G.R. No. L-32049. June 25, 1984
MATAAS NA LUPA TENANTS ASSOCIATION, INC., NICOLAS AGLABAY, AND THOSE MENTIONED IN ANNEX “A” OF COMPLAINT, PETITIONERS, VS. CARLOS DIMAYUGA AND JULIANA DIEZ VDA. DE GABRIEL, RESP…
MAKASIAR, J.:
dated October 30, 1969 of the defunct Court of First Instance of Manila,
Branch IV, which granted the motion to dismiss the complaint of
petitioners in Civil Case No. 75391 on the ground that the same failed
to state a cause of action (p. 16, rec.; pp. 1, 100, CFI rec.).
The undisputed facts are as follows:
On January 17, 1969, petitioners filed a complaint for the exercise
of preferential rights with the then Court of First Instance of Manila,
Branch IV, docketed as Civil Case No. 75391 (p. 32, rec.; p. 1, CFI
rec.).The said complaint alleged that petitioner association has for its
members Nicolas Aglabay, et al., named and listed in Annex “A” of said
complaint, which members are heads of 110 tenant families, and who have
been, for more than ten years prior to 1959, occupants of a parcel of
land (with their 110 houses built thereon), formerly owned by the
respondent, Juliana Diez vda. de Gabriel, to whom petitioners have been
paying rents for the lease thereof, but who, on May 14, 1968, without
notice to petitioners, sold the same to respondent Carlos Dimayuga, who,
in turn, mortgaged the same to her for the balance of the purchase
price; that according to Republic Act 1162, as amended by Republic Act
2342, a parcel of land in Manila and suburbs, with at least fifty (50)
houses of tenants erected thereon and actually leased to said tenants
for at least ten (10) years prior to June 20, 1959, may not be sold by
the landowner to any person other than such tenants, unless the latter
renounced their rights in a public instrument; that without said
tenants-petitioners having renounced their preferential rights in public
instrument, respondent Vda. de Gabriel sold the land to respondent
Dimayuga; that petitioners-tenants are willing to purchase said land at
the same price and on the same terms and conditions observed in the
contract of sale with respondent Dimayuga; and that since aforesaid
contract of sale is expressly prohibited by law, the same is null and
void, while it is mandatory for respondent Vda. de Gabriel to execute
such sale to petitioners. Petitioners therefore prayed that said
contract of sale be declared void, and that respondent Vda. de Gabriel
be ordered to execute a deed of sale in favor of petitioners at the same
price and conditions followed in the contract with respondent Dimayuga,
plus attorney’s fees and damages (p. 32, rec.; p. 1, CFI rec.).On January 31, 1969, respondent Vda. de Gabriel filed a motion to
dismiss on the ground that the complaint stated no cause of action
because the land subject of the complaint is not a landed estate, and
not being such, the same cannot be expropriated, and not being
expropriable, no preferential rights could be availed of by the tenants
(p. 41, rec.; p. 22, CFI rec.).Respondent Dimayuga filed his answer to aforesaid complaint on
February 6, 1969 admitting therein certain factual allegations, denied
some averments, interposed the affirmative defenses that plaintiffs had
no personality to initiate the action since the Land Tenure
Administration possessed the power to institute the proper expropriation
proceedings before the competent court and that the subject complaint
stated no cause of action against respondent, alleged a counterclaim to
eject plaintiffs from the property, and prayed for the dismissal of the
complaint and other remedies (p. 44, rec.; p. 155, CFI rec.).On February 6, 1969, plaintiffs-petitioners filed their opposition
to the motion to dismiss, maintaining, among others, that Republic Act
1162, as amended by Republic Act 2342 (law which respondent Vda. de
Gabriel invoked), does not necessarily refer to landed estates, but to
any piece of land occupied by more than 50 families leasing the same for
more than ten (10) years prior to June 20, 1959; that their
preferential rights are independent of the expropriability of the land;
that therefore, said rights may be exercised even if the land is not
expropriable; and that these rights were granted pursuant to the police
power of the State for the general welfare, with prayer that aforesaid
motion to dismiss be denied (p. 47, rec.; p. 26, CFI rec.).On February 13, 1969, respondent Vda. de Gabriel replied to the
aforesaid opposition to motion to dismiss, reiterating therein her
prayer to dismiss the complaint (p. 57, rec.; p. 38, CFI rec.).Plaintiffs-petitioners filed their rejoinder to above reply to
their opposition on February 19, 1969, laying emphasis on the alleged
distinction between the two ways of acquiring occupied land under
Republic Act 1162, which are expropriation and voluntary disposal of the
land by the owner thereof, and which are exercisable independently of
each other (p. 56, rec.; p. 42, CFI rec.).On October 30, 1969, Branch IV of the Court of First Instance of
Manila issued the subject order which found respondent’s motion to
dismiss well-taken and thereby dismissed the complaint (p. 69, rec.; p.
100, CFI rec.).Petitioners moved for reconsideration of the aforecited order on
January 7, 1970, which motion was denied in the lower court’s order of
January 27, 1970 (p. 111, 190, CFI rec.).On February 9, 1970, petitioners filed a notice of appeal with the
lower court to which respondent Vda. de Gabriel moved for dismissal of
the same on February 11, 1970 on the alleged ground that pursuant to
Republic Act 5440, petitioners should have appealed from the questioned
order by way of a petition for certiorari to this Court since the matter
involved only errors or questions of law (p. 143, CFI rec.).After a series of motions, reply, rejoinder, surrejoinder, and
answer between both parties, the lower court issued its order of May 11,
1970 dismissing petitioners’ appeal (p. 225, CFI rec.).Petitioners thus resorted to this petition.
Petitioners contend that the lower court committed an error in
dismissing their complaint on the ground that since the land is not
expropriable, it follows that the tenants therein have no preferential
rights to buy said land, it the same is sold voluntarily. Petitioners’
contention is anchored on the amendment introduced by Republic Act 3516
into Section 1 of Republic Act 1162, which latter law had been invoked
in the decision of the lower court.According to petitioners, the phrase “any landed estates or
haciendas herein authorized to be expropriated” had been amended to read
“any landed estates or haciendas or lands herein authorized to be
expropriated”; hence, Republic Act 1162 does not refer exclusively to
landed estates or haciendas, but even to smaller lands. The particular
section as amended reads thus:“The expropriation of landed estates or haciendas, or lands which
formerly formed part thereof, or any piece of land in the City of
Manila, Quezon City and suburbs, which have been and are actually being
leased to tenants for at least ten years, is hereby authorized: Provided, That such lands shall have at least forty families of tenants thereon.” (Sec. 1 of R.A. 3516).
Petitioners likewise invoke the amended title of Republic Act 1162 which
had been introduced by Republic Act 2342 which title now reads as
follows:
“An Act Providing for the Expropriation of Landed Estates or Haciendas or Lands Which Formerly Formed Part Thereof or Any Piece of Land
in the City of Manila, Quezon City and Suburbs, Their Subdivision into
Small Lots, and the Sale of Such Lots at Cost or Their Lease on
Reasonable Terms, and for Other Purposes” (Italics supplied).
Petitioners further allege that Republic Act 1162 is both an
exercise of the power of eminent domain and the police power of the
State. The exercise of the police power of the State refers to the grant
of preferential rights to the tenants of such land, if the same is
disposed of voluntarily. Simply stated, petitioners theorize that
Republic Act 1162 covers both compulsory and voluntary sale; hence,
while expropriability is pertinent to compulsory sale, the same does not
relate to voluntary sale. Even if the land is not expropriable, if the
same is however actually leased to the occupants for more than ten years
prior to May 22, 1963 (when R.A. 3516 took effect) with at least 40
families, said land, if sold voluntarily, is subject to the preferential
rights of the tenants.
Respondent Vda. de Gabriel maintains, on the other hand, that there
is no more issue regarding the non-expropriability of subject land,
which condition or status was expressly admitted by petitioners in the
lower court; that the title of Republic Act 1162, as amended by Republic
Act Nos. 2342 and 3516 clearly embraces expropriation; that the
prohibitive acts enumerated in Section 5 of R.A. 1162, as amended, are
entirely dependent on the expropriability of the land in controversy;
that there is nothing in the aforecited law which validly supports the
alleged preferential right of petitioners to purchase the property at
the same price and under the same conditions; that the only reasonable
interpretation of the opening lines of Section 5 of Republic Act 1162,
as amended, is that pending expropriation, the landowner shall not sell
the land to any other person than the tenant or occupant unless the
latter renounces his rights in a public instrument; but if the land is
not expropriable, as petitioners have admitted, the prohibition does not
apply; and that clearly, from the provision of Section 6 of the amended
law, Section 5 thereof may be violated only if the land is “herein
authorized to be expropriated” and since petitioners have admitted the
non-expropriability of subject land, it necessarily follows that said
Section 5 cannot apply.
Respondent Dimayuga avers that Section 9, in relation to the title
of R.A. 1162, clearly provides that the preferential right could be
exercised only when the land under question is subject to expropriation,
or better still, if the tenanted property which formerly formed part of
an hacienda or is a landed estate, had been expropriated; and, that
R.A. 1162, as amended, embraces only landed estates or haciendas with an
extensive area.
The sole issue raised by petitioners is whether or not they have the
pre-emptive or preferential rights to buy the land in question.
WE find for petitioners.
I
The third proviso in Section 5 of Republic Act 3516, which law further amended R.A. 1162, reads:
“Provided, furthermore, That no lot or portion thereof actually
occupied by a tenant or occupant shall be sold by the landowner to any
other person than such tenant or occupant, unless the latter renounce in
a public instrument his rights under this Act: Provided, finally, That
if there shall be tenants who have constructed bona fide improvements
on the lots leased by them, the rights of these tenants should be
recognized in the sale or in the lease of the lots, the limitation as to
area in Section three notwithstanding.”The provision clearly defines the preferential right of herein
petitioners to buy the parcel of land. It should be noted that
respondent Vda. de Gabriel voluntarily sold the land to respondent
Dimayuga without informing the petitioners of the transaction.
Respondent Vda. de Gabriel did not give the first offer to petitioners
who were then tenants-lessees and who would have either accepted or
refused to buy the land in a public document. The fact is that on
discovery of the sale to respondent Dimayuga, petitioners filed their
original claim for preferential rights eight months after the
clandestine sale. Thus, the condition set forth in the aforesaid proviso
— that of offering first the sale of the land to petitioners and the
latter’s renunciation in a public instrument — were not met when the
land was sold to respondent Dimayuga. Evidently, said sale was made
illegally and, therefore, void. Petitioners have still the first option
to buy the land as provided for in the above provision.II
A brief run-down of this Court’s decisions easily reveal the
adherence to the principle that the test for a valid expropriation of
private land for resale to its occupants, is the number of families to
be benefited thereby, and not the area.
In his book on Constitutional Law, Dean Isagani Cruz recapitulates thus:
“In the earlier case of Rural Progress Administration v. Reyes,
the Supreme Court held that the criterion for determining the validity
of expropriation under this provision was not the area of the land
sought to be taken but the number of people intended to be benefited thereby. The land, in other words, could be small provided it was tenanted by a sizable number of people.“This ruling was abandoned in the case of Guido v. Rural Progress Administration, where the Supreme Court declared, also by a split decision as in the Reyes case, that the test to be applied was the area of the land and not the number of people who stood to be benefitted by the expropriation. The land should be a landed estate or one comprising a very vast area.
It was stressed that one of the purposes of the framers was precisely
to break up these estates in the hands of only a few individuals or
families and thus more equitably distribute them among the landless.xx xx xx
“It has also been held that where a landed estate is broken up
unto reasonable portions which are thereafter sold to separate
purchasers, the resultant portions cannot be deemed as still subject to
expropriation under this provision simply because they used to form part
of a landed estate.“In the case of Tuason v. PHHC, which was a petition for prohibition to nullify a law directing the expropriation of Tatalon Estate in Quezon City, Justice
Fernando suggested a return to the Reyes ruling, arguing that the
propriety of expropriation ‘could not be determined on a purely
quantitative or area basis,’ quoting from Justice J.B.L. Reyes in his dissenting opinion in the Baylosis Case. xx xx” (p. 71, 1983 Ed.; Italics supplied).
From the Reyes case where the number of beneficiaries test was applied
in determining public use down to the Guido and Baylosis cases where the
land or area size test was invoked, then to the Tuason case where a
return to the Reyes decision was made and then up to the recent case of
Pulido vs. Court of Appeals (L-57625, May 3, 1983; 122 SCRA 63) where
this Court found it “unfortunate that petitioner would be deprived of
his land holdings, but his interest and that of his family should not
stand in the way of progress and the benefit of the greater majority of
the inhabitants of the country,” there has evolved a clear pattern of
adherence to the “number of people to be benefited test.”
This is made more manifest by the new constitutional provisions on the
equitable diffusion of property ownership and profits (Sec. 6, Art. II)
and the implementation of an agrarian reform program aimed at
emancipating the tenant from the bondage of the soil (Sec. 12, Art.
XIV).
It has been noted with concern that while respondents raised the issue
of expropriability of the parcel of land, petitioners limited themselves
to the issue of preferential or pre-emptive rights.
What petitioners might have failed to realize is that had they invoked
the expropriability of subject land, they would have had a foolproof
case. Right from the start, they would have had the upper hand.
Ironically, however, instead of anchoring their case on the
expropriability of such land, they concentrated on asserting their
preferential right to buy the land. For, Section 1 of R.A. 1162, as
amended by R.A. 3516, specifically authorizes the expropriation of any piece of land in the City of Manila, Quezon City and suburbs which have been and are actually being leased
to tenants for at least ten (10) years, provided said lands have at
least forty families of tenants thereon. The case at bar comes within
the coverage of the aforesaid legal provision since the parcel of land
is located in Manila which was then actually leased to 110 tenant
families 20 years prior to the commencement of this action in the lower
court. Clearly, therefore, the land in question is capable of
expropriation.
The above situation now brings Us back to the case of J.M. Tuason &
Co. vs. Land Tenure Administration (L-21064, Feb. 18, 1970, 31 SCRA
413-417) where this Court laid down certain basic doctrines on the power
of eminent domain. Thus, this Court, speaking thru then Justice
Fernando, declared:
“It does not admit of doubt that the congressional power conferred
by the Constitution is far from limited. It is left to the legislative
will to determine what lands may be expropriated so that they could be
subdivided for resale to those in need of them. Nor can it be doubted
either that as to when such authority may be exercised is purely for
Congress to decide. Its discretion on the matter is not to be interfered
with. This is shown by reference to the historical basis of the
provision as reflected in the proceedings of the Constitutional
Convention.“Historical discussion while valuable is not necessarily decisive.
It is easy to understand why. The social and economic conditions are
not static. They change with the times. To identify the text of a
written constitution with the circumstances that inspired its inclusion
may render it incapable of being responsive to future needs. Precisely,
it is assumed to be one of the virtues of a written constitution that it
suffices to govern the life of the people not only at the time of its
framing but far into the indefinite future. It is not to be considered
as so lacking in flexibility and suppleness that it may be a bar to
measures, novel and unorthodox, as they may appear to some, but
nonetheless imperatively called for.xx xx xx
“The framers of the Constitution were seriously concerned with
the grave problems of inequality of wealth, with its highly divisive
tendency, resulting in the generous scope accorded the police power and
eminent domain prerogatives of the state, even if the exercise thereof
would cover terrain of property right previously thought of as beyond
state control, to promote social justice and the general welfare.“As in the case of the more general provision on eminent domain,
the power to expropriate lands under Sec. 4 of Art. XIII of the
Constitution requires the payment of just compensation, the taking to be
for the public use, and to meet the exacting standard of due process
and equal protection guaranty of the Constitution.xx xx xx
“The power granted to Congress by the Constitution to ‘authorize,
upon payment of just compensation, the expropriation of lands to be
subdivided into small lots and conveyed at cost to individuals’ is
unlimited by any other provision of the Constitution. Just compensation
is in reality a part of the power granted rather than a limitation
thereto, just as just compensation is of the essence in any exercise of
the power of eminent domain, as, otherwise it would be plain
commandeering.“While the taking must be for public use as a matter of principle,
in the judicial proceeding, the Government need not present evidence of
such public use as a fact. The constitutional provision itself declares
the public objective, purpose or use of the expropriation contemplated,
hence, it should follow that as long as a congressional legislation
declares a the condemnation of particular land is for the specific
purpose stated in the Constitution, it is not for the judiciary to
inquire as to whether or not the taking of such land is for public use.
The Constitution itself which is supposed to be the supreme law on
private property rights declares it to be so, and leaves it to Congress,
not to the judiciary, to make the choice of the lands to be taken to
attain the objective the constituent assembly aimed to achieve. The
scope and the limit of the power of the judiciary in this regard is only
to determine the existence of enabling legislation, to see to it that
the facts are as contemplated in such enabling act and to provide the
vehicle for compliance with procedural due process in the implementation
of the congressional act.”
On the matter of taking for public use, Chief Justice Fernando summarily observes:
“The taking to be valid must be for public use. There was a time
when it was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is
not allowable. It is not so any more. As long as the purpose of the
taking is public, then the power of eminent domain comes into play. As
just noted, the Constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals. The
other is the transfer, through the exercise of this power, of utilities
and other private enterprise to the government. It is accurate to state
then that at present whatever may be beneficially employed for the
general welfare satisfies the requirement of public use” (The
Constitution of the Philippines, 2nd Ed., 1977, pp. 523-24).
III
This preferential right of petitioners and the power of eminent
domain have been further mandated, strengthened and expanded by recent
developments in law and jurisprudence.
It must be recalled that the 1973 Constitution embodies certain original
and innovative provisions on eminent domain. The new Constitution
provides thus:
“Private property shall not be taken for public use without just compensation” (Sec. 2, Art. IV).
“The Batasang Pambansa may authorize, upon payment of just
compensation, the expropriation of private lands to be subdivided into
small lots and conveyed at cost to deserving citizens” (Sec. 13, Art.
XIV).“The State shall promote social justice to ensure the dignity, welfare and security of all the people. Toward this end, the
State shall regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property
ownership and profits” (Sec. 6, Art. II; Italics supplied).“The State shall establish, maintain, and ensure adequate social
services in the field of education, health, housing, employment,
welfare, and social security to guarantee the enjoyment by the people of
a decent standard of living” (Sec. 7, Art. II).“The State shall formulate and implement an agrarian reform
program aimed at emancipating the tenant from the bondage of the soil
and achieving the goals enunciated in this Constitution” (Sec. 12, Art.
XIV).
The aforequoted Section 6 of Article II, which is a modified version of
the original provision of the 1935 Constitution, “emphasizes the
stewardship concept, under which private property is supposed to be held
by the individual only as a trustee for the people in general, who are
its real owners. As a mere steward, the individual must exercise his
rights to the property not for his own exclusive and selfish benefit but
for the good of the entire community or nation” (p. 70, Phil. Political
Law, Cruz, 1983 ed.).
In the case of Almeda vs. Court of Appeals, et al. (L-43800, 78 SCRA 194 [July 29, 1977]), this Court thus declared:
“It is to be noted that under the new Constitution, property
ownership is impressed with social function. Property use must not only
be for the benefit of the owner but of society as well. The State, in
the promotion of social justice, may ‘regulate the acquisition,
ownership, use, enjoyment and disposition of private property, and
equitably diffuse property — ownership and profits.’ One governmental
policy of recent date projects the emancipation of tenants from the
bondage of the soil and the transfer to them of the ownership of the
land they till.”“The Legislature may regulate ‘the acquisition, ownership, use,
enjoyment and disposition of private property,’ to the end that maximum
advantage can be derived from it by the people as a whole. Thus, it may
limit the size of private landholdings, impose higher taxes on
agricultural lands that are not being tilled, or provide for a wider
distribution of land among the landless. xx” (p. 70, Phil. Political
Law, Cruz, 1983 ed.).
It is obviously in the spirit of Sections 6 and 7 of Article II that
P.D. No. 1517 on urban land reform was enacted and the subsequent
implementing Proclamation No. 1967 was issued. Significantly also, the
latest amendment to the Constitution on urban land reform and social
housing program which has been proclaimed by the President as having
been approved in the recent plebiscite on January 17, 1984 all the more
emphasizes and strengthens the constitutional base for urban land reform
consistent with the provisions on social justice.
Even as We have consistently and explicitly pronounced that the power of
eminent domain is a basic and inherent power of government which does
not have to be spelled out by the Constitution, still our legislators
felt such urgent demands for redistribution of land in this country that
they had to incorporate into the 1935 and 1973 Constitutions a specific
provision on expropriation of land for resale. Section 13, Article IV
of the 1973 Constitution, specially authorizes the expropriation of
private lands for resale.
Thus, as earlier mentioned, P.D. No. 1517 entitled “Proclaiming Urban
Land Reform in the Philippines and Providing for the Implementing
Machinery Thereof” was enacted and became effective on June 11, 1978 and
Proclamation No. 1967 was issued on May 14, 1980 as an implementing
law. This decree, which is firmly based on Section 6, Article II of the
new Constitution, undoubtedly adopts and crystallizes the greater number
of people criterion when it speaks of tenants and residents in declared
urban land reform zones or areas without any mention of the land area
covered by such zones. The focus, therefore, is on people who would
stand to benefit and not on the size of the land involved.
It should now be clarified that Section 22 of the aforecited decree declares thus:
“Sec. 22. Repealing Clause. All laws, decrees, executive
orders, rules and regulations inconsistent herewith are hereby repealed,
amended or modified accordingly.”
The decree has, therefore, superseded R.A. Nos. 1162, 2342 and 3516.
The issue of pre-emptive or preferential rights still remains for Our resolution within the purview of the said decree.
The pertinent provisions of P.D. No. 1517 are as follows:
“Sec. 4. Proclamation of Urban Land Reform Zones. The
President shall proclaim specific parcels of urban and urbanizable lands
as Urban Land Reform Zones, otherwise known as Urban Zones for purposes
of this Decree, which may include Bagong Lipunan Sites, as defined in
P.D. 1396″ (par. 1 of the section).xx xx xx
“Sec. 6. Land Tenancy in Urban Land Reform Areas. Within the
Urban Zones legitimate tenants who have resided on the land for ten
years or more who have built their homes on the land and residents who
have legally occupied the lands by contract, continuously for the last
ten years shall not be dispossessed of the land and shall be allowed the
right of first refusal to purchase the same within a reasonable time
and at reasonable prices, under terms and conditions to be
determined by the Urban Zone Expropriation and Land Management
Committee created by Section 8 of the Decree.xx xx xx
“Sec. 9. Compulsory Declaration of Sale and Preemptive
Rights. Upon the proclamation by the President of an area as an Urban
Land Reform Zone, all landowners, tenants and residents thereupon are
required to declare to the Ministry any proposal to sell, lease or encumber lands and improvements thereon, including the proposed price, rent or value of encumbrances and secure approval of said proposed transactions.“The Ministry shall have the preemptive right to acquire the
above-mentioned lands and improvements thereon which shall include, but
shall not be limited to lands occupied by tenants as provided for in
Section 6 of this Decree” (Italics supplied).
Pursuant to the above decree and for purposes of making specific the
applicability of the same and other subsequent laws on the matter, the President issued Proclamation No. 1967 dated May 14, 1980 declaring Metropolitan Manila Area as Urban Land Reform Zone. Thus, on page 2, No. 14 of said proclamation, Mataas na Lupa,
the land in controversy, (an area bounded on the northwest by Quirino
Avenue, South Superhighway on the east, San Andres Street on the south,
and on the west, by Anak Bayan Street) was declared as an area for priority development and urban land reform zone.
The aforequoted provisions of P.D. 1517 and the declaration in the
aforesaid proclamation are clear and leave no room for any
interpretation. Evidently, petitioners’ case falls squarely within the
law. Under Section 6 of the decree, the 110 tenant-families have been
vested with the right of first refusal to purchase the land in question
within a reasonable time and reasonable prices, subject to Ministry of
Human Settlements rules and regulations.
WHEREFORE, THE ORDER DATED OCTOBER 30, 1969 OF THE THEN MANILA COURT OF
FIRST INSTANCE, BRANCH IV, IS HEREBY SET ASIDE AND THE MINISTRY OF HUMAN
SETTLEMENTS IS HEREBY DIRECTED TO FACILITATE AND ADMINISTER THE
IMPLEMENTATION OF THE RIGHTS OF HEREIN PETITIONERS. COSTS AGAINST
RESPONDENTS.
SO ORDERED.
Concepcion, Jr., Guerrero, and Escolin, JJ., concur.
Aquino, J., in the result.
Abad Santos, J., reserve his vote.