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DISSENTING OPINION

ROMERO, J.:

Section 92 of BP 881 constitutes taking of private property without just compensation. The power of eminent domain is a power inherent in sovereignty and requires no constitutional provision to give it force. It is the rightful authority which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit as the public safety, necessity, convenience or welfare demand.¹ The right to appropriate private property to public use, however, lies dormant in the state until legislative action is had, pointing out the occasions, the modes, the conditions and agencies for its appropriation.²cräläwvirtualibräry

Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution 2983-A, the pertinent provision of which reads as follows:

Sec. 92. Comelec Time The Comelec shall procure radio and television time to be known as Comelec Time which shall be allocated equally and impartially among the candidates within the area of comverage of all radio and television stations. For this purpose, the franchise of all radio and television stations are hereby amended so as to provide radio and television time free of charge during the period of election campaign.

Section 92 of BP 881, insofar as it requires radio and television time free of charge is a flagrant violation of the constitutional mandate that private property shall not be taken for public use without just compensation. While it is inherent in the State, the sovereign right to appropriate property has never been understood to include taking property for public purposes without the duty and responsibility of ordering compensation to the individual whose property has been sacrificed for the good of the community. Hence, Section 9 Article III of the 1987 Constitution which reads No private property shall be taken for public use without just compensation, gives us two limitations on the power of eminent domain: (1) the purpose of taking must be for public use and (2) just compensation must be given to the owner of the private property.

There is, of course, no question that the taking of the property in the case at bar is for public use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no justification for the taking without payment of just compensation. While Resolution No. 2983-A has provided that just compensation shall be paid for the 30 minutes of prime time granted by the television stations to respondent Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881 which mandates that radio and television time be provided to respondent Comelec free of charge. Since the legislative intent is the controlling element in determining the administrative powers, rights, privileges and immunities granted,³ respondent Comelec may, at any time, despite the resolution passed, compel television and radio stations to provide it with airtime free of charge.

Apparently, Sec 92 of BP 881 justifies such taking under the guise of police power regulation which cannot be validly done. Police power must be distinguished from the power of eminent domain. In the exercise of police power, there is a restriction of property interest to promote public welfare or interest which involves no compensable taking. When the power of eminent domain, however, is exercised, property interest is appropriated and applied to some public purpose, necessitating compensation therefor. Traditional distinctions between police power and the power of eminent domain precluded application of both powers at the same time on the same subject.⁴ Hence, in the case of City of Baguio v. NAWASA,⁵ the Court held that a law requiring the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of equivalent value involved the exercise of eminent domain because the property involved was wholesome and intended for public use. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious purpose and, consequently, is not compensable. Police power proceeds from the principle that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of their property, nor injurious to the rights of the community. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.⁶cräläwvirtualibräry

In the case of Small Landowners of the Philippines Inc v. Secretary of Agrarian Reform, we found occasion to note that recent trends show a mingling of the police power and the power of eminent domain, with the latter being used as an implement of the former like the power of taxation. Citing the cases of Berman v. Parker⁷ and Penn Central Transportation co. v. New York City⁸ where owners of the Grand Central Terminal who were not allowed to construct a multi-story building to preserve a historic landmark were allowed certain compensatory rights to mitigate the loss caused by the regulation, this Court in Small Landowners of the Philippines, Inc. case held that measures prescribing retention limits for landowners under the Agrarian Reform Law involved the exercise of police power for the regulation of private property in accordance with the constitution. And, where to carry out the regulation, it became necessary to deprive owners of whatever lands they may own in excess of the maximum area allowed, the Court held that there was definitely a taking under the power of eminent domain for which payment of just compensation was imperative.

The petition before us is no different from the above-cited case. Insofar as Sec 92 of BP 881 read in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and television stations during the campaign period to respondent Comelec, there is an exercise of police power for the regulation of property in accordance with the Constitution. To the extent however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,⁹ Justice Holmes laid down the limits of police power in this wise, The general rule is that while property may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a taking.

While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking and it is usually in cases where title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated or amounts to a compensable taking. A regulation which deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation which unreasonably restricts the right to use business property for business purposes, amounts to taking of private property and the owner may recover therefor.¹⁰ It is also settled jurisprudence that acquisition of right of way easement falls within the purview of eminent domain.¹¹cräläwvirtualibräry

While there is no taking or appropriation of title to, and possession of the expropriated property in the case at bar, there is compensable taking inasmuch as there is a loss of the earnings for the airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to paraphrase Philippine Press Institute v. Comelec,¹² could hardly be considered de minimis if we are to take into account the monetary value of the compulsory donation measured by the current advertising rates of the radio and television stations.

In the case of Philippine Press Institute v. Comelec,¹³ we had occasion to state that newspapers and other print media are not compelled to donate free space to respondent Comelec inasmuch as this would be in violation of the constitutional provision that no private property shall be taken for public use without just compensation. We find no cogent reason why radio and television stations should be treated any differently considering that their operating expenses as compared to those of the newspaper and other print media publishers involve considerably greater amount of financial resources.

The fact that one needs a franchise from government to establish a radio and television station while no license is needed to start a newspaper should not be made a basis for treating broadcast media any differently from the print media in compelling the former to donate airtime to respondent Comelec. While no franchises and rights are granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires,¹⁴ this provides no license for government to disregard the cardinal rule that corporations with franchises are as much entitled to due process and equal protection of laws guaranteed under the Constitution.

ACCORDINGLY , I vote to declare Section 92 of BP 881 insofar as it mandates that radio and television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.

Endnotes:

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¹ Cooley, Thomas, IIA Treatise on Constitutional Limitations, pp. 1110. [1927].

² Supra at p. 1119.

³ Horack, Frank, Sutherland Statutory Construction, p. 279 [1989].

⁴ Association of Small Landowners of the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343 [1989].

⁵ 106 Phil. 144.

⁶ See Cooley, Thomas II Constitutional Limitations, 8^th Ed, pp. 1224 [1927].

⁷ 348 US 1954 [1954].

⁸ 438 US 104.

⁹ 260 US 393.

¹⁰ Cooley, Thomas, II Constitutional Limitations, pp. 1161 [1927].

¹¹ Napocor v. CA, 129 SCRA 665 [1984]; Garcia v. CA, 102 SCRA 597 [1981]; Republic v. PLDT, 26 SCRA 620 [1969].

¹² 244 SCRA 272 [1995].

¹³ Supra.

¹⁴ See Section 11, Article XII of the 1987 Constitution.