THE CENTRAL (POBLACION) BARRIO, CITY OF DAVAO, RE­PRESENTED BY ITS BARRIO CAPTAIN, HONORIO B. GARCIA, PETITIONER-APPELLANT, VS. CITY TREASURER, MAXIMINO ASSISTIDO, THE HON. CITY…

On August 29, 1962, the City of Davao
passed Resolu­tion No. 732 declaring as officially and legally existing,
pursuant to Republic Act 2370, the several barrios of the city.  Among these were barrios Agdao,
Bucana and Pobla­cion.

Subsequently, barrio Poblacion, also
called barrio Central, claiming that it was created under Section 27 of the
Code of Mindanao and Sulu, asked from Davao City for its alleged 10% share in taxes collected on
real property located within the barrio, as provided
in Section 23 of Republic Act 3590.  Davao City’s Treasurer, however, re­fused to release the
share for said barrio, on the ground that the amount pertaining to said barrio,
in relation to those of barrios Agdao and Bucana,
cannot be determined, because the respective boundaries of said barrios were
not yet fixed as required by law.

Stated otherwise, Davao City’s stand
was that the amount covering the 10% share of these three barrios com­bined has
been allocated, but it cannot be determined how much thereof pertains to each
of said barrios, because their boundaries not having been fixed as regards each
other, it could not be determined how
much of the taxes were collected from real properties located in each of
the three aforesaid barrios, taken separately.

On September 3, 1964,
however, the Secretary of Fi­nance, acting on the request of the same barrio
Central or Poblacion for release of its 10% share in
real proper­ty taxes, stated that barrios Agdao and Bucana were crea­ted only in 1963 in violation of Republic
Act 2370 that prohibited creation of barrios out of chartered cities, so that
said barrios are not recognized under Republic Act 3590 providing for the abovementioned share of 10% in realty
taxes. Accordingly, he ruled that the allocated 10% share of taxes for barrios Agdao, Bucana and Central should
accrue and be given to Barrio Central only, after all conditions therefor are met.

On December 2, 1964, barrio
Central filed in the Court of First Instance of Davao,
thru its barrio captain, a petition for declaratory relief with mandamus,
against Davao City’s Treasurer, Council, Auditor
and Mayor, alleg­ing the facts mentioned earlier in this decision.  Among others, the petition questioned the
legality of Resolution No. 732 of
Davao City’s Council creating barrios Agdao and Bucana; the actuations
of the Auditor in passing in audit an alleged expenditure of P50,000 out of the 10% fund; and the failure of the council to
delimit the territorial boundaries of the three barrios concerned.  And it prayed that the court order payment to
petitioner by respondents of its 10% share in realty taxes as provided by
Republic Act 3590, declare illegal the creation of barrios Agdao and Bucana, and prohibit
the Auditor from approving expenditures out of its 10% share.

Respondents moved to dismiss
but their motion was de­nied.  On
January 29, 1965, respondents
answered, stating among other averments, that barrio Central is inexistent or
not a part of Davao City; that there are other
barrios claiming the 10% share
in real property taxes correspond­ing to the territory claimed by petitioner; that Republic Act 3590 providing for the 10% share applies
only to bar­rios in municipalities and municipal districts, not to those in cities; and that the alleged
expenditure in ques­tion was legal and not
taken from the 10% share allocated for barrios.

After issues were thus
joined the case was set for trial.  On August 2, 1965,
however, the Court, upon motion of the
Fiscal, dismissed the case without prejudice, on the ground that the
issues were rendered academic by the passage of Republic Act 4354, on June 19, 1965, amending the Charter
of Davao City. 
Petitioner, having failed in its motion for reconsideration, took the
present appeal.

At issue is the legal
question or the propriety or
correctness of the dismissal order.

Republic Act 4354, in Section 2, enumerated the bar­rios
comprising the City of Davao.  Petitioner barrio Cenral
or Poblacion was not mentioned therein.  Accordingly, there prima facie
arises the conclusion that said law abolished barrio Central as part of Davao City.  Expressio unius est
exclusio alterius.  The court a quo had sufficient and tenable reason to dismiss the suit in the face of said law, for
being academic.  A non-existent barrio,
or a barrio not situated in Davao
City, cannot present a claim
against it or its officials for a share in taxes un­der Republic Act 3570.  Said
law must be presumed, until squarely challenged and declared by the courts to
be other­wise, as constitutional, especially because the power to create or
abolish municipal corporations resides in Con­gress (Mendenilla
v. Onandia, L-17803, June 30, 1962).  Petitioner may of course assail the
constitutionality of said new law. The present suit, however, is not
for that purpose.  Nothing in the pleadings questions said law’s validity, for the
reason that said law came after the pleadings
were joined.  Neither was there amendment to said pleadings.  The court a quo therefore, rightly dismissed the present suit, without
prejudice, that is, not
thereby precluding the filing of a suit to assail the validity of
Republic Act 4354.

WHEREFORE, the appealed order of dismissal is hereby
affirmed.  No costs.

SO ORDERED.

Jose B.L. Reyes, (Acting C.J.), Dizon,
Makalintal, Zaldivar,
Sanchez, Ruiz Castro, and Angeles, JJ., concur.