EN BANC

[G.R. No. 118127. April 12, 2005]

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L.
ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City
Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S.
CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ,
HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G.
RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG,
HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A.
MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V.
ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON,
HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ,
HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON,
HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S.
RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of Manila, petitioners, vs. HON. PERFECTO
A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if performed by
someone else, who would be well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Courts commitment to the protection of morals is secondary to its fealty to the fundamental law of the
land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the
Court will not hesitate to make the hammer fall, and heavily in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not lacking in zeal to promote morality,
nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition[1] under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure
seeking the reversal of the Decision[2] in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila,
Branch 18 (lower court),[3] is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.[4]
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the
business of operating hotels, motels, hostels and lodging houses.[5] It built and opened Victoria Court in Malate
which was licensed as a motel although duly accredited with the Department of Tourism as a hotel. [6] On 28
June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or

Temporary Restraining Order[7] (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as
among its prohibited establishments, be declared invalid and unconstitutional.[8]
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993,
the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING
CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITAMALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.[10]
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership,
corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or
authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services
and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the
inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from
issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of
business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1
hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up
business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area,such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome
family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural
shows, stage and theatrical plays, art exhibitions, concerts and the like.

11. Businesses allowable within the law and medium intensity districts as provided for in
the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock
or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral
establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by imprisonment
of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED,
that in case of juridical person, the President, the General Manager, or person-in-charge of operation shall be liable
thereof; PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its
enumeration of prohibited establishments, motels and inns such as MTDCs Victoria Court considering that
these were not establishments for amusement or entertainment and they were not services or facilities for
entertainment, nor did they use women as tools for entertainment, and neither did they disturb the
community, annoy the inhabitants or adversely affect the social and moral welfare of the community.[11]
MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1)
The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv)[12] of the Local
Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment,
operation and maintenance of hotels, motels, inns, pension houses, lodging houses and other similar
establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.) No. 499 [13] which
specifically declared portions of the Ermita-Malate area as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police power as the compulsory closure of the motel
business has no reasonable relation to the legitimate municipal interests sought to be protected; (4)
The Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court which was a
legitimate business prior to its enactment; (5) The Ordinance violates MTDCs constitutional rights in that: (a) it
is confiscatory and constitutes an invasion of plaintiffs property rights; (b) the City Council has no power to find
as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) TheOrdinance constitutes a denial of equal protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-Malate area but not outside of this area.[14]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council
had the power to prohibit certain forms of entertainment in order to protect the social and moral welfare of the
community as provided for in Section 458 (a) 4 (vii) of the Local Government Code,[16] which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general
welfare and for said purpose shall:
....

(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities,
including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities
for amusement or entertainment, particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of regulation spoken of in the
above-quoted provision included the power to control, to govern and to restrain places of exhibition and
amusement.[18]
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the
social and moral welfare of the community in conjunction with its police power as found in Article III, Section
18(kk) of Republic Act No. 409,[19] otherwise known as the Revised Charter of the City of Manila (Revised
Charter of Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. The Municipal Board shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of
the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare
of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers
and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed
two hundred pesos fine or six months imprisonment, or both such fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent
had the burden to prove its illegality or unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the
latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a
commercial zone.[22] The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it
was prospective in operation.[23] The Ordinance also did not infringe the equal protection clause and cannot be
denounced as class legislation as there existed substantial and real differences between the Ermita-Malate
area and other places in the City of Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte
temporary restraining order against the enforcement of the Ordinance.[25] And on 16 July 1993, again in an
intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC. [26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners
from implementing the Ordinance. The dispositive portion of said Decisionreads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of Manila null
and void, and making permanent the writ of preliminary injunction that had been issued by this Court against the
defendant. No costs.
SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12 December 1994, manifesting that they are
elevating the case to this Court under then Rule 42 on pure questions of law.[30]

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or
otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding that the
questioned Ordinance contravenes P.D. 499[31] which allows operators of all kinds of commercial
establishments, except those specified therein; and (3) It erred in declaring the Ordinance void and
unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the assertions they made before
the lower court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and
plenary power of the State and the general welfare clause exercised by local government units provided for in
Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the
Code.[34] They allege that the Ordinance is a valid exercise of police power; it does not contravene P.D. 499;
and that it enjoys the presumption of validity.[35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that the Ordinance is ultra
vires and that it is void for being repugnant to the general law. It reiterates that the questioned Ordinance is not
a valid exercise of police power; that it is violative of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal protection clause; and that it confers on
petitioner City Mayor or any officer unregulated discretion in the execution of the Ordinance absent rules to
guide and control his actions.
This is an opportune time to express the Courts deep sentiment and tenderness for the Ermita-Malate
area being its home for several decades. A long-time resident, the Court witnessed the areas many turn of
events. It relished its glory days and endured its days of infamy. Much as the Court harks back to the
resplendent era of the Old Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not
the fitting means to that end. The Court is of the opinion, and so holds, that the lower court did not err in
declaring theOrdinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a
constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of persons
enshrined by the Constitution. The Court is called upon to shelter these rights from attempts at rendering them
worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance
to be valid, it must not only be within the corporate powers of the local government unit to enact and must be
passed according to the procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3)
must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be unreasonable.[37]
Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and
to the laws.[38] The Ordinance must satisfy two requirements: it must pass muster under the test of
constitutionality and the test of consistency with the prevailing laws. That ordinances should be constitutional
uphold the principle of the supremacy of the Constitution. The requirement that the enactment must not violate
existing law gives stress to the precept that local government units are able to legislate only by virtue of their
derivative legislative power, a delegation of legislative power from the national legislature. The delegate
cannot be superior to the principal or exercise powers higher than those of the latter.[39]
This relationship between the national legislature and the local government units has not been enfeebled
by the new provisions in the Constitution strengthening the policy of local autonomy. The national legislature is
still the principal of the local government units, which cannot defy its will or modify or violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the
City Council acting as agent of Congress. Local government units, as agencies of the State, are endowed with
police power in order to effectively accomplish and carry out the declared objects of their creation. [41] This
delegated police power is found in Section 16 of the Code, known as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general welfare. Within their respective territorial

jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative bodies; in this case,
the sangguniang panlungsod or the city council. The Code empowers the legislative bodies to enact
ordinances, approve resolutions and appropriate funds for the general welfare of the province/city/municipality
and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of
the province/city/ municipality provided under the Code.[42] The inquiry in this Petition is concerned with the
validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional
limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public
good.[43] In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy.[44]
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the
law of women and men.[45]
SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied
the equal protection of laws.[46]
Sec. 9. Private property shall not be taken for public use without just compensation.[47]
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o person shall be deprived of life,
liberty or property without due process of law. . . .[48]
There is no controlling and precise definition of due process. It furnishes though a standard to which
governmental action should conform in order that deprivation of life, liberty or property, in each appropriate
case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to
the dictates of justice,[49] and as such it is a limitation upon the exercise of the police power.[50]
The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property
of individuals; to secure the individual from the arbitrary exercise of the powers of the government,
unrestrained by the established principles of private rights and distributive justice; to protect property from
confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by
the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit
of the general law.[51]
The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships
are persons within the scope of the guaranty insofar as their property is concerned.[52]
This clause has been interpreted as imposing two separate limits on government, usually called
procedural due process and substantive due process.

Procedural due process, as the phrase implies, refers to the procedures that the government must follow
before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned
with what kind of notice and what form of hearing the government must provide when it takes a particular
action.[53]
Substantive due process, as that phrase connotes, asks whether the government has an adequate reason
for taking away a persons life, liberty, or property. In other words, substantive due process looks to whether
there is a sufficient justification for the governments action.[54] Case law in the United States (U.S.) tells us that
whether there is such a justification depends very much on the level of scrutiny used.[55] For example, if a law is
in an area where only rational basis review is applied, substantive due process is met so long as the law is
rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as
for protecting fundamental rights, then the government will meet substantive due process only if it can prove
that the law is necessary to achieve a compelling government purpose.[56]
The police power granted to local government units must always be exercised with utmost observance of
the rights of the people to due process and equal protection of the law. Such power cannot be exercised
whimsically, arbitrarily or despotically[57] as its exercise is subject to a qualification, limitation or restriction
demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming
part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that
may fairly be required by the legitimate demands of public interest or public welfare. [58] Due process requires
the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property.[59]
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the
interests of the public generally, as distinguished from those of a particular class, require an interference with
private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.[60] It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist
between the purposes of the police measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights[62] a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of
legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and
motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila[63] had already taken judicial notice of the alarming increase in the
rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which
provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for
prostitutes and thrill-seekers.[64]
The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values
of the community. Granting for the sake of argument that the objectives of theOrdinance are within the scope
of the City Councils police powers, the means employed for the accomplishment thereof were unreasonable
and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations
looking to the promotion of the moral and social values of the community. However, the worthy aim of fostering
public morals and the eradication of the communitys social ills can be achieved through means less restrictive
of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The
closing down and transfer of businesses or their conversion into businesses allowed under
the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the
prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare

of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it
arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of
the like which the City Council may lawfully prohibit,[65] it is baseless and insupportable to bring within that
classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms.
The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the
community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal
prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may
take place in the most innocent of places that it may even take place in the substitute establishments
enumerated under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the
remote instance that an immoral sexual act transpires in a church cloister or a court chamber, we would behold
the spectacle of the City of Manila ordering the closure of the church or court concerned. Every house,
building, park, curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply
because there are no pure places where there are impure men. Indeed, even the Scripture and the Tradition
of Christians churches continually recall the presence and universality of sin in mans history.[66]
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be
injurious to the health or comfort of the community and which in itself is amoral, but the deplorable human
activity that may occur within its premises. While a motel may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per
se on a mere likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-Malate
area would not only be purged of its supposed social ills, it would be extinguished of its soul as well as every
human activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the
authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man out of it
because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council
instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty
and privacy which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is commendable, they unwittingly
punish even the proprietors and operators of wholesome, innocent establishments. In the instant case,
there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the investments made and the
salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to
suspend or revoke their licenses for these violations;[67] and it may even impose increased license fees. In
other words, there are other means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses,
night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate
area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3)
months from the date of approval of the Ordinancewithin which to wind up business operations or to transfer
to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable
within the area. Further, it states in Section 4 that in cases of subsequent violations of the provisions of the
Ordinance, the premises of the erring establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the constitutional guarantees of a persons fundamental right to
liberty and property.

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right to exist and
the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to such restraint as are necessary for the
common welfare.[68] In accordance with this case, the rights of the citizen to be free to use his faculties in all
lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.[69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to clarify the meaning of
liberty. It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognizedas essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be
no doubt that the meaning of liberty must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes personal
decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In
explaining the respect the Constitution demands for the autonomy of the person in making these choices, the
U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is
the right to define ones own concept of existence, of meaning, of universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of personhood where they formed under compulsion of the State.[71]
Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of
the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds
in intimate sexual conduct within the motels premisesbe it stressed that their consensual sexual behavior
does not contravene any fundamental state policy as contained in the Constitution.[72] Adults have a right to
choose to forge such relationships with others in the confines of their own private lives and still retain their
dignity as free persons. The liberty protected by the Constitution allows persons the right to make this
choice.[73] Their right to liberty under the due process clause gives them the full right to engage in their conduct
without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule
and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must
include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all
freedomit is the most comprehensive of rights and the right most valued by civilized men.[74]
The concept of liberty compels respect for the individual whose claim to privacy and interference demands
respect. As the case of Morfe v. Mutuc,[75] borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed,
they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that
experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of
others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense
free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should
be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of

its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers
should stop short of certain intrusions into the personal life of the citizen.[76]
There is a great temptation to have an extended discussion on these civil liberties but the Court chooses
to exercise restraint and restrict itself to the issues presented when it should. The previous pronouncements of
the Court are not to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of
such conduct is not diminished. The Court only reaffirms and guarantees their right to make this choice. Should
they be prosecuted for their illegal conduct, they should suffer the consequences of the choice they have
made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the
beneficial use of its property.[77] The Ordinance in Section 1 thereof forbids the running of the enumerated
businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance
which permanently restricts the use of property that it can not be used for any reasonable purpose goes
beyond regulation and must be recognized as a taking of the property without just compensation. [78] It is
intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property shall not be taken for
public use without just compensation. The provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of some to give it to others. In
part too, it is about loss spreading. If the government takes away a persons property to benefit society, then
society should pay. The principal purpose of the guarantee is to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.[79]
There are two different types of taking that can be identified. A possessory taking occurs when the
government confiscates or physically occupies property. A regulatory taking occurs when the governments
regulation leaves no reasonable economically viable use of the property.[80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking also could be found if
government regulation of the use of property went too far. When regulation reaches a certain magnitude, in
most if not in all cases there must be an exercise of eminent domain and compensation to support the act.
While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking.[82]
No formula or rule can be devised to answer the questions of what is too far and when regulation becomes
a taking. In Mahon, Justice Holmes recognized that it was a question of degree and therefore cannot be
disposed of by general propositions. On many other occasions as well, the U.S. Supreme Court has said that
the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court
asks whether justice and fairness require that the economic loss caused by public action must be
compensated by the government and thus borne by the public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public action.[83]
What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it
leaves no reasonable economically viable use of property in a manner that interferes with reasonable
expectations for use.[84] A regulation that permanently denies all economically beneficial or productive use of
land is, from the owners point of view, equivalent to a taking unless principles of nuisance or property law
that existed when the owner acquired the land make the use prohibitable.[85] When the owner of real property
has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to
leave his property economically idle, he has suffered a taking.[86]
A regulation which denies all economically beneficial or productive use of land will require compensation
under the takings clause. Where a regulation places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors

including the regulations economic effect on the landowner, the extent to which the regulation interferes with
reasonable investment-backed expectations and the character of government action. These inquiries are
informed by the purpose of the takings clause which is to prevent the government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.[87]
A restriction on use of property may also constitute a taking if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investmentbacked expectations of the owner.[88]
The Ordinance gives the owners and operators of the prohibited establishments three (3) months from its
approval within which to wind up business operations or to transfer to any place outside of the Ermita-Malate
area or convert said businesses to other kinds of business allowable within the area. The directive to wind up
business operations amounts to a closure of the establishment, a permanent deprivation of property, and is
practically confiscatory. Unless the owner converts his establishment to accommodate an allowed business,
the structure which housed the previous business will be left empty and gathering dust. Suppose he transfers it
to another area, he will likewise leave the entire establishment idle. Consideration must be given to the
substantial amount of money invested to build the edifices which the owner reasonably expects to be returned
within a period of time. It is apparent that the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to convert
into allowed businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent
violations found in Section 4 of the Ordinance is also equivalent to a taking of private property.
The second option instructs the owners to abandon their property and build another one outside the
Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an additional
burden imposed on the owner to build another establishment solely from his coffers. The proffered solution
does not put an end to the problem, it merely relocates it. Not only is this impractical, it is unreasonable,
onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the
respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially
destroying its property? This is a taking of private property without due process of law, nay, even without
compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the
government. The burden on the owner to convert or transfer his business, otherwise it will be closed
permanently after a subsequent violation should be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance,
although a valid exercise of police power, which limits a wholesome property to a use which can not
reasonably be made of it constitutes the taking of such property without just compensation. Private property
which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the principles of justice as we know them. The police powers
of local government units which have always received broad and liberal interpretation cannot be stretched to
cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It needs restating
that the property taken in the exercise of police power is destroyed because it is noxious or intended for a
noxious purpose while the property taken under the power of eminent domain is intended for a public use or
purpose and is therefore wholesome.[89] If it be of public benefit that a wholesome property remain unused
or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation
for the condemnation of private property for public use.[90]
Further, the Ordinance fails to set up any standard to guide or limit the petitioners actions. It in no way
controls or guides the discretion vested in them. It provides no definition of the establishments covered by it
and it fails to set forth the conditions when the establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments.
Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by
which its validity is to be tested, are unreasonable and invalid. The Ordinance should have established a rule
by which its impartial enforcement could be secured.[91]

Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the
exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its
provisions.[92]
Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the U.S. Supreme Court struck
down an ordinance that had made it illegal for three or more persons to assemble on any sidewalk and there
conduct themselves in a manner annoying to persons passing by. The ordinance was nullified as it imposed
no standard at all because one may never know in advance what annoys some people but does not annoy
others.
Similarly, the Ordinance does not specify the standards to ascertain which establishments tend to disturb
the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community.
The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law
enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due
process clause. These lawful establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the
City Council and which amounts to an interference into personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to
liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the
ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive ordinance regulating sexually
oriented businesses, which are defined to include adult arcades, bookstores, video stores, cabarets, motels,
and theaters as well as escort agencies, nude model studio and sexual encounter centers. Among other
things, the ordinance required that such businesses be licensed. A group of motel owners were among the
three groups of businesses that filed separate suits challenging the ordinance. The motel owners asserted that
the city violated the due process clause by failing to produce adequate support for its supposition that renting
room for fewer than ten (10) hours resulted in increased crime and other secondary effects. They likewise
argued than the ten (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden on the
right to freedom of association. Anent the first contention, the U.S. Supreme Court held that the
reasonableness of the legislative judgment combined with a study which the city considered, was adequate to
support the citys determination that motels permitting room rentals for fewer than ten (10 ) hours should be
included within the licensing scheme. As regards the second point, the Court held that limiting motel room
rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from
the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture
and traditions of the nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed
reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,[96] it needs
pointing out, is also different from this case in that what was involved therein was a measure which regulated
the mode in which motels may conduct business in order to put an end to practices which could encourage
vice and immorality. Necessarily, there was no valid objection on due process or equal protection grounds as
the ordinance did not prohibit motels. The Ordinance in this case however is not a regulatory measure but is an
exercise of an assumed power to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property
and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under
the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently,

so as to give undue favor to some and unjustly discriminate against others. [98] The guarantee means that no
person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or
other classes in like circumstances.[99] The equal protection of the laws is a pledge of the protection of equal
laws.[100] It limits governmental discrimination. The equal protection clause extends to artificial persons but
only insofar as their property is concerned.[101]
The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: The ideal situation is for the
laws benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and
favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of
the idea of law. There is recognition, however, in the opinion that what in fact exists cannot approximate the ideal. Nor
is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional
guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the general
welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal protection clause only if they can show that the
governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason. Classification is thus not ruled out, it being
sufficient to quote from the Tuason decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in
the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances which, if not identical, are
analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest.[102]
Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the
law may operate only on some and not all of the people without violating the equal protection clause. [103] The
classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following
requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels,
lodging houses or other similar establishments. By definition, all are commercial establishments providing
lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns
but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant
case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed.
It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of
the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the ErmitaMalate area but not outside of this area. A noxious establishment does not become any less noxious if located
outside the area.
The standard where women are used as tools for entertainment is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive to women. Both
men and women have an equal propensity to engage in prostitution. It is not any less grave a sin when men
engage in it. And why would the assumption that there is an ongoing immoral activity apply only when women
are employed and be inapposite when men are in harness? This discrimination based on gender violates equal
protection as it is not substantially related to important government objectives. [105] Thus, the discrimination is
invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with
prevailing laws.

C.

The Ordinance is repugnant

to general laws; it is ultra vires

The Ordinance is in contravention of the Code as the latter merely empowers local government units to
regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of
motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general
welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of any entertainment or
amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section
458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general
welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including
theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression
of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of
the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses, and other similar establishments, the only power of the City Council to legislate relative thereto is to
regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and
prohibit altogether the establishment, operation and maintenance of such establishments. It is well to recall the
rulings of the Court in Kwong Sing v. City of Manila[106] that:
The word regulate, as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to
control, to govern, and to restrain; but regulate should not be construed as synonymous with suppress or prohibit.

Consequently, under the power to regulate laundries, the municipal authorities could make proper police regulations as to
the mode in which the employment or business shall be exercised.[107]
And in People v. Esguerra,[108] wherein the Court nullified an ordinance of the Municipality of Tacloban
which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered
only to regulate the same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to license and
regulate the liquor traffic, power to prohibit is impliedly withheld.[109]
These doctrines still hold contrary to petitioners assertion[110] that they were modified by the Code vesting
upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls,
sauna baths, massage parlors, and other places for entertainment or amusement as found in the first clause of
Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants
and to prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of
the community are stated in the second and third clauses, respectively of the same Section. The several
powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are
separated by semi-colons (;), the use of which indicates that the clauses in which these powers are set forth
are independent of each other albeit closely related to justify being put together in a single enumeration or
paragraph.[111] These powers, therefore, should not be confused, commingled or consolidated as to create a
conglomerated and unified power of regulation, suppression and prohibition.[112]
The Congress unequivocably specified the establishments and forms of amusement or entertainment
subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and
other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration
therefore cannot be included as among other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or
entertainment which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those which are
necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof,
said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in
granting said powers must be construed against the City Council. [113] Moreover, it is a general rule in statutory
construction that the express mention of one person, thing, or consequence is tantamount to an express
exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and
the natural workings of human mind. It is particularly applicable in the construction of such statutes as create
new rights or remedies, impose penalties or punishments, or otherwise come under the rule of strict
construction.[114]
The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare
clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the
first point, the ruling of the Court in People v. Esguerra,[115] is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised
Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it can not be
applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing thereof is granted
specifically by section 2242 (g) to municipal councils. To hold that, under the general power granted by section 2238, a
municipal council may enact the ordinance in question, notwithstanding the provision of section 2242 (g), would be to
make the latter superfluous and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving
away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the legislative will must
necessarily prevail and override the earlier law, the Revised Charter of Manila.Legis posteriores priores
contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on

the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the
latest expression of legislative will.[116] If there is an inconsistency or repugnance between two statutes, both
relating to the same subject matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail and override the earlier. [117]
Implied repeals are those which take place when a subsequently enacted law contains provisions contrary
to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into
two general classes: those which occur where an act is so inconsistent or irreconcilable with an existing prior
act that only one of the two can remain in force and those which occur when an act covers the whole subject of
an earlier act and is intended to be a substitute therefor. The validity of such a repeal is sustained on the
ground that the latest expression of the legislative will should prevail.[118]
In addition, Section 534(f) of the Code states that All general and special laws, acts, city charters,
decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Thus,
submitting to petitioners interpretation that the Revised Charter of Manila empowers the City Council to
prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at
variance with the latters provisions granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing
the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing
conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial
intervention.[119]
Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this
connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public
places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other
prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of
drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments
enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the
list of the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City Councils powers in the second and third
clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that
these establishments may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments themselves. That these
establishments are recognized legitimate enterprises can be gleaned from another Section of the Code.
Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of

massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the
contractors defined in paragraph (h) thereof. The same Section also defined amusement as a pleasurable
diversion and entertainment, synonymous to relaxation, avocation, pastime or fun; and amusement places
to include theaters, cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances. Thus, it can be inferred that
the Code considers these establishments as legitimate enterprises and activities. It is well to recall the maxim
reddendo singula singulis which means that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force and effect, and, if possible, rendering none
of them useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where
words under consideration appear in different sections or are widely dispersed throughout an act the same
principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499.
As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a
commercial area. The decree allowed the establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service
station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid
and to have force and effect, it must not only be within the powers of the council to enact but the same must
not be in conflict with or repugnant to the general law.[121] As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:[122]
The requirement that the enactment must not violate existing law explains itself. Local political subdivisions are able to
legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power
to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). They are mere agents
vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government units
cannot contravene but must obey at all times the will of their principal. In the case before us, the enactment in question,
which are merely local in origin cannot prevail against the decree, which has the force and effect of a statute. [123]
Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it
has already been held that although the presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears
on the face of the ordinance itself or is established by proper evidence. The exercise of police power by the
local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a
common right.[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs personal
privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and
unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement
of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact
the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of
the public for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such
character deserves the full endorsement of the judiciary we reiterate our support for it. But inspite of its
virtuous aims, the enactment of the Ordinance has no statutory or constitutional authority to stand on. Local
legislative bodies, in this case, the City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or conversion without infringing the constitutional
guarantees of due process and equal protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring
the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.

SUPREME COURT
Manila
G.R. Nos. L-60549, 60553 to 60555 October 26, 1983
HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona) ANASTACIO C. CABILAO, HEIRS OF
CIPRIANO CABILAO (represented by Jose Cabilao) MODESTA CABILAO, HEIRS OF ROMAN CABUENAS
(represented by Alberto Cabuenas), AGRIPINO GABISAY and PRUDENCIA MABINI, ANTONIO LABRADOR
and LUCIA GABISAY, GERONIMO MABINI and MARCELINA SABAL, INOCENCIO MABINI and ARSENIA
REYES, PATRICIO MABINI and GREGORIA BORRES, ANICETO GADAPAN and MAXIMA GABISAY,
BARTOLOME MAGNO and CALINECA E. MAGNO, ALBERTO CABUENAS, NARCISO CABUENAS and
VICTORIA CABUENAS, EUTIQUIOSENO, HEIRS OF ESPERIDION CABUENAS (represented by Alberto
Cabuenas), MAXIMINA NAVARO, SULPICIO NAVARO, EDUARDO NAVARO, MARTINIANO ROMA (in
representation of Arcadio Mabini, deceased), MARTIN SENO, FAUSTO ARDA, MAXIMA CABILAO,
ESTRELLA SENO, EDUVEGIS S. CABILAO, ROSARIO CABILAO, MINORS DANILO, SOCORRO, JOSEFINA
and MARITES, all surnamed Cabilao, JUAN BORRES (represented by Francisca Borres), RAMON JABADAN,
JESUS ALIPAR and LEONILA KABAHAR, ANTONIO LABRADOR, HEIRS OF NICASIO GABISAY (represented
by Arsenio Gabisay), PACIFICO LABRADOR, DEMETRIO LABRADOR and FRUCTOSA TABURA, VENANCIO
DEL MAR, MARINO DEL MAR, HEIRS OF TEODORA ARCILLO (represented by Brigida Arcillo) DIONISIA
GABUNADA, HEIRS OF BUENAVENTURA FRANCISCO (represented by Felicidad Sadaya Francisco), HEIRS
OF VICTORIA C. CABUENAS (represented by Alberto Cabuenas) HEIRS OF CIPRIANO GABUNADA
(represented by Claudio Gabunada), petitioners,
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of Branch I, COURT OF FIRST instance OF
CEBU, and the PHILIPPINE TOURISM AUTHORITY, respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari with preliminary injunction challenging the constitutionality of Presidential Decree No.
564, the Revised Charter of the Philippine Tourism Authority, and Proclamation No. 2052 declaring the barangays of
Sibugay, Malubog, Babag and Sirao including the proposed Lusaran Dam in the City of Cebu and in the
municipalities of Argao and Dalaguete in the province of Cebu as tourist zones. The petitioners ask that we restrain
respondent Court of First Instance of Cebu and the Philippine Tourism Authority (PTA) from enforcing and
implementing the writs of possession issued in four (4) expropriation cases filed by PTA against the petitioners: Civil
Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the Court of First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4) Complaints with the Court of First Instance of Cebu City for the
expropriation of some 282 hectares of rolling land situated in barangays Malubog and Babag, Cebu City, under
PTA's express authority "to acquire by purchase, by negotiation or by condemnation proceedings any private land
within and without the tourist zones" for the purposes indicated in Section 5, paragraph B(2), of its Revised Charter
(PD 564), more specifically, for the development into integrated resort complexes of selected and well-defined
geographic areas with potential tourism value. As uniformly alleged in the complaints, the purposes of the
expropriation are:
xxx xxx xxx
V
Plaintiff, in line with the policy of the government to promote tourism and development of tourism
projects will construct in Barangays Malubog, Busay and Babag, all of Cebu City, a sports complex
(basketball courts, tennis courts, volleyball courts, track and field, baseball and softball diamonds,
and swimming pools), clubhouse, gold course, children's playground and a nature area for picnics
and horseback riding for the use of the public.
The development plan, covering approximately 1,000 hectares, includes the establishment of an
electric power grid in the area by the National Power Corporation, thus assuring the supply of
electricity therein for the benefit of the whole community. Deep wells will also be constructed to

generate water supply within the area. Likewise, a complex sewerage and drainage system will be
devised and constructed to protect the tourists and nearby residents from the dangers of pollution.
Complimentary and support facilities for the project will be constructed, including public rest houses,
lockers, dressing rooms, coffee shops, shopping malls, etc. Said facilities will create and offer
employment opportunities to residents of the community and further generate income for the whole
of Cebu City.
Plaintiff needs the property above described which is directly covered by the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their respective Opposition with Motion to Dismiss
and/or Reconsideration. The defendants in Civil Case No. R-19562 filed a manifestation adopting the answer of
defendants in Civil Case No. R-19864. The defendants, now petitioners, had a common allegation in that the taking
is allegedly not impressed with public use under the Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the issue of public use, that there is no specific
constitutional provision authorizing the taking of private property for tourism purposes; that assuming that PTA has
such power, the intended use cannot be paramount to the determination of the land as a land reform area; that
limiting the amount of compensation by Legislative fiat is constitutionally repugnant; and that since the land is under
the land reform program, it is the Court of Agrarian Relations and not the Court of First Instance that has jurisdiction
over the expropriation cases.
The Philippine Tourism Authority having deposited with The Philippine National Bank, Cebu City Branch, an amount
equivalent to 10% of the value of the properties pursuant to Presidential Decree No. 1533. the lower court issued
separate orders authorizing PTA to take immediate possession of the premises and directing the issuance of writs of
possession.
On May 25, 1982, petitioners filed this petition questioning the orders of the respondent Judge, The respondents
have correctly restated the grounds in the petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the Constitution does not provide for the
expropriation of private property for tourism or other related purposes;
B. The writs of possession or orders authorizing PTA to take immediate possession is premature
because the "public use" character of the taking has not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent domain law;
D. The properties in question have been previously declared a land reform area; consequently, the
implementation of the social justice pro- ,vision of the Constitution on agrarian reform is paramount
to the right of the State to expropriate for the purposes intended;
E. Proclamation No. 2052 declaring certain barangays in Cebu City, which include the lands subject
of expropriation as within a tourist zone, is unconstitutional for it impairs the obligation of contracts;
"F. Since the properties are within a land reform area, it is the Court of Agrarian Relations, not the
lower court, that has jurisdiction pursuant to Pres. Decree No. 946;
F. The forcible ejectment of defendants from the premises constitutes a criminal act under Pres.
Decree No. 583;
In their memorandum, the petitioners have summarized the issues as follows:
I. Enforcement of the Writ of Possession is Premature:

II. Presidential Decree 564 Amending Presidential Decree l89 is Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore, Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered by the Land Reform Program Violates
the Constitution:
V. Presidential Proclamation 2052 is Unconstitutional:
VI. Presidential Decree No 1533 is Unconstitutional:
VII. The Court of First Instance has no Jurisdiction:
VIII. The Filing of the Present Petition is not Premature.
The issues raised by the petitioners revolve around the proposition that the actions to expropriate their properties
are constitutionally infirm because nowhere in the Constitution can a provision be found which allows the taking of
private property for the promotion of tourism.
The petitioners' arguments in their pleadings in support of the above proposition are subsumed under the following
headings:
1. Non-compliance with the "public use" requirement under the eminent domain provision of the Bill
of Rights.
2. Disregard of the land reform nature of the property being expropriated.
3. Impairment of the obligation of contracts.
There are three provisions of the Constitution which directly provide for the exercise of the power of eminent
domain. Section 2, Article IV states that private property shall not be taken for public use without just compensation.
Section 6, Article XIV allows the State, in the interest of national welfare or defense and upon payment of just
compensation to transfer to public ownership, utilities and other private enterprises to be operated by the
government. Section 13, Article XIV states that the Batasang Pambansa may authorize upon payment of just
compensation the expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving
citizens.
While not directly mentioning the expropriation of private properties upon payment of just compensation, the
provisions on social justice and agrarian reforms which allow the exercise of police power together with the power of
eminent domain in the implementation of constitutional objectives are even more far-reaching insofar as taking of
private property is concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social justice to ensure the dignity, welfare, and security of all the
people. Towards its end, the State shall regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property ownership and profits.
xxx xxx xxx
Section 12, Article XIV provides:
See. 12. The State shall formulate and implement an agrarian reform program aimed at
emancipating the tenant from the bondage of the soil and achieving the goals enunciated in this
Constitution.

The equitable diffusion of property ownership in the promotion of social justice implies the exercise, whenever
necessary, of the power to expropriate private property. Likewise there can be no meaningful agrarian reform
program unless the power to expropriate is utilized.
We cite all the above provisions on the power to expropriate because of the petitioners' insistence on a restrictive
view of the eminent domain provision. The thrust of all constitutional provisions on expropriation is in the opposite
direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus (40 Phil. 550) categorized the restrictive view as
wholly erroneous and based on a misconception of fundamentals.
The petitioners look for the word "tourism" in the Constitution. Understandably the search would be in vain. The
policy objectives of the framers can be expressed only in general terms such as social justice, local autonomy,
conservation and development of the national patrimony, public interest, and general welfare, among others. The
programs to achieve these objectives vary from time to time and according to place, To freeze specific programs like
Tourism into express constitutional provisions would make the Constitution more prolix than a bulky code and
require of the framers a prescience beyond Delphic proportions. The particular mention in the Constitution of
agrarian reform and the transfer of utilities and other private enterprises to public ownership merely underscores the
magnitude of the problems sought to be remedied by these programs. They do not preclude nor limit the exercise of
the power of eminent domain for such purposes like tourism and other development programs.
In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized that the power of eminent
domain is inseparable from sovereignty being essential to the existence of the State and inherent in government
even in its most primitive forms. The only purpose of the provision in the Bill of Rights is to provide some form of
restraint on the sovereign power. It is not a grant of authority The power of eminent domain does not depend for its existence on a specific grant in the
constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it
in the constitution. The provision found in most of the state constitutions relating to the taking of
property for the public use do not by implication grant the power to the government of the state, but
limit a power which would otherwise be without limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that "public use" means literally use by the public
and that "public use" is not synonymous with "public interest", "public benefit", or "public welfare" and much less
"public convenience. "
The petitioners face two major obstacles. First, their contention which is rather sweeping in its call for a retreat from
the public welfare orientation is unduly restrictive and outmoded. Second, no less than the lawmaker has made a
policy determination that the power of eminent domain may be exercised in the promotion and development of
Philippine tourism.
The restrictive view of public use may be appropriate for a nation which circumscribes the scope of government
activities and public concerns and which possesses big and correctly located public lands that obviate the need to
take private property for public purposes. Neither circumstance applies to the Philippines. We have never been a
laissez faire State, And the necessities which impel the exertion of sovereign power are all too often found in areas
of scarce public land or limited government resources.
Certain aspects of parliamentary government were introduced by the 1973 amendments to the Constitution with
further modifications in the 1976 and 1981 amendments. Insofar as the executive and legislative departments are
concerned, the traditional concept of checks and balances in a presidential form was considerably modified to
remove some roadblocks in the expeditious implementation of national policies. There was no such change for the
judiciary. We remain as a checking and balancing department even as all strive to maintain respect for constitutional
boundaries. At the same time, the philosophy of coordination in the pursuit of developmental goals implicit in the

amendments also constrains in the judiciary to defer to legislative discretion iii the judicial review of programs for
economic development and social progress unless a clear case of constitutional infirmity is established. We cannot
stop the legitimate exercise of power on an invocation of grounds better left interred in a bygone age and time.* As
we review the efforts of the political departments to bring about self-sufficiency, if not eventual abundance, we
continue to maintain the liberal approach because the primary responsibility and the discretion belong to them.
There can be no doubt that expropriation for such traditions' purposes as the construction of roads, bridges, ports,
waterworks, schools, electric and telecommunications systems, hydroelectric power plants, markets and
slaughterhouses, parks, hospitals, government office buildings, and flood control or irrigation systems is valid.
However, the concept of public use is not limited to traditional purposes. Here as elsewhere the Idea that "public
use" is strictly limited to clear cases of "use by the public" has been discarded.
In the United States, the rule was enunciated in Berman v. Parker (348 U.S. 25; 99 L. ed. 27) as follows:
We do not sit to determine whether a particular housing project is or is not desirable. The concept of
the public welfare is broad and inclusive. See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424,
96 L ed 469, 472, 72 S Ct 405. The values it represents are spiritual as well as physical, aesthetic as
well as monetary. It is within the power of the legislature to determine that the community should be
beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.
In the present case, the Congress and its authorized agencies have made determinations that take
into account a wide variety of values. It is not for us to reappraise them. If those who govern the
District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is
nothing in the Fifth Amendment that stands in the way.
Once the object is within the authority of Congress, the right to realize it through the exercise of
eminent domain is clear. For the power of eminent domain is merely the means to the end. See
Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L ed 808, 810, 14 S Ct 891; United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated from the rest of North Carolina because of the flooding of
the reservoir of a dam thus making the provision of police, school, and health services unjustifiably expensive, the
government decided to expropriate the private properties in the village and the entire area was made part of an
adjoining national park. The district court and the appellate court ruled against the expropriation or excess
condemnation. The Court of Appeals applied the "use by the public" test and stated that the only land needed for
public use was the area directly flooded by the reservoir. The village may have been cut off by the dam but to also
condemn it was excess condemnation not valid under the "Public use" requirement. The U.S. Supreme Court
inUnited States ex rel TVA v. Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It stated:
The Circuit Court of Appeals, without expressly relying on a compelling rule of construction that
would give the restrictive scope to the T.V.A. Act given it by the district court, also interpreted the
statute narrowly. It first analyzed the facts by segregating the total problem into distinct parts, and
thus came to the conclusion that T.V.A.'s purpose in condemning the land in question was only one
to reduce its liability arising from the destruction of the highway. The Court held that use of the lands
for that purpose is a "private" and not a "public use" or, at best, a "public use" not authorized by the
statute. we are unable to agree with the reasoning and conclusion of the Circuit Court of Appeals.
We think that it is the function of Congress to decide what type of taking is for a public use and that
the agency authorized to do the taking may do so to the still extent of its statutory authority, United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of the judicial power to determine what is a "public use" in
Fourteenth Amendment controversies, this Court has said that when Congress has spoken on this
subject "Its decision is entitled to deference until it is shown to involve an impossibility." Old
Dominion Land Co. v. United States, 269, US 55, 66, 70 L ed 162, 46 S Ct 39. Any departure from
this judicial restraint would result in courts deciding on what is and is not a governmental function
and in their invalidating legislation on the basis of their view on that question at the moment of

decision, a practice which has proved impracticable in other fields. See Case v. Bowles decided
February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438. New York v. United States, 326 US
572 ante 326, 66 S Ct 310). We hold that the T.V.A. took the tracts here involved for a public
purpose, if, as we think is the case, Congress authorized the Authority to acquire, hold, and use the
lands to carry out the purposes of the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the statutory and judicial trend as
follows:
The taking to be valid must be for public use. There was a time when it was felt that a literal meaning
should be attached to such a requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not any more.
As long as the purpose of the taking is public, then the power of eminent domain comes into play. As
just noted, the constitution in at least two cases, to remove any doubt, determines what is public use.
One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The
other is in the transfer, through the exercise of this power, of utilities and other private enterprise to
the government. It is accurate to state then that at present whatever may be beneficially employed
for the general welfare satisfies the requirement of public use. (Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)
The petitioners' contention that the promotion of tourism is not "public use" because private concessioners would be
allowed to maintain various facilities such as restaurants, hotels, stores, etc. inside the tourist complex is impressed
with even less merit. Private bus firms, taxicab fleets, roadside restaurants, and other private businesses using
public streets end highways do not diminish in the least bit the public character of expropriations for roads and
streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for
a private purpose. Airports and piers catering exclusively to private airlines and shipping companies are still for
public use. The expropriation of private land for slum clearance and urban development is for a public purpose even
if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies,
and other private concerns.
The petitioners have also failed to overcome the deference that is appropriately accorded to formulations of national
policy expressed in legislation. The rule in Berman u. Parker (supra) of deference to legislative policy even if such
policy might mean taking from one private person and conferring on another private person applies as well as in the
Philippines.
... Once the object is within the authority of Congress, the means by which it will be attained is also
for Congress to determine. Here one of the means chosen is the use of private enterprise for
redevelopment of the area. Appellants argue that this makes the project a taking from one
businessman for the benefit of another businessman. But the means of executing the project are for
Congress and Congress alone to determine, once the public purpose has been established. Selb
Luxton v. North River Bridge Co. (US) supra; cf. Highland v. Russel Car & Snow Plow Co. 279 US
253, 73 L ed 688, 49 S Ct 314. The public end may be as well or better served through an agency of
private enterprise than through a department of government-or so the Congress might conclude. We
cannot say that public ownership is the sole method of promoting the public purposes of community
redevelopment projects. What we have said also disposes of any contention concerning the fact that
certain property owners in the area may be permitted to repurchase their properties for
redevelopment in harmony with the over-all plan. That, too, is a legitimate means which Congress
and its agencies may adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348 US 33, 34)
An examination of the language in the 1919 cases of City of Manila v. Chinese Community of Manila (40 Phil, 349)
and Visayan Refining Co. vs. Camus, earlier cited, shows that from the very start of constitutional government in our
country judicial deference to legislative policy has been clear and manifest in eminent domain proceedings.
The expressions of national policy are found in the revised charter of the Philippine Tourism Authority, Presidential
Decree No. 564:

WHEREAS, it is the avowed aim of the government to promote Philippine tourism and work for its
accelerated and balanced growth as well as for economy and expediency in the development of the
tourism plant of the country;
xxx xxx xxx
SECTION 1. Declaration of Policy. - It is hereby declared to be the policy of the State to promote,
encourage, and develop Philippine tourism as an instrument in accelerating the development of the
country, of strengthening the country's foreign exchange reserve position, and of protecting
Philippine culture, history, traditions and natural beauty, internationally as well as domestically.
The power of eminent domain is expressly provided for under Section 5 B(2) as follows:
xxx xxx xxx
2. Acquisition of Private Lands, Power of Eminent Domain. To acquire by purchase, by
negotiation or by condemnation proceedings any private land within and without the tourist zones for
any of the following reasons: (a) consolidation of lands for tourist zone development purposes, (b)
prevention of land speculation in areas declared as tourist zones, (c) acquisition of right of way to the
zones, (d) protection of water shed areas and natural assets with tourism value, and (e) for any other
purpose expressly authorized under this Decree and accordingly, to exercise the power of eminent
domain under its own name, which shall proceed in the manner prescribed by law and/or the Rules
of Court on condemnation proceedings. The Authority may use any mode of payment which it may
deem expedient and acceptable to the land owners: Provided, That in case bonds are used as
payment, the conditions and restrictions set forth in Chapter III, Section 8 to 13 inclusively, of this
Decree shall apply.
xxx xxx xxx
The petitioners rely on the Land Reform Program of the government in raising their second argument. According to
them, assuming that PTA has the right to expropriate, the properties subject of expropriation may not be taken for
the purposes intended since they are within the coverage of "operation land transfer" under the land reform
program. Petitioners claim that certificates of land transfer (CLT'S) and emancipation patents have already been
issued to them thereby making the lands expropriated within the coverage of the land reform area under Presidential
Decree No. 2; that the agrarian reform program occupies a higher level in the order of priorities than other State
policies like those relating to the health and physical well- being of the people; and that property already taken for
public use may not be taken for another public use.
We have considered the above arguments with scrupulous and thorough circumspection. For indeed any claim of
rights under the social justice and land reform provisions of the Constitution deserves the most serious
consideration. The Petitioners, however, have failed to show that the area being developed is indeed a land reform
area and that the affected persons have emancipation patents and certificates of land transfer.
The records show that the area being developed into a tourism complex consists of more than 808 hectares, almost
all of which is not affected by the land reform program. The portion being expropriated is 282 hectares of hilly and
unproductive land where even subsistence farming of crops other than rice and corn can hardly survive. And of the
282 disputed hectares, only 8,970 square meters-less than one hectare-is affected by Operation Land Transfer. Of
the 40 defendants, only two have emancipation patents for the less than one hectare of land affected. And this
8,970 square meters parcel of land is not even within the sports complex proper but forms part of the 32 hectares
resettlement area where the petitioners and others similarly situated would be provided with proper housing,
subsidiary employment, community centers, schools, and essential services like water and electricity-which are nonexistent in the expropriated lands. We see no need under the facts of this petition to rule on whether one public
purpose is superior or inferior to another purpose or engage in a balancing of competing public interests. The
petitioners have also failed to overcome the showing that the taking of the 8,970 square meters covered by
Operation Land Transfer forms a necessary part of an inseparable transaction involving the development of the 808
hectares tourism complex. And certainly, the human settlement needs of the many beneficiaries of the 32 hectares
resettlement area should prevail over the property rights of two of their compatriots.

The invocation of the contracts clause has no merit. The non-impairment clause has never been a barrier to the
exercise of police power and likewise eminent domain. As stated in Manigault v. Springs (199 U.S. 473) "parties by
entering into contracts may not stop the legislature from enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544) which involved the expropriation of land for a
public plaza. The Court stated:
xxx xxx xxx
... What is claimed is that there must be a showing of necessity for such condemnation and that it
was not done in this case in support of such a view, reliance is placed on City of Manila v. Arenano
Law Colleges. (85 Phil. 663 [1950]) That doctrine itself is based on the earlier case of City of Manila
v. Chinese Community of Manila, (50 Phil. 349) also, like Camus, a 1919 decision. As could be
discerned, however, in the Arellano Law Colleges decision. it was the antiquarian view of Blackstone
with its sanctification of the right to one's estate on which such an observation was based. As did
appear in his Commentaries: "So great is the regard of the law for private property that it will not,
authorize the least violation of it, even for the public good, unless there exists a very great necessity
thereof." Even the most , cursory glance at such well-nigh absolutist concept of property would show
its obsolete character at least for Philippine constitutional law. It cannot survive the test of the 1935
Constitution with its mandates on social justice and protection to labor. (Article II, Section 5 of the
1935 Constitution reads: "The promotion of social justice to unsure the well-being and economic
security of all the people should be the concern of the State." Article XI, Section 6 of the same
Constitution provides: "The State shall afford protection to labor, especially to working women and
minors, and shall regulate the relation between landowner and tenant, and between labor and capital
in industry and in agriculture. The State may provide for compulsory arbitration.") What is more, the
present Constitution pays even less heed to the claims of property and rightly so. After stating that
the State shall promote social justice, it continues: "Towards this end, the State shall regulate the
acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits." (That is the second sentence of Article II, Section 6 of the
Constitution) If there is any need for explicit confirmation of what was set forth in Presidential Decree
No. 42, the above provision supplies it. Moreover, that is merely to accord to what of late has been
the consistent course of decisions of this Court whenever property rights are pressed unduly. (Cf.
Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172; Agricultural Credit
and Cooperative Financing Administration v. Confederation of Unions, L-21484, Nov. 29, 1969, 30
SCRA 649; Edu v. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481; Phil. Virginia Tobacco
Administration v. Court of Industrial Relations, L-32052, July 25, 1975, 65 SCRA 416) The statement
therefore, that there could be discerned a constitutional objection to a lower court applying a
Presidential Decree, when it leaves no doubt that a grantee of the power of eminent domain need
not prove the necessity for the expropriation, carries its own refutation.
xxx xxx xxx
The issue of prematurity is also raised by the petitioners. They claim that since the necessity for the taking has not
been previously established, the issuance of the orders authorizing the PTA to take immediate possession of the
premises, as well as the corresponding writs of possession was premature.
Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the government, its agency or
instrumentality, as plaintiff in an expropriation proceedings is authorized to take immediate possession, control and
disposition of the property and the improvements, with power of demolition, notwithstanding the pendency of the
issues before the court, upon deposit with the Philippine National Bank of an amount equivalent to 10% of the value
of the property expropriated. The issue of immediate possession has been settled in Arce v. Genato(supra). In
answer to the issue:
... whether the order of respondent Judge in an expropriation case allowing the other respondent, ...
to take immediate possession of the parcel of land sought to be condemned for the beautification of
its public plaza, without a prior hearing to determine the necessity for the exercise of the power of
eminent domain, is vitiated by jurisdictional defect, ...

this Court held that:

... It is not disputed that in issuing such order, respondent Judge relied on Presidential Decree No.
42 issued on the 9th of November, 1972. (Presidential Decree No. 42 is entitled "Authorizing the
Plaintiff in Eminent Domain Proceedings to Take Possession of the Property involved Upon
Depositing the Assessed Value for Purposes of Taxation.") The question as thus posed does not
occasion any difficulty as to the answer to be given. This petition for certiorari must fail, there being
no showing that compliance with the Presidential Decree, which under the Transitory Provisions is
deemed a part of the law of the land, (According to Article XVII, Section 3 par. (2) of the Constitution:
"All proclamations, orders, decrees, instructions and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations. orders, decrees instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly") would be characterized as either an act in excess of jurisdiction or a grave
abuse of discretion. So we rule.
Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449-50, June 9, 1980), this Court held:
... condemnation or expropriation proceedings is in the nature of one that is quasi-in-rem wherein the
fact that the owner of the property is made a party is not essentially indispensable insofar was least
as it conncerns is the immediate taking of possession of the property and the preliminary
determination of its value, including the amount to be deposited.
In their last argument, the petitioners claim that a consequence of the expropriation proceedings would be their
forcible ejectment. They contend that such forcible ejectment is a criminal act under Presidential Decree No. 583.
This contention is not valid. Presidential Decree No. 583 prohibits the taking cognizance or implementation of orders
designed to obstruct the land reform program. It refers to the harassment of tenant- farmers who try to enforce
emancipation rights. It has nothing to do with the expropriation by the State of lands needed for public purposes. As
a matter of fact, the expropriated area does not appear in the master lists of the Ministry of Agrarian Reforms as a
teranted area. The petitioners' bare allegations have not been supported with particulars pointing to specific parcels
which are subject of tenancy contracts. The petitioners may be owner-tillers or may have some form of possessory
or ownership rights but there has been no showing of their being tenants on the disputed lands.
The petitioners have failed to overcome the burden of anyone trying to strike down a statute or decree whose
avowed purpose is the legislative perception is the public good. A statute has in its favor the presumption of validity.
All reasonable doubts should be resolved in favor of the constitutionality of a law. The courts will not set aside a law
as violative of the Constitution except in a clear case (People v. Vera, 65 Phil. 56). And in the absence of factual
findings or evidence to rebut the presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc. v.
Mayor of Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the development of the 808 hectares includes plans that would give the
petitioners and other displaced persons productive employment, higher incomes, decent housing, water and electric
facilities, and better living standards. Our dismissing this petition is, in part, predicated on those assurances. The
right of the PTA to proceed with the expropriation of the 282 hectares already Identified as fit for the establishment
of a resort complex to promote tourism is, therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of merit.
SO ORDERED.
Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin and Relova, JJ., concur.
Aquino, J, concurs in the result.
De Castro, J, is on leave.

TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA RAMIREZ and LOURDES LOMIBAO,
as component members of the STA. CRUZ BARBERSHOP ASSOCIATION, in their own behalf and in representation
of the other owners of barbershops in the City of Manila, Petitioners-Appellants, v. HON. ANTONIO J. VILLEGAS,
City Mayor of Manila, HON. HERMINIO A. ASTORGA, Vice-Mayor and Presiding Officer of the Municipal Board in
relation to Republic Act 4065, THE MUNICIPAL BOARD OF THE CITY OF MANILA and EDUARDO QUINTOS SR.,
Chief of Police of the City of Manila, Respondents-Appellees.
Joaquin P. Yuseco, Jr. for Petitioners-Appellants.
Leonardo L. Arguelles for Respondent-Appellant.

SYLLABUS

CONSTITUTIONAL LAW: POLICE POWER OF THE STATE; CONSTITUTIONALITY OF ORDINANCES BASED ON THE GENERAL
WELFARE CLAUSE SUSTAINED BY THE COURTS; ATTACK AGAINST THE VALIDITY OF ORDINANCE 4964 CANNOT SUCCEED.
The objectives behind the enactment of Ordinance 4964 are:" (1) To be able to impose payment of the license fee for
engaging in the business of massage clinic under Ordinance No. 3659 as amended by Ordinance 4767, an entirely different
measure than the ordinance regulating the business of barbershops and, (2) in order to forestall possible immorality which
might grow out of the construction of separate rooms for massage of customers." This Court has been most liberal in
sustaining ordinances based on the general welfare clause. As far back as U.S. v. Salaveria, 39 Phil. 102, a 1918 decision,
this Court through Justice Malcolm made clear the significance and scope of such a clause, which "delegates in statutory form
the police power to a municipality. This clause has been given wide application by municipal authorities and has in its relation
to the particular circumstances of the case been liberally construed by the courts. Such, it is well to recall, is the progressive
view of the Philippine Jurisprudence." As it was then, so it has continued to be. There is no showing, therefore, of the
unconstitutionality of such ordinance.

DECISION

FERNANDO, J.:

This is an appeal from an order of the lower court dismissing a suit for declaratory relief challenging the constitutionality
based on Ordinance No. 4964 of the City of Manila, the contention being that it amounts to a deprivation of property of
petitioners-appellants of their means of livelihood without due process of law. The assailed ordinance is worded thus: "It shall
be prohibited for any operator of any barber shop to conduct the business of massaging customers or other persons in any
adjacent room or rooms of said barber shop, or in any room or rooms within the same building where the barber shop is
located as long as the operator of the barber shop and the rooms where massaging is conducted is the same person." 1 As
noted in the appealed order, petitioners-appellants admitted that criminal cases for the violation of this ordinance had been
previously filed and decided. The lower court, therefore, held that a petition for declaratory relief did not lie, its availability
being dependent on there being as yet no case involving such issue having been filed. 2
Even if such were not the case, the attack against the validity cannot succeed. As pointed out in the brief of respondentsappellees, it is a police power measure. The objectives behind its enactment are:" (1) To be able to impose payment of the
license fee for engaging in the business of massage clinic under Ordinance No. 3659 as amended by Ordinance 4767, an
entirely different measure than the ordinance regulating the business of barbershops and, (2) in order to forestall possible
immorality which might grow out of the construction of separate rooms for massage of customers." 3 This Court has been
most liberal in sustaining ordinances based on the general welfare clause. As far back as U.S. v. Salaveria, 4 a 1918 decision,
this Court through Justice Malcolm made clear the significance and scope of such a clause, which "delegates in statutory form
the police power to a municipality. As above stated, this clause has been given wide application by municipal authorities and
has in its relation to the particular circumstances of the case been liberally construed by the courts. Such, it is well to recall,
is the progressive view of Philippine jurisprudence." 5 As it was then, so it has continued to be. 6 There is no showing,
therefore, of the unconstitutionality of such ordinance.
cralawnad

WHEREFORE, the appealed order of the lower court is affirmed. No costs.