RAFAEL PEREZ SAMANILLO, PLAINTIFF AND APPELLANT, VS. THE CITY OF MANILA, DEFENDANT AND APPELLEE.

This is an action to recover from the City
of Manila the amount of P291.84 paid under protest as special tax, on
the alleged ground that ordinances Nos. 1958 and 2339, by virtue of
which the plaintiff had been required to pay said tax, as one of the
owners benefited by the widening of Dasmarinas Street from Juan Luna
Street to T. Pinpin Street, of the District of Binondo, Manila, are
null and void.

The facts are undisputed. The parties have agreed in a
stipulation, which was later amplified, that the following facts are
true:

The plaintiff is the registered owner of lots Nos. 2, 3 and 5 of
block No. 1884 of the District of San Nicolas, City of Manila, on which
the property bearing Nos. 995-999 oh Muelle de la Industria, which
intersects Dasmarinas Street, is situated; and is also the registered
owner of lots Nos. 3-B, 11 and 12 of block No. 2012 of the District of
Binondo, City of Manila, on which the property bearing Nos. 116-122 on
Juan Luna Street is situated.

The draft of ordinance No. 1958 of the municipal board of the City
of Manila, was published in Spanish and in English in the issues of the
Official Gazette corresponding to May 13, and June 3, 5 and 7, 1930.

Said proposed ordinance No. 1958 was discussed and approved by the
municipal board of the City of Manila and sent by the secretary of the
municipal board to the mayor of the City of Manila, for his approval,
on June 7, 1930.

On the 26th of said month, the mayor sent to the municipal board an
endorsement, inviting attention to the attached letter of L. M. Heras,
president of the “Asociacion de Propietarios de Manila”, enclosing the
protest of several members thereof who own properties representing more
than one-half of the assessed value of the properties affected by the
proposed ordinance, and recommending that the public hearing requested
by them be held so as to give them an opportunity to present their
objections.

On the 30th of said month, the secretary of the municipal board
sent a circular letter to each and every one of the owners of the
properties affected by the widening of Dasmarinas Street, including the
plaintiff Rafael Perez, enclosing a copy of the proposed ordinance
relative to the widening of said street, and informing them that the
municipal board would hold a public hearing oh the matter on Wednesday,
July 9, 1930, at 3 o’clock p. m., at its session hall, City Hall.

On said date, time and place, the public hearing referred to was
held and was attended by several attorneys representing several
companies affected by the proposed ordinance.

On the same day, July 9, 1930, the protests presented were endorsed
to the Committee on Engineering and Public Works of the municipal board
of the City of Manila for further comment and recommendation, and on
October 7, 1930, said committee submitted its report, recommending the
return of the proposed ordinance to the mayor for his approval.

On the same day, October 7, 1930, the municipal board approved the
report of the committee on engineering and forwarded the ordinance to
the mayor of the City of Manila, who finally signed it on October 16,
1930.

For the purpose of carrying out the improvements stated in said
ordinance No. 1958, the municipal board of the City of Manila, on
December 12, 1930, passed resolution No. 456, authorizing the
expropriation of all the properties necessary for the widening of
Dasmarinas Street, which included the properties situated between
Muelle de Binondo and Juan Luna Street. The expropriation of said
properties and the construction of said improvements were accomplished
in due time, with the modification stated in the following paragraphs.

On October 29, 1934, the municipal board passed resolution No. 361,
which was approved in due time by the mayor, amending said resolution
No. 456, so as to exclude from the latter resolution the properties
situated on Dasmarinas Street, between Muelle de Binondo and Juan Luna
Street, that is, abandoning the expropriation of said properties.

The draft of ordinance No. 2339 was published in Spanish and in
English in the issue of the Official Gazette, corresponding to February
2, 1935.

Said draft of ordinance No. 2339 was approved by the municipal
board on February 14, 1935, and by the mayor on March 12th of the same
year.

Upon approval, the aforesaid ordinance No. 2339 was published in
Spanish and in English in the issue of the Official Gazette,
corresponding to March 21, 1935.

The draft of said ordinance No. 2339 has not been sent by ordinary
mail, or otherwise, to each of the owners affected, they not having so
demanded.

The works for the widening of Dasmarinas Street, referred to in
ordinances Nos. 1958 and 2339, were begun on December 27, 1930, and
were completed on or before June 3, 1934, excluding the portion thereof
between Juan Luna Street and Muelle de Binondo.

By virtue of ordinances Nos. 1958 and 2339, the assessor of the
City of Manila fixed the special assessment tax on the properties of
the plaintiff at the total amount of P1,459.20, payable in five annual
installments, and in view of the demands of said assessor, and in order
not to incur penalties and fines, the plaintiff was compelled to pay
under protest one-fifth of said special assessment tax, that is, the
sum of ^291.84. He later brought this action wherein judgment was
rendered dismissing his complaint. He excepted thereto and, after
filing a motion for new trial, which was denied with his exception, he
brought this case before this court, by bill of exceptions duly
approved.

The appellant assigns four alleged errors as committed by the court a quo, the first of which, also assigned by the two amici curiæ, Gibbs in his own behalf, and Feria & La O, representing the China Banking Corporation, reads as follows:

‘The court erred in holding that ordinance No. 1958 of the City of Manila is valid:

“(a) Because the draft of said ordinance
has not been published in two daily newspapers of the city, but only in
the Official Gazette.

“(b) Because the draft of said ordinance has not been published (even in the Official Gazette) during the period of one week.

“(c) Because the draft of said ordinance was approved without sending copies thereof to the owners affected.

“(d)
Because the draft of said ordinance was approved without waiting for
the period of three (3) days from the date of the last publication
thereof.”

According to the provision of section 2509 of the Administrative
Code, the draft of said ordinance No. 1958 had to be published for the
period of one week in two daily newspapers published in the city, one
in the English and one in the Spanish language, before its adoption.
According to the facts stipulated, it was published in the Official
Gazette, in English and in Spanish, on May 13, and June 3, 5 and 7,
1930. Now then: it should be taken into consideration that from the
promulgation of Act No. 2930, all official notices or advertisements,
except those of a judicial character, must be published in the Official
Gazette. The municipal board, in compliance with this law, caused the
publication of the proposed ordinance No. 1958 in the Official Gazette.
If said ordinance was not published every day for a week, it was
because the Official Gazette is published only three times a week.
Which is the law in force relative to the publication of a proposed
ordinance, as No. 1958? This court is of the opinion that it is Act No.
2930, which, containing provisions incompatible with those of section
2509 of the Administrative Code, has implicitly repealed those of said
section 2509 as to the provisions in question. It is argued that said
Act No. 2930 has repealed section 2509 of the Administrative Code only
as to the medium of publication but not as to the period of
publication. We fail to see the consistency of this argument. When Act
No. 2930 was approved, the Official Gazette was published only once a
week. The Legislature knew this very well and yet it provided that the
draft of the ordinance in question, as all official notices, be
published in the Official Gazette, without providing that the Official
Gazette be published with the necessary frequency as the laws may
require.

On the other hand, the purpose of the publication being evidently
to inform all the interested persons of the ordinance proposed to be
enacted, such purpose has been attained and the law has been
substantially complied with by the publication of said proposed
ordinance for three days a week, that is, on June 3, 5 and 7,1930, not
to mention the publication thereof on May 13th.

As third and fourth grounds of the first assignment of alleged
error, it is stated in the appellant’s brief that “the draft of said
ordinance was approved without sending copies thereof to the owners
affected” and “without waiting for the period of three (3) days from
the date of the last publication thereof.” All of these are not based
on the stipulated facts because after the filing of the brief for the
appellant and that for the City of Manila, the parties stipulated that
after the last publication, said proposed ordinance was sent to the
mayor for his approval; that the mayor remanded it to the board so that
the latter might hold a public hearing; that notice was sent to all the
owners affected to the effect that the hearing would be held, which
hearing was in fact held and attended by several attorneys representing
various companies; that the protests filed were later endorsed to the
Committee on Engineering and Public Works; that said committee
afterwards sent the ordinance to the municipal board and the board
approved the committee’s recommendation to the effect that the
ordinance be forwarded to the mayor for approval, and that the mayor
finally approved it on October 16,1930. In view of all these facts, the
two alleged grounds of the first error, attributed to the court a quo by the appellant fall flat for being unfounded.

However, the appellant contends in his additional brief that the
fact that the mayor returned the proposed ordinance in order that a
public hearing might be held, was equivalent to a veto and, such being
the case, the municipal board, according to the provision of section
2443 of the Administrative Code, had to reenact the ordinance before
the mayor could approve the same, and alleges that in this case, the
only thing done by the municipal board was to approve the report of the
committee on engineering. In the first place, the contention that the
ordinance was vetoed by the mayor is untenable. According to the
provision of section 2443 in connection with’ section 2510 of the
Administrative Code, “* * * within ten days after the receipt of the
ordinance, resolution or motion, the mayor shall return it with his
approval or veto. If he does not return it within that time, it shall
be deemed to be approved” (Underscoring ours.) Now then: according to
the stipulated facts, the draft of the ordinance in question was sent
by the secretary of the municipal board to the mayor, for approval, on
June 7, 1930, and on the 26th of said month, that is, 19 days later,
the mayor sent an endorsement to the municipal board so that it might
hold a public hearing. Therefore, more than 10 days had already
elapsed, and under section 2443 of the Administrative Code, the
ordinance should be deemed to be implicitly approved by the mayor. But
furthermore, the ordinance was expressly approved by the mayor. The
fact that the board approved the report of the committee on engineering
recommending the return of the ordinance to the mayor, for approval,
cannot be logically understood otherwise than that the board approved
the ordinance, this being the reason why it was sent to the mayor so
that he would, in turn, approve it, as he in fact approved it on
October 16th.

With respect to the approval of the municipal board, the appellant
now argues that it does not appear that the ordinance has been approved
by an affirmative vote of seven of the members of the board. It should
be taken into account, however, that, as already stated, this case does
not refer to a vetoed ordinance, which is the premise upon which the
appellant argues on this point.

The amici curiæ, Gibbs, argues that th6 ordinance in
question is null and void because the draft thereof, which was
published, is different from the one approved, inasmuch as according to
the draft, 150 per cent of the cost of the improvement of widening
Dasmarinas Street would be levied in the following proportion: 80 per
cent on the owners of the real properties included in the first zone
and 70 per cent on the owners of the real properties included in the
second zone; while the ordinance approved provides that 90 per cent of
the cost of the improvement shall be collected as follows: 60 per cent
from the owners of the first zone and 25 per cent from those of the
second zone. To refute this contention, suffice it to state: (1) that
the draft of an ordinance is not a final ordinance, and (2) that in the
case under consideration, the ordinance approved, far from prejudicing
the owners affected thereby, notably benefits them. No harm is done
them by the decrease in the percentage of the special assessment.

The second alleged error reads as follows:

“The court erred in declaring that ordinance No. 2339 of the City of Manila, is valid:

“(a) For the same reasons that ordinance No. 1958 is null and void.

“(b) For the additional reason that said ordinance was approved after the improvements of Dasmarinas Street had been made.”

It is true that said ordinance was approved after the improvements
of Dasmarinas Street had been made; in other words, that said ordinance
was approved after the widening of Dasmarinas Street from T. Pinpin
Street to Juan Luna Street had been finished. The works for the
widening of Dasmarinas Street up to Juan Luna Street were finished on
June 3, 1934, while said ordinance No. 2339 was approved on March 12,
1935. The appellant argues that the law requires the ordinance to be
approved before the works or improvements are made. In so arguing, he
has lost sight of the fact that ordinance No. 2339 was approved
precisely for the purpose of not carrying out the project of street
widening from Juan Luna Street to Muelle de Binondo. When the work of
widening the street up to Juan Luna Street had been finished, the city
deemed it incompatible with its best interests to proceed with the
expropriation of the properties on Dasmarinas Street between Juan Luna
Street and Muelle de Binondo, and therefore desisted from proceeding
with the widening of said street from Juan Luna Street to Muelle de
Binondo, by approving ordinance No. 2339. Said ordinance could not be
approved before the improvement was begun simply because the original
plan, according to ordinance No. 1958, was to widen the street up to
Muelle de Binondo, and when the city approved ordinance No. 2339, it no
longer had any work to do.

Inasmuch as ordinance No. 2339 is simply an amendment to ordinance
No. 1958, it having been intended thereby to desist from carrying, out
part of the work of street widening provided for in said ordinance No.
1958, the same reasons for making so many publications, serving notices
and holding public hearing, as in the case of the amended ordinance,
did not exist.

For having desisted from the original plan, the expenses for the
widening of Dasmarinas Street up to Juan Luna Street have turned out to
be much less than what it would have cost if the work had been carried
out up to Muelle de Binondo. The estimated cost of the improvement,
under the original plan, was P349,291, while the actual cost thereof,
reduced by the amendment of said plan, was only P290,379.14. The
plaintiff was benefited thereby because the special assessment tax
which he had to pay was similarly reduced in proportion.

With the foregoing, this court deems it unnecessary to pass upon
the third and fourth alleged errors assigned by the appellant, because
they are mere conclusions of his contentions in the first and second
assignments, already discussed.

There being none of the errors attributed to the court a quo, the appealed judgment is affirmed, without any pronouncement as to costs. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.