THE BACHRACH MOTOR CO., INC., PLAINTIFF AND APPELLANT, VS. THE PROVINCE OF NUEVA ECIJA, DEFENDANT AND APPELLEE.

This is an appeal from a judgment of the
Court of First Instance of Manila sustaining a demurrer of the
defendant and dismissing plaintiff’s petition without giving the
plaintiff an opportunity to amend.

The plaintiff’s petition alleges in substance that it operates a
transportation business by means of auto-trucks in the Province of
Nueva Ecija; that in the year 1930 the defendant constructed a bridge
known as Cabu Bridge which construction was financed not from any loan
or bond issue but out of the current revenues of the defendant; that
the provincial board of the defendant, by resolution No. 5160 dated
September 14, 1931,. declared the said bridge to be a toll bridge and
constructed toll gates thereon and collected toll from all vehicles
passing over the same, charging forty centavos for each auto-truck;
that on January 1, 1932, the total cost of construction of said Cabu
Bridge including its operation and maintenance charges were completely
covered and paid from the collection of said toll; that on March 7,
1932, the said provincial board passed resolution No. 318 redeclaring
the said Cabu Bridge to be a toll bridge and increasing tha rate of
tolls collected thereon to the rate of sixty-five centavos per truck;
that on December 2, 1932, the Legislature passed Act No.’ 3965 which
amended sections 2131 and 2132 of the Revised Administrative Code to
read as follows:

“SEC. 2131. Provincial toll roads, bridges and ferries.—
When the provincial board of any province shall deem such course to be
necessary for the proper maintenance of any provincial road within the
province, it may designate such road, or part thereof, or any bridge,
or ferry built, or to be built or maintained as part thereof, as a toll
road, bridge or ferry, and may fix the toll rates to be paid for the
use thereof upon authorization by the Governor-General and the
recommendation of the Secretary of Commerce and Communications in the
case of roads, and in the case of bridges or ferries upon authorization
and approval by the Secretary of Commerce and Communications: Provided, That the rates fixed shall not be subject to revision by the Public Service Commission.

“SEC. 2132. Collection and application of tolls.—In
the exercise of the authority hereinabove conferred, the provincial
board may erect toll gates or equip ferries and may employ the persons
necessary to operate the same. The proceeds derived from such sources
shall be applied only to the payment of interest and sinking fund
charges in case the toll road or bridge has been financed from loans or
bond issues, and to the repair and maintenance of the road, bridge or
ferry for which the collections are made: Provided, That the
collection of tolls on roads and bridges shall be discontinued when
adequate funds have been collected to repay or retire the indebtedness.”

Since January 1, 1933, the auto-trucks of the plaintiff passing
over said Cabu Bridge were obliged to pay said tolls in violation of
the provisions of said Act No. 3965; that the plaintiff has demanded
reimbursement of said tolls illegally collected but the defendant has
refused to make said reimbursement and continues to demand said illegal
tolls and will continue so to do unless restrained by injunction. The
plaintiff prays for a temporary injunction and for a judgment declaring
said resolution 313 series of 1932 of the defendant to be null and
void; for judgment against the defendant for all tolls illegally
collected as aforesaid; and that upon final hearing the injunction be
made permanent.

The defendant filed a demurrer alleging that the allegations of the
petition do not state a cause of action. On September 22,1933, the
court a quo sustained said demurrer on the ground that said
resolution No. 318 series of 1932 of the provincial board of Nueva
Ecija is valid because section 2131 of the Administrative Code as
amended by Act No. 3965 “expressly permits the defendant to designate
any bridge as a toll bridge for the proper maintenance of any
provincial road within the province.” No reason is given for dismissing
the complaint without giving the petitioner the opportunity to amend.

The appellant submits the following assignments of error:

“1. The trial court erred in holding that the complaint does not state facts sufficient to constitute a cause of action.

“2. The lower court erred in dismissing the complaint without giving the plaintiff an opportunity to amend it.”

We think the second error assigned is well taken and should be sustained. (See section
101 of the Code of Civil Procedure.) The argument of the appellee that
it is impossible for the plaintiff so to amend its petition as to state
a .cause of action and therefore the opportunity to amend would only
result in a useless delay, assumes too much. The basis of the
plaintiff’s cause ofaction is the nullity of the said resolution No.
318 of the provincial board of Nueva Ecija. Even if it should be held
that said resolution does not contravene Act No. 3965—upon which
question we express no opinion on this appeal—the petitioner may have
other grounds to establish the nullity of said resolution which it
should be permitted to set up by amendment of its petition.
Undoubtedly, where it is manifest that a petitioner has stated his
whole case in his petition and no amendment thereof could render it
proof against a demurrer, the court may dismiss the petition when it
sustains a demurrer. If this were not so, the right of amendment might
be abused and the resort to fictitious and inconsequential amendments
calling for renewed and repeated demurrers would delay the case and
convert the proceeding into a travesty. But in the case before us the
petition was dismissed on the first demurrer and there is nothing in
the decision of the court below nor in the record which indicates any
ground for denying the petitioner the opportunity to file an amended
petition.

The judgment is reversed with costs against the appellee.

Each province is a political body corporate which, among other
powers granted by section 2067 of the Administrative Code, may sue and
be sued. Hence it may be held for the costs in a civil action. (Cf.
Palanca vs. City of Manila and Trinidad, 41 Phil., 125, 133.)

Malcolm, Villa-Real, Imperial, and Goddard, JJ., concur.