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G.R. No.

97764 August 10, 1992

LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic


Command, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of
Makati, Metro Manila, MUNICIPALITY OF PARAÑAQUE, METRO MANILA, PALANYAG
KILUSANG BAYAN FOR SERVICE, respondents.

Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.

Manuel de Guia for Municipality of Parañaque.

MEDIALDEA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the
decision of the Regional Trial Court of Makati, Branch 62, which granted the writ of preliminary
injunction applied for by respondents Municipality of Parañaque and Palanyag Kilusang Bayan for
Service (Palanyag for brevity) against petitioner herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which
authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets
located at Baclaran, Parañaque, Metro Manila and the establishment of a flea market thereon. The
said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of
1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open
spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms
and conditions.

On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the
municipal council of respondent municipality subject to the following conditions:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority
of the residents do not oppose the establishment of the flea market/vending areas
thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used by
pedestrians;

3. That the time during which the vending area is to be used shall be clearly
designated;

4. That the use of the vending areas shall be temporary and shall be closed once the
reclaimed areas are developed and donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Parañaque issued a resolution authorizing Parañaque
Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment,
operation, maintenance and management of flea markets and/or vending areas.

On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative,


entered into an agreement whereby the latter shall operate, maintain and manage the flea market in
the aforementioned streets with the obligation to remit dues to the treasury of the municipal
government of Parañaque. Consequently, market stalls were put up by respondent Palanyag on the
said streets.

On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan
Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel
St. in Baclaran. These stalls were later returned to respondent Palanyag.

On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag
giving the latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall be
dismantled.

Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint
petition for prohibition and mandamus with damages and prayer for preliminary injunction, to which
the petitioner filed his memorandum/opposition to the issuance of the writ of preliminary injunction.

On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from
enforcing his letter-order of October 16, 1990 pending the hearing on the motion for writ of
preliminary injunction.

On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s.
1990 of the Municipality' of Parañaque and enjoining petitioner Brig. Gen. Macasiano from enforcing
his letter-order against respondent Palanyag.

Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave
abuse of discretion tantamount to lack or excess of jurisdiction on the part of the trial judge in issuing
the assailed order.

The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the
municipal council of Parañaque authorizing the lease and use of public streets or thoroughfares as
sites for flea markets is valid.

The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public
service and are therefore public properties; that as such, they cannot be subject to private
appropriation or private contract by any person, even by the respondent Municipality of Parañaque.
Petitioner submits that a property already dedicated to public use cannot be used for another public
purpose and that absent a clear showing that the Municipality of Parañaque has been granted by the
legislature specific authority to convert a property already in public use to another public use,
respondent municipality is, therefore, bereft of any authority to close municipal roads for the
establishment of a flea market. Petitioner also submits that assuming that the respondent
municipality is authorized to close streets, it failed to comply with the conditions set forth by the
Metropolitan Manila Authority for the approval of the ordinance providing for the establishment of flea
markets on public streets. Lastly, petitioner contends that by allowing the municipal streets to be
used by market vendors the municipal council of respondent municipality violated its duty under the
Local Government Code to promote the general welfare of the residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court ruled:

. . . that Chanter II Section 10 of the Local Government Code is a statutory grant of


power given to local government units, the Municipality of Parañaque as such, is
empowered under that law to close its roads, streets or alley subject to limitations
stated therein (i.e., that it is in accordance with existing laws and the provisions of
this code).

xxx xxx xxx

The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within
its power is in fact an encroachment of power legally vested to the municipality,
precisely because when the municipality enacted the ordinance in question — the
authority of the respondent as Police Superintendent ceases to be operative on the
ground that the streets covered by the ordinance ceases to be a public thoroughfare.
(pp. 33-34, Rollo)

We find the petition meritorious. In resolving the question of whether the disputed municipal
ordinance authorizing the flea market on the public streets is valid, it is necessary to examine the
laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 337,
otherwise known as Local Government Code, in connection with established principles embodied in
the Civil Code an property and settled jurisprudence on the matter.

The property of provinces, cities and municipalities is divided into property for public use and
patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article 424
of Civil Code states:

Art. 424. Property for public use, in the provinces, cities and municipalities, consists
of the provincial roads, city streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by said provinces, cities or
municipalities.

All other property possessed by any of them is patrimonial and shall be governed by
this Code, without prejudice to the provisions of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets
are local roads used for public service and are therefore considered public properties of respondent
municipality. Properties of the local government which are devoted to public service are deemed
public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of
Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence, local governments have no
authority whatsoever to control or regulate the use of public properties unless specific authority is
vested upon them by Congress. One such example of this authority given by Congress to the local
governments is the power to close roads as provided in Section 10, Chapter II of the Local
Government Code, which states:

Sec. 10. Closure of roads. — A local government unit may likewise, through its head
acting pursuant to a resolution of its sangguniang and in accordance with existing
law and the provisions of this Code, close any barangay, municipal, city or provincial
road, street, alley, park or square. No such way or place or any part of thereof shall
be close without indemnifying any person prejudiced thereby. A property thus
withdrawn from public use may be used or conveyed for any purpose for which other
real property belonging to the local unit concerned might be lawfully used or
conveyed. (Emphasis ours).

However, the aforestated legal provision which gives authority to local government units to close
roads and other similar public places should be read and interpreted in accordance with basic
principles already established by law. These basic principles have the effect of limiting such authority
of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil
Code lays down the basic principle that properties of public dominion devoted to public use and
made available to the public in general are outside the commerce of man and cannot be disposed of
or leased by the local government unit to private persons. Aside from the requirement of due
process which should be complied with before closing a road, street or park, the closure should be
for the sole purpose of withdrawing the road or other public property from public use when
circumstances show that such property is no longer intended or necessary for public use or public
service. When it is already withdrawn from public use, the property then becomes patrimonial
property of the local government unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v.
Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only then that the
respondent municipality can "use or convey them for any purpose for which other real property
belonging to the local unit concerned might be lawfully used or conveyed" in accordance with the last
sentence of Section 10, Chapter II of Blg. 337, known as Local Government Code. In one case, the
City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo,
Cebu City as an abandoned road, the same not being included in the City Development Plan.
Thereafter, the City Council passes another resolution authorizing the sale of the said abandoned
road through public bidding. We held therein that the City of Cebu is empowered to close a city
street and to vacate or withdraw the same from public use. Such withdrawn portion becomes
patrimonial property which can be the object of an ordinary contract (Cebu Oxygen and Acetylene
Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to
the public in general and ordinarily used for vehicular traffic are still considered public property
devoted to public use. In such case, the local government has no power to use it for another purpose
or to dispose of or lease it to private persons. This limitation on the authority of the local government
over public properties has been discussed and settled by this Court en banc in "Francisco V.
Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No. 93654, May 6, 1992."
This Court ruled:

There is no doubt that the disputed areas from which the private respondents' market
stalls are sought to be evicted are public streets, as found by the trial court in Civil
Case No. C-12921. A public street is property for public use hence outside the
commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man,
it may not be the subject of lease or others contract (Villanueva, et al. v. Castañeda
and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA 602;
Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la
Fuente, 48 O.G. 4860).

As the stallholders pay fees to the City Government for the right to occupy portions of
the public street, the City Government, contrary to law, has been leasing portions of
the streets to them. Such leases or licenses are null and void for being contrary to
law. The right of the public to use the city streets may not be bargained away through
contract. The interests of a few should not prevail over the good of the greater
number in the community whose health, peace, safety, good order and general
welfare, the respondent city officials are under legal obligation to protect.

The Executive Order issued by acting Mayor Robles authorizing the use of Heroes
del '96 Street as a vending area for stallholders who were granted licenses by the
city government contravenes the general law that reserves city streets and roads for
public use. Mayor Robles' Executive Order may not infringe upon the vested right of
the public to use city streets for the purpose they were intended to serve: i.e., as
arteries of travel for vehicles and pedestrians.

Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the
disputed ordinance, the same cannot be validly implemented because it cannot be considered
approved by the Metropolitan Manila Authority due to non-compliance by respondent municipality of
the conditions imposed by the former for the approval of the ordinance, to wit:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority
of the residents do(es) not oppose the establishment of the flea market/vending
areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used by
pedestrians;

3. That the time during which the vending area is to be used shall be clearly
designated;

4. That the use of the vending areas shall be temporary and shall be closed once the
reclaimed areas are developed and donated by the Public Estate Authority. (p.
38, Rollo)

Respondent municipality has not shown any iota of proof that it has complied with the foregoing
conditions precedent to the approval of the ordinance. The allegations of respondent municipality
that the closed streets were not used for vehicular traffic and that the majority of the residents do not
oppose the establishment of a flea market on said streets are unsupported by any evidence that will
show that this first condition has been met. Likewise, the designation by respondents of a time
schedule during which the flea market shall operate is absent.

Further, it is of public notice that the streets along Baclaran area are congested with people, houses
and traffic brought about by the proliferation of vendors occupying the streets. To license and allow
the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and
Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the
other observations of the Solicitor General when he said:

. . . There have been many instances of emergencies and fires where ambulances
and fire engines, instead of using the roads for a more direct access to the fire area,
have to maneuver and look for other streets which are not occupied by stalls and
vendors thereby losing valuable time which could, otherwise, have been spent in
saving properties and lives.

Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances
and the people rushing their patients to the hospital cannot pass through G.G. Cruz
because of the stalls and the vendors. One can only imagine the tragedy of losing a
life just because of a few seconds delay brought about by the inaccessibility of the
streets leading to the hospital.
The children, too, suffer. In view of the occupancy of the roads by stalls and vendors,
normal transportation flow is disrupted and school children have to get off at a
distance still far from their schools and walk, rain or shine.

Indeed one can only imagine the garbage and litter left by vendors on the streets at
the end of the day. Needless to say, these cause further pollution, sickness and
deterioration of health of the residents therein. (pp. 21-22, Rollo)

Respondents do not refute the truth of the foregoing findings and observations of petitioners.
Instead, respondents want this Court to focus its attention solely on the argument that the use of
public spaces for the establishment of a flea market is well within the powers granted by law to a
local government which should not be interfered with by the courts.

Verily, the powers of a local government unit are not absolute. They are subject to limitations laid
down by toe Constitution and the laws such as our Civil Code. Moreover, the exercise of such
powers should be subservient to paramount considerations of health and well-being of the members
of the community. Every local government unit has the sworn obligation to enact measures that will
enhance the public health, safety and convenience, maintain peace and order, and promote the
general prosperity of the inhabitants of the local units. Based on this objective, the local government
should refrain from acting towards that which might prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have a legal right to demand the
demolition of the illegally constructed stalls in public roads and streets and the officials of respondent
municipality have the corresponding duty arising from public office to clear the city streets and
restore them to their specific public purpose.

The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for
lack of basis and authority in laws applicable during its time. However, at this point, We find it worthy
to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already been
repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect on
January 1, 1992. Section 5(d) of the new Code provides that rights and obligations existing on the
date of effectivity of the new Code and arising out of contracts or any other source of prestation
involving a local government unit shall be governed by the original terms and conditions of the said
contracts or the law in force at the time such rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court
dated December 17, 1990 which granted the writ of preliminary injunction enjoining petitioner as
PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of market stalls
along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby
RESERVED and SET ASIDE.

SO ORDERED.

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 11, 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-appeliees.

GANCAYCO, J.:

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.

SECTION 2—Any person violating the provisions of this Ordinance shall upon
conviction be punished by a fine 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 firm and
imprisonment in the discretion of the Court.

If the violator be a firm or corporation the penalty shall be imposed upon the
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 filed 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. 3 On July 29, 1969, respondents filed their answer sustaining the validity of the ordinance.4
On January 30, 1973, the litigants filed 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 fine 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.

4. SO ORDERED. 7

Petitioners filed 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 fix 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:

(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 fix the penalties for the violation of the
ordinances, which shall not exceed a two hundred peso fine or six months
imprisonment, or both such fine and imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix 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 fixing 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 first 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 fixing 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, 10 unless expressly granted by its charter. 11

Applying the ruling in Kwong Sing v. City of Manila, 12 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.

While in a New York case, 13 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. 14 Thus, in People v. Chan, 15 an ordinance of the
City of Manila prohibiting first 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, 16 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 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. 17 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. In other words,
the determination as to what is a proper exercise of its police power is not final or conclusive, but is
subject to the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for
being oppressive, unfair, unjust, confiscatory, 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, 19 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 qualification,
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.

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. 20 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 arbitralily invaded by the legislative
department. 21

We agree with petitioners that the ordinance is not justified by any necessity for the public interest.
The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means.22 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 difficulty 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 benefit 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 certificates 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 profit 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
justifiable. In fact, by the very claim of respondent that movies and the like are attractive nuisances,
it is difficult 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 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 profits for themselves. For after all, these
movie house and theater operators cannot be compelled to exhibit any particular kind of film except
those films 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 fix 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.

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. 23 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. 24 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. 25

In Collister vs. Hayman, 26 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 Officers, Inc. vs. Banton, 27 the United States Supreme
Court held:

... 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 fix 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, 28limiting the net profits of public utility 29 as well as regulating rentals of
residential apartments for a limited period, 30as 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 officials or public figures as well as the prevailing cultural traits are considerable. 31People of
all ages flock to movie houses, games and other public exhibitions for recreation and relaxation. The
government realizing their importance has seen it fit to enact censorship laws to regulate the movie
industry. 32 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.

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.33 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.34 The right of the owner to fix 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."" Hence, the proprietors of a theater have a
right to manage their property in their own way, to fix what prices of admission they think most for
their own advantage, and that any person who did not approve could stay away. 36

Respondent City of Butuan argues that the presumption is always in favor of the validity of the
ordinance. This maybe the rule but 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.37 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.38

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.

G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON,
CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA,
ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA
MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.

Gamboa & Hofileña Law Office for petitioners.

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the
Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3,
1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various
cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition
for the purpose of stopping respondents Commission on Elections from conducting the plebiscite
which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986.
Said law provides:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and
Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby
separated from the province to be known as the Province of Negros del Norte.

SEC. 2. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion to the Island of Negros on the west,
north and east, comprising a territory of 4,019.95 square kilometers more or less.

SEC. 3. The seat of government of the new province shall be the City of Cadiz.

SEC. 4. A plebiscite shall be conducted in the proposed new province which are the
areas affected within a period of one hundred and twenty days from the approval of
this Act. After the ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President of the Philippines shall
appoint the first officials of the province.

SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite
herein provided, the expenses for which shall be charged to local funds.

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in
complete accord with the Local Government Code as in Article XI, Section 3 of our
Constitution, it is expressly mandated that—

See. 3. No province, city, municipality or barrio may be created, divided, merged,


abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a majority
of the votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code enumerates the conditions which must exist to provide
the legal basis for the creation of a provincial unit and these requisites are:

SEC. 197. Requisites for Creation. A province may be created if it has a territory of at
least three thousand five hundred square kilometers, a population of at least five
hundred thousand persons, an average estimated annual income, as certified by the
Ministry of Finance, of not less than ten million pesos for the last three consecutive
years, and its creation shall not reduce the population and income of the mother
province or provinces at the time of said creation to less than the minimum
requirements under this section. The territory need not be contiguous if it comprises
two or more islands.

The average estimated annual income shall include the income alloted for both the
general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring
income. (Rollo, p. 6)

Due to the constraints brought about by the supervening Christmas holidays during which the Court
was in recess and unable to timely consider the petition, a supplemental pleading was filed by
petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them
was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant
case affecting the legality, constitutionality and validity of such exercise which should properly be
passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del N•rte, namely: the
Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante,
Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions
of the voters from the rest of the province of Negros Occidental, petitioners found need to change
the prayer of their petition "to the end that the constitutional issues which they have raised in the
action will be ventilated and given final resolution.'"At the same time, they asked that the effects of
the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered
its decision on the very fundamental and far-reaching questions that petitioners have brought out.

Acknowledging in their supplemental petition that supervening events rendered moot the prayer in
their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead,
nevertheless, that-

... a writ of Prohibition be issued, directed to Respondent Commission on Elections to


desist from issuing official proclamation of the results of the plebiscite held on
January 3, 1986.

Finding that the exclusion and non-participation of the voters of the Province of
Negros Occidental other than those living within the territory of the new province of
Negros del Norte to be not in accordance with the Constitution, that a writ of
mandamus be issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the
entire Province of Negros Occidental as now existing shall participate, at the same
time making pronouncement that the plebiscite held on January 3, 1986 has no legal
effect, being a patent legal nullity;

And that a similar writ of Prohibition be issued, directed to the respondent Provincial
Treasurer, to desist from ordering the release of any local funds to answer for
expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo
pp. 9-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance the
issuance of any official proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this
case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by
former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986.

Acting on the petition, as well as on the supplemental petition for prohibition with preliminary
injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving
due course to the same, to require respondents to comment, not to file a motion to dismiss.
Complying with said resolution, public respondents, represented by the Office of the Solicitor
General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.-
Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law
is not void on its face and that the petition does not show a clear, categorical and undeniable
demonstration of the supposed infringement of the Constitution. Respondents state that the powers
of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that Batas
Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local
Government Code have been complied with. Furthermore, they submit that this case has now
become moot and academic with the proclamation of the new Province of Negros del Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental
not included in the area of the new Province of Negros del Norte, de not fall within the meaning and
scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On
this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the
Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable
Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61),
particularly the pronouncements therein, hereunder quoted:

1. Admittedly,this is one of those cases where the discretion of the Court is allowed
considerable leeway. There is indeed an element of ambiguity in the use of the
expression 'unit or units affected'. It is plausible to assert as petitioners do that when
certain Barangays are separated from a parent municipality to form a new one, all
the voters therein are affected. It is much more persuasive, however, to contend as
respondents do that the acceptable construction is for those voters, who are not from
the barangays to be separated, should be excluded in the plebiscite.

2. For one thing, it is in accordance with the settled doctrine that between two
possible constructions, one avoiding a finding of unconstitutionality and the other
yielding such a result, the former is to be preferred. That which will save, not that
which will destroy, commends itself for acceptance. After all, the basic presumption
all these years is one of validity. ...

3. ... Adherence to such philosophy compels the conclusion that when there are
indications that the inhabitants of several barangays are inclined to separate from a
parent municipality they should be allowed to do so. What is more logical than to
ascertain their will in a plebiscite called for that purpose. It is they, and they alone,
who shall constitute the new unit. New responsibilities will be assumed. New burdens
will be imposed. A new municipal corporation will come into existence. Its birth will be
a matter of choice-their choice. They should be left alone then to decide for
themselves. To allow other voters to participate will not yield a true expression of
their will. They may even frustrate it, That certainly will be so if they vote against it for
selfish reasons, and they constitute the majority. That is not to abide by the
fundamental principle of the Constitution to promote local autonomy, the preference
being for smaller units. To rule as this Tribunal does is to follow an accepted principle
of constitutional construction, that in ascertaining the meaning of a particular
provision that may give rise to doubts, the intent of the framers and of the people
may be gleaned from provisions in pari materia.

Respondents submit that said ruling in the aforecited case applies equally with force in the case at
bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for
the creation of the new province of Negros del Norte have all been duly complied with, Respondents
discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in
the Local Government Code for a new province to be created has not been satisfied. Petitioners
insist that the area which would comprise the new province of Negros del Norte, would only be about
2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed
by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas
Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of
Negros del Norte comprise an area of 4,019.95 square kilometers, more or less.

As a final argument, respondents insist that instant petition has been rendered moot and academic
considering that a plebiscite has been already conducted on January 3, 1986; that as a result
thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said
plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and
because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite,
the Chairman of the Board of Canvassers proclaimed the new province which shall be known as
"Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del
Norte province, the appointments of the officials of said province created were announced. On these
considerations, respondents urge that this case should be dismissed for having been rendered moot
and academic as the creation of the new province is now a "fait accompli."

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to
by the parties herein or stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental
has not disbursed, nor was required to disburse any public funds in connection with the plebiscite
held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent
Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the
prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from
ordering the release of any public funds on account of such plebiscite should not longer deserve
further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885
and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the
aforementioned Parliamentary Bill, the following:

SEC. 2. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South
and the natural boundaries of the northern portion of the Island of Negros on the
West, North and East, containing an area of 285,656 hectares more or less.
(Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa
Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its
boundaries then stated to be as follows:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and
Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby
separated from the Province of Negros Occidental and constituted into a new
province to be known as the Province of Negros del Norte.

SEC. 1. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion of the Island of Negros on the West,
North and East, comprising a territory of 4,019.95 square kilometers more or less.

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer
Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified
as follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros Occidental have
the land area as indicated hereunder based on the Special Report No. 3, Philippines
1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National
Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

1. Silay City ...................................................................214.8

2. E.B. Magalona............................................................113.3

3. Victorias.....................................................................133.9

4. Manapla......................................................................112.9

5. Cadiz City ..................................................................516.5

6. Sagay .........................................................................389.6

7. Escalante ....................................................................124.0

8. Toboso.......................................................................123.4

9. Calatrava.....................................................................504.5

10. San Carlos City...........................................................451.3


11. Don Salvador Benedicto.................................... (not available)

This certification is issued upon the request of Dr. Patricio Y. Tan for whatever
purpose it may serve him.

(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of
Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don
Salvador municipality, one of the component units of the new province, was derived from the City of
San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a
portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to
note the uncontroverted submission of petitioners that the total land area of the entire municipality of
Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this
total land area of Murcia that was added to the portions derived from the land area of Calatrava,
Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2
square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers,
representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of
E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in
approximately an area of only 2,765.4 square kilometers using as basis the Special Report,
Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of the National Census
and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the
original provision in the draft legislation, Parliamentary Bill No. 3644, reads:

SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one
hundred and twenty days from the approval of this Act. After the ratification of the
creation of the Province of Negros del Norte by a majority of the votes cast in such
plebiscite, the President shall appoint the first officials of the new province.

However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above
provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the
proposed new province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which
would comprise the new province that is assailed by the petitioners as violative of the provisions of
our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would
be held in the unit or units affected by the creation of the new province as a result of the consequent
division of and substantial alteration of the boundaries of the existing province. In this instance, the
voters in the remaining areas of the province of Negros Occidental should have been allowed to
participate in the questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed
and its officials appointed, the case before Us cannot truly be viewed as already moot and
academic. Continuation of the existence of this newly proclaimed province which petitioners strongly
profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed,
illegality attaches to its creation, the commission of that error should not provide the very excuse for
perpetuation of such wrong. For this Court to yield to the respondents' urging that, as there has
been fait accompli then this Court should passively accept and accede to the prevailing situation is
an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a
proposition fraught with mischief. Respondents' submission will create a dangerous precedent.
Should this Court decline now to perform its duty of interpreting and indicating what the law is and
should be, this might tempt again those who strut about in the corridors of power to recklessly and
with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either
brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their
acts if they manage to bring about a fait accompli.

In the light of the facts and circumstances alluded to by petitioners as attending to the unusually
rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this
Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the
mandate of our fundamental law, done by whatever branch of our government. This Court gives
notice that it will not look with favor upon those who may be hereafter inclined to ram through all
sorts of legislative measures and then implement the same with indecent haste, even if such acts
would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this
Tribunal be blind and deaf to protests on the ground that what is already done is done. To such
untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty
and right to correct and rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros del
Norte, the more significant and pivotal issue in the present case revolves around in the interpretation
and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and
for convenience, We again quote:

SEC. 3. No province, city, municipality or barrio may be created, divided, merged


abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a majority
of the votes in a plebiscite in the unit or units affected.

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be
first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged and there is substantial alteration of the
boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros
Occidental would necessarily be substantially altered by the division of its existing boundaries in
order that there can be created the proposed new province of Negros del Norte. Plain and simple
logic will demonstrate than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially altered. The other
affected entity would be composed of those in the area subtracted from the mother province to
constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional
requirement but eliminates the participation of either of these two component political units. No
amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because
of an alleged intent on the part of the authors and implementors of the challenged statute to carry
out what is claimed to be a mandate to guarantee and promote autonomy of local government units.
The alleged good intentions cannot prevail and overrule the cardinal precept that what our
Constitution categorically directs to be done or imposes as a requirement must first be observed,
respected and complied with. No one should be allowed to pay homage to a supposed fundamental
policy intended to guarantee and promote autonomy of local government units but at the same time
transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof.
Respondents would be no different from one who hurries to pray at the temple but then spits at the
Idol therein.

We find no merit in the submission of the respondents that the petition should be dismissed because
the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point
raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the
Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least,
are most enlightening and provoking but are factual issues the Court cannot properly pass upon in
this case. Mention by petitioners of the unexplained changes or differences in the proposed
Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious
manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to
news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all
serve as interesting reading but are not the decisive matters which should be reckoned in the
resolution of this case.

What the Court considers the only significant submissions lending a little support to respondents'
case is their reliance on the rulings and pronouncements made by this Court in the case of Governor
Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628,
March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new
municipality from existing barangays, this Court upheld the legality of the plebiscite which was
participated in exclusively by the people of the barangay that would constitute the new municipality.

This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly
significant are the prefatory statements therein stating that said case is "one of those cases where
the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of
ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was
based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not
resolve the question of how the pertinent provision of the Constitution should be correctly
interpreted.

The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al.
(supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein
that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a
parent municipality to form a new one, all the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive
Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of
Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion,
which We hereunder quote:

2. ... when the Constitution speaks of "the unit or units affected" it means all of the
people of the municipality if the municipality is to be divided such as in the case at
bar or an of the people of two or more municipalities if there be a merger. I see no
ambiguity in the Constitutional provision.

This dissenting opinion of Justice Vicente Abad Santos is the— forerunner of the ruling which We
now consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was
reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a
referendum which did not include all the people of Bulacan and Rizal, when such referendum was
intended to ascertain if the people of said provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case.

Opportunity to re-examine the views formerly held in said cases is now afforded the present Court.
The reasons in the mentioned cases invoked by respondents herein were formerly considered
acceptable because of the views then taken that local autonomy would be better promoted However,
even this consideration no longer retains persuasive value.

The environmental facts in the case before Us readily disclose that the subject matter under
consideration is of greater magnitude with concomitant multifarious complicated problems. In the
earlier case, what was involved was a division of a barangay which is the smallest political unit in the
Local Government Code. Understandably, few and lesser problems are involved. In the case at bar,
creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the
Constitution. To form the new province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros Occidental. This will result in the
removal of approximately 2,768.4 square kilometers from the land area of an existing province
whose boundaries will be consequently substantially altered. It becomes easy to realize that the
consequent effects cf the division of the parent province necessarily will affect all the people living in
the separate areas of Negros Occidental and the proposed province of Negros del Norte. The
economy of the parent province as well as that of the new province will be inevitably affected, either
for the better or for the worse. Whatever be the case, either or both of these political groups will be
affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the
Constitution which must be included in the plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise
to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari
materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del
Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a
period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks
of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite.
Logically, those to be included in such plebiscite would be the people living in the area of the
proposed new province and those living in the parent province. This assumption will be consistent
with the requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644
was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the
plebiscite "shall be conducted in the proposed new province which are the areas affected." We are
not disposed to agree that by mere legislative fiat the unit or units affected referred in the
fundamental law can be diminished or restricted by the Batasang Pambansa to cities and
municipalities comprising the new province, thereby ignoring the evident reality that there are other
people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas
Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that
by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted
with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there
was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province
constitutes the area affected. Such additional statement serves no useful purpose for the same is
misleading, erroneous and far from truth. The remaining portion of the parent province is as much an
area affected. The substantial alteration of the boundaries of the parent province, not to mention the
other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners.
Petitioners have averred without contradiction that after the creation of Negros del Norte, the
province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and
San Carlos, as well as the municipality of Victorias. No controversion has been made regarding
petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about
285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of
the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory
and political subdivision known as Negros Occidental has to be partitioned and dismembered. What
was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros
what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the
Constitution anticipates, a substantial alteration of boundary.

As contended by petitioners,—

Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the


constitutional provision do not contemplate distinct situation isolated from the
mutually exclusive to each other. A Province maybe created where an existing
province is divided or two provinces merged. Such cases necessarily will involve
existing unit or units abolished and definitely the boundary being substantially
altered.

It would thus be inaccurate to state that where an existing political unit is divided or
its boundary substantially altered, as the Constitution provides, only some and not all
the voters in the whole unit which suffers dismemberment or substantial alteration of
its boundary are affected. Rather, the contrary is true.

It is also Our considered view that even hypothetically assuming that the merits of this case can
depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners' case
that deserve to be favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the
adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons
already here express, We now state that the ruling in the two mentioned cases sanctioning the
exclusion of the voters belonging to an existing political unit from which the new political unit will be
derived, from participating in the plebiscite conducted for the purpose of determining the formation of
another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of
mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of
another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now
existing shall participate and that this Court make a pronouncement that the plebiscite held on
January 3, 1986 has no legal effect for being a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and
violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however,
disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With
constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the
creation of the new province of Negros del Norte is not in accordance with the criteria established in
the Local Government Code, the factual and legal basis for the creation of such new province which
should justify the holding of another plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province of
Negros del Norte because of the appointment of the officials thereof, must now be erased. That
Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as
quickly as possible, if only to settle the complications currently attending to its creation. As has been
manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit
filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte),
docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by
the parent province to the new province, in an amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros
del Norte is the significant fact that this created province does not even satisfy the area requirement
prescribed in Section 197 of the Local Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the
petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95
square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing
that the land area of the new province cannot be more than 3,500 square kilometers because its
land area would, at most, be only about 2,856 square kilometers, taking into account government
statistics relative to the total area of the cities and municipalities constituting Negros del Norte.
Respondents insist that when Section 197 of the Local Government Code speaks of the territory of
the province to be created and requires that such territory be at least 3,500 square kilometers, what
is contemplated is not only the land area but also the land and water over which the said province
has jurisdiction and control. It is even the submission of the respondents that in this regard the
marginal sea within the three mile limit should be considered in determining the extent of the territory
of the new province. Such an interpretation is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein
the "territory need not be contiguous if it comprises two or more islands." The use of the
word territory in this particular provision of the Local Government Code and in the very last sentence
thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area
and excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical
contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in the above
sentence, is only used when it describes physical contact, or a touching of sides of two solid masses
of matter. The meaning of particular terms in a statute may be ascertained by reference to words
associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R.
p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the
"territory" the physical mass of land area. There would arise no need for the legislators to use the
word contiguous if they had intended that the term "territory" embrace not only land area but also
territorial waters. It can be safely concluded that the word territory in the first paragraph of Section
197 is meant to be synonymous with "land area" only. The words and phrases used in a statute
should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the
words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or strained
construction of the disputed provision whereby the words of the statute are arrested from their plain
and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust
result. The plain meaning in the language in a statute is the safest guide to follow in construing the
statute. A construction based on a forced or artificial meaning of its words and out of harmony of the
statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
It would be rather preposterous to maintain that a province with a small land area but which has a
long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory
than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the
province first mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty tricks",
in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister
designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply
demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom
of a local strongman" (Rollo, p. 43; emphasis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case can be
resolved without need of ascertaining the real motives and wisdom in the making of the questioned
law. No proper challenge on those grounds can also be made by petitioners in this proceeding.
Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers.
Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as
recent events have shown, on the electorate and the power of a vigilant people.

Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros
Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to
institute this case in order to preserve the continued existence of their historic province. They were
inspired undoubtedly by their faithful commitment to our Constitution which they wish to be
respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted
them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is
assured as long as among our people there would be exemplary citizens such as the petitioners
herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of
the new province of Negros del Norte, as well as the appointment of the officials thereof are also
declared null and void.

SO ORDERED.

G.R. No. 40243 March 11, 1992

CELESTINO TATEL, petitioner,


vs.
MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his capacity as Mayor of Virac,
Catanduanes; GAVINO V. GUERRERO, in his capacity as Vice-Mayor of Virac, Catanduanes;
JOSE T. BUEBOS, in his capacity as Councilor of Virac, Catanduanes; ANGELES TABLIZO, in
his capacity as Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in his capacity as
Councilor of Virac, Catanduanes; MARIANO ALBERTO, in his capacity as Councilor of Virac,
Catanduanes; JULIA A. GARCIA, in her capacity as Councilor of Virac, Catanduanes; and
PEDRO A. GUERRERO, in his capacity as Councilor of Virac, Catanduanes, respondents.

NOCON, J.:

This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of
Catanduanes filed by appellant, Celestino Tatel, a businessman engaged in the import and export of
abaca and other products against the Municipal Council of Virac, Catanduanes and its municipal
officials enjoining them from enforcing Resolution No 29 1of the Council, declaring the warehouse of
petitioner in barrio Sta. Elena of the said municipality a public nuisance within the purview of Article
694 of the Civil Code of the Philippines and directing the petitioner to remove and transfer said
warehouse to a more suitable place within two (2) months from receipt of the said resolution.

It appears from the records that on the basis of complaints received from the residents of barrio Sta.
Elena on March 18, 1966 against the disturbance caused by the operation of the abaca bailing
machine inside the warehouse of petitioner which affected the peace and tranquility of the
neighborhood due to the smoke, obnoxious odor and dust emitted by the machine, a committee was
appointed by the municipal council of Virac to investigate the matter. The committee noted the
crowded nature of the neighborhood with narrow roads and the surrounding residential houses, so
much so that an accidental fire within the warehouse of the petitioner occasioned by the continuance
of the activity inside the warehouse and the storing of inflammable materials created a danger to the
lives and properties of the people within the neighborhood.

Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966
declaring the warehouse owned and operated by petitioner a public nuisance within the purview of
Article 694 of the New Civil Code. 2

His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner
instituted the present petition for prohibition with preliminary injunction.

Respondent municipal officials contend that petitioner's warehouse was constructed in violation of
Ordinance No. 13, series of 1952, prohibiting the construction of warehouses near a block of houses
either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said
block of houses to avoid loss of lives and properties by accidental fire.

On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due
process and equal protection clause of the Constitution and null and void for not having been passed
in accordance with law.

The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of
Article 694 of the Civil Code and whether Ordinance No. 13, S. 1952 of the Municipality of Virac is
unconstitutional and void.

In a decision dated September 18, 1969, the court a quo ruled as follows:

1. The warehouse in question was legally constructed under a valid permit issued by
the municipality of Virac in accordance with existing regulations and may not be
destroyed or removed from its present location;

2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police
power by the Municipal Council of Virac is not (sic) unconstitutional and void as
claimed by the petitioner;

3. The storage by the petitioner of abaca and copra in the warehouse is not only in
violation of the provisions of the ordinance but poses a grave danger to the safety of
the lives and properties of the residents of the neighborhood due to accidental fire
and constitutes a public nuisance under the provisions of Article 694 of the New Civil
code of the Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from the said warehouse
all abaca and copra and other inflammable articles stored therein which are
prohibited under the provisions of Ordinance No. 13, within a period of two (2)
months from the time this decision becomes final and that henceforth, the petitioner
is enjoined from storing such prohibited articles in the warehouse. With costs against
petitioner.

Seeking appellate review, petitioner raised as errors of the court a quo:

1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac,
Catanduanes, is a legitimate and valid exercise of police power of the Municipal
Council, and therefore, constitutional;

2. In giving the ordinance a meaning other than and different from what it provided by
declaring that petitioner violated the same by using the warehouse for storage of
abaca and copra when what is prohibited and penalized by the ordinance is the
construction of warehouses.

3. In refusing to take judicial notice of the fact that in the municipality, there are
numerous establishments similarly situated as appellants' warehouses but which are
not prosecuted.

We find no merit in the Petition.

Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its
police power. It is a settled principle of law that municipal corporations are agencies of the State for
the promotion and maintenance of local self-government and as such are endowed with the police
powers in order to effectively accomplish and carry out the declared objects of their creation. 3 Its
authority emanates from the general welfare clause under the Administrative Code, which reads:

The municipal council shall 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 it by law and such as shall seem necessary and proper to
provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein. 4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to
enact but must also be passed according to the procedure prescribed by law, and must be in
consonance with certain well established and basic principles of a substantive nature. These
principles require that a municipal ordinance (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. 5 Ordinance No. 13, Series of 1952, meets these criteria.

As to the petitioner's second assignment of error, the trial court did not give the ordinance in
question a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of
Virac on December 29, 1952, 6 reads:

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF


WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT
LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.

Section 1 provides:

It is strictly prohibited to construct warehouses in any form to any person, persons,


entity, corporation or merchants, wherein to keep or store copra, hemp, gasoline,
petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if not
within the distance of 200 meters from a block of houses either in the poblacion or
barrios to avoid great losses of properties inclusive lives by fire accident.

Section 2 provides: 7

Owners of warehouses in any form, are hereby given advice to remove their said
warehouses this ordinance by the Municipal Council, provided however, that if those
warehouses now in existence should no longer be utilized as such warehouse for the
above-described products in Section 1 of this ordinance after a lapse of the time
given for the removal of the said warehouses now in existence, same warehouses
shall be exempted from the spirit of the provision of section 1 of this
ordinance,provided further, that these warehouses now in existence, shall in the
future be converted into non-inflammable products and materials warehouses.

In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of
warehouses wherein inflammable materials are stored where such warehouses are located at a
distance of 200 meters from a block of houses and not the construction per se of a warehouse. The
purpose is to avoid the loss of life and property in case of fire which is one of the primordial
obligation of the government.

This was also the observation of the trial court:

A casual glance of the ordinance at once reveals a manifest disregard of the


elemental rules of syntax. Experience, however, will show that this is not uncommon
in law making bodies in small towns where local authorities and in particular the
persons charged with the drafting and preparation of municipal resolutions and
ordinances lack sufficient education and training and are not well grounded even on
the basic and fundamental elements of the English language commonly used
throughout the country in such matters. Nevertheless, if one scrutinizes the terms of
the ordinance, it is clear that what is prohibited is the construction of warehouses by
any person, entity or corporation wherein copra, hemp, gasoline and other
inflammable products mentioned in Section 1 may be stored unless at a distance of
not less than 200 meters from a block of houses either in the poblacion or barrios in
order to avoid loss of property and life due to fire. Under Section 2, existing
warehouses for the storage of the prohibited articles were given one year after the
approval of the ordinance within which to remove them but were allowed to remain in
operation if they had ceased to store such prohibited articles.

The ambiguity therefore is more apparent than real and springs from simple error in
grammatical construction but otherwise, the meaning and intent is clear that what is
prohibited is the construction or maintenance of warehouses for the storage of
inflammable articles at a distance within 200 meters from a block of houses either in
the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of
life and property in case of accidental fire which is one of the primordial and basic
obligation of any government. 8

Clearly, the lower court did NOT add meaning other than or differrent from what was provided in the ordinance in question. It merely stated
the purpose of the ordinance and what it intends to prohibit to accomplish its purpose.

As to the third assignment of error, that warehouses similarly situated as that of the petitioner were
not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not
proceeded against other warehouses in the municipality allegedly violating Ordinance No. 13 is no
reason to claim that the ordinance is discriminatory. A distinction must be made between the law
itself and the manner in which said law is implemented by the agencies in charge with its
administration and enforcement. There is no valid reason for the petitioner to complain, in the
absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance
and that the complaints have been lodged against the bodegas concerned without the municipal
authorities doing anything about it.

The objections interposed by the petitioner to the validity of the ordinance have not been
substantiated. Its purpose is well within the objectives of sound government. No undue restraint is
placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing
inflammable products in the warehouse because of the danger of fire to the lives and properties of
the people residing in the vicinity. As far as public policy is concerned, there can be no better policy
than what has been conceived by the municipal government.

As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same.
The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls
under the then Court of First Instance.

WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

G.R. No. 102782 December 11, 1991

THE SOLICITOR GENERAL, RODOLFO A. MALAPIRA, STEPHEN A. MONSANTO, DAN R.


CALDERON, and GRANDY N. TRIESTE, petitioners
vs.
THE METROPOLITAN MANILA AUTHORITY and the MUNICIPALITY OF
MANDALUYONG, respondents.

CRUZ, J.:

In Metropolitan Traffic Command, West Traffic District vs. Hon. Arsenio M. Gonong, G.R. No. 91023,
promulgated on July 13, 1990, 1 the Court held that the confiscation of the license plates of motor
vehicles for traffic violations was not among the sanctions that could be imposed by the Metro
Manila Commission under PD 1605 and was permitted only under the conditions laid dowm by LOI
43 in the case of stalled vehicles obstructing the public streets. It was there also observed that even
the confiscation of driver's licenses for traffic violations was not directly prescribed by the decree nor
was it allowed by the decree to be imposed by the Commission. No motion for reconsideration of
that decision was submitted. The judgment became final and executory on August 6, 1990, and it
was duly entered in the Book of Entries of Judgments on July 13, 1990.

Subsequently, the following developments transpired:

In a letter dated October 17, 1990, Rodolfo A. Malapira complained to the Court that when he was
stopped for an alleged traffic violation, his driver's license was confiscated by Traffic Enforcer Angel
de los Reyes in Quezon City.

On December 18,1990, the Caloocan-Manila Drivers and Operators Association sent a letter to the
Court asking who should enforce the decision in the above-mentioned case, whether they could
seek damages for confiscation of their driver's licenses, and where they should file their complaints.

Another letter was received by the Court on February 14, 1991, from Stephen L. Monsanto,
complaining against the confiscation of his driver's license by Traffic Enforcer A.D. Martinez for an
alleged traffic violation in Mandaluyong.

This was followed by a letter-complaint filed on March 7, 1991, from Dan R. Calderon, a lawyer, also
for confiscation of his driver's license by Pat. R.J. Tano-an of the Makati Police Force.

Still another complaint was received by the Court dated April 29, 1991, this time from Grandy N.
Trieste, another lawyer, who also protested the removal of his front license plate by E. Ramos of the
Metropolitan Manila Authority-Traffic Operations Center and the confiscation of his driver's license by
Pat. A.V. Emmanuel of the Metropolitan Police Command-Western Police District.

Required to submit a Comment on the complaint against him, Allan D. Martinez invoked Ordinance
No. 7, Series of 1988, of Mandaluyong, authorizing the confiscation of driver's licenses and the
removal of license plates of motor vehicles for traffic violations.

For his part, A.V. Emmanuel said he confiscated Trieste's driver's license pursuant to a
memorandum dated February 27, 1991, from the District Commander of the Western Traffic District
of the Philippine National Police, authorizing such sanction under certain conditions.

Director General Cesar P. Nazareno of the Philippine National Police assured the Court in his own
Comment that his office had never authorized the removal of the license plates of illegally parked
vehicles and that he had in fact directed full compliance with the above-mentioned decision in a
memorandum, copy of which he attached, entitled Removal of Motor Vehicle License Plates and
dated February 28, 1991.

Pat. R.J. Tano-an, on the other hand, argued that the Gonong decision prohibited only the removal
of license plates and not the confiscation of driver's licenses.

On May 24, 1990, the Metropolitan Manila Authority issued Ordinance No. 11, Series of 1991,
authorizing itself "to detach the license plate/tow and impound attended/ unattended/ abandoned
motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila."

On July 2, 1991, the Court issued the following resolution:

The attention ofthe Court has been called to the enactment by the Metropolitan Manila
Authority of Ordinance No. 11, Series of 1991, providing inter alia that:
Section 2. Authority to Detach Plate/Tow and Impound. The Metropolitan Manila
Authority, thru the Traffic Operatiom Center, is authorized to detach the license
plate/tow and impound attended/unattended/abandoned motor vehicles illegally
parked or obstructing the flow of traffic in Metro Manila.

The provision appears to be in conflict with the decision of the Court in the case at bar (as
reported in 187 SCRA 432), where it was held that the license plates of motor vehicles may
not be detached except only under the conditions prescribed in LOI 43. Additionally, the
Court has received several complaints against the confiscation by police authorities of
driver's licenses for alleged traffic violations, which sanction is, according to the said
decision, not among those that may be imposed under PD 1605.

To clarify these matters for the proper guidance of law-enforcement officers and motorists,
the Court resolved to require the Metropolitan Manila Authority and the Solicitor General to
submit, within ten (10) days from notice hereof, separate COMMENTS on such sanctions in
light of the said decision.

In its Comment, the Metropolitan Manila Authority defended the said ordinance on the ground that it
was adopted pursuant to the powers conferred upon it by EO 392. It particularly cited Section 2
thereof vesting in the Council (its governing body) the responsibility among others of:

1. Formulation of policies on the delivery of basic services requiring coordination or


consolidation for the Authority; and

2. Promulgation of resolutions and other issuances of metropolitan wide application, approval


of a code of basic services requiring coordination, and exercise of its rule-making powers.
(Emphasis supplied)

The Authority argued that there was no conflict between the decision and the ordinance because the
latter was meant to supplement and not supplant the latter. It stressed that the decision itself said
that the confiscation of license plates was invalid in the absence of a valid law or ordinance, which
was why Ordinance No. 11 was enacted. The Authority also pointed out that the ordinance could not
be attacked collaterally but only in a direct action challenging its validity.

For his part, the Solicitor General expressed the view that the ordinance was null and void because
it represented an invalid exercise of a delegated legislative power. The flaw in the measure was that
it violated existing law, specifically PD 1605, which does not permit, and so impliedly prohibits, the
removal of license plates and the confiscation of driver's licenses for traffic violations in Metropolitan
Manila. He made no mention, however, of the alleged impropriety of examining the said ordinance in
the absence of a formal challenge to its validity.

On October 24, 1991, the Office of the Solicitor General submitted a motion for the early resolution
of the questioned sanctions, to remove once and for all the uncertainty of their vahdity. A similar
motion was filed by the Metropolitan Manila Authority, which reiterated its contention that the
incidents in question should be dismissed because there was no actual case or controversy before
the Court.

The Metropolitan Manila Authority is correct in invoking the doctrine that the validity of a law or act
can be challenged only in a direct action and not collaterally. That is indeed the settled principle.
However, that rule is not inflexible and may be relaxed by the Court under exceptional
circumstances, such as those in the present controversy.
The Solicitor General notes that the practices complained of have created a great deal of confusion
among motorists about the state of the law on the questioned sanctions. More importantly, he
maintains that these sanctions are illegal, being violative of law and the Gonong decision, and
should therefore be stopped. We also note the disturbing report that one policeman who confiscated
a driver's license dismissed the Gonong decision as "wrong" and said the police would not stop their
"habit" unless they received orders "from the top." Regrettably, not one of the complainants has filed
a formal challenge to the ordinances, including Monsanto and Trieste, who are lawyers and could
have been more assertive of their rights.

Given these considerations, the Court feels it must address the problem squarely presented to it and
decide it as categorically rather than dismiss the complaints on the basis of the technical objection
raised and thus, through its inaction, allow them to fester.

The step we now take is not without legal authority or judicial precedent. Unquestionably, the Court
has the power to suspend procedural rules in the exercise of its inherent power, as expressly
recognized in the Constitution, to promulgate rules concerning "pleading, practice and procedure in
all courts." 2 In proper cases, procedural rules may be relaxed or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence
to such rules.

The Court has taken this step in a number of such cases, notably Araneta vs. Dinglasan, 3 where
Justice Tuason justified the deviation on the ground that "the transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure."

We have made similar rulings in other cases, thus:

Be it remembered that rules of procedure are but mere tools designed to facilitate the
attainment ofjustice. Their strict and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must always be avoided. (Aznar III
vs. Bernad, G.R. No. 81190, May 9, 1988, 161 SCRA 276.) Time and again, this Court has
suspended its own rules and excepted a particular case from their operation whenever the
higher interests of justice so require. In the instant petition, we forego a lengthy disquisition
of the proper procedure that should have been taken by the parties involved and proceed
directly to the merits of the case. (Piczon vs. Court of Appeals, 190 SCRA 31).

Three of the cases were consolidated for argument and the other two were argued
separately on other dates. Inasmuch as all of them present the same fundamental question
which, in our view, is decisive, they will be disposed of jointly. For the same reason we will
pass up the objection to the personality or sufficiency of interest of the petitioners in case
G.R. No. L-3054 and case G.R. No. L-3056 and the question whether prohibition lies in
cases G.R. Nos. L-2044 and L2756. No practical benefit can be gained from a discussion of
these procedural matters, since the decision in the cases wherein the petitioners'cause of
action or the propriety of the procedure followed is not in dispute, will be controlling authority
on the others. Above all, the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821 cited in Araneta vs.
Dinglasan, 84 Phil. 368.)

Accordingly, the Court will consider the motion to resolve filed by the Solicitor General a petition for
prohibition against the enforcement of Ordinance No. 11, Series of 1991, of the Metropohtan Manila
Authority, and Ordinance No. 7, Series of 1988, of the Municipality of Mandaluyong. Stephen A.
Monsanto, Rodolfo A. Malapira, Dan R. Calderon, and Grandy N. Trieste are considered co-
petitioners and the Metropolitan Manila Authority and the Municipality of Mandaluyong are hereby
impleaded as respondents. This petition is docketed as G.R. No. 102782. The comments already
submitted are duly noted and shall be taken into account by the Court in the resolution of the
substantive issues raised.

It is stressed that this action is not intended to disparage procedural rules, which the Court has
recognized often enough as necessary to the orderly administration of justice. If we are relaxing
them in this particular case, it is because of the failure of the proper parties to file the appropriate
proceeding against the acts complained of, and the necessity of resolving, in the interest of the
public, the important substantive issues raised.

Now to the merits.

The Metro Manila Authority sustains Ordinance No. 11, Series of 1991, under the specific authority
conferred upon it by EO 392, while Ordinance No. 7, Series of 1988, is justified on the basis of the
General Welfare Clause embodied in the Local Government Code. 4 It is not disputed that both
measures were enacted to promote the comfort and convenience of the public and to alleviate the
worsening traffic problems in Metropolitan Manila due in large part to violations of traffic rules.

The Court holds that there is a valid delegation of legislative power to promulgate such measures, it
appearing that the requisites of such delegation are present. These requisites are. 1) the
completeness of the statute making the delegation; and 2) the presence of a sufficient standard. 5

Under the first requirement, the statute must leave the legislature complete in all its terms and provisions such that all the delegate will have to do
when the statute reaches it is to implement it. What only can be delegated is not the discretion to determine what the law shall be but the discretion to
determine how the law shall be enforced. This has been done in the case at bar.

As a second requirement, the enforcement may be effected only in accordance with a sufficient standard, the function of which is to map out the boundaries of the delegate's authority and thus "prevent the delegation from running riot."
This requirement has also been met. It is settled that the "convenience and welfare" of the public, particularly the motorists and passengers in the case at bar, is an acceptable sufficient standard to delimit the delegate's authority. 6

But the problem before us is not the validity of the delegation of legislative power. The question we must resolve is the validity of the exercise of such
delegated power.

The measures in question are enactments of local governments acting only as agents of the national legislature. Necessarily, the acts of these agents
must reflect and conform to the will of their principal. To test the validity of such acts in the specific case now before us, we apply the particular
requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations.

According to Elliot, a municipal ordinance, to be valid: 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 not be unreasonable; and 6) must be general and consistent with public policy. 7

A careful study of the Gonong decision will show that the measures under consideration do not pass the first criterion because they do not conform to
existing law. The pertinent law is PD 1605. PD 1605 does not allow either the removal of license plates or the confiscation of driver's licenses for traffic
violations committed in Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila Commission
(and now the Metropolitan Manila Authority) to impose such sanctions:

Section 1. The Metropolitan Manila Commission shall have the power to impose fines and otherwise discipline drivers and operators of
motor vehicles for violations of traffic laws, ordinances, rules and regulations in Metropolitan Manila in such amounts and under such
penalties as are herein prescribed. For this purpose, the powers of the Land Transportation Commission and the Board of Transportation
under existing laws over such violations and punishment thereof are hereby transferred to the Metropolitan Manila Commission. When the
proper penalty to be imposed is suspension or revocation of driver's license or certificate of public convenience, the Metropolitan Manila
Commission or its representatives shall suspend or revoke such license or certificate. The suspended or revoked driver's license or the
report of suspension or revocation of the certificate of public convenience shall be sent to the Land Transportation Commission or the
Board of Transportation, as the case may be, for their records update.

xxx xxx xxx

Section 3.` Violations of traffic laws, ordinances, rules and regulations, committed within a twelve-month period, reckoned from the date of
birth of the licensee, shall subject the violator to graduated fines as follows: P10.00 for the first offense, P20.00 for the and offense, P50.00
for the third offense, a one-year suspension of driver's license for the fourth offense, and a revocation of the driver's license for the fifth
offense: Provided, That the Metropolitan Manila Commission may impose higher penalties as it may deem proper for violations of its
ordinances prohibiting or regulating the use of certain public roads, streets and thoroughfares in Metropolitan Manila.

xxx xxx xxx

Section 5. In case of traffic violations, the driver's license shall not be confiscated but the erring driver shall be immediately issued a traffic
citation ticket prescribed by the Metropolitan Manila Commission which shall state the violation committed, the amount of fine imposed for
the violation and an advice that he can make payment to the city or municipal treasurer where the violation was committed or to the
Philippine National Bank or Philippine Veterans Bank or their branches within seven days from the date of issuance of the citation ticket.

If the offender fails to pay the fine imposed within the period herein prescribed, the Metropolitan Manila Commission or the law-enforcement
agency concerned shall endorse the case to the proper fiscal for appropriate proceedings preparatory to the filing of the case with the
competent traffic court, city or municipal court.

If at the time a driver renews his driver's license and records show that he has an unpaid fine, his driver's license shall not be renewed until
he has paid the fine and corresponding surcharges.

xxx xxx xxx

Section 8. Insofar as the Metropolitan Manila area is concerned, all laws, decrees, orders, ordinances, rules and regulations, or parts
thereof inconsistent herewith are hereby repealed or modified accordingly. (Emphasis supplied).

In fact, the above provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission was allowed to "impose fines and
otherwise discipline" traffic violators only "in such amounts and under such penalties as are herein prescribed," that is, by the decree itself. Nowhere is
the removal of license plates directly imposed by the decree or at least allowed by it to be imposed by the Commission. Notably, Section 5 thereof
expressly provides that "in case of traffic violations, the driver's license shall not be confiscated." These restrictions are applicable to the Metropolitan
Manila Authority and all other local political subdivisions comprising Metropolitan Manila, including the Municipality of Mandaluyong.

The requirement that the municipal 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

They are mere agents vested with what is called the


that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). 8

power of subordinate legislation. As delegates of the Congress, the local government unit cannot
contravene but must obey at all times the will of their principal. In the case before us, the enactments
in question, which are merely local in origin, cannot prevail against the decree, which has the force
and effect of a statute.

The self-serving language of Section 2 of the challenged ordinance is worth noting. Curiously, it is
the measure itself, which was enacted by the Metropolitan Manila Authority, that authorizes the
Metropolitan Manila Authority to impose the questioned sanction.

In Villacorta vs, Bemardo, 9 the Court nullified an ordinance enacted by the Municipal Board of
Dagupan City for being violative of the Land Registration Act. The decision held in part:

In declaring the said ordinance null and void, the court a quo declared:

From the above-recited requirements, there is no showing that would justify the
enactment of the questioned ordinance. Section 1 of said ordinance clearly conflicts
with Section 44 of Act 496, because the latter law does not require subdivision plans
to be submitted to the City Engineer before the same is submitted for approval to and
verification by the General Land Registration Office or by the Director of Lands as
provided for in Section 58 of said Act. Section 2 of the same ordinance also
contravenes the provisions of Section 44 of Act 496, the latter being silent on a
service fee of P0.03 per square meter of every lot subject of such subdivision
application; Section 3 of the ordinance in question also conflicts with Section 44 of
Act 496, because the latter law does not mention of a certification to be made by the
City Engineer before the Register of Deeds allows registration of the subdivision
plan; and the last section of said ordinance impose a penalty for its violation, which
Section 44 of Act 496 does not impose. In other words, Ordinance 22 of the City of
Dagupan imposes upon a subdivision owner additional conditions.

xxx xxx xxx

The Court takes note of the laudable purpose of the ordinance in bringing to a halt
the surreptitious registration of lands belonging to the government. But as already
intimated above, the powers of the board in enacting such a laudable ordinance
cannot be held valid when it shall impede the exercise of rights granted in a general
law and/or make a general law subordinated to a local ordinance.

We affirm.

To sustain the ordinance would be to open the floodgates to other ordinances amending and
so violating national laws in the guise of implementing them. Thus, ordinances could be
passed imposing additional requirements for the issuance of marriage licenses, to prevent
bigamy; the registration of vehicles, to minimize carnapping; the execution of contracts, to
forestall fraud; the validation of parts, to deter imposture; the exercise of freedom of speech,
to reduce disorder; and so on. The list is endless, but the means, even if the end be valid,
would be ultra vires.

The measures in question do not merely add to the requirement of PD 1605 but, worse, impose
sanctions the decree does not allow and in fact actually prohibits. In so doing, the ordinances
disregard and violate and in effect partially repeal the law.

We here emphasize the ruling in the Gonong case that PD 1605 applies only to the Metropolitan
Manila area. It is an exception to the general authority conferred by R.A. No. 413 on the
Commissioner of Land Transportation to punish violations of traffic rules elsewhere in the country
with the sanction therein prescribed, including those here questioned.

The Court agrees that the challenged ordinances were enacted with the best of motives and shares
the concern of the rest of the public for the effective reduction of traffic problems in Metropolitan
Manila through the imposition and enforcement of more deterrent penalties upon traffic violators. At
the same time, it must also reiterate the public misgivings over the abuses that may attend the
enforcement of such sanction in eluding the illicit practices described in detail in
the Gonong decision. At any rate, the fact is that there is no statutory authority for — and indeed
there is a statutory prohibition against — the imposition of such penalties in the Metropolitan Manila
area. Hence, regardless of their merits, they cannot be impose by the challenged enactments by
virtue only of the delegated legislative powers.

It is for Congress to determine, in the exercise of its own discretion, whether or not to impose such
sanctions, either directly through a statute or by simply delegating authority to this effect to the local
governments in Metropolitan Manila. Without such action, PD 1605 remains effective and continues
prohibit the confiscation of license plates of motor vehicles (except under the conditions prescribed
in LOI 43) and of driver licenses as well for traffic violations in Metropolitan Manila.

WHEREFORE, judgment is hereby rendered:

(1) declaring Ordinance No.11, Seriesof l991,of theMetropolitan Manila Authority and Ordinance No.
7, Series of 1988 of the Municipality of Mandaluyong, NULL and VOID; and

(2) enjoining all law enforcement authorities in Metropolitan Manila from removing the license plates
of motor vehicles (except when authorized under LOI 43) and confiscating driver licenses for traffic
violations within the said area.

SO ORDERED.

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,


vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, respondents.

Aquilino G. Pimentel, Jr. and Associates for petitioners.

R.R. Torralba & Associates for private respondent.

CRUZ, J.:

There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro
City. Civic organizations angrily denounced the project. The religious elements echoed the objection
and so did the women's groups and the youth. Demonstrations were led by the mayor and the city
legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the
city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR
decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a
building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents,
renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas
season.

The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On
December 7, 1992, it enacted Ordinance No. 3353 reading as follows:

ORDINANCE NO. 3353

AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND


CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR
THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION
THEREOF FOR THE OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in


session assembled that:

Sec. 1. — That pursuant to the policy of the city banning the operation of casino
within its territorial jurisdiction, no business permit shall be issued to any person,
partnership or corporation for the operation of casino within the city limits.

Sec. 2. — That it shall be a violation of existing business permit by any persons,


partnership or corporation to use its business establishment or portion thereof, or
allow the use thereof by others for casino operation and other gambling activities.

Sec. 3. — PENALTIES. — Any violation of such existing business permit as defined


in the preceding section shall suffer the following penalties, to wit:

a) Suspension of the business permit for sixty (60)


days for the first offense and a fine of P1,000.00/day

b) Suspension of the business permit for Six (6)


months for the second offense, and a fine of
P3,000.00/day

c) Permanent revocation of the business permit and


imprisonment of One (1) year, for the third and
subsequent offenses.

Sec. 4. — This Ordinance shall take effect ten (10) days from publication thereof.

Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:

ORDINANCE NO. 3375-93

AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING


PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO
under its Resolution No. 2295;

WHEREAS, on October 14, 1992, the City Council passed another Resolution No.
2673, reiterating its policy against the establishment of CASINO;

WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353,


prohibiting the issuance of Business Permit and to cancel existing Business Permit to
any establishment for the using and allowing to be used its premises or portion
thereof for the operation of CASINO;

WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local
Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI
of the implementing rules of the Local Government Code, the City Council as the
Legislative Body shall enact measure to suppress any activity inimical to public
morals and general welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect social and moral
welfare of the community;

NOW THEREFORE,

BE IT ORDAINED by the City Council in session duly assembled that:

Sec. 1. — The operation of gambling CASINO in the City of Cagayan de Oro is


hereby prohibited.

Sec. 2. — Any violation of this Ordinance shall be subject to the following penalties:

a) Administrative fine of P5,000.00 shall be imposed against the proprietor,


partnership or corporation undertaking the operation, conduct, maintenance of
gambling CASINO in the City and closure thereof;

b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine
in the amount of P5,000.00 or both at the discretion of the court against the manager,
supervisor, and/or any person responsible in the establishment, conduct and
maintenance of gambling CASINO.

Sec. 3. — This Ordinance shall take effect ten (10) days after its publication in a local
newspaper of general circulation.

Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as
intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of
Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2

Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the
Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that:

1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro
does not have the power and authority to prohibit the establishment and operation of
a PAGCOR gambling casino within the City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in Sec. 458,
par. (a), sub-par. (1) — (v) of R.A. 7160 could only mean "illegal gambling."

3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on
that point.

4. The questioned Ordinances are discriminatory to casino and partial to cockfighting


and are therefore invalid on that point.

5. The questioned Ordinances are not reasonable, not consonant with the general
powers and purposes of the instrumentality concerned and inconsistent with the laws
or policy of the State.

6. It had no option but to follow the ruling in the case of Basco, et al. v.
PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues
presented in this present case.

PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of the Philippines.
In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the
constitutionality of the decree and even cited the benefits of the entity to the national economy as the
third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is expressly vested with the police power under
what is known as the General Welfare Clause now embodied in Section 16 as follows:

Sec. 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.

In addition, Section 458 of the said Code specifically declares that:

Sec. 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, gamblingand 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;

This section also authorizes the local government units to regulate properties and businesses within
their territorial limits in the interest of the general welfare. 5

The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit
the operation of casinos because they involve games of chance, which are detrimental to the people.
Gambling is not allowed by general law and even by the Constitution itself. The legislative power
conferred upon local government units may be exercised over all kinds of gambling and not only
over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may
have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to
prohibit them within its territory pursuant to the authority entrusted to it by the Local Government
Code.

It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in
Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein
seeking to strengthen the character of the nation. In giving the local government units the power to
prevent or suppress gambling and other social problems, the Local Government Code has
recognized the competence of such communities to determine and adopt the measures best
expected to promote the general welfare of their inhabitants in line with the policies of the State.

The petitioners also stress that when the Code expressly authorized the local government units to
prevent and suppress gambling and other prohibited games of chance, like craps, baccarat,
blackjack and roulette, it meant allforms of gambling without distinction. Ubi lex non distinguit, nec
nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their
power casinos and other forms of gambling authorized by special law, as it could have easily done.
The fact that it did not do so simply means that the local government units are permitted to prohibit
all kinds of gambling within their territories, including the operation of casinos.

The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter
of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail
in case of inconsistencies between them. More than this, the powers of the PAGCOR under the
decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and
provisions, pursuant to Par. (f) of its repealing clause reading as follows:

(f) 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.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code
on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction
in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the
Code specifically provides:

Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of this Code,


the following rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally interpreted
in its favor, and in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be interpreted in favor of the local
government unit concerned;

xxx xxx xxx

(c) The general welfare provisions in this Code shall be liberally interpreted to give
more powers to local government units in accelerating economic development and
upgrading the quality of life for the people in the community; . . . (Emphasis
supplied.)

Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the
Constitution and several decisions of this Court expressive of the general and official disapprobation
of the vice. They invoke the State policies on the family and the proper upbringing of the youth and,
as might be expected, call attention to the old case of U.S. v. Salaveria,7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling.
They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in
creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial
jurisdiction of the Philippines."

This is the opportune time to stress an important point.

The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress
to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit
gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its
own wisdom, which this Court has no authority to review, much less reverse. Well has it been said
that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the
political departments. It is settled that questions regarding the wisdom, morality, or practicibility of
statutes are not addressed to the judiciary but may be resolved only by the legislative and executive
departments, to which the function belongs in our scheme of government. That function is exclusive.
Whichever way these branches decide, they are answerable only to their own conscience and the
constituents who will ultimately judge their acts, and not to the courts of justice.

The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and
Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And
we shall do so only by the criteria laid down by law and not by our own convictions on the propriety
of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid,
an ordinance must conform to the following substantive requirements:

1) It must not contravene the constitution or any statute.

2) It must not be unfair or oppressive.

3) It must not be partial or discriminatory.

4) It must not prohibit but may regulate trade.

5) It must be general and consistent with public policy.

6) It must not be unreasonable.

We begin by observing that under Sec. 458 of the Local Government Code, local government units
are authorized to prevent or suppress, among others, "gambling and other prohibited games of
chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact
permitted by law. The petitioners are less than accurate in claiming that the Code could have
excluded such games of chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation
to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that
since the word "gambling" is associated with "and other prohibited games of chance," the word
should be read as referring to only illegal gambling which, like the other prohibited games of chance,
must be prevented or suppressed.

We could stop here as this interpretation should settle the problem quite conclusively. But we will
not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and
the earnestness of their advocacy, deserve more than short shrift from this Court.

The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public
policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it
to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this
misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance
admittedly cannot prevail against a statute. Their theory is that the change has been made by the
Local Government Code itself, which was also enacted by the national lawmaking authority. In their
view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the
sense that PAGCOR cannot now operate a casino over the objection of the local government unit
concerned. This modification of P.D. 1869 by the Local Government Code is permissible because
one law can change or repeal another law.

It seems to us that the petitioners are playing with words. While insisting that the decree has only
been "modifiedpro tanto," they are actually arguing that it is already dead, repealed and useless for
all intents and purposes because the Code has shorn PAGCOR of all power to centralize and
regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local
government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the
Code if the word "shall" as used therein is to be given its accepted meaning. Local government units
have now no choice but to prevent and suppress gambling, which in the petitioners' view includes
both legal and illegal gambling. Under this construction, PAGCOR will have no more games of
chance to regulate or centralize as they must all be prohibited by the local government units
pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot
continue to exist except only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the operation of casinos.

It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently
discarding the rest of the provision which painstakingly mentions the specific laws or the parts
thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A
reading of the entire repealing clause, which is reproduced below, will disclose the omission:

Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as
the "Local Government Code," Executive Order No. 112 (1987), and Executive Order
No. 319 (1988) are hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.

(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the
Special Education Fund; Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and
rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-
funded projects.

(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential
Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections
52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as amended, and

(f) 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.

Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a
clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court
explained:

The cases relating to the subject of repeal by implication all proceed on the
assumption that if the act of later date clearly reveals an intention on the part of the
lawmaking power to abrogate the prior law, this intention must be given effect; but
there must always be a sufficient revelation of this intention, and it has become an
unbending rule of statutory construction that the intention to repeal a former law will
not be imputed to the Legislature when it appears that the two statutes, or provisions,
with reference to which the question arises bear to each other the relation of general
to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private
respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of
Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the
benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for
measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes.
This would show that the PAGCOR charter has not been repealed by the Local Government Code
but has in fact been improved as it were to make the entity more responsive to the fiscal problems of
the government.

It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably
destructive confrontation, courts must exert every effort to reconcile them, remembering that both
laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On
the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one
and annul the other but to give effect to both by harmonizing them if possible. This is possible in the
case before us. The proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent and suppress all kinds of
gambling within their territories except only those allowed by statutes like P.D. 1869. The exception
reserved in such laws must be read into the Code, to make both the Code and such laws equally
effective and mutually complementary.

This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and
those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal
gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to
prohibit all kinds of gambling would erase the distinction between these two forms of gambling
without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City
of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from
conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro
Hippodrome as authorized by R.A. 309 and R.A. 983.

In light of all the above considerations, we see no way of arriving at the conclusion urged on us by
the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances
violate P.D. 1869, which has the character and force of a statute, as well as the public policy
expressed in the decree allowing the playing of certain games of chance despite the prohibition of
gambling in general.

The rationale of the requirement that the ordinances should not contravene a statute is obvious.
Municipal governments are only agents of the national government. Local councils exercise only
delegated legislative powers conferred on 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.

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 to the
corporation themselves are concerned. They are, so to phrase it, the mere tenants at
will of the legislature. 11
This 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 confirm that Congress retains control of the
local government units although in significantly 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, 12 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.

The Court understands and admires the concern of the petitioners for the welfare of their
constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by
the opening of the casino. We share the view that "the hope of large or easy gain, obtained without
special effort, turns the head of the workman" 13 and that "habitual gambling is a cause of laziness
and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped
out. The laws against gambling must be enforced to the limit." George Washington called gambling
"the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must
recognize the power of the legislature to decide, in its own wisdom, to legalize certain forms of
gambling, as was done in P.D. 1869 and impliedly affirmed in the Local Government Code. That
decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all
official acts. We do not find such contravention here.

We hold that the power of PAGCOR to centralize and regulate all games of chance, including
casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D.
1869 has not been modified by the Local Government Code, which empowers the local government
units to prevent or suppress only those forms of gambling prohibited by law.

Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be
amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for
the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all
their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy
announced therein and are therefore ultra vires and void.

WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of
Appeals is AFFIRMED, with costs against the petitioners. It is so ordered.

G.R. No. 92389 September 11, 1991

HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners,


vs.
HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents.

Jejomar C. Binay for himself and for his co-petitioner.

Manuel D. Tamase and Rafael C. Marquez for respondents.

PARAS, J.:
The only pivotal issue before Us is whether or not Resolution No. 60, re-enacted under Resolution
No. 243, of the Municipality of Makati is a valid exercise of police power under the general welfare
clause.

The pertinent facts are:

On September 27, 1988, petitioner Municipality, through its Council, approved Resolution No. 60
which reads:

A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL ASSISTANCE


PROGRAM INITIATED BY THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL
ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO A BEREAVED FAMILY, FUNDS
TO BE TAKEN OUT OF UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE
MUNICIPAL TREASURY. (Rollo, Annnex "A" p. 39)

Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of Makati whose
gross family income does not exceed two thousand pesos (P2,000.00) a month. The beneficiaries,
upon fulfillment of other requirements, would receive the amount of five hundred pesos (P500.00)
cash relief from the Municipality of Makati. (Reno, Annex "13", p. 41)

Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified
a disbursement fired of four hundred thousand pesos (P400,000.00) for the implementation of the
Burial Assistance Program. (Rollo, Annex "C", p. 43).

Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected
allowance in audit. Based on its preliminary findings, respondent COA disapproved Resolution No.
60 and disallowed in audit the disbursement of finds for the implementation thereof. (Rollo, Annex
"D", P. 44)

Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48, respectively) filed by
petitioners Mayor Jejomar Binay, were denied by respondent in its Decision No. 1159, in the
following manner:

Your request for reconsideration is predicated on the following grounds, to wit:

1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the intended
disbursements fall within the twin principles of 'police power and parens patriae and

2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5, 1989,
has already appropriated the amount of P400,000.00 to implement the Id resolution, and the
only function of COA on the matter is to allow the financial assistance in question.

The first contention is believed untenable. Suffice it to state that:

a statute or ordinance must have a real substantial, or rational relation to the public
safety, health, morals, or general welfare to be sustained as a legitimate exercise of
the police power. The mere assertion by the legislature that a statute relates to the
public health, safety, or welfare does not in itself bring the statute within the police
power of a state for there must always be an obvious and real connection between
the actual provisions of a police regulations and its avowed purpose, and the
regulation adopted must be reasonably adapted to accomplish the end sought to be
attained. 16 Am. Jur 2d, pp. 542-543; emphasis supplied).

Here, we see no perceptible connection or relation between the objective sought to be


attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general
welfare, etc. of the inhabitants of Makati.

Anent the second contention, let it be stressed that Resolution No. 60 is still subject to the
limitation that the expenditure covered thereby should be for a public purpose, i.e., that the
disbursement of the amount of P500.00 as burial assistance to a bereaved family of the
Municipality of Makati, or a total of P400,000.00 appropriated under the Resolution, should
be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and
not for the benefit of only a few individuals as in the present case. On this point government
funds or property shall be spent or used solely for public purposes. (Cf. Section 4[2], P.D.
1445). (pp. 50-51, Rollo)

Bent on pursuing the Burial Assistance Program the Municipality of Makati, through its Council,
passed Resolution No. 243, re-affirming Resolution No. 60 (Rollo, Annex "H", p. 52).

However, the Burial Assistance Program has been stayed by COA Decision No. 1159. Petitioner,
through its Mayor, was constrained to file this special civil action of certiorari praying that COA
Decision No. 1159 be set aside as null and void.

The police power is a governmental function, an inherent attribute of sovereignty, which was born
with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas
and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort
and convenience of the people.

Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del
Norte, 163 SCRA 182). Before a municipal corporation may exercise such power, there must be a
valid delegation of such power by the legislature which is the repository of the inherent powers of the
State. A valid delegation of police power may arise from express delegation, or be inferred from the
mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations
may exercise police powers within the fair intent and purpose of their creation which are reasonably
proper to give effect to the powers expressly granted, and statutes conferring powers on public
corporations have been construed as empowering them to do the things essential to the enjoyment
of life and desirable for the safety of the people. (62 C.J.S., p. 277). The so-called inferred police
powers of such corporations are as much delegated powers as are those conferred in express
terms, the inference of their delegation growing out of the fact of the creation of the municipal
corporation and the additional fact that the corporation can only fully accomplish the objects of its
creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore,
municipal corporations, as governmental agencies, must have such measures of the power as are
necessary to enable them to perform their governmental functions. The power is a continuing one,
founded on public necessity. (62 C.J.S. p. 273) Thus, not only does the State effectuate its purposes
through the exercise of the police power but the municipality does also. (U.S. v. Salaveria, 39 Phil.
102).

Municipal governments exercise this power under the general welfare clause: pursuant thereto they
are clothed with authority to "enact such ordinances and issue such regulations as may be
necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace
and order, improve public morals, promote the prosperity and general welfare of the municipality and
the inhabitants thereof, and insure the protection of property therein." (Sections 91, 149, 177 and
208, BP 337). And under Section 7 of BP 337, "every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers necessary and
proper for governance such as to promote health and safety, enhance prosperity, improve morals,
and maintain peace and order in the local government unit, and preserve the comfort and
convenience of the inhabitants therein."

Police power is the power to prescribe regulations to promote the health, morals, peace, education,
good order or safety and general welfare of the people. It is the most essential, insistent, and
illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. It is
elastic and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA
719). On it depends the security of social order, the life and health of the citizen, the comfort of an
existence in a thickly populated community, the enjoyment of private and social life, and the
beneficial use of property, and it has been said to be the very foundation on which our social system
rests. (16 C.J.S., P. 896) However, it is not confined within narrow circumstances of precedents
resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang,
et al. vs. IAC, supra).

In the case at bar, COA is of the position that there is "no perceptible connection or relation between
the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public
safety, general welfare. etc. of the inhabitants of Makati." (Rollo, Annex "G", p. 51).

Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public
safety, general welfare, etc. of the inhabitants of Makati."

In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all comprehensiveness.
Its scope, over-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits.

The police power of a municipal corporation is broad, and has been said to be commensurate with,
but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort,
and convenience as consistently as may be with private rights. It extends to all the great public
needs, and, in a broad sense includes all legislation and almost every function of the municipal
government. It covers a wide scope of subjects, and, while it is especially occupied with whatever
affects the peace, security, health, morals, and general welfare of the community, it is not limited
thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest
welfare of the people by promoting public convenience or general prosperity, and to everything
worthwhile for the preservation of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128).
Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the
limits of police power.

COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the
limitation that the expenditure covered thereby should be for a public purpose, ... should be for the
benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of
only a few individuals as in the present case." (Rollo, Annex "G", p. 51).

COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely
because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of
the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to
provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general
welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for
human rights. (Section 11, Ibid." (Comment, p. 12)

The care for the poor is generally recognized as a public duty. The support for the poor has long
been an accepted exercise of police power in the promotion of the common good.

There is no violation of the equal protection clause in classifying paupers as subject of legislation.
Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to
the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus,
statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer
from the bondage of the soil, housing the urban poor, etc.

Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a paragon
of the continuing program of our government towards social justice. The Burial Assistance Program
is a relief of pauperism, though not complete. The loss of a member of a family is a painful
experience, and it is more painful for the poor to be financially burdened by such death. Resolution
No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life,
should have more in law." This decision, however must not be taken as a precedent, or as an official
go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for
motives political or otherwise.

PREMISES CONSIDERED, and with the afore-mentioned caveat, this petition is hereby GRANTED
and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE.

SO ORDERED.

G.R. No. L-31249 August 19, 1986

SALVADOR VILLACORTA as City Engineer of Dagupan City, and JUAN S. CAGUIOA as


Register of Deeds of Dagupan City, petitioners,
vs.
GREGORIO BERNARDO and HON. MACARIO OFILADA as Judge of the Court of First
Instance of Pangasinan respondents.

Victor T. Llamas, Jr. for respondents.

CRUZ, J.:

This is a petition for certiorari against a decision of the Court of First Instance of Pangasinan
annulling an ordinance adopted by the municipal board of Dagupan City.

The ordinance reads in full as follows:

ORDINANCE 22

AN ORDINANCE REGULATING SUBDIVISION PLANS OVER PARCELS OF LAND


IN THE CITY OF DAGUPAN.

Be it ordained by the Municipal Board of Dagupan City in session assembled:


Section 1. Every proposed subdivision plan over any lot in the City of Dagupan, shalt
before the same is submitted for approval and/or verification by the Bureau of Lands
and/or the Land Registration Commission, be previously submitted to the City
Engineer of the City who shall see to it that no encroachment is made on any portion
of the public domain, that the zoning ordinance and all other pertinent rules and
regulations are observed.

Section 2. As service fee thereof, an amount equivalent to P0.30 per square meter of
every lot resulting or win result from such subdivision shall be charged by the City
Engineer's Office.

Section 3. It shall be unlawful for the Register of Deeds of Dagupan City to allow the
registration of a subdivision plan unless there is prior written certification issued by
the City Engineer that such plan has already been submitted to his office and that the
same is in order.

Section 4. Any violation of this ordinance shall be punished by a fine not exceeding
two hundred (P200.00) pesos or imprisonment not exceeding six (6) months or both
in the discretion of the judge.

Section 5. This ordinance shall take effect immediately upon approval.

In declaring the said ordinance null and void, the court a quo declared:

From the above-recited requirements, there is no showing that would justify the
enactment of the questioned ordinance. Section 1 of said ordinance clearly conflicts
with Section 44 of Act 496, because the latter law does not require subdivision plans
to be submitted to the City Engineer before the same is submitted for approval to and
verification by the General Land Registration Office or by the Director of Lands as
provided for in Section 58 of said Act. Section 2 of the same ordinance also
contravenes the provisions of Section 44 of Act 496, the latter being silent on a
service fee of PO.03 per square meter of every lot subject of such subdivision
application; Section 3 of the ordinance in question also conflicts with Section 44 of
Act 496, because the latter law does not mention of a certification to be made by the
City Engineer before the Register of Deeds allows registration of the subdivision
plan; and the last section of said ordinance imposes a penalty for its violation, which
Section 44 of Act 496 does not impose. In other words, Ordinance 22 of the City of
Dagupan imposes upon a subdivision owner additional conditions.

xxx xxx xxx

The Court takes note of the laudable purpose of the ordinance in bringing to a halt
the surreptitious registration of lands belonging to the government. But as already
intimidated above, the powers of the board in enacting such a laudable ordinance
cannot be held valid when it shall impede the exercise of rights granted in a general
law and/or make a general law subordinated to a local ordinance.

We affirm.

To sustain the ordinance would be to open the floodgates to other ordinances amending and so
violating national laws in the guise of implementing them. Thus, ordinances could be passed
imposing additional requirements for the issuance of marriage licenses, to prevent bigamy; the
registration of vehicles, to minimize carnaping; the execution of contracts, to forestall fraud; the
validation of passports, to deter imposture; the exercise of freedom of speech, to reduce disorder;
and so on. The list is endless, but the means, even if the end be valid, would be ultra vires.

So many excesses are attempted in the name of the police power that it is time, we feel, for a brief
admonition.

Regulation is a fact of life in any well-ordered community. As society becomes more and more
complex, the police power becomes correspondingly ubiquitous. This has to be so for the individual
must subordinate his interests to the common good, on the time honored justification of Salus populi
est suprema lex.

In this prolix age, practically everything a person does and owns affects the public interest directly or
at least vicariously, unavoidably drawing him within the embrace of the police power. Increasingly,
he is hemmed in by all manner of statutory, administrative and municipal requirements and
restrictions that he may find officious and even oppressive.

It is necessary to stress that unless the creeping interference of the government in essentially private
matters is moderated, it is likely to destroy that prized and peculiar virtue of the free society:
individualism.

Every member of society, while paying proper deference to the general welfare, must not be
deprived of the right to be left alone or, in the Idiom of the day, "to do his thing." As long as he does
not prejudice others, his freedom as an individual must not be unduly curtailed.

We therefore urge that proper care attend the exercise of the police power lest it deteriorate into an
unreasonable intrusion into the purely private affairs of the individual. The so-called "general welfare"
is too amorphous and convenient an excuse for official arbitrariness.

Let it always be remembered that in the truly democratic state, protecting the rights of the individual
is as important as, if not more so than, protecting the rights of the public.

This advice is especially addressed to the local governments which exercise the police power only
by virtue of a valid delegation from the national legislature under the general welfare clause. In the
instant case, Ordinance No. 22 suffers from the additional defect of violating this authority for
legislation in contravention of the national law by adding to its requirements.

WHEREFORE, the decision of the lower court annulling the challenged ordinance is AFFIRMED,
without any pronouncement as to costs.

SO ORDERED.

G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA
CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO
BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO
ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA
ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA
DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO
MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE,
BULACAN, respondents.

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid
of power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging
that their rights to due process and equal protection of the laws were violated as the licenses
previously given to them was in effect withdrawn without judicial hearing. 2

The assailed ordinance 3 is worded as follows: "Section 1.— Title of Ordinance.— This Ordinance
shall be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan.
Section 2. — Definitions of Terms — (a) 'Night Club' shall include any place or establishment selling
to the public food or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall
include any place or establishment where dancing is permitted to the public and where professional
hostesses or hospitality girls and professional dancers are employed. (c) 'Professional hostesses' or
'hospitality girls' shall include any woman employed by any of the establishments herein defined to
entertain guests and customers at their table or to dance with them. (d) 'Professional dancer' shall
include any woman who dances at any of the establishments herein defined for a fee or
remuneration paid directly or indirectly by the operator or by the persons she dances with. (e)
'Operator' shall include the owner, manager, administrator or any person who operates and is
responsible for the operation of any night club, cabaret or dance hall. Section 3. — Prohibition in the
Issuance and Renewal of Licenses, Permits. — Being the principal cause in the decadence of
morality and because of their other adverse effects on this community as explained above, no
operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to
operate within the jurisdiction of the municipality and no license/permit shall be issued to any
professional hostess, hospitality girls and professional dancer for employment in any of the
aforementioned establishments. The prohibition in the issuance of licenses/permits to said persons
and operators of said establishments shall include prohibition in the renewal thereof. Section
4.— Revocation of Permits and Licenses.— The licenses and permits issued to operators of night
clubs, cabarets or dance halls which are now in operation including permits issued to professional
hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the
thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these
establishments within the jurisdiction of the municipality shall be illegal. Section 5.— Penalty in case
of violation. — Violation of any of the provisions of this Ordinance shall be punishable by
imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at the
discretion of the Court. If the offense is committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty provided herein. Section 6.
— Separability Clause.— If, for any reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section
7.— Repealing Clause.— All ordinance, resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby repealed. Section 8.— Effectivity.—
This Ordinance shall take effect immediately upon its approval; provided, however, that operators of
night clubs, cabarets and dance halls now in operation including professional hostesses, hospitality
girls and professional dancers are given a period of thirty days from the approval hereof within which
to wind up their businesses and comply with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court
of First Instance of Bulacan. 5 The grounds alleged follow:

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.

2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the
law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3.
That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to
license and regulate tourist-oriented businesses including night clubs, has been transferred to the
Department of Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice
Paras of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The
answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by
law not only to regulate but to prohibit the establishment, maintenance and operation of night clubs
invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The
Ordinance No. 84 is not violative of petitioners' right to due process and the equal protection of the
law, since property rights are subordinate to public interests. 3. That Presidential Decree No. 189, as
amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit night
clubs." 7 There was the admission of the following facts as having been established: "l. That
petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses
by the Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la
Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2.
That petitioners had invested large sums of money in their businesses; 3. That the night clubs are
well-lighted and have no partitions, the tables being near each other; 4. That the petitioners
owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral acts
and to go out with customers; 5. That these hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any venereal disease and that those who fail to
submit to a medical check-up or those who are found to be infected with venereal disease are not
allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns
of Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality and
validity of Ordinance No. 84 and dismissing the cases. Hence this petition for certiorari by way of
appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is
set forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the
Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual
titillation and fearful of what the awesome future holds for it, had no alternative except to order thru
its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night
clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the current legal and social revolution,
hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore
issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper appellate
tribunals for any contemplated redress."9 This Court is, however, unable to agree with such a
conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to
justify the enactment of the assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General power of
council to enact ordinances and make regulations. - The municipal council shall 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 it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein." 10 It is practically a reproduction of the former Section 39 of
Municipal Code.11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking
for the Court in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the
fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is
against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of
common right. Where the power to legislate upon a given subject, and the mode of its exercise and
the details of such legislation are not prescribed, the ordinance passed pursuant thereto must be a
reasonable exercise of the power, or it will be pronounced invalid." 13 In another leading case, United
States v. Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative
Code provision was applied, it was stated by this Court: "The general welfare clause has two
branches: One branch attaches itself to the main trunk of municipal authority, and relates to such
ordinances and regulations as may be necessary to carry into effect and discharge the powers and
duties conferred upon the municipal council by law. With this class we are not here directly
concerned. The second branch of the clause is much more independent of the specific functions of
the council which are enumerated by law. It authorizes such ordinances as shall seem necessary
and proper to provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein.' It is a general rule that ordinances passed by virtue of the implied
power found in the general welfare clause must be reasonable, consonant with the general
powersand purposes of the corporation, and not inconsistent with the laws or policy of the State." 15 If
night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would
pass the test of validity. In the two leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and purposes of municipal corporations, as well
as consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise
of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering
public morals, a worthy and desirable end can be attained by a measure that does not encompass
too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The purpose
sought to be achieved could have been attained by reasonable restrictions rather than by an
absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly
set aside legislative action when there is not a clear invasion of personal or property rights under the
guise of police regulation." 16 It is clear that in the guise of a police regulation, there was in this
instance a clear invasion of personal or property rights, personal in the case of those individuals
desirous of patronizing those night clubs and property in terms of the investments made and salaries
to be earned by those therein employed.

2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally
enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE
TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city
board or council of each chartered city shall have the power to regulate by ordinance the
establishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions,
cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within
its territorial jurisdiction: ... " 19Then on May 21, 1954, the first section was amended to include not
merely "the power to regulate, but likewise "Prohibit ... " 20 The title, however, remained the same. It
is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the
above portion of the Act were considered, a municipal council may go as far as to prohibit the
operation of night clubs. If that were all, then the appealed decision is not devoid of support in law.
That is not all, however. The title was not in any way altered. It was not changed one whit. The exact
wording was followed. The power granted remains that of regulation, not prohibition. There is thus
support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a constitutional question. The
Constitution mandates: "Every bill shall embrace only one subject which shall be expressed in the
title thereof. " 21 Since there is no dispute as the title limits the power to regulating, not prohibiting, it
would result in the statute being invalid if, as was done by the Municipality of Bocaue, the operation
of a night club was prohibited. There is a wide gap between the exercise of a regulatory power "to
provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of
the Administrative Code, such competence extending to all "the great public needs, 23 to quote from
Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the well-settled
principle of constitutional construction that between two possible interpretations by one of which it
will be free from constitutional infirmity and by the other tainted by such grave defect, the former is to
be preferred. A construction that would save rather than one that would affix the seal of doom
certainly commends itself. We have done so before We do so again. 24

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-
enacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative
Code provision, is set forth in the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as
may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such
as shall be necessary and proper to provide for the health, safety, comfort and convenience,
maintain peace and order, improve public morals, promote the prosperity and general welfare of the
municipality and the inhabitants thereof, and insure the protection of property therein; ..." 26 There are
in addition provisions that may have a bearing on the question now before this Court. Thus
the sangguniang bayanshall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns,
pension houses and lodging houses, except travel agencies, tourist guides, tourist transports, hotels,
resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the
licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without
infringing on the taxing or regulatory powers of the municipality; (ss) Regulate public dancing
schools, public dance halls, and sauna baths or massage parlors; (tt) Regulate the establishment
and operation of billiard pools, theatrical performances, circuses and other forms of entertainment;
..." 27 It is clear that municipal corporations cannot prohibit the operation of night clubs. They may be
regulated, but not prevented from carrying on their business. It would be, therefore, an exercise in
futility if the decision under review were sustained. All that petitioners would have to do is to apply
once more for licenses to operate night clubs. A refusal to grant licenses, because no such
businesses could legally open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary
result of an affirmance, would amount to no more than a temporary termination of their business.
During such time, their employees would undergo a period of deprivation. Certainly, if such an
undesirable outcome can be avoided, it should be. The law should not be susceptible to the
reproach that it displays less than sympathetic concern for the plight of those who, under a mistaken
appreciation of a municipal power, were thus left without employment. Such a deplorable
consequence is to be avoided. If it were not thus, then the element of arbitrariness enters the
picture. That is to pay less, very much less, than full deference to the due process clause with its
mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal
forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from
the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to
measures that can be characterized as falling within that aspect of the police power. Reference is
made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory
measure. Necessarily, there was no valid objection on due process or equal protection grounds. It
did not prohibit motels. It merely regulated the mode in which it may conduct business in order
precisely to put an end to practices which could encourage vice and immorality. This is an entirely
different case. What was involved is a measure not embraced within the regulatory power but an
exercise of an assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-
Malate Hotel and Motel Operators Association, Inc. decision that there must be a factual foundation
of invalidity, it was likewise made clear that there is no need to satisfy such a requirement if a statute
were void on its face. That it certainly is if the power to enact such ordinance is at the most dubious
and under the present Local Government Code non-existent.

WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15,
1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of
Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is
hereby made permanent. No costs.

G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon
City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of
Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null
and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE


ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall
be set aside for charity burial of deceased persons who are paupers and have been
residents of Quezon City for at least 5 years prior to their death, to be determined by
competent City Authorities. The area so designated shall immediately be developed
and should be open for operation not later than six months from the date of approval
of the application.
For several years, the aforequoted section of the Ordinance was not enforced by city authorities but
seven years after the enactment of the ordinance, the Quezon City Council passed the following
resolution:

RESOLVED by the council of Quezon assembled, to request, as it does hereby


request the City Engineer, Quezon City, to stop any further selling and/or transaction
of memorial park lots in Quezon City where the owners thereof have failed to donate
the required 6% space intended for paupers burial.

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in
writing that Section 9 of Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII
at Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction
(Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent
alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy
Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both petitioners and
respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore,
rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City Council filed the
instant petition.

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of
police power and that the land is taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is authorized under its charter, in the
exercise of local police power, " to make such further ordinances and resolutions not repugnant to
law as may be necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of
property is obvious because the questioned ordinance permanently restricts the use of the property
such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use
of his property.

The respondent also stresses that the general welfare clause is not available as a source of power
for the taking of the property in this case because it refers to "the power of promoting the public
welfare by restraining and regulating the use of liberty and property." The respondent points out that
if an owner is deprived of his property outright under the State's police power, the property is
generally not taken for public use but is urgently and summarily destroyed in order to promote the
general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to
prevent the spread of a conflagration.

We find the stand of the private respondent as well as the decision of the respondent Judge to be
well-founded. We quote with approval the lower court's ruling which declared null and void Section 9
of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police
power?

An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal
any provision that would justify the ordinance in question except the provision
granting police power to the City. Section 9 cannot be justified under the power
granted to Quezon City to tax, fix the license fee, and regulate such other business,
trades, and occupation as may be established or practised in the City.' (Subsections
'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra,
81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law,
70, Mich. 396). A fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but also prohibits the
operation of a memorial park cemetery, because under Section 13 of said ordinance,
'Violation of the provision thereof is punishable with a fine and/or imprisonment and
that upon conviction thereof the permit to operate and maintain a private cemetery
shall be revoked or cancelled.' The confiscatory clause and the penal provision in
effect deter one from operating a memorial park cemetery. Neither can the ordinance
in question be justified under sub- section "t", Section 12 of Republic Act 537 which
authorizes the City Council to-

'prohibit the burial of the dead within the center of population of the
city and provide for their burial in such proper place and in such
manner as the council may determine, subject to the provisions of the
general law regulating burial grounds and cemeteries and governing
funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act
No. 537).

There is nothing in the above provision which authorizes confiscation or as


euphemistically termed by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question
is a valid exercise of police power. The police power of Quezon City is defined in
sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to


law as may be necessary to carry into effect and discharge the
powers and duties conferred by this act and such as it shall deem
necessary and proper to provide for the health and safety, promote,
the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe under
the provisions of subsection (jj) of this section.

We start the discussion with a restatement of certain basic principles. Occupying the
forefront in the bill of rights is the provision which states that 'no person shall be
deprived of life, liberty or property without due process of law' (Art. Ill, Section 1
subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which the state
interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3)
taxation. These are said to exist independently of the Constitution as necessary
attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by
restraining and regulating the use of liberty and property' (Quoted in Political Law by
Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate
the use and enjoyment of property of the owner. If he is deprived of his property
outright, it is not taken for public use but rather to destroy in order to promote the
general welfare. In police power, the owner does not recover from the government
for injury sustained in consequence thereof (12 C.J. 623). It has been said that police
power is the most essential of government powers, at times the most insistent, and
always one of the least limitable of the powers of government (Ruby vs. Provincial
Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104).
The Supreme Court has said that police power is so far-reaching in scope that it has
almost become impossible to limit its sweep. As it derives its existence from the very
existence of the state itself, it does not need to be expressed or defined in its scope.
Being coextensive with self-preservation and survival itself, it is the most positive and
active of all governmental processes, the most essential insistent and illimitable
Especially it is so under the modern democratic framework where the demands of
society and nations have multiplied to almost unimaginable proportions. The field and
scope of police power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and have transcended
human foresight. Since the Courts cannot foresee the needs and demands of public
interest and welfare, they cannot delimit beforehand the extent or scope of the police
power by which and through which the state seeks to attain or achieve public interest
and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due
process clause being the broadest station on governmental power, the conflict
between this power of government and the due process clause of the Constitution is
oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in
the form of mere regulation or restriction in the use of liberty or property for the
promotion of the general welfare. It does not involve the taking or confiscation of
property with the exception of a few cases where there is a necessity to confiscate
private property in order to destroy it for the purpose of protecting the peace and
order and of promoting the general welfare as for instance, the confiscation of an
illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon
City is not a mere police regulation but an outright confiscation. It deprives a person
of his private property without due process of law, nay, even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden
shouldered by whoever challenges the validity of duly enacted legislation whether national or local
As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve
every presumption in favor of validity and, more so, where the ma corporation asserts that the
ordinance was enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of
Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice
Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of any evidence to offset
the presumption of validity that attaches to a statute or ordinance. As was expressed
categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The
action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their
particular ... municipality and with all the facts and lances which surround the subject
and necessitate action. The local legislative body, by enacting the ordinance, has in
effect given notice that the regulations are essential to the well-being of the people.
... The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation.
(U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in the leading Salaveria
decision in Ebona v. Daet, [1950]85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of


Health supra :

... Under the provisions of municipal charters which are known as the general welfare
clauses, a city, by virtue of its police power, may adopt ordinances to the peace,
safety, health, morals and the best and highest interests of the municipality. It is a
well-settled principle, growing out of the nature of well-ordered and society, that
every holder of property, however absolute and may be his title, holds it under the
implied liability that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious to the rights of
the community. An property in the state is held subject to its general regulations,
which are necessary to the common good and general welfare. Rights of property,
like all other social and conventional rights, are subject to such reasonable limitations
in their enjoyment as shall prevent them from being injurious, and to such reasonable
restraints and regulations, established by law, as the legislature, under the governing
and controlling power vested in them by the constitution, may think necessary and
expedient. The state, under the police power, is possessed with plenary power to
deal with all matters relating to the general health, morals, and safety of the people,
so long as it does not contravene any positive inhibition of the organic law and
providing that such power is not exercised in such a manner as to justify the
interference of the courts to prevent positive wrong and oppression.

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area
of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking
without compensation of a certain area from a private cemetery to benefit paupers who are charges
of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose,
the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by Section
12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the city and to provide for their burial
in a proper place subject to the provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a
Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner
as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or
to buy or expropriate private properties to construct public cemeteries. This has been the law and
practise in the past. It continues to the present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws and regulations requiring owners of
subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from
the land they sell to buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The beneficiaries of the regulation, in
turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of
the municipal corporation, not on any express provision of law as statutory basis of their exercise of
power. The clause has always received broad and liberal interpretation but we cannot stretch it to
cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang
Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating.
The sequestration of six percent of the cemetery cannot even be considered as having been
impliedly acknowledged by the private respondent when it accepted the permits to commence
operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is
affirmed.

SO ORDERED.

G.R. No. L-24670 December 14, 1979

ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant,


vs.
FEATI BANK AND TRUST CO., defendant-appellee.

Ramirez & Ortigas for appellant.

Tañada, Teehankee & Carreon for appellee.

SANTOS, J.:

An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas & Co., Limited Partnership,
from the decision of the Court of First Instance of Rizal, Branch VI, at Pasig, Hon. Andres Reyes
presiding, which dismissed its complaint in Civil Case No. 7706, entitled, "Ortigas & Company,
Limited Partnership, plaintiff, v. Feati Bank and Trust Company, defendant," for lack of merit.

The following facts — a reproduction of the lower court's findings, which, in turn, are based on a
stipulation of facts entered into by the parties are not disputed. Plaintiff (formerly known as "Ortigas,
Madrigal y Cia") is a limited partnership and defendant Feati Bank and Trust Co., is a corporation
duly organized and existing in accordance with the laws of the Philippines. Plaintiff is engaged in real
estate business, developing and selling lots to the public, particularly the Highway Hills Subdivision
along Epifanio de los Santos Avenue, Mandaluyong, Rizal. 1

On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and Natividad Angeles, as
vendees, entered into separate agreements of sale on installments over two parcels of land, known
as Lots Nos. 5 and 6, Block 31, of the Highway Hills Subdivision, situated at Mandaluyong, Rizal. On
July 19, 1962, the said vendees transferred their rights and interests over the aforesaid lots in favor
of one Emma Chavez. Upon completion of payment of the purchase price, the plaintiff executed the
corresponding deeds of sale in favor of Emma Chavez. Both the agreements (of sale on installment)
and the deeds of sale contained the stipulations or restrictions that:

1. The parcel of land subject of this deed of sale shall be used the Buyer exclusively
for residential purposes, and she shall not be entitled to take or remove soil, stones
or gravel from it or any other lots belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed
at any time in said lot must be, (a) of strong materials and properly painted, (b)
provided with modern sanitary installations connected either to the public sewer or to
an approved septic tank, and (c) shall not be at a distance of less than two (2) meters
from its boundary lines. 2

The above restrictions were later annotated in TCT Nos. 101509 and 101511 of the Register of
Deeds of Rizal, covering the said lots and issued in the name of Emma Chavez.3

Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT Nos. 101613 and 106092
issued in its name, respectively and the building restrictions were also annotated
therein. 4 Defendant-appellee bought Lot No. 5 directly from Emma Chavez, "free from all liens and
encumbrances as stated in Annex 'D', 5 while Lot No. 6 was acquired from Republic Flour Mills
through a "Deed of Exchange," Annex "E". 6 TCT No. 101719 in the name of Republic Flour Mills
likewise contained the same restrictions, although defendant-appellee claims that Republic Flour
Mills purchased the said Lot No. 6 "in good faith. free from all liens and encumbrances," as stated in
the Deed of Sale, Annex "F" 7 between it and Emma Chavez.

Plaintiff-appellant claims that the restrictions annotated on TCT Nos. 101509, 101511, 101719,
101613, and 106092 were imposed as part of its general building scheme designed for the
beautification and development of the Highway Hills Subdivision which forms part of the big landed
estate of plaintiff-appellant where commercial and industrial sites are also designated or
established. 8

Defendant-appellee, upon the other hand, maintains that the area along the western part of Epifanio
de los Santos Avenue (EDSA) from Shaw Boulevard to Pasig River, has been declared a
commercial and industrial zone, per Resolution No. 27, dated February 4, 1960 of the Municipal
Council of Mandaluyong, Rizal. 9 It alleges that plaintiff-appellant 'completely sold and transferred to
third persons all lots in said subdivision facing Epifanio de los Santos Avenue" 10 and the subject lots
thereunder were acquired by it "only on July 23, 1962 or more than two (2) years after the area ...
had been declared a commercial and industrial zone ... 11

On or about May 5, 1963, defendant-appellee began laying the foundation and commenced the
construction of a building on Lots Nos. 5 and 6, to be devoted to banking purposes, but which
defendant-appellee claims could also be devoted to, and used exclusively for, residential purposes.
The following day, plaintiff-appellant demanded in writing that defendant-appellee stop the
construction of the commerical building on the said lots. The latter refused to comply with the
demand, contending that the building was being constructed in accordance with the zoning
regulations, defendant-appellee having filed building and planning permit applications with the
Municipality of Mandaluyong, and it had accordingly obtained building and planning permits to
proceed with the construction.12

On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the lower court for
decision. The complaint sought, among other things, the issuance of "a writ of preliminary injunction
... restraining and enjoining defendant, its agents, assigns, and those acting on its or their behalf
from continuing or completing the construction of a commercial bank building in the premises ...
involved, with the view to commanding the defendant to observe and comply with the building
restrictions annotated in the defendant's transfer certificate of title."

In deciding the said case, the trial court considered, as the fundamental issue, whether or not the
resolution of the Municipal Council of Mandaluyong declaring Lots Nos. 5 and 6, among others, as
part of the commercial and industrial zone of the municipality, prevailed over the building restrictions
imposed by plaintiff-appellant on the lots in question. 13 The records do not show that a writ of
preliminary injunction was issued.

The trial court upheld the defendant-appellee and dismissed the complaint, holding that the subject
restrictions were subordinate to Municipal Resolution No. 27, supra. It predicated its conclusion on
the exercise of police power of the said municipality, and stressed that private interest should "bow
down to general interest and welfare. " In short, it upheld the classification by the Municipal Council
of the area along Epifanio de los Santos Avenue as a commercial and industrial zone, and held that
the same rendered "ineffective and unenforceable" the restrictions in question as against defendant-
appellee.14 The trial court decision further emphasized that it "assumes said resolution to be valid,
considering that there is no issue raised by either of the parties as to whether the same is null and
void. 15

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above decision, 16 which
motion was opposed by defendant-appellee on March 17, 1965.17 It averred, among others, in the
motion for reconsideration that defendant- appellee "was duty bound to comply with the conditions of
the contract of sale in its favor, which conditions were duly annotated in the Transfer Certificates of
Title issued in her (Emma Chavez) favor." It also invited the trial court's attention to its claim that the
Municipal Council had (no) power to nullify the contractual obligations assumed by the defendant
corporation." 18

The trial court denied the motion for reconsideration in its order of March 26, 1965. 19

On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the
complaint and from the order of March 26, 1965 denying the motion for reconsideration, its record on
appeal, and a cash appeal bond." 20On April 14, the appeal was given due course 21 and the records
of the case were elevated directly to this Court, since only questions of law are raised. 22

Plaintiff-appellant alleges in its brief that the trial court erred —

I. When it sustained the view that Resolution No. 27, series of 1960 of the Municipal
Council of Mandaluyong, Rizal declaring Lots Nos. 5 and 6, among others, as part of
the commercial and industrial zone, is valid because it did so in the exercise of its
police power; and

II. When it failed to consider whether or not the Municipal Council had the power to
nullify the contractual obligations assumed by defendant-appellee and when it did not
make a finding that the building was erected along the property line, when it should
have been erected two meters away from said property line. 23

The defendant-appellee submitted its counter-assignment of errors. In this connection, We already


had occasion to hold in Relativo v. Castro 24 that "(I)t is not incumbent on the appellee, who occupies
a purely defensive position, and is seeking no affirmative relief, to make assignments of error, "

The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is a valid
exercise of police power; and (2) whether the said Resolution can nullify or supersede the
contractual obligations assumed by defendant-appellee.

1. The contention that the trial court erred in sustaining the validity of Resolution No. 27 as an
exercise of police power is without merit. In the first place, the validity of the said resolution was
never questioned before it. The rule is that the question of law or of fact which may be included in
the appellant's assignment of errors must be those which have been raised in the court below, and
are within the issues framed by the parties. 25 The object of requiring the parties to present all
questions and issues to the lower court before they can be presented to the appellate court is to
enable the lower court to pass thereon, so that the appellate court upon appeal may determine
whether or not such ruling was erroneous. The requirement is in furtherance of justice in that the
other party may not be taken by surprise. 26 The rule against the practice of blowing "hot and cold" by
assuming one position in the trial court and another on appeal will, in the words of Elliot, prevent
deception. 27 For it is well-settled that issues or defenses not raised 28 or properly litigated 29 or
pleaded 30 in the Court below cannot be raised or entertained on appeal.

In this particular case, the validity of the resolution was admitted at least impliedly, in the stipulation
of facts below. when plaintiff-appellant did not dispute the same. The only controversy then as stated
by the trial court was whether or not the resolution of the Municipal Council of Mandaluyong ... which
declared lots Nos. 4 and 5 among others, as a part of the commercial and industrial zone of the
municipality, prevails over the restrictions constituting as encumbrances on the lots in
question. 31 Having admitted the validity of the subject resolution below, even if impliedly, plaintiff-
appellant cannot now change its position on appeal.

But, assuming arguendo that it is not yet too late in the day for plaintiff-appellant to raise the issue of
the invalidity of the municipal resolution in question, We are of the opinion that its posture is
unsustainable. Section 3 of R.A. No. 2264, otherwise known as the Local Autonomy
Act," 32 empowers a Municipal Council "to adopt zoning and subdivision ordinances
or regulations"; 33 for the municipality. Clearly, the law does not restrict the exercise of the power
through an ordinance. Therefore, granting that Resolution No. 27 is not an ordinance, it certainly is a
regulatory measure within the intendment or ambit of the word "regulation" under the provision. As a
matter of fact the same section declares that the power exists "(A)ny provision of law to the contrary
notwithstanding ... "

An examination of Section 12 of the same law 34 which prescribes the rules for its interpretation
likewise reveals that the implied power of a municipality should be "liberally construed in its favor"
and that "(A)ny fair and reasonable doubt as to the existence of the power should be interpreted in
favor of the local government and it shall be presumed to exist." The same section further mandates
that the general welfare clause be liberally interpreted in case of doubt, so as to give more power to
local governments in promoting the economic conditions, social welfare and material progress of the
people in the community. The only exceptions under Section 12 are existing vested rights arising out
of a contract between "a province, city or municipality on one hand and a third party on the other," in
which case the original terms and provisions of the contract should govern. The exceptions, clearly,
do not apply in the case at bar.
2. With regard to the contention that said resolution cannot nullify the contractual obligations
assumed by the defendant-appellee – referring to the restrictions incorporated in the deeds of sale
and later in the corresponding Transfer Certificates of Title issued to defendant-appellee – it should
be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not
absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power to
prescribe regulations to promote the health, morals, peace, education, good order or safety and
general welfare of the people. 35 Invariably described as "the most essential, insistent, and illimitable
of powers" 36 and "in a sense, the greatest and most powerful attribute of government, 37 the exercise
of the power may be judicially inquired into and corrected only if it is capricious, 'whimsical, unjust or
unreasonable, there having been a denial of due process or a violation of any other applicable
constitutional guarantee. 38 As this Court held through Justice Jose P. Bengzon in Philippine Long
Distance Company vs. City of Davao, et al. 39 police power "is elastic and must be responsive to
various social conditions; it is not, confined within narrow circumscriptions of precedents resting on
past conditions; it must follow the legal progress of a democratic way of life." We were even more
emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al., 40 when We declared: "We
do not see why public welfare when clashing with the individual right to property should not be made
to prevail through the state's exercise of its police power.

Resolution No. 27, s-1960 declaring the western part of highway 54, now E. de los Santos Avenue
(EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone,
was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police
power to safeguard or promote the health, safety, peace, good order and general welfare of the
people in the locality, Judicial notice may be taken of the conditions prevailing in the area, especially
where lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and
commercial complexes have flourished about the place. EDSA, a main traffic artery which runs
through several cities and municipalities in the Metro Manila area, supports an endless stream of
traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or
welfare of the residents in its route. Having been expressly granted the power to adopt zoning and
subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal
'council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject
resolution.

The scope of police power keeps expanding as civilization advances, stressed this Court, speaking
thru Justice Laurel in the leading case of Calalang v. Williams et al., 41 Thus-

As was said in the case of Dobbins v. Los Angeles (195 US 223, 238 49 L. ed.
169), 'the right to exercise the police power is a continuing one, and a business
lawful today may in the future, because of changed situation, the growth of
population or other causes, become a menace to the public health and welfare, and
be required to yield to the public good.' And in People v. Pomar (46 Phil. 440), it was
observed that 'advancing civilization is bringing within the scope of police power of
the state today things which were not thought of as being with in such power
yesterday. The development of civilization), the rapidly increasing population, the
growth of public opinion, with an increasing desire on the part of the masses and of
the government to look after and care for the interests of the individuals of the state,
have brought within the police power many questions for regulation which formerly
were not so considered. 42 (Emphasis, supplied.)

Thus, the state, in order to promote the general welfare, may interfere with personal liberty, with
property, and with business and occupations. Persons may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort health and prosperity of the state 43 and to this
fundamental aim of our Government, the rights of the individual are subordinated. 44
The need for reconciling the non-impairment clause of the Constitution and the valid exercise of
police power may also be gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo, speaking
for the Court, resolved the conflict "between one welfare and another, between particular and
general, thus —

Nor is the concept of the general welfare static. Needs that were narrow or parochial
a century ago may be interwoven in our day with the well-being of the nation What is
critical or urgent changes with the times. 46

The motives behind the passage of the questioned resolution being reasonable, and it being a "
legitimate response to a felt public need," 47 not whimsical or oppressive, the non-impairment of
contracts clause of the Constitution will not bar the municipality's proper exercise of the power. Now
Chief Justice Fernando puts it aptly when he declared: "Police power legislation then is not likely to
succumb to the challenge that thereby contractual rights are rendered nugatory." 48

Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General49 that laws and
reservation of essential attributes of sovereign power are read into contracts agreed upon by the
parties. Thus —

Not only are existing laws read into contracts in order to fix obligations as between
the parties, but the reservation of essential attributes of sovereign power is also read
into contracts as a postulate of the legal order. The policy of protecting contracts
against impairments presupposes the maintenance of a government by virtue of
which contractual relations are worthwhile – a government which retains adequate
authority to secure the peace and good order of society.

Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial Relations, 50 through Justice
J.B.L. Reyes, that ... the law forms part of, and is read into, every contract, unless clearly excluded
therefrom in those cases where such exclusion is allowed." The decision in Maritime Company of the
Philippines v. Reparations Commission, 51 written for the Court by Justice Fernando, now Chief
Justice, restates the rule.

One last observation. Appellant has placed unqualified reliance on American jurisprudence and
authorities 52 to bolster its theory that the municipal resolution in question cannot nullify or supersede
the agreement of the parties embodied in the sales contract, as that, it claims, would impair the
obligation of contracts in violation of the Constitution. Such reliance is misplaced.

In the first place, the views set forth in American decisions and authorities are not per se controlling
in the Philippines, the laws of which must necessarily be construed in accordance with the intention
of its own lawmakers and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. 53 and Burgess, et al v. Magarian, et al., 55 two Of the
cases cited by plaintiff-appellant, lend support to the conclusion reached by the trial court, i.e. that
the municipal resolution supersedes/supervenes over the contractual undertaking between the
parties. Dolan v. Brown, states that "Equity will not, as a rule, enforce a restriction upon the use of
property by injunction where the property has so changed in character and environment as to make
it unfit or unprofitable for use should the restriction be enforced, but will, in such a case, leave the
complainant to whatever remedy he may have at law. 56 (Emphasis supplied.) Hence, the remedy of
injunction in Dolan vs. Brown was denied on the specific holding that "A grantor may lawfully insert in
his deed conditions or restrictions which are not against public policy and do not materially impair the
beneficial enjoyment of the estate. 57 Applying the principle just stated to the present controversy, We
can say that since it is now unprofitable, nay a hazard to the health and comfort, to use Lots Nos. 5
and 6 for strictly residential purposes, defendants- appellees should be permitted, on the strength of
the resolution promulgated under the police power of the municipality, to use the same for
commercial purposes. In Burgess v. Magarian et al. it was, held that "restrictive covenants running
with the land are binding on all subsequent purchasers ... " However, Section 23 of the zoning
ordinance involved therein contained a proviso expressly declaring that the ordinance was not
intended "to interfere with or abrogate or annul any easements, covenants or other agreement
between parties." 58 In the case at bar, no such proviso is found in the subject resolution.

It is, therefore, clear that even if the subject building restrictions were assumed by the defendant-
appellee as vendee of Lots Nos. 5 and 6, in the corresponding deeds of sale, and later, in Transfer
Certificates of Title Nos. 101613 and 106092, the contractual obligations so assumed cannot prevail
over Resolution No. 27, of the Municipality of Mandaluyong, which has validly exercised its police
power through the said resolution. Accordingly, the building restrictions, which declare Lots Nos. 5
and 6 as residential, cannot be enforced.

IN VIEW OF THE FOREGOING, the decision appealed from, dismissing the complaint, is hereby
AFFIRMED. "without pronouncement as to costs.

SO ORDERED.

G.R. Nos. L-60549, 60553 to 60555 October 26, 1983

HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona) ANASTACIO C. CABILAO,


HEIRS OF CIPRIANO CABILAO (represented by Jose Cabilao) MODESTA CABILAO, HEIRS
OF ROMAN CABUENAS (represented by Alberto Cabuenas), AGRIPINO GABISAY and
PRUDENCIA MABINI, ANTONIO LABRADOR and LUCIA GABISAY, GERONIMO MABINI and
MARCELINA SABAL, INOCENCIO MABINI and ARSENIA REYES, PATRICIO MABINI and
GREGORIA BORRES, ANICETO GADAPAN and MAXIMA GABISAY, BARTOLOME MAGNO
and CALINECA E. MAGNO, ALBERTO CABUENAS, NARCISO CABUENAS and VICTORIA
CABUENAS, EUTIQUIOSENO, HEIRS OF ESPERIDION CABUENAS (represented by Alberto
Cabuenas), MAXIMINA NAVARO, SULPICIO NAVARO, EDUARDO NAVARO, MARTINIANO
ROMA (in representation of Arcadio Mabini, deceased), MARTIN SENO, FAUSTO ARDA,
MAXIMA CABILAO, ESTRELLA SENO, EDUVEGIS S. CABILAO, ROSARIO CABILAO, MINORS
DANILO, SOCORRO, JOSEFINA and MARITES, all surnamed Cabilao, JUAN BORRES
(represented by Francisca Borres), RAMON JABADAN, JESUS ALIPAR and LEONILA
KABAHAR, ANTONIO LABRADOR, HEIRS OF NICASIO GABISAY (represented by Arsenio
Gabisay), PACIFICO LABRADOR, DEMETRIO LABRADOR and FRUCTOSA TABURA,
VENANCIO DEL MAR, MARINO DEL MAR, HEIRS OF TEODORA ARCILLO (represented by
Brigida Arcillo) DIONISIA GABUNADA, HEIRS OF BUENAVENTURA FRANCISCO (represented
by Felicidad Sadaya Francisco), HEIRS OF VICTORIA C. CABUENAS (represented by Alberto
Cabuenas) HEIRS OF CIPRIANO GABUNADA (represented by Claudio Gabunada), petitioners,
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of Branch I, COURT OF FIRST
instance OF CEBU, and the PHILIPPINE TOURISM AUTHORITY, respondents.

George M. Baladjay, Mario G. dela Victoria, Olegario Sarmiento, Jr., and Democrito Barcenas for
petitioners.

The Solicitor General for respondent Judge.

F.A. Sugue & Elino B. Lingas for Philippine Tourism Authoirity


GUTIERREZ, JR., J.:

This is a petition for certiorari with preliminary injunction challenging the constitutionality of
Presidential Decree No. 564, the Revised Charter of the Philippine Tourism Authority, and
Proclamation No. 2052 declaring the barangays of Sibugay, Malubog, Babag and Sirao including the
proposed Lusaran Dam in the City of Cebu and in the municipalities of Argao and Dalaguete in the
province of Cebu as tourist zones. The petitioners ask that we restrain respondent Court of First
Instance of Cebu and the Philippine Tourism Authority (PTA) from enforcing and implementing the
writs of possession issued in four (4) expropriation cases filed by PTA against the petitioners: Civil
Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the Court of First Instance of Cebu
(Branch 1).

The Philippine Tourism Authority filed four (4) Complaints with the Court of First Instance of Cebu
City for the expropriation of some 282 hectares of rolling land situated in barangays Malubog and
Babag, Cebu City, under PTA's express authority "to acquire by purchase, by negotiation or by
condemnation proceedings any private land within and without the tourist zones" for the purposes
indicated in Section 5, paragraph B(2), of its Revised Charter (PD 564), more specifically, for the
development into integrated resort complexes of selected and well-defined geographic areas with
potential tourism value. As uniformly alleged in the complaints, the purposes of the expropriation are:

xxx xxx xxx

Plaintiff, in line with the policy of the government to promote tourism and
development of tourism projects will construct in Barangays Malubog, Busay and
Babag, all of Cebu City, a sports complex (basketball courts, tennis courts, volleyball
courts, track and field, baseball and softball diamonds, and swimming pools),
clubhouse, gold course, children's playground and a nature area for picnics and
horseback riding for the use of the public.

The development plan, covering approximately 1,000 hectares, includes the


establishment of an electric power grid in the area by the National Power
Corporation, thus assuring the supply of electricity therein for the benefit of the whole
community. Deep wells will also be constructed to generate water supply within the
area. Likewise, a complex sewerage and drainage system will be devised and
constructed to protect the tourists and nearby residents from the dangers of pollution.

Complimentary and support facilities for the project will be constructed, including
public rest houses, lockers, dressing rooms, coffee shops, shopping malls, etc. Said
facilities will create and offer employment opportunities to residents of the community
and further generate income for the whole of Cebu City.

Plaintiff needs the property above described which is directly covered by the
proposed golf court.

xxx xxx xxx

The defendants in Civil Cases Nos. R-20701 and R-21608 filed their respective Opposition with
Motion to Dismiss and/or Reconsideration. The defendants in Civil Case No. R-19562 filed a
manifestation adopting the answer of defendants in Civil Case No. R-19864. The defendants, now
petitioners, had a common allegation in that the taking is allegedly not impressed with public use
under the Constitution.

In their motions to dismiss, the petitioners alleged, in addition to the issue of public use, that there is
no specific constitutional provision authorizing the taking of private property for tourism purposes;
that assuming that PTA has such power, the intended use cannot be paramount to the determination
of the land as a land reform area; that limiting the amount of compensation by Legislative fiat is
constitutionally repugnant; and that since the land is under the land reform program, it is the Court of
Agrarian Relations and not the Court of First Instance that has jurisdiction over the expropriation
cases.

The Philippine Tourism Authority having deposited with The Philippine National Bank, Cebu City
Branch, an amount equivalent to 10% of the value of the properties pursuant to Presidential Decree
No. 1533. the lower court issued separate orders authorizing PTA to take immediate possession of
the premises and directing the issuance of writs of possession.

On May 25, 1982, petitioners filed this petition questioning the orders of the respondent Judge, The
respondents have correctly restated the grounds in the petition as follows:

xxx xxx xxx

A. The complaints for expropriation lack basis because the Constitution does not
provide for the expropriation of private property for tourism or other related purposes;

B. The writs of possession or orders authorizing PTA to take immediate possession


is premature because the "public use" character of the taking has not been
previously demonstrated;

C. The taking is not for public use in contemplation of eminent domain law;

D. The properties in question have been previously declared a land reform area;
consequently, the implementation of the social justice pro- ,vision of the Constitution
on agrarian reform is paramount to the right of the State to expropriate for the
purposes intended;

E. Proclamation No. 2052 declaring certain barangays in Cebu City, which include
the lands subject of expropriation as within a tourist zone, is unconstitutional for it
impairs the obligation of contracts; "F. Since the properties are within a land reform
area, it is the Court of Agrarian Relations, not the lower court, that has jurisdiction
pursuant to Pres. Decree No. 946;

F. The forcible ejectment of defendants from the premises constitutes a criminal act
under Pres. Decree No. 583;

In their memorandum, the petitioners have summarized the issues as follows:

I. Enforcement of the Writ of Possession is Premature:

II. Presidential Decree 564 Amending Presidential Decree l89 is Constitutionally


Repugnant:
III. The Condemnation is not for Public Use, Therefore, Unconstitutional:

IV. The Expropriation for Tourism Purposes of Lands Covered by the Land Reform
Program Violates the Constitution:

V. Presidential Proclamation 2052 is Unconstitutional:

VI. Presidential Decree No 1533 is Unconstitutional:

VII. The Court of First Instance has no Jurisdiction:

VIII. The Filing of the Present Petition is not Premature.

The issues raised by the petitioners revolve around the proposition that the actions to expropriate
their properties are constitutionally infirm because nowhere in the Constitution can a provision be
found which allows the taking of private property for the promotion of tourism.

The petitioners' arguments in their pleadings in support of the above proposition are subsumed
under the following headings:

1. Non-compliance with the "public use" requirement under the eminent domain
provision of the Bill of Rights.

2. Disregard of the land reform nature of the property being expropriated.

3. Impairment of the obligation of contracts.

There are three provisions of the Constitution which directly provide for the exercise of the power of
eminent domain. Section 2, Article IV states that private property shall not be taken for public use
without just compensation. Section 6, Article XIV allows the State, in the interest of national welfare
or defense and upon payment of just compensation to transfer to public ownership, utilities and other
private enterprises to be operated by the government. Section 13, Article XIV states that the
Batasang Pambansa may authorize upon payment of just compensation the expropriation of private
lands to be subdivided into small lots and conveyed at cost to deserving citizens.

While not directly mentioning the expropriation of private properties upon payment of just
compensation, the provisions on social justice and agrarian reforms which allow the exercise of
police power together with the power of eminent domain in the implementation of constitutional
objectives are even more far-reaching insofar as taking of private property is concerned.

Section 6, Article II provides:

Sec. 6. The State shall promote social justice to ensure the dignity, welfare, and
security of all the people. Towards its end, the State shall regulate the acquisition,
ownership, use, enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits.

xxx xxx xxx

Section 12, Article XIV provides:


See. 12. The State shall formulate and implement an agrarian reform program aimed
at emancipating the tenant from the bondage of the soil and achieving the goals
enunciated in this Constitution.

The equitable diffusion of property ownership in the promotion of social justice implies the exercise,
whenever necessary, of the power to expropriate private property. Likewise there can be no
meaningful agrarian reform program unless the power to expropriate is utilized.

We cite all the above provisions on the power to expropriate because of the petitioners' insistence on
a restrictive view of the eminent domain provision. The thrust of all constitutional provisions on
expropriation is in the opposite direction.

As early as 1919, this Court in Visayan Refining Co. v. Samus (40 Phil. 550) categorized the
restrictive view as wholly erroneous and based on a misconception of fundamentals.

The petitioners look for the word "tourism" in the Constitution. Understandably the search would be
in vain. The policy objectives of the framers can be expressed only in general terms such as social
justice, local autonomy, conservation and development of the national patrimony, public interest, and
general welfare, among others. The programs to achieve these objectives vary from time to time and
according to place, To freeze specific programs like Tourism into express constitutional provisions
would make the Constitution more prolix than a bulky code and require of the framers a prescience
beyond Delphic proportions. The particular mention in the Constitution of agrarian reform and the
transfer of utilities and other private enterprises to public ownership merely underscores the
magnitude of the problems sought to be remedied by these programs. They do not preclude nor limit
the exercise of the power of eminent domain for such purposes like tourism and other development
programs.

In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized that the power
of eminent domain is inseparable from sovereignty being essential to the existence of the State and
inherent in government even in its most primitive forms. The only purpose of the provision in the Bill
of Rights is to provide some form of restraint on the sovereign power. It is not a grant of authority -

The power of eminent domain does not depend for its existence on a specific grant in
the constitution. It is inherent in sovereignty and exists in a sovereign state without
any recognition of it in the constitution. The provision found in most of the state
constitutions relating to the taking of property for the public use do not by implication
grant the power to the government of the state, but limit a power which would
otherwise be without limit.

The constitutional restraints are public use and just compensation.

Do the purposes of the taking in this case constitute "public use"?

The petitioners ask us to adopt a strict construction and declare that "public use" means literally use
by the public and that "public use" is not synonymous with "public interest", "public benefit", or
"public welfare" and much less "public convenience. "

The petitioners face two major obstacles. First, their contention which is rather sweeping in its call
for a retreat from the public welfare orientation is unduly restrictive and outmoded. Second, no less
than the lawmaker has made a policy determination that the power of eminent domain may be
exercised in the promotion and development of Philippine tourism.
The restrictive view of public use may be appropriate for a nation which circumscribes the scope of
government activities and public concerns and which possesses big and correctly located public
lands that obviate the need to take private property for public purposes. Neither circumstance
applies to the Philippines. We have never been a laissez faire State, And the necessities which
impel the exertion of sovereign power are all too often found in areas of scarce public land or limited
government resources.

Certain aspects of parliamentary government were introduced by the 1973 amendments to the
Constitution with further modifications in the 1976 and 1981 amendments. Insofar as the executive
and legislative departments are concerned, the traditional concept of checks and balances in a
presidential form was considerably modified to remove some roadblocks in the expeditious
implementation of national policies. There was no such change for the judiciary. We remain as a
checking and balancing department even as all strive to maintain respect for constitutional
boundaries. At the same time, the philosophy of coordination in the pursuit of developmental goals
implicit in the amendments also constrains in the judiciary to defer to legislative discretion iii the
judicial review of programs for economic development and social progress unless a clear case of
constitutional infirmity is established. We cannot stop the legitimate exercise of power on an
invocation of grounds better left interred in a bygone age and time.* As we review the efforts of the
political departments to bring about self-sufficiency, if not eventual abundance, we continue to
maintain the liberal approach because the primary responsibility and the discretion belong to them.

There can be no doubt that expropriation for such traditions' purposes as the construction of roads,
bridges, ports, waterworks, schools, electric and telecommunications systems, hydroelectric power
plants, markets and slaughterhouses, parks, hospitals, government office buildings, and flood control
or irrigation systems is valid. However, the concept of public use is not limited to traditional
purposes. Here as elsewhere the Idea that "public use" is strictly limited to clear cases of "use by the
public" has been discarded.

In the United States, the rule was enunciated in Berman v. Parker (348 U.S. 25; 99 L. ed. 27) as
follows:

We do not sit to determine whether a particular housing project is or is not desirable.


The concept of the public welfare is broad and inclusive. See DayBrite Lighting, Inc.
v. Missouri, 342 US 421, 424, 96 L ed 469, 472, 72 S Ct 405. The values it
represents are spiritual as well as physical, aesthetic as well as monetary. It is within
the power of the legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as carefully
patrolled. In the present case, the Congress and its authorized agencies have made
determinations that take into account a wide variety of values. It is not for us to
reappraise them. If those who govern the District of Columbia decide that the
Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth
Amendment that stands in the way.

Once the object is within the authority of Congress, the right to realize it through the
exercise of eminent domain is clear. For the power of eminent domain is merely the
means to the end. See Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L
ed 808, 810, 14 S Ct 891; United States v. Gettysburg Electric R. Co. 160 US 668,
679, 40 L ed 576, 580, 16 S Ct 427.

In an earlier American case, where a village was isolated from the rest of North Carolina because of
the flooding of the reservoir of a dam thus making the provision of police, school, and health services
unjustifiably expensive, the government decided to expropriate the private properties in the village
and the entire area was made part of an adjoining national park. The district court and the appellate
court ruled against the expropriation or excess condemnation. The Court of Appeals applied the "use
by the public" test and stated that the only land needed for public use was the area directly flooded
by the reservoir. The village may have been cut off by the dam but to also condemn it was excess
condemnation not valid under the "Public use" requirement. The U.S. Supreme Court in United
States ex rel TVA v. Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It
stated:

The Circuit Court of Appeals, without expressly relying on a compelling rule of


construction that would give the restrictive scope to the T.V.A. Act given it by the
district court, also interpreted the statute narrowly. It first analyzed the facts by
segregating the total problem into distinct parts, and thus came to the conclusion that
T.V.A.'s purpose in condemning the land in question was only one to reduce its
liability arising from the destruction of the highway. The Court held that use of the
lands for that purpose is a "private" and not a "public use" or, at best, a "public use"
not authorized by the statute. we are unable to agree with the reasoning and
conclusion of the Circuit Court of Appeals.

We think that it is the function of Congress to decide what type of taking is for a
public use and that the agency authorized to do the taking may do so to the still
extent of its statutory authority, United States v. Gettysburg Electric R. Co. 160 US
668, 679, 40 L ed 576, 580, 16 S Ct 427. ...

xxx xxx xxx

... But whatever may be the scope of the judicial power to determine what is a "public
use" in Fourteenth Amendment controversies, this Court has said that when
Congress has spoken on this subject "Its decision is entitled to deference until it is
shown to involve an impossibility." Old Dominion Land Co. v. United States, 269, US
55, 66, 70 L ed 162, 46 S Ct 39. Any departure from this judicial restraint would result
in courts deciding on what is and is not a governmental function and in their
invalidating legislation on the basis of their view on that question at the moment of
decision, a practice which has proved impracticable in other fields. See Case v.
Bowles decided February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438.
New York v. United States, 326 US 572 ante 326, 66 S Ct 310). We hold that the
T.V.A. took the tracts here involved for a public purpose, if, as we think is the case,
Congress authorized the Authority to acquire, hold, and use the lands to carry out the
purposes of the T.V.A. Act.

In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the statutory and
judicial trend as follows:

The taking to be valid must be for public use. There was a time when it was felt that a
literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case of streets or parks.
Otherwise, expropriation is not allowable. It is not any more. As long as the purpose
of the taking is public, then the power of eminent domain comes into play. As just
noted, the constitution in at least two cases, to remove any doubt, determines what is
public use. One is the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)

The petitioners' contention that the promotion of tourism is not "public use" because private
concessioners would be allowed to maintain various facilities such as restaurants, hotels, stores, etc.
inside the tourist complex is impressed with even less merit. Private bus firms, taxicab fleets,
roadside restaurants, and other private businesses using public streets end highways do not
diminish in the least bit the public character of expropriations for roads and streets. The lease of
store spaces in underpasses of streets built on expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively to private airlines and shipping companies
are still for public use. The expropriation of private land for slum clearance and urban development is
for a public purpose even if the developed area is later sold to private homeowners, commercial
firms, entertainment and service companies, and other private concerns.

The petitioners have also failed to overcome the deference that is appropriately accorded to
formulations of national policy expressed in legislation. The rule in Berman u. Parker (supra) of
deference to legislative policy even if such policy might mean taking from one private person and
conferring on another private person applies as well as in the Philippines.

... Once the object is within the authority of Congress, the means by which it will be
attained is also for Congress to determine. Here one of the means chosen is the use
of private enterprise for redevelopment of the area. Appellants argue that this makes
the project a taking from one businessman for the benefit of another businessman.
But the means of executing the project are for Congress and Congress alone to
determine, once the public purpose has been established. Selb Luxton v. North River
Bridge Co. (US) supra; cf. Highland v. Russel Car & Snow Plow Co. 279 US 253, 73
L ed 688, 49 S Ct 314. The public end may be as well or better served through an
agency of private enterprise than through a department of government-or so the
Congress might conclude. We cannot say that public ownership is the sole method of
promoting the public purposes of community redevelopment projects. What we have
said also disposes of any contention concerning the fact that certain property owners
in the area may be permitted to repurchase their properties for redevelopment in
harmony with the over-all plan. That, too, is a legitimate means which Congress and
its agencies may adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348 US 33,
34)

An examination of the language in the 1919 cases of City of Manila v. Chinese Community of
Manila (40 Phil, 349) and Visayan Refining Co. vs. Camus, earlier cited, shows that from the very
start of constitutional government in our country judicial deference to legislative policy has been
clear and manifest in eminent domain proceedings.

The expressions of national policy are found in the revised charter of the Philippine Tourism
Authority, Presidential Decree No. 564:

WHEREAS, it is the avowed aim of the government to promote Philippine tourism


and work for its accelerated and balanced growth as well as for economy and
expediency in the development of the tourism plant of the country;

xxx xxx xxx

SECTION 1. Declaration of Policy. - It is hereby declared to be the policy of the State


to promote, encourage, and develop Philippine tourism as an instrument in
accelerating the development of the country, of strengthening the country's foreign
exchange reserve position, and of protecting Philippine culture, history, traditions and
natural beauty, internationally as well as domestically.

The power of eminent domain is expressly provided for under Section 5 B(2) as follows:

xxx xxx xxx

2. Acquisition of Private Lands, Power of Eminent Domain. — To acquire by


purchase, by negotiation or by condemnation proceedings any private land within
and without the tourist zones for any of the following reasons: (a) consolidation of
lands for tourist zone development purposes, (b) prevention of land speculation in
areas declared as tourist zones, (c) acquisition of right of way to the zones, (d)
protection of water shed areas and natural assets with tourism value, and (e) for any
other purpose expressly authorized under this Decree and accordingly, to exercise
the power of eminent domain under its own name, which shall proceed in the manner
prescribed by law and/or the Rules of Court on condemnation proceedings. The
Authority may use any mode of payment which it may deem expedient and
acceptable to the land owners: Provided, That in case bonds are used as payment,
the conditions and restrictions set forth in Chapter III, Section 8 to 13 inclusively, of
this Decree shall apply.

xxx xxx xxx

The petitioners rely on the Land Reform Program of the government in raising their second
argument. According to them, assuming that PTA has the right to expropriate, the properties subject
of expropriation may not be taken for the purposes intended since they are within the coverage of
"operation land transfer" under the land reform program. Petitioners claim that certificates of land
transfer (CLT'S) and emancipation patents have already been issued to them thereby making the
lands expropriated within the coverage of the land reform area under Presidential Decree No. 2; that
the agrarian reform program occupies a higher level in the order of priorities than other State policies
like those relating to the health and physical well- being of the people; and that property already
taken for public use may not be taken for another public use.

We have considered the above arguments with scrupulous and thorough circumspection. For indeed
any claim of rights under the social justice and land reform provisions of the Constitution deserves
the most serious consideration. The Petitioners, however, have failed to show that the area being
developed is indeed a land reform area and that the affected persons have emancipation patents
and certificates of land transfer.

The records show that the area being developed into a tourism complex consists of more than 808
hectares, almost all of which is not affected by the land reform program. The portion being
expropriated is 282 hectares of hilly and unproductive land where even subsistence farming of crops
other than rice and corn can hardly survive. And of the 282 disputed hectares, only 8,970 square
meters-less than one hectare-is affected by Operation Land Transfer. Of the 40 defendants, only two
have emancipation patents for the less than one hectare of land affected. And this 8,970 square
meters parcel of land is not even within the sports complex proper but forms part of the 32 hectares
resettlement area where the petitioners and others similarly situated would be provided with proper
housing, subsidiary employment, community centers, schools, and essential services like water and
electricity-which are non-existent in the expropriated lands. We see no need under the facts of this
petition to rule on whether one public purpose is superior or inferior to another purpose or engage in
a balancing of competing public interests. The petitioners have also failed to overcome the showing
that the taking of the 8,970 square meters covered by Operation Land Transfer forms a necessary
part of an inseparable transaction involving the development of the 808 hectares tourism complex.
And certainly, the human settlement needs of the many beneficiaries of the 32 hectares resettlement
area should prevail over the property rights of two of their compatriots.

The invocation of the contracts clause has no merit. The non-impairment clause has never been a
barrier to the exercise of police power and likewise eminent domain. As stated in Manigault v.
Springs (199 U.S. 473) "parties by entering into contracts may not stop the legislature from enacting
laws intended for the public good."

The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544) which involved the
expropriation of land for a public plaza. The Court stated:

xxx xxx xxx

... What is claimed is that there must be a showing of necessity for such
condemnation and that it was not done in this case in support of such a view,
reliance is placed on City of Manila v. Arenano Law Colleges. (85 Phil. 663 [1950])
That doctrine itself is based on the earlier case of City of Manila v. Chinese
Community of Manila, (50 Phil. 349) also, like Camus, a 1919 decision. As could be
discerned, however, in the Arellano Law Colleges decision. it was the antiquarian
view of Blackstone with its sanctification of the right to one's estate on which such an
observation was based. As did appear in his Commentaries: "So great is the regard
of the law for private property that it will not, authorize the least violation of it, even
for the public good, unless there exists a very great necessity thereof." Even the
most , cursory glance at such well-nigh absolutist concept of property would show its
obsolete character at least for Philippine constitutional law. It cannot survive the test
of the 1935 Constitution with its mandates on social justice and protection to labor.
(Article II, Section 5 of the 1935 Constitution reads: "The promotion of social justice
to unsure the well-being and economic security of all the people should be the
concern of the State." Article XI, Section 6 of the same Constitution provides: "The
State shall afford protection to labor, especially to working women and minors, and
shall regulate the relation between landowner and tenant, and between labor and
capital in industry and in agriculture. The State may provide for compulsory
arbitration.") What is more, the present Constitution pays even less heed to the
claims of property and rightly so. After stating that the State shall promote social
justice, it continues: "Towards this end, the State shall regulate the acquisition,
ownership, use, enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits." (That is the second sentence of Article II, Section 6
of the Constitution) If there is any need for explicit confirmation of what was set forth
in Presidential Decree No. 42, the above provision supplies it. Moreover, that is
merely to accord to what of late has been the consistent course of decisions of this
Court whenever property rights are pressed unduly. (Cf. Alalayan v. National Power
Corporation, L-24396, July 29, 1968, 24 SCRA 172; Agricultural Credit and
Cooperative Financing Administration v. Confederation of Unions, L-21484, Nov. 29,
1969, 30 SCRA 649; Edu v. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481; Phil.
Virginia Tobacco Administration v. Court of Industrial Relations, L-32052, July 25,
1975, 65 SCRA 416) The statement therefore, that there could be discerned a
constitutional objection to a lower court applying a Presidential Decree, when it
leaves no doubt that a grantee of the power of eminent domain need not prove the
necessity for the expropriation, carries its own refutation.
xxx xxx xxx

The issue of prematurity is also raised by the petitioners. They claim that since the necessity for the
taking has not been previously established, the issuance of the orders authorizing the PTA to take
immediate possession of the premises, as well as the corresponding writs of possession was
premature.

Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the government,
its agency or instrumentality, as plaintiff in an expropriation proceedings is authorized to take
immediate possession, control and disposition of the property and the improvements, with power of
demolition, notwithstanding the pendency of the issues before the court, upon deposit with the
Philippine National Bank of an amount equivalent to 10% of the value of the property expropriated.
The issue of immediate possession has been settled in Arce v. Genato (supra). In answer to the
issue:

... whether the order of respondent Judge in an expropriation case allowing the other
respondent, ... to take immediate possession of the parcel of land sought to be
condemned for the beautification of its public plaza, without a prior hearing to
determine the necessity for the exercise of the power of eminent domain, is vitiated
by jurisdictional defect, ...

this Court held that:

... It is not disputed that in issuing such order, respondent Judge relied on
Presidential Decree No. 42 issued on the 9th of November, 1972. (Presidential
Decree No. 42 is entitled "Authorizing the Plaintiff in Eminent Domain Proceedings to
Take Possession of the Property involved Upon Depositing the Assessed Value for
Purposes of Taxation.") The question as thus posed does not occasion any difficulty
as to the answer to be given. This petition for certiorari must fail, there being no
showing that compliance with the Presidential Decree, which under the Transitory
Provisions is deemed a part of the law of the land, (According to Article XVII, Section
3 par. (2) of the Constitution: "All proclamations, orders, decrees, instructions and
acts promulgated, issued, or done by the incumbent President shall be part of the
law of the land, and shall remain valid, legal, binding, and effective even after lifting
of martial law or the ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations. orders, decrees instructions, or other acts
of the incumbent President, or unless expressly and explicitly modified or repealed
by the regular National Assembly") would be characterized as either an act in excess
of jurisdiction or a grave abuse of discretion. So we rule.

Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449-50, June 9, 1980), this Court
held:

... condemnation or expropriation proceedings is in the nature of one that is quasi-in-


rem wherein the fact that the owner of the property is made a party is not essentially
indispensable insofar was least as it conncerns is the immediate taking of
possession of the property and the preliminary determination of its value, including
the amount to be deposited.

In their last argument, the petitioners claim that a consequence of the expropriation proceedings
would be their forcible ejectment. They contend that such forcible ejectment is a criminal act under
Presidential Decree No. 583. This contention is not valid. Presidential Decree No. 583 prohibits the
taking cognizance or implementation of orders designed to obstruct the land reform program. It
refers to the harassment of tenant- farmers who try to enforce emancipation rights. It has nothing to
do with the expropriation by the State of lands needed for public purposes. As a matter of fact, the
expropriated area does not appear in the master lists of the Ministry of Agrarian Reforms as a
teranted area. The petitioners' bare allegations have not been supported with particulars pointing to
specific parcels which are subject of tenancy contracts. The petitioners may be owner-tillers or may
have some form of possessory or ownership rights but there has been no showing of their being
tenants on the disputed lands.

The petitioners have failed to overcome the burden of anyone trying to strike down a statute or
decree whose avowed purpose is the legislative perception is the public good. A statute has in its
favor the presumption of validity. All reasonable doubts should be resolved in favor of the
constitutionality of a law. The courts will not set aside a law as violative of the Constitution except in
a clear case (People v. Vera, 65 Phil. 56). And in the absence of factual findings or evidence to rebut
the presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor of Manila,
20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424).

The public respondents have stressed that the development of the 808 hectares includes plans that
would give the petitioners and other displaced persons productive employment, higher incomes,
decent housing, water and electric facilities, and better living standards. Our dismissing this petition
is, in part, predicated on those assurances. The right of the PTA to proceed with the expropriation of
the 282 hectares already Identified as fit for the establishment of a resort complex to promote
tourism is, therefore, sustained.

WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of merit.

SO ORDERED.