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 f​ or 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 a ​ nd 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 i​ t 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 a​ re ​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 l​ ands 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 p ​ roperty 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 t​ o expropriate exists," means simply that, if the court finds that there is
some law a ​ uthorizing 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 a ​ nd ​con w
​ ill 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 o ​ f 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 t​ o a
municipal corporation to expropriate ​private land ​for ​public p ​ urposes, 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 p ​ roperty 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 b ​ ut
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 e ​ xists," 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 t​ o ascertain upon
trial w
​ hether 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 o​ r 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 f​ or 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 i​ s 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 f​ or 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 i​ s 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 a ​ s 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 p ​ roperty 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 u​ pon 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 p ​ roperty. 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.