street. . . . .

The fact that lands have previously been devoted to cemetery purposes does not place them
beyond the reach of the power of eminent domain. That is an absolute transcendent power
belonging to the sovereign which can be exercised for the public welfare whenever the
sovereign authority shall determine that a necessity for its exercise exists. By its existence
the homes and the dwellings of the living, and the resting-places of the dead may be alike
condemned.

It seems always to have been recognized in the laws of this state, that under the general
laws streets and highways could be laid out through cemeteries, in the absence of special
limitation or prohibition. . . .

In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the Supreme Court of the
State said:

This was an action for the opening of a street through a cemetery in the City of Philadelphia.
It was contended for the United American Mechanics and United Daughters of America
Cemetery Association that by an act of the legislature of the State approved March 20th,
1849, they were forever exempt from the taking of any their property for streets, roads or
alleys and this Act was formally accepted by the Cemetery Company on April 9th, 1849, and
there was, therefore, a contract between the Cemetery Company and the State of
Pennsylvania, which would be violated by the taking of any part of their property for street
purposes. It was further contended that there were 11,000 persons buried in the cemetery.

The court held that property and contracts of all kinds must yield to the demand of the
sovereign and that under the power of eminent domain all properties could be taken, and
that if there was a contract between the State of Pennsylvania and the Cemetery
Association, the contract itself could be taken for public use, and ordered the opening of the
street through the cemetery.

In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it is said:

Although it has been held, that where a state has delegated the power of eminent domain to
a person or corporation and where by its exercise lands have been subject to a public use,
they cannot be applied to another public use without specific authority expressed or implied
to that effect, yet, the general rule seems to be that the fact that property is already devoted
to a public use, does not exempt it from being appropriated under the right of eminent
domain but it may be so taken for a use which is clearly superior or paramount to the one to
which it is already devoted. (Citing many United States Supreme Court decisions.)

A few cases have been cited where the courts refused to allow the opening of streets through
cemeteries, but in my opinion they are not as well considered as the cases and authorities relied
upon herein.

The holding of this court in this case reverses well settled principles of law of long standing and
almost universal acceptance.
The other assignments of error need not be considered as they are involved in the foregoing.

The decision should be reversed and the record returned to the Court of First Instance with
instructions to proceed with the case in accordance with this decision.