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EN BANC

[G.R. No. L-41631. December 17, 1976.]

HON. RAMON D. BAGATSING, as Mayor of the City of Manila;


ROMAN G. GARGANTIEL, as Secretary to the Mayor; THE MARKET
ADMINISTRATOR; and THE MUNICIPAL BOARD OF MANILA ,
petitioners, vs. HON. PEDRO A. RAMIREZ, in his capacity as Presiding
Judge of the Court of First Instance of Manila, Branch XXX and the
FEDERATION OF MANILA MARKET VENDORS, INC. , respondents.

Santiago F . Alidio and Restituto R. Villanueva for petitioners.


Antonio H . Abad, Jr. for private respondent.
Federico A. Blay for petitioner for intervention.

DECISION

MARTIN , J : p

The chief question to be decided in this case is what law shall govern the publication of a
tax ordinance enacted by the Municipal Board of Manila, the Revised City Charter (R.A. 409,
as amended), which requires publication of the ordinance before its enactment and after
its approval, or the Local Tax Code (P.D. No. 231), which only demands publication after
approval. cd

On June 12, 1974, the Municipal Board of Manila enacted Ordinance No. 7522, "AN
ORDINANCE REGULATING THE OPERATION OF PUBLIC MARKETS AND PRESCRIBING
FEES FOR THE RENTALS OF STALLS AND PROVIDING PENALTIES FOR VIOLATION
THEREOF AND FOR OTHER PURPOSES." The petitioner City Mayor, Ramon D. Bagatsing,
approved the ordinance on June 15, 1974.
On February 17, 1975, respondent Federation of Manila Market Vendors, Inc. commenced
Civil Case 96787 before the Court of First Instance of Manila, presided over by respondent
Judge, seeking the declaration of nullity of Ordinance No. 7522 for the reason that (a) the
publication requirement under the Revised Charter of the City of Manila has not been
complied with; (b) the Market Committee was not given any participation in the enactment
of the ordinance, as envisioned by Republic Act 6039; (c) Section 3 (e) of the Anti-Graft
and Corrupt Practices Act has been violated; and (d) the ordinance would violate
Presidential Decree No. 7 of September 30, 1972 prescribing the collection of fees and
charges on livestock and animal products. prLL

Resolving the accompanying prayer for the issuance of a writ of preliminary injunction,
respondent Judge issued an order on March 1, 1975, denying the plea for failure of the
respondent Federation of Manila Market Vendors, Inc. to exhaust the administrative
remedies outlined in the Local Tax Code.
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After due hearing on the merits, respondent Judge rendered its decision on August 29,
1975, declaring the nullity of Ordinance No. 7522 of the City of Manila on the primary
ground of non-compliance with the requirement of publication under the Revised City
Charter. Respondent Judge ruled:
"There is, therefore, no question that the ordinance in question was not published
at all in two daily newspapers of general circulation in the City of Manila before
its enactment. Neither was it published in the same manner after approval,
although it was posted in the legislative hall and in all city public markets and city
public libraries. There being no compliance with the mandatory requirement of
publication before and after approval, the ordinance in question is invalid and,
therefore, null and void."

Petitioners moved for reconsideration of the adverse decision, stressing that (a) only a
post-publication is required by the Local Tax Code; and (b) private respondent failed to
exhaust all administrative remedies before instituting an action in court.
On September 26, 1975, respondent Judge denied the motion.
Forthwith, petitioners brought the matter to Us through the present petition for review on
certiorari.
We find the petition impressed with merits.
1. The nexus of the present controversy is the apparent con ict between the Revised
Charter of the City of Manila and the Local Tax Code on the manner of publishing a tax
ordinance enacted by the Municipal Board of Manila. For, while Section 17 of the Revised
Charter provides:
"Each proposed ordinance shall be published in two daily newspapers of general
circulation in the city, and shall not be discussed or enacted by the Board until
after the third day following such publication. . . . Each approved ordinance . . .
shall be published in two daily newspapers of general circulation in the city,
within ten days after its approval; and shall take effect and be in force on and
after the twentieth day following its publication, if no date is xed in the
ordinance."

Section 43 of the Local Tax Code directs: Cdpr

"Within ten days after their approval, certi ed true copies of all provincial, city,
municipal and barrio ordinances levying or imposing taxes, fees or other charges
shall be published for three consecutive days in a newspaper or publication
widely circulated within the jurisdiction of the local government, or posted in the
local legislative hall or premises and in two other conspicuous places within the
territorial jurisdiction of the local government. In either case, copies of all
provincial, city, municipal and barrio ordinances shall be furnished the treasurers
of the respective component and mother units of a local government for
dissemination."

In other words, while the Revised Charter of the City of Manila requires publication before
the enactment of the ordinance and after the approval thereof in two daily newspapers of
general circulation in the city, the Local Tax Code only prescribes for publication after the
approval of "ordinances levying or imposing taxes, fees or other charges" either in a
newspaper or publication widely circulated within the jurisdiction of the local government
or by posting the ordinance in the local legislative hall or premises and in two other
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conspicuous places within the territorial jurisdiction of the local government. Petitioners'
compliance with the Local Tax Code rather than with the Revised Charter of the City
spawned this litigation.
There is no question that the Revised Charter of the City of Manila is a special act since it
relates only to the City of Manila, whereas the Local Tax Code is a general law because it
applies universally to all local governments. Blackstone de nes general law as a universal
rule affecting the entire community and special law as one relating to particular persons or
things of a class. 1 And the rule commonly said is that a prior special law is not ordinarily
repealed by a subsequent general law. The fact that one is special and the other general
creates a presumption that the special is to be considered as remaining an exception of
the general, one as a general law of the land, the other as the law of a particular case. 2
However, the rule readily yields to a situation where the special statute refers to a subject
in general, which the general statute treats in particular. The exactly is the circumstance
obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks
of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas, Section
43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other
charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of
the City of Manila is doubtless dominant, but, that dominant force loses its continuity when
it approaches the realm of "ordinances levying or imposing taxes, fees or other charges" in
particular. There, the Local Tax Code controls. Here, as always, a general provision must
give way to a particular provision. 3 Special provision governs. 4 This is especially true
where the law containing the particular provision was enacted later than the one containing
the general provision. The City Charter of Manila was promulgated on June 18, 1949 as
against the Local Tax Code which was decreed on June 1, 1973. The law-making power
cannot be said to have intended the establishment of con icting and hostile systems upon
the same subject, or to leave in force provisions of a prior law by which the new will of the
legislating power may be thwarted and overthrown. Such a result would render legislation
a useless and idle ceremony, and subject the law to the reproach of uncertainty and
unintelligibility. 5
The case of City of Manila v. Teotico 6 is opposite. In that case, Teotico sued the City of
Manila for damages arising from the injuries he suffered when he fell inside an uncovered
and unlighted catchbasin or manhole on P. Burgos Avenue. The City of Manila denied
liability on the basis of the City Charter (R.A. 409) exempting the City of Manila from any
liability for damages or injury to persons or property arising from the failure of the city
of cers to enforce the provisions of the charter or any other law or ordinance, or from
negligence of the City Mayor, Municipal Board, or other of cers while enforcing or
attempting to enforce the provisions of the charter or of any other law or ordinance. Upon
the other hand, Article 2189 of the Civil Code makes cities liable for damages for the death
of, or injury suffered by any persons by reason of the defective condition of roads, streets,
bridges, public buildings, and other public works under their control or supervision. On
review, the Court held the Civil Code controlling. It is true that, insofar as its territorial
application is concerned, the Revised City Charter is a special law and the subject matter
of the two laws, the Revised City Charter establishes a general rule of liability arising from
negligence in general, regardless of the object thereof, whereas the Civil Code constitutes
a particular prescription for liability due to defective streets in particular. In the same
manner, the Revised Charter of the City prescribes a rule for the publication of "ordinance"
in general, while the Local Tax Code establishes a rule for the publication of "ordinance
levying or imposing taxes fees or other charges in particular. LibLex

In fact, there is no rule which prohibits the repeal even by implication of a special or
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speci c act by a general or broad one. 7 A charter provision may be impliedly modi ed or
superseded by a later statute, and where a statute is controlling, it must be read into the
charter notwithstanding any particular charter provision. 8 A subsequent general law
similarly applicable to all cities prevails over any con icting charter provision, for the
reason that a charter must not be inconsistent with the general laws and public policy of
the state. 9 A chartered city is not an independent sovereignty. The state remains supreme
in all matters not purely local. Otherwise stated, a charter must yield to the constitution
and general laws of the state, it is to have read into it that general law which governs the
municipal corporation and which the corporation cannot set aside but to which it must
yield. When a city adopts a charter, it in effect adopts as part of its charter general law of
such character. 1 0

2. The principle of exhaustion of administrative remedies is strongly asserted by


petitioners as having been violated by private respondent in bringing a direct suit in court.
This is because Section 47 of the Local Tax Code provides that any question or issue
raised against the legality of any tax ordinance, or portion thereof, shall be referred for
opinion to the city scal in the case of tax ordinance of a city. The opinion of the city scal
is appealable to the Secretary of Justice, whose decision shall be nal and executory
unless contested before a competent court within thirty (30) days. But, the petition below
plainly shows that the controversy between the parties is deeply rooted in a pure question
of law: whether it is the Revised Charter of the City of Manila or the Local Tax Code that
should govern the publication of the tax ordinance. In other words, the dispute is sharply
focused on the applicability of the Revised City Charter or the Local Tax Code on the point
at issue, and not on the legality of the imposition of the tax. Exhaustion of administrative
remedies before resort to judicial bodies is not an absolute rule. It admits of exceptions.
Where the question litigated upon is purely a legal one, the rule does not apply. 1 1 The
principle may also be disregarded when it does not provide a plain, speedy and adequate
remedy. It may and should be relaxed when its application may cause great and irreparable
damage. 1 2
3. It is maintained by private respondent that the subject ordinance is not a "tax ordinance,"
because the imposition of rentals, permit fees, tolls and other fees is not strictly a taxing
power but a revenue-raising function, so that the procedure for publication under the Local
Tax Code nds no application. The pretense bears its own marks of fallacy. Precisely, the
raising of revenues is the principal object of taxation. Under Section 5, Article XI of the New
Constitution, "Each local government unit shall have the power to create its own sources of
revenue and to levy taxes, subject to such provisions as may be provided by law." 1 3 And
one of those sources of revenue is what the Local Tax Code points to in particular: "Local
governments may collect fees or rentals for the occupancy or use of public markets and
premises . . ." 1 4 They can provide for and regulate market stands, stalls and privileges,
and, also, the sale, lease or occupancy thereof. They can license, or permit the use of, lease,
sell or otherwise dispose of stands, stalls or marketing privileges. 1 5
It is a feeble attempt to argue that the ordinance violates Presidential Decree No. 7, dated
September 30, 1972, insofar as it affects livestock and animal products, because the said
decree prescribes the collection of other fees and charges thereon "with the exception of
ante-mortem and post-mortem inspection fees, as well as the delivery, stockyard and
slaughter fees as may be authorized by the Secretary of Agriculture and Natural
Resources." 1 6 Clearly, even the exception clause of the decree itself permits the collection
of the proper fees for livestock. And the Local Tax Code (P.D. 231, July 1, 1973) authorizes
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in its Section 31: "Local governments may collect fees for the slaughter of animals and the
use of corrals . . ."
4. The non-participation of the Market Committee in the enactment of Ordinance No. 7522
supposedly in accordance with Republic Act No. 6039, an amendment to the City Charter
of Manila, providing that "the market committee shall formulate, recommend and adopt,
subject to the rati cation of the municipal board, and approval of the mayor , policies and
rules or regulation repealing or maneding existing provisions of the market code" does not
infect the ordinance with any germ of invalidity. 1 7 The function of the committee is purely
recommendatory as the underscored phrase suggests, its recommendation is without
binding effect on the Municipal Board and the City Mayor. Its prior acquiescence of an
intended or proposed city ordinance is not a condition sine qua non before the Municipal
Board could enact such ordinance. The native power of the Municipal Board to legislate
remains undisturbed even in the slightest degree. It can move in its own initiative and the
Market Committee cannot demur. At most, the Market Committee may serve as a
legislative aide of the Municipal Board in the enactment of city ordinances affecting the
city markets or, in plain words, in the gathering of the necessary data, studies and the
collection of consensus for the proposal of ordinances regarding city markets. Much less
could it be said that Republic Act 6039 intended to delegate to the Market Committee the
adoption of regulatory measures for the operation and administration of the city markets.
Potestas delegata non delegare potest. prcd

5. Private respondent bewails that the market stall fees imposed in the disputed ordinance
are diverted to the exclusive private use of the Asiatic Integrated Corporation since the
collection of said fees had been let by the City of Manila to the said corporation in a
"Management and Operating Contract." The assumption is of course saddled on erroneous
premise. The fees collected do not go direct to the private coffers of the corporation.
Ordinance No. 7522 was not made for the corporation but for the purpose of raising
revenues for the city. That is the object it serves. The entrusting of the collection of the
fees does not destroy the public purpose of the ordinance. So long as the purpose is
public, it does not matter whether the agency through which the money is dispensed is
public or private. The right to tax depends upon the ultimate use, purpose and object for
which the fund is raised. It is not dependent on the nature or character of the person or
corporation whose intermediate agency is to be used in applying it. The people may be
taxed for a public purpose, although it be under the direction of an individual or private
corporation. 1 8
Nor can the ordinance be stricken down as violative of Section 3(e) of the Anti-Graft and
Corrupt Practices Act because the increased rates of market stall fees as levied by the
ordinance will necessarily inure to the unwarranted bene t and advantage of the
corporation. 1 9 We are concerned only with the issue whether the ordinance in question is
intra vires. Once determined in the af rmative, the measure may not be invalidated
because of consequences that may arise from its enforcement. 2 0
ACCORDINGLY, the decision of the court below is hereby reversed and set aside.
Ordinance No. 7522 of the City of Manila, dated June 15, 1975, is hereby held to have been
validly enacted. No. costs. cdasia

SO ORDERED.
Castro, C .J ., Barredo, Makasiar, Antonio, Muñoz Palma, Aquino and Concepcion, Jr., JJ .,
concur.

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Fernando, J ., concurs but quali es his assent as to an ordinance intra vires not being open
to question "because of consequences that may arise from its enforcement."
Teehankee, J ., reserves his vote.

Footnotes

1. Cooley, The Law of Taxation, Vol. 2, 4th ed.


2. Butuan Sawmill, Inc. vs. City of Butuan, L-21516, April 29, 1966, 16 SCRA 758, citing State v.
Stoll, 17 Wall. 425.
3. Lichauco & Co. v. Apostol, 44 Phil. 145 (1922).
4. Crawford, Construction of Statutes, 265, citing U.S. v. Jackson, 143 Fed. 783.

5. See Separate Opinion of Justice Johns in Lichauco, fn. 3, citing Lewis' Sutherland Statutory
Construction, at 161.
6. L-23052, January 29, 1968, 22 SCRA 270.

7. See 73 Am Jur 2d 521.


8. McQuillin, Municipal Corporation, Vol. 6, 3rd ed., 223.
9. See Bowyer v. Camden, 11 Atl. 137.
10. McQuillin, Municipal Corporation, Vol. 6, 3rd ed., 229-230.

11. Tapales v. President and Board of Regents of the U.P., L-17523, March 30, 1963, 7 SCRA
553; C.N. Hodges v. Municipal Board of the City of Iloilo, L-18276, January 12, 1967, 19
SCRA 32-33; Aguilar v. Valencia, L-30396, July 30, 1971, 40 SCRA 214; Mendoza v. SSC,
L-29189, April 11, 1972, 44 SCRA 380.
12. Cipriano v. Marcelino, L-27793, February 28, 1972, 43 SCRA 291; Del Mar v. PVA, L-27299,
June 27, 1973, 51 SCRA 346, citing cases.
13. See City of Bacolod v. Enriquez, L-27408, July 25, 1975, Second Division, per Fernando, J .,
65 SCRA 384-85.
14. Article 5, Section 30, Chapter II.
15. McQuillin, Municipal Corporations, Vol. 7, 3rd ed., 275.
16. P.D. 7 was amended by P.D. 45 on November 10, 1972, so as to allow local governments to
charge the ordinary fee for the issuance of certi cate of ownership and one peso for the
issuance of transfer certificate for livestock.
17. The market committee is composed of the market administrator as chairman, and a
representative of each of the city treasurer, the municipal board, the Chamber of Filipino
Retailers, Inc. and the Manila Market Vendors Association Inc. as members.

18. Cooley, The Law of Taxation, Vol. 1, 394-95.


19. Section 3 (e); causing any undue injury to any party, including the government, or giving any
private party any unwarranted bene ts, advantage or preference in the discharge of his
of cial administrative or judicial functions through manifest partiality evident bad faith
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or gross inexcusable negligence. . . ."

20. Willoughby, The Constitutional Law of the United States, 668 et seq.

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EN BANC

[G.R. No. L-38429. June 30, 1988.]

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL,


petitioners-appellants, vs. COURT OF FIRST INSTANCE OF AGUSAN
DEL NORTE AND BUTUAN CITY, Branch II, and the CITY OF BUTUAN ,
respondents-appellees.

Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appellees.

DECISION

GANCAYCO , J : p

At issue in the petition for review before Us is the validity and constitutionality of
Ordinance No. 640 passed by the Municipal Board of the City of Butuan on April 21,
1969, the title and text of which are reproduced below:
"ORDINANCE — 640

ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR


CORPORATION ENGAGED IN THE BUSINESS OF SELLING ADMISSION TICKETS
TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES, CONTESTS OR OTHER
PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7) AND TWELVE
(12) YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED FOR
ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID TICKET.
xxx xxx xxx

Be it ordained by the Municipal Board of the City of Butuan in session assembled,


that:

SECTION 1 — It shall be unlawful for any person, group of persons, entity, or


corporation engaged in the business of selling admission tickets to any movie or
other public exhibitions, games, contests, or other performances to require
children between seven (7) and twelve (12) years of age to pay full payment for
admission tickets intended for adults but should charge only one-half of the value
of the said tickets.
cdrep

SECTION 2 — Any person violating the provisions of this Ordinance shall upon
conviction be punished by a ne of not less than TWO HUNDRED PESOS
(P200.00) but not more than SIX HUNDRED PESOS (P600.00) or an imprisonment
of not less than TWO (2) MONTHS or not more than SIX (6) MONTHS or both
such fine and imprisonment in the discretion of the Court.

If the violator be a rm or corporation the penalty shall be imposed upon the


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Manager, Agent or Representative of such firm or corporation.

SECTION 3 — This ordinance shall take effect upon its approval."

Petitioners are Carlos Balacuit, Lamberto Tan, and Sergio Yu Carcel, managers of
the Maya and Dalisay Theaters, the Crown Theater, and the Diamond Theater,
respectively. Aggrieved by the effect of Ordinance No. 640, they led a complaint
before the Court of First Instance of Agusan del Norte and Butuan City docketed as
Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the subject
ordinance be declared unconstitutional and, therefore, void and unenforceable.1
Upon motion of the petitioners, 2 a temporary restraining order was issued on
July 14, 1969 by the court a quo enjoining the respondent City of Butuan and its
officials from enforcing Ordinance No. 640. 4
On January 30, 1973, the litigants led their stipulation of facts. 5 On June 4,
1973, the respondent court rendered its decision, 6 the dispositive part of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of
the respondents and against the petitioners, as follows:

1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid:
Provided, however, that the ne for a single offense shall not exceed TWO
HUNDRED PESOS, as prescribed in the aforequoted Section 15 (nn) of Rep. Act
No. 523;

2. Dissolving the restraining order issued by this Court; and

3. Dismissing the complaint, with costs against the petitioners.


SO ORDERED." 7

Petitioners led their motion for reconsideration 8 of the decision of the court a
quo which was denied in a resolution of the said court dated November 10, 1973. 9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the
grounds that it is ultra vires and an invalid exercise of police power.
Petitioners contend that Ordinance No. 640 is not within the power of the
Municipal Board to enact as provided for in Section 15(n) of Republic Act No. 523, the
Charter of the City of Butuan, which states:
"Sec. 15. General powers and duties of the Board. — Except as otherwise
provided by law, and subject to the conditions and limitations thereof, the
Municipal Board shall have the following legislative powers:

xxx xxx xxx

"(n) To regulate and x the amount of the license fees for the following; . . .
theaters, theatrical performances, cinematographs, public exhibitions and all
other performances and places of amusements . . .

xxx xxx xxx

Respondent City of Butuan, on the other hand, attempts to justify the enactment
of the ordinance by invoking the general welfare clause embodied in Section 15 (nn) of
the cited law, which provides:
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"(nn) 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 Act, and to x the penalties for
the violation of the ordinances, which shall not exceed a two hundred peso ne or
six months imprisonment, or both such ne and imprisonment, for a single
offense."

We can see from the aforecited Section 15(n) that the power to regulate and x
the amount of license fees for theaters, theatrical performances, cinematographs,
public exhibitions and other places of amusement has been expressly granted to the
City of Butuan under its charter. But the question which needs to be resolved is this:
does this power to regulate include the authority to interfere in the xing of prices of
admission to these places of exhibition and amusement whether under its general
grant of power or under the general welfare clause as invoked by the City?
This is the rst time this Court is confronted with the question of direct
interference by the local government with the operation of theaters, cinematographs
and the like to the extent of xing the prices of admission to these places. Previous
decisions of this Court involved the power to impose license fees upon businesses of
this nature as a corollary to the power of the local government to regulate them.
Ordinances which required moviehouses or theaters to increase the price of their
admission tickets supposedly to cover the license fees have been held to be invalid for
these impositions were considered as not merely license fees but taxes for purposes
of revenue and not regulation which the cities have no power to exact, 1 1
Applying the ruling in Kwong Sing v. City of Manila, 1 2 where the word "regulate"
was interpreted to include the power to control, to govern and to restrain, it would
seem that under its power to regulate places of exhibitions and amusement, the
Municipal Board of the City of Butuan could make proper police regulations as to the
mode in which the business shall be exercised. llcd

While in a New York case, 1 3 an ordinance which regulates the business of selling
admission tickets to public exhibitions or performances by virtue of the power of cities
under the General City Law "to maintain order, enforce the laws, protect property and
preserve and care for the safety, health, comfort and general welfare of the inhabitants
of the city and visitors thereto; and for any of said purposes, to regulate and license
occupations" was considered not to be within the scope of any duty or power implied in
the charter. It was held therein that the power of regulation of public exhibitions and
places of amusement within the city granted by the charter does not carry with it any
authority to interfere with the price of admission to such places or the resale of tickets
or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters,
cinematographs and other places of public exhibition are subject to regulation by the
municipal council in the exercise of delegated police power by the local government. 1 4
Thus, in People v. Chan, 1 5 an ordinance of the City of Manila prohibiting rst run
cinematographs from selling tickets beyond their seating capacity was upheld as
constitutional for being a valid exercise of police power. Still in another case, 1 6 the
validity of an ordinance of the City of Bacolod prohibiting admission of two or more
persons in moviehouses and other amusement places with the use of only one ticket
was sustained as a valid regulatory police measure not only in the interest of preventing
fraud in so far as municipal taxes are concerned but also in accordance with public
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health, public safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to enact the
ordinance in question under its power to regulate embodied in Section 15(n), now
invokes the police power as delegated to it under the general welfare clause to justify
the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest
of the public generally requires 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. 1 8
Petitioners maintain that Ordinance No. 640 violates the due process clause of
the Constitution for being oppressive, unfair, unjust, con scatory, and an undue
restraint of trade, and violative of the right of persons to enter into contracts,
considering that the theater owners are bound under a contract with the film owners for
just admission prices for general admission, balcony and lodge.

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City


of Manila, 1 9 this Court held:
"The authority of municipal corporations to regulate is essentially police power.
Inasmuch as the same generally entails a curtailment of the liberty, the rights
and/or the property of persons, which are protected and even guaranteed by the
Constitution, the exercise of police power is necessarily subject to a quali cation,
limitation or restriction demanded by the regard, the respect and the obedience
due to the prescriptions of the fundamental law, particularly those forming part of
the Constitution of Liberty, otherwise known as the Bill of Rights — the police
power measure must be reasonable. In other words, individual rights may be
adversely affected by the exercise of police power to the extent only — and only to
the extent — that may be fairly required by the legitimate demands of public
interest or public welfare."

What is the reason behind the enactment of Ordinance No. 640?


A reading of the minutes of the regular session of the Municipal Board when the
ordinance in question was passed shows that a certain Councilor Calo, the proponent
of the measure, had taken into account the complaints of parents that for them to pay
the full price of admission for their children is too financially burdensome. cdll

The trial court advances the view that "even if the subject ordinance does not
spell out its raison d'etre, in all probability the respondents were impelled by the
awareness that children are entitled to share in the joys of their elders, but that
considering that, apart from size, children between the ages of seven and twelve cannot
fully grasp the nuance of movies or other public exhibitions, games, contests or other
performances, the admission prices with respect to them ought to be reduced." 19a
We must bear in mind that there must be public necessity which demands the
adoption of proper measures to secure the ends sought to be attained by the
enactment of the ordinance, and the large discretion is necessarily vested in the
legislative authority to determine not only what the interests of the public require, but
what measures are necessary for the protection of such interests. 2 0 The methods or
means used to protect the public health, morals, safety or welfare, must have some
relation to the end in view, for under the guise of the police power, personal rights and
those pertaining to private property will not be permitted to be arbitrarily invaded by the
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legislative department. 2 1
We agree with petitioners that the ordinance is not justi ed by any necessity for
the public interest. The police power legislation must be rmly grounded on public
interest and welfare, and a reasonable relation must exist between purposes and
means. 2 2 The evident purpose of the ordinance is to help ease the burden of cost on
the part of parents who have to shell out the same amount of money for the admission
of their children, as they would for themselves. A reduction in the price of admission
would mean corresponding savings for the parents; however, the petitioners are the
ones made to bear the cost of these savings. The ordinance does not only make the
petitioners suffer the loss of earnings but it likewise penalizes them for failure to
comply with it. Furthermore, as petitioners point out, there will be dif culty in its
implementation because as already experienced by petitioners since the effectivity of
the ordinance, children over 12 years of age tried to pass off their age as below 12
years in order to avail of the bene t of the ordinance. The ordinance does not provide a
safeguard against this undesirable practice and as such, the respondent City of Butuan
now suggests that birth certi cates be exhibited by movie house patrons to prove the
age of children. This is, however, not at all practicable. We can see that the ordinance is
clearly unreasonable if not unduly oppressive upon the business of petitioners.
Moreover, there is no discernible relation between the ordinance and the promotion of
public health, safety, morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from
the pernicious practice of movie operators and other public exhibitions promoters or
the like of demanding equal price for their admission tickets along with the adults. This
practice is allegedly repugnant and unconscionable to the interest of the City in the
furtherance of the prosperity, peace, good order, comfort, convenience and the general
well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and
adults. The petitioners are merely conducting their legitimate businesses. The object of
every business entrepreneur is to make a pro t out of his venture. There is nothing
immoral or injurious in charging the same price for both children and adults. In fact, no
person is under compulsion to purchase a ticket. It is a totally voluntary act on the part
of the purchaser if he buys a ticket to such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and
necessary to lessen the economic burden of parents whose minor children are lured by
the attractive nuisance being maintained by the petitioners. Respondent further alleges
that by charging the full price, the children are being exploited by movie house
operators. We fail to see how the children are exploited if they pay the full price of
admission. They are treated with the same quality of entertainment as the adults. The
supposition of the trial court that because of their age children cannot fully grasp the
nuances of such entertainment as adults do fails to convince Us that the reduction in
admission ticket price is justi able. In fact, by the very claim of respondent that movies
and the like are attractive nuisances, it is dif cult to comprehend why the municipal
board passed the subject ordinance. How can the municipal authorities consider the
movies an attractive nuisance and yet encourage parents and children to patronize
them by lowering the price of admission for children? Perhaps, there is some truth to
the argument of petitioners that Ordinance No. 640 is detrimental to the public good
and the general welfare of society for it encourages children of tender age to frequent
the movies, rather than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater
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operators will be discouraged from exhibiting wholesome movies for general
patronage, much less children's pictures if only to avoid compliance with the ordinance
and still earn pro ts for themselves. For after all, these movie house and theater
operators cannot be compelled to exhibit any particular kind of lm except those lms
which may be dictated by public demand and those which are restricted by censorship
laws. So instead of children being able to share in the joys of their elders as envisioned
by the trial court, there will be a dearth of wholesome and educational movies for them
to enjoy.
There are a number of cases decided by the Supreme Court and the various state
courts of the United States which upheld the right of the proprietor of a theater to x
the price of an admission ticket as against the right of the state to interfere in this
regard and which We consider applicable to the case at bar. LibLex

A theater ticket has been described to be either a mere license, revocable at the
will of the proprietor of the theater or it may be evidence of a contract whereby, for a
valuable consideration, the purchaser has acquired the right to enter the theater and
observe the performance on condition that he behaves properly. 2 3 Such ticket,
therefore, represents a right, positive or conditional, as the case may be, according to
the terms of the original contract of sale. This right is clearly a right of property. The
ticket which represents that right is also, necessarily, a species of property. As such,
the owner thereof, in the absence of any condition to the contrary in the contract by
which he obtained it, has the clear right to dispose of it, to sell it to whom he pleases
and at such price as he can obtain. 2 4 So that an act prohibiting the sale of tickets to
theaters or other places of amusement at more than the regular price was held invalid
as conflicting with the state constitution securing the right of property. 2 5
In Collister vs. Hayman, 2 6 it was held:
"The defendants were conducting a private business, which, even if clothed with a
public interest, was without a franchise to accommodate the public, and they had
the right to control it, the same as the proprietors of any other business, subject to
such obligations as were placed upon them by statute. Unlike a carrier of
passengers, for instance, with a franchise from the state, and hence under
obligation to transport anyone who applies and to continue the business year in
and year out, the proprietors of a theater can open and close their place at will,
and no one can make a lawful complaint. They can charge what they choose for
admission to their theater. They can limit the number admitted. They can refuse
to sell tickets and collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on. They can make it a
part of the contract and condition of admission, by giving due notice and printing
the condition in the ticket that no one shall be admitted under 21 years of age, or
that men only or women only shall be admitted, or that a woman cannot enter
unless she is accompanied by a male escort, and the like. The proprietors, in the
control of their business, may regulate the terms of admission in any reasonable
way. If those terms are not satisfactory, no one is obliged to buy a ticket or make
the contract. If the terms are satisfactory, and the contract is made, the minds of
the parties meet upon the condition, and the purchaser impliedly promises to
perform it."

In Tyson and Bro .- United Theater Ticket Of cers, Inc. vs. Banton, 2 7 the United
States Supreme Court held:

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". . . . And certainly a place of entertainment is in no legal sense a public utility;
and quite as certainly, its activities are not such that their enjoyment can be
regarded under any conditions from the point of view of an emergency.
"The interest of the public in theaters and other places of entertainment may be
more nearly, and with better reason, assimilated to the like interest in provision
stores and markets and in the rental of houses and apartments for residence
purposes; although in importance it fails below such an interest in the proportion
that food and shelter are of more moment than amusement or instruction. As we
have shown there is no legislative power to x the prices of provisions or clothing,
or the rental charges for houses and apartments, in the absence of some
controlling emergency; and we are unable to perceive any dissimilarities of such
quality or degree as to justify a different rule in respect of amusements and
entertainment . . ."

We are in consonance with the foregoing observations and conclusions of


American courts. In this jurisdiction, legislation had been passed controlling the prices
of goods, commodities and drugs during periods of emergency, 2 8 limiting the net
pro ts of public utility 2 9 as well as regulating rentals of residential apartments for a
limited period, 30 as a matter of national policy in the interest of public health and safety,
economic security and the general welfare of the people. And these laws cannot be
impugned as unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other
exhibitions. In no sense could these businesses be considered public utilities. The State
has not found it appropriate as a national policy to interfere with the admission prices
to these performances. This does not mean however, that theaters and exhibitions are
not affected with public interest even to a certain degree. Motion pictures have been
considered important both as a medium for the communication of ideas and
expression of the artistic impulse. Their effects on the perceptions by our people of
issues and public of cials or public gures as well as the prevailing cultural traits are
considerable. 3 1 People of all ages ock to movie houses, games and other public
exhibitions for recreation and relaxation. The government realizing their importance has
seen it t to enact censorship laws to regulate the movie industry. 3 2 Their aesthetic
entertainment and even educational values cannot be underestimated. Even police
measures regulating the operation of these businesses have been upheld in order to
safeguard public health and safety. llcd

Nonetheless, as to the question of the subject ordinance being a valid exercise of


police power, the same must be resolved in the negative. While it is true that a business
may be regulated, it is equally true that such regulation must be within the bounds of
reason, that is, the regulatory ordinance must be reasonable, and its provisions cannot
be oppressive amounting to an arbitrary interference with the business or calling
subject of regulation. A lawful business or calling may not, under the guise of regulation,
be unreasonably interfered with even by the exercise of police power. 3 3 A police
measure for the regulation of the conduct, control and operation of a business should
not encroach upon the legitimate and lawful exercise by the citizens of their property
rights. 3 4 The right of the owner to x a price at which his property shall be sold or used
is an inherent attribute of the property itself and, as such, within the protection of the
due process clause. 3 6
Respondent City of Butuan argues that the presumption is always in favor of the
validity of the ordinance. This may be the rule but it has already been held that although
the presumption is always in favor of the validity or reasonableness of the ordinance,
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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. 3 8
Ordinance No. 640 clearly invades the personal and property rights of petitioners
for even if We could assume that, on its face, the interference was reasonable, from the
foregoing considerations, it has been fully shown that it is an unwarranted and unlawful
curtailment of the property and personal rights of citizens. For being unreasonable and
an undue restraint of trade, it cannot, under the guise of exercising police power, be
upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby
REVERSED and SET ASIDE and a new judgment is hereby rendered declaring Ordinance
No. 640 unconstitutional and, therefore, null and void. This decision is immediately
executory.
SO ORDERED.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-Aquino, JJ., concur.
Fernan, Melencio-Herrera, Feliciano, and Cortes, JJ., in the result.
Medialdea, J., took no part.

Separate Opinion
GUTIERREZ, JR., J ., concurring :

I concur with the majority opinion insofar as it sets aside and nulli es the
questioned ordinance of Butuan City. cdphil

The issue before the Court is a simple one. Does Butuan City have the power to
compel theatre owners to charge only half fares for children below twelve even as they
charge all other moviegoers full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping
justi cation of property rights, I believe, however, that we should do so on a more
limited ground directly bearing on the issue.
I nd no rational basis for classifying children as a distinct group insofar as
paying for admission into a moviehouse is concerned. There is absolutely no pretense
that the municipal ordinance is intended to protect children, enhance their morals,
promote their health, safeguard their safety, improve their education, or otherwise
promote the general welfare. In fact, the effect of the ordinance may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they
may neglect their studies or use money intended for food or school supplies to enter
moviehouses. Movie owners who are compelled to accept half prices for a newly
increased group of young patrons will be tempted to allow them to enter moviehouses
indiscriminately, including those where scenes of violence, crime, or even sex are
portrayed. Addiction of the young to movie going is definitely injurious to their health.
The avowed purpose of the ordinance — to ease the burden of costs for parents
who have to shell out the same amount of money for the admission of their children as
they would for themselves — is not covered by police power. If the city cannot compel
refreshment parlors to charge half-prices for hamburgers, soft drinks, pizzas, or cakes
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consumed by children by what authority can it impose the obligation of similarly easing
parents' burdens upon the owners of moviehouses?
As discussed by the majority opinion, the legislature may not, under the guise of
protecting the public interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. The imposition enacted
by the municipal board of Butuan City has not been justi ed by its proponents as a
restriction necessary for public health or public welfare. No reasonable relationship has
been shown between a valid purpose and the proper means to accomplish it. prcd

I hesitate, however, to make a brief for owners of theaters and expound a laissez
faire approach insofar as their businesses are concerned. Moviehouses may not be
public utilities but as places of entertainment affected with a certain degree of public
interest, they are subject to reasonable regulation. That regulation is stronger and more
restrictive than that of regular or ordinary businesses.
The following citation for instance, is pure obiter insofar as half-prices for minors
are concerned:
". . . . [T]he proprietors of a theater can open and close their place at will, and no
one can make lawful complaint. They can charge what they choose for
admission to their theater. They can limit the number admitted. They can refuse
to sell tickets and collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on. They can make it a
part of the contract and a condition of admission, by giving due notice and
printing the condition in the ticket that no one shall be admitted under 21 years of
age, or that men only or women only shall be admitted, or that a woman cannot
enter unless she is accompanied by a male escort, and the like. The proprietors, in
the control of their business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is obliged to buy a
ticket or make the contract. If the terms are satisfactory, and the contract is made,
the minds of the parties meet upon the condition, and the purchaser impliedly
promises to perform it." (Collister v. Hayman, 76 N.E. 20, 183 N.Y. 250, 253, 1
L.R.A. [N.S.] 1188, 11 Am. St. Rep. 740, An. Cas. 344)

I see no reason at this time why we should pass upon situations that are not
before us or warn municipal governments beforehand to avoid enacting certain
regulations when nobody knows exactly what circumstances may call for those
regulations.

For instance,
"A theater ticket has been described to be either a mere license, revocable at the
will of the proprietor of the theater or it may be evidence of a contract whereby, for
a valuable consideration, the purchaser has acquired the right to enter the theater
and observe the performance on condition that he behaves properly (Law of the
State. Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore,
represents a right, positive or conditional, as the case may be, according to the
terms of the original contract of sale. This right is clearly a right of property. The
ticket which represents that right is also, necessarily, a species of property. As
such, the owner thereof, in the absence of any condition to the contrary in the
contract by which he obtained it, has the clear right to dispose of it, to sell it to
whom he pleases and at such price as he can obtain (Ibids, citing Ex-parte Quarg,
84 Pac., 766, 149 Cal. 79, 80, 5 L.R.A. [N.S.], 183, 117 Am. St. Rep. 115, 9 Ann. Ca.
747; Also People v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep.
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321, 83 N.E. 236). . . . ."
xxx xxx xxx
". . . A lawful business or calling may not, under the guise of regulation, be
unreasonably interfered with even by the exercise of police power. (Ogden City v.
Leo, 54 Utah 556, 182 P. 530) A police measure for the regulation of the conduct,
control and operation of a business should not encroach upon the legitimate and
lawful exercise by the citizens of their property rights (Pampanga Bus Co., Inc. v.
Municipality of Tarlac, 3 SCRA 816). The right of the owner to x a price at which
his property shall be sold or used is an inherent attribute of the property itself and,
as such, within the protection of the due process clause (Tyson and Bro.- United
Theater Ticket Of cers, Inc. v. Banton, supra). Hence the proprietors of a theater
have a right to manage their property in their own way, to x what prices of
admission they think most for their own advantage, and that any person who did
not approve could stay away (Ibid, citing Clifford v. Brandon, 2 Campb. 358,
368.)."

may be interpreted as carte blanche for movie owners to practically ignore municipal
regulation and do as they please.
More appropriate to my mind is to state that while the Butuan City ordinance is
invalid, it does not necessarily follow that all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
"In the rst place, it must be noted that there can be no doubt that the City of
Manila exercises police power by delegation and that in the exercise of that
power, it is authorized to enact ordinances for the regulation of the operation of
theaters and cinematographs (sec. 2444(m) and (ee) of the Revised
Administrative Code; U.S. v. Gomez Jesus, 31 Phil. 218, U.S. v. Pompeya, 31 Phil.
245).

"On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it provides that
all rst run theaters or cinematographs should register their seating capacity with
the City Treasurer, and in section 1 it prohibits the sale of tickets in said theaters
or cinematographs in excess of their registered seating capacity. cdll

"Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on
July 22, 1933, was in force, section 1 of which divides cinematographs into three
different classes: rst, second and third. The rst class includes those located on
certain and speci ed streets like Rosario, Escolta, etc., which exhibit lms for the
rst time; those belonging to the second class are those which, not being located
on said streets, also exhibit lms for the rst time, and those which, being located
on said streets, regularly show lms for the second time or which have the
exclusive right to show secondhand lms; and the third class comprehends all
those which are not included in the first and second classes.
xxx xxx xxx
"To the foregoing must be added, and this is of common knowledge, that the
lms which are shown for the rst time attract a large attendance, and the theatre
or cinematograph, whether it is first or second class, presenting shows for the first
time, would be suffocatingly overcrowded if the number of tickets were not
limited. This is the reason for the prohibition of the sale of tickets in excess of the
seating capacity. The prohibition applies with equal force wherever the same
reason exists, that is, to rst and second class theatres which show lms for the
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first time." (at pp. 612-613)

There being a rational basis for the restriction of sales of tickets beyond seating
capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60
SCRA 274):
"When it is further remembered that insofar as movie houses and other places of
amusement are concerned. (According to Section 17[1] of the City Charter of
Bacolod, Commonwealth Act No. 326 [1938]: 'To regulate and x the amount of
the fees for the following: . . . theatres, theatrical performances, cinematographs,
public exhibitions, circuses and all other performances and places of
amusements . . .') the least doubt cannot be entertained as to the validity of a
measure prohibiting a proprietor, lessee or operator of an amusement place to
admit two or more persons with only one admission ticket, not only in the interest
of preventing fraud insofar as municipal taxes are concerned but also in
accordance with public health, public safety and the general welfare. (Cf. People
v. Chan, 65 Phil. 611 [1938]). An American Supreme Court decision, Western Turf
Association v. Greenberg, (204 US 359 [1907] the opinion being penned by Justice
Harlan, is equally illuminating: 'The statute is only a regulation of places of public
entertainment and amusement upon terms of equal and exact justice to everyone
holding a ticket of admission, and who is not, at the time, under the in uence of
liquor, or boisterous in conduct, or of lewd and immoral character . . . Such a
regulation, in itself just, is likewise promotive of peace and good order among
those who attend places of public entertainment and amusement. It is neither an
arbitrary exertion of the state's inherent or governmental power, nor a violation of
any right secured by the constitution of the United States." (at pp. 363-364)

The City of Butuan tries to justify the challenged ordinance by invoking police
power. The invocation is improper. The de nitions of police power, including its
exercise based on the general welfare clause, are emphasized to show that the
respondents' arguments have no merit —
"Police power is inherent in the State but not in municipal corporations. For a
municipal corporation to exercise police power, there must be a legislative grant
which necessarily also sets the limits for the exercise of the power.
"In the Philippines, the grant of authority to the municipality to exercise police
power is embodied in Section 2238 of the Revised Administrative Code, otherwise
known as the General Welfare Clause. Chartered cities are granted similar
authority in their respective charters.

"The general welfare clause has two branches. The rst authorizes the municipal
council to enact such ordinances and make such regulations not repugnant to
law, as may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. The second branch authorizes the
municipality to enact such ordinances as may be necessary and proper for the
health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and inhabitants thereof, and for the
protection of property therein. (U.S. v. Salaveria, 39 Phil. 103)."

This Court has generally been liberal in sustaining municipal action based on the
general welfare clause. In the case before us, however, there appears to be no basis for
sustaining the ordinance even on a generous interpretation of the general welfare
clause. LexLib

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Footnotes

1. Pages 1-8, Record on Appeal.

2. Pages 11-17, supra.


3. Pages 17-18, supra.

4. Pages 21-23, supra.

5. Pages 25-26, supra.


6. Pages 18-28, Rollo.

7. Penned by Judge Vicente B. Echaves, Jr.

8. Pages 35-41, Record on Appeal.


9. Pages 47-49, supra.

10. Lacson v. Bacolod City, 4 SCRA 1001; Arong v. Raffinan, 98 Phil. 422, citing City of
Baguio v. Jose de la Rosa, et al., G.R. No. L-8268-70.
11. Eastern Theatrical Company, Inc. v. Victor Antonio, et al., 46 O.G. (supp.) 30, cited in.
Arong v. Raffinan, supra.

12. 41 Phil. 103. See also Samson v. Mayor of Bacolod City, 60 SCRA 267.
13. In re Gilchrist, 181 N.Y.S. 245, 110 Misc. Rep. 362.

14. Sec. 2238 of the Revised Administrative Code of 1917, as amended, now found in Sec.
149(a) and Sec. 177(a) of the Local Government Code. The general welfare clause has
been similarly set forth in various city charters.
15. 65 Phil. 611.

16. Samson v. Mayor of Bacolod City, supra.


17. U.S. v. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Kwong Siog v. City of
Manila, supra.

18. Fabie v. City of Manila, supra.


19. 24 SCRA 856.

19a. a Page 25, Rollo.


20. Fabie v. City of Manila, supra.

21. Kirtley v. State, 84 N.E. 2d. 712.


22. Ichong v. Hernandez, 101 Phil. 1151.

23. Law of the Stage, Screen and Radio by Marchetti, 1939 ed., page 268.

24. Ibid, citing Ex-parte Quarg, 84 Pac. 766, 149 Cal. 79, 80, 5 L.R.A. (N.S.) 183, 117 Am. St.
Rep. 115, 9 Ann. Ca. 747; Also, People v. Steele, 231 III. 340, 344, 14 L.R.A. (N.S.) 361,
121 Am. St. Rep. 321, 83 N.E. 236.
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25. Ex-Parte Quarg, supra.
26. 76 N.E. 20, 183 N.Y. 250, 253, 1 L.R.A. (N.S.) 1188, 11 Am. St. Rep. 740, An. Cas. 344.

27. 273 U.S. 418-456.


28. People v. Chuchi, 92 Phil. 977; People v. Dela Cruz, 92 Phil. 906.

29. Alalayan v. National Power Corporation, 24 SCRA 172.

30. B.P. Blg. 877. See also Homeowners' Association of the Philippines, Inc. v. Municipal
Board of Manila, supra.

31. Gonzales v. Kalaw-Katigbak, 137 SCRA 717.


32. P.D. No. 1986, amending R.A. 3060.

33. Ogden City v. Leo, 54 Utah 556, 182 P. 530.

34. Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3 SCRA 816.


35. Tyson and Bro. — United Theater Ticket Officers Inc. v. Banton, supra.

36. Ibid, citing Clifford v. Brandon, 2 Campb. 358, 368.


37. Morcoin Co. Ltd. v. City of Manila, 1 SCRA 310.

38. Dela Cruz v. Paras, 123 SCRA 569; U.S. v. Salaveria, 39 Phil. 102.

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SECOND DIVISION

[G.R. No. 129093. August 30, 2001.]

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF


LAGUNA, and HON. CALIXTO CATAQUIZ , petitioners, vs . HON.
FRANCISCO DIZON PAÑO and TONY CALVENTO , respondents.

Office of the Provincial Legal Officer for petitioners.


Edgardo B. Arellano for private respondent.

SYNOPSIS

Private respondent applied for a mayor's permit to operate a lotto outlet in San Pedro,
Laguna. It was denied on the ground that an ordinance entitled Kapasiyahan Blg. 508, T.
1995 dated September 18, 1995 of the Sangguniang Panlalawigan of Laguna prohibited
gambling in the province, including the operation of lotto. With the denial of his application,
private respondent led an action for declaratory relief with prayer for preliminary
injunction and temporary restraining order. The trial court rendered judgment in favor of
private respondent enjoining petitioners from implementing or enforcing the subject
resolution. Motion for its reconsideration was denied. Hence, this recourse. Petitioners
contended that "the resolution is a policy declaration of the provincial government of
Laguna on its vehement opposition and/or objection to the operation of and/or all forms
of gambling including the lotto operation" and thus it is valid. On the other hand, private
respondent argued that the same curtailed the power of the state since the legislature
itself had declared lotto as legal and permitted its operation around the country.
The Court found that the questioned ordinance merely stated the "objection" of the council
to all forms of gambling including lotto. It is a mere policy statement and could not serve
as a valid ground to prohibit the operation of lotto, which is a legitimate business activity
duly authorized by the national government through an Act of Congress. In our system of
government, the power of the local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress and these should not
contravene an existing statute enacted by Congress as the delegate cannot be superior to
the principal or exercise powers higher than those of the latter. Petition was denied and
the assailed order was affirmed. STHAID

SYLLABUS

1. POLITICAL LAW; LOCAL GOVERNMENT; ORDINANCE; POLICY STATEMENT IN


RESOLUTION EXPRESSING OBJECTION TO LOTTO, VALID; CASE AT BAR. — The
ordinance, Kapasiyahan Blg. 508, T. 1995 of the Sangguniang Panlalawigan of Laguna,
merely states the "objection" of the council to the operation of lotto. It is but a mere policy
statement on the part of the local council, which is not self-executing. Nor could it serve as
a valid ground to prohibit the operation of the lotto system in the province of Laguna. Even
petitioners admit this in their petition. As a policy statement expressing the local
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government's objection to the lotto, such resolution is valid. This is part of the local
government's autonomy to air its views which may be contrary to that of the national
government's. However, this freedom to exercise contrary views does not mean that local
governments may actually enact ordinances that go against laws duly enacted by
Congress. Given this premise, the assailed resolution in this case could not and should not
be interpreted as a measure or ordinance prohibiting the operation of lotto. To conclude
our resolution of the rst issue, respondent mayor of San Pedro cannot avail of
Kapasiyahan Bilang 508, Taon 1995 , of the Provincial Board of Laguna as justi cation to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the
local legislative unit concerned. The Board's enactment, like spring water, could not rise
above its source of power, the national legislature.
2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; GAME OF LOTTO MADE LEGAL
BY LAW; CANNOT BE PROHIBITED BY ORDINANCE PASSED BY LOCAL GOVERNMENT
UNIT. — The game of lotto is a game of chance duly authorized by the national government
through an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42,
is the law which grants a franchise to the PCSO and allows it to operate the lotteries. This
statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan
of Laguna, a local government unit, cannot issue a resolution or an ordinance that would
seek to prohibit permits. Stated otherwise, what the national legislature expressly allows
by law, such as lotto, a provincial board may not disallow by ordinance or resolution.
3. ID.; ID.; DELEGATED POWER OF LEGISLATION; ORDINANCES SHOULD NOT
CONTRAVENE EXISTING STATUTE ENACTED BY CONGRESS. — In our system of
government, the power of local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress. Ours is still a unitary form
of government, not a federal state. Being so, any form of autonomy granted to local
governments will necessarily be limited and con ned within the extent allowed by the
central authority. Besides, the principle of local autonomy under the 1987 Constitution
simply means "decentralization." It does not make local governments sovereign within the
state or an "imperium in imperio."
4. ID.; ID.; ID.; ID.; RATIONALE. — The reasons for this is obvious, as elucidated in Magtajas
v. Pryce Properties Corp. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers conferred upon
them by Congress as the national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a heresy to suggest that
the local government units can undo the acts of Congress, from which they have derived
their power in the first place, and negate by mere ordinance the mandate of the statute.
5. ADMINISTRATIVE LAW, LOCAL GOVERNMENT CODE; PRIOR CONSULTATION
REQUIRED IN SECTIONS 2(C) AND 27 THEREOF APPLY TO NATIONAL PROGRAMS OR
PROJECTS IMPLEMENTED BY LOCAL COMMUNITY; LOTTO NOT EMBRACED THEREIN. —
As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and
27 of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. From a careful reading of
said provisions, we nd that these apply only to national programs and/or projects which
are to be implemented in a particular local community. Lotto is neither a program nor a
project of the national government, but of a charitable institution, the PCSO. Though
sanctioned by the national government, it is far fetched to say that lotto falls within the
contemplation of Sections 2 (c) and 27 of the Local Government Code.
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DECISION

QUISUMBING , J : p

For our resolution is a petition for review on certiorari seeking the reversal of the decision 1
dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93,
enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995 ,
of the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April 21,
1997 denying petitioners' motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Of ce (PCSO) to install Terminal OM 20 for the operation of lotto. He
asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open
the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19, 1996.
The ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of
Laguna entitled Kapasiyahan Blg . 508, T. 1995 which was issued on September 18, 1995.
The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA
ANG LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit
sa mga kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg.
Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong
pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang
uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto;
IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno
ng Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin
ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna
lalo na ang "Jueteng". 3
As a result of this resolution of denial, respondent Calvento led a complaint for
declaratory relief with prayer for preliminary injunction and temporary restraining order. In
the said complaint, respondent Calvento asked the Regional Trial Court of San Pedro
Laguna, Branch 93, for the following reliefs: (1) a preliminary injunction or temporary
restraining order, ordering the defendants to refrain from implementing or enforcing
Kapasiyahan Blg. 508, T. 1995 ; (2) an order requiring Hon. Municipal Mayor Calixto R.
Cataquiz to issue a business permit for the operation of a lotto outlet; and (3) an order
annulling or declaring as invalid Kapasiyahan Blg . 508, T. 1995 .
On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his
decision enjoining the petitioners from implementing or enforcing resolution or
Kapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads: TAIEcS

WHEREFORE, premises considered, defendants, their agents and representatives


are hereby enjoined from implementing or enforcing resolution or kapasiyahan
blg. 508, T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the
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operation of the lotto in the province of Laguna.
SO ORDERED. 4

Petitioners led a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997, which reads:

Acting on the Motion for Reconsideration led by defendants Jose D. Lina, Jr.
and the Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition
led by plaintiff's counsel and the comment thereto led by counsel for the
defendants which were duly noted, the Court hereby denies the motion for lack of
merit.

SO ORDERED. 5

On May 23, 1997, petitioners led this petition alleging that the following errors were
committed by the respondent trial court:
I
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG
PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN
THE PROVINCE OF LAGUNA.
II

THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE


PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR PROGRAM MAY
BE IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES, PRIOR
CONSULTATION AND APPROVAL BY THE LOCAL GOVERNMENT UNITS
CONCERNED AND OTHER CONCERNED SECTORS IS REQUIRED.

Petitioners contend that the assailed resolution is a valid policy declaration of the
Provincial Government of Laguna of its vehement objection to the operation of lotto and all
forms of gambling. It is likewise a valid exercise of the provincial government's police
power under the General Welfare Clause of Republic Act 7160, otherwise known as the
Local Government Code of 1991. 6 They also maintain that respondent's lotto operation is
illegal because no prior consultations and approval by the local government were sought
before it was implemented contrary to the express provisions of Sections 2 (c) and 27 of
R.A. 7160. 7
For his part, respondent Calvento argues that the questioned resolution is, in effect, a
curtailment of the power of the state since in this case the national legislature itself had
already declared lotto as legal and permitted its operations around the country. 8 As for
the allegation that no prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision
of the Local Government Code of 1991. 9 He also states that his operation of the lotto
system is legal because of the authority given to him by the PCSO, which in turn had been
granted a franchise to operate the lotto by Congress. 1 0
The Of ce of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
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authorized by the national government. 1 1 He argues that this is based on the principle that
ordinances should not contravene statutes as municipal governments are merely agents
of the national government. The local councils exercise only delegated legislative powers
which have been conferred on them by Congress. This being the case, these councils, as
delegates, cannot be superior to the principal or exercise powers higher than those of the
latter. The OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since Congress
has allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna,
pursuant to its legislative grant of authority, the province's Sangguniang Panlalawigan
cannot nullify the exercise of said authority by preventing something already allowed by
Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg . 508, T.
1995 of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based
thereon are valid; and (2) whether prior consultations and approval by the concerned
Sanggunian are needed before a lotto system can be operated in a given local government
unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's
permit for the operation of a lotto outlet in favor of private respondent. According to the
mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in
the province of Laguna. The ordinance, however, merely states the "objection" of the
council to the said game. It is but a mere policy statement on the part of the local council,
which is not self-executing. Nor could it serve as a valid ground to prohibit the operation of
the lotto system in the province of Laguna. Even petitioners admit as much when they
stated in their petition that: DISHEA

5.7. The terms of the Resolution and the validity thereof are express and clear.
The Resolution is a policy declaration of the Provincial Government of Laguna of
its vehement opposition and/or objection to the operation of and/or all forms of
gambling including the Lotto operation in the Province of Laguna. 1 2

As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views which
may be contrary to that of the national government's. However, this freedom to exercise
contrary views does not mean that local governments may actually enact ordinances that
go against laws duly enacted by Congress. Given this premise, the assailed resolution in
this case could not and should not be interpreted as a measure or ordinance prohibiting
the operation of lotto.
The game of lotto is a game of chance duly authorized by the national government through
an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg . 42, is the law
which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent
provision reads:
SECTION 1. The Philippine Charity Sweepstakes Of ce . — The Philippine Charity
Sweepstakes Of ce, hereinafter designated the Of ce, shall be the principal
government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One
thousand four hundred fifty-nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject to
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such rules and regulations as shall be promulgated by the Board of Directors.

This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan
of Laguna, a local government unit, cannot issue a resolution or an ordinance that would
seek to prohibit permits. Stated otherwise, what the national legislature expressly allows
by law, such as lotto, a provincial board may not disallow by ordinance or resolution.
In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held in
Tatel vs . Virac, 1 3 ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp. 1 4
Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred upon them by
Congress as the national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a heresy to
suggest that the local government units can undo the acts of Congress, from
which they have derived their power in the rst place, and negate by mere
ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without which
they cannot exist. As it creates, so it may destroy. As it may destroy, it may
abridge and control. Unless there is some constitutional limitation on the right, the
legislature might, by a single act, and if we can suppose it capable of so great a
folly and so great a wrong, sweep from existence all of the municipal
corporations in the state, and the corporation could not prevent it. We know of no
limitation on the right so far as the corporation themselves are concerned. They
are, so to phrase it, the mere tenants at will of the legislature (citing Clinton vs.
Ceder Rapids, etc. Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates a
different conclusion.
The basic 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. Without meaning to detract from that
policy, we here con rm that Congress retains control of the local government
units although in signi cantly reduced degree now than under our previous
Constitutions. The power to create still includes the power to destroy. The power
to grant still includes the power to withhold or recall. True, there are certain
notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax (citing Art. X, Sec. 5, Constitution), which
cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it. 1 5

Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and con ned within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio". 1 6 CDEaAI

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To conclude our resolution of the rst issue, respondent mayor of San Pedro, cannot avail
of Kapasiyahan Bilang 508, Taon 1995 , of the Provincial Board of Laguna as justi cation to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the
local legislative unit concerned. The Board's enactment, like spring water, could not rise
above its source of power, the national legislature.

As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and
27 of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. These provisions state:
SECTION 2. Declaration of Policy . — . . .
(c) It is likewise the policy of the State to require all national agencies and of ces
to conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions.
SECTION 27. Prior Consultations Required. — No project or program shall be
implemented by government authorities unless the consultations mentioned in
Section 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained; Provided, that occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of the Constitution.

From a careful reading of said provisions, we nd that these apply only to national
programs and/or projects which are to be implemented in a particular local community.
Lotto is neither a program nor a project of the national government, but of a charitable
institution, the PCSO. Though sanctioned by the national government, it is far fetched to
say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local
Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. 1 7 Section
26 reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. It shall be the duty of every national agency or government-
owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of crop land, range-land, or
forest cover, and extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other sectors concerned
and explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological balance,
and the measures that will be undertaken to prevent or minimize the adverse
effects thereof.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27,
to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may
cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-
land, or forest cover; (5) may eradicate certain animal or plant species from the face of the
planet; and (6) other projects or programs that may call for the eviction of a particular
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group of people residing in the locality where these will be implemented. Obviously, none
of these effects will be produced by the introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly an
afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this
was one of the reasons for his refusal to issue a permit. That refusal was predicated solely
but erroneously on the provisions of Kapasiyahan Blg . 508, Taon 1995 , of the Sangguniang
Panlalawigan of Laguna.
In sum, we nd no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg . 508, T. 1995 , of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the
Laguna provincial board. It possesses no binding legal force nor requires any act of
implementation. It provides no suf cient legal basis for respondent mayor's refusal to
issue the permit sought by private respondent in connection with a legitimate business
activity authorized by a law passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court
of San Pedro, Laguna enjoining the petitioners from implementing or enforcing Resolution
or Kapasiyahan Blg . 508, T. 1995 , of the Provincial Board of Laguna is hereby AFFIRMED.
No costs.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

Footnotes

1. Rollo, pp. 18-20.

2. Id. at 21.
3. Records, pp. 8-8-A.
4. Rollo, p. 20.
5. Id. at 21.

6. Id. at 13.
7. Section 2. Declaration of Policy . — . . .
(c) It is likewise the policy of the State to require all national agencies and of ces to conduct
periodic consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions.
Section 27. Prior Consultations Required. — No project or program shall be implemented by
government authorities unless the consultations mentioned in Section 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained;
Provided, that occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.
8. Rollo, p. 25.
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9. Id. at. 27.
10. Id. at 28.
11. Id. at 58-61.

12. Id. at 13.


13. 207 SCRA 157, 161 (1992).
14. Magtajas vs. Pryce Properties Corp., 234 SCRA 255, 272-273 (1994).
15. Id. at 273.
16. Basco vs. Phil. Amusement and Gaming Corporation, 197 SCRA 52, 65 (1991).

17. Aquilino Q. Pimentel, Jr., The Local Government Code of 1991, p. 124.

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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. BIENVENIDO 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 : p

I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.

Ernest Hemingway
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 Court's 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,
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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 ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. 1 0

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 EDSAac

2.Massage Parlors

3.Karaoke Bars

4.Beerhouses

5.Night Clubs

6.Day Clubs

7.Super Clubs
8.Discotheques

9.Cabarets
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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
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in its enumeration of prohibited establishments, motels and inns such as MTDC's 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." 1 1
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) 1 2 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 1 3 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 MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's 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) The Ordinance 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. 1 4
In their Answer 1 5 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, 1 6 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:
xxx xxx xxx

(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:

xxx xxx xxx


(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,
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prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community. cDIaAS

Citing Kwong Sing v. City of Manila, 1 7 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. 1 8
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, 1 9 otherwise known
as the Revised Charter of the City of Manila (Revised Charter of Manila) 2 0 which reads,
thus:
ARTICLE III
THE MUNICIPAL BOARD
xxx xxx xxx

Section 18.Legislative powers. — The Municipal Board shall have the following
legislative powers:

xxx xxx xxx


(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. 2 1
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. 2 2 The Ordinance, the petitioners
likewise claimed, cannot be assailed as ex post facto as it was prospective in operation. 2 3
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. 2 4
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. 2 5 And on 16
July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed
for by MTDC. 2 6
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining
the petitioners from implementing the Ordinance. The dispositive portion of said Decision
reads: 2 7
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.

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SO ORDERED. 2 8

Petitioners filed with the lower court a Notice of Appeal 2 9 on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law. 3 0
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 3 1
which allows operators of all kinds of commercial establishments, except those specified
therein; and (3) It erred in declaring the Ordinance void and unconstitutional. 3 2
In the Petition and in its Memorandum, 3 3 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. 3 4 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. 3 5
In its Memorandum 3 6 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 Court's deep sentiment and tenderness for the
Ermita-Malate area being its home for several decades. A long-time resident, the Court
witnessed the area's many turn of events. It relished its glory days and endured its days of
infamy. Much as the Court harks back to the resplendant 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
the Ordinance, 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. 3 7
Anent the first criterion, ordinances shall only be valid when they are not contrary to the
Constitution and to the laws. 3 8 The Ordinance must satisfy two requirements: it must
pass muster under the test of constitutionality and the test of consistency with the
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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. 3 9
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. 4 0
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. 4 1 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. STCDaI

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." 4 2 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. 4 3 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. 4 4
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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. 4 5
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. 4 6
SEC. 9.Private property shall not be taken for public use without just
compensation. 4 7

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. . . ." 4 8
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, 4 9 and as
such it is a limitation upon the exercise of the police power. 5 0
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. 5 1
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. 5 2
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. 5 3
Substantive due process, as that phrase connotes, asks whether the government has an
adequate reason for taking away a person's life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the
government's action. 5 4 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. 5 5 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. 5 6
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 5 7 as its exercise is
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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.
5 8 Due process requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property. 5 9
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. 6 0 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. 6 1
Lacking a concurrence of these two requisites, the police measure shall be struck down as
an arbitrary intrusion into private rights 6 2 — a violation of the due process clause.aSDHCT

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 6 3 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." 6 4
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 the Ordinance are within the scope of the City Council's 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
community's 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, 6 5 it is baseless and
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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 awed 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 man's
history. (Catechism of the Catholic Church, De nitive Edition, p. 101; ECCE and Word &
Life Publications, Don Bosco Compound, Makati)
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; 6 6 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
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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 Ordinance within 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 person's fundamental right to liberty and property. HCEcAa

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 faculties with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common
welfare." 6 7 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. 6 8
The U.S. Supreme Court in the case of Roth v. Board of Regents, 6 9 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 recognized . . . as 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 one's 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. 7 0

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 motel's premises — be it
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stressed that their consensual sexual behavior does not contravene any fundamental state
policy as contained in the Constitution. 7 1 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. 7 2 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 freedom — it is the most comprehensive of rights and
the right most valued by civilized men. 7 3
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, 7 4 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. 7 5
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. 7 6 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. 7 7 It is intrusive and violative of the private property rights of individuals. EHTCAa

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
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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 person's 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. 7 8
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 government's regulation leaves no reasonable economically viable use of
the property. 7 9
In the landmark case of Pennsylvania Coal v. Mahon, 8 0 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. 8 1

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. 8 2
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. 8 3 A regulation that permanently denies all
economically beneficial or productive use of land is, from the owner's 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. 8 4 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. 8 5
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 regulation's 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. 8 6
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 investment-backed expectations of the owner. 8 7

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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 businesses — are 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." 8 8 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. 8 9
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
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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. 9 0
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. 9 1
Thus, in Coates v. City of Cincinnati, 9 2 as cited in People v. Nazario, 9 3 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. EATCcI

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, 9 4 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 city's 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
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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, 9 5 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. 9 6
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. 9 7 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. 9 8 The "equal protection of the laws is a pledge of the
protection of equal laws." 9 9 It limits governmental discrimination. The equal protection
clause extends to artificial persons but only insofar as their property is concerned. 1 0 0
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 law's 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
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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. 1 0 1

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. 1 0 2 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. IEAacS

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. 1 0 3
In the Court's 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 Ermita-Malate 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
prostitution — one of the hinted ills the Ordinance aims to banish — is 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. 1 0 4 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:

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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:
xxx xxx xxx

(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:

xxx xxx xxx


(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:
xxx xxx xxx

(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:
xxx xxx xxx

(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 1 0 5 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."
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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. 1 0 6

And in People v. Esguerra, 1 0 7 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. 1 0 8

These doctrines still hold contrary to petitioners' assertion 1 0 9 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. 1 1 0 These powers, therefore, should not be confused, commingled or
consolidated as to create a conglomerated and unified power of regulation, suppression
and prohibition. 1 1 1
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. AEDcIH

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. 1 1 2 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. 1 1 3
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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, 1 1 4 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. 1 1 5 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. 1 1 6
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. 1 1 7
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
latter's provisions granting the City Council mere regulatory powers. ESCacI

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. 1 1 8
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:
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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:
xxx xxx xxx

(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;
xxx xxx xxx

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 Council's 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. 1 1 9

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
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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. 1 2 0 As
succinctly illustrated in Solicitor General v. Metropolitan Manila Authority: 1 2 1
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. 1 2 2

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. 1 2 3
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. cHCSDa

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.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur.

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Panganiban, J., concurs in the result.
Ynares-Santiago, J., concurs in the result only.
Footnotes

1.Dated 11 January 1995; Rollo, pp. 6-73 with annexes.


2.Id. at 64-72.

3.The lower court declared the Ordinance to be null and void.


4.In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. Lim, etc, et al. before RTC,
Branch 55 of Manila, docketed as Civil Case No. 93-66551, Judge Hermogenes R. Liwag
declared the Ordinance void and unconstitutional. The defendants elevated the case to
the Court of Appeals which denied their petition on procedural grounds in its Decision
dated 21 May 2003. It appears that defendants Hon. Alfredo S. Lim and the City Council
of Manila did not elevate the case before the Court. Entry of Judgment of the CA
Decision was made on 22 April 2003.

5.Rollo, p. 37.
6.Id. at 75; It now calls itself Hotel Victoria.
7.Id. at 35-47.

8.Id. at 46.
9.The principal authors of the Ordinance are: Hons. Bienvenido M. Abante, Jr.; Humberto B.
Basco; Nestor C. Ponce, Jr.; Ernesto A. Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez;
Ma. Paz E. Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F. Concepcion,
Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A. Melendez; Ma. Corazon R. Caballes;
Bernardito C. Ang; Roberto C. Ocampo; Rogelio B. dela Paz; Romeo G. Rivera; Alexander
S. Ricafort; Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon; Leonardo L. Angat;
and Jocelyn B. Dawis.
10.Rollo, p. 8.
11.RTC Records, pp. 10-11.
12.Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code 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:

xxx xxx xxx


(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:
xxx xxx xxx

(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; . . .
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13.Presidential Decree No. 499; Dated 28 June 1974; Declaring Portions of the Ermita-Malate
Area as Commercial Zones with Certain Restrictions. It reads in full:

WHEREAS, the government is committed to the promotion and development of tourism in the
country, particularly in the City of Manila which is the hub of commercial and cultural
activities in Manila Metropolitan Area;
WHEREAS, certain portions of the districts of Ermita and Malate known as the Tourist Belt are
still classified as Class "A" Residential Zones and Class "B" Residential Zones where
hotels and other business establishments such as curio stores, souvenir shops,
handicraft display centers and the like are not allowed under the existing zoning plan in
the City of Manila;
WHEREAS, the presence of such establishments in the area would not only serve as an
attraction for tourists but are dollar earning enterprises as well, which tourist areas all
over the world cannot do without;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me under the Constitution as Commander-in-Chief of all the Armed
Forces of the Philippines and pursuant to Proclamation No. 1081, dated September 21,
1972, and General Order No. 1, dated September 22, 1972, as amended, do hereby order
and decree the classification as a Commercial Zone of that portion of 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. PROVIDED, HOWEVER, That
no permit shall be granted for the establishment of any new warehouse or open storage
depot, dump or yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment in these areas, and PROVIDED, FURTHER, That for
purposes of realty tax assessment on properties situated therein, lands and buildings
used exclusively for residential purposes by the owners themselves shall remain
assessed as residential properties.

All laws, ordinances, orders, rules and regulations which are inconsistent with this Decree are
hereby repealed or modified accordingly.

This Decree shall take effect immediately.


Done in the City of Manila this 28th day of June in the year of Our Lord, nineteen hundred and
seventy-four.
14.RTC Records, pp. 11-13.

15.Id. at 158-171.
16.Id. at 160.
17.41 Phil. 103 (1920); see also Samson v. Mayor of Bacolod City , G.R. No. L-28745, 23 October
1974, 60 SCRA 267.
18.RTC Records, p. 161.

19.Approved on 18 June 1949.


20.RTC Records, p. 160.
21.Supra note 18.

22.Id. at 164.
23.Ibid.
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24.Id. at 165-169.
25.Id. at 84.
26.Id. at 453.

27.Rollo, pp. 6 and 72.


28.Id. at 6.
29.Dated 12 December 1994; Id. at 73.

30.Id. at 2.
31.Supra note 13.
32.Rollo, p. 13.
33.Id. at 190-201.

34.Id. at 16, 194, 198.


35.Id. at 19, 22, 25-26, 199.
36.Id. at 150-180.

37.Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor
General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204
SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994,
234 SCRA 255, 268-267.

38.See ART. 7, par. (3) of the Civil Code which reads, thus:
xxx xxx xxx
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.

39.Magtajas v. Pryce Properties Corp, Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 270-
271.
40.Id. at 273.
41.Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil. 956, 968-969 (2000).
42.Metropolitan Manila Devt. Authority v. Bel-Air Village Asso., 385 Phil. 586, 603 (2000), citing
Sections 468 (a), 458 (a), and 447 (a), Book III, Local Government Code of 1991.

43.16 C.J.S., pp. 562-565.


44.Art. II, DECLARATION OF PRINCIPLES AND STATE POLICIES, 1987 CONST.

45.Ibid.
46.Art. III, BILL OF RIGHTS, 1987 CONST.
47.Ibid.
48.Id. at Sec. 9; See also CRUZ, ISAGANI A., CONSTITUTIONAL LAW 97 (1998).

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49.Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 Phil.
849, 860 (1967).
50.See In re Lutker, Okl. Cr., 274 P. 2d 786, 789, 790.
51.Supra note 43 at 1150-1151.

52.See Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919).
53.CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523
(2002).
54.Id. at 523-524.

55.See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).


56.CHEMERINSKY, supra note 53 at 524.
57.Lim v. Court of Appeals, 435 Phil. 857, 868 (2002); This is a related case involving the same
Ordinance challenged in this case. The Court denied the petition questioning the writ of
prohibitory preliminary injunction issued by the RTC, enjoining the closure of a certain
establishment pursuant to the Ordinance.
58.Homeowners' Asso. of the Phil., Inc. v. Municipal Board of the City of Manila, 133 Phil. 903,
907 (1968).

59.CRUZ, ISAGANI A., CONSTITUTIONAL LAW 104 (1998).


60.See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila, 21 Phil. 486 (1912); Case v.
Board of Health, 24 Phil. 256 (1913).
61.Balacuit v. CFI of Agusan del Norte, No. L-38429, 30 June 1988, 163 SCRA 182, 191-193.
62.CRUZ, supra note 59 at 56.

63.Ermita-Malate Hotel and Motel Operators Assoc. Inc. v. City Mayor of Manila, supra note 49.
64.Id. at 858-859.
65.Section 458 (a) 1 (v), the Code.

66.Lim v. Court of Appeals, supra note 57 at 867.


67.Rubi v. Provincial Board 39 Phil. 660 (1919), as cited in Morfe v. Mutuc, 130 Phil. 415
(1968).
68.Morfe v. Mutuc, 130 Phil. 415, 440 (1968).
69.408 U.S. 572.

70.See Lawrence v. Texas, 539 U.S. 558 (2003).


71.Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23 November 2004, J.
Tinga, ponente.
72.Lawrence v. Texas, supra note 70.

73.Morfe v. Mutuc, supra note 68 at 442.


74.Id. at 442-443, citing Laski, Liberty in the Modern State, 44 (1944).
75.Id. at 444-445, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law. Rev. 219,
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229 (1965).
76.People v. Fajardo, et al., 104 Phil. 443, 447 (1958).

77.Ibid. citing Arverne Bay Const. Co. v. Thatcher (N.Y.) 117 ALR. 1110, 1116.
78.CHEMERINSKY, supra note 53 at 616.
79.Id. at 617.

80.260 U.S. 393, 415 (1922).


81.Id. at 413-415.
82.See Penn Central Transportation Co. v. New York City , 438 U.S. 104 (1978).

83.CHEMERINSKY, supra note 53 at 623-626.


84.See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
85.Ibid.
86.CHEMERINSKY, supra note 53 at 166.

87.Supra note 82.


88.CRUZ, supra note 59 at 38.
89.People v. Fajardo, supra note 76 at 443, 448 citing Tews v. Woolhiser (1933) 352 Ill. 212,
185 N.E. 827.

90.Id. at 446-447.
91.Id. at 447, citing Schloss Poster Adv. Co., Inc. v. City of Rock Hill, et al., 2 SE (2d), pp. 394-
395; People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195.
92.402 U.S. 611 (1971).
93.No. L-44143, 31 August 1988, 165 SCRA 186, 195.

94.493 U.S. 215 (1990).


95.Supra note 49.
96.De la Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490, 503(1983).

97.See Ichong v. Hernandez, 101 Phil. 1155 (1957).


98.16B Am Jur 2d §779 299 citing State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59
S. Ct. 232, 83 L. Ed. 208 (1938), reh'g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437
(1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d 217 (1939).
99.16B Am Jur 2d §779 299 citing Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed.
2d 855, 109 Ed. Law Rep. 539, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec.
(CCH) 44013 (1996); Walker v. Board of Supervisors of Monroe County , 224 Miss. 801,
81 So. 2d 225 (1955), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955);
Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951).
100.Supra note 52 at 145.
101.Nuñez v. Sandiganbayan, 197 Phil. 407 (1982).
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102.Cruz, supra note 59 at 125.

103.See People v. Cayat, 68 Phil. 12 (1939).


104.See Craig v. Boren, 429 U.S. 190 (1976).
105.Supra note 17.

106.Id. at 108 (1920).


107.81 Phil. 33 (1948).
108.Id. at 38.
109.Rollo, p. 19.

110.RTC Records, p. 409; The Decision of the Regional Trial Court of Manila, Branch 55 in the
case of Cotton Club Corporation, Inc. v. Hon. Alfredo S. Lim, etc., et al., Civil Case No. 93-
66551; Dated 28 July 1993; Penned by Judge Hermogenes R. Liwag; Citing Shaw, Harry,
Punctuate it Right! Everday Handbooks 125-126.
111.Id. at 408.
112.City of Ozamis v. Lumapas, No. L-30727, 15 July 1975, 65 SCRA 33, 42.
113.FRANCISCO, VICENTE J., STATUTORY CONSTRUCTION, Second Edition 172 (1959); See
Pepsi-Cola Bottling Company of the Philippines, Inc. v. Municipality of Tanauan, Leyte, et
al., 161 Phil. 591, 605 (1976).
114.Supra note 107 at 33.
115.AGPALO, RUBEN F., STATUTORY CONSTRUCTION 296 (1986).
116.FRANCISCO, supra note 113 at 271.
117.CRAWFORD, EARL T., THE CONSTRUCTION OF STATUTES 196-197 (1940); See Mecano v.
Commission on Audit, G.R. No. 103982, 11 December 1992, 216 SCRA 500, 505.
118.See Estate of Gregoria Francisco v. Court of Appeals, G.R. No. 95279, 25 July 1991, 199
SCRA 595, 601.
119.FRANCISCO, Supra note 113 at 178-179; See King, et al. v. Hernaez, etc., et al., 114 Phil.
730, 739 (1962).
120.Chua Lao, etc., et al. v. Raymundo, etc., et al., 104 Phil. 302, 307 (1958).
121.G.R. No. 102782, 11 December 1991, 204 SCRA 837.

122.Id. at 847.
123.Balacuit v. CFI of Agusan del Norte, supra note 61 at 198-199.

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SECOND DIVISION

[G.R. No. L-59679. January 29, 1987.]

TEODULO M. PALMA, SR. , petitioner, vs. HON. CARLOS O. FORTICH,


as Governor of Bukidnon, and THE SANGGUNIANG PANLALAWIGAN
OF BUKIDNON , respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; COMPLAINTS; DISMISSAL OF, DOES NOT NECESSARILY


FOLLOW DISMISSAL OF CRIMINAL CASE. — As a general rule, dismissal of an
administrative case does not necessarily follow the dismissal of a criminal case, the
former requiring as it does, only preponderance of evidence while the latter requires proof
beyond reasonable doubt.
2. ID.; ID.; GROUNDS FOR SUSPENSION OF MUNICIPAL OFFICERS. — In administrative
actions against municipal officers, the Supreme Court in Festijo v. Crisologo, et al. (17
SCRA 868, 869 [1966]), classified the grounds for suspension under two categories,
namely: (1) those related to the discharge of the functions of the officer concerned
(neglect of duty, oppression, corruption or other forms of maladministration of office) and
(2) those not so connected with said functions. Under the second category, when the
crime involving moral turpitude is not linked with the performance of official duties,
conviction by final judgment is required as a condition precedent to administrative action.
3. ID.; ID.; ID.; MISCONDUCT; DEFINITION. — Misconduct has been defined as "such as
affects his performance of his duties as an officer and not only as affects his character as
a private individual. In such cases, it has been said at all times, it is necessary to separate
the character of the man from the character of the officer." (Lacson v. Roque, et al., 92 Phil.
456)
4. ID.; ID.; ID.; CONVICTION BY FINAL JUDGMENT, A REQUISITE BEFORE CHARGES
INVOLVING MORAL TURPITUDE MAY BE FILED. — As to whether or not, such misconduct
of petitioner affects his performance of his duties as an officer and not only his character
as a private individual, has been laid to rest by the ruling of the Supreme Court in an
analogous case where it was held that while "it is true that the charges of rape and
concubinage may involve moral turpitude of which a municipal official may be proceeded
against . . . but before the provincial governor and board may act and proceed against the
municipal official, a conviction by final judgment must precede the filing by the provincial
governor of the charges and trial by the provincial board."
5. ID.; ID.; ID.; ID.; CASE MUST BE DISMISSED UPON FAILURE TO SHOW THAT ACTS
ARE LINKED WITH PERFORMANCE OF OFFICIAL DUTIES; CASE AT BAR. — In the instant
case, not only is a final judgment lacking, but the criminal cases filed against the petitioner
were all dismissed by the trial court, for insufficiency of evidence, on the basis of its
findings that the attendant circumstances logically point to the existence of consent on
the part of the offended parties. (Order, Crim. Cases Nos. 2795, 2796 and 2797, RTC, Br. X,
Malaybalay, Bukidnon, Rollo, pp. 77-79). Under the circumstances, there being no showing
that the acts of petitioner Mayor are linked with the performance of official duties such as
"neglect of duty, oppression, corruption, or other form of maladministration of office"
(Festijo v. Crisologo, et al., supra, pp. 872-873), there appears to be no question that the
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pending administrative case against him should be dismissed for lack of basis and the
restraining order issued by the court should be made permanent.

DECISION

PARAS , J : p

This is a petition for Certiorari and Prohibition with prayer for Preliminary Injunction
seeking: (a) to prohibit the respondents from continuing with the hearing and investigation
of Administrative Case No. 2 filed by respondent Governor of Bukidnon against petitioner
Mayor Teodulo M. Palma, Sr. of the Municipality of Don Carlos, Province of Bukidnon and
(b) to nullify Resolution No. 82-87 passed by respondent Sangguniang Panlalawigan of
Bukidnon, suspending him from office. prcd

The undisputed facts of this case are:


On March 30, 1981, the Assistant Provincial Fiscal Vivencio P. Estrada of Bukidnon, at the
instance of the offended parties Nelia Arandel, Clerk-typist and Susan Palamine, Clerical
Aide, both of the Office of the Mayor of the Municipality of Don Carlos, Province of
Bukidnon, filed with the Court of First Instance of the same province, Criminal Cases Nos.
2795, 2796 and 2797 against petitioner Teodulo M. Palma, Sr., the duly elected and
qualified Mayor of said Municipality.
By virtue of the aforesaid three (3) separate cases, said offended parties in a sworn joint
letter complaint requested respondent Provincial Governor for an immediate
administrative investigation for the purpose of suspending Mayor Palma from office
pending final determination of these cases. (Rollo, p. 6). Attached to said letter are: three
(3) copies of the Information for Acts of Lasciviousness against the Mayor (Annexes "B",
"C" and "D"; Petition, Rollo, pp. 7-9); the statements of the offended parties (Annexes "1-A"
and "2"; Comment, Rollo, pp. 30-34; Respondent's Brief, p. 3, Rollo, p. 60). Treating the
same as a formal letter complaint, respondent Governor formally informed the Mayor of
the administrative charge against him for Misconduct in Office (Annex "E", Petitioner; Rollo,
p. 10). Forthwith, the record of the administrative case against the Mayor was forwarded
to the Sangguniang Panlalawigan of the province of Bukidnon. Said body, after receipt
thereof, set the case for hearing on April 13, 1981 (Annex "F", Petition, Rollo, p. 11). After
the hearing where complainants were required to testify and then cross-examined by
petitioner's counsel, the former petitioned for the preventive suspension of the Mayor
which was granted by respondent Sangguniang Panlalawigan in its Resolution No. 82-87
(Annex "G", Petition, Rollo, p. 42).
The Mayor accepted his preventive suspension from office as shown in his Office Order
dated February 15, 1982 (Annex "3", Comment of Respondent; Rollo, p. 35). Nonetheless,
he filed this petition. cdrep

In the resolution of April 24, 1982 of the First Division of this Court (Rollo, p. 14),
respondents were required to comment on the petition. The same was filed on May 3,
1982 (Rollo, pp. 25-35) while on June 14, 1982 petitioner filed an urgent motion for
immediate issuance of Temporary Restraining Order (Rollo, pp. 37-39). In the resolution of
June 16, 1982 (Rollo, p. 40) the motion of petitioner to file therein a reply (Rollo, pp. 19-23)
to respondents' comment was granted; the petition was given due course and a temporary
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restraining order was issued enjoining the respondents from continuing with the hearing
and/or investigation of the administrative case and from enforcing the order of
suspension against petitioner. Petitioner's brief was filed on September 9, 1982 (Rollo, p.
57) while respondents' brief was filed on September 27, 1982 (Rollo, p. 60). On October 1,
1982, the offended parties moved (Rollo, pp. 62-64) for intervention and for admission of
their attached brief (Rollo, p. 66) which was granted and the aforesaid brief noted in the
resolution of October 20, 1982 (Rollo, p. 68). Thereafter, the case was calendared for
decision. (Rollo, p. 67)
The only issue raised in Petitioner's Brief is as follows:
WHETHER OR NOT THE FILING AND PENDENCY OF THE AFORESAID THREE (3)
SEPARATE INFORMATION FOR "ACTS OF LASCIVIOUSNESS" AGAINST AN
ELECTIVE LOCAL OFFICIAL WOULD CONSTITUTE "MISCONDUCT IN OFFICE"
WITHIN THE MEANING OF SECTION 5 OF REPUBLIC ACT NO. 5185 WHICH MAY
WARRANT THE FILING OF AN ADMINISTRATIVE COMPLAINT AGAINST HIM
AND/OR HIS SUSPENSION FROM OFFICE.

There appears to be no controversy as to the filing of the criminal cases against the
petitioner. The principal issue centers on the filing of the administrative case and
consequent preventive suspension of petitioner based solely on the filing of the above-
mentioned criminal cases. LLpr

Petitioner contends that "Acts of Lasciviousness" although how numerous, do not fall
within the category of "malfeasance and misfeasance" or "misconduct in the office"
contemplated in Section 5 of R.A. No. 5185, and therefore cannot be the basis of the filing
of a separate administrative case against an elective official and the preventive
suspension of the latter.
Respondents, alleging otherwise, maintain that the lascivious acts of the petitioner
constitute misconduct under Article XIII, Section 1 of the 1973 Constitution, re:
"Accountability of Public Officers."
However, on September 1, 1983, petitioner filed a Manifestation and Prayer (Rollo, pp. 69-
71) informing this Court that the three criminal cases filed against him were all dismissed
by the Regional Trial Court of Bukidnon, Branch X in an Order dated February 24, 1983.
(Annex "A", Rollo, pp. 72-79). Thus, on the premise that the administrative case in question
as well as the resulting preventive suspension is now bereft of any legal basis, petitioner
now prays that judgment be rendered in accordance with his prayer in the petition.
But, before the instant petition could be decided by the Supreme Court, the Provisional
Constitution also known as the Freedom Constitution was promulgated in Proclamation
No. 3, dated March 25, 1986, by President Corazon C. Aquino.
Article III, Section 2 thereof, reads:
"All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive
order or upon the designation or appointment and qualification of their
successors, if such is made within a period of one year from February 25, 1986."

Under the above quoted provision of the Freedom Constitution, an incumbent Mayor,
elected under the 1973 Constitution may be replaced by an "Officer-in-Charge a specie of
successor considered as within the ambit of the provision." (G.R. No. 73770, Topacio, Jr. v.
Pimentel; G.R. No. 73811, Velasco v. Pimentel; G.R. No. 73823, Governors of the Phil. v.
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Pimentel; G.R. No. 73940, The Municipal Mayors League of the Phil., et al. v. Pimentel; and
G.R. No. 73970, Solis v. Pimentel, et al., RESOLUTION; Court En Banc dated April 10, 1986)

Coming back to the case at bar, it appears from the records of the Ministry of Local
Government that petitioner who was obviously elected under the 1973 Constitution, has
been replaced by OIC Fabian Gardones as Mayor of Don Carlos, Cagayan.
Thus, the question now confronting the Court, is whether or not, under the succeeding
developments, the issue in the case at bar has become moot and academic. LibLex

As a general rule, dismissal of an administrative case does not necessarily follow the
dismissal of a criminal case, the former requiring as it does, only preponderance of
evidence while the latter requires proof beyond reasonable doubt.
However, In administrative actions against municipal officers, the Supreme Court in Festijo
v. Crisologo, et al. (17 SCRA 868, 869 [1966]), classified the grounds for suspension under
two categories, namely: (1) those related to the discharge of the functions of the officer
concerned (neglect of duty, oppression, corruption or other forms of maladministration of
office) and (2) those not so connected with said functions. Under the second category,
when the crime involving moral turpitude is not linked with the performance of official
duties, conviction by final judgment is required as a condition precedent to administrative
action.
The ground for filling of the administrative action in the case at bar and the suspension of
petitioner Mayor is misconduct allegedly committed in the form of lascivious acts of the
latter.
Misconduct has been defined as "such as affects his performance of his duties as an
officer and not only as affects his character as a private individual. In such cases, it has
been said at all times, it is necessary to separate the character of the man from the
character of the officer." (Lacson v. Roque, et al., 92 Phil. 456)
Now, As to whether or not, such misconduct of petitioner affects his performance of his
duties as an officer and not only his character as a private individual, has been laid to rest
by the ruling of the Supreme Court in an analogous case where it was held that while "it is
true that the charges of rape and concubinage may involve moral turpitude of which a
municipal official may be proceeded against . . . but before the provincial governor and
board may act and proceed against the municipal official, a conviction by final judgment
must precede the filing by the provincial governor of the charges and trial by the provincial
board." (Mindano v. Silvosa, et al., 97 Phil. 144-145 [1955]).
Indeed, there is merit in petitioner's contention that the same ruling applies to acts of
lasciviousness which falls under the same classification as crimes against chastity. In the
instant case, not only is a final judgment lacking, but the criminal cases filed against the
petitioner were all dismissed by the trial court, for insufficiency of evidence, on the basis of
its findings that the attendant circumstances logically point to the existence of consent on
the part of the offended parties. (Order, Crim. Cases Nos. 2795, 2796 and 2797, RTC, Br. X,
Malaybalay, Bukidnon, Rollo, pp. 77-79). Under the circumstances, there being no showing
that the acts of petitioner Mayor are linked with the performance of official duties such as
"neglect of duty, oppression, corruption, or other form of maladministration of office"
(Festijo v. Crisologo, et al., supra, pp. 872-873), there appears to be no question that the
pending administrative case against him should be dismissed for lack of basis and the
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restraining order issued by the court should be made permanent.
Nonetheless, the replacement of petitioner Mayor by the Officer-in-Charge Fabian
Gardones has rendered the issues of removal and suspension from office, moot and
academic. cdll

PREMISES CONSIDERED, judgment is hereby rendered DISMISSING: (a) the administrative


case filed against the petitioner for lack of basis and (b) subject petition for having
become moot and academic.
SO ORDERED.
Fernan, Alampay, Gutierrez, Jr., Padilla and Bidin, JJ ., concur.

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EN BANC

[G.R. No. 154182. December 17, 2004.]

EDGAR Y. TEVES and TERESITA Z. TEVES , petitioners, vs . THE


SANDIGANBAYAN , respondent.

DECISION

DAVIDE, JR. , C.J : p

The pivotal issue in this petition is whether a public official charged with violation of
Section 3(h) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, for unlawful intervention, in his official capacity, in the issuance of a
license in favor of a business enterprise in which he has a pecuniary interest may be
convicted, together with his spouse, of violation of that same provision premised on his
mere possession of such interest.
Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves
seeks to annul and set aside the 16 July 2002 Decision 1 of the Sandiganbayan in Criminal
Case No. 2337 convicting them of violation of Section 3(h) of the Anti-Graft Law for
possessing direct pecuniary interest in the Valencia Cockpit and Recreation Center in
Valencia.
The indictment reads: 2
The undersigned Special Prosecution Officer II, Office of the Special Prosecutor,
hereby accuses EDGAR Y. TEVES and TERESITA TEVES of violation of Section
3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:

That on or about February 4, 1992, and sometime subsequent thereto, in


Valencia, Negros Oriental, Philippines, and within the jurisdiction of this
Honorable Court, accused Edgar Y. Teves, a public officer, being then the
Municipal Mayor of Valencia, Negros Oriental, committing the crime-herein
charged in relation to, while in the performance and taking advantage of
his official functions, and conspiring and confederating with his wife,
herein accused Teresita Teves, did then and there willfully, unlawfully and
criminally cause the issuance of the appropriate business permit/license to
operate the Valencia Cockpit and Recreation Center in favor of one Daniel
Teves, said accused Edgar Y. Teves having a direct financial or pecuniary
interest therein considering the fact that said cockpit arena is actually
owned and operated by him and accused Teresita Teves.

CONTRARY TO LAW.

Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty." Pre-trial and
trial were thereafter set.
The petitioners and the prosecution agreed on the authenticity of the prosecution's
documentary evidence. Thus, the prosecution dispensed with the testimonies of witnesses
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and formally offered its documentary evidence marked as Exhibits "A" to "V." 3
On 23 February 1998, the petitioners filed their Comment/Objections to the evidence
offered by the prosecution and moved for leave of court to file a demurrer to evidence. 4
On 29 July 1998, the Sandiganbayan admitted Exhibits "A" to "S" of the prosecution's
evidence but rejected Exhibits "T," "U," and "V." 5 It also denied petitioners' demurrer to
evidence, 6 as well as their motion for reconsideration. 7 This notwithstanding, the
petitioners filed a Manifestation that they were, nonetheless, dispensing with the
presentation of witnesses because the evidence on record are inadequate to support their
conviction.
On 16 July 2002, the Sandiganbayan promulgated a decision 8 (1) convicting petitioners
Edgar and Teresita Teves of violation of Section 3(h) of the Anti-Graft Law; (2) imposing
upon them an indeterminate penalty of imprisonment of nine years and twenty-one days as
minimum to twelve years as maximum; and (3) ordering the confiscation of all their rights,
interests, and participation in the assets and properties of the Valencia Cockpit and
Recreation Center in favor of the Government, as well as perpetual disqualification from
public office. 9 The conviction was anchored on the finding that the petitioners possessed
pecuniary interest in the said business enterprise on the grounds that (a) nothing on record
appears that Mayor Teves divested himself of his pecuniary interest in said cockpit; (b) as
of April 1992, Teresita Teves was of record the "owner/licensee" of the cockpit; and (c)
since Mayor Teves and Teresita remained married to each other from 1983 until 1992,
their property relations as husband and wife, in the absence of evidence to the contrary,
was that of the conjugal partnership of gains. Hence, the cockpit is a conjugal property
over which the petitioners have pecuniary interest. This pecuniary interest is prohibited
under Section 89(2) of R.A. No. 7160, otherwise known as the Local Government Code
(LGC) of 1991, and thus falls under the prohibited acts penalized in Section 3(h) of the
Anti-Graft Law.
The Sandiganbayan, however, absolved the petitioners of the charge of causing the
issuance of a business permit or license to operate the Valencia Cockpit and Recreation
Center on or about 4 February 1992 for not being well-founded. DCISAE

On 26 August 2002, the petitioners filed the instant petition for review on certiorari 1 0
seeking to annul and set aside the 16 July 2002 Decision of the Sandiganbayan.
At first, we denied the petition for failure of the petitioners to sufficiently show that the
Sandiganbayan committed any reversible error in the challenged decision as to warrant the
exercise by this Court of its discretionary appellate jurisdiction. 1 1 But upon petitioners'
motion for reconsideration, 1 2 we reinstated the petition. 1 3
The petitioners assert that the Sandiganbayan committed serious and palpable errors in
convicting them. In the first place, the charge was for alleged unlawful intervention of
Mayor Teves in his official capacity in the issuance of a cockpit license in violation of
Section 3(h) of the Anti-Graft Law. But they were convicted of having a direct financial or
pecuniary interest in the Valencia Cockpit and Recreation Center prohibited under Section
89(2) of the LGC of 1991, which is essentially different from the offense with which they
were charged. Thus, the petitioners insist that their constitutional right to be informed of
the nature and cause of the accusation against them was transgressed because they were
never apprised at any stage of the proceedings in the Sandiganbayan that they were being
charged with, and arraigned and tried for, violation of the LGC of 1991. The variance
doctrine invoked by the respondent is but a rule of procedural law that should not prevail
over their constitutionally-guaranteed right to be informed of the nature and cause of
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accusation against them.
Second, according to the petitioners, their alleged prohibited pecuniary interest in the
Valencia Cockpit in 1992 was not proved. The Sandiganbayan presumed that since Mayor
Teves was the cockpit operator and licensee in 1989, said interest continued to exist until
1992. It also presumed that the cockpit was the conjugal property of Mayor Teves and his
wife, and that their pecuniary interest thereof was direct. But under the regime of conjugal
partnership of gains, any interest thereon is at most inchoate and indirect.
Also assigned as glaring error is the conviction of Teresita Teves, who is not a public
officer. In the information, only Mayor Teves was accused of "having a direct financial or
pecuniary interest in the operation of the Valencia Cockpit and Recreation Center in Negros
Oriental." His wife was merely charged as a co-conspirator of her husband's alleged act of
"while in the performance and taking advantage of his official functions, . . . willfully,
unlawfully and criminally caus[ing] the issuance of the appropriate business permit/license
to operate" the said cockpit arena. Teresita Teves could not be convicted because
conspiracy was not established. Besides, the Sandiganbayan had already absolved the
petitioners of this offense.
On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP),
insists that the uncontroverted documentary evidence proved that petitioner Edgar Teves
had direct pecuniary interest over the cockpit in question as early as 26 September 1983.
That interest continued even though he transferred the management thereof to his wife
Teresita Teves in 1992, since their property relations were governed by the conjugal
partnership of gains. The existence of that prohibited interest is by itself a criminal offense
under Section 89(2) of the LGC of 1991. It is necessarily included in the offense charged
against the petitioners, i.e., for violation of Section 3(h) of the Anti-Graft Law, which
proscribes the possession of a direct or indirect financial or pecuniary interest in any
business, contract, or transaction in connection with which the person possessing the
financial interest intervenes in his official capacity, or in which he is prohibited by the
Constitution or any law from having any interest. The use of the conjunctive word "or"
demonstrates the alternative mode or nature of the manner of execution of the final
element of the violation of the provision. Although the information may have alleged only
one of the modalities of committing the offense, the other mode is deemed included in the
accusation to allow proof thereof. There was, therefore, no violation of the constitutional
right of the accused to be informed of the nature or cause of the accusation against them
in view of the variance doctrine, which finds statutory support in Sections 4 and 5 of Rule
120 of the Rules of Court.
The petition is not totally devoid of merit.
Section 3(h) of the Anti-Graft Law provides:
Section 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any


business, contract or transaction in connection with which he intervenes or
takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
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The essential elements set out in the afore-quoted legislative definition of the crime of
violation of Section 3(h) of the Anti-Graft Law are as follows:
1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business,


contract, or transaction;

3. He either
a. intervenes or takes part in his official capacity in connection with
such interest; or
b. is prohibited from having such interest by the Constitution or by any
law.

There are, therefore, two modes by which a public officer who has a direct or indirect
financial or pecuniary interest in any business, contract, or transaction may violate Section
3(h) of the Anti-Graft Law. The first mode is if in connection with his pecuniary interest in
any business, contract or transaction, the public officer intervenes or takes part in his
official capacity. The second mode is when he is prohibited from having such interest by
the Constitution or any law.
We quote herein the Sandiganbayan's declaration regarding petitioners' culpability anent
the first mode:
. . . [T]hat portion of the Information which seeks to indict the spouses Teves for
his causing the issuance of a business permit/license to operate the Valencia
cockpit on or about February 4, 1992 is not well-founded.
. . . Mayor Edgar Teves could not have issued a permit to operate the cockpit in
the year 1992 because as of January 1, 1992 the license could be issued only by
the Sangguniang Bayan. He may have issued the permit or license in 1991 or
even before that when he legally could, but that is not the charge. The charge is
for acts committed in 1992. 1 4 [Emphasis supplied].

The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of
the business permit or license to operate the Valencia Cockpit and Recreation Center is
"not well-founded." This it based, and rightly so, on the additional finding that only the
Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in the year
1992. Indeed, under Section 447(3) 1 5 of the LGC of 1991, which took effect on 1 January
1992, it is the Sangguniang Bayan that has the authority to issue a license for the
establishment, operation, and maintenance of cockpits. Unlike in the old LGC, Batas
Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of the
Sangguniang Bayan, 1 6 under the LGC of 1991, the mayor is not so anymore and is not even
a member of the Sangguniang Bayan. Hence, Mayor Teves could not have intervened or
taken part in his official capacity in the issuance of a cockpit license during the material
time, as alleged in the information, because he was not a member of the Sangguniang
Bayan. 1 7
A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the
absence of a finding that Mayor Teves himself is guilty of the offense charged. In short, the
Sandiganbayan correctly absolved the petitioners of the charge based on the first mode.
And there is no need to belabor this point.
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The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the
Anti-Graft Law based on the second mode. It reasoned that the evidence overwhelmingly
evinces that Mayor Teves had a pecuniary interest in the Valencia Cockpit, which is
prohibited under Section 89(2) of the LGC of 1991.
The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros
Oriental, of causing, "while in the performance and taking advantage of his official
functions, and conspiring and confederating with his wife . . . the issuance of the
appropriate business permit/license to operate the Valencia Cockpit and Recreation
Center in favor of one Daniel Teves." The last part of the dispositive portion of the
information states that "said accused Edgar Y. Teves having a direct financial or pecuniary
interest therein considering the fact that said cockpit arena is actually owned and
operated by him and accused Teresita Teves."
A careful reading of the information reveals that the afore-quoted last part thereof is
merely an allegation of the second element of the crime, which is, that he has a direct or
indirect "financial or pecuniary interest in any business, contract or transaction." Not by any
stretch of imagination can it be discerned or construed that the afore-quoted last part of
the information charges the petitioners with the second mode by which Section 3(h) of the
Anti-Graft Law may be violated. Hence, we agree with the petitioners that the charge was
for unlawful intervention in the issuance of the license to operate the Valencia Cockpit.
There was no charge for possession of pecuniary interest prohibited by law. CIHTac

However, the evidence for the prosecution has established that petitioner Edgar Teves,
then mayor of Valencia, Negros Oriental, 1 8 owned the cockpit in question. In his sworn
application for registration of cockpit filed on 26 September 1983 1 9 with the Philippine
Gamefowl Commission, Cubao, Quezon City, as well as in his renewal application dated 6
January 1989 2 0 he stated that he is the owner and manager of the said cockpit. Absent
any evidence that he divested himself of his ownership over the cockpit, his ownership
thereof is rightly to be presumed because a thing once proved to exist continues as long
as is usual with things of that nature. 2 1 His affidavit 2 2 dated 27 September 1990
declaring that effective January 1990 he "turned over the management of the cockpit to
Mrs. Teresita Z. Teves for the reason that [he] could no longer devote a full time as
manager of the said entity due to other work pressure" is not sufficient proof that he
divested himself of his ownership over the cockpit. Only the management of the cockpit
was transferred to Teresita Teves effective January 1990. Being the owner of the cockpit,
his interest over it was direct.
Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his
wife, still he would have a direct interest thereon because, as correctly held by respondent
Sandiganbayan, they remained married to each other from 1983 up to 1992, and as such
their property relation can be presumed to be that of conjugal partnership of gains in the
absence of evidence to the contrary. Article 160 of the Civil Code provides that all property
of the marriage is presumed to belong to the conjugal partnership unless it be proved that
it pertains exclusively to the husband or to the wife. And Section 143 of the Civil Code
declares all the property of the conjugal partnership of gains to be owned in common by
the husband and wife. Hence, his interest in the Valencia Cockpit is direct and is, therefore,
prohibited under Section 89(2) of the LGC of 1991, which reads:
Section 89. Prohibited Business and Pecuniary Interest. — (a) It shall be
unlawful for any local government official or employee, directly or indirectly, to:
xxx xxx xxx
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(2) Hold such interests in any cockpit or other games licensed by a
local government unit. . . . [Emphasis supplied].

The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-
Graft Law, which is possession of a prohibited interest. But can the petitioners be
convicted thereof, considering that it was not charged in the information?
The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120, Rules of Criminal Procedure, which both read:
Sec. 4. Judgment in case of variance between allegation and proof . — When
there is a variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily includes
the offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the
offense proved.

Sec. 5. When an offense includes or is included in another. — An offense


charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information,
constitutes the latter. And an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or form
part of those constituting the latter.

The elements of the offense charged in this case, which is unlawful intervention in the
issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business,
contract, or transaction, whether or not prohibited by law; and
3. He intervenes or takes part in his official capacity in connection with such
interest.

On the other hand, the essential ingredients of the offense proved, which is possession of
prohibited interest in violation of Section 3(h) of the Anti-Graft Law, are as follows:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business,
contract or transaction; and
3. He is prohibited from having such interest by the Constitution or any law.

It is clear that the essential ingredients of the offense proved constitute or form part of
those constituting the offense charged. Put differently, the first and second elements of
the offense charged, as alleged in the information, constitute the offense proved. Hence,
the offense proved is necessarily included in the offense charged, or the offense charged
necessarily includes the offense proved. The variance doctrine thus finds application to
this case, thereby warranting the conviction of petitioner Edgar Teves for the offense
proved.
The next question we have to grapple with is under what law should petitioner Edgar Teves
be punished. It must be observed that Section 3(h) of the Anti-Graft Law is a general
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provision, it being applicable to all prohibited interests; while Section 89(2) of the LGC of
1991 is a special provision, as it specifically treats of interest in a cockpit. Notably, the two
statutes provide for different penalties. The Anti-Graft Law, particularly Section 9, provides
as follows:

SEC. 9. Penalties for violations. — (a) Any public official or private person
committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5,
and 6 of this Act shall be punished by imprisonment of not less than six years
and one month nor more than fifteen years, perpetual disqualification from public
office, and confiscation or forfeiture in favor of the Government of any prohibited
interest. . . .

On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus:
SECTION 514. Engaging in Prohibited Business Transactions or Possessing
Illegal Pecuniary Interest. — Any local official and any person or persons dealing
with him who violate the prohibitions provided in Section 89 of Book I hereof shall
be punished with imprisonment for six months and one day to six years, or a fine
of not less than Three thousand pesos (P3,000.00) nor more than Ten Thousand
Pesos (P10,000.00), or both such imprisonment and fine at the discretion of the
court.

It is a rule of statutory construction that where one statute deals with a subject in general
terms, and another deals with a part of the same subject in a more detailed way, the two
should be harmonized if possible; but if there is any conflict, the latter shall prevail
regardless of whether it was passed prior to the general statute. 2 3 Or where two statutes
are of contrary tenor or of different dates but are of equal theoretical application to a
particular case, the one designed therefor specially should prevail over the other. 2 4
Conformably with these rules, the LGC of 1991, which specifically prohibits local officials
from possessing pecuniary interest in a cockpit licensed by the local government unit and
which, in itself, prescribes the punishment for violation thereof, is paramount to the Anti-
Graft Law, which penalizes possession of prohibited interest in a general manner.
Moreover, the latter took effect on 17 August 1960, while the former became effective on
1 January 1991. Being the earlier statute, the Anti-Graft Law has to yield to the LGC of
1991, which is the later expression of legislative will. 2 5
In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we
take judicial notice of the fact that under the old LGC, mere possession of pecuniary
interest in a cockpit was not among the prohibitions enumerated in Section 41 2 6 thereof.
Such possession became unlawful or prohibited only upon the advent of the LGC of 1991,
which took effect on 1 January 1992. Petitioner Edgar Teves stands charged with an
offense in connection with his prohibited interest committed on or about 4 February 1992,
shortly after the maiden appearance of the prohibition. Presumably, he was not yet very
much aware of the prohibition. Although ignorance thereof would not excuse him from
criminal liability, such would justify the imposition of the lighter penalty of a fine of
P10,000 under Section 514 of the LGC of 1991.
Petitioner Teresita Teves must, however, be acquitted. The charge against her is
conspiracy in causing "the issuance of the appropriate business permit/license to operate
the Valencia Cockpit and Recreation Center." For this charge, she was acquitted. But as
discussed earlier, that charge also includes conspiracy in the possession of prohibited
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interest. cSIHCA

Conspiracy must be established separately from the crime itself and must meet the same
degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be
established by direct evidence, for it may be inferred from the conduct of the accused
before, during, and after the commission of the crime, all taken together, the evidence
must reasonably be strong enough to show community of criminal design. 2 7
Certainly, there is no conspiracy in just being married to an erring spouse. 2 8 For a spouse
or any person to be a party to a conspiracy as to be liable for the acts of the others, it is
essential that there be intentional participation in the transaction with a view to the
furtherance of the common design. Except when he is the mastermind in a conspiracy, it is
necessary that a conspirator should have performed some overt act as a direct or indirect
contribution in the execution of the crime planned to be committed. The overt act must
consist of active participation in the actual commission of the crime itself or of moral
assistance to his co-conspirators. 2 9
Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals,
states:
SEC. 4. Prohibitions on private individuals. — . . .
(b) It shall be unlawful for any person knowingly to induce or cause
any public official to commit any of the offenses defined in Section 3
hereof.

We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly
induced or caused, her husband to commit the second mode of violation of Section 3(h) of
the Anti-Graft Law.
As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then
until 31 December 1991, possession by a local official of pecuniary interest in a cockpit
was not yet prohibited. It was before the effectivity of the LGC of 1991, or on January
1990, that he transferred the management of the cockpit to his wife Teresita. In
accordance therewith it was Teresita who thereafter applied for the renewal of the cockpit
registration. Thus, in her sworn applications for renewal of the registration of the cockpit in
question dated 28 January 1990 3 0 and 18 February 1991, 3 1 she stated that she is the
Owner/Licensee and Operator/Manager of the said cockpit. In her renewal application
dated 6 January 1992, 3 2 she referred to herself as the Owner/Licensee of the cockpit.
Likewise in the separate Lists of Duly Licensed Personnel for Calendar Years 1991 3 3 and
1992, 3 4 which she submitted on 22 February 1991 and 17 February 1992, respectively, in
compliance with the requirement of the Philippine Gamefowl Commission for the renewal
of the cockpit registration, she signed her name as Operator/Licensee.
The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a
conspiracy to commit the violation of the Anti-Graft Law that would render her equally
liable as her husband. If ever she did those acts, it was because she herself was an owner
of the cockpit. Not being a public official, she was not prohibited from holding an interest
in cockpit. Prudence, however, dictates that she too should have divested herself of her
ownership over the cockpit upon the effectivity of the LGC of 1991; otherwise, as stated
earlier, considering her property relation with her husband, her ownership would result in
vesting direct prohibited interest upon her husband.
In criminal cases, conviction must rest on a moral certainty of guilt. 3 5 The burden of proof
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is upon the prosecution to establish each and every element of the crime and that the
accused is either responsible for its commission or has conspired with the malefactor.
Since no conspiracy was proved, the acquittal of petitioner Teresita Teves is, therefore, in
order.
WHEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan, First
Division, in Criminal Case No. 2337 is hereby MODIFIED in that (1) EDGAR Y. TEVES is
convicted of violation of Section 3(h) of Republic Act No. 3019, or the Anti-Graft and
Corrupt Practices Act, for possession of pecuniary or financial interest in a cockpit, which
is prohibited under Section 89(2) of the Local Government Code of 1991, and is sentenced
to pay a fine of P10,000; and (2) TERESITA Z. TEVES is hereby ACQUITTED of such
offense.
Costs de oficio.
SO ORDERED.
Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio Morales, Azcuna, Chico-Nazario and Garcia, JJ ., concur.
Callejo, Sr., J ., is on leave, but he left his vote of concurrence with the dissent of Mr. Justice
D. O. Tinga.
Tinga, J ., please see dissenting opinion.

Separate Opinions
TINGA , J., dissenting :

It is imperative for this Court as guardian of the people's fundamental liberties, to redeem
persons inflicted with the classic Kafkaesque nightmare — conviction for a crime the
indictment for which the accused has no knowledge of. I sense that the majority
recognizes, albeit tacitly, the absurdity of the convictions challenged in this petition. Thus
the proposed quantum downgrading of the penalty of accused Edgardo Teves (Teves)
from imprisonment of at least nine years, imposed by the Sandiganbayan, to a mere fine.
However, I submit that Teves should be extenuated not as a matter of grace, but as a
matter of right in consonance with the Constitution.
My submission is ultimately premised on constitutional considerations — that Teves
cannot be convicted of the present charges against him without violating his constitutional
right to be informed of the nature and cause of the accusation against him. 1 Furthermore,
the punishment of Teves for a crime of which he was neither legally nor actually informed
constitutes a violation of the constitutional right to due process of law. 2 While the variance
doctrine is a rule of long-standing, its mechanical application cannot supplant the Bill of
Rights which occupies a position of primacy within our fundamental law. 3 I believe that the
variance between the offense charged to Teves, on one hand, and the offense of which the
majority intends to convict him, on the other, is material and prejudicial enough so as to
affect his substantial rights as an accused. 4
In particular, the Information filed against Teves is deficient for the purpose of convicting
him, as charged, of violating Section 3(h) of the Anti-Graft and Corrupt Practices Act, or for
violating Section 89(b) of the Local Government Code, as is the wont of the majority.
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The offense of which Teves is charged is defined under Section 3(h) of the Anti-Graft and
Corrupt Practices Act, 5 which states:

Section 3. Corrupt practices of public officers. — In addition to acts or


omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business,


contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any law
from having any interest.

As the majority correctly points out, there are two modes by which a public officer who has
a direct or indirect financial or pecuniary interest in any business, contract or transaction
may violate Section 3(h). The first is where the public officer, in connection with his
financial or pecuniary interest in a business, contract or transaction, intervenes or takes
part in his official capacity (First Mode). The second is where the public officer possesses
such financial or pecuniary interest and said possession is prohibited by the Constitution
or of any other law (Second Mode).
The Information clearly charges the Teves spouses with violating Section 3(h) through the
First Mode:
The undersigned Special Prosecution Officer II, Office of the Special Prosecutor,
hereby accuses EDGAR Y. TEVES and TERESITA TEVES of violation of Section
3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:
That on or about February 4, 1992, and sometime subsequent thereto, in
Valencia, Negros Oriental, Philippines, and within the jurisdiction of this
Honorable Court, accused Edgar Y. Teves, a public officer, being then the
Municipal Mayor of Valencia, Negros Oriental, committing the crime herein
charged in relation to, while in the performance and taking advantage of
his official functions, and conspiring and confederating with his wife,
herein accuse[d] Teresita Teves, did then and there willfully, unlawfully and
criminally cause the issuance of the appropriate business permit/license to
operate the Valencia Cockpit and Recreation Center in favor of one Daniel
Teves, said accused Edgar Y. Teves having a direct or pecuniary interest
therein considering the fact that said cockpit arena is actually owned and
operated by him and accused Teresita Teves. ETDSAc

CONTRARY TO LAW. 6

The Sandiganbayan found that Teves could not have caused the issuance of the permit to
operate the cockpit in 1992, as alleged in the Information. Hence, the offense through the
First Mode for which Teves was charged was not proved. Still, the Sandiganbayan found
the Teves spouses guilty of violating Section 3(h), through the Second Mode, although it
was not at all alleged in the Information. In justifying the conviction, the Sandiganbayan
merely noted that the fact of Teves' pecuniary interest in the cockpit was unrebutted, 7 and
that Section 89(b) of the Local Government Code barred Teves from holding an interest in
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a cockpit. The Sandiganbayan was silent as to why the Teves spouses were convicted of
an offense different from that charged in the Information.
The ponencia fills in the blank, contending that conviction can be had by applying the
"variance doctrine" encapsulated in Sections 4 and 5, Rule 120 of the Rules of Criminal
Procedure. According to the majority, the offense proved the violation of Section 3(h)
through holding the prohibited pecuniary interest, is necessarily included in the offense
charged — the violation of Section 3(h) through intervening/taking part in an official
capacity in connection with a financial or pecuniary interest in any business, contract or
transaction. However, the majority would prefer to convict Teves instead and fine him Ten
Thousand Pesos (P10,000.00) for violating Section 89(b) of the Local Government Code,
the law which specifically prohibits Teves from maintaining an interest in a cockpit. The
deviation is sought to be justified by noting that Section 89(b) of the Local Government
Code is more specific in application than the general proscription under Section 3(h) of the
Anti-Graft and Corrupt Practices Act, a law which happens to antecede the Local
Government Code. The ponencia would also do away with a sentence of imprisonment,
imposing instead a fine as earlier adverted to.
That an accused cannot be convicted of an offense not charged or included in the
information is based upon the right to be informed of the true nature and cause of the
accusation against him. 8 This right was long ago established in English law, and is
expressly guaranteed under Section 14(2), Article III of the Constitution. This right requires
that the offense be charged with clearness and all necessary certainty to inform the
accused of the crime of which he stands charged, in sufficient detail to enable him to
prepare a defense. 9 The peculiarities attaching to the Information herein preclude his
conviction of any offense other than violation of Section 3(h) through the First Mode.
Second Mode Not Necessarily Included in First Mode
With due respect, I find unacceptable the general proposition that the Second Mode of
violating Section 3(h) is necessarily included in the First Mode.
Under Section 5, Rule 120 of the Rules of Criminal Procedure, the offense charged
necessarily includes the offense proved when some of the essential elements or
ingredients of the former constitute the latter. Thus, it should be established that the
Second Mode is constituted of the essential elements of the First Mode.
In analyzing the question, the majority makes the following pronouncement:
The elements of the offense charged in this case, which is unlawful intervention
in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft
Law, are
1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any


business, contract or transaction, whether or not prohibited by law;
and
3. He intervenes or takes part in his official capacity in connection with
such interest.

On the other hand, the essential ingredients of the offense proved, which is
possession of prohibited interest in violation of Section 3(h) of the Anti-Graft Law,
are as follows:
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1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any


business, contract or transaction; and
3. He is prohibited from having such interest by the Constitution or any
law.

It is clear that the essential ingredients of the offense proved constitute or form
part of those constituting the offense charged. Put differently, the first and
second elements of the offense charged, as alleged in the information, constitute
the offense proved. Hence, the offense proved is necessarily included in the
offense charged, or the offense charged necessarily includes the offense proved.
The variance doctrine thus finds application to this case, thereby warranting the
conviction of petitioner Edgar Teves for the offense proved. 1 0

The essential common ingredient appreciated by the majority is clearly the existence of
"direct or indirect financial or pecuniary interest." Yet the element of "financial or pecuniary
interest" contemplated under the Second Mode is one prohibited by law, a qualification not
present in the First Mode.
Under the First Mode, the element considered is simply that the public official maintains a
financial or pecuniary interest, whether or not prohibited by law. This contrasts to the
Second Mode, wherein such interest is particularly qualified as one prohibited by the
Constitution or by any other statute. Thus, while the pecuniary interest of a town mayor
who possesses an ownership share in a real estate firm may be cause for liability under
the First Mode if the other requisites thereof concur, it is not cause for liability under the
Second Mode as such ownership is not prohibited either by the Constitution or by any
other law.
It should be taken into the account that the proper application of the variance doctrine
ordinarily does not run afoul of the Constitution because it is expected that the accused
has been given the opportunity to defend himself/herself not only of the offense charged,
but also of the offense eventually proven. This is because the essential elements of the
offense proved are already necessarily included in the offense charged. 1 1 For the variance
doctrine to apply, there must be a commonality of elements within the offense charged
and offense proved, to the extent that an Information detailing the offense charged can be
deemed as well as an Information detailing the offense proven.
Hence, the threshold question should be whether violation of Section 3(h) through the
Second Mode is necessarily included in a violation of Section 3(h) through the First Mode.
An affirmative answer is precluded by the difference in the nature of the pecuniary interest
that respectively lie at the core of the two modes.
Information Deficient To Sustain Conviction for Any
Crime Other than the First Mode of Violation of Section 3(h)
An even more crucial reason why Teves should be acquitted pertains to the particular
Information charged against him.
In relation to Teves's pecuniary interest in the cockpit, all the Information alleges is that
Teves had a direct financial or pecuniary interest in the cockpit. It does not allege that such
pecuniary interest violates either the Constitution or any other law. It does not even state
that maintaining the pecuniary interest in the cockpit is in itself unlawful. Moreover, it does
not make any reference to Section 89(b) of the Local Government Code, more so of the
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fact that such pecuniary interest is prohibited under the said statute.
Even the majority concedes that the Information does not charge the Teves spouses with
violating the Second Mode. The ponencia notes that:
"[n]ot by any stretch of imagination can it be discerned or construed that the
afore-quoted last part of the information charges the petitioners with the second
mode by which Section 3(h) of the Anti-Graft Law may be violated. Hence, we
agree with the petitioners that the charge was for unlawful intervention in the
issuance of the license to operate the Valencia Cockpit. There was no charge for
possession of pecuniary interest prohibited by law." 1 2

In short, the Information does not give any indication that the Office of the Special
Prosecutor, which had lodged the charge sheet, was genuinely aware that the fact of
Teves's ownership of the cockpit actually constitutes a violation of a law, or any law for
that matter. But before the Court chalks it up as a lucky break for the government, it should
first examine whether Teves's constitutional rights as an accused would be impaired if he
were found guilty of a charge on the basis of an Information clearly predicated on a
different ground.
Clearly, the Information is sufficient to convict Teves for the First Mode of violating Section
3(h), had the evidence warranted conviction. It amply informs Teves of that particular
charge to the extent that he could adequately prepare a defense in his behalf. However,
would the same Information similarly suffice to have allowed Teves to defend himself
against a charge that maintaining the financial/pecuniary interest in the cockpit is itself
illegal? Clearly, it would not and I so maintain. cTaDHS

Our holding in Esguerra v. People 1 3 is in point. The accused was charged with estafa under
Article 315, paragraph 1-b of the Revised Penal Code, which pertains to misappropriating
personal property received by the offender reposed with trust to preserve or deliver it to
another. However, while the Court of Appeals found that Esguerra could not be held liable
for Estafa under Article 315, paragraph 1-b, he still could be held responsible for violation
of the same Article, but under paragraph 3(2-a), which pertains to false pretenses or
fraudulent acts committed by making misrepresentations as to his identity or status. 1 4
The Court reversed the conviction, noting that:
It is undisputed that the information contains no allegation of misrepresentation,
bad faith or false pretenses, essential element in the crime of which appellant
was found guilty by the Court of Appeals. This is so, evidently, because, as
already stated, the fiscal and the private prosecutor avowedly were prosecuting
the accused for the crime of misappropriation and conversion committed with
unfaithfulness and abuse of confidence for which the appellant went to trial and
was convicted by the lower court. It is true the information states that "the
accused, upon representations (not misrepresentations) that the accused had
copras ready for delivery to it, took and received" the sum of P4,400.00. Nowhere
does it appear in the information that these "representations" were false or
fraudulent, or that the accused had no such copra at the time he allegedly made
such "representations." The falsity or fraudulentness of the pretense or
representation or act being the very constitutive element of the offense, allegation
to that effect, either in the words of the law or in any other language of similar
import, must be made in the information if the right of the accused to be informed
of the nature and cause of the accusation against him is to be preserved. . . . 1 5
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In the case at bar, the constitutive element of the Second Mode for violating Section 3(h) is
the possession of a pecuniary interest that the public officer is prohibited from having by
law. Necessarily then, the Information should spell out which law prohibits such financial or
pecuniary interest if conviction could be had based on the possession of such interest.
Such fact would be critical in order to afford the accused the opportunity to prepare an
intelligent defense. Had the Information notified Teves of his possible culpability hinging
on Section 89(b) of the Local Government Code, Teves would have had the chance to
study the provision and prepare accordingly. There are several avenues the defense could
have pursued, such as an examination of relevant jurisprudential precedents regarding
Section 89(b) or of its legislative history. Teves could have even conducted a contextual
analysis of Section 89(b) in relation to the rest of the Local Government Code or of other
statutes. Indeed, the validity itself of Section 89(b) could be fair game for judicial review,
and it would be understood if Teves had pursued that line of argument, considering that
the invalidity of the provision would equate to his absolution from criminal charges that
may arise from Section 89(b).
But the simple fact remains that Teves could not have pursued these plausible defenses
because Section 89(b) was not put in issue by the Information. Had he raised any matter
relating to Section 89(b) during trial, these would have been deemed irrelevant as it bears
no relation to the charge at hand. Indeed, the prosecution made no effort to demonstrate
that Teves's interest in the cockpit was illegal under Section 89(b), as can be gleaned from
the documentary evidence submitted 1 6 on the basis of which judgment was rendered. 1 7
Instead, intensive efforts were exerted by the prosecution to establish that Teves, in his
official capacity, had caused the issuance of a license on or about 4 February 1992 to
operate the cockpit in question. Confronted with the culpable acts alleged in the
Information, Teves accordingly devoted his own defense to disprove the allegation that he
had indeed issued the licenses for the operation of the cockpit. There is no indication that
during the trial, the parties or the Sandiganbayan dwelt on the aspect that a municipal
mayor may not hold an interest in a cockpit under Section 89(b), which is understandable
considering that the Information itself does not proffer that aspect as an issue.
Yet the Sandiganbayan anyway based its finding of guilt on Section 89(b), in relation to the
Second Mode, despite the fact that the aspect had not been raised, much more the
accused afforded the opportunity to offer a defense against such claim. It would be
simplistic to justify the finding by pointing out that the accused had anyway admitted the
facts that constitute a violation of Section 89(b). Even if the questions of fact are settled,
the accused remains entitled to raise a question of law on the scope and reach, if not
validity, of Section 89(b).
I am not arguing that Section 89(b) is invalid, but I am defending Teves's putative right to
argue in such manner, or to be allowed the opportunity to raise any similarly-oriented
arguments pertaining to the provision. It may run counterintuitive to sustain a legal
doctrine that extenuates the penalty of the seemingly or obviously guilty, but precisely our
Constitution is a document that is not necessarily attuned to common sense if legal sense
dictates otherwise. Thus, the Constitution regards every criminally accused as innocent at
the onset of trial, even an accused who murders another person in front of live television
cameras to the horror of millions who witnessed the crime on their television sets. In such
an instance, everybody "knows" that the accused is guilty, yet a judicial trial still becomes
necessary to warrant for a conviction conformably to the dictates of due process. 1 8 It
should be kept in mind that the question of guilt is not merely a factual question of did
he/she do it, such being the usual treatment in the court of public opinion. In legal
contemplation, it also requires a determination of several possible legal questions such as
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"is he/she justified in committing the culpable act;" 1 9 "is he/she exempt from criminal
liability despite committing the culpable act;" 2 0 or even whether the acts committed
actually constitute an offense. It is thus very possible that even if it has been factually
established that the accused had committed the acts constituting a crime, acquittal may
still be legally ordained.
Therefore, it was not satisfactory on the part of the Sandiganbayan to have relied merely
on the uncontroverted fact that Teves had a financial or pecuniary interest in the cockpit
despite the prohibition under Section 89(b). That was not the charge lodged in the
Information, nor is it even necessarily included in the offense actually alleged in the
Information. The Anti-Graft Court's conclusion of guilt is based on a de novo finding which
the accused had neither an opportunity to defend against, nor even would have expected
as a proper matter of inquiry considering the silence of the Information or the trial
proceedings on the question of Section 89(b).
Even more galling is that nowhere in the Information is it even alleged that maintaining an
interest in a cockpit is actually illegal. Not only is the charge sheet silent as to which law
was violated, but such fact of owning an interest in a cockpit actually constitutes an
offense. For that reason, I am confident that my view does not run counter to the well
settled ruling of the Court in U.S. v. Tolentino 2 1 that "where an offense may be committed
in any several different modes, and the offense is alleged to have been committed in two
or modes specified, it is sufficient to prove the offense committed in any one of them,
provided that it be such as to constitute the substantive offense." 2 2 The Information was
crafted in such a way that only one particular offense was charged, and the alleged manner
through which such offense was committed did not constitute ground for conviction for
another offense.
There may have been stronger basis to uphold the conviction had the Information alleged
that the mere act of possession of the pecuniary interest in the cockpit was in itself a
violation of law, even if which law transgressed was not denominated in the Information. At
least in such a case, Teves would have been put on guard that the legality of his ownership
of the cockpit was a controversial issue and thus prepared accordingly, even if it would
have to entail his having to research as to which law was actually violated by his
ownership. But the Information herein is not so formulated. It was evidently crafted by
persons who had no intention of putting into issue the illegality of Teves' ownership of the
cockpit, but arguing instead that Teves illegally abused his office by issuing a license in
connection with such cockpit.

My submission to acquit Edgar Teves necessarily results in the acquittal of his wife,
Teresita. She is charged as a conspirator to the commission of her husband's felonious
acts, and thus the exoneration of her husband should lead to a similar result in her favor.
This observation is made without disputing the finding of the majority that there is no
sufficient evidence that Teresita Teves conspired with her husband to commit a violation
of Section 3(h) of the Anti-Graft Law.
Perhaps there is some reluctance in acquitting a public official accused of malfeasance in
connection with the public office held. Such a result bolsters the general government
crusade against graft and corruption, and is usually popular with the public at large. Still,
the most vital essence of the democratic way of life is the protection of the bedrock
guarantees extended by the Constitution to all persons regardless of rank. These rights
cannot be bargained away, especially when they stand as the sole barrier to the deprivation
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of one's cherished right to liberty. A due process violation cannot be obviated by the
technical application of a procedural rule. AcICHD

I cannot join the Court in giving imprimatur to a conviction for a crime against which the
accused was deprived the opportunity to defend himself. I respectfully DISSENT, and vote
to ACQUIT Edgar and Teresita Teves.
Footnotes

1. Rollo, 30-47.
2. Id., 52-53.
3. Id., 56-63.
4. Rollo, 69-71.
5. Id., 80-81.
6. Id., 72-79.
7. Id., 82-90, 93.
8. Id., 30-47.
9. Id., 46.
10. Rollo, 8-29.
11. Id., 139.
12. Id., 152-169.
13. Id., 194.
14. Rollo, 43.
15. Section 447. Powers, Duties, Functions and Compensation. — (a) The sangguniang
bayan, as the legislative body of the municipality, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the municipality as provided for under Section 22 of this Code, and
shall
xxx xxx xxx

(3) Subject to the provisions of Book II of this Code, grant franchises, enact ordinances
authorizing the issuance of permit or licenses, or enact ordinances levying taxes, fees
and charges upon such conditions and for such purposes intended to promote the
general welfare of the inhabitants of the municipality, and pursuant to this legislative
authority shall:

xxx xxx xxx


(v) Any law to the contrary notwithstanding, authorize and license the
establishment, operation, and maintenance of cockpits, and regulate cockfighting and
commercial breeding of gamecocks: Provided, that existing rights should not be
prejudiced. . . . [Emphasis supplied].

16. Section 146 (1), B.P. Blg. 337.


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17. Section 446. Composition — (a) The sangguniang bayan, the legislative body of the
municipality, shall be composed of the municipal vice mayor as the presiding officer, the
regular sanggunian members, the president of the municipal chapter of the liga ng mga
barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan,
and the sectoral representatives, as members.
18. Exh. "R," Rollo, 317.

19. Exh. "A," Rollo, 298.


20. Exh. "B," Rollo, 299.

21. Section 3 (ee), Rule 131, Rules on Evidence.

22. Exh. "E," Rollo, 302.


23. Laxamana v. Baltazar, 92 Phil. 32, 35 (1952).
24. Wil Wilhemsen, Inc v. Baluyut, Nos. L-27350-51, 11 May 1978, 83 SCRA 38, 53; Leveriza
v. Intermediate Appellate Court, No. L-66614, 25 January 1988, 157 SCRA 282.
25. City of Naga v. Agna, No. L-36049, 31 May 1976, 71 SCRA 176.
26. SEC. 41. Officials not to Engage in Business Transactions or Possess Pecuniary
Interest. — It shall be unlawful for any local government official, directly or indirectly,
individually or as a member of a firm:
(1) To engage in any business transaction with the local government unit of
which he is an official or over which he has power of supervision, or with any of its
authorized officials, boards, agents, or attorneys, whereby money is to be paid, or
property or any other thing of value is to be transferred, directly or indirectly, out of the
resources of the local government unit to such person or firm;
(2) To purchase any real estate or other property forfeited in favor of such unit
which shall be sold for unpaid taxes or assessment, or by virtue of legal process at the
suit of said unit;

(3) To be a surety for any person having contract or doing business with the local
government unit for the performance of which surety may be required.
27. Lecaroz v. Sandiganbayan, 364 Phil. 890, 911 (1999), citing Magsuci v.
Sandiganbayan, 310 Phil. 14,19 (1995).
28. Id.
29. Pecho v. Sandiganbayan, 331 Phil. 6 (1996).
30. Exh. "F," Rollo, 303.
31. Exh. "J," Rollo, 306.

32. Exh. "M," Rollo, 311.

33. Exh. "I," Rollo, 307.


34. Exh. "N," Rollo, 312.

35. Timbal v. Court of Appeals, G.R. No. 136487, 14 December 2001, 372 SCRA 358 citing
People v. Quindipan, 323 Phil. 497, 507 (1996).

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TINGA, J., dissenting:
1. See Section 14(2), Art. III, Const.
2. See People v. Despavellador, 110 Phil. 800, 804 (1961).
3. See People v. Tudtud, G.R. No. 144037, 26 September 2003, 412 SCRA 142, 168.
4. "Once it is shown or determined that a variance exists, the issue is whether the variance
is material or prejudicial, so that it affects substantial rights of the accused." 41 Am Jur
2d §259; citing cases.
5. Republic Act No. 3019.

6. Rollo, p. 52.
7. Id. at 44.
8. Koh Tieck Heng v. People, G.R. Nos. 48535-36, 21 December 1990, 192 SCRA 533, 543;
citing U.S. v. Campo, 23 Phil. 368 (1912); Esguerra v. People, 108 Phil. 1078 (1960);
People v. Despavellador, 110 Phil. 800 (1961). "Having the right to be informed of the
criminal charge that he or she is to meet at trial, the accused cannot be tried for or
convicted of an offense not charged in the indictment or information. Put simply, not
only must the government prove the crime it charges, it must charge the crime it proves."
41 Am Jur 2d §257, citing cases.

9. 21 Am Jur 2d §325.

10. Decision, pp. 10-11.


11. "An indictment for a particular offense serves as an indictment for all included
offenses, even though the latter are not specifically set forth in the indictment" 41 Am
Jur 2d §259; citing People v. Schmidt, 126 Ill 2d 179, 127 Ill Dec 816, 533 NE2d 898,
1988 Ill LEXIS 187.
12. Decision, p. 9-10.

13. 108 Phil. 1078 (1960).

14. Id. at 1082.


15. Id. at 1083-1084.
16. See Rollo, pp. 32-36.
17. No testimonial evidence was received into evidence, the parties agreeing to the
authenticity of the documentary evidence. Rollo, p. 31.

18. "The right to a fair and impartial trial applies whether an accused is innocent or guilty
and is in no degree impaired or diminished by the strength or compelling character of the
evidence against him." 21 Am Jur 2d §234. "If an accused has not been afforded a fair
trial before an impartial tribunal, it is obvious that he has not been afforded due
process." B. Schwartz, Constitutional Law (1972), at 206.

19. See Article 11, Revised Penal Code, pertaining to Justifying Circumstances.
20. See Article 12, Revised Penal Code, pertaining to Exempting Circumstances.
21. 5 Phil. 682 (1906).

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22. U.S. v. Tolentino, supra note 11, at 685. See also Jurado v. Suy Yan, 148 Phil. 677, 686
(1971); Ko Bu Lin v. Court of Appeals, 204 Phil. 211, 220 (1982).

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EN BANC

[G.R. No. 93252. August 5, 1991.]

RODOLFO T. GANZON , petitioner, vs. THE HONORABLE COURT OF


APPEALS, and LUIS T. SANTOS , respondents.

[G.R. No. 93746. August 5, 1991.]

MARY ANN RIVERA ARTIEDA , petitioner, vs. HON. LUIS SANTOS, in his
capacity as Secretary of the Department of Local Government,
NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the
Department of Local Government, and SALVADOR CABALUNA, JR. ,
respondents.

[G.R. No. 95245. August 5, 1991.]

RODOLFO T. GANZON , petitioner, vs. THE HONORABLE COURT OF


APPEALS, and LUIS T. SANTOS, in his capacity as the Secretary of
the Department of Local Government, respondents.

Nicolas P. Sonalan for petitioner in 93252.


Romeo A. Gerochi for petitioner in 93746.
Eugenio Original for petitioner in 95245.

SYLLABUS

1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; LOCAL AUTONOMY, NATURE OF;


LOCAL OFFICIALS REMAIN ACCOUNTABLE TO CENTRAL GOVERNMENT. — Local
autonomy, under the Constitution, involves a mere decentralization of administration, not
of power, in which local officials remain accountable to the central government in the
manner the law may provide. Autonomy does not contemplate making mini-states out of
local government units. Autonomy, in the constitutional sense, is subject to the guiding
star, though not control, of the legislature, albeit the legislative responsibility under the
Constitution — and as the "supervision clause" itself suggests — is to wean local
government units from overdependence on the central government. It is noteworthy that
under the Charter, "local autonomy" is not instantly self executing, but subject to, among
other things, the passage of a local government code, a local tax law, income distribution
legislation, and a national representation law, and measures designed to realize autonomy
at the local level. It is also noteworthy that in spite of autonomy, the Constitution places
the local governments under the general supervision of the Executive. It is noteworthy
finally, that the Charter allows Congress to include in the local government code provisions
for removal of local officials, which suggests that Congress may exercise removal powers,
and as the existing Local Government Code has done, delegate its exercise to the
President.
2. ID.; ID.; ID.; NEW CONSTITUTION DOES NOT PRESCRIBE FEDERALISM. — As the
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Constitution itself declares, local autonomy means "a more responsive and accountable
local government structure instituted through a system of decentralization." The
Constitution, as we observed, does nothing more than to break up the monopoly of the
national government over the affairs of local governments and as put by political
adherents, to "liberate the local governments from the imperialism of Manila." Autonomy,
however, is not meant to end the relation of partnership and interdependence between the
central administration and local government units, or otherwise, to usher in a regime of
federalism. The Charter has not taken such a radical step. Local governments, under the
Constitution, are subject to regulation, however limited, and for no other purpose than
precisely, albeit paradoxically, to enhance self-government.
3. ID.; ID.; ID.; CHANGED SUPERVISION CLAUSE DOES NOT EXEMPT LOCAL
GOVERNMENTS FROM LEGISLATIVE REGULATION. — The 1987 Constitution provides in
Art. X, Sec. 4 that "[T]he President of the Philippines shall exercise general supervision over
local governments." It modifies a counterpart provision appearing in the 1935 Constitution,
Art. VII, Sec. 10(1), stating that "[T]he President shall . . . exercise general supervision over
all local governments as may be provided by law." It is the considered opinion of the Court
that notwithstanding the change in the constitutional language, the Charter did not intend
to divest the legislature of its right — or the President of her prerogative as conferred by
existing legislation — to provide administrative sanctions against local officials. It is our
opinion that the omission (of "as may be provided by law") signifies nothing more than to
underscore local governments' autonomy from Congress and to break Congress' "control"
over local government affairs. The Constitution did not, however, intend, for the sake of
local autonomy, to deprive the legislature of all authority over municipal corporations, in
particular, concerning discipline. The change in constitutional language did not exempt
local governments from legislative regulation provided regulation is consistent with the
fundamental premise of autonomy.
4. ID.; ID.; ID.; NATIONAL AUTHORITY CAN DISCIPLINE LOCAL OFFICIALS. — Since
local governments remain accountable to the national authority, the latter may, by law, and
in the manner set forth therein, impose disciplinary action against local officials. In the
case at bar, the Secretary of Local Government, the President's alter ego, in consonance
with the specific legal provisions of Batas Blg. 337, the existing Local Government Code,
can suspend petitioner Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and petitioner
member of the Sangguniang Panglunsod (G.R. No. 93746).
5. ID.; ID.; ID.; ID.; "SUPERVISION" NOT INCOMPATIBLE WITH DISCIPLINARY
AUTHORITY. — "Supervision" is not incompatible with disciplinary authority. As this Court
held in Ganzon vs. Cayanan, 104 Phil. 484, "in administration law supervision means
overseeing or the power or authority of an officer to see that subordinate officers perform
their duties. If the latter fail or neglect to fulfill them the former may take such action or
step as prescribed by law to make them perform their duties."
6. ID.; ID.; ID.; ID.; POWER TO SUSPEND LOCAL OFFICIALS MUST NOT BE EXERCISED
OPPRESSIVELY. — While the respondent Secretary of Interior, as alter ego of the President,
under the existing Local Government Code, has the Power to suspend the petitioner Iloilo
City Mayor, such power cannot be exercised oppressively. Ten administrative cases have
been successively filed against the City Mayor. The Mayor has been made to serve a total
of 120 days of suspension for the first two cases and the respondent Secretary has issued
another order preventively suspending the former for another 60 days, the third time in
twenty months. We are allowing the Mayor to suffer the duration of his third suspension.
Insofar as the seven remaining charges are concerned, we are urging the Department of
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Local Government, upon finality of this decision, to undertake steps to expedite the same,
subject to the Mayor's usual remedies of appeal, judicial or administrative, or certiorari, if
warranted, and meanwhile, we are precluding the Secretary from meting out further
suspensions based on those remaining complaints, notwithstanding findings of prima
facie evidence.

DECISION

SARMIENTO , J : p

The petitioners take common issue on the power of the President (acting through the
Secretary of Local Government), to suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of
the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively. cdasia

The petitions of Mayor Ganzon originated from a series of administrative


complaints, ten in number, led against him by various city of cials sometime in 1988,
on various charges, among them, abuse of authority, oppression, grave misconduct,
disgraceful and immoral conduct, intimidation, culpable violation of the Constitution,
and arbitrary detention. 1 The personalities involved are Joceleehn Cabaluna, a clerk at
the city health of ce; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant
City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Peña Redondo, members of the Sangguniang
Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor
are set forth in the opinion of the respondent Court of Appeals. 2 We quote:
xxx xxx xxx
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City
Health, Office of Iloilo City charged that due to political reasons, having supported
the rival candidate, Mrs. Rosa O. Caram, the petitioner City Mayor, using as an
excuse the exigency of the service and the interest of the public, pulled her out
from rightful office where her qualification are best suited and assigned her to a
work that should be the function of a non-career service employee. To make
matters worse, a utility worker in the office of the Public Services, whose duties
are alien to the complainant's duties and functions, has been detailed to take her
place. The petitioner's act are pure harassments aimed at luring her away from
her permanent position or force her to resign.

In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked
her to perform task not befitting her position as Assistant City Health Officer of
Iloilo City; that her office was padlocked without any explanation or justification;
that her salary was withheld without cause since April 1, 1988; that when she filed
her vacation leave, she was given the run-around treatment in the approval of her
leave in connivance with Dr. Rodolfo Villegas and that she was the object of a
well-engineered trumped-up charge in an administrative complaint filed by Dr.
Rodolfo Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duty elected Vice Mayor of Iloilo City
and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and
Eduardo Peña Redondo are members of the Sangguniang Panglunsod of the City
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of Iloilo. Their complaint arose out from the case where Councilor Larry Ong,
whose key to his office was unceremoniously and without previous notice, taken
by petitioner. Without an office, Councilor Ong had to hold office at Plaza
Libertad. The Vice-Mayor and the other complainants sympathized with him and
decided to do the same. However, the petitioner, together with his fully-armed
security men, forcefully drove them away from Plaza Libertad. Councilor Ong
denounced the petitioner's actuations the following day in the radio station and
decided to hold office at the Freedom Grandstand at Iloilo City and there were so
many people who gathered to witness the incident. However, before the group
could reach the area, the petitioner, together with his security men, led the firemen
using a firetruck in dozing water to the people and the bystanders.

Another administrative case was filed by Pancho Erbite, a barangay tanod,


appointed by former mayor Rosa O. Caram. On March 13, 1988, without the
benefit of charges filed against him and no warrant of arrest was issued, Erbite
was arrested and detained at the City Jail of Iloilo City upon orders of petitioner.
In jail, he was allegedly mauled by other detainees thereby causing injuries. He
was released only the following day. 3

The Mayor thereafter answered, 4 and the cases were set for hearing. The opinion of the
Court of Appeals also set forth the succeeding events:
xxx xxx xxx
The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on
June 20-21, 1988 at the Regional Office of the Department of Local Government
in Iloilo City. Notices, through telegrams, were sent to the parties (Annex L) and
the parties received them, including the petitioner. The petitioner asked for a
postponement before the scheduled date of hearing and was represented by
counsel, Atty. Samuel Castro. The hearing officers, Atty. Salvador Quebral and
Atty. Marino Bermudez had to come all the way from Manila for the two-day
hearings but was actually held only on June 20, 1988 in view of the inability and
unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27, 1988 in the same venue — Iloilo
City. Again, the petitioner attempted to delay the proceedings and moved for a
postponement under the excuse that he had just hired his counsel. Nonetheless,
the hearing officers denied the motion to postpone, in view of the fact that the
parties were notified by telegrams of the scheduled hearings (Annex M).

In the said hearings, petitioner's counsel cross-examined the complainants and


their witnesses.
Finding probable grounds and reasons, the respondent issued a preventive
suspension order on August 11, 1988 to last until October 11, 1988 for a period of
sixty (60) days.

Then the next investigation was set on September 21, 1988 and the petitioner
again asked for a postponement to September 26, 1988. On September 26, 1988,
the complainants and petitioner were present, together with their respective
counsel. The petitioner sought for a postponement which was denied. In these
hearings which were held in Manila, the petitioner testified in Adm. Case No. C-
10298 and 10299.

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The investigation was continued regarding the Malabor case and the
complainants testified including their witnesses.
On October 10, 1988, petitioner's counsel, Atty. Onginal moved for a
postponement of the October 24, 1988 hearing to November 7 to 11, 1988 which
was granted. However, the motion for change of venue was denied due to lack of
funds. At the hearing on November 7, 1988, the parties and counsel were present.
Petitioner reiterated his motion to change venue and moved for postponement
anew. The counsel discussed a proposal to take the deposition of witnesses in
Iloilo City so the hearing was indefinitely postponed. However, the parties failed to
come to terms and after the parties were notified of the hearing, the investigation
was set to December 13 to 15, 1988.
The petitioner sought for another postponement on the ground that his witnesses
were sick or cannot attend the investigation due to lack of transportation. The
motion was denied and the petitioner was given up to December 14, 1988 to
present his evidence. LexLib

On December 14, 1988, petitioner's counsel insisted on his motion for


postponement and the hearing officers gave petitioner up to December 15, 1988
to present his evidence. On December 15, 1988, the petitioner failed to present
evidence and the cases were considered submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary
detention case filed by Pancho Erbite so the respondent ordered the petitioner's
second preventive suspension dated October 11, 1988 for another sixty (60) days.
The petitioner was able to obtain a restraining order and a writ of preliminary
injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second
preventive suspension was not enforced. 5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition
against the respondent Secretary of Local Government (now, Interior) in the Regional Trial
Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction.
Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent
Court of Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively
suspending Mayor Ganzon for another sixty days, the third time in twenty months, and
designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor
Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for
prohibition, 6 (Malabor, it is to be noted, is one of the complainants, and hence, he is
interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP
No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No.
20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying the petition
of Mary Ann Artieda, who had been similarly charged by the respondent Secretary, to this
Court.
On June 26, 1990, we issued a Temporary Restraining Order, barring the respondent
Secretary from implementing the suspension orders, and restraining the enforcement of
the Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In our
Resolutions of January 15, 1991, we gave due course thereto.
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Mayor Ganzon claims as a preliminary (G.R. No. 93252), that the Department of Local
Government in hearing the ten cases against him, had denied him due process of law and
that the respondent Secretary had been "biased, prejudicial and hostile" towards him 7
arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong
Pilipino party 8 and the running political rivalry they maintained in the last congressional
and local elections; 9 and his alleged refusal to operate a lottery in Iloilo City. 1 0 He also
alleges that he requested the Secretary to lift his suspension since it had come ninety days
prior to an election (the barangay elections of November 14, 1988), 1 1 notwithstanding
which, the latter proceeded with the hearing — and meted out two more suspension orders
— of the aforementioned cases. 1 2 He likewise contends that he sought to bring the cases
to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the
Secretary rejected his request. 1 3 He states that he asked for postponement on 'valid and
justifiable" 14 grounds, among them, that he was suffering from a heart ailment which
required confinement; that his "vital" 1 5 witness was also hospitalized 1 6 but that the latter
unduly denied his request. 1 7
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of
Local Government is devoid, in any event, of any authority to suspend and remove local
officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No.
93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very
clearly in what manner the Mayor might have been deprived of his rights by the respondent
Secretary. His claims that he and Secretary Luis Santos were (are) political rivals and that
his "persecution" was politically motivated are pure speculation and although the latter
does not appear to have denied these contentions (as he, Mayor Ganzon, claims), we can
not take his word for it the way we would have under less political circumstances,
considering furthermore that "political feud" has often been a good excuse in contesting
complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had
attempted to seduce him to join the administration party and to operate a lottery in Iloilo
City. Again, although the Secretary failed to rebut his allegations, we can not accept them
at face value, much more, as judicial admissions as he would have us accept them, 1 8 for
the same reasons above-stated and furthermore, because his say-so's were never
corroborated by independent testimonies. As a responsible public official, Secretary
Santos, in pursuing an official function, is presumed to be performing his duties regularly
and in the absence of contrary evidence, no ill motive can be ascribed to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer
the hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337,
the Court finds the question to be moot and academic since we have in fact restrained the
Secretary from further hearing the complaints against the petitioners. 1 9
As to his request, finally, for postponements, the Court is afraid that he has not given any
compelling reason why we should overturn the Court of Appeals, which found no
convincing reason to overrule Secretary Santos in denying his requests. Besides,
postponements are a matter of discretion on the part of the hearing officer, and based on
Mayor Ganzon's above story, we are not convinced that the Secretary has been guilty of a
grave abuse of discretion.
The Court can not say, under these circumstances, that Secretary Santos' actuations
deprived Mayor Ganzon of due process of law.
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We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and or remove local officials.
It is the petitioners' argument that the 1987 Constitution 2 0 no longer allows the President,
as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or
removal over local officials. According to both petitioners, the Constitution is meant, first,
to strengthen self-rule by local government units and second, by deleting the phrase "as
may be provided by law," 2 1 to strip the President of the power of control over local
governments. It is a view, so they contend, that finds support in the debates of the
Constitutional Commission.

The provision in question reads as follows:


SECTION 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to component cities
and municipalities, and cities and municipalities with respect to component
barangays shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions. 2 2

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:


SECTION 10. The President shall have control of all the executive
departments, bureaus, or offices, exercise general supervision over all local
governments as may be provided by law, and take care that the laws be faithfully
executed. 2 3

The petitioners submit that the deletion (of "as may be provided by law") is significant, as
their argument goes, since: (1) the power of the President is "provided by law" and (2)
hence, no law may provide for it any longer. LLphil

It is to be noted that in meting out the suspensions under question, the Secretary of Local
Government acted in consonance with the specific legal provisions of Batas Blg. 337, the
Local Government Code, we quote:
SECTION 62. Notice of Hearing. — Within seven days after the complaint is
filed, the Minister of Local Government, or the sanggunian concerned, as the case
may be, shall require the respondent to submit his verified answer within seven
days from receipt of said complaint, and commence the hearing and investigation
of the case within ten days after receipt of such answer of the respondent. No
investigation shall be held within ninety days immediately prior to an election, and
no preventive suspension shall be imposed within the said period. If preventive
suspension has been imposed prior to the aforesaid period, the preventive
suspension shall be lifted. 2 4
SECTION 63. Preventive Suspension. — (1) Preventive suspension may be
imposed by the Minister of Local Government if the respondent is a provincial or
city official, by the provincial governor if the respondent is an elective municipal
official, or by the city or municipal mayor if the respondent is an elective
barangay official.
(2) Preventive suspension may be imposed at any time after the issues are
joined, when there is reasonable ground to believe that the respondent has
committed the act or acts complained of, when the evidence of culpability is
strong, when the gravity of the offense so warrants, or when the continuance in
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office of the respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence. In all cases, preventive
suspension shall not extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings
against him until its termination. However, if the delay in the proceedings of the
case is due to his fault, neglect or request, the time of the delay shall not be
counted in computing the time of suspension. 2 5

The issue, as the Court understands it, consists of three questions: (1) Did the 1987
Constitution, in deleting the phrase "as may be provided by law" intend to divest the
President of the power to investigate, suspend, discipline, and or remove local officials?
(2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3)
What is the significance of the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the
constitutional language, the charter did not intend to divest the legislature of its right — or
the President of her prerogative as conferred by existing legislation to provide
administrative sanctions against local officials. It is our opinion that the omission (of "as
may be provided by law") signifies nothing more than to underscore local governments'
autonomy from congress and to break Congress' "control" over local government affairs.
The Constitution did not, however, intend, for the sake of local autonomy, to deprive the
legislature of all authority over municipal corporations, in particular, concerning discipline.
Autonomy does not, after all, contemplate making mini-states out of local government
units, as in the federal governments of the United States of America (or Brazil or Germany),
although Jefferson is said to have compared municipal corporations euphemistically to
"small republics". 26 Autonomy, in the constitutional sense, is subject to the guiding star,
though not control, of the legislature, albeit the legislative responsibility under the
Constitution — and as the "supervision clause" itself suggest — is to wean local
government units from over dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but
subject to, among other things, the passage of a local government code, 2 7 a local tax law,
2 8 income distribution legislation, 2 9 and a national representation law, 3 0 and measures 3 1
designed to realize autonomy at the local level. It is also noteworthy that in spite of
autonomy, the Constitution places the local government under the general supervision of
the Executive. It is noteworthy finally, that the Charter allows Congress to include in the
local government code provisions for removal of local officials, which suggest that
Congress may exercise removal powers, and as the existing Local Government Code has
done, delegate its exercise to the President. Thus:
SECTION 3. The Congress shall enact a local government code which shall
provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of
recall, initiative, and referendum, allocate among the different local government
units their powers, responsibilities and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the
organization and operation of the local units. 3 2

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress,
sub silencio, the objective of the framers to strengthen local autonomy by severing
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congressional control of its affairs, as observed by the Court of Appeals, like the power of
local legislation. 3 3 The Constitution did nothing more, however, and insofar as existing
legislation authorizes the President (through the Secretary of Local Government) to
proceed against local officials administratively, the Constitution contains no prohibition.
The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her
control, which allegedly embraces disciplinary authority. It is a mistaken impression
because legally, "supervision" is not incompatible with disciplinary authority as this Court
has held, 3 4 thus:
xxx xxx xxx
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this
Court had occasion to discuss this scope and extent of the power of supervision
by the President over local government officials in contrast to the power of
control given to him over executive officials of our government wherein it was
emphasized that the two terms, control and supervision, are two different things
which differ one from the other in meaning and extent. Thus in that case the
Court has made the following digression: "In administration law supervision
means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them the former
may take such action or step as prescribed by law to make them perform their
duties. Control, on the other hand, means the power of an officer to alter or
modify or nullify of set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of
the latter." But from this pronouncement it cannot be reasonably inferred that the
power of supervision of the President over local government officials does not
include the power of investigation when in his opinion the good of the public
service so requires, as postulated in Section 64(c) of the Revised Administrative
Code. . . . 3 5
xxx xxx xxx

"Control" has been defined as "the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for test of the latter." 36 "Supervision" on the other
hand means "overseeing or the power or authority of an officer to see that subordinate
officers perform their duties." 3 7 As we held, 3 8 however, "investigating" is not inconsistent
with "overseeing", although it is a lesser power than "altering".
The impression is apparently exacerbated by the Court's pronouncements in at least three
cases, Lacson v. Roque, 3 9 Hebron v. Reyes, 4 0 and Mondano v. Silvosa, 4 1 and possibly, a
fourth one, Pelaez v. Auditor General. 4 2 In Lacson, this Court said that the President
enjoyed no control powers but only supervision "as may be provided by law," 4 3 a rule we
reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . .
suspend an elective official of a regular municipality or take any disciplinary action against
him, except on appeal from a decision of the corresponding provincial board." 4 4 However,
neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from
exercising acts of disciplinary authority because she did not exercise control powers, but
because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:

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The contention that the President has inherent power to remove or suspend
municipal officers is without doubt not well taken. Removal and suspension of
public officers are always controlled by the particular law applicable and its
proper construction subject to constitutional limitations. 4 5

In Hebron, we stated:
Accordingly, when the procedure for the suspension of an officer is specified by
law, the same must be deemed mandatory and adhered to strictly, in the absence
of express or clear provision to the contrary — which does not exist with respect to
municipal officers. . . . 4 6

In Mondano, the Court held:


. . . The Congress has expressly and specifically lodged the provincial supervision
over municipal officials in the provincial governor who is authorized to "receive
and investigate complaints made under oath against municipal officers for
neglect of duty, oppression, corruption or other form of maladministration of
office, and conviction by final judgment of any crime involving moral turpitude."
And if the charges are serious, "he shall submit written charges touching the
matter to the provincial board, furnishing a copy of such charges to the accused
either personally or by registered mail, and he may in such case suspend the
officer (not being the municipal treasurer) pending action by the board, if in his
opinion the charge by one effecting the official integrity of the officer in question."
Section 86 of the Revised Administration Code adds nothing to the power of
supervision to be exercised by the Department Head over the administration of . . .
municipalities. . . . If it be construed that it does and such additional power is the
same authority as that vested in the Department Head by section 79(c) of the
Revised Administrative Code, then such additional power must be deemed to have
been abrogated by Section 110(1), Article VII, of the Constitution." 4 7
xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local
officials except on appeal from the provincial board pursuant to the Administrative Code.
48

Thus, in those case that this Court denied the President the power (to suspend remove) it
was not because we did not think that the President can not exercise it on account of his
limited power, but because the law lodged the power elsewhere. But in those cases in
which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty
in sustaining him. 4 9
The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose
Nolledo would exclude the power of removal from the President, 5 0 Commissioner Blas
Ople would not. 5 1
The Court is consequently reluctant to say that the new Constitution has repealed the
Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not
incompatible terms and one may stand with the other notwithstanding the stronger
expression of local autonomy under the new Charter. We have indeed held that in spite of
the approval of the Charter, Batas Blg. 337 is still in force and effect. 5 2
As the Constitution itself declares, local autonomy means "a more responsive and
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accountable local government structure instituted through a system of decentralization."
5 3 The Constitution, as we observed, does nothing more than to break up the monopoly of
the national government over the affairs of local governments and as put by political
adherents, to "liberate the local governments from the imperialism of Manila." Autonomy,
however, is not meant to end the relation of partnership and interdependence between the
central administration and local government units, or otherwise, to usher in a regime of
federalism. The Charter has not taken such a radical step. Local governments, under the
Constitution, are subject to regulation, however limited, and for no other purpose than
precisely, albeit paradoxically, to enhance self-government.
As we observed in one case, 5 4 decentralization means devolution of national
administration — but not power — to the local levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the
base of government power and in the process to make local governments "more
responsive and accountable," and "ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national
development and social progress." At the same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate
on national concerns. The President exercises "general supervision" over them,
but only to "ensure that local affairs are administered according to law." He has
no control over their acts in the sense that he can substitute their judgments with
his own.

Decentralization of power, on the other hand, involves an abdication of political


power in the favor of local governments units declared to be autonomous, In that
case, the autonomous government is free to chart its own destiny and shape its
future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to "self-immolation,"
since in that event, the autonomous government becomes accountable not to the
central authorities but to its contituency. 5 5

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another
matter. What bothers the Court, and what indeed looms very large, is the fact that since the
Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of
600 days of suspension, in the event that all ten cases yield prima facie findings. The Court
is not of course tolerating misfeasance in public office (assuming that Mayor Ganzon is
guilty of misfeasance) but it is certainly another question to make him serve 600 days of
suspension, which is effectively, to suspend him out of office. As we held: 5 6
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His
term of office does not expire until 1986. Were it not for this information and the
suspension decreed by the Sandiganbayan according to the Anti-Graft and
Corrupt Practices Act, he would have been all this while in the full discharge of his
functions as such municipal mayor. He was elected precisely to do so. As of
October 26, 1983, he has been unable to. It is a basic assumption of the electoral
process implicit in the right of suffrage that the people are entitled to the services
of elective officials of their choice. For misfeasance or malfeasance, any of them
could, of course, be proceeded against administratively or, as in this instance,
criminally. In either case, his culpability must be established. Moreover, if there be
a criminal action, he is entitled to the constitutional presumption of innocence. A
preventive suspension may be justified. Its continuance, however, for an
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unreasonable length of time raises a due process question. For even if thereafter
he were acquitted, in the meanwhile his right to hold office had been nullified.
Clearly, there would be in such a case an injustice suffered by him. Nor is he the
only victim. There is injustice inflicted likewise on the people of Lianga. They were
deprived of the services of the man they had elected to serve as mayor. In that
sense, to paraphrase Justice Cardozo, the protracted continuance of this
preventive suspension had outrun the bonds of reason and resulted in sheer
oppression. A denial of due process is thus quite manifest. It is to avoid such an
unconstitutional application that the order of suspension should be lifted. 5 7

The plain truth is that this Court has been ill at ease with suspensions, for the above
reasons, 5 8 and so also, because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have held, 5 9 is simply "to prevent
the accused from hampering the normal cause of the investigation with his influence and
authority over possible witnesses" 6 0 or to keep him off "the records and other evidence."
6 1 It is a means, and no more, to assist prosecutors in firming up a case, if any, against an
erring local official. Under the Local Government Code, it can not exceed sixty days, 6 2
which is to say that it need not be exactly sixty days long if a shorter period is otherwise
sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved
their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the
accused is held to insure his presence at the trial. In both cases, the accused (the
respondent) enjoys a presumption of innocence unless and until found guilty. cdphil

Suspension finally is temporary, and as the Local Government Code provides, it may be
imposed for no more than sixty days. As we held, 6 3 a longer suspension is unjust and
unreasonable, and we might add, nothing less than tyranny.
As we observed earlier, imposing 600 days of suspension — which is not a remote
possibility — on Mayor Ganzon is to all intents and purposes, to make him spend the rest
of his term in inactivity. It is also to make, to all intents and purposes, his suspension
permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not
been proven. Worse, any absolution will be for naught because needless to say, the length
of his suspension would have, by the time he is reinstated, wiped out his tenure
considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to
see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor
Ganzon successive suspensions when apparently, the respondent Secretary has had
sufficient time to gather the necessary evidence to build a case against the Mayor —
without suspending him a day longer. What is intriguing is that the respondent Secretary
has been cracking down, so to speak, on the Mayor piecemeal — apparently, to pin him
down ten times the pain, when he, the respondent Secretary, could have pursued a
consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior
from exercising a legal power, yet we are of the opinion that the Secretary of Interior is
exercising that power oppressively, and needless to say, with a grave abuse of discretion.

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The Court is aware that only the third suspension is under question, and that any talk of
future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has
been made to serve a total of 120 days of suspension and the possibility of sixty days
more is arguably around the corner (which amounts to a violation of the Local Government
Code) — which brings to light a pattern of suspensions intended to suspend the Mayor the
rest of his natural tenure. The Court is simply foreclosing what appears to us as a
concerted effort of the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third
suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued.
Insofar as the seven pertaining charges are concerned, we are urging the Department of
Local Government, upon the finality of this Decision, to undertake steps to expedite the
same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or
certiorari, if warranted, and meanwhile, we are precluding the Secretary from meting out
further suspensions based on those remaining complaints, notwithstanding findings of
prima facie evidence.
In resumé, the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of
administration, not of power, in which local officials remain accountable to the central
government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision clause) was
meant but to deny legislative control over local governments; it did not exempt the latter
from legislative regulations provided regulation is consistent with the fundamental
premise of autonomy;
4. Since local governments remain accountable to the national authority, the latter may,
by law, and in the manner set forth therein, impose disciplinary action against local
officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not
signify "control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon, may serve the suspension so far ordered, but
may no longer be suspended for the offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to his fault, neglect
or request, (the time of the delay) shall not be counted in computing the time of
suspension." [Supra, sec. 63(3)]

b) that if during, or after the expiration of, his preventive suspension, the
petitioner commits another or other crimes and abuses for which proper charges
are filed against him by the aggrieved party or parties, his previous suspension
shall not be a bar to his being preventively suspended again, if warranted under
subpar. (2), Section 63 of the Local Government Code.

WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary


Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED,
provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future
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suspensions on account of any of the remaining administrative charges pending against
him for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED to
consolidate all such administrative cases pending against Mayor Ganzon. cdasia

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No
costs.
SO ORDERED.
Fernan, C . J ., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ ., concur.
Footnotes

1. Rollo, G.R. No. 93252, 76; 77.


2. Hon. Bonifacio Cacdac, Jr., J.

3. Rollo, id., 76-77.


4. Id., 77.
5. Id., 77-78.
6. Id., 78. The first suspension was on the Cabaluna and Ortigoza complaints. CA-G.R. No.
1.6417 was on the Erbite complaint. CA-G.R. No. 20736 was a challenge on the
designation of Vica-Mayor Malabor.

7. Id., 21.
8. Id.
9. Id., 27.
10. Id., 28.
11. Id., 30.
12. Id., 31-32.
13. Id., 34-35.
14. Id., 36.
15. Id.
16. Id.
17. Id., 38.
18. Id.
19. By virtue of the Temporary Restraining Order the Court issued on June 26, 1990.

20. CONST., art. X, sec. 4.


21. CONST. (1935), art. X, sec. 10(1). The 1973 Constitution contained no similar provision,
but see art. VII, sec. 18.

22. CONST. (1987), supra.


23. CONST. (1935), supra.
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24. Batas Blg. 337, sec. 62.

25. Supra, sec. 63.


26. CRUZ, PHILIPPINE POLITICAL LAW 64 (1987 ed.).
27. CONST., supra, art. X, sec. 3.

28. Supra, secs. 5, 6.


29. Supra, sec. 7.
30. Supra, sec. 9.

31. See supra, sec. 14, providing for regional development councils to be organized by the
President.

32. Supra, sec. 3.


33. G.R. No. 95245, id., 53; see Mendoza, J., Concurring.
34. Ganzon v. Kayanan, 104 Phil. 484 (1985). In this concurrence (id., 48-61), Justice
Mendoza cited this case.

35. Supra, 489-490.


36. Mondano v. Silvosa, 97 Phil. 143, 148 (1955).

37. Supra, 147.


38. Ganzon v. Kayanan, supra.
39. 92 Phil. 456 (1953).

40. 104 Phil. 175 (1958).


41. Supra.
42. No. L-23825, December 24, 1965, 15 SCRA 569.

43. Lacson v. Roque, supra, 463.


44. Pelaez v. Auditor General, supra, 583.

45. Lacson v. Roque, supra, 462.


46. Hebron v. Reyes, supra, 185.

47. Mondano v. Silvosa, supra, 148.

48. Pelaez v. Auditor General, supra, 583.


49. G.R. No. 95245, id., 50-51; see Mendoza, J., Concurring.

50. Id., 23.


51. Id., 53.
52. Bagabuyo v. Davide, G.R. No. 87233, September 21, 1989.

53. CONST., supra, art. X, sec. 3.


54. Limbona v. Mangelin, G.R. No. 80391, February 28, 1989, 170 SCRA 786.
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55. Supra., 794-795.
56. Layno, Sr. v. Sandiganbayan, No. 65848, May 24, 1985, 136 SCRA 536.

57. Supra, 541.


58. See supra.
59. Lacson v. Roque, supra.

60. Supra, 469.


61. Batas Blg. 337, sec. 63.

62. Supra.
63. Layno, Sr. v. Sandiganbayan, supra.

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EN BANC

[G.R. No. 93252. November 8, 1991.]

RODOLFO T. GANZON , petitioner, vs. THE COURT OF APPEALS AND


LUIS T. SANTOS , respondents.

[G.R. No. 93746. November 8, 1991.]

MARY ANN RIVERA ARTIEDA , petitioner, vs. HON. LUIS SANTOS, in his
capacity as Secretary of the Department of Local Government,
NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the
Department of Local Government and SALVADOR CABALUNA, JR. ,
respondents.

[G.R. No. L-95245. November 8, 1991.]

RODOLFO T. GANZON , petitioner, vs. THE HONORABLE COURT OF


APPEALS and LUIS T. SANTOS, in his capacity as the Secretary of
the Department of Local Government , respondents.

Manuel Lazaro and Vincent Rondaris for petitioner in G.R. Nos. 93252 & 95245.

SYLLABUS

1. ADMINISTRATIVE LAW; PREVENTIVE SUSPENSION; SIMULTANEOUS SERVICE OF


OVERLAPPING SUSPENSIONS; LESSENS THE HARSH EFFECTS OF WHATEVER MOTIVE
BEHIND SUCCESSIVE SUSPENSION ORDERS. — Petitioner raises the issue of whether he
could or should be allowed to serve the third and the fourth orders "simultaneously". It will
be recalled that, in the main decisions, noting that successive suspensions have been
in icted on Mayor Ganzon, we stated that what "is intriguing is that respondent Secretary
has been cracking down, so to speak, on the Mayor piecemeal — apparently, to pin him
down ten times the pain, when he, the respondent Secretary could have pursued a
consolidated effort." Surely, allowing petitioner to serve simultaneously the overlapping
third and fourth suspensions will favor him, (and presumably the local constituency) and
certainly lessen if not offset the harsh effects of whatever motive may be behind the
intriguing action of the respondent Secretary in issuing those successive suspension
orders.
2. ID.; ID.; ID.; ELECTIVE OFFICIALS CAN NOT BE PREVENTIVELY SUSPENDED FOR MORE
THAN 90 DAYS. — We may already take judicial notice of the recently-approved Local
Government Code of 1991 (recently signed into law by the President) which provides (as
to imposition of preventive suspensions) as follows: "SEC. 63. Preventive Suspension . . .
b) . . . that, any single preventive suspension of local elective of cial shall not extend
beyond sixty (60) days: Provided, further that in the event that several administrative cases
are led against an elective of cial, he cannot be preventively suspended for more than
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ninety (90) days within a single year on the same ground or grounds existing and known at
the time of the first suspension." (emphasis ours)
3. ID.; ID.; ID.; ALLOWED UNDER THE BIZARRE CIRCUMSTANCES OF THE CASE AT BAR. —
The main decision refers to the three (3) suspension orders — the rst, the second and the
third. As shown earlier, the rst and the third orders have already been served. It is only the
second order which seems to have been unserved. If we follow the decision which states
that the three (3) suspensions are af rmed, there appears to be no reason why the second
order should not be served for another 60-day period. However, there is no cogent reason
why, under the bizarre circumstances of this case — where the respondent Secretary has
chosen to impose preventive suspensions piecemeal, instead of consolidating the several
administrative cases of similar nature and close vintage — we cannot allow the concept of
simultaneous service to apply to the second order (as we did in the third order). It would
follow then that the second order is also fully served to this date for the service of said
second order would have started on 5 August 1991 (when the main decision was rendered
as this was the time when this Court found and af rmed the validity of the three (3)
suspensions orders, including the second order). The 60-day period from 5 August 1991
expired on 4 October 1991.
4. ID.; ID.; ID.; SERVICE OF SUSPENSION RENDERS ISSUE ON VALIDITY OF PREVENTIVE
SUSPENSION MOOT AND ACADEMIC. — It appears that as to the second preventive
suspension, petitioner manifested that there is still an existing preliminary injunction
issued by the RTC of Iloilo City, Branch 33 in Special Civil Action No. 18312, entitled
Ganzon vs. Santos, et al. One may ask as to the status of the case pending with the RTC,
Iloilo City, Branch 33 insofar as the said case involves the issue on the validity of the
second preventive suspension order. Under the main decision of this Court, dated 5
August 1991, the second preventive suspension has been af rmed; under the present
resolution, said second preventive suspension has been served. Consequently, Special Civil
Action No. 18312 before the Regional Trial Court of Iloilo City has been rendered moot and
academic, insofar as the second preventive suspension order is concerned. As to the
petition (docketed CA-G.R. SP No. 25840) led with the Court of Appeals, which involves
the question of the validity of the fourth order, and which has clearly been served,
petitioner admitted that he led it, on the belief that it was the proper remedy for his
reinstatement to of ce; thinking that his suspensions have been served and ended. As we
have ruled that petitioner has served the suspension orders decreed in the main decision
and in the light of the nding of this Court that the fourth preventive suspension order has
been served, the issues raised in CA-G.R. SP No. 25840, have also become moot and
academic, warranting dismissal thereof.

RESOLUTION

PADILLA , J : p

Before the Court for resolution are the various issues raised by Rodolfo T. Ganzon's urgent
motion, dated 7 September 1991, wherein he asks the court to dissolve the temporary
restraining order (TRO) it had issued, dated 5 September 1991, against the TRO earlier
issued by the Court of Appeals in CA-G.R. SP No. 25840 entitled Ganzon vs. Santos, et al.
On 5 August 1991, the Court's decision in the present case was promulgated, upholding
the validity of the orders of preventive suspension issued by respondent Secretary Santos,
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the dispositive part of which decision reads:
"WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary
Restraining Order issued is LIFTED. The suspensions of the petitioners are
AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be made
to serve future suspensions on account of any of the remaining administrative
charges pending against him for acts committed prior to August 11, 1988. The
Secretary of Interior is ORDERED to consolidate all such administrative cases
pending against Mayor Ganzon. cdphil

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is
AFFIRMED No costs." 1

A brief summary of the facts that led to this Court's decision of 5 August 1991 ("main
decision", for brevity) is as follows:
1. Sometime in 1988, a series of ten (10) administrative complaints were led by
various city of cials, against petitioner Ganzon, the elected City Mayor of Iloilo
City, on various charges such as abuse of authority, oppression, grave
misconduct and others.

2. In the course of the hearing of the administrative cases, respondent Secretary


Santos issued against petitioner Ganzon three (3) separate orders of preventive
suspension dated 11 August 1988, 11 October 1988, and 3 May 1990, each of the
orders to last for a 60-day period.

Petitioner assailed the validity of the said orders by ling with the Court of
Appeals two (2) separate petitions for prohibition docketed CA-G.R. SP No. 16417
and CA-G.R. SP No. 20736. On 7 September 1988 and 5 July 1990, the appellate
court rendered the decision in CA-G.R. SP Nos. 16417 and 20736 dismissing the
petitions for lack of merit. Hence, petitioner Ganzon led with this Court two (2)
separate petitions assailing the decision in CA-G.R. SP No. 16417 (subject of G.R.
No. 93252), and that in CA-G.R. SP No. 20736 (subject of G.R. No. 95245). 2

3. On 26 June 1990, we issued a Temporary Restraining Order barring the


respondent Secretary from implementing the suspension orders, and restraining
the enforcement of the Court of Appeals' two (2) decisions.

However, it appears that even before the promulgation on 5 August 1991 of the main
decision, respondent Secretary Santos had issued on 3 July 1991 against petitioner
Ganzon another order of preventive suspension in connection with Administrative Case No.
51-90 filed by complainant Octavius J. Jopson, which order states:
"It appearing from a perusal of the complaint as well as the answer in
Administrative Case No 51-90, entitled Octavius J. Jopson, Complainant, versus,
Mayor Rodolfo T. Ganzon, Respondent, for Oppression, etc., that there is
reasonable ground to believe that Respondent has committed the act or acts
complained of, as prayed for by Complainant Jopson, you are hereby preventively
suspended from of ce for a period of sixty (60) days effective immediately."
(Emphasis ours)

On 6 July 1991, petitioner Ganzon led his "extremely urgent motion" (with supplemental
motions later led) questioning the validity of the said last mentioned suspension order.
This Court issued a resolution dated 9 July 1991, requiring respondents to comment on
petitioner's urgent motion.

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After the main decision in the present petitions was rendered by the Court on 5 August
1991, respondents led motions dated 9 and 29 August 1991 alleging therein that the
issued raised in petitioner's motion (6 July 1991) were rendered moot and academic by
the said decision, and seeking clarification on whether it was still necessary to comply with
this Court's resolutions requiring respondents to le comment on petitioner's said motion
of 6 July 1991.
Meanwhile, on 29 August 1991, respondent Santos issued a memorandum addressed to
petitioner Ganzon, in connection with the 5 August 1991 main decision, stating therein that
the third order of preventive suspension issued against petitioner on 3 May 1990 shall be
deemed in force and effect. The memorandum states:
"The Supreme Court, in its Decision in the above-referred cases, which af rmed
the authority of the Secretary of Local Government to discipline local elective
officials, explicitly states that,

'We are therefore allowing Mayor Rodolfo Ganzon to suffer the


duration of his third suspension and lifting for the purpose, the Temporary
Restraining Order earlier issued . . . '
In view thereof, the third preventive suspension imposed on you, photo copy of
which is hereto attached, is hereby deemed in force."

On 30 August 1991, petitioner Ganzon led with the Court of Appeals a petition for
mandamus, docketed CA-G.R. SP No. 25480 against respondents. On the same day,
petitioner led in these petitions his "manifestation and compliance," alleging that he had
already fully served the suspension orders issued against him, in compliance with the main
decision of 5 August 1991, and that he should be allowed to re-assume his of ce starting
4 September 1991.
Meanwhile, in reaction to the memorandum dated 29 August 1991 issued by respondent
Santos, petitioner led in CA-G.R. SP No. 25840 a motion praying for the issuance of a
temporary restraining order, which motion was granted by the Court of Appeals, when on 3
September 1991, it (CA) issued the said TRO. On 4 September 1991, respondents led
with this Court a motion asking for the issuance of a restraining order addressed to the
Court of Appeals and against the TRO issued in CA-G.R. SP No. 25840. Granting
respondents' motion, this Court on 5 September 1991 issued a temporary restraining
order directing the Court of Appeals to cease and desist from implementing the TRO it had
issued dated 3 September 1991 immediately suspending the implementation of the order
of the Secretary of Interior and Local Government dated 29 August 1991. On 9 September
1991, petitioner Ganzon led a motion to dissolve this Court's restraining order dated 5
September 1991.
The records show that petitioner Ganzon, to this date, remains suspended from of ce (as
the elected Mayor of Iloilo City) and since the order of preventive suspension dated 3 July
1991 (the fourth suspension order 3 ) was issued against him by respondent Secretary; in
other words, he has been serving the said fourth suspension order which is to expire after
a period of 60 days, or on 4 September 1991.
Similar to the argument raised in his petition led with the Court of Appeals in CA-G.R. SP
No. 25840, petitioner Ganzon, in support of his plea for the lifting of the TRO dated 3
September 1991 issued by this Court, in re: TRO dated 3 September 1991, issued by Court
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of Appeals, contends that inasmuch as he has already served fully the suspension orders
issued against him, in compliance with the mandate of this Court's decision dated 5
August 1991, coupled with the fact that he had also completely served by 4 September
1991 the fourth order of preventive suspension dated 3 July 1991, he should therefore be
allowed to re-assume his office starting 4 September 1991.
On the other hand, respondent Secretary maintains that petitioner Ganzon can be allowed
to return to his of ce (as Mayor of Iloilo City) only after 19 October 1991, as it is only after
such date when petitioner may be said to have fully served the preventive suspension
orders as decreed in the main decision and in the order dated 3 July 1991 (fourth
suspension).
The question then is when petitioner Ganzon may be allowed to re-assume his position and
duties as mayor of Iloilo City. Is it only after 19 October 1991 as claimed by respondents,
or at some earlier date? The answer to this question would depend on how petitioner has
served the preventive suspension orders issued against him.
We note that the main decision refers to three (3) orders of preventive suspension each to
last for 60 days. The rst, dated 11 August 1988, was admittedly fully served by petitioner.
The second order dated 11 October 1988 was not served because its enforcement was
restrained by am order of the Regional Trial Court of Iloilo City upon petition of petitioner
himself. 4 As to the third order dated 3 May 1990, the main decision states that petitioner
is allowed to serve the duration of said third suspension order. It would seem, therefore,
that after petitioner has served in full the third suspension order as decreed in the main
decision, he can then return to his official duties as Iloilo City Mayor.
cdphil

However, we must also take note of the supervening 3 July 1991 order, again suspending
petitioner from of ce for another 60 days, which order was issued even before the main
decision of 5 August 1991 was promulgated. (The records show, however, that petitioner
has in fact fully served the fourth suspension order, as admitted by respondents no less.
This will be discussed shortly; but any issue on its validity is now moot and academic. 5
Besides, it is clear that this fourth suspension order is not one of the three orders covered
by and subject of the main decision).
Considering, nonetheless, the necessity of serving the third and fourth orders of
suspension, there is need to look into when petitioner started to serve these orders so as
to determine when their service expires.
Petitioner contends that the following are the periods within which he stayed out of his
office as he was serving the orders of preventive suspension issued against him.
FROM Up to and Including
May 4, 1990 May 18, 1990 6
June 9, 1990 June 26, 1990 7
July 5, 1991 September 3, 1991 8

Petitioner argues that for the periods of 4 May 18 May 1990, and 9 June to 26 June 1990,
he was serving the third suspension order; whereas for the period of 5 July to 3 September
1991, he was then serving the fourth suspension order.
On the other hand, respondent Secretary contends that as to the third order of preventive
suspension, dated 3 May 1990, petitioner served it only from 4 May 1990 to 19 May 1990.
9 Respondent denies that from 11 June to 30 June 1990 1 0 petitioner had served again the
third suspension order.
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As to the fourth suspension order, respondent Secretary con rms that petitioner served it
starting from 5 July 1991 to 3 September 1991. 1 1
As regards the third suspension order, it is noted that though both parties admit that
petitioner started serving it on 4 May 1990, they however differ as to when the service
ended (Petitioner claims he served it even after 18 May 1990, whereas, respondent claims
it ended 19 May 1990.) In view of this divergence, the Court rules that the third order was
served by petitioner from 4 May 1990 up to 18 May 1990 only, the latter date being the
date when the Court of Appeals issued a TRO in CA-G.R. SP No. 20736, 1 2 and thus,
interrupted petitioner's service of the suspension orders and enabled him re-assume his
office as Iloilo City Mayor.
We also do not accept petitioner's contention that from 9 June 1990 up to 26 June 1990
1 3 he again started to serve the third suspension order, inasmuch as during the period of 9
June 1990 to 26 June 1990, the records show that he was then in of ce discharging the
functions of the Mayor of Iloilo City. 1 4 In sum, we rule that petitioner served the third
suspension order only from 4 May 1990 up to 18 May 1990.
The period from 4 May 1990 to 18 May 1990 is equivalent to fourteen (14) days. 1 5 Hence,
as to the third suspension order (3 May 1990), petitioner having served fourteen (14) days
of the 60-day preventive suspension imposed in the order, 46 days still remained to be
served by him as decreed in the main decision. If we follow the mandate of such main
decision which ordained that the third order be served and that the temporary restraining
order 1 6 against it be lifted, it would follow that the remaining 46 days should be served
starting 5 August 1991 (date of promulgation of main decision) until fully served. Another
way to serve the 46 days would be to begin serving it only on 4 September 1991 (the day
after 3 September 1991 which was the last day of service for the fourth suspension order),
or until 20 October 1991 (the 46th day from 4 September 1990). prLL

However we take note of the fact that petitioner has already fully served the 60-day fourth
order of preventive suspension which started 5 July 1991 (that is, even before the main
decision was rendered) and ended on 3 September 1991. Petitioner raises the issue of
whether he could or should be allowed to serve the third and the fourth orders
"simultaneously". If we allow his submission and accept "simultaneous service", it would
mean the following: that from 5 August 1991 (the date the TRO issued by this Court was
lifted) up to 3 September 1991 (the last day for serving the fourth order), twenty-nine (29)
days have elapsed; that these twenty-nine (29) days which form part of his service for the
fourth order can be also credited to his favor by treating said twenty-nine (29) days as
forming part of his service of the third order; if this were so, he would need to serve only
seventeen (17) days more to complete the service of the third order; said seventeen (17)
days from 3 September 1991 will expire on 20 September 1991, which would be the last
day for serving the third suspension order.
Respondents however object to adopting the idea of "simultaneous service," of preventive
suspensions as, according of them, this is not allowed under the Local Government Code.
We agree with petitioner that he can be allowed the bene t of simultaneous service of the
third and fourth suspension orders, for the following reasons.
If simultaneous service of two (2) suspension orders is allowed, this would work in favor
of the petitioner (an elective local official) as the balance of his third preventive suspension
would, in effect, be reduced from 46 days to 17 days.

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It will be recalled that, in the main decision, noting that successive suspensions have been
in icted on Mayor Ganzon, we stated that what "is intriguing is that respondent Secretary
has been cracking down, so to speak, on the Mayor piecemeal — apparently, to pin him
down ten times the pain, when he, the respondent Secretary could have pursued a
consolidated effort." 1 7 Surely, allowing petitioner to serve simultaneously the overlapping
third and fourth suspensions will favor him, (and presumably the local constituency) and
certainly lessen if not offset the harsh effects of whatever motive may be behind the
intriguing action of the respondent Secretary in issuing those successive suspension
orders.

Furthermore, we may already take judicial notice of the recently-approved Local


Government Code of 1991 (recently signed into law by the President) 18 which provides
(as to imposition of preventive suspensions) as follows:
"SECTION 63. Preventive Suspension. —
xxx xxx xxx
b) . . . that, any single preventive suspension of local elective of cial shall not
extend beyond sixty (60) days: Provided, further that in the event that several
administrative cases are led against an elective of cial, he cannot be
preventively suspended for more than ninety (90) days within a single year on the
same ground or grounds existing and known at the time of the rst suspension ."
(emphasis ours)

Since we can allow, as we here allow, under the bizarre circumstances of this case,
petitioner to serve the third and fourth orders simultaneously (insofar as they overlap), this
means that, as explained earlier, petitioner shall serve only 17 days more (not 46 days) to
complete the service of the third order, that is, starting from 3 September 1991 and ending
on 20 September 1991. Hence, as of this latter date, petitioner has complied with the
mandate of the main decision for he has already fully served the third preventive
suspension which ended on 20 September 1991.
But then another issue is raised by respondents, i.e. that considering that the main
decision refers to the rst, second and third orders of preventive suspension (as far as
Mayor Ganzon is concerned), petitioner, apart from serving the third order (the rst one
having been fully served), should also serve the second order (for another 60 days) as the
latter has admittedly not been serve yet due to a restraining order issued by a trial court, 1 9
and considering that the dispositive portion of the main decision decreed that
"suspensions of petitioners (including the other petitioner Artieda in G.R. No. 93746) are
affirmed."
We agree with the respondents on this point.
The main decision refers to the three (3) suspension orders — the rst, the second and the
third. As shown earlier, the rst and the third orders have already been served. It is only the
second order which seems to have been unserved. If we follow the decision which states
that the three (3) suspensions are af rmed, there appears to be no reason why the second
order should not be served for another 60-day period. However, there is no cogent reason
why, under the bizarre circumstances of this case — where the respondent Secretary has
chosen to impose preventive suspensions piecemeal, instead of consolidating the several
administrative cases of similar nature and close vintage — we cannot allow the concept of
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simultaneous service to apply to the second order (as we did in the third order). It would
follow then that the second order is also fully served to this date for the service of said
second order would have started on 5 August 1991 (when the main decision was rendered
as this was the time when this Court found and af rmed the validity of the three (3)
suspension orders, including the second order). The 60-day period from 5 August 1991
expired on 4 October 1991. LLphil

It appears that as to the second preventive suspension, petitioner manifested that there is
still an existing preliminary injunction issued by the RTC of Iloilo City, Branch 33 in Special
Civil Action No. 18312, entitled Ganzon vs. Santos, et al. 2 0
One may ask as to the status of the case pending with the RTC, Iloilo City, Branch 33
insofar as the said case involves the issue on the validity of the second preventive
suspension order. Under the main decision of this Court, dated 5 August 1991, the second
preventive suspension has been af rmed; under the present resolution, said second
preventive suspension has been served. Consequently, Special Civil Action No. 18312
before the Regional Trial Court of Iloilo City has been rendered moot and academic, insofar
as the second preventive suspension order is concerned.
As to the petition (docketed CA-G.R. SP No. 25840) led with the Court of Appeals, which
involves the question of the validity of the fourth order, and which has clearly been served,
petitioner admitted that he led it, on the belief that it was the proper remedy for his
reinstatement to of ce; thinking that his suspensions have been served and ended. 2 1 As
we have ruled that petitioner has served the suspension orders decreed in the main
decision and in the light of the nding of this Court that the fourth preventive suspension
order has been served, the issues raised in CA-G.R. SP No. 25840; have also become moot
and academic, warranting dismissal thereof.
WHEREFORE, the urgent motion of petitioner, dated 7 September 1991 is hereby
GRANTED. The temporary restraining order dated 5 September 1991 is hereby LIFTED.
Respondents are ordered to allow petitioner to re-assume his of ce as elected Mayor of
Iloilo City effective immediately.
The Court of Appeal is directed to dismiss CA-G.R. SP No. 25840 for having become moot
and academic. The Regional Trial Court of Iloilo City, Branch 33 before which petitioner's
action for prohibition (Special Civil Action No. 18312) is pending is also ordered to
dismiss the said case for having become moot and academic insofar as petitioner prays
therein to enjoin his (second) preventive suspension.
This resolution is without prejudice to the administrative cases (where the rst, second,
third and fourth preventive suspension orders were issued) proceeding on the merits
thereof Also, as decreed in the main decision of 5 August 1991.
" . . . petitioner, Mayor Rodolfo Ganzon, may not be made to serve future
suspensions on account of any of the remaining administrative charges pending
against him for acts committed prior to August 11, 1988. . . . ."

SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea,
Regalado, Davide, Jr. and Romero, JJ., concur.
Melencio-Herrera, J., is on leave.

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Footnotes

1. Decision dated 5 August 1991, pp. 26-27.


2. G.R. Nos. 93252 and 95245 were consolidated together with G.R. No. 93746, the latter
petition being that of Mary Ann Artieda who had been similarly charged by respondent
Secretary, and whose petition the Court of Appeals certified to this Court.
3. The rst three orders of preventive suspension are: first order dated 11 August 1988; second
order dated 11 October 1988; third order dated 3 May 1990.
4. Decision, p. 6.
5. In this motion dated 6 July 1991 led with this Court, petitioner questioned the validity of the
fourth order.
6. Petitioner's memorandum filed on 15 October 1991.
7. Ibid.
8. Petitioner's "Manifestation and compliance" dated 30 August 1991.

9. Respondents' Memorandum filed on 14 October 1991.


10. On 9 June to 26 June 1990 according to petitioner.
11. Public respondents' memorandum, supra.
12. Public respondents' memorandum, supra, p. 7.

13. In his "Urgent Motion" led on 9 September 1991, petitioner alleged that he again served the
third order from 11 June 1990 up to 30 June 1990.
14. Annexes "1" to" "17" of respondent's memorandum led on 14 October 1991 showed
various memoranda, orders and other of cial papers and documents whose dates range
from 6 June to 29 June 1990, which were acted upon and signed by petitioner as the
City Mayor.
15. This is computed by excluding the rst day and including the last day in conformity with
Article 13 of the Civil Code which states that in computing a period, the rst day shall be
excluded and the last day included.

16. Issued by this Court on 26 June 1990.


17. Decision, p. 24.
18. Which shall take effect on 1 January 1992 unless otherwise provided herein, after its
complete publication in at least one (1) newspaper of general circulation (Section 536 of
the Code).

19. TSN for the hearing held on 10 October 1991, pp. 11, 27, 35 and 36.
20. Rollo of G.R. No. 93252, p. 668 (petition docketed as CA-G.R. SP No. 25840, led with the
Court of Appeals on 30 August 1991).
In the main decision we stated that "amidst" the two successive suspension orders dated 11
August and 11 October 1988, Mayor Ganzon instituted an action for prohibition against
the respondent Secretary of Local Government (now Interior) in the Regional Trial Court
of Iloilo City where he succeeded in obtaining a writ of preliminary injunction.
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21. Petitioner's urgent motion filed on 9 September 1991.

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