Eminent domain continued..
2 stages of expropriation proceeding
- Blah blah blah
- Allow defendants to present evidence as to the actual value of the property (no taking without hearing)
-court appoints commissioners to receive the evidence and RECOMMEND to the court how much the just compensation is
Court is not bound by such recommendation for they have the final decision as to what amount to give
-payment should be in form of:
1. cash
2. bonds in the bank (usually given in CARP cases)
3. tax credits
Which period should a person is paid for just compensation?
-prompt payment is required
-upon finality of the judgment in the expropriation proceeding, the government must pay within 5 years otherwise the person may recover his property
Can a person recover a property expropriated if no payment has been made yet?
(note: some people would not accept payment so that they would be able to recover the expropriated property)
Gen Rule: NO!
-only if within 5 years after finality of judgment the government would not be able to pay
Can a person recover the property after full payment of the government, however the property is not used for the purpose it was intended?
-It depends if the expropriation has no condition.
Without condition/ absolute= can’t recover the property
With EXPRESS condition (if not used for intended purpose owner can repurchase) = can recover
Can the owner recover interest and taxes that the he paid for the property expropriated?
-Yes if the owner makes a claim otherwise it is deemed waived.
12% per anum for interest
Is the collection of parking fees in the mall legal?
-Yes, because to rule otherwise would be tantamount to taking without just compensation.
Due process= hearing before taking
Equal protection= must be no discrimination/ must apply to all persons subjected to same circumstances
Non impairment clause= eminent domain prevails over non impairment clause
Taxing power of the state
-power of the state to raise revenues for support of the government
-no taxes/revenue= no government= no people
-should not be used to destroy the source of revenue unless used as police power
-don’t kill the duck that lays the golden egg
Legal basis:
-to contribute for the support of the government because if given the choice people will not give freely
-necessity to have a government
Who exercises taxing power?
- Congress (inherent)
- President (tariff power)
-need express grant of congress
-must be within the framework of economic development
*universal charge is a police power not taxing power
3. LGU- including the barangay
-does not need express grant from congress because the constitution itself provides for such power
-SEC 5 ART 10 of the constitution is self executing
- can tax national government instrumentalities (branch of national agencies) found in their territory to be autonomous and to gain revenue
-in case of doubt construe it as against the taxing power of LGU and in favor of the national government
-those properties acquired in the proprietary capacity/ private property can be subject to tax but those acquired in sovereign capacity cannot be subjected to tax
*private entities maybe tasked o collect taxes but not impose taxes
*taxing power should not be exorbitant/ confiscatory
*it should not be used to destroy the property of a person except if used as a tool in POLICE POWER to protect public welfare
Double Taxation
- constitution is silent
-a person or property is taxed twice or more by the same taxing authority, same purpose, same period, same subject (SAPP)
-it only becomes unconstitutional if it violates the equal protection clause
Characteristics: uniform, equitable and progressive
-uniform: situated under the same circumstances
-equitable: according to the capacity to pay tax
-progressive: as income increases the tax rate also increases
In case of doubt as to if a person is subject to tax construe it as against the taxpayer and in favor of the state.
*Tax exemption by congress: needs majority votes of members of congress
*Tax treaty by president: 2/3 votes of members of senate
TAX EXEMPTION provided by CONSTITUTION
- Religious and charitable institutions (Sec 22)
-limited to property tax
-must be actually, directly and exclusively used for religious purposes
-even if the land is not owned by the church it is still exempt to property tax (but the rent of the church is subject to income tax)
-donations during offertory are subject to tax
- Educational institutions which are non stock and non profit
-property and revenue is exempt from tax
*proprietary educational institutional unless otherwise provided by law they enjoy the same exemption
Ex: Cebu has a law providing that such proprietary institutions be taxed so they should pay.
If there is no law then they are exempt.
Due Process of law= must not be confiscatory
Equal protection of clause= uniform, equitable, progressive
Non impairment clause= taxes prevails over contracts or non impairment clause
Tax exemption can be revoked if the grant is gratuitous or out of generosity.
Ex: personal exemption in income tax can be revoked
Tax exemption cannot be revoked if the grant is onerous or for valuable consideration.
Ex: companies in export processing zone are exempt from tax for the 1st 5 yrs, such exemption cannot be revoked
Due process of law
Civil rights
- enjoyed by both citizens and foreigners
Political rights
- enjoyed by citizens only
Socio- economic rights
- to improve a person’s way of life
- enjoyed by both citizen and foreigner (subject to limitations set by law)
Rights of the accused
= to sum it all up, ones right to life, liberty and property
= refers to both natural (life, liberty and property
and juridical persons (right to property only)
Aspects of due process
1. substantive
-refers to the law itself
-law must be fair, just an reasonable
-check the requisites in exercising a valid police power, eminent domain and taxation
-the law must be clear (not vague or over breadth)
-laws must be published (not dispensable)
2 Doctrines
-used to challenge a law by its face (facial challenge)
-the rights of the litigants need not be applied to question the validity of the law
-applicable only to laws regulating freedom of expression
- Void for Vagueness
-law that needs details
-not comprehensible to an ordinary person
-cannot be applied to penal laws
b. Over breadth
- covers everything, applies to freedom of speech
-too encompassing, no parameters
2. procedural
- hear me first before you strike me
- one must also know the judge
- a judge must inhibit if a party is his 3rd degree relative
- if the judge is the previous lawyer of a party he must also inhibit
Can be:
a. Judicial
*civil and criminal cases
-court must be competent and impartial
(rules of court on inhibition)
-court must have jurisdiction over the person of the defendant
Court is obliged to inform the defendant so that he can present his evidence
Defendant is informed through summon which is given:
1. personal service- handed personally to the defendant
court acquires jurisdiction as soon as the defendant receives the summon
the defendant has 15 days to answer the summon
2. substituted service of summon- serves the summon to the representative which must be of age and of reasonable mind
3. publication of the summons- in a newspaper of general circulation
-follows the principle that accessory always follow the principal,
- Example: if land is in Cebu, the owner is also in Cebu
-has 60 to 90 days to file answer to the summon
In personal action- only the defendant is obliged to comply
-can only be done using personal service or service of summon
In real action- involves real properties like lands
-can be served using personal service, substituted and publication of the summons
Can a personal an action become real?
In quasi in rem action
Real property is attached so that the court will acquire jurisdiction over the property and be able to use the publication of summons
-defendant must be given the chance of hearing
If defendant will not answer within the given period of time the plaintiff can move for the declaration of the defendant in default
-the defendant has no more personality/legal standing, he cannot participate in the proceeding
-defendant can ask the court to lift the declaration in default
-if defendant is declared in default, the court can start receiving evidence of the plaintiff
-hearing can be a trial type of hearing or a pleading
-plaintiff presents evidence/witnesses first and the defendant will conduct a cross examination,
if the defendant will postpone cross examination and the witness dies, the testimony of the witness can still be used because it is the defendants fault why they are not able to conduct the cross examination
-if the case is nuisance per se then the hearing can be dispensed with
Ex: if a mad dog attacks you, you can stop/kill it then and there
-judgment must only be given after a hearing
b. Administrative
*administrative and disciplinary actions against students
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