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[MARIANO CACHO v. ELPIDIO JAVELLANA](http://lawyerly.ph/juris/view/c38b9?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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G.R. No. L-4829

[ G.R. No. L-4829, December 17, 1952 ]

MARIANO CACHO, PETITIONER, VS. ELPIDIO JAVELLANA, RESPONDENT.

D E C I S I O N

BAUTISTA ANGELO, J.:

This is a petition for review of the order of commissioner Gabriel P. Prieto dated January 29, 1951, and the order of Commissioner Quintin Paredes Jr. dated February 1, 1951, entered upon a motion for reconsideration filed by oppositor Elpidio Javellana, which modified the decision in banc of the Public Service Commission dated March 28, 1950, by holding that the ice plants applied for in cases Nos. 46997, 48871 and 49378 should be established not within the city of Iloilo but somewhere within the province of Iloilo in the place or places where the applicants may wish to establish them provided that they so notify the Commission by amending their applications. These orders were maintained in subsequent resolutions issued respectively by said Commissioner on May 11, 1951.

This petition stems from three applications filed separatedly by Mariano Cacho, Juan Salvador and Natividad Ariaga with the Public Service Commission in which the applicants ask for a certificate of public convenience to install, maintain and operate a 30-ton ice plant with a cold storage service in the city of Iloilo and with the right and authority to sell ice not only within the said city but as well in all the municipalities of the province of Iloilo. These three applications were opposed by Elpidio Javellana and La Paz Ice Plants and Cold Storage Co., Inc., two old ice plants operators in the city and province of Iloilo.

The three applications were, by agreement of the parties, heard jointly, and on March 28, 1950, the Public Service Commission rendered a joint decision penned by Hon. Feliciano Ocampo and concurred in by Associate Commissioner Gabriel P. Prieto and Quintin Paredes Jr., granting to the three applicants, including petitioner herein, a certificate of public convenience to install and operate an ice plants of 15-ton daily capacity and a cold storage room of 10,000 cubic feet within the city of Iloilo and with authority and right to sell their produce not only in the city of Iloilo but also in the province of Iloilo. Oppositor Elpidio Javellana filed a motion for reconsideration on April 25, 1950, whereas La Paz Ice Plant and Cold Storage Co., Inc., filed with the Supreme Court a Petition for review of the decision rendered on March 28, 1950. Upon being advised of the pendency of said petition for review, the Public Service Commission refrained from acting on the motion for reconsideration because it did not consider it proper to act on it until the matter had been finally acted upon by the Supreme Court.

In the meantime, the La Paz Ice Plant and Cold Storage Co., Inc., withdrew its appeal, and so Elpidio Javellana asked the Commission to act on his motion for reconsideration. This move was again denied which forced Elpidio Javellana to file with the Supreme Court a petition for mandamus. In a decision promulgated on December 21, 1950, the Supreme Court held that the petition for review filed by the La Paz Ice Plant and Cold Storage Co., Inc., did not have the effect, insofar as Elpidio Javellana is concerned, of withdrawing the cases from the jurisdiction of the respondent Commission, or of depriving it of its jurisdiction, so that it could act if it wanted to on the motion for reconsideration filed by Elipidio Javellana on April 25,1950, and, accordingly, it ordered said Commission to act on said motion for reconsideration as prayed for.

By virtue of the directive of this court, the Public Service Commission acted upon the petition for reconsideration of Elpidio Javellana, but in so doing three separate orders were entered: one issued by Hon. Feliciano Ocampo dated January 11, 1951, wherein he found that the motion for reconsideration has no merit, and, therefore, there is no reason to alter or modify the decision of the court in banc dated March 28, 1950; another entered by Hon. Gabriel P. Prieto dated January 29, 1951, wherein he maintained the view that the decision of the Commission should be modified in the sense of granting the applicants the right to install, operate and maintain their ice plants only within the province Iloilo; and the third one issued by Hon. Quintin Paredes Jr. dated February 1, 1951, wherein he concurred in the opinion of Commissioner Priento but with the modification that the ice plants which applicants are allowed to operate should be installed in the places that may be designated by said applicants within the province Iloilo.  

On February 15, 1951, Mariano Cacho, petitioner herein,filed a motion for reconsideration of the orders entered by Commissioners Gabriel P. Prieto and Quintin Paredes Jr. on January 29, 1951 and February 1, 1951, respectively, setting forth therein the reasons he is invoking why the original decision of the Commission should be maintained, but this petition, as well as those filed by the other applicants who are affected thereby, were denied by the Public Service Commission by split vote as follows: Commissioners Prieto and Paredes Jr. voted to deny the petition for reconsideration, and Commissioner Ocampo voted to approve it and to maintain the original decision of the Commission dated March 28, 1950. This split vote gave rise to the present petition for review.

The main purpose of the present petition for review is to seek the nullification of the orders of Commissioners Prieto and Paredes Jr. wherein they modified the decision in banc dated March 28, 1950, in the sense of allowing the applicants the right to install their ice plants somewhere within the province of Iloilo and not within the city as allowed them in the original decision. Petitioner maintains that this modification is unfair and prejudicial to his interest not only because of the heavy investment already made by him in line with the express authority granted by the Public Service Commission but also because said modification is not justified by the evidence submitted by the parties in the three cases that were joined herein, nor by the authorities made in cases of similar nature.

We believe that the present petition is well taken.There is one development that should be mentioned here which in our opinion disposes of this case in support of the stand taken by the petitioner. We refer to the petition for certiorari interposed by the La Paz Ice Plant and Cold Storage Co., Inc., in the three cases herein involved on August 22, 1950, wherein said company sought the reversal of the unanimous decision of the  Public Service Commission  dated March 28, 1950, not only on procedural grounds, but on the strength of the evidence submitted by the parties (G.R. Nos. L-4053-4055). The question therein raised, among others, were: (a) that the decision of the Public Service Commission dated March 28, 1950, which authorizes three new operators to produce a total of total of 45 tons of ice,in addition to the 80 tons already authorized in the city of Iloilo, tends to and will surely ruin the business of the two existing operators contrary to the doctrine laid down in the case of San Miguel Brewery V. Lapid, 53 Phil. 539, and (b) that the applicants Natividad Ariaga, Juan Salvador and Mariano Cacho have not yet made any investment as a result of said decision and that the immediate implementation of the provisions thereof might entail huge loses on the part of said operators and would cause grave and irreparable injury to their rights as operators for which reason petitioner asks that the execution of said decision be suspended upon petitioner's filing a bond in the amount that the court may deem just to fix to answer for any damages that the applicants might suffer as a result of said suspension.

And in passing on this petition for certiorari, this court practically reaffirmed the unanimous decision of the Public Service Commission dated March 28, 1950. This court found said decision decision justified after considering the evidence presented by the parties and the findings of fact made thereon by the Commission. The Court even quoted with approval a substantial portion of the decision containing these findings of fact. And in connection with the huge investment already made by the applicants, including petitioner herein Mariano Cacho, this Court said:
"Es justo que ellos sean castigados a la inacion y que quedan obligados a revender las maquinarias acaso a precio bajo? Estos capitalistas han hecho las compras en virtud de la decision dictada por la Comision de utilidades Publicas y porque este Tribunal, no encontrando razon suficiente, no impidio la inmediata ejecucion de la sentacia, como solicitaba la recurrente. No es justo denegar la solicitud de los tres solicatantes (hoy recurridos) solamente para proteger el negocio de la recurrente que ya ha estado explotando la planta por bastante tiempo y que no podia abastecer la cantidad de hielo que el publico de Iloilo necesitaba. La pesca en alta mar, undustria que antes de la guerra estaba bajo el absoluto control de los japoneses y ahora en manos filipinas, debe ser propulsada en vez de castigada: es venero de requeza nacional que debe ser fomenteda a toda costa, especialmente hoy que el pescado en conserva va desapareciendo del mecado por imperativos del elevado impuesto de la exportacion del dinerso."
It is interesting to note that respondent does not now dispute the finding of the Commission to the effect that public necessity and convience demand that the applicants be allowed to install a 15-ton ice plants each considering the increase of the population in the city and province of Iloilo after the liberation of the Philippines. This increase was found justified by statistics. On this point the three Commissioners are agreed. Where the divergence arose is with regard to the place where the new ice plants should be installed. Commissioner Ocampo maintains that they should be installed within the city of Iloilo; Commissioners Prieto and Paredes Jr. hold that they should be installed somewhere within the province of Iloilo, And this divergrence came to a head only after the filing of a motion for reconsideration. This divergence gave rise to a confusion and brought about the present petition for review.

We are of the opinion that this modification cannot now be made in the face of the circumstances obtaining in the cases before us. Here are three applicants have come before the Public Service Commission to ask for a permit to install an ice plant and cold storage each within the city of Iloilo and at the hearing of their applicants they submitted voluminous evidence to establish the necessity of such installation.All the evidence they have presented was all aimed at establishing and convincing the Commission that public necessity and convenience warranted that the ice plant be installed in said city. No effort has been made by the oppositors to show that any particular town or municipality in the province of Iloilo could offer enough demand to warrant the operation of an ice plant of 15-ton capacity in order to make worth while a huge investment in that place. On the contrary, as counsel for petitioner says, the evidence that was presented tended to show that because of the importance of the city of Iloilo, being a port of entry for general shipping and fishing boats and because of the facilities of communication with interior towns in the province of Iloilo, public necessity and convenience demand that Iloilo city be the location for the installation of the ice plants of the herein petitioner and his two other co-applicants. While the view entertained by Commissioner Prieto and Paredes Jr. is plausible, being in line with the view of the court in the San Miguel Brewery case(San Miguel Brewery v. Espiritu, 60 Phil. 745), we hold that the same does not find proper application here considering the nature of the evidence presented. That view finds no support nor justification as no sufficient evidence exists that may justify its application. Moreover, the record shows that petitioner has already bought the land to be used as site of the plant for the sum P85,000, has already constructed thereon the necessary buildings for the plant to the value of P126,000, and had actually bought machineries costing P70,000, thus making a total investment of P281,000. All these investment were made in the honest belief that petitioner could do so when the decision was rendered on March 28, 1950 for he entertained then the opinion that decision was of immediate effect considering not only the practice of the Commission but the law and precedents on the matter. In other words, the investment was made in good faith prompted merely by the desire of the petitioner to be of immediate service to the needs of the public. To modify now the decision of the Commission in the sense of requiring petitioner to move his plant to any other place within the province of Iloilo which is uncertain and indefinite would be most unfair and unjust as it would as it would be tantamount to ignoring the big investment already made in line with the unanimous decision of the Commission. This would be tantamount to a punishment which petitioner does not deserve . Under the circumstance, this Court finds no sufficient justification in law as well as in fact for the modification wrought into the decision by Commissioners Gabriel P. Prieto and Quintin Paredes Jr.

Wherefore, the court hereby sets aside the orders appealed from and maintains in toto the decision of the Public Service Commission dated March 28, 1950, with costs.

Paras, C. J., Pablo, Bengzon, Padilla, Jugo, and Labrador, JJ., concur.
Tuason, Feria, and Reyes, JJ., did not take part.
Montemayor, J., I reserve my vote.

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