LGC Sec.

17-22,48-59

EN BANC In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to
the declared national policy of the "new restored democracy" and the people's will
as expressed in the 1987 Constitution. The decree is said to have a "gambling
objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of
Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second
G.R. No. 91649 May 14, 1991 Amended Petition; p. 21, Rollo).

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES The procedural issue is whether petitioners, as taxpayers and practicing lawyers
MARANAN AND LORENZO SANCHEZ,petitioners, (petitioner Basco being also the Chairman of the Committee on Laws of the City
vs. Council of Manila), can question and seek the annulment of PD 1869 on the alleged
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION grounds mentioned above.
(PAGCOR), respondent.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by
H.B. Basco & Associates for petitioners. virtue of P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D.
Valmonte Law Offices collaborating counsel for petitioners. 1067-B also dated January 1, 1977 "to establish, operate and maintain gambling
Aguirre, Laborte and Capule for respondent PAGCOR. casinos on land or water within the territorial jurisdiction of the Philippines." Its
operation was originally conducted in the well known floating casino "Philippine
Tourist." The operation was considered a success for it proved to be a potential
source of revenue to fund infrastructure and socio-economic projects, thus, P.D.
PARAS, J.: 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective.

A TV ad proudly announces: Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable
the Government to regulate and centralize all games of chance authorized by
"The new PAGCOR — responding through responsible gaming." existing franchise or permitted by law, under the following declared policy —

But the petitioners think otherwise, that is why, they filed the instant petition seeking Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the
to annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter — State to centralize and integrate all games of chance not heretofore
PD 1869, because it is allegedly contrary to morals, public policy and order, and authorized by existing franchises or permitted by law in order to attain the
because — following objectives:

A. It constitutes a waiver of a right prejudicial to a third person with a right (a) To centralize and integrate the right and authority to operate and
recognized by law. It waived the Manila City government's right to impose conduct games of chance into one corporate entity to be controlled,
taxes and license fees, which is recognized by law; administered and supervised by the Government.

B. For the same reason stated in the immediately preceding paragraph, the
law has intruded into the local government's right to impose local taxes and
license fees. This, in contravention of the constitutionally enshrined
principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it
legalizes PAGCOR — conducted gambling, while most other forms of
gambling are outlawed, together with prostitution, drug trafficking and other
vices;
D. It violates the avowed trend of the Cory government away from
monopolistic and crony economy, and toward free enterprise and
privatization. (p. 2, Amended Petition; p. 7, Rollo)
(b) To establish and operate clubs and casinos, for amusement and
recreation, including sports gaming pools, (basketball, football, lotteries,
etc.) and such other forms of amusement and recreation including games
of chance, which may be allowed by law within the territorial jurisdiction of
the Philippines and which will: (1) generate sources of additional revenue
to fund infrastructure and socio-civic projects, such as flood control
programs, beautification, sewerage and sewage projects, Tulungan ng
Bayan Centers, Nutritional Programs, Population Control and such other
essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions; and
(3) minimize, if not totally eradicate, all the evils, malpractices and
corruptions that are normally prevalent on the conduct and operation of
gambling clubs and casinos without direct government involvement.
(Section 1, P.D. 1869)

1|Page

To attain these objectives PAGCOR is given territorial jurisdiction all over the
Philippines. Under its Charter's repealing clause, all laws, decrees, executive
orders, rules and regulations, inconsistent therewith, are accordingly repealed,
amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next
to the Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone,
PAGCOR earned P3.43 Billion, and directly remitted to the National Government a
total of P2.5 Billion in form of franchise tax, government's income share, the
President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored
other socio-cultural and charitable projects on its own or in cooperation with various
governmental agencies, and other private associations and organizations. In its 3
1/2 years of operation under the present administration, PAGCOR remitted to the
government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was
employing 4,494 employees in its nine (9) casinos nationwide, directly supporting
the livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that
the same is "null and void" for being "contrary to morals, public policy and public
order," monopolistic and tends toward "crony economy", and is violative of the equal
protection clause and local autonomy as well as for running counter to the state
policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family)
and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and
the most deliberate consideration by the Court, involving as it does the exercise of
what has been described as "the highest and most delicate function which belongs
to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano
v. Martinez, 146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the government We need not be reminded of the time-honored
principle, deeply ingrained in our jurisprudence, that a statute is presumed to be
valid. Every presumption must be indulged in favor of its constitutionality. This is not
to say that We approach Our task with diffidence or timidity. Where it is clear that
the legislature or the executive for that matter, has over-stepped the limits of its
authority under the constitution, We should not hesitate to wield the axe and let it
fall heavily, as fall it must, on the offending statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr.
Justice Zaldivar underscored the —
. . . thoroughly established principle which must be followed in all cases
where questions of constitutionality as obtain in the instant cases are
involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt; that a law may work hardship does not render
LGC Sec. 17-22,48-59
it unconstitutional; that if any reasonable basis may be conceived which
supports the statute, it will be upheld and the challenger must negate all
possible basis; that the courts are not concerned with the wisdom, justice,
policy or expediency of a statute and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be adopted.
(Danner v. Hass, 194 N.W. 2nd534, 539; Spurbeck v. Statton, 106
N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA
734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55
[1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited
in Citizens Alliance for Consumer Protection v. Energy Regulatory Board,
162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the
legal personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping
with the Court's duty, under the 1987 Constitution, to determine whether or not the
other branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to
them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the
cases before us, We hold that the same is satisfied by the petitioners and
intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures
complained of. And even if, strictly speaking they are not covered by the
definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and resolving
the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed
the objection that they were not proper parties and ruled 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 since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues
raised.
2|Page

Gambling in all its forms, unless allowed by law, is generally prohibited. But the
prohibition of gambling does not mean that the Government cannot regulate it in the
exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been
defined as the "state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare." (Edu v. Ericta, 35 SCRA
481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or
property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon,
163 SCRA 386).
Its scope, ever-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 assuming the greatest benefits. (Edu
v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the charter. Along with the taxing power and eminent domain, it is inborn in
the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance.
Marshall, to whom the expression has been credited, refers to it succinctly as the
plenary power of the state "to govern its citizens". (Tribe, American Constitutional
Law, 323, 1978). The police power of the State is a power co-extensive with self-
protection and is most aptly termed the "law of overwhelming necessity." (Rubi v.
Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent,
and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic
force that enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and
centralize thru an appropriate institution all games of chance authorized by existing
franchise or permitted by law" (1st whereas clause, PD 1869). As was subsequently
proved, regulating and centralizing gambling operations in one corporate entity —
the PAGCOR, was beneficial not just to the Government but to society in general. It
is a reliable source of much needed revenue for the cash strapped Government. It
provided funds for social impact projects and subjected gambling to "close scrutiny,
regulation, supervision and control of the Government" (4th Whereas Clause, PD
1869). With the creation of PAGCOR and the direct intervention of the Government,
the evil practices and corruptions that go with gambling will be minimized if not totally
eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of
Manila to impose taxes and legal fees; that the exemption clause in P.D. 1869 is
violative of the principle of local autonomy. They must be referring to Section 13 par.
(2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any
LGC Sec. 17-22,48-59
"tax of any kind or form, income or otherwise, as well as fees, charges or levies of
whatever nature, whether National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or
form, income or otherwise as well as fees, charges or levies of whatever
nature, whether National or Local, shall be assessed and collected under
this franchise from the Corporation; nor shall any form or tax or charge
attach in any way to the earnings of the Corporation, except a franchise tax
of five (5%) percent of the gross revenues or earnings derived by the
Corporation from its operations under this franchise. Such tax shall be due
and payable quarterly to the National Government and shall be in lieu of all
kinds of taxes, levies, fees or assessments of any kind, nature or
description, levied, established or collected by any municipal, provincial or
national government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to
impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105
Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or
statute must plainly show an intent to confer that power or the municipality cannot
assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must
always yield to a legislative act which is superior having been passed upon by the
state itself which has the "inherent power to tax" (Bernas, the Revised [1973]
Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be
stressed that "municipal corporations are mere creatures of Congress" (Unson v.
Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and
abolish municipal corporations" due to its "general legislative powers" (Asuncion v.
Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has
the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July
2, 1950). And if Congress can grant the City of Manila the power to tax certain
matters, it can also provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been
revoked. As early as 1975, the power of local governments to regulate gambling thru
the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was
vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority
of chartered cities and other local governments to issue license, permit or
other form of franchise to operate, maintain and establish horse and dog
race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and
establish, horse and dog race tracks, jai-alai and other forms of gambling
3|Page

shall be issued by the national government upon proper application and
verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or
permits" for the operation of gambling. Necessarily, the power to demand or collect
license fees which is a consequence of the issuance of "licenses or permits" is no
longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National
Government. PAGCOR is a government owned or controlled corporation with an
original charter, PD 1869. All of its shares of stocks are owned by the National
Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also
exercises regulatory powers thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of
the affiliated entities, and shall exercise all the powers, authority and the
responsibilities vested in the Securities and Exchange Commission over
such affiliating entities mentioned under the preceding section, including,
but not limited to amendments of Articles of Incorporation and By-Laws,
changes in corporate term, structure, capitalization and other matters
concerning the operation of the affiliated entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding, except
only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter
role is governmental, which places it in the category of an agency or instrumentality
of the Government. Being an instrumentality of the Government, PAGCOR should
be and actually is exempt from local taxes. Otherwise, its operation might be
burdened, impeded or subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede,
burden or in any manner control the operation of constitutional laws
enacted by Congress to carry into execution the powers vested in the
federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
Justice Holmes, speaking for the Supreme Court, made reference to the
entire absence of power on the part of the States to touch, in that way
(taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a way as to
prevent it from consummating its federal responsibilities, or even to
seriously burden it in the accomplishment of them. (Antieau, Modern
Constitutional Law, Vol. 2, p. 140, emphasis supplied)
LGC Sec. 17-22,48-59
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activities or
enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US
42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc
Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or
creation of the very entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be
violated by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution
(on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own
source of revenue and to levy taxes, fees, and other charges subject to
such guidelines and limitation as the congress may provide, consistent with
the basic policy on local autonomy. Such taxes, fees and charges shall
accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to
"limitations" which Congress may provide by law. Since PD 1869 remains an
"operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987
Constitution), its "exemption clause" remains as an exception to the exercise of the
power of local governments to impose taxes and fees. It cannot therefore be violative
but rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means
"decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436,
as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First
Ed., 1988, p. 374). It does not make local governments sovereign within the state or
an "imperium in imperio."
Local Government has been described as a political subdivision of a nation
or state which is constituted by law and has substantial control of local
affairs. In a unitary system of government, such as the government under
the Philippine Constitution, local governments can only be an intra
sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only mean
a measure of decentralization of the function of government. (emphasis
supplied)
As to what state powers should be "decentralized" and what may be delegated to
local government units remains a matter of policy, which concerns wisdom. It is
therefore a political question. (Citizens Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 539).
4|Page

What is settled is that the matter of regulating, taxing or otherwise dealing with
gambling is a State concern and hence, it is the sole prerogative of the State to
retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or
express charter power is generally necessary to empower the local
corporation to deal with the subject. . . . In the absence of express grant of
power to enact, ordinance provisions on this subject which are inconsistent
with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-
Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal.
99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan
Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the
Constitution, because "it legalized PAGCOR — conducted gambling, while most
gambling are outlawed together with prostitution, drug trafficking and other vices"
(p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture
ignores the well-accepted meaning of the clause "equal protection of the laws." The
clause does not preclude classification of individuals who may be accorded different
treatment under the law as long as the classification is not unreasonable or arbitrary
(Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal
force on all persons or things to be conformable to Article III, Section 1 of the
Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing
classes of individuals or objects upon which different rules shall operate (Laurel v.
Misa, 43 O.G. 2847). The Constitution does not require situations which are different
in fact or opinion to be treated in law as though they were the same (Gomez v.
Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the
equal protection is not clearly explained in the petition. The mere fact that some
gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended
by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42)
are legalized under certain conditions, while others are prohibited, does not render
the applicable laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be
overthrown because there are other instances to which it might have been
applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all
occupations called by the same name must be treated the same way; the
state may do what it can to prevent which is deemed as evil and stop short
of those cases in which harm to the few concerned is not less than the
LGC Sec. 17-22,48-59
harm to the public that would insure if the rule laid down were made
mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory
Government away from monopolies and crony economy and toward free enterprise
and privatization" suffice it to state that this is not a ground for this Court to nullify
P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is
for the Executive Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what
the law is and not what the law should be.1âwphi1 Under our system of
government, policy issues are within the domain of the political branches
of government and of the people themselves as the repository of all state
power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public
interest so requires. No combinations in restraint of trade or unfair
competition shall be allowed. (Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily
prohibited by the Constitution. The state must still decide whether public interest
demands that monopolies be regulated or prohibited. Again, this is a matter of policy
for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity)
12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article
XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles and, policies.
As such, they are basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-
executing principles ready for enforcement through the courts. They were
rather directives addressed to the executive and the legislature. If the
executive and the legislature failed to heed the directives of the articles the
available remedy was not judicial or political. The electorate could express
their displeasure with the failure of the executive and the legislature
through the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v.
Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82
SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified,
it must be shown that there is a clear and unequivocal breach of the Constitution,
not merely a doubtful and equivocal one. In other words, the grounds for nullity must
be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who
petition this Court to declare a law, or parts thereof, unconstitutional must clearly
5|Page

establish the basis for such a declaration. Otherwise, their petition must fail. Based
on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869,
the Court finds that petitioners have failed to overcome the presumption. The
dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains
a wise legislation considering the issues of "morality, monopoly, trend to free
enterprise, privatization as well as the state principles on social justice, role of youth
and educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 521 —
Presidential Decree No. 1956, as amended by Executive Order No. 137
has, in any case, in its favor the presumption of validity and constitutionality
which petitioners Valmonte and the KMU have not overturned. Petitioners
have not undertaken to identify the provisions in the Constitution which they
claim to have been violated by that statute. This Court, however, is not
compelled to speculate and to imagine how the assailed legislation may
possibly offend some provision of the Constitution. The Court notes,
further, in this respect that petitioners have in the main put in question the
wisdom, justice and expediency of the establishment of the OPSF, issues
which are not properly addressed to this Court and which this Court may
not constitutionally pass upon. Those issues should be addressed rather
to the political departments of government: the President and the
Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is
precisely so when the gambling resorted to is excessive. This excessiveness
necessarily depends not only on the financial resources of the gambler and his
family but also on his mental, social, and spiritual outlook on life. However, the mere
fact that some persons may have lost their material fortunes, mental control,
physical health, or even their lives does not necessarily mean that the same are
directly attributable to gambling. Gambling may have been the antecedent, but
certainly not necessarily the cause. For the same consequences could have been
preceded by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Separate Opinions
PADILLA, J., concurring:
LGC Sec. 17-22,48-59
I concur in the result of the learned decision penned by my brother Mr. Justice Paras.
This means that I agree with the decision insofar as it holds that the prohibition,
control, and regulation of the entire activity known as gambling properly pertain to
"state policy." It is, therefore, the political departments of government, namely, the
legislative and the executive that should decide on what government should do in
the entire area of gambling, and assume full responsibility to the people for such
policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in areas
which fall within their authority, except only when such policies pose a clear and
present danger to the life, liberty or property of the individual. This case does not
involve such a factual situation.
However, I hasten to make of record that I do not subscribe to gambling in any form.
It demeans the human personality, destroys self-confidence and eviscerates one's
self-respect, which in the long run will corrode whatever is left of the Filipino moral
character. Gambling has wrecked and will continue to wreck families and homes; it
is an antithesis to individual reliance and reliability as well as personal industry which
are the touchstones of real economic progress and national development.
Gambling is reprehensible whether maintained by government or privatized. The
revenues realized by the government out of "legalized" gambling will, in the long run,
be more than offset and negated by the irreparable damage to the people's moral
values.
Also, the moral standing of the government in its repeated avowals against "illegal
gambling" is fatally flawed and becomes untenable when it itself engages in the very
activity it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity
referred to therein as gambling, which is legal only because it is authorized by law
and run by the government, with the activity known as prostitution. Would
prostitution be any less reprehensible were it to be authorized by law, franchised,
and "regulated" by the government, in return for the substantial revenues it would
yield the government to carry out its laudable projects, such as infrastructure and
social amelioration? The question, I believe, answers itself. I submit that the sooner
the legislative department outlaws all forms of gambling, as a fundamental state
policy, and the sooner the executive implements such policy, the better it will be for
the nation.
Melencio-Herrera, J., concur.
6|Page
 LGC Sec. 17-22,48-59

S E C O N D D I V I S I O N portion of her property to be used for the sports development and recreational
activities of the residents of Barangay Caniogan. This was pursuant to Ordinance
No. 42, Series of 1993 enacted by the then Sangguniang Bayan of Pasig.
LOURDES DE LA PAZ MASIKIP, G.R. No. 136349
Petitioner, Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time
the purpose was allegedly in line with the program of the Municipal Government to
Present: provide land opportunities to deserving poor sectors of our community.

- versus - On May 2, 1994, petitioner sent a reply to respondent stating that the intended
PUNO, J., Chairman, expropriation of her property is unconstitutional, invalid, and oppressive, as the area
SANDOVAL-GUTIERREZ, of her lot is neither sufficient nor suitable to provide land opportunities to deserving
CORONA, poor sectors of our community.
THE CITY OF PASIG, HON. AZCUNA, and
MARIETTA A. LEGASPI, in her GARCIA, JJ. In its letter of December 20, 1994, respondent reiterated that the purpose of the
capacity as Presiding Judge of the expropriation of petitioners property is to provide sports and recreational facilities to
Regional Trial Court of Pasig City, its poor residents.
Branch 165 and THE COURT OF Promulgated:
APPEALS, Subsequently, on February 21, 1995, respondent filed with the trial court a complaint
Respondents. for expropriation, docketed as SCA No. 873. Respondent prayed that the trial court,
January 23, 2006 after due notice and hearing, issue an order for the condemnation of the property;
x-----------------------------------------------------------------------------------------x that commissioners be appointed for the purpose of determining the just
compensation; and that judgment be rendered based on the report of the
commissioners.
DECISION
On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following
grounds:

SANDOVAL GUTIERREZ, J.: I

PLAINTIFF HAS NO CAUSE OF ACTION FOR THE
EXERCISE OF THE POWER OF EMINENT DOMAIN,
Where the taking by the State of private property is done for the benefit of a small CONSIDERING THAT:
community which seeks to have its own sports and recreational facility,
notwithstanding that there is such a recreational facility only a short distance away, (A) THERE IS NO GENUINE
such taking cannot be considered to be for public use. Its expropriation is not valid. NECESSITY FOR THE TAKING OF
In this case, the Court defines what constitutes a genuine necessity for public use. THE PROPERTY SOUGHT TO BE
EXPROPRIATED.
This petition for review on certiorari assails the Decision[1] of the Court of Appeals
dated October 31, 1997 in CA-G.R. SP No. 41860 affirming the Order[2] of the (B) PLAINTIFF HAS ARBITRARILY
Regional Trial Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A. No. 873. AND CAPRICIOUSLY CHOSEN THE
Likewise assailed is the Resolution[3] of the same court dated November 20, 1998 PROPERTY SOUGHT TO BE
denying petitioners Motion for Reconsideration. EXPROPRIATED.

The facts of the case are: (C) EVEN

ASSUMING ARGUENDO THAT
Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with DEFENDANTS PROPERTY MAY BE
an area of 4,521 square meters located at Pag-Asa, Caniogan, Pasig City, Metro EXPROPRIATED BY PLAINTIFF,
Manila. THE FAIR MARKET VALUE OF THE
PROPERTY TO BE
In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig, EXPROPRIATED FAR EXCEEDS
respondent, notified petitioner of its intention to expropriate a 1,500 square meter

7|Page
 LGC Sec. 17-22,48-59

SEVENTY-EIGHT THOUSAND petitioner to file with the Court of Appeals a special civil action for certiorari, docketed
PESOS (P78,000.00) as CA-G.R. SP No. 41860. On October 31, 1997, the Appellate Court dismissed the
petition for lack of merit. Petitioners Motion for Reconsideration was denied in a
Resolution dated November 20, 1998.

Hence, this petition anchored on the following grounds:

II
THE QUESTIONED DECISION DATED 31 OCTOBER
PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM 1997 (ATTACHMENT A) AND RESOLUTION DATED
AND SUBSTANCE, CONSIDERING THAT: 20 NOVEMBER 1998 (ATTACHMENT B) ARE
CONTRARY TO LAW, THE RULES OF COURT AND
(A) PLAINTIFF FAILS TO ALLEGE JURISPRUDENCE CONSIDERING THAT:
WITH CERTAINTY THE PURPOSE
OF THE EXPROPRIATION. I

(B) PLAINTIFF HAS FAILED TO A. THERE IS NO EVIDENCE TO

COMPLY WITH THE PROVE THAT THERE IS
PREREQUISITES LAID DOWN IN GENUINE NECESSITY
SECTION 34, RULE VI OF THE FOR THE TAKING OF THE
RULES AND REGULATIONS PETITIONERS PROPERTY.
IMPLEMENTING THE LOCAL
GOVERNMENT CODE; THUS, THE B. THERE IS NO EVIDENCE TO
INSTANT EXPROPRIATION PROVE THAT THE PUBLIC
PROCEEDING IS PREMATURE. USE REQUIREMENT FOR
THE EXERCISE OF THE
III POWER OF EMINENT
DOMAIN HAS BEEN
THE GRANTING OF THE EXPROPRIATION WOULD COMPLIED WITH.
VIOLATE SECTION 261 (V) OF THE OMNIBUS
ELECTION CODE. C. THERE IS NO EVIDENCE TO
PROVE THAT
IV RESPONDENT CITY OF
PASIG HAS COMPLIED
PLAINTIFF CANNOT TAKE POSSESSION OF THE WITH ALL CONDITIONS
SUBJECT PROPERTY BY MERELY DEPOSITING AN PRECEDENT FOR THE
AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF EXERCISE OF THE
THE VALUE OF THE PROPERTY BASED ON THE POWER OF EMINENT
CURRENT TAX DECLARATION OF THE SUBJECT DOMAIN.
PROPERTY.[4]
THE COURT A QUOS ORDER DATED 07 MAY 1996
AND 31 JULY 1996, WHICH WERE AFFIRMED BY THE
On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss, [5] on COURT OF APPEALS, EFFECTIVELY AMOUNT TO
the ground that there is a genuine necessity to expropriate the property for the THE TAKING OF PETITIONERS PROPERTY
sports and recreational activities of the residents of Pasig. As to the issue of WITHOUT DUE PROCESS OF LAW:
just compensation, the trial court held that the same is to be determined in
accordance with the Revised Rules of Court.

Petitioner filed a motion for reconsideration but it was denied by the trial court in its II
Order of July 31, 1996. Forthwith, it appointed the City Assessor and City Treasurer
of Pasig City as commissioners to ascertain the just compensation. This prompted

8|Page
 LGC Sec. 17-22,48-59

THE COURT OF APPEALS

GRAVELY ERRED IN APPLYING OF
RULE ON ACTIONABLE The motion to dismiss contemplated in the above Rule clearly constitutes the
DOCUMENTS TO THE responsive pleading which takes the place of an answer to the complaint for
DOCUMENTS ATTACHED TO expropriation. Such motion is the pleading that puts in issue the right of the plaintiff
RESPONDENT CITY OF to expropriate the defendants property for the use specified in the complaint. All that
PASIGS COMPLAINT DATED 07 the law requires is that a copy of the said motion be served on plaintiffs attorney of
APRIL 1995 TO JUSTIFY THE record. It is the court that at its convenience will set the case for trial after the filing
COURT A QUOS DENIAL OF of the said pleading.[6]
PETITIONERS RESPONSIVE
PLEADING TO THE COMPLAINT The Court of Appeals therefore erred in holding that the motion to dismiss filed by
FOR EXPROPRIATION (THE petitioner hypothetically admitted the truth of the facts alleged in the complaint,
MOTION TO DISMISS DATED 21 specifically that there is a genuine necessity to expropriate petitioners property for
APRIL 1995). public use. Pursuant to the above Rule, the motion is a responsive pleading joining
the issues. What the trial court should have done was to set the case for the
III reception of evidence to determine whether there is indeed a genuine necessity for
the taking of the property, instead of summarily making a finding that the taking is
THE COURT OF APPEALS for public use and appointing commissioners to fix just compensation. This is
GRAVELY ERRED IN APPLYING especially so considering that the purpose of the expropriation was squarely
THE RULE ON HYPOTHETICAL challenged and put in issue by petitioner in her motion to dismiss.
ADMISSION OF FACTS ALLEGED
IN A COMPLAINT CONSIDERING Significantly, the above Rule allowing a defendant in an expropriation case to file a
THAT THE MOTION TO motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil
DISMISS FILED BY PETITIONER IN Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly
THE EXPROPRIATION CASE mandates that any objection or defense to the taking of the property of a defendant
BELOW WAS THE RESPONSIVE must be set forth in an answer.
PLEADING REQUIRED TO BE
FILED UNDER THE THEN RULE 67 The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860
OF THE RULES OF COURT AND on October 31, after the 1997 Rules of Civil Procedure took effect, is of no moment.
NOT AN ORIDNARY MOTION TO It is only fair that the Rule at the time petitioner filed her motion to dismiss should
DISMISS UNDER RULE 16 OF THE govern. The new provision cannot be applied retroactively to her prejudice.
RULES OF COURT.
We now proceed to address the substantive issue.

The foregoing arguments may be synthesized into two main issues one substantive
and one procedural. We will first address the procedural issue.
Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25,
1995. It was denied by the trial court on May 7, 1996. At that time, the rule on
expropriation was governed by Section 3, Rule 67 of the Revised Rules of Court
which provides:
SEC. 3. Defenses and objections. Within the time specified in the
summons, each defendant, in lieu of an answer, shall present in
a single motion to dismiss or for other appropriate relief, all his
objections and defenses to the right of the plaintiff to take his
property for the use or purpose specified in the complaint. All such
objections and defenses not so presented are waived. A copy of
the motion shall be served on the plaintiffs attorney of record and
filed with the court with proof of service.
In the early case of US v. Toribio,[7] this Court defined the power of eminent domain
as the right of a government to take and appropriate private property to public use,
whenever the public exigency requires it, which can be done only on condition of
providing a reasonable compensation therefor. It has also been described as the
power of the State or its instrumentalities to take private property for public use and
is inseparable from sovereignty and inherent in government. [8]
The power of eminent domain is lodged in the legislative branch of the government.
It delegates the exercise thereof to local government units, other public entities and
public utility corporations,[9] subject only to Constitutional limitations. Local
governments have no inherent power of eminent domain and may exercise it only
when expressly authorized by statute.[10] Section 19 of the Local Government Code
of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power
of eminent domain to local government units and lays down the parameters for its
exercise, thus:

9|Page
 LGC Sec. 17-22,48-59

SEC. 19. Eminent Domain. A local government unit may, through
its chief executive and acting pursuant to an ordinance, exercise
the power of eminent domain for public use, purpose or welfare
for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and
pertinent laws: Provided, however, That, the power of eminent
domain may not be exercised unless a valid and definite offer has
been previously made to the owner and such offer was not
accepted: Provided, further, That, the local government unit may
immediately take possession of the property upon the filing of
expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That, the amount to
be paid for expropriated property shall be determined by the
proper court, based on the fair market value at the time of the
taking of the property.
Judicial review of the exercise of eminent domain is limited to the following areas of
concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and
(c) the public use character of the purpose of the taking. [11]
the said Association are desirous of having their own private playground and
recreational facility. Petitioners lot is the nearest vacant space available. The
purpose is, therefore, not clearly and categorically public. The necessity has not
been shown, especially considering that there exists an alternative facility for sports
development and community recreation in the area, which is the Rainforest Park,
available to all residents of Pasig City, including those of Caniogan.
The right to own and possess property is one of the most cherished rights
of men. It is so fundamental that it has been written into organic law of every nation
where the rule of law prevails. Unless the requisite of genuine necessity for the
expropriation of ones property is clearly established, it shall be the duty of the courts
to protect the rights of individuals to their private property. Important as the power
of eminent domain may be, the inviolable sanctity which the Constitution attaches
to the property of the individual requires not only that the purpose for the taking of
private property be specified. The genuine necessity for the taking, which must be
of a public character, must also be shown to exist.
WHEREFORE, the petition for review is GRANTED. The challenged
Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 41860
are REVERSED. The complaint for expropriation filed before the trial court by
respondent City of Pasig, docketed as SCA No. 873, is ordered DISMISSED.

In this case, petitioner contends that respondent City of Pasig failed to establish a
genuine necessity which justifies the condemnation of her property. While she does SO ORDERED.
not dispute the intended public purpose, nonetheless, she insists that there must be
a genuine necessity for the proposed use and purposes. According to petitioner,
there is already an established sports development and recreational activity center
at Rainforest Park in Pasig City, fully operational and being utilized by its residents,
including those from Barangay Caniogan. Respondent does not dispute this.
Evidently, there is no genuine necessity to justify the expropriation.

The right to take private property for public purposes necessarily originates from the
necessity and the taking must be limited to such necessity. In City of Manila v.
Chinese Community of Manila,[12] we held that the very foundation of the right to
exercise eminent domain is a genuine necessity and that necessity must be
of a public character. Moreover, the ascertainment of the necessity must precede
or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law
College,[13] we ruled that necessity within the rule that the particular property to be
expropriated must be necessary, does not mean an absolute but only a reasonable
or practical necessity, such as would combine the greatest benefit to the public with
the least inconvenience and expense to the condemning party and the property
owner consistent with such benefit.

Applying this standard, we hold that respondent City of Pasig has failed to
establish that there is a genuine necessity to expropriate petitioners property. Our
scrutiny of the records shows that the Certification[14] issued by the Caniogan
Barangay Council dated November 20, 1994, the basis for the passage of Ordinance
No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary
is the Melendres Compound Homeowners Association, a private, non-profit
organization, not the residents of Caniogan. It can be gleaned that the members of

10 | P a g e

FIRST DIVISION
G.R. No. 78673 March 18, 1991
BRUNO S. CABRERA, petitioner,
vs.
HON. COURT OF APPEALS AND THE PROVINCE OF CATANDUANES,
VICENTE M. ALBERTO, ENCARNACION TORRES, SANTIAGO VALDERAMA,
JEREMIAS TRINIDAD, ALFREDO DAYAWON, ZACARIAS TATAD,
FELIXBERTO CAMACHO, RUBEN GONZALES, FELIX RUBIO, RENE
ALCANTARA, ARISTEO ARCILLA, PAMFILO DAYAWON, REMEDIOS
BAGADIONG, FREDESWINDO ALCALA, ELENA S. LATORRE, BALDOMERO
TOLENTINO, EULOGIA ALEJANDRO, ANGELES S. VARGAS, ISIDRO REYES,
ANSELMO PEÑA, and CATALINA VELA, respondents.
Dominador B. Medroso, Jr. for petitioner.
CRUZ, J.:
On September 19, 1969, the Provincial Board of Catanduanes adopted Resolution
No. 158, providing as follows:
RESOLVED, as it is hereby resolved, to close the old road leading to the
new Capitol Building of this province to traffic effective October 31, 1969,
and to give to the owners of the properties traversed by the new road equal
area as per survey by the Highway District Engineer's office from the old
road adjacent to the respective remaining portion of their properties.
RESOLVED FURTHER, that the Honorable Provincial Governor be, as he
is hereby authorized to sign for and in behalf of the province of
Catanduanes, the pertinent Deed of Exchange and or other documents
pertaining thereto;
Pursuant thereto, Deeds of Exchange were executed under which the Province of
Catanduanes conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena
S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan
S. Reyes portions of the closed road in exchange for their own respective properties,
on which was subsequently laid a new concrete road leading to the Capitol Building.
In 1978, part of the northern end of the old road fronting the petitioner's house was
planted to vegetables in 1977 by Eulogia Alejandro. Anselmo Peña, who had bought
Angeles Vargas's share, also in the same part of the road, converted it into a piggery
farm.
Learning about Resolution 158, the petitioner filed on December 29, 1978, a
complaint with the Court of First Instance of Catanduanes for "Restoration of Public
Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents
LGC Sec. 17-22,48-59
with Damages." He alleged that the land fronting his house was a public road owned
by the Province of Catanduanes in its governmental capacity and therefore beyond
the commerce of man. He contended that Resolution No. 158 and the deeds of
exchange were invalid, as so too was the closure of the northern portion of the said
road.
In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while
holding that the land in question was not a declared public road but a mere
"passageway" or "short-cut," nevertheless sustained the authority of the provincial
board to enact Resolution No. 158 under existing law. 1 Appeal was taken to the
respondent court,2 which found that the road was a public road and not a trail but
just the same also upheld Resolution 158. It declared:
Pursuant to Republic Act No. 5185, municipal authorities can close, subject
to the approval or direction of the Provincial Board, thoroughfares under
Section 2246 of the Revised Administrative Code. Although in this case the
road was not closed by the municipality of Catanduanes but by the
provincial board of Catanduanes, the closure, nevertheless, is valid since
it was ordered by the approving authority itself. However, while it could do
so, the provincial government of Catanduanes could close the road only if
the persons prejudiced thereby were indemnified, Section 2246 of the
Revised Administrative Code being very explicit on this.
Before us now, the petitioner insists that Sec. 2246 is not applicable because
Resolution No. 158 is not an order for the closure of the road in question but an
authority to barter or exchange it with private properties. He maintains that the public
road was owned by the province in its governmental capacity and, without a prior
order of closure, could not be the subject of a barter. Control over public roads, he
insists, is with Congress and not with the provincial board.
The petitioner alleges that the closure of the road has especially injured him and his
family as they can no longer use it in going to the national road leading to the old
capitol building but must instead pass through a small passageway. For such
inconvenience, he is entitled to damages in accordance with law.
The petition has no merit.
The Court cannot understand how the petitioner can seriously argue that there is no
order of closure when it is there in the resolution, in black and white. Resolution 158
clearly says that it is "hereby resolved to close the old road." The closure is as plain
as day except that the petitioner, with the blindness of those who will not see, refuses
to acknowledge it. The Court has little patience with such puerile arguments. They
border dangerously on a trifling with the administration of justice and can only
prejudice the pleader's cause.
The authority of the provincial board to close that road and use or convey it for other
purposes is derived from the following provisions of Republic Act No. 5185 in relation
to Section 2246 of the Revised Administrative Code:
11 | P a g e

R.A. No. 5185, Section 11 (II) (a):
II. The following actions by municipal officials or municipal councils, as
provided for in the pertinent sections of the Revised Administrative Code
shall take effect without the need of approval or direction from any official
of the national government: Provided, That such actions shall be subject to
approval or direction by the Provincial Board:
(a) Authority to close thoroughfare under Section 2246;
xxx xxx xxx
Sec. 2246. Authority to close thoroughfare. — With the prior authorization
of the Department Head, a municipal council may close any municipal road,
street, alley, park, or square; but no such way or place aforesaid or any
part thereof, shall be closed without indemnifying any person prejudiced
thereby.
Property thus withdrawn from public servitude may be used or conveyed
for any purpose for which other real property belonging to the municipality
might be lawfully used or conveyed.
In the case of Cebu Oxygen and Acetylene Co., Inc. v. Bercilles,3 the Court held the
closure of a city street as within the powers of the city council under the Revised
Charter of Cebu City, which provided:
Sec. 31. Legislative Powers.— Any provision of law and executive order to
the contrary notwithstanding, the City Council shall have the following
legislative powers:
xxx xxx xxx
(34) . . .; to close any city road, street or alley, boulevard, avenue, park or
square. Property thus withdrawn from public servitude may be used or
conveyed for any purpose for which other real property belonging to the
City may be lawfully used or conveyed;
It sustained the subsequent sale of the land as being in accordance not only with
the charter but also with Article 422 of the Civil Code, which provides: "Property of
public dominion, when no longer intended for public use or for public service, shall
form part of the patrimonial property of the State."
In the case of Favis vs. City of Baguio,4 the power of the City Council of Baguio City
to close city streets and withdraw them from public use was also assailed. This Court
said:
LGC Sec. 17-22,48-59
5. So it is, that appellant may not challenge the city council's act of
withdrawing a strip of Lapu-Lapu Street at its dead end from public use and
converting the remainder thereof into an alley. These are acts well within
the ambit of the power to close a city street. The city council, it would seem
to us, is the authority competent to determine whether or not a certain
property is still necessary for public use.
Such power to vacate a street or alley is discretionary. And the discretion
will not ordinarily be controlled or interfered with by the courts, absent a
plain case of abuse or fraud or collusion. Faithfulness to the public trust will
be presumed. So the fact that some private interests may be served
incidentally will not invalidate the vacation ordinance.
While it is true that the above cases dealt with city councils and not the provincial
board, there is no reason for not applying the doctrine announced therein to the
provincial board in connection with the closure of provincial roads. The provincial
board has, after all, the duty of maintaining such roads for the comfort and
convenience of the inhabitants of the province. Moreover, this authority is inferable
from the grant by the national legislature of the funds to the Province of Catanduanes
for the construction of provincial roads. On this matter, Governor Vicente Alberto of
Catanduanes testified as follows:
. . . when the Province was given funds to construct a road that will be more
convenient to the public, more solid and wider and to have a better town
planning whereby the Capitol would be reached directly from the pier for
purposes of improving services to the public, it was recommended by the
District Highway Engineer that a new road would be constructed
connecting the Capitol with the veterans fountain, and believing this
recommendation was for the good of the community, it was carried out.
The original passageway was already unnecessary and since there was a
problem of compensation the land owners where the new road was going
to pass, so they decided to close this passageway and instead of paying
the owners of the property where the new road was to be constructed, they
exchanged some portions of this passageway with properties where the
proposed road would pass.5
The lower court found the petitioner's allegation of injury and prejudice to be without
basis because he had "easy access anyway to the national road, for in fact the
vehicles used by the Court and the parties during the ocular inspection easily passed
and used it, reaching beyond plaintiff's house." However, the Court of Appeals ruled
that the he "was prejudiced by the closure of the road which formerly fronted his
house. He and his family were undoubtedly inconvenienced by the loss of access to
their place of residence for which we believe they should be compensated."
On this issue, the governing principle was laid down in Favis thus:
. . . The general rule is that one whose property does not abut on the closed
section of a street has no right to compensation for the closing or vacation
12 | P a g e
 LGC Sec. 17-22,48-59

of the street, if he still has reasonable access to the general system of

streets. The circumstances in some cases may be such as to give a right
to damages to a property owner, even though his property does not abut
on the closed section. But to warrant recovery in any such case the
property owner must show that the situation is such that he has sustained
special damages differing in kind, and not merely in degree, from those
sustained by the public generally.

This rule was based on the following observations made in Richmond v. City of
Hinton6 which were quoted with approval by this Court:

The Constitution does not undertake to guarantee to a property owner the

public maintenance of the most convenient route to his door. The law will
not permit him to be cut off from the public thoroughfares, but he must
content himself with such route for outlet as the regularly constituted public
authority may deem most compatible with the public welfare. When he
acquires city property, he does so in tacit recognition of these principles. If,
subsequent to his acquisition, the city authorities abandon a portion of the
street to which his property is not immediately adjacent, he may suffer loss
because of the inconvenience imposed, but the public treasury cannot be
required to recompense him. Such case is damnum absque injuria.

Following the above doctrine, we hold that the petitioner is not entitled to damages
because the injury he has incurred, such as it is, is the price he and others like him
must pay for the welfare of the entire community. This is not a case where his
property has been expropriated and he is entitled to just compensation. The
construction of the new road was undertaken under the general welfare clause. As
the trial judge acutely observed, whatever inconvenience the petitioner has suffered
"pales in significance compared to the greater convenience the new road, which is
wide and concrete, straight to the veterans fountain and down to the pier, has been
giving to the public, plus the fact that the new road adds beauty and color not only
to the town of Virac but also to the whole province of Catanduanes." For the
enjoyment of those benefits, every individual in the province, including the petitioner,
must be prepared to give his share.

The dispositive portion of the challenged decision awarded the petitioner the sum of
P5,000.00 as nominal and/or temperate damages, and the sum of P2,000.00 as and
for attorney's fees. For the reasons stated above, these awards should all be
deleted. The petitioner must content himself with the altruistic feeling that for the
prejudice he has suffered, the price he can expect is the improvement of the comfort
and convenience of the inhabitants of Catanduanes, of whom he is one. That is not
a paltry recompense.

WHEREFORE, the decision of the Court of Appeals dated February 17, 1987, is
AFFIRMED as above modified, with costs against the petitioner.

SO ORDERED.

13 | P a g e

FIRST DIVISION
G.R. No. 95522 February 7, 1991
WHITE PLAINS ASSOCIATION, INC., petitioner,
vs.
HON. GODOFREDO L. LEGASPI, in his capacity as Presiding Judge of RTC,
Quezon City, Branch 79, QUEZON CITY DEVELOPMENT AND FINANCING
CORPORATION, HON. FIORELLO ESTUAR, in his capacity as Secretary of
Public Works and Highways, HON. CONRADO DANGANAN, in his capacity as
District Engineer of Quezon City, SPRAGUE CONSTRUCTION and M.E. APO
CONSTRUCTION, respondents.
Ongkiko, Bucoy, Dizon & Associates for petitioner.
Hercules S. Bao and Santiago & Santiago for Quezon City Devt. & Finance Corp.
GANCAYCO, J.:
The widening of the Katipunan Road in the White Plains Subdivision in Quezon City
is the center of controversy in this case.
This is the second time this case has reached this Court. The first was docketed as
G.R. No. 55868 entitled White Plains Association, Inc. vs. Court of Appeals and
Quezon City Development and Financing Corporation (QCDFC for short).
The background of this case is undisputed. Respondent QCDFC was the owner and
developer of the White Plains Subdivision in Quezon City prior to the sale of the lots
therein to the residents of the subdivision who compose the petitioner White Plains
Association, Inc.
The disputed area of land covered by TCT Nos. 156185, 156186 and 156187 was
set aside and dedicated for the proposed Highway 38 of Quezon City. As subdivision
owner and developer, respondent QCDFC represented to the lot buyers that there
would be a major thoroughfare called Katipunan Avenue and that the width of the
land alloted for said road was 38 meters. Of the 38 meters, respondent QCDFC
developed only 20 meters.
On April 14, 1970, respondent QCDFC filed a petition with the Court of First Instance
of Rizal for the conversion into a residential lot of a portion of Road Lot 1 (LRC) Psd-
12333, covered by TCT No. 112637, which covers the remaining undeveloped 18
meters width of the proposed Highway 38.
In said case, neither petitioner nor the Quezon City Government was made a party
to the action.
LGC Sec. 17-22,48-59
The lower court rendered judgment on May 14, 1970 in favor of respondent QCDFC,
granting the authority for the conversion of Road Lot 1 into a residential lot, with the
exception of the exist Katipunan Avenue with a width of 20 meters, and directed the
Register of Deeds to cancel the reservation of the lien on TCT No. 112637.
On the basis of the order dated May 14, 1970, the Register of Deeds of Quezon City
cancelled the lien on TCT No. 112637 on the undeveloped portion of the area of
land allotted as an extension of the Katipunan Road. TCT Nos. 156185, 156186 and
156187 were issued separately in lieu of TCT No. 112637.
Petitioner Association subsequently opposed respondent QCDFC's action to
convert the disputed property into residential lots through a letter addressed to the
City Council of Quezon City.
The City Council, in Resolution Nos. 8490, S-71, 8491, S-71 and 8495, S-71,
requested the Commissioner of Land Registration and the Register of Deeds of
Quezon City to forego the implementation of the order issued by the Court of First
Instance of Rizal on May 14, 1970. The trial court decided in favor of respondent
QCDFC.
In the meantime, an appeal was brought to the Court of Appeals. In due course, a
decision was rendered for the petitioner on February 12, 1980. However, acting on
a motion for reconsideration filed by respondent QCDFC, the appellate court
reconsidered its decision in a resolution dated December 12, 1980.
The case was elevated to this Court. On November 14, 1985, the Court en banc, in
G.R. No. 55868, resolved the case as follows:
ACCORDINGLY, the Court SETS ASIDE respondent court's Resolution of
December 12, 1980 and REINSTATES its original Decision of February 12,
1980 and its judgment as follows:
WHEREFORE, the judgment appealed from is hereby reversed and set
aside. The Register of Deeds of Quezon City is ordered to cancel TCT No.
156185, 156186 and 156187 and to issue in their stead TCT No. 112637
and to annotate on the latter the reservation or hen existing thereon prior
to the decision of the CFI of Rizal dated May 14, 1970. The plaintiff-
appellee is ordered to pay attorney's fees of P5,000.00 to the defendant-
appellant and costs.
It is so ordered.1
This judgment became final and executory in January, 1986. Early 1989, petitioner
made representations with the authorities, through its representative, Rep.
Dominique Coseteng, for the widening of the twenty (20) meter Katipunan Road in
view of the worsening traffic condition along said thoroughfare.
14 | P a g e

Sometime in the middle of 1989, the government authorities, through respondent
Secretary of Public Works and Highways, allotted sufficient funds to widen
Katipunan Road by an additional four (4) to five (5) meters. Work was started by the
winning contractors, respondents Sprague Construction (Sprague for short) and
M.E. Apo Construction.
Respondent QCDFC then filed on December 11, 1989 a complaint for injunction
with damages against respondent Hon. Fiorello Estuar, et al., docketed as Civil
Case No. A-89-4220 before the Regional Trial Court of Quezon City presided by
respondent judge. Respondent QCDFC sought an injunction against the widening
of the Katipunan Road as the alleged registered owner of the same property.
On the same date, December 11, 1989, a temporary restraining order was issued ex
parte by respondent judge, enjoining public respondents Secretary and District
Engineer of Quezon City from widening Katipunan Road until further orders.
On December 28, 1989, respondent QCDFC filed an amended complaint. Petitioner
filed its motion to intervene and answer in intervention in January 1990. An
opposition thereto was filed by respondent QCDFC. Private respondent Sprague
and public respondents filed their answer.
On February 20, 1990, petitioner filed a motion to dissolve writ of preliminary
injunction and to cite therein petitioner in contempt for not disclosing that the case
had already been disposed of by this Court in G.R. No. 55868. Respondent QCDFC
filed its opposition thereto to which a rejoinder was submitted by petitioner.
On April 24, 1990, respondent judge issued an order dissolving the writ of
preliminary injunction.
Respondent QCDFC filed a motion for reconsideration of said order to which an
opposition was filed by petitioner. Pending the hearing of the motion, respondent
judge directed public respondents to "temporarily suspend the widening project." On
July 10, 1990, respondent judge reconsidered the order dated April 24, 1990 and
restored the injunction.
Petitioner and public respondent filed a motion for reconsideration thereof
Respondent QCDFC filed its opposition and petitioner filed a reply.
On September 26, 1990, respondent judge denied the motion for reconsideration
and maintained the writ of preliminary injunction.
Hence, this petition for certiorari with prayer for the issuance of a writ of preliminary
injunction/restraining order seeking to annul the orders of respondent judge dated
July 10, 1990 and September 26, 1990.
On October 24, 1990, without giving due course to the petition, the Court required
respondents to comment thereon within ten (10) days from notice and issued a
LGC Sec. 17-22,48-59
temporary restraining order enjoining respondent judge from implementing his
questioned orders until further orders from this Court, upon petitioner filing a bond
in the amount of P10,000.00.
The public respondents and respondent Sprague joined the cause of petitioner by
filing appropriate manifestations to this effect.
The focal issue is whether or not public respondents may be restrained from
proceeding with the widening of the Katipunan Road.
The respondent judge in his questioned order dated July 10, 1990 made the
following disquisition.
The issue of whether Road Lot 1 is a road lot of White Plains Subdivision
had already been passed upon by the Supreme Court in G.R. Case No.
55868 finding TCT No. 112637 as road lot 1 of White Plains Subdivision
which cannot be reverted to a residential lot. Since TCT No. 112637 is a
road lot of White Plains Subdivision alloted as extension of Katipunan
Avenue with a width of 38 meters of this 20 meters was already developed
and presently existing it can be widened by 4.7 meters or more, but since
this road lot 1 has not yet been turned over or donated by the plaintiff to
Quezon City Government, it appearing that the Deed of Donation does not
include Road Lot 1, widening at the moment cannot be done by Quezon
City Government or the Department of Public Works and Highways
because Road Lot 1 is still a private property registered in the name of the
plaintiff and has not yet been donated or turned over to Quezon City
Government (sic).
Consequently, the Order issued on April 24, 1990 dissolving the Writ of
Preliminary Injunction issued in this case on January 9, 1990 is hereby
reconsidered and set aside.
Hence, the Writ of Preliminary Injunction issued on January 9, 1990 is
hereby ordered restored under the same injunction bond of P20,000.00
issued by Presidential Guarantee & Assurance Inc. filed and approved by
the Court.2
Similarly, in the subsequent order dated September 26, 1990 denying the motions
for reconsideration of the earlier order, the respondent judge reiterated that —
It is the declaration in the order in question that Road Lot 1 is still a private
property registered in the name of the plaintiff and has not yet been
donated or turned over by the plaintiff to the Quezon City Government
which the defendants opposed because according to them the
pronouncement of the Supreme Court that Road Lot 1 is beyond the
commerce of man shows that the property is now placed beyond the
private rights or claims and it can no longer be reviewed or interfered with
by this Court.
15 | P a g e

Make it known to both parties that this Court did not review or interfere in
the decision of the Supreme Court declaring Road Lot 1 as beyond the
commerce of man.
What this Court states in its Order of July 10, 1990 is a fact which parties
could not deny, that this Road Lot 1 covered by TCT112637 is still
registered in the name of the plaintiff. This Road Lot 1 was declared to be
beyond the commerce of man, meaning it cannot be sold or alienated
anymore but it remains registered in the name of the plaintiff, hence this is
still a private property of the plaintiff but by reason of the declaration of the
Supreme Court, plaintiff can no longer sell or alienate this property because
it is a road lot. It is also a fact that Road Lot 1 is not included among those
road lots donated by the plaintiff to the Quezon City Government
(see Annex "A" of the Urgent Ex-Parte Amended Motion for
Reconsideration etc. filed on June 7, 1990). Since the government cannot
introduce improvements on private property unless the same is donated to
the government which is the purpose of Sec. 31 of PD 957, this Court in its
Order of July 10, 1990 made this pronouncement that at the moment
widening of Road Lot 1 cannot be done by the City Government of Quezon
City or the Department of Public Works and Highways because Road Lot
1 is still a private property registered in the name of the plaintiff and has
not yet been donated or turned over to Quezon City Government.
This is probably the reason why the Office of District Engineer of Quezon
City thru its OIC Remy R. Deang in his letter dated June 4, 1990 addressed
to the President/General Manager of Sprague Construction (Annex "B" of
the Urgent Ex-Parte Amended Motion for Reconsideration) directed said
construction firm to stop immediately all construction work on the widening
of Katipunan Road (White Plains Section).
All the foregoing considered, the Court finds the instant motions not
meritorious, hence the same are denied.
SO ORDERED.3
The theory of petitioner is that the cause of action of respondent QCDFC is barred
by res judicata by the decision of this Court in G.R. No. 55868.
On the other hand, said respondent avers that while the requisites of res judicata are
present in that there is a final judgment on the merits, rendered by a court of
competent jurisdiction over the subject matter and parties, and there is identity of
parties and subject matter, there is no such bar as there are different causes of
action. It is stressed that in G.R. No. 55868, the issue was the right of respondent
QCDFC to convert into residential lots the portion of Road Lot 1 of 18 meters wide
covered by TCT No. 112637 and which remained undeveloped, while the bone of
contention in the present case before respondent judge is the right of public
respondents and respondent contractors to undertake the widening project involving
LGC Sec. 17-22,48-59
Road Lot 1 without proper proceedings and the payment of just compensation to
respondent QCDFC as registered owner of the lot.
The Court finds and so holds that res judicata had set in. In G.R. No. 55868, this
Court made the following findings and conclusions —
On appeal, respondent court held:
We find merit in this appeal. The plaintiff-appellee corporation prior to its
sale of subdivision lots to the prospective residents of the subdivision had
represented to the latter what areas are available for residential lots and
what open areas are reserved for parks, roads, commercial centers, etc.
The plaintiff represented that there would be a major thoroughfare called
Katipunan Avenue with a width of 38 meters. Acting upon the strength of
the subdivision plan, the prospective residents chose which lot they
preferred to occupy, bearing in mind the access to the open areas. This
Court takes judicial notice of the business practice prevailing among the
subdivision owners to charge more for corner lots, or for lots situated near
an open area (Rules of Court, Rule 129, Sec. 1).
So much so that if a subdivision owner is allowed to renege and claim that
the area allotted to a road should revert to a residential area by reason of
abandonment, this would prejudice the residents who relied on the
subdivision owner's representations when they entered into contracts for
the purchase of lots in the subdivision.
Subdivision owners are bound by their business representations under the
equitable principles of estoppel. We have adopted from Anglo-American
jurisprudence, more specifically Article 1431 of the Civil Code which reads:
Art. 1431. Through estoppel an admission or representation is
rendered conclusive upon the person making it, and cannot be
denied or disproved as against the person relying thereon.
The same principle is also embodied in Rule 131, Section 3(a) of the Rules
of Court which reads:
(a) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led another to believe a
particular thing true, and to act upon such belief, he cannot, in any
litigation arising out of such declaration, act, or omission, be
permitted to falsify it;
xxx xxx xxx
16 | P a g e

The present case is an illustrative example of the principle of promissory
estoppel or the reliance theory in the law of Contracts which is best
expressed in Section 90 of the Restatement in Contracts.
Sec. 90 provides:
A promise which the promisor should reasonably expect to induce
action or forbearance of a definite and substantive character on
the part of the promisee and which does induce such action or
forbearance is binding if injustice can be avoided only by the
enforcement of the promise.
The plaintiff-appellee in the case at bar induced the residents
members of the defendant-appellant Association to buy
residential lots on the basis of its location in accordance with the
subdivision plan. To allow the plaintiff-appellee Corporation to
change the area allocated for roads and convert the same to
residential area will greatly affect the residents who relied on the
said representations of the plaintiff-appellee Corporation. The
residents expected on the strength of the subdivision plan that the
land area allotted as extension of Katipunan Avenue of 38 meters
width would be the main thoroughfare in the Subdivision and with
the ease of traffic made possible by a greater width of the road.
The allegation made by the plaintiff-appellee that the National
Government abandoned the proper expropriation of the area in
question is of no moment.
It has long been recognized that the City Government of Quezon
City, in the same vein as the National Government exercises the
police power of the State. By enacting Ordinance No. 60-4580
which requires that the subdivision plan should provide for a 38
meter wide road, the City Council merely acted within its authority
"to enact ordinance as may be necessary and proper for the
health and safety; promote the prosperity, improve the morale,
peace, good order, comfort and convenience."
There is no gainsaying that the intervenor below and the
defendant-appellant Association were denied due process by the
failure to notify them of the petition for cancellation of the lien in
TCT No. 112637 in the Court of First Instance of Rizal sitting as a
land registration court. The argument, adopted by the lower court,
that the White Plains Association composed of more than 400 lot
and homeowners in the subdivision is not an interested party and
was not entitled to notice is sophistic. More than any other group,
it is the people who have chosen to establish their homes and
raise their families in the area who are most interested and
affected by any change in the subdivision plan. The owners of a
LGC Sec. 17-22,48-59
subdivision include all costs, such as the setting aside of road
spaces and open areas for parks, and possibly the construction
of curbs and gutters, underground drainage, an adequate water
supply, and whatever improvements it may have published to
entice lot buyers, in computing the value at which all the lots shall
be sold. If the subdivision reneges on any of its commitments, as
exemplified in this case, the lot buyers are short-changed. They
are made to pay more for less than what was agreed upon. They
are parties in interest. Furthermore, the records show that the
subdivision has recognized and dealt with the Association in
various matters involving all the homeowners. The plaintiff-
appellee cannot deal with and make use of the defendant-
appellant when it suits its purpose and ignore it when the former
moves in secrecry in order to perform acts prejudicial to the
interests and welfare of the homeowners.
The extended dissent of Justice Gutierrez from the aforecited questioned
Resolution at bar, stressed further that "the importance of the case at bar
hinges on the main issue (of) whether a subdivision owner and developer
corporation, obliged by law to allot certain areas in a proposed subdivision
as open space for parks, roads, commercial centers, etc., should be
allowed to revert the area allotted as a road into a residential area on the
pretext that the national government abandoned the construction of the
same and failed to pay just compensation for the value of the litigated
portion –– the 18-meter width of Katipunan Avenue." In the interest of
public policy and welfare, it upheld and endorsed the position of the
Quezon City government that "said Road Lot 1 is withdrawn from the
commerce of man and should be developed for the use of the general
public." The dissent concluded that
We may add that the plaintiffs counsel and a top official admitted
during the oral arguments that open spaces set aside for public
use had been earlier sold by the subdivision owners for residential
or private purposes although the owners claimed that the sale was
in consideration of various concessions given to homeowners
while the homeowners alleged that the subdivision owners
reneged and did not make good their promises. Whatever the
truth may be, the fact remains that open spaces in this first-class
subdivision are way, way below the mandatory requirements
imposed by law and regulations even on fourth or fifth-class
subdivisions. This Court should not countenance any act of
retrogression in community development or violation of ecological
and environmental requirements in urban planning by allowing the
sale, in an act of injustice to the defendants, of the little land still
available for public purposes. The Ministry of Human Settlements
has set thirty (30) percent as the current requirement. The
subdivision in question has only three (3) percent left for open
spaces.
17 | P a g e
 LGC Sec. 17-22,48-59

The history of subdivision development in our country is replete
with sad stories of middle-class or low salaried homeowners who
believe they have been shortchanged through acts of the
subdivision owners subsequent to the purchase of their lots and
the building of their homes but who find themselves helpless in
the fight to seek justice against the big corporations who made
the promises resulting in the purchase of lots.
The Court fully agrees with the above-quoted findings and considerations
succinctly underscored by Justice Gutierrez in the original decision of
February 12, 1980 and in his dissent against the overturning Resolution of
December 12, 1980 which is hereby reverse and set aside.4
Expressly, this Court debunked the claim of respondent QCDFC that said
undeveloped portion of Road Lot 1 should be reverted as a residential lot as the
government had abandoned the construction of the same and failed to pay just
compensation for the value thereof In the interest of public policy and welfare, this
Court upheld and endorsed the position of the Quezon City government that "said
Road Lot 1 is withdrawn from the commerce of man and should be developed for
the use of the general public." The Court observed that the open spaces in the
subdivision constitute only 3% of the total area, which is way below the mandatory
30% requirement for first class subdivisions as set by the Ministry of Human
Settlements.
Subdivision owners are mandated to set aside such open spaces before their
proposed subdivision plans may be approved by the government authorities, and
that such open spaces shall be devoted exclusively for the use of the general public
and the subdivision owner need not be compensated for the same. A subdivision
owner must comply with such requirement before the subdivision plan is approved
and the authority to sell is issued.
While it may be true that the developed portion of said Road Lot 1 had already been
donated by respondent QCDFC to the Quezon City government, it did not thereby
follow that it was thus relieved of its obligation to develop the remaining portion of
said road lot and thereafter, as a formality, donate the same to the said local
government. Respondent QCDFC should be gratified that the government had
opted to proceed with the widening of the Katipunan Road at its own expense. The
least respondent QCDFC should do is to cooperate by executing the deed of
donation of said remaining 18 meters width undeveloped portion, which is nominally
registered in its name, to the government. The manifestation of respondent QCDFC
that it is entitled to the payment of just compensation for the same is without lawful
basis and is to say the least absurd.
There should be no further quibbling about the fact that the resolution of this Court
in G.R. No. 55868 had written finis to the controversy. The action filed with the
respondent judge is barred by res judicata.
WHEREFORE, the petition is GRANTED. The questioned orders of respondent-
judge dated July 10, 1990 and September 26, 1990 are hereby reversed and set
aside. Respondent QCDFC is hereby directed to execute a deed of donation of the
remaining undeveloped portion of Road Lot 1 consisting of about 18 meters wide in
favor of the Quezon City government, otherwise, the Register of Deeds of Quezon
City is hereby directed to cancel the registration of said Road Lot 1 in the name of
respondent QCDFC under TCT No. 112637 and to issue a new title covering said
property in the name of the Quezon City government. Costs against respondent
QCDFC.
SO ORDERED.

Considering that the said Road Lot 1 had been withdrawn from the commerce of
man, thus constituting part of mandatory open space reserved for public use to be
improved into the widened Katipunan Avenue, the public respondent, should
proceed with the ongoing widening work of said road and the petitioner is entitled to
an injunction against any obstacle to the continuation of this public improvement.
Respondent QCDFC has no right whatever to demand compensation from the
government for the use of the unimproved portion of said Road Lot 1. To repeat,
when it was withdrawn from the commerce of man as the open space required by
law to be devoted for the use of the general public, its ownership was automatically
vested in the Quezon City government and/or the Republic of the Philippines,
without need of paying any compensation to respondent QCDFC, although it is still
registered in the latter's name. Its donation by the owner/developer to the
government is a mere formality. Indeed, the standard practice and requirement is
that a developer must, among its mandatory obligations, develop the road lots in its
subdivision at its own expense, before it can turn over the same to the government
by way of a donation.

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SECOND DIVISION
G.R. No. 71159 November 15, 1989
CITY OF MANILA, and EVANGELINE SUVA, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, IRENE STO. DOMINGO and for
and in behalf of her minor children, VIVENCIO, JR., IRIS, VERGEL and IMELDA,
all surnamed STO. DOMINGO, respondents.
The City Legal Officer for petitioners.
Jose M. Castillo for respondents.
PARAS, J.:
This is a petition for review on certiorari seeking to reverse and set aside: (a) the
Decision of the Intermediate Appellate Court now Court of Appeals 1 promulgated
on May 31, 1984 in AC-G.R. CV No. 00613-R entitled Irene Sto. Domingo et al., v.
City Court of Manila et al., modifying the decision of the then Court of First Instance
of Manila, Branch VIII 2 in Civil Case No. 121921 ordering the defendants (herein
petitioners,) to give plaintiffs (herein private respondents) the right to use a burial lot
in the North Cemetery corresponding to the unexpired term of the fully paid lease
sued upon, to search the remains of the late Vivencio Sto. Domingo, Sr. and to bury
the same in a substitute lot to be chosen by the plaintiffs; and (b) the Resolution of
the Court of Appeals dated May 28, 1985 denying petitioner's motion for
reconsideration.
As found by the Court of Appeals and the trial court, the undisputed facts of the case
are as follows:
Brought on February 22, 1979 by the widow and children of the
late Vivencio Sto. Domingo, Sr. was this action for damages
against the City of Manila; Evangeline Suva of the City Health
Office; Sergio Mallari, officer-in-charge of the North Cemetery;
and Joseph Helmuth, the latter's predecessor as officer-in-charge
of the said burial grounds owned and operated by the City
Government of Manila.
Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene
Sto. Domingo and father of the litigating minors, died on June
4,1971 and buried on June 6,1971 in Lot No. 159, Block No. 194
of the North Cemetery which lot was leased by the city to Irene
Sto. Domingo for the period from June 6, 1971 to June 6, 2021
per Official Receipt No. 61307 dated June 6, 1971 (see Exh. A)
with an expiry date of June 6, 2021 (see Exh. A-1). Full payment
LGC Sec. 17-22,48-59
of the rental therefor of P50.00 is evidenced by the said receipt
which appears to be regular on its face. Apart from the
aforementioned receipt, no other document was executed to
embody such lease over the burial lot in question. In fact, the
burial record for Block No. 194 of Manila North Cemetery (see
Exh. 2) in which subject Lot No. 159 is situated does not reflect
the term of duration of the lease thereover in favor of the Sto.
Domingos.
Believing in good faith that, in accordance with Administrative
Order No. 5, Series of 1975, dated March 6, 1975, of the City
Mayor of Manila (See Exh. 1) prescribing uniform procedure and
guidelines in the processing of documents pertaining to and for
the use and disposition of burial lots and plots within the North
Cemetery, etc., subject Lot No. 159 of Block 194 in which the
mortal remains of the late Vivencio Sto. Domingo were laid to rest,
was leased to the bereaved family for five (5) years only, subject
lot was certified on January 25, 1978 as ready for exhumation.
On the basis of such certification, the authorities of the North
Cemetery then headed by defendant Joseph Helmuth authorized
the exhumation and removal from subject burial lot the remains of
the late Vivencio Sto. Domingo, Sr., placed the bones and skull in
a bag or sack and kept the same in the depository or bodega of
the cemetery y Subsequently, the same lot in question was rented
out to another lessee so that when the plaintiffs herein went to
said lot on All Souls Day in their shock, consternation and dismay,
that the resting place of their dear departed did not anymore bear
the stone marker which they lovingly placed on the tomb.
Indignant and disgusted over such a sorrowful finding, Irene Sto.
Domingo lost no time in inquiring from the officer-in-charge of the
North Cemetery, defendant Sergio Mallari, and was told that the
remains of her late husband had been taken from the burial lot in
question which was given to another lessee.
Irene Sto. Domingo was also informed that she can look for the
bones of her deceased husband in the warehouse of the cemetery
where the exhumed remains from the different burial lots of the
North Cemetery are being kept until they are retrieved by
interested parties. But to the bereaved widow, what she was
advised to do was simply unacceptable. According to her, it was
just impossible to locate the remains of her late husband in a
depository containing thousands upon thousands of sacks of
human bones. She did not want to run the risk of claiming for the
wrong set of bones. She was even offered another lot but was
never appeased. She was too aggrieved that she came to court
for relief even before she could formally present her claims and
demands to the city government and to the other defendants
19 | P a g e

named in the present complaint. (Decision, Court of Appeals, pp.
2-3; Rollo, pp. 34-55)
The trial court, on August 4, 1981, rendered its Decision, the dispositive portion of
which states:
WHEREFORE, judgment is hereby rendered, ordering the
defendants to give plaintiffs the right to make use of another single
lot within the North Cemetery for a period of forty-three (43) years
four (4) months and eleven (11) days, corresponding to the
unexpired term of the fully paid lease sued upon; and to search
without let up and with the use of all means humanly possible, for
the remains of the late Vivencio Sto. Domingo, Sr. and thereafter,
to bury the same in the substitute lot to be chosen by the plaintiffs
pursuant to this decision.
For want of merit, defendant's counterclaim is DISMISSED.
No pronouncement as to costs.
SO ORDERED. (Rollo, p. 31)
The decision was appealed to the Court of Appeals which on May 31, 1984 rendered
a decision (Rollo, pp. 33-40) modifying the decision appealed from, the dispositive
portion of which reads:
WHEREFORE, PREMISES CONSIDERED, the decision
appealed from is hereby REVERSED (is hereby modified) and
another one is hereby entered:
1. Requiring in full force the defendants to look in earnest for the
bones and skull of the late Vivencio Sto. Domingo, Sr., and to bury
the same in the substitute lot adjudged in favor of plaintiffs
hereunder;
2. Ordering defendants to pay plaintiffs-appellants jointly and
severally P10,000.00 for breach of contract;
3. Ordering defendants to pay plaintiffs-appellants, jointly and
severally, P20,000.00 for moral damages;
4. Ordering defendants to pay plaintiffs-appellants jointly and
severally, P20,000.00 for exemplary damages;
5. Ordering defendants to pay plaintiffs-appellants, jointly and
severally, P10,000.00 as and for attorney's fees;
LGC Sec. 17-22,48-59
6. Ordering defendants, to pay plaintiffs-appellants, jointly and
severally, on the foregoing amounts legal rate of interest
computed from filing hereof until fully paid; and
7. Ordering defendants, to pay plaintiffs-appellants, jointly and
severally, the cost of suit.
SO ORDERED. (Rollo, p. 40)
The petitioners' motion for reconsideration was likewise denied.
Hence, this instant petition (Rollo, pp. 7-27) filed on July 27, 1985.
The grounds relied upon for this petition are as follows:
I
THE HONORABLE INTERMEDIATE APPELLATE COURT
ERRED IN AWARDING DAMAGES AGAINST THE
PETITIONERS HEREIN, NOTWITHSTANDING THEIR GOOD
FAITH AND THEIR LACK OF KNOWLEDGE OR CONSENT TO
THE REMOVAL OF THE SKELETAL REMAINS OF THE LATE
VIVENCIO STO. DOMINGO, SR. FROM THE SUBJECT BURIAL
LOT.
II
THE HON. INTERMEDIATE APPELLATE COURT ERRED IN
HOLDING PETITIONERS HEREIN RESPONSIBLE FOR THE
ALLEGED TORTS OF THEIR SUBORDINATE OFFICIALS AND
EMPLOYEES, INSPITE OF THE PROVISIONS OF SECTION 4
OF THE REPUBLIC ACT NO. 409 (REVISED CHARTER OF
MANILA) AND OTHER APPLICABLE JURISPRUDENCE ON
THE SUBJECT EXEMPTING THE PETITIONERS FROM
DAMAGES FROM THE MALFEASANCE OR MISFEASANCE
OF THEIR OFFICIALS AND EMPLOYEES, IF THERE BE ANY
IN THIS CASE. (Brief for Petitioners, Rollo, pp. 93-94)
In the resolution dated November 13, 1985 (,Rollo, p. 84), the petition was given due
course.
The pivotal issue of this case is whether or not the operations and functions of a
public cemetery are a governmental, or a corporate or proprietary function of the
City of Manila. The resolution of this issue is essential to the determination of the
liability for damages of the petitioner city.
20 | P a g e

Petitioners alleged in their petition that the North Cemetery is exclusively devoted
for public use or purpose as stated in Sec. 316 of the Compilation of the Ordinances
of the City of Manila. They conclude that since the City is a political subdivision in
the performance of its governmental function, it is immune from tort liability which
may be caused by its public officers and subordinate employees. Further Section 4,
Article I of the Revised Charter of Manila exempts the city from liability for damages
or injuries to persons or property arising from the failure of the Mayor, the Municipal
Board, or any other city officer, to enforce the provision of its charter or any other
laws, or ordinance, or from negligence of said Mayor, Municipal Board or any other
officers while enforcing or attempting to enforce said provisions. They allege that the
Revised Charter of Manila being a special law cannot be defeated by the Human
Relations provisions of the Civil Code being a general law.
Private respondents on the other hand maintain that the City of Manila entered into
a contract of lease which involve the exercise of proprietary functions with private
respondent Irene Sto. Domingo. The city and its officers therefore can be sued for
any-violation of the contract of lease.
Private respondents' contention is well-taken.
Under Philippine laws, the City of Manila is a political body corporate and as such
endowed with the faculties of municipal corporations to be exercised by and through
its city government in conformity with law, and in its proper corporate name. It may
sue and be sued, and contract and be contracted with. Its powers are twofold in
character-public, governmental or political on the one hand, and corporate, private
and proprietary on the other. Governmental powers are those exercised in
administering the powers of the state and promoting the public welfare and they
include the legislative, judicial, public and political. Municipal powers on the one
hand are exercised for the special benefit and advantage of the community and
include those which are ministerial, private and corporate. In McQuillin on Municipal
Corporation, the rule is stated thus: "A municipal corporation proper has ... a public
character as regards the state at large insofar as it is its agent in government, and
private (so called) insofar as it is to promote local necessities and conveniences for
its own community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the
powers of a municipal corporation, it may acquire property in its public or
governmental capacity, and private or proprietary capacity. The New Civil Code
divides such properties into property for public use and patrimonial properties
(Article 423), and further enumerates the properties for public use as provincial
roads, city streets, municipal streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by said provisions, cities
or municipalities, all other property is patrimonial without prejudice to the provisions
of special laws (Article 424; Province of Zamboanga del Norte v. City of Zamboanga,
et al., 22 SCRA 1334 [1968]).
Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary
functions the settled rule is that a municipal corporation can be held liable to third
persons ex contractu (Municipality of Moncada v. Cajuigan, et al., 21 Phil. 184
(1912) or ex delicto (Mendoza v. de Leon, 33 Phil. 508 (1916).
LGC Sec. 17-22,48-59
The Court further stressed:
Municipal corporations are subject to be sued upon contracts and
in tort....
xxx xxx xxx
The rule of law is a general one, that the superior or employer
must answer civilly for the negligence or want of skill of its agent
or servant in the course or line of his employment, by which
another who is free from contributory fault, is injured. Municipal
corporations under the conditions herein stated, fall within tile
operation of this rule of law, and are liable accordingly, to civil
actions for damages when the requisite elements of liability co-
exist. ... (Emphasis supplied)
The Court added:
... while the following are corporate or proprietary in character, viz:
municipal waterworks, slaughter houses, markets, stables,
bathing establishments, wharves, ferries and
fisheries. Maintenance of parks, golf courses, cemeteries and
airports among others, are also recognized as municipal or city
activities of a proprietary character. (Dept. of Treasury v. City of
Evansvulle, Sup. Ct. of Indiana, 60 N.E. 2nd 952, 954 cited in
Torio v. Fontanilla, supra) (Emphasis supplied)
Under the foregoing considerations and in the absence of a special law, the North
Cemetery is a patrimonial property of the City of Manila which was created by
resolution of the Municipal Board of August 27, 1903 and January 7, 1904 (Petition,
Rollo pp. 20-21 Compilation of the Ordinances of the City of Manila). The
administration and government of the cemetery are under the City Health Officer
(Ibid., Sec. 3189), the order and police of the cemetery (Ibid., See. 319), the opening
of graves, niches, or tombs, the exhuming of remains, and the purification of the
same (Ibid., Sec. 327) are under the charge and responsibility of the superintendent
of the cemetery. The City of Manila furthermore prescribes the procedure and
guidelines for the use and dispositions of burial lots and plots within the North
Cemetery through Administrative Order No. 5, s. 1975 (Rollo, p. 44). With the acts
of dominion, there is, therefore no doubt that the North Cemetery is within the class
of property which the City of Manila owns in its proprietary or private character.
Furthermore, there is no dispute that the burial lot was leased in favor of the private
respondents. Hence, obligations arising from contracts have the force of law
between the contracting parties. Thus a lease contract executed by the lessor and
lessee remains as the law between them. (Henson v. Intermediate Appellate Court,
148 SCRA 11 [1 987]). Therefore, a breach of contractual provision entitles the other
party to damages even if no penalty for such breach is prescribed in the contract.
(Boysaw v. Interphil Promotions, Inc., 148 SCRA 635 [1987]).
21 | P a g e
 LGC Sec. 17-22,48-59

Noteworthy are the findings of the Court of Appeals as to the harrowing experience
of private respondents and their wounded feelings upon discovery that the remains
of their loved one were exhumed without their knowledge and consent, as said Court
declared:
It has been fully established that the appellants, in spite or
perhaps because, of their lowly station in life have found great
consolation in their bereavement from the loss of their family
head, by visiting his grave on special or even ordinary occasions,
but particularly on All Saints Day, in keeping with the deep,
beautiful and Catholic Filipino tradition of revering the memory of
their dead. It would have been but fair and equitable that they
were notified of the intention of the city government to transfer the
skeletal remains of the late Vivencio Sto. Domingo to give them
an opportunity to demand the faithful fulfillment of their contract,
or at least to prepare and make provisions for said transfer in
order that they would not lose track of the remains of their beloved
dead, as what has actually happened on this case. We
understand fully what the family of the deceased must have felt
when on All Saints Day of 1978, they found a new marker on the
grave they were to visit, only to be told to locate their beloved
dead among thousands of skeletal remains which to them was
desecration and an impossible task. Even the lower court
recognized this when it stated in its decision thus:
As regards the issue of the validity of the contract of lease of grave lot No. 159,
Block No. 195 of the North Cemetery for 50 years beginning from June 6, 1971 to
June 6, 2021 as clearly stated in the receipt duly signed by the deputy treasurer of
the City of Manila and sealed by the city government, there is nothing in the record
that justifies the reversal of the conclusion of both the trial court and the Intermediate
Appellate Court to the effect that the receipt is in itself a contract of lease. (Decision,
Intermediate Appellate Court, p. 3, Rollo, pp. 5-6).
Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner
City of Manila is liable for the tortious act committed by its agents who failed to verify
and check the duration of the contract of lease. The contention of the petitioner-city
that the lease is covered by Administrative Order No. 5, series of 1975 dated March
6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is
not meritorious for the said administrative order covers new leases. When subject
lot was certified on January 25, 1978 as ready for exhumation, the lease contract
for fifty (50) years was still in full force and effect.
PREMISES CONSIDERED, the Decision of the Intermediate Appellate Court is
hereby AFFIRMED.
SO ORDERED.

All things considered, even as the Court

commiserates with plaintiffs for the unfortunate
happening complained of and untimely
desecration of the resting place and remains of
their deceased dearly beloved, it finds the
reliefs prayed for by them lacking in legal and
factual basis. Under the aforementioned facts
and circumstances, the most that plaintiffs ran
ask for is the replacement of subject lot with
another lot of equal size and similar location in
the North Cemetery which substitute lot
plaintiffs can make use of without paying any
rental to the city government for a period of
forty-three (43) years, four (4) months and
eleven (11) days corresponding to the
unexpired portion of the term of the lease sued
upon as of January 25, 1978 when the remains
of the late Vivencio Sto. Domingo, Sr. were
prematurely removed from the disputed lot; and
to require the defendants to look in earnest for
the bones and skull of the late Vivencio Sto.
Domingo Sr. and to bury the same in the
substitute lot adjudged in favor of plaintiffs
hereunder. (Decision, Intermediate Appellate
Court, p. 7, Rollo, p. 39)

22 | P a g e

EN BANC
G.R. No. 161107 March 12, 2013
HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina
City, JOSEPHINE C. EVANGELIST A, in her capacity as Chief, Permit Division,
Office of the City Engineer, and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-
MARIKINA, INC., Respondents.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, which seeks to set aside the December 1, 2003 Decision 1 of the Court of
Appeals (CA) in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholastica’s College (SSC) and St. Scholastica’s Academy-
Marikina, Inc. (SSA-Marikina) are educational institutions organized under the laws
of the Republic of the Philippines, with principal offices and business addresses at
Leon Guinto Street, Malate, Manila, and at West Drive, Marikina Heights, Marikina
City, respectively.2
Respondent SSC is the owner of four (4) parcels of land measuring a total of
56,306.80 square meters, located in Marikina Heights and covered by Transfer
Certificate Title (TCT) No. 91537. Located within the property are SSA-Marikina, the
residence of the sisters of the Benedictine Order, the formation house of the novices,
and the retirement house for the elderly sisters. The property is enclosed by a tall
concrete perimeter fence built some thirty (30) years ago. Abutting the fence along
the West Drive are buildings, facilities, and other improvements. 3
The petitioners are the officials of the City Government of Marikina. On September
30, 1994, the Sangguniang Panlungsod of Marikina City enacted Ordinance No.
192,4 entitled "Regulating the Construction of Fences and Walls in the Municipality
of Marikina." In 1995 and 1998, Ordinance Nos. 217 5 and 2006 were enacted to
amend Sections 7 and 5, respectively. Ordinance No. 192, as amended, is
reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
LGC Sec. 17-22,48-59
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN
THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the
Local Government Code of 1991 empowers the Sangguniang Bayan as the local
legislative body of the municipality to "x x x Prescribe reasonable limits and restraints
on the use of property within the jurisdiction of the municipality, x x x";
WHEREAS the effort of the municipality to accelerate its economic and physical
development, coupled with urbanization and modernization, makes imperative the
adoption of an ordinance which shall embody up-to-date and modern technical
design in the construction of fences of residential, commercial and industrial
buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the National
Building Code of the Philippines, does not adequately provide technical guidelines
for the construction of fences, in terms of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide more efficient
and effective enforcement of laws on public safety and security;
WHEREAS, it has occurred in not just a few occasions that high fences or walls did
not actually discourage but, in fact, even protected burglars, robbers, and other
lawless elements from the view of outsiders once they have gained ingress into
these walls, hence, fences not necessarily providing security, but becomes itself a
"security problem";
WHEREAS, to discourage, suppress or prevent the concealment of prohibited or
unlawful acts earlier enumerated, and as guardian of the people of Marikina, the
municipal government seeks to enact and implement rules and ordinances to protect
and promote the health, safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of the government,
lowering of fences and walls shall encourage people to plant more trees and
ornamental plants in their yards, and when visible, such trees and ornamental plants
are expected to create an aura of a clean, green and beautiful environment for
Marikeños;
WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks
to "beautify" the façade of their residences but, however, become hazards and
obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-neighborly"
preventing community members to easily communicate and socialize and deemed
to create "boxed-in" mentality among the populace;
23 | P a g e

WHEREAS, to gather as wide-range of opinions and comments on this proposal,
and as a requirement of the Local Government Code of 1991 (R.A. 7160), the
Sangguniang Bayan of Marikina invited presidents or officers of homeowners
associations, and commercial and industrial establishments in Marikina to two public
hearings held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance were fully
presented to the attendees and no vehement objection was presented to the
municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN OF
MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of all fences, walls
and gates on lots classified or used for residential, commercial, industrial, or special
purposes.
Section 2. Definition of Terms:
a. Front Yard – refers to the area of the lot fronting a street, alley or public
thoroughfare.
b. Back Yard – the part of the lot at the rear of the structure constructed
therein.
c. Open fence – type of fence which allows a view of "thru-see" of the inner
yard and the improvements therein. (Examples: wrought iron, wooden
lattice, cyclone wire)
d. Front gate – refers to the gate which serves as a passage of persons or
vehicles fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this ordinance are
as follows:
(1) Fences on the front yard – shall be no more than one (1) meter in height.
Fences in excess of one (1) meter shall be of an open fence type, at least
eighty percent (80%) see-thru; and
(2) Fences on the side and back yard – shall be in accordance with the
provisions of P.D. 1096 otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas specifically reserved or
classified as parks.
LGC Sec. 17-22,48-59
Section 5. In no case shall walls and fences be built within the five (5) meter parking
area allowance located between the front monument line and the building line of
commercial and industrial establishments and educational and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential
subdivisions.
(2) When public safety or public welfare requires, the Sangguniang Bayan
may allow the construction and/or maintenance of walls higher than as
prescribed herein and shall issue a special permit or exemption.
Section 7. Transitory Provision. Real property owners whose existing fences and
walls do not conform to the specifications herein are allowed adequate period of
time from the passage of this Ordinance within which to conform, as follows:
(1) Residential houses – eight (8) years
(2) Commercial establishments – five (5) years
(3) Industrial establishments – three (3) years
(4) Educational institutions – five (5) years8 (public and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance
shall be demolished by the municipal government at the expense of the owner of
the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly implement this
ordinance, including the issuance of the necessary implementing guidelines,
issuance of building and fencing permits, and demolition of non-conforming walls at
the lapse of the grace period herein provided.
Section 10. Repealing Clause. All existing Ordinances and Resolutions, Rules and
Regulations inconsistent with the foregoing provisions are hereby repealed,
amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local executive orders,
rules and regulations or parts thereof in conflict with this Ordinance are hereby
repealed and/or modified accordingly.
Section 12. Effectivity. This ordinance takes effect after publication.
APPROVED: September 30, 1994
24 | P a g e

(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to the respondents
ordering them to demolish and replace the fence of their Marikina property to make
it 80% see-thru, and, at the same time, to move it back about six (6) meters to
provide parking space for vehicles to park. 9 On April 26, 2000, the respondents
requested for an extension of time to comply with the directive. 10 In response, the
petitioners, through then City Mayor Bayani F. Fernando, insisted on the
enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for prohibition with an application
for a writ of preliminary injunction and temporary restraining order before the
Regional Trial Court, Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-
381-MK.11
The respondents argued that the petitioners were acting in excess of jurisdiction in
enforcing Ordinance No. 192, asserting that such contravenes Section 1, Article III
of the 1987 Constitution. That demolishing their fence and constructing it six (6)
meters back would result in the loss of at least 1,808.34 square meters, worth about
₱9,041,700.00, along West Drive, and at least 1,954.02 square meters, worth
roughly ₱9,770,100.00, along East Drive. It would also result in the destruction of
the garbage house, covered walk, electric house, storage house, comfort rooms,
guards’ room, guards’ post, waiting area for visitors, waiting area for students,
Blessed Virgin Shrine, P.E. area, and the multi-purpose hall, resulting in the
permanent loss of their beneficial use. The respondents, thus, asserted that the
implementation of the ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the petitioners could
only appropriate a portion of their property through eminent domain. They also
pointed out that the goal of the provisions to deter lawless elements and criminality
did not exist as the solid concrete walls of the school had served as sufficient
protection for many years.12
The petitioners, on the other hand, countered that the ordinance was a valid exercise
of police power, by virtue of which, they could restrain property rights for the
protection of public safety, health, morals, or the promotion of public convenience
and general prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the
petitioners from implementing the demolition of the fence at SSC’s Marikina
property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2, 2002, granting the
petition and ordering the issuance of a writ of prohibition commanding the petitioners
to permanently desist from enforcing or implementing Ordinance No. 192 on the
respondents’ property.
LGC Sec. 17-22,48-59
The RTC agreed with the respondents that the order of the petitioners to demolish
the fence at the SSC property in Marikina and to move it back six (6) meters would
amount to an appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not take the
respondents’ property under the guise of police power to evade the payment of just
compensation.
It did not give weight to the petitioners’ contention that the parking space was for the
benefit of the students and patrons of SSA-Marikina, considering that the
respondents were already providing for sufficient parking in compliance with the
standards under Rule XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run counter to the
respondents’ right to privacy, considering that the property also served as a
residence of the Benedictine sisters, who were entitled to some sense of privacy in
their affairs. It also found that the respondents were able to prove that the danger to
security had no basis in their case. Moreover, it held that the purpose of
beautification could not be used to justify the exercise of police power.
It also observed that Section 7 of Ordinance No. 192, as amended, provided for
retroactive application. It held, however, that such retroactive effect should not
impair the respondents’ vested substantive rights over the perimeter walls, the six-
meter strips of land along the walls, and the building, structures, facilities, and
improvements, which would be destroyed by the demolition of the walls and the
seizure of the strips of land.
The RTC also found untenable the petitioners’ argument that Ordinance No. 192
was a remedial or curative statute intended to correct the defects of buildings and
structures, which were brought about by the absence or insufficiency of laws. It ruled
that the assailed ordinance was neither remedial nor curative in nature, considering
that at the time the respondents’ perimeter wall was built, the same was valid and
legal, and the ordinance did not refer to any previous legislation that it sought to
correct.
The RTC noted that the petitioners could still take action to expropriate the subject
property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued
commanding the respondents to permanently desist from enforcing or implementing
Ordinance No. 192, Series of 1994, as amended, on petitioners’ property in question
located at Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
25 | P a g e

Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners’ appeal and
affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify
the exercise of police power, as it did not only seek to regulate, but also involved the
taking of the respondents’ property without due process of law. The respondents
were bound to lose an unquantifiable sense of security, the beneficial use of their
structures, and a total of 3,762.36 square meters of property. It, thus, ruled that the
assailed ordinance could not be upheld as valid as it clearly invaded the personal
and property rights of the respondents and "[f]or being unreasonable, and undue
restraint of trade."17
It noted that although the petitioners complied with procedural due process in
enacting Ordinance No. 192, they failed to comply with substantive due process.
Hence, the failure of the respondents to attend the public hearings in order to raise
objections did not amount to a waiver of their right to question the validity of the
ordinance.
The CA also shot down the argument that the five-meter setback provision for
parking was a legal easement, the use and ownership of which would remain with,
and inure to, the benefit of the respondents for whom the easement was primarily
intended. It found that the real intent of the setback provision was to make the
parking space free for use by the public, considering that such would cease to be
for the exclusive use of the school and its students as it would be situated outside
school premises and beyond the school administration’s control.
In affirming the RTC ruling that the ordinance was not a curative statute, the CA
found that the petitioner failed to point out any irregularity or invalidity in the
provisions of the National Building Code that required correction or cure. It noted
that any correction in the Code should be properly undertaken by the Congress and
not by the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal is
DENIED.1âwphi1 The October 2, 2002 Decision and the January 13, 2003 Order of
the Regional Trial Court (RTC) of Marikina City, Branch 273, granting petitioners-
appellees’ petition for Prohibition in SCA Case No. 2000-381-MK are hereby
AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now before this Court
presenting the following
LGC Sec. 17-22,48-59
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN DECLARING THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS
NOT A VALID EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN RULING THAT THE AFOREMENTIONED ORDINANCE IS AN
EXERCISE OF THE CITY OF THE POWER OF EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN DECLARING THAT THE CITY VIOLATED THE DUE PROCESS
CLAUSE IN IMPLEMENTING ORDINANCE NO. 192, SERIES OF 1994;
AND
4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN RULING THAT THE ABOVE-MENTIONED ORDINANCE CANNOT BE
GIVEN RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed ordinance, pertaining
to the five-meter setback requirement is, as held by the lower courts,
invalid.20 Nonetheless, the petitioners argue that such invalidity was subsequently
cured by Zoning Ordinance No. 303, series of 2000. They also contend that Section
3, relating to the 80% see-thru fence requirement, must be complied with, as it
remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance
No. 192 are valid exercises of police power by the City Government of Marikina.
"Police power is the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good order or safety
and general welfare of the people."21 The State, through the legislature, has
delegated the exercise of police power to local government units, as agencies of the
State. This delegation of police power is embodied in Section 16 22 of the Local
Government Code of 1991 (R.A. No. 7160), known as the General Welfare
Clause,23 which has two branches. "The first, known as the general legislative
power, authorizes the municipal council to enact ordinances and make regulations
not repugnant to law, as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by law. The second, known
as the police power proper, authorizes the municipality to enact ordinances as may
be necessary and proper for the health and safety, prosperity, morals, peace, good
order, comfort, and convenience of the municipality and its inhabitants, and for the
protection of their property."24
White Light Corporation v. City of Manila,25 discusses the test of a valid ordinance:
26 | P a g e

The test of a valid ordinance is well established. A long line of decisions including
City of Manila has held that for an ordinance to be valid, it must not only be within
the corporate powers of the local government unit to enact and pass according to
the procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable. 26
Ordinance No. 192 was passed by the City Council of Marikina in the apparent
exercise of its police power. To successfully invoke the exercise of police power as
the rationale for the enactment of an ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used by the Court – the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate governmental interest. Under
intermediate review, governmental interest is extensively examined and the
availability of less restrictive measures is considered. Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for achieving that interest. 27
Even without going to a discussion of the strict scrutiny test, Ordinance No. 192,
series of 1994 must be struck down for not being reasonably necessary to
accomplish the City’s purpose. More importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must pass the following requisites
as discussed in Social Justice Society (SJS) v. Atienza, Jr.: 28
As with the State, local governments may be considered as having properly
exercised their police power only if the following requisites are met: (1) the interests
of the public generally, as distinguished from those of a particular class, require its
exercise and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. In
short, there must be a concurrence of a lawful subject and lawful method. 29
Lacking a concurrence of these two requisites, the police power measure shall be
struck down as an arbitrary intrusion into private rights and a violation of the due
process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:
Section 3. The standard height of fences of walls allowed under this ordinance are
as follows:
LGC Sec. 17-22,48-59
(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences
in excess of one (1) meter shall be an open fence type, at least eighty percent (80%)
see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five (5) meter parking
area allowance located between the front monument line and the building line of
commercial and industrial establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring them to (1)
demolish their existing concrete wall, (2) build a fence (in excess of one meter) which
must be 80% see-thru, and (3) build the said fence six meters back in order to
provide a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the five-meter setback
of the fence to provide for a parking area. The petitioners initially argued that the
ownership of the parking area to be created would remain with the respondents as
it would primarily be for the use of its students and faculty, and that its use by the
public on non-school days would only be incidental. In their Reply, however, the
petitioners admitted that Section 5 was, in fact, invalid for being repugnant to the
Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback requirement was
to make the parking space free for use by the public, considering that it would no
longer be for the exclusive use of the respondents as it would also be available for
use by the general public. Section 9 of Article III of the 1987 Constitution, a provision
on eminent domain, provides that private property shall not be taken for public use
without just compensation.
The petitioners cannot justify the setback by arguing that the ownership of the
property will continue to remain with the respondents. It is a settled rule that neither
the acquisition of title nor the total destruction of value is essential to taking. In fact,
it is usually in cases where the title remains with the private owner that inquiry should
be made to determine whether the impairment of a property is merely regulated or
amounts to a compensable taking.32 The Court is of the view that the implementation
of the setback requirement would be tantamount to a taking of a total of 3,762.36
square meters of the respondents’ private property for public use without just
compensation, in contravention to the Constitution.
Anent the objectives of prevention of concealment of unlawful acts and "un-
neighborliness," it is obvious that providing for a parking area has no logical
27 | P a g e

connection to, and is not reasonably necessary for, the accomplishment of these
goals.
Regarding the beautification purpose of the setback requirement, it has long been
settled that the State may not, under the guise of police power, permanently divest
owners of the beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community.33 The Court, thus, finds Section 5 to be
unreasonable and oppressive as it will substantially divest the respondents of the
beneficial use of their property solely for aesthetic purposes. Accordingly, Section 5
of Ordinance No. 192 is invalid.
The petitioners, however, argue that the invalidity of Section 5 was properly cured
by Zoning Ordinance No. 303,34Series of 2000, which classified the respondents’
property to be within an institutional zone, under which a five-meter setback has
been required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to
the case at hand.
The Court notes with displeasure that this argument was only raised for the first time
on appeal in this Court in the petitioners’ Reply. Considering that Ordinance No. 303
was enacted on December 20, 2000, the petitioners could very well have raised it in
their defense before the RTC in 2002. The settled rule in this jurisdiction is that a
party cannot change the legal theory of this case under which the controversy was
heard and decided in the trial court. It should be the same theory under which the
review on appeal is conducted. Points of law, theories, issues, and arguments not
adequately brought to the attention of the lower court will not be ordinarily
considered by a reviewing court, inasmuch as they cannot be raised for the first time
on appeal. This will be offensive to the basic rules of fair play, justice, and due
process.35
Furthermore, the two ordinances have completely different purposes and subjects.
Ordinance No. 192 aims to regulate the construction of fences, while Ordinance No.
303 is a zoning ordinance which classifies the city into specific land uses. In fact,
the five-meter setback required by Ordinance No. 303 does not even appear to be
for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section
5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by the respondents
is Ordinance No. 192 and, as such, the precise issue to be determined is whether
the petitioners can be prohibited from enforcing the said ordinance, and no other,
against the respondents.
80% See-Thru Fence Requirement
LGC Sec. 17-22,48-59
The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid,
Section 3.1 limiting the height of fences to one meter and requiring fences in excess
of one meter to be at least 80% see-thru, should remain valid and enforceable
against the respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the petitioners must show the
reasonable relation between the purpose of the police power measure and the
means employed for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded.36
The principal purpose of Section 3.1 is "to discourage, suppress or prevent the
concealment of prohibited or unlawful acts." The ultimate goal of this objective is
clearly the prevention of crime to ensure public safety and security. The means
employed by the petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to private rights. The
petitioners have not adequately shown, and it does not appear obvious to this Court,
that an 80% see-thru fence would provide better protection and a higher level of
security, or serve as a more satisfactory criminal deterrent, than a tall solid concrete
wall. It may even be argued that such exposed premises could entice and tempt
would-be criminals to the property, and that a see-thru fence would be easier to
bypass and breach. It also appears that the respondents’ concrete wall has served
as more than sufficient protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as previously discussed,
the State may not, under the guise of police power, infringe on private rights solely
for the sake of the aesthetic appearance of the community. Similarly, the Court
cannot perceive how a see-thru fence will foster "neighborliness" between members
of a community.
Compelling the respondents to construct their fence in accordance with the assailed
ordinance is, thus, a clear encroachment on their right to property, which necessarily
includes their right to decide how best to protect their property.
It also appears that requiring the exposure of their property via a see-thru fence is
violative of their right to privacy, considering that the residence of the Benedictine
nuns is also located within the property. The right to privacy has long been
considered a fundamental right guaranteed by the Constitution that must be
protected from intrusion or constraint. The right to privacy is essentially the right to
be let alone,37 as governmental powers should stop short of certain intrusions into
the personal life of its citizens.38 It is inherent in the concept of liberty, enshrined in
the Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987
Constitution.39
28 | P a g e
 LGC Sec. 17-22,48-59

The enforcement of Section 3.1 would, therefore, result in an undue interference Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot
with the respondents’ rights to property and privacy. Section 3.1 of Ordinance No. be enforced against the respondents. Nonetheless, "the general rule is that where
192 is, thus, also invalid and cannot be enforced against the respondents. part of a statute is void as repugnant to the Constitution, while another part is valid,
the valid portion, if susceptible to being separated from the invalid, may stand and
No Retroactivity be enforced."42 Thus, the other sections of the assailed ordinance remain valid and
enforceable.
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including the
regulation of educational institutions which was unintentionally omitted, and giving Conclusion
said educational institutions five (5) years from the passage of Ordinance No. 192
(and not Ordinance No. 217) to conform to its provisions. 40 The petitioners argued Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were
that the amendment could be retroactively applied because the assailed ordinance acting in excess of their jurisdiction in enforcing Ordinance No. 192 against the
is a curative statute which is retroactive in nature. respondents. The CA was correct in affirming the decision of the RTC in issuing the
writ of prohibition. The petitioners must permanently desist from enforcing Sections
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced 3.1 and 5 of the assailed ordinance on the respondents' property in Marikina City.
against the respondents, it is no longer necessary to rule on the issue of retroactivity.
The Court shall, nevertheless, pass upon the issue for the sake of clarity. WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the
Regional Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but MODIFIED
"Curative statutes are enacted to cure defects in a prior law or to validate legal to read as follows:
proceedings which would otherwise be void for want of conformity with certain legal
requirements. They are intended to supply defects, abridge superfluities and curb WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued
certain evils. They are intended to enable persons to carry into effect that which they commanding the respondents to permanently desist from enforcing or implementing
have designed or intended, but has failed of expected legal consequence by reason Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as amended, on the
of some statutory disability or irregularity in their own action. They make valid that petitioners' property in question located in Marikina Heights, Marikina, Metro Manila.
which, before the enactment of the statute was invalid. Their purpose is to give
validity to acts done that would have been invalid under existing laws, as if existing No pronouncement as to costs.
laws have been complied with. Curative statutes, therefore, by their very essence,
are retroactive."41
SO ORDERED.
The petitioners argue that Ordinance No. 192 is a curative statute as it aims to
correct or cure a defect in the National Building Code, namely, its failure to provide
for adequate guidelines for the construction of fences. They ultimately seek to
remedy an insufficiency in the law. In aiming to cure this insufficiency, the petitioners
attempt to add lacking provisions to the National Building Code. This is not what is
contemplated by curative statutes, which intend to correct irregularities or invalidity
in the law. The petitioners fail to point out any irregular or invalid provision. As such,
the assailed ordinance cannot qualify as curative and retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building Code with
respect to parking provisions in relation to the issue of the respondents. Paragraph
1.16.1, Rule XIX of the Rules and Regulations of the said code requires an
educational institution to provide one parking slot for every ten classrooms. As found
by the lower courts, the respondents provide a total of 76 parking slots for their 80
classrooms and, thus, had more than sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which may be
applied retroactively.

Separability

29 | P a g e
 LGC Sec. 17-22,48-59

FIRST DIVISION the Philippines, represented by the Department of Energy (DOE), filed their
respective motions for leave to intervene and for reconsideration of the decision.
SOCIAL JUSTICE SOCIETY G.R. No. 156052 Chevron[1] is engaged in the business of importing, distributing and
(SJS), VLADIMIR ALARIQUE T. marketing of petroleum products in the Philippines while Shell and Petron are
CABIGAO and BONIFACIO S. engaged in the business of manufacturing, refining and likewise importing,
TUMBOKON, distributing and marketing of petroleum products in the Philippines.[2] The DOE
Petitioners, Present: is a governmental agency created under Republic Act (RA) No. 7638 [3] and
tasked to prepare, integrate, coordinate, supervise and control all plans,
PUNO, C.J., Chairperson, programs, projects and activities of the government relative to energy
SANDOVAL-GUTIERREZ, exploration, development, utilization, distribution and conservation. [4]
- v e r s u s - CORONA, The facts are restated briefly as follows:
AZCUNA and
LEONARDO-DE Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and
CASTRO, JJ. Bonifacio S. Tumbokon, in an original petition for mandamus under Rule 65 of the
Rules of Court, sought to compel respondent Hon. Jose L. Atienza, Jr., then mayor
HON. JOSE L. ATIENZA, JR., of the City of Manila, to enforce Ordinance No. 8027. This ordinance was enacted
in his capacity as Mayor of the by the Sangguniang Panlungsod of Manila on November 20, 2001,[5] approved by
City of Manila, respondent Mayor on November 28, 2001,[6] and became effective on December 28,
Respondent. 2001 after publication.[7] Sections 1 and 3 thereof state:

x----------------------x SECTION 1. For the purpose of promoting sound urban planning

and ensuring health, public safety, and general welfare of the
residents of Pandacan and Sta. Ana as well as its adjoining areas,
CHEVRON PHILIPPINES INC., the land use of [those] portions of land bounded by the Pasig
PETRON CORPORATION and River in the north, PNR Railroad Track in the east, Beata St. in
PILIPINAS SHELL PETROLEUM the south, Palumpong St. in the southwest, and Estero de
CORPORATION, Pandacan in the west[,] PNR Railroad in the northwest area,
Movants-Intervenors. Estero de Pandacan in the [n]ortheast, Pasig River in the
southeast and Dr. M.L. Carreon in the southwest. The area of
Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero
x----------------------x St., Mayo 28 St., and F. Manalo Street, are hereby reclassified
from Industrial II to Commercial I.

DEPARTMENT OF ENERGY, xxx xxx xxx

Movant-Intervenor. Promulgated:
February 13, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
RESOLUTION
CORONA, J.:
After we promulgated our decision in this case on March 7, 2007, Chevron
Philippines Inc. (Chevron), Petron Corporation (Petron) and Pilipinas Shell
Petroleum Corporation (Shell) (collectively, the oil companies) and the Republic of
SEC. 3. Owners or operators of industries and other businesses,
the operation of which are no longer permitted under Section 1
hereof, are hereby given a period of six (6) months from the date
of effectivity of this Ordinance within which to cease and desist
from the operation of businesses which are hereby in
consequence, disallowed.
Ordinance No. 8027 reclassified the area described therein from industrial
to commercial and directed the owners and operators of businesses disallowed
under the reclassification to cease and desist from operating their businesses within
six months from the date of effectivity of the ordinance. Among the businesses
situated in the area are the so-called Pandacan Terminals of the oil companies.
On June 26, 2002, the City of Manila and the Department of Energy (DOE)
entered into a memorandum of understanding (MOU)[8] with the oil companies. They

30 | P a g e

agreed that the scaling down of the Pandacan Terminals [was] the most viable and
practicable option. The Sangguniang Panlungsod ratified the MOU in Resolution
No. 97.[9] In the same resolution, the Sanggunian declared that the MOU was
effective only for a period of six months starting July 25, 2002. [10]Thereafter, on
January 30, 2003, the Sanggunian adopted Resolution No. 13[11] extending the
validity of Resolution No. 97 to April 30, 2003 and authorizing the mayor of Manila
to issue special business permits to the oil companies. [12]
This was the factual backdrop presented to the Court which became the
basis of our March 7, 2007 decision. We ruled that respondent had the ministerial
duty under the Local Government Code (LGC) to enforce all laws and ordinances
relative to the governance of the city,[13] including Ordinance No. 8027. We also held
that we need not resolve the issue of whether the MOU entered into by respondent
with the oil companies and the subsequent resolutions passed by
the Sangguniancould amend or repeal Ordinance No. 8027 since the resolutions
which ratified the MOU and made it binding on the City of Manila expressly gave it
full force and effect only until April 30, 2003. We concluded that there was nothing
that legally hindered respondent from enforcing Ordinance No. 8027.
After we rendered our decision on March 7, 2007, the oil companies and
DOE sought to intervene and filed motions for reconsideration in intervention on
March 12, 2007 and March 21, 2007 respectively. On April 11, 2007, we conducted
the oral arguments in Baguio City to hear petitioners, respondent and movants-
intervenors oil companies and DOE.
The oil companies called our attention to the fact that on April 25, 2003,
Chevron had filed a complaint against respondent and the City of Manila in the
Regional Trial Court (RTC) of Manila, Branch 39, for the annulment of Ordinance
No. 8027 with application for writs of preliminary prohibitory injunction and
preliminary mandatory injunction.[14] The case was docketed as civil case no. 03-
106377. On the same day, Shell filed a petition for prohibition
and mandamuslikewise assailing the validity of Ordinance No. 8027 and with
application for writs of preliminary prohibitory injunction and preliminary mandatory
injunction.[15]This was docketed as civil case no. 03-106380. Later on, these two
cases were consolidated and the RTC of Manila, Branch 39 issued an order dated
May 19, 2003 granting the applications for writs of preliminary prohibitory injunction
and preliminary mandatory injunction:
WHEREFORE, upon the filing of a total bond of TWO
MILLION (Php 2,000,000.00) PESOS, let a Writ of Preliminary
Prohibitory Injunction be issued ordering [respondent] and the
City of Manila, their officers, agents, representatives, successors,
and any other persons assisting or acting in their behalf, during
the pendency of the case, to REFRAIN from taking steps to
enforce Ordinance No. 8027, and let a Writ of Preliminary
Mandatory Injunction be issued ordering [respondent] to issue
[Chevron and Shell] the necessary Business Permits to operate
at the Pandacan Terminal.[16]
LGC Sec. 17-22,48-59
Petron likewise filed its own petition in the RTC of Manila, Branch 42, also
attacking the validity of Ordinance No. 8027 with prayer for the issuance of a writ
of preliminary injunction and/or temporary restraining order (TRO). This was
docketed as civil case no. 03-106379. In an order dated August 4, 2004, the RTC
enjoined the parties to maintain the status quo.[17]
Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also
known as the Manila Comprehensive Land Use Plan and Zoning Ordinance of
2006.[18] This was approved by respondent on June 16, 2006.[19]
Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila,
Branch 20, asking for the nullification of Ordinance No. 8119. [20] This was
docketed as civil case no. 06-115334. Petron filed its own complaint on the same
causes of action in the RTC of Manila, Branch 41. [21] This was docketed as civil
case no. 07-116700.[22] The court issued a TRO in favor of Petron, enjoining the
City of Manila and respondent from enforcing Ordinance No. 8119.[23]
Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to
withdraw complaint and counterclaim on February 20, 2007. [24] In an order dated
April 23, 2007, the joint motion was granted and all the claims and counterclaims
of the parties were withdrawn.[25]
Given these additional pieces of information, the following were submitted
as issues for our resolution:
1. whether movants-intervenors should be allowed to intervene in
this case;[26]
2. whether the following are impediments to the execution of our
March 7, 2007 decision:
(a) Ordinance No. 8119, the enactment and
existence of which were not previously brought
by the parties to the attention of the Court and
(b) writs of preliminary prohibitory injunction and
preliminary mandatory injunction and status
quo order issued by the RTC of Manila,
Branches 39 and 42 and
3. whether the implementation of Ordinance No. 8027 will unduly
encroach upon the DOEs powers and functions involving energy
resources.
During the oral arguments, the parties submitted to this Courts power
to rule on the constitutionality and validity of Ordinance No. 8027 despite the
pendency of consolidated cases involving this issue in the RTC. [27] The
importance of settling this controversy as fully and as expeditiously as possible
was emphasized, considering its impact on public interest. Thus, we will also
dispose of this issue here. The parties were after all given ample opportunity to
present and argue their respective positions. By so doing, we will do away with
the delays concomitant with litigation and completely adjudicate an issue which
will most likely reach us anyway as the final arbiter of all legal disputes.
31 | P a g e

Before we resolve these issues, a brief review of the history of the
Pandacan Terminals is called for to put our discussion in the proper context.
HISTORY OF THE
PANDACAN
OIL TERMINALS
Pandacan (one of the districts of the City of Manila) is situated along the
banks of the Pasig river. At the turn of the twentieth century, Pandacan was
unofficially designated as the industrial center of Manila. The area, then largely
uninhabited, was ideal for various emerging industries as the nearby river facilitated
the transportation of goods and products. In the 1920s, it was classified as an
industrial zone.[28] Among its early industrial settlers were the oil companies. Shell
established its installation there on January 30, 1914. [29] Caltex (now Chevron)
followed suit in 1917 when the company began marketing its products in the
country.[30] In 1922, it built a warehouse depot which was later converted into a key
distribution terminal.[31] The corporate presence in the Philippines of Esso (Petrons
predecessor) became more keenly felt when it won a concession to build and
operate a refinery in Bataan in 1957.[32] It then went on to operate a state-of-the-art
lube oil blending plant in the Pandacan Terminals where it manufactures lubes and
greases.[33]
On December 8, 1941, the Second World War reached the shores of the
Philippine Islands. Although Manila was declared an open city, the Americans had
no interest in welcoming the Japanese. In fact, in their zealous attempt to fend off
the Japanese Imperial Army, the United States Army took control of the Pandacan
Terminals and hastily made plans to destroy the storage facilities to deprive the
advancing Japanese Army of a valuable logistics weapon. [34] The U.S. Army burned
unused petroleum, causing a frightening conflagration. Historian Nick Joaquin
recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all
army fuel storage dumps were set on fire. The flames spread,
enveloping the City in smoke, setting even the rivers ablaze,
endangering bridges and all riverside buildings. For one week
longer, the open city blazeda cloud of smoke by day, a pillar of
fire by night.[35]
The fire consequently destroyed the Pandacan Terminals and rendered its network
of depots and service stations inoperative.[36]
After the war, the oil depots were reconstructed. Pandacan changed as Manila
rebuilt itself. The three major oil companies resumed the operation of their
depots.[37]But the district was no longer a sparsely populated industrial zone; it had
evolved into a bustling, hodgepodge community. Today, Pandacan has become a
densely populated area inhabited by about 84,000 people, majority of whom are
urban poor who call it home.[38] Aside from numerous industrial installations, there
are also small businesses, churches, restaurants, schools, daycare centers and
LGC Sec. 17-22,48-59
residences situated there.[39] Malacaang Palace, the official residence of the
President of the Philippines and the seat of governmental power, is just two
kilometers away.[40] There is a private school near the Petron depot. Along the walls
of the Shell facility are shanties of informal settlers. [41] More than 15,000 students
are enrolled in elementary and high schools situated near these facilities. [42] A
university with a student population of about 25,000 is located directly across the
depot on the banks of the Pasig river.[43]
The 36-hectare Pandacan Terminals house the oil companies distribution terminals
and depot facilities.[44] The refineries of Chevron and Shell in Tabangao and Bauan,
both in Batangas, respectively, are connected to the Pandacan Terminals through a
114-kilometer[45] underground pipeline system.[46] Petrons refinery in Limay, Bataan,
on the other hand, also services the depot. [47] The terminals store fuel and other
petroleum products and supply 95% of the fuel requirements of Metro
Manila,[48] 50% of Luzons consumption and 35% nationwide. [49] Fuel can also be
transported through barges along the Pasig river or tank trucks via the South Luzon
Expressway.
We now discuss the first issue: whether movants-intervenors should be allowed to
intervene in this case.
INTERVENTION
OF THE OIL
COMPANIES AND
THE DOE
SHOULD BE
ALLOWED IN THE
INTEREST OF
JUSTICE
Intervention is a remedy by which a third party, not originally impleaded in the
proceedings, becomes a litigant therein to enable him, her or it to protect or
preserve a right or interest which may be affected by such proceedings.[50] The
pertinent rules are Sections 1 and 2, Rule 19 of the Rules of Court:
SEC. 1. Who may intervene. A person who has a legal
interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property
in the custody of the court or of an officer thereof may, with leave
of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and
whether or not the intervenors rights may be fully protected in a
separate proceeding.
SEC. 2. Time to intervene. The motion to intervene may
be filed at any time before rendition of judgment by the trial court.
A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties.
32 | P a g e

Thus, the following are the requisites for intervention of a non-party:
(1) Legal interest
(a) in the matter in controversy; or
(b) in the success of either of the parties; or
I against both parties; or
(d) person is so situated as to be adversely affected by
a distribution or other disposition of property in
the custody of the court or of an officer thereof;
(2) Intervention will not unduly delay or prejudice the adjudication
of rights of original parties;
(3) Intervenors rights may not be fully protected in a separate
proceeding[51] and
(g)The motion to intervene may be filed at any time before
rendition of judgment by the trial court.
For both the oil companies and DOE, the last requirement is definitely
absent. As a rule, intervention is allowed before rendition of judgment as Section
2, Rule 19 expressly provides. Both filed their separate motions after our
decision was promulgated. In Republic of the Philippines v. Gingoyon,[52] a
recently decided case which was also an original action filed in this Court, we
declared that the appropriate time to file the motions-in-intervention was before
and not after resolution of the case.[53]
The Court, however, has recognized exceptions to Section 2, Rule 19
in the interest of substantial justice:
The rule on intervention, like all other rules of procedure,
is intended to make the powers of the Court fully and completely
available for justice. It is aimed to facilitate a comprehensive
adjudication of rival claims overriding technicalities on the
timeliness of the filing thereof.[54]
The oil companies assert that they have a legal interest in this case
because the implementation of Ordinance No. 8027 will directly affect their
business and property rights.[55]
[T]he interest which entitles a person to intervene in a
suit between other parties must be in the matter in litigation and
of such direct and immediate character that the intervenor will
either gain or lose by direct legal operation and effect of the
judgment. Otherwise, if persons not parties to the action were
allowed to intervene, proceedings would become unnecessarily
complicated, expensive and interminable. And this would be
against the policy of the law. The words an interest in the subject
LGC Sec. 17-22,48-59
means a direct interest in the cause of action as pleaded, one that
would put the intervenor in a legal position to litigate a fact alleged
in the complaint without the establishment of which plaintiff could
not recover.[56]
We agree that the oil companies have a direct and immediate interest in
the implementation of Ordinance No. 8027. Their claim is that they will need to
spend billions of pesos if they are compelled to relocate their oil depots out of Manila.
Considering that they admitted knowing about this case from the time of its filing on
December 4, 2002, they should have intervened long before our March 7, 2007
decision to protect their interests. But they did not.[57] Neither did they offer any
worthy explanation to justify their late intervention.
Be that as it may, although their motion for intervention was not filed on
time, we will allow it because they raised and presented novel issues and
arguments that were not considered by the Court in its March 7, 2007 decision.
After all, the allowance or disallowance of a motion to intervene is addressed to
the sound discretion of the court before which the case is
pending.[58] Considering the compelling reasons favoring intervention, we do not
think that this will unduly delay or prejudice the adjudication of rights of the
original parties. In fact, it will be expedited since their intervention will enable us
to rule on the constitutionality of Ordinance No. 8027 instead of waiting for the
RTCs decision.
The DOE, on the other hand, alleges that its interest in this case is also
direct and immediate as Ordinance No. 8027 encroaches upon its exclusive and
national authority over matters affecting the oil industry. It seeks to intervene in order
to represent the interests of the members of the public who stand to suffer if the
Pandacan Terminals operations are discontinued. We will tackle the issue of the
alleged encroachment into DOEs domain later on. Suffice it to say at this point that,
for the purpose of hearing all sides and considering the transcendental importance
of this case, we will also allow DOEs intervention.
THE
INJUNCTIVE
WRITS ARE
NOT
IMPEDIMENT
S TO THE
ENFORCEM
ENT OF
ORDINANCE
NO. 8027
Under Rule 65, Section 3[59] of the Rules of Court, a petition
for mandamus may be filed when any tribunal, corporation, board, officer or person
33 | P a g e

unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust or station. According to the oil companies,
respondent did not unlawfully fail or neglect to enforce Ordinance No. 8027 because
he was lawfully prevented from doing so by virtue of the injunctive writs and status
quo order issued by the RTC of Manila, Branches 39 and 42.
First, we note that while Chevron and Shell still have in their favor the writs
of preliminary injunction and preliminary mandatory injunction, the status quo order
in favor of Petron is no longer in effect since the court granted the joint motion of the
parties to withdraw the complaint and counterclaim. [60]
Second, the original parties failed to inform the Court about these injunctive
writs. Respondent (who was also impleaded as a party in the RTC cases) defends
himself by saying that he informed the court of the pendency of the civil cases and
that a TRO was issued by the RTC in the consolidated cases filed by Chevron and
Shell. It is true that had the oil companies only intervened much earlier, the Court
would not have been left in the dark about these facts. Nevertheless, respondent
should have updated the Court, by way of manifestation, on such a relevant matter.
In his memorandum, respondent mentioned the issuance of a TRO. Under
Section 5 of Rule 58 of the Rules of Court, a TRO issued by the RTC is effective
only for a period of 20 days. This is why, in our March 7, 2007 decision, we presumed
with certainty that this had already lapsed.[61] Respondent also mentioned the grant
of injunctive writs in his rejoinder which the Court, however, expunged for being a
prohibited pleading. The parties and their counsels were clearly remiss in their duties
to this Court.
In resolving controversies, courts can only consider facts and issues
pleaded by the parties.[62] Courts, as well as magistrates presiding over them are
not omniscient. They can only act on the facts and issues presented before them in
appropriate pleadings. They may not even substitute their own personal knowledge
for evidence. Nor may they take notice of matters except those expressly provided
as subjects of mandatory judicial notice.
We now proceed to the issue of whether the injunctive writs are legal
impediments to the enforcement of Ordinance No. 8027.
Section 3, Rule 58 of the Rules of Court enumerates the grounds for the
issuance of a writ of preliminary injunction:
SEC. 3. Grounds for issuance of preliminary injunction. ― A
preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining
the commission or continuance of the act or acts complained
of, or in requiring the performance of an act or acts, either for
a limited period or perpetually;
LGC Sec. 17-22,48-59
(b) That the commission, continuance or nonperformance of
the act or acts complained of during the litigation would
probably work injustice to the applicant; or
(g) IThat a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to
render the judgment ineffectual.
There are two requisites for the issuance of a preliminary injunction: (1) the
right to be protected exists prima facie and (2) the acts sought to be enjoined are
violative of that right. It must be proven that the violation sought to be prevented will
cause an irreparable injustice.
The act sought to be restrained here was the enforcement of Ordinance
No. 8027. It is a settled rule that an ordinance enjoys the presumption of validity
and, as such, cannot be restrained by injunction.[63] Nevertheless, when the validity
of the ordinance is assailed, the courts are not precluded from issuing an injunctive
writ against its enforcement. However, we have declared that the issuance of said
writ is proper only when:
... the petitioner assailing the ordinance has made out a case of
unconstitutionality strong enough to overcome, in the mind
of the judge, the presumption of validity, in addition to a
showing of a clear legal right to the remedy
sought....[64] (Emphasis supplied)
Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis
for issuing the injunctive writs:
The Court, in resolving whether or not a Writ of Preliminary
Injunction or Preliminary Mandatory Injunction should be issued,
is guided by the following requirements: (1) a clear legal right of
the complainant; (2) a violation of that right; and (3) a permanent
and urgent necessity for the Writ to prevent serious damage. The
Court believes that these requisites are present in these cases.
There is no doubt that the plaintiff/petitioners have been
legitimately operating their business in the Pandacan Terminal for
many years and they have made substantial capital investment
therein. Every year they were issued Business Permits by the City
of Manila. Its operations have not been declared illegal or contrary
to law or morals. In fact, because of its vital importance to the
national economy, it was included in the Investment Priorities Plan
as mandated under the Downstream Oil Industry Deregulation Act
of 1988 (R.A. 8479). As a lawful business, the plaintiff/petitioners
have a right, therefore, to continue their operation in the Pandacan
34 | P a g e

Terminal and the right to protect their investments. This is a clear
and unmistakable right of the plaintiff/petitioners.
The enactment, therefore, of City Ordinance No. 8027 passed by
the City Council of Manila reclassifying the area where the
Pandacan Terminal is located from Industrial II to Commercial I
and requiring the plaintiff/petitioners to cease and desist from the
operation of their business has certainly violated the rights of the
plaintiff/petitioners to continue their legitimate business in the
Pandacan Terminal and deprived them of their huge investments
they put up therein. Thus, before the Court, therefore, determines
whether the Ordinance in question is valid or not, a Writ of
Preliminary Injunction and a Writ of Mandatory Injunction be
issued to prevent serious and irreparable damage to
plaintiff/petitioners.[65]
Nowhere in the judges discussion can we see that, in addition to a
showing of a clear legal right of Chevron and Shell to the remedy sought, he
was convinced that they had made out a case of unconstitutionality or
invalidity strong enough to overcome the presumption of validity of the
ordinance. Statutes and ordinances are presumed valid unless and until the courts
declare the contrary in clear and unequivocal terms. [66] The mere fact that the
ordinance is alleged to be unconstitutional or invalid will not entitle a party to have
its enforcement enjoined.[67] The presumption is all in favor of validity. The reason
for this is obvious:
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 circumstances 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.[68]
Xxx
...[Courts] accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary[,] in the
determination of actual cases and controversies[,] must reflect the
wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of
the government.[69]
The oil companies argue that this presumption must be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself. [70] We
LGC Sec. 17-22,48-59
see no reason to set aside the presumption. The ordinance, on its face, does not at
all appear to be unconstitutional. It reclassified the subject area from industrial to
commercial. Prima facie, this power is within the power of municipal corporations:
The power of municipal corporations to divide their territory into
industrial, commercial and residential zones is recognized in
almost all jurisdictions inasmuch as it is derived from the police
power itself and is exercised for the protection and benefit of their
inhabitants.[71]
Xxx
There can be no doubt that the City of Manila has the power to
divide its territory into residential and industrial zones, and to
prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.
Xxx xxx xxx
Likewise, it cannot be denied that the City of Manila has the
authority, derived from the police power, of forbidding the
appellant to continue the manufacture of toyoin the zone where it
is now situated, which has been declared residential....[72]
Courts will not invalidate an ordinance unless it clearly appears that it is
unconstitutional. There is no such showing here. Therefore, the injunctive writs
issued in the Manila RTCs May 19, 2003 order had no leg to stand on.
We are aware that the issuance of these injunctive writs is not being
assailed as tainted with grave abuse of discretion. However, we are confronted with
the question of whether these writs issued by a lower court are impediments to the
enforcement of Ordinance No. 8027 (which is the subject of
the mandamus petition). As already discussed, we rule in the negative.
ORDINANCE NO. 8027
WAS NOT SUPERSEDED
BY ORDINANCE NO.
8119
The March 7, 2007 decision did not take into consideration the passage of
Ordinance No. 8119 entitled An Ordinance Adopting the Manila Comprehensive
Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration,
Enforcement and Amendment thereto which was approved by respondent on June
16, 2006. The simple reason was that the Court was never informed about this
ordinance.
While courts are required to take judicial notice of the laws enacted by Congress,
the rule with respect to local ordinances is different. Ordinances are not included in
35 | P a g e

the enumeration of matters covered by mandatory judicial notice under Section 1,
Rule 129 of the Rules of Court.[73]
Although, Section 50 of RA 409[74] provides that:
SEC. 50 Judicial notice of ordinances. - All courts sitting in the city
shall take judicial notice of the ordinances passed by the
[Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its seat in the City of
Manila, should have taken steps to procure a copy of the ordinance on its own,
relieving the party of any duty to inform the Court about it.
Even where there is a statute that requires a court to take judicial notice of
municipal ordinances, a court is not required to take judicial notice of ordinances
that are not before it and to which it does not have access. The party asking the
court to take judicial notice is obligated to supply the court with the full text of the
rules the party desires it to have notice of.[75] Counsel should take the initiative in
requesting that a trial court take judicial notice of an ordinance even where a statute
requires courts to take judicial notice of local ordinances.[76]
The intent of a statute requiring a court to take judicial notice of a local ordinance is
to remove any discretion a court might have in determining whether or not to take
notice of an ordinance. Such a statute does not direct the court to act on its own in
obtaining evidence for the record and a party must make the ordinance available to
the court for it to take notice.[77]
In its defense, respondent claimed that he did not inform the Court about the
enactment of Ordinance No. 8119 because he believed that it was different from
Ordinance No. 8027 and that the two were not inconsistent with each other. [78]
In the same way that we deem the intervenors late intervention in this case
unjustified, we find the failure of respondent, who was an original party here,
inexcusable.
THE RULE ON
JUDICIAL
ADMISSIONS IS
NOT
APPLICABLE
AGAINST
RESPONDENT
The oil companies assert that respondent judicially admitted that Ordinance No.
8027 was repealed by Ordinance No. 8119 in civil case no. 03-106379 (where
Petron assailed the constitutionality of Ordinance No. 8027) when the parties in their
joint motion to withdraw complaint and counterclaim stated that the issue ...has been
rendered moot and academic by virtue of the passage of [Ordinance No.
8119].[79] They contend that such admission worked as an estoppel against the
respondent.
Respondent countered that this stipulation simply meant that Petron was
recognizing the validity and legality of Ordinance No. 8027 and that it had conceded
LGC Sec. 17-22,48-59
the issue of said ordinances constitutionality, opting instead to question the validity
of Ordinance No. 8119.[80] The oil companies deny this and further argue that
respondent, in his answer in civil case no. 06-115334 (where Chevron and Shell are
asking for the nullification of Ordinance No. 8119), expressly stated that Ordinance
No. 8119 replaced Ordinance No. 8027:[81]
... Under Ordinance No. 8027, businesses whose uses are not in
accord with the reclassification were given six months to cease
[their] operation. Ordinance No. 8119, which in effect, replaced
Ordinance [No.] 8027, merely took note of the time frame
provided for in Ordinance No. 8119.... Ordinance No. 8119 thus
provided for an even longer term, that is[,] seven
years;[82] (Emphasis supplied)
Rule 129, Section 4 of the Rules of Court provides:
Section 4. Judicial admissions. ― An admission, verbal or written,
made by a party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that
no such admission was made. (Emphasis supplied)
While it is true that a party making a judicial admission cannot subsequently take a
position contrary to or inconsistent with what was pleaded, [83] the aforestated rule is
not applicable here. Respondent made the statements regarding the ordinances in
civil case nos. 03-106379 and 06-115334 which are not the same as this case before
us.[84] To constitute a judicial admission, the admission must be made in the same
case in which it is offered.
Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not
supersede Ordinance No. 8027. On the contrary, it is the oil companies which
should be considered estopped. They rely on the argument that Ordinance No. 8119
superseded Ordinance No. 8027 but, at the same time, also impugn its (8119s)
validity. We frown on the adoption of inconsistent positions and distrust any attempt
at clever positioning under one or the other on the basis of what appears
advantageous at the moment. Parties cannot take vacillating or contrary positions
regarding the validity of a statute[85] or ordinance. Nonetheless, we will look into the
merits of the argument of implied repeal.
ORDINANCE NO.
8119 DID NOT
IMPLIEDLY
REPEAL
ORDINANCE NO.
8027
Both the oil companies and DOE argue that Ordinance No. 8119 repealed
Ordinance No. 8027. They assert that although there was no express repeal [86] of
Ordinance No. 8027, Ordinance No. 8119 impliedly repealed it.
According to the oil companies, Ordinance No. 8119 reclassified the area covering
the Pandacan Terminals to High Density Residential/Mixed Use Zone (R-
36 | P a g e

3/MXD)[87] whereas Ordinance No. 8027 reclassified the same area from Industrial
II to Commercial I:
SECTION 1. For the purpose of promoting sound urban planning
and ensuring health, public safety, and general welfare of the
residents of Pandacan and Sta. Ana as well as its adjoining areas,
the land use of [those] portions of land bounded by the Pasig
River in the north, PNR Railroad Track in the east, Beata St. in
the south, Palumpong St. in the southwest, and Estero de
Pancacan in the west[,] PNR Railroad in the northwest area,
Estero de Pandacan in the [n]ortheast, Pasig River in the
southeast and Dr. M.L. Carreon in the southwest. The area of
Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero
St., Mayo 28 St., and F. Manalo Street, are hereby reclassified
from Industrial II to Commercial I. (Emphasis supplied)
Moreover, Ordinance No. 8119 provides for a phase-out of seven years:
SEC. 72. Existing Non-Conforming Uses and Buildings. - The
lawful use of any building, structure or land at the time of the
adoption of this Ordinance may be continued, although such use
does not conform with the provision of the Ordinance, provided:
xxx xxx xxx
(g) In case the non-conforming use is an industrial use:
xxx xxx xxx
d. The land use classified as non-conforming shall
program the phase-out and relocation of the non-
conforming use within seven (7) years from the
date of effectivity of this Ordinance. (Emphasis
supplied)
This is opposed to Ordinance No. 8027 which compels affected entities to vacate
the area within six months from the effectivity of the ordinance:
SEC. 3. Owners or operators of industries and other businesses,
the operation of which are no longer permitted under Section 1
hereof, are hereby given a period of six (6) months from the date
of effectivity of this Ordinance within which to cease and desist
from the operation of businesses which are hereby in
consequence, disallowed.
Ordinance No. 8119 also designated the Pandacan oil depot area as a
Planned Unit Development/Overlay Zone (O-PUD):
LGC Sec. 17-22,48-59
SEC. 23. Use Regulations in Planned Unit Development/Overlay
Zone (O-PUD). O-PUD Zones are identified specific sites in the
City of Manila wherein the project site is comprehensively planned
as an entity via unitary site plan which permits flexibility in
planning/ design, building siting, complementarily of building types
and land uses, usable open spaces and the preservation of
significant natural land features, pursuant to regulations specified
for each particular PUD. Enumerated below are identified PUD:
xxx xxx xxx
6. Pandacan Oil Depot Area
xxx xxx xxx
Enumerated below are the allowable uses:
1. all uses allowed in all zones where it is located
2. the [Land Use Intensity Control (LUIC)] under which
zones are located shall, in all instances be complied with
3. the validity of the prescribed LUIC shall only be
[superseded] by the development controls and
regulations specified for each PUD as provided for each
PUD as provided for by the masterplan of respective
PUDs.[88] (Emphasis supplied)
Respondent claims that in passing Ordinance No. 8119,
the Sanggunian did not intend to repeal Ordinance No. 8027 but meant instead to
carry over 8027s provisions to 8119 for the purpose of making Ordinance No. 8027
applicable to the oil companies even after the passage of Ordinance No. 8119. [89] He
quotes an excerpt from the minutes of the July 27, 2004 session of
the Sanggunian during the first reading of Ordinance No. 8119:
Member GARCIA: Your Honor, iyong patungkol po roon sa oil
depot doon sa amin sa Sixth District sa Pandacan, wala pong
nakalagay eith sa ordinansa rito na taliwas o kakaiba roon sa
ordinansang ipinasa noong nakaraang Konseho, iyong
Ordinance No. 8027. So kung ano po ang nandirito sa ordinansa
na ipinasa ninyo last time, iyon lang po ang ni-lift eithe at inilagay
eith. At eith eith ordinansang iyong naipasa ng huling Konseho,
niri-classify [ninyo] from Industrial II to Commercial C-1 ang area
ng Pandacan kung nasaan ang oil depot. So ini-lift lang po [eithe]
iyong definition, density, at saka po yon pong ng noong
ordinansa ninyo na siya eith naming inilagay eith, iniba lang po
naming iyong title. So wala po kaming binago na taliwas o
nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-
lift lang po [eithe] from Ordinance No. 8027.[90] (Emphasis
supplied)
We agree with respondent.
37 | P a g e

Repeal by implication proceeds on the premise that where a statute of later
date clearly reveals the intention of the legislature to abrogate a prior act on the
subject, that intention must be given effect.[91]
There are two kinds of implied repeal. The first is: where the provisions in
the two acts on the same subject matter are irreconcilably contradictory, the latter
act, to the extent of the conflict, constitutes an implied repeal of the earlier
one.[92] The second is: if the later act covers the whole subject of the earlier one and
is clearly intended as a substitute, it will operate to repeal the earlier law. [93] The oil
companies argue that the situation here falls under the first category.
Implied repeals are not favored and will not be so declared unless the intent
of the legislators is manifest.[94] As statutes and ordinances are presumed to be
passed only after careful deliberation and with knowledge of all existing ones on the
subject, it follows that, in passing a law, the legislature did not intend to interfere with
or abrogate a former law relating to the same subject matter. [95] If the intent to repeal
is not clear, the later act should be construed as a continuation of, and not a
substitute for, the earlier act.[96]
These standards are deeply enshrined in our jurisprudence. We disagree
that, in enacting Ordinance No. 8119, there was any indication of the legislative
purpose to repeal Ordinance No. 8027.[97] The excerpt quoted above is proof that
there was never such an intent. While it is true that both ordinances relate to the
same subject matter, i.e. classification of the land use of the area where Pandacan
oil depot is located, if there is no intent to repeal the earlier enactment, every effort
at reasonable construction must be made to reconcile the ordinances so that both
can be given effect:
The fact that a later enactment may relate to the same
subject matter as that of an earlier statute is not of itself sufficient
to cause an implied repeal of the prior act, since the new statute
may merely be cumulative or a continuation of the old one. What
is necessary is a manifest indication of legislative purpose to
repeal.[98]
For the first kind of implied repeal, there must be an irreconcilable conflict
between the two ordinances. There is no conflict between the two
ordinances.Ordinance No. 8027 reclassified the Pandacan area from Industrial II to
Commercial I. Ordinance No. 8119, in Section 23, designated it as a Planned Unit
Development/Overlay Zone (O-PUD). In its Annex C which defined the zone
boundaries,[99] the Pandacan area was shown to be within the High Density
Residential/Mixed Use Zone (R-3/MXD). These zone classifications in Ordinance
No. 8119 are not inconsistent with the reclassification of the Pandacan area from
Industrial to Commercial in Ordinance No. 8027. The O-PUD classification merely
made Pandacan a project site ... comprehensively planned as an entity via unitary
site plan which permits flexibility in planning/design, building siting, complementarity
of building types and land uses, usable open spaces and the preservation of
significant natural land features....[100] Its classification as R-3/MXD means that it
should be used primarily for high-rise housing/dwelling purposes and limited
LGC Sec. 17-22,48-59
complementary/supplementary trade, services and business activities.[101] There is
no conflict since both ordinances actually have a common objective, i.e., to shift the
zoning classification from industrial to commercial (Ordinance No. 8027) or mixed
residential/commercial (Ordinance No. 8119).
Moreover, it is a well-settled rule in statutory construction that a subsequent
general law does not repeal a prior special law on the same subject unless it clearly
appears that the legislature has intended by the latter general act to modify or repeal
the earlier special law. Generalia specialibus non derogant (a general law does not
nullify a specific or special law).[102] This is so even if the provisions of the general
law are sufficiently comprehensive to include what was set forth in the special
act.[103] The special act and the general law must stand together, one as the law of
the particular subject and the other as the law of general application. [104]The special
law must be taken as intended to constitute an exception to, or a qualification of, the
general act or provision.[105]
The reason for this is that the legislature, in passing a law of
special character, considers and makes special provisions for the
particular circumstances dealt with by the special law. This being
so, the legislature, by adopting a general law containing
provisions repugnant to those of the special law and without
making any mention of its intention to amend or modify such
special law, cannot be deemed to have intended an amendment,
repeal or modification of the latter.[106]
Ordinance No. 8027 is a special law[107] since it deals specifically with a
certain area described therein (the Pandacan oil depot area) whereas Ordinance
No. 8119 can be considered a general law[108] as it covers the entire city of Manila.
The oil companies assert that even if Ordinance No. 8027 is a special law,
the existence of an all-encompassing repealing clause in Ordinance No. 8119
evinces an intent on the part of the Sanggunian to repeal the earlier ordinance:
Sec. 84. Repealing Clause. All ordinances, rules, regulations in
conflict with the provisions of this Ordinance are hereby
repealed; PROVIDED, That the rights that are vested upon the
effectivity of this Ordinance shall not be impaired.
They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian
Reform:[109]
The presence of such general repealing clause in a later statute
clearly indicates the legislative intent to repeal all prior
inconsistent laws on the subject matter, whether the prior law is a
general law or a special law... Without such a clause, a later
general law will ordinarily not repeal a prior special law on the
same subject.But with such clause contained in the subsequent
general law, the prior special law will be deemed repealed, as the
clause is a clear legislative intent to bring about that result.[110]
38 | P a g e

This ruling in not applicable here. The repealing clause of Ordinance No.
8119 cannot be taken to indicate the legislative intent to repeal all prior inconsistent
laws on the subject matter, including Ordinance No. 8027, a special enactment,
since the aforequoted minutes (an official record of the discussions in
the Sanggunian)actually indicated the clear intent to preserve the provisions of
Ordinance No. 8027.
To summarize, the conflict between the two ordinances is more apparent than real.
The two ordinances can be reconciled. Ordinance No. 8027 is applicable to the area
particularly described therein whereas Ordinance No. 8119 is applicable to the entire
City of Manila.
MANDAMUS LIES TO COMPEL
RESPONDENT MAYOR TO
ENFORCE ORDINANCE NO.
8027
The oil companies insist that mandamus does not lie against respondent in
consideration of the separation of powers of the executive and judiciary. [111] This
argument is misplaced. Indeed,
[the] Courts will not interfere by mandamus proceedings with the
legislative [or executive departments] of the government in the
legitimate exercise of its powers, except to enforce mere
ministerial acts required by law to be performed by some
officer thereof.[112] (Emphasis Supplied)
since this is the function of a writ of mandamus, which is the power to compel
the performance of an act which the law specifically enjoins as a duty resulting
from office, trust or station.[113]
They also argue that petitioners had a plain, speedy and adequate remedy to
compel respondent to enforce Ordinance No. 8027 which was to seek relief from
the President of the Philippines through the Secretary of the Department of
Interior and Local Government (DILG) by virtue of the Presidents power of
supervision over local government units. Again, we disagree. A party need not
go first to the DILG in order to compel the enforcement of an ordinance. This
suggested process would be unreasonably long, tedious and consequently
injurious to the interests of the local government unit (LGU) and its constituents
whose welfare is sought to be protected. Besides, petitioners resort to an original
action for mandamus before this Court is undeniably allowed by the
Constitution.[114]
ORDINAN
CE NO.
8027 IS
CONSTIT
LGC Sec. 17-22,48-59
UTIONAL
AND
VALID
Having ruled that there is no impediment to the enforcement of Ordinance No.
8027, we now proceed to make a definitive ruling on its constitutionality and
validity.
The tests of a valid ordinance are well established. For an ordinance to be valid,
it must not only be within the corporate powers of the LGU to enact and be
passed according to the procedure prescribed by law, it must also conform to
the following substantive requirements: (1) must not contravene the Constitution
or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general
and consistent with public policy and (6) must not be unreasonable. [115]
THE CITY OF
MANILA HAS
THE POWER TO
ENACT
ORDINANCE NO.
8027
Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in
the exercise of its police power. Police power is the plenary power vested in the
legislature to make statutes and ordinances to promote the health, morals,
peace, education, good order or safety and general welfare of the
people.[116] This power flows from the recognition that salus populi est suprema
lex (the welfare of the people is the supreme law).[117] While police power rests
primarily with the national legislature, such power may be delegated. [118] Section
16 of the LGC, known as the general welfare clause, encapsulates the delegated
police power to local governments:[119]
Section 16. General Welfare. ― Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
39 | P a g e

LGUs like the City of Manila exercise police power through their respective
legislative bodies, in this case, the Sangguniang Panlungsod or the city
council.Specifically, the Sanggunian can enact ordinances for the general welfare of
the city:
Section. 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panglungsod, as the legislative branch 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 xxxx
This police power was also provided for in RA 409 or the Revised Charter of the
City of Manila:
Section 18. Legislative powers. The [City Council] shall have the
following legislative powers:
xxx xxx xxx
(g) To enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance of the
prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the
city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers
and duties conferred by this chapter xxxx[120]
Specifically, the Sanggunian has the power to reclassify land within the jurisdiction
of the city.[121]
THE ENACTMENT
OF ORDINANCE
NO. 8027 IS A
LEGITIMATE
EXERCISE OF
POLICE POWER
As with the State, local governments may be considered as having properly
exercised their police power only if the following requisites are met: (1) the interests
of the public generally, as distinguished from those of a particular class, require its
exercise and (2) the means employed are reasonably necessary for the
LGC Sec. 17-22,48-59
accomplishment of the purpose and not unduly oppressive upon individuals. In
short, there must be a concurrence of a lawful subject and a lawful method. [122]
Ordinance No. 8027 was enacted for the purpose of promoting sound
urban planning, ensuring health, public safety and general welfare [123] of the
residents of Manila. The Sanggunian was impelled to take measures to protect the
residents of Manila from catastrophic devastation in case of a terrorist attack on the
Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area
defined in the ordinance from industrial to commercial.
The following facts were found by the Committee on Housing, Resettlement and
Urban Development of the City of Manila which recommended the approval of the
ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and
highly volatile products which include petroleum gas, liquefied
petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel
oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang Palace
and
(4) in case of an explosion or conflagration in the depot, the fire could
spread to the neighboring communities.[124]
The ordinance was intended to safeguard the rights to life, security and safety of all
the inhabitants of Manila and not just of a particular class.[125] The depot is
perceived, rightly or wrongly, as a representation of western interests which means
that it is a terrorist target. As long as it there is such a target in their midst, the
residents of Manila are not safe. It therefore became necessary to remove these
terminals to dissipate the threat. According to respondent:
Such a public need became apparent after the 9/11 incident which
showed that what was perceived to be impossible to happen, to
the most powerful country in the world at that, is actually
possible. The destruction of property and the loss of thousands of
lives on that fateful day became the impetus for a public need. In
the aftermath of the 9/11 tragedy, the threats of terrorism
continued [such] that it became imperative for governments to
take measures to combat their effects.[126]
Wide discretion is vested on the legislative authority to determine not only
what the interests of the public require but also what measures are necessary for
the protection of such interests.[127] Clearly, the Sanggunian was in the best position
to determine the needs of its constituents.
In the exercise of police power, property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the
government.[128] Otherwise stated, the government may enact legislation that may
interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare.[129] However, the interference must be reasonable and
not arbitrary. And to forestall arbitrariness, the methods or means used to
40 | P a g e

protect public health, morals, safety or welfare must have a reasonable relation to
the end in view.[130]
The means adopted by the Sanggunian was the enactment of a zoning
ordinance which reclassified the area where the depot is situated from industrial to
commercial. A zoning ordinance is defined as a local city or municipal legislation
which logically arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection of needs. [131] As
a result of the zoning, the continued operation of the businesses of the oil companies
in their present location will no longer be permitted. The power to establish zones
for industrial, commercial and residential uses is derived from the police power itself
and is exercised for the protection and benefit of the residents of a
locality.[132] Consequently, the enactment of Ordinance No. 8027 is within the power
of the Sangguniang Panlungsod of the City of Manila and any resulting burden on
those affected cannot be said to be unjust:
There can be no doubt that the City of Manila has the power to
divide its territory into residential and industrial zones, and to
prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.
The benefits to be derived by cities adopting such regulations
(zoning) may be summarized as follows: They attract a desirable
and assure a permanent citizenship; they foster pride in and
attachment to the city; they promote happiness and contentment;
they stabilize the use and value of property and promote the
peace, [tranquility], and good order of the city. We do not hesitate
to say that the attainment of these objects affords a legitimate field
for the exercise of the police power. He who owns property in such
a district is not deprived of its use by such regulations. He may
use it for the purposes to which the section in which it is located
is dedicated. That he shall not be permitted to use it to the
desecration of the community constitutes no unreasonable or
permanent hardship and results in no unjust burden.
Xxx xxx xxx
The 14th Amendment protects the citizen in his right to engage in
any lawful business, but it does not prevent legislation intended to
regulate useful occupations which, because of their nature or
location, may prove injurious or offensive to the public.[133]
We entertain no doubt that Ordinance No. 8027 is a valid police power measure
because there is a concurrence of lawful subject and lawful method.
ORDINANCE NO. 8027 IS
NOT UNFAIR, OPPRESSIVE
OR CONFISCATORY WHICH
AMOUNTS TO TAKING
WITHOUT COMPENSATION
LGC Sec. 17-22,48-59
According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it
does not only regulate but also absolutely prohibits them from conducting operations
in the City of Manila. Respondent counters that this is not accurate since the
ordinance merely prohibits the oil companies from operating their businesses in the
Pandacan area.
Indeed, the ordinance expressly delineated in its title and in Section 1 what it
pertained to. Therefore, the oil companies contention is not supported by the text of
the ordinance. Respondent succinctly stated that:
The oil companies are not forbidden to do business in the City of
Manila. They may still very well do so, except that their oil storage
facilities are no longer allowed in the Pandacan area. Certainly,
there are other places in the City of Manila where they can conduct
this specific kind of business. Ordinance No. 8027 did not render
the oil companies illegal. The assailed ordinance affects the oil
companies business only in so far as the Pandacan area is
concerned.[134]
The oil companies are not prohibited from doing business in other appropriate zones
in Manila. The City of Manila merely exercised its power to regulate the businesses
and industries in the zones it established:
As to the contention that the power to regulate does not include
the power to prohibit, it will be seen that the ordinance copied
above does not prohibit the installation of motor engines within the
municipality of Cabanatuan but only within the zone therein fixed.
If the municipal council of Cabanatuan is authorized to establish
said zone, it is also authorized to provide what kind of engines
may be installed therein. In banning the installation in said zone
of all engines not excepted in the ordinance, the municipal council
of Cabanatuan did no more than regulate their installation by
means of zonification.[135]
The oil companies aver that the ordinance is unfair and oppressive because they
have invested billions of pesos in the depot.[136] Its forced closure will result in huge
losses in income and tremendous costs in constructing new facilities.
Their contention has no merit. In the exercise of police power, there is a limitation
on or restriction of property interests to promote public welfare which involves no
compensable taking. Compensation is necessary only when the states power of
eminent domain is exercised. In eminent domain, property is appropriated and
applied to some public purpose. Property condemned under the exercise of police
power, on the other hand, is noxious or intended for a noxious or forbidden purpose
and, consequently, is not compensable.[137] The restriction imposed to protect lives,
public health and safety from danger is not a taking. It is merely the prohibition or
abatement of a noxious use which interferes with paramount rights of the public.
41 | P a g e

Property has not only an individual function, insofar as it has to provide for the needs
of the owner, but also a social function insofar as it has to provide for the needs of
the other members of society.[138] The principle is this:
Police power proceeds from the principle that every holder of
property, however absolute and unqualified may be his title, holds
it under the implied liability that his use of it shall not be injurious
to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the right of the
community. Rights of property, like all other social and
conventional rights, are subject to reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such
reasonable restraints and regulations established by law as the
legislature, under the governing and controlling power vested in
them by the constitution, may think necessary and expedient.[139]
In the regulation of the use of the property, nobody else acquires the use or interest
therein, hence there is no compensable taking.[140] In this case, the properties of the
oil companies and other businesses situated in the affected area remain theirs. Only
their use is restricted although they can be applied to other profitable uses permitted
in the commercial zone.
ORDINANCE NO. 8027 IS NOT
PARTIAL AND
DISCRIMINATORY
The oil companies take the position that the ordinance has discriminated against
and singled out the Pandacan Terminals despite the fact that the Pandacan area is
congested with buildings and residences that do not comply with the National
Building Code, Fire Code and Health and Sanitation Code. [141]
This issue should not detain us for long. An ordinance based on reasonable
classification does not violate the constitutional guaranty of the equal protection of
the law.[142] The requirements for a valid and reasonable classification are: (1) it must
rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3)
it must not be limited to existing conditions only and (4) it must apply equally to all
members of the same class.[143]
The law may treat and regulate one class differently from another class provided
there are real and substantial differences to distinguish one class from
another.[144]Here, there is a reasonable classification. We reiterate that what the
ordinance seeks to prevent is a catastrophic devastation that will result from a
terrorist attack.Unlike the depot, the surrounding community is not a high-value
terrorist target. Any damage caused by fire or explosion occurring in those areas
would be nothing compared to the damage caused by a fire or explosion in the depot
itself. Accordingly, there is a substantial distinction. The enactment of the ordinance
which provides for the cessation of the operations of these terminals removes the
LGC Sec. 17-22,48-59
threat they pose. Therefore it is germane to the purpose of the ordinance. The
classification is not limited to the conditions existing when the ordinance was
enacted but to future conditions as well. Finally, the ordinance is applicable to all
businesses and industries in the area it delineated.
ORDINANCE NO.
8027 IS NOT
INCONSISTENT WITH
RA 7638 AND RA
8479
The oil companies and the DOE assert that Ordinance No. 8027 is
unconstitutional because it contravenes RA 7638 (DOE Act of 1992)[145] and RA
8479 (Downstream Oil Industry Deregulation Law of 1998). [146] They argue that
through RA 7638, the national legislature declared it a policy of the state to ensure
a continuous, adequate, and economic supply of energy[147] and created the DOE to
implement this policy. Thus, under Section 5 I, DOE is empowered to establish and
administer programs for the exploration, transportation, marketing, distribution,
utilization, conservation, stockpiling, and storage of energy resources.Considering
that the petroleum products contained in the Pandacan Terminals are major and
critical energy resources, they conclude that their administration, storage,
distribution and transport are of national interest and fall under DOEs primary and
exclusive jurisdiction.[148]
They further assert that the terminals are necessary for the delivery of immediate
and adequate supply of oil to its recipients in the most economical way. [149] Local
legislation such as Ordinance No. 8027 (which effectively calls for the removal of
these terminals) allegedly frustrates the state policy of ensuring a continuous,
adequate, and economic supply of energy expressed in RA 7638, a national
law.[150] Likewise, the ordinance thwarts the determination of the DOE that the
terminals operations should be merely scaled down and not discontinued. [151] They
insist that this should not be allowed considering that it has a nationwide economic
impact and affects public interest transcending the territorial jurisdiction of the City
of Manila.[152]
According to them, the DOEs supervision over the oil industry under RA 7638 was
subsequently underscored by RA 8479, particularly in Section 7 thereof:
SECTION 7. Promotion of Fair Trade Practices. ― The
Department of Trade and Industry (DTI) and DOE shall take all
measures to promote fair trade and prevent cartelization,
monopolies, combinations in restraint of trade, and any unfair
competition in the Industry as defined in Article 186 of the Revised
Penal Code, and Articles 168 and 169 of Republic Act No. 8293,
otherwise known as the Intellectual Property Rights Law. The DOE
shall continue to encourage certain practices in the Industry
which serve the public interest and are intended to achieve
efficiency and cost reduction, ensure continuous supply of
petroleum products, and enhance environmental protection.
These practices may include borrow-and-loan agreements,
42 | P a g e

rationalized depot and manufacturing operations, hospitality
agreements, joint tanker and pipeline utilization, and joint actions
on oil spill control and fire prevention. (Emphasis supplied)
Respondent counters that DOEs regulatory power does not preclude LGUs from
exercising their police power.[153]
Indeed, ordinances should not contravene existing statutes enacted by
Congress. The rationale for this was clearly explained in Magtajas vs. Pryce
Properties Corp., Inc.:[154]
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.
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, 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.[155]
The question now is whether Ordinance No. 8027 contravenes RA 7638 and
RA 8479. It does not.
LGC Sec. 17-22,48-59
Under Section 5 I of RA 7638, DOE was given the power to establish and administer
programs for the exploration, transportation, marketing, distribution, utilization,
conservation, stockpiling, and storage of energy resources. On the other hand,
under Section 7 of RA 8749, the DOE shall continue to encourage certain practices
in the Industry which serve the public interest and are intended to achieve efficiency
and cost reduction, ensure continuous supply of petroleum products. Nothing in
these statutes prohibits the City of Manila from enacting ordinances in the exercise
of its police power.
The principle of local autonomy is enshrined in and zealously protected under the
Constitution. In Article II, Section 25 thereof, the people expressly adopted the
following policy:
Section 25. The State shall ensure the autonomy of local
governments.
An entire article (Article X) of the Constitution has been devoted to guaranteeing and
promoting the autonomy of LGUs. The LGC was specially promulgated by Congress
to ensure the autonomy of local governments as mandated by the Constitution:
Sec. 2. Declaration of Policy. ― (a) It is hereby declared the
policy of the State that the territorial and political subdivisions
of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as
self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end,
the State shall provide for a more responsive and accountable local
government structure instituted through a system of
decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National
Government to the local government units. (Emphasis supplied)
We do not see how the laws relied upon by the oil companies and DOE stripped the
City of Manila of its power to enact ordinances in the exercise of its police power
and to reclassify the land uses within its jurisdiction. To guide us, we shall make a
brief survey of our decisions where the police power measure of the LGU clashed
with national laws.
In Tan v. Perea,[156] the Court ruled that Ordinance No. 7 enacted by the municipality
of Daanbantayan, Cebu allowing the operation of three cockpits was invalid for
violating PD 449 (or the Cockfighting Law of 1974) which permitted only one cockpit
per municipality.
In Batangas CATV, Inc. v. Court of Appeals,[157] the Sangguniang Panlungsod of
Batangas City enacted Resolution No. 210 granting Batangas CATV, Inc. a permit
to operate a cable television (CATV) system in Batangas City. The Court held that
43 | P a g e

the LGU did not have the authority to grant franchises to operate a CATV system
because it was the National Telecommunications Commission (NTC) that had the
power under EO Nos. 205 and 436 to regulate CATV operations. EO 205 mandated
the NTC to grant certificates of authority to CATV operators while EO 436 vested on
the NTC the power to regulate and supervise the CATV industry.
In Lina, Jr. v. Pao,[158] we held that Kapasiyahan Bilang 508, Taon 1995 of
the Sangguniang Panlalawigan of Laguna could not be used as justification to
prohibit lotto in the municipality of San Pedro, Laguna because lotto was duly
authorized by RA 1169, as amended by BP 42. This law granted a franchise to the
Philippine Charity Sweepstakes Office and allowed it to operate lotteries.
In Magtajas v. Pryce Properties Corp., Inc.,[159] the Sangguniang Panlungsod of
Cagayan de Oro City passed Ordinance Nos. 3353 and 3375-93 prohibiting the
operation of casinos in the city. We ruled that these ordinances were void for
contravening PD 1869 or the charter of the Philippine Amusements and Gaming
Corporation which had the power to operate casinos.
The common dominator of all of these cases is that the national laws were clearly
and expressly in conflict with the ordinances/resolutions of the LGUs. The
inconsistencies were so patent that there was no room for doubt. This is not the
case here.
The laws cited merely gave DOE general powers to establish and
administer programs for the exploration, transportation, marketing, distribution,
utilization, conservation, stockpiling, and storage of energy resources and to
encourage certain practices in the [oil] industry which serve the public interest and
are intended to achieve efficiency and cost reduction, ensure continuous supply of
petroleum products. These powers can be exercised without emasculating the LGUs
of the powers granted them. When these ambiguous powers are pitted against the
unequivocal power of the LGU to enact police power and zoning ordinances for the
general welfare of its constituents, it is not difficult to rule in favor of the
latter. Considering that the powers of the DOE regarding the Pandacan Terminals
are not categorical, the doubt must be resolved in favor of the City of Manila:
SECTION 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
(g) IThe general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units
LGC Sec. 17-22,48-59
in accelerating economic development and upgrading the
quality of life for the people in the community xxxx
The least we can do to ensure genuine and meaningful local autonomy is not to
force an interpretation that negates powers explicitly granted to local governments.
To rule against the power of LGUs to reclassify areas within their jurisdiction will
subvert the principle of local autonomy guaranteed by the Constitution. [160] As we
have noted in earlier decisions, our national officials should not only comply with the
constitutional provisions on local autonomy but should also appreciate the spirit and
liberty upon which these provisions are based.[161]
THE DOE
CANNOT
EXERCISE THE
POWER OF
CONTROL OVER
LGUS
Another reason that militates against the DOEs assertions is that Section 4 of Article
X of the Constitution confines the Presidents power over LGUs to one of general
supervision:
SECTION 4. The President of the Philippines shall exercise general
supervision over local governments. Xxxx
Consequently, the Chief Executive or his or her alter egos, cannot exercise the
power of control over them.[162] Control and supervision are distinguished as follows:
[Supervision] means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action
or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter
or modify or nullify or set aside what a subordinate officer ha[s]
done in the performance of his duties and to substitute the
judgment of the former for that of the latter.[163]
Supervisory power, when contrasted with control, is the power of mere oversight
over an inferior body; it does not include any restraining authority over such
body.[164] It does not allow the supervisor to annul the acts of the
subordinate.[165] Here, what the DOE seeks to do is to set aside an ordinance
enacted by local officials, a power that not even its principal, the President, has. This
is because:
Under our present system of government, executive power is
vested in the President. The members of the Cabinet and other
executive officials are merely alter egos. As such, they are subject
to the power of control of the President, at whose will and behest
they can be removed from office; or their actions and decisions
changed, suspended or reversed. In contrast, the heads of political
44 | P a g e

subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly
accountable. By constitutional fiat, they are subject to the
Presidents supervision only, not control, so long as their acts are
exercised within the sphere of their legitimate powers. By the same
token, the President may not withhold or alter any authority or
power given them by the Constitution and the law.[166]
Thus, the President and his or her alter egos, the department heads, cannot interfere
with the activities of local governments, so long as they act within the scope of their
authority. Accordingly, the DOE cannot substitute its own discretion for the
discretion exercised by the sanggunian of the City of Manila. In local affairs, the
wisdom of local officials must prevail as long as they are acting within the parameters
of the Constitution and the law.[167]
ORDINANCE NO. 8027
IS NOT INVALID FOR
FAILURE TO COMPLY
WITH RA 7924 AND
EO 72
The oil companies argue that zoning ordinances of LGUs are required to be
submitted to the Metropolitan Manila Development Authority (MMDA) for review and
if found to be in compliance with its metropolitan physical framework plan and
regulations, it shall endorse the same to the Housing and Land Use Regulatory
Board (HLURB). Their basis is Section 3 (e) of RA 7924:[168]
SECTION 3. Scope of MMDA Services. ― Metro-wide services
under the jurisdiction of the MMDA are those services which
have metro-wide impact and transcend local political boundaries
or entail huge expenditures such that it would not be viable for
said services to be provided by the individual [LGUs] comprising
Metropolitan Manila. These services shall include:
xxx xxx xxx
(g) Urban renewal, zoning, and land use planning, and
shelter services which include the formulation, adoption
and implementation of policies, standards, rules and
regulations, programs and projects to rationalize and
optimize urban land use and provide direction to urban
growth and expansion, the rehabilitation and
development of slum and blighted areas, the
development of shelter and housing facilities and the
provision of necessary social services
thereof. (Emphasis supplied)
Reference was also made to Section 15 of its implementing rules:
Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other
National Government Agencies Concerned on Urban Renewal,
LGC Sec. 17-22,48-59
Zoning and Land Use Planning and Shelter Services. Within the
context of the National Housing and Urban Development
Framework, and pursuant to the national standards, guidelines and
regulations formulated by the Housing and Land Use Regulatory
Board [HLURB] on land use planning and zoning, the [MMDA] shall
prepare a metropolitan physical framework plan and regulations
which shall complement and translate the socio-economic
development plan for Metro Manila into physical or spatial terms,
and provide the basis for the preparation, review, integration and
implementation of local land use plans and zoning, ordinance of
cities and municipalities in the area.
Said framework plan and regulations shall contain, among others,
planning and zoning policies and procedures that shall be observed
by local government units in the preparation of their own plans and
ordinances pursuant to Section 447 and 458 of RA 7160, as well
as the identification of sites and projects that are considered to be
of national or metropolitan significance.
Cities and municipalities shall prepare their respective land
use plans and zoning ordinances and submit the same for
review and integration by the [MMDA] and indorsement to
HLURB in accordance with Executive Order No. 72 and other
pertinent laws.
In the preparation of a Metropolitan Manila physical framework plan
and regulations, the [MMDA] shall coordinate with the Housing and
Urban Development Coordinating Council, HLURB, the National
Housing Authority, Intramuros Administration, and all other
agencies of the national government which are concerned with land
use and zoning, urban renewal and shelter services. (Emphasis
supplied)
They also claim that EO 72[169] provides that zoning ordinances of cities and
municipalities of Metro Manila are subject to review by the HLURB to ensure
compliance with national standards and guidelines. They cite Section 1, paragraphs
I, (e), (f) and (g):
SECTION 1. Plan formulation or updating. ―
xxx xxx xxx
(g) Cities and municipalities of Metropolitan Manila
shall continue to formulate or update their
respective comprehensive land use plans, in
accordance with the land use planning and
zoning standards and guidelines prescribed by
the HLURB pursuant to EO 392, S. of 1990, and
other pertinent national policies.
45 | P a g e

Xxx xxx xxx
(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA
7279, the comprehensive land use plans of provinces, highly
urbanized cities and independent component cities shall be
reviewed and ratified by the HLURB to ensure compliance with
national standards and guidelines.
(f) Pursuant to EO 392, S. of 1999, the comprehensive land use
plans of cities and municipalities of Metropolitan Manila shall be
reviewed by the HLURB to ensure compliance with national
standards and guidelines.
(g) Said review shall be completed within three (3)
months upon receipt thereof otherwise, the same
shall be deemed consistent with law, and,
therefore, valid. (Emphasis supplied)
They argue that because Ordinance No. 8027 did not go through this review
process, it is invalid.
The argument is flawed.
RA 7942 does not give MMDA the authority to review land use plans and zoning
ordinances of cities and municipalities. This was only found in its implementing rules
which made a reference to EO 72. EO 72 expressly refers to comprehensive land
use plans (CLUPs) only. Ordinance No. 8027 is admittedly not a CLUP nor intended
to be one. Instead, it is a very specific ordinance which reclassified the land use of
a defined area in order to prevent the massive effects of a possible terrorist attack. It
is Ordinance No. 8119 which was explicitly formulated as the Manila [CLUP] and
Zoning Ordinance of 2006. CLUPs are the ordinances which should be submitted to
the MMDA for integration in its metropolitan physical framework plan and approved
by the HLURB to ensure that they conform with national guidelines and policies.
Moreover, even assuming that the MMDA review and HLURB ratification are
necessary, the oil companies did not present any evidence to show that these were
not complied with. In accordance with the presumption of validity in favor of an
ordinance, its constitutionality or legality should be upheld in the absence of proof
showing that the procedure prescribed by law was not observed. The burden of
proof is on the oil companies which already had notice that this Court was inclined
to dispose of all the issues in this case. Yet aside from their bare assertion, they did
not present any certification from the MMDA or the HLURB nor did they append
these to their pleadings. Clearly, they failed to rebut the presumption of validity of
Ordinance No. 8027.[170]
LGC Sec. 17-22,48-59
CONCLUSION
Essentially, the oil companies are fighting for their right to property. They
allege that they stand to lose billions of pesos if forced to relocate. However, based
on the hierarchy of constitutionally protected rights, the right to life enjoys
precedence over the right to property.[171] The reason is obvious: life is irreplaceable,
property is not. When the state or LGUs exercise of police power clashes with a few
individuals right to property, the former should prevail. [172]
Both law and jurisprudence support the constitutionality and validity of
Ordinance No. 8027. Without a doubt, there are no impediments to its enforcement
and implementation. Any delay is unfair to the inhabitants of the City of Manila and
its leaders who have categorically expressed their desire for the relocation of the
terminals. Their power to chart and control their own destiny and preserve their lives
and safety should not be curtailed by the intervenors warnings of doomsday
scenarios and threats of economic disorder if the ordinance is enforced.
Secondary to the legal reasons supporting the immediate implementation
of Ordinance No. 8027 are the policy considerations which drove Manilas
government to come up with such a measure:
... [The] oil companies still were not able to allay the
apprehensions of the city regarding the security threat in the area
in general. No specific action plan or security measures were
presented that would prevent a possible large-scale terrorist or
malicious attack especially an attack aimed at Malacaang. The
measures that were installed were more directed towards their
internal security and did not include the prevention of an external
attack even on a bilateral level of cooperation between these
companies and the police and military.
Xxx xxx xxx
It is not enough for the city government to be told by these oil
companies that they have the most sophisticated fire-fighting
equipments and have invested millions of pesos for these
equipments. The city government wants to be assured that its
residents are safe at any time from these installations, and in the
three public hearings and in their position papers, not one
statement has been said that indeed the absolute safety of the
residents from the hazards posed by these installations is
assured.[173]
We are also putting an end to the oil companies determination to prolong their stay
in Pandacan despite the objections of Manilas residents. As early as October 2001,
the oil companies signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which]
shall include the preparation of a Master Plan, whose aim is to
determine the scope and timing of the feasible location of the
Pandacan oil terminals and all associated facilities and
46 | P a g e
 LGC Sec. 17-22,48-59

infrastructure including government support essential for the
relocation such as the necessary transportation infrastructure,
land and right of way acquisition, resettlement of displaced
residents and environmental and social acceptability which shall
be based on mutual benefit of the Parties and the public.[174]
Now that they are being compelled to discontinue their operations in the Pandacan
Terminals, they cannot feign unreadiness considering that they had years to prepare
for this eventuality.
Just the same, this Court is not about to provoke a crisis by ordering the immediate
relocation of the Pandacan Terminals out of its present site. The enforcement of a
decision of this Court, specially one with far-reaching consequences, should always
be within the bounds of reason, in accordance with a comprehensive and well-
coordinated plan, and within a time-frame that complies with the letter and spirit of
our resolution. To this end, the oil companies have no choice but to obey the law.
A WARNING TO PETITIONERS COUNSEL
We draw the attention of the parties to a matter of grave concern to the
legal profession.
Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-
page memorandum that clearly contained either substance nor research. It is
absolutely insulting to this Court.
We have always tended towards judicial leniency, temperance and
compassion to those who suffer from a wrong perception of what the majesty of the
law means. But for a member of the bar, an officer of the court, to file in this Court a
memorandum of such unacceptable quality is an entirely different matter.
anthing about what will happen if it is the estimated 162 to 211 million liters [175] of
petroleum products in the terminal complex which blow up?
WHEREFORE, the motions for leave to intervene of Chevron Philippines
Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation, and the
Republic of the Philippines, represented by the Department of Energy, are
hereby GRANTED. Their respective motions for reconsideration are
hereby DENIED. The Regional Trial Court, Manila, Branch 39
is ORDERED to DISMISS the consolidated cases of Civil Case No. 03-106377 and
Civil Case No. 03-106380.
We reiterate our order to respondent Mayor of the City of Manila to enforce
Ordinance No. 8027. In coordination with the appropriate agencies and other parties
involved, respondent Mayor is hereby ordered to oversee the relocation and transfer
of the Pandacan Terminals out of its present site.
To ensure the orderly transfer, movement and relocation of assets and
personnel, the intervenors Chevron Philippines Inc., Petron Corporation and
Pilipinas Shell Petroleum Corporation shall, within a non-extendible period of ninety
(90) days, submit to the Regional Trial Court of Manila, Branch 39, the
comprehensive plan and relocation schedule which have allegedly been
prepared. The presiding judge of Manila RTC, Branch 39 will monitor the strict
enforcement of this resolution.
Atty. Samson Alcantara is hereby ordered to explain within five (5) days
from notice why he should not be disciplined for his refusal, or inability, to file a
memorandum worthy of the consideration of this Court.
Treble costs against petitioners counsel, Atty. Samson Alcantara.

It is indicative less of a personal shortcoming or contempt of this Court and

more of a lawyers sorry descent from a high sense of duty and responsibility. As a
member of the bar and as an officer of the court, a lawyer ought to be keenly aware SO ORDERED.
that the chief safeguard of the body politic is respect for the law and its magistrates.

There is nothing more effective than the written word by which counsel can
persuade this Court of the righteousness of his cause. For if truth were self-evident,
a memorandum would be completely unnecessary and superfluous.

The inability of counsel to prepare a memorandum worthy of this Courts

consideration is an ejemplo malo to the legal profession as it betrays no genuine
interest in the cause he claims to espouse. Or did counsel think he can earn his
moment of glory without the hard work and dedication called for by his petition?
A FINAL WORD

On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of

gasoline and 14,000 liters of diesel exploded in the middle of the street a short
distance from the exit gate of the Pandacan Terminals, causing death, extensive
damage and a frightening conflagration in the vicinity of the incident. Need we say

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THIRD DIVISION
[G.R. No. 121215. November 13, 1997]
MAYOR OSCAR DE LOS REYES, petitioner, vs. SANDIGANBAYAN, THIRD
DIVISION, and the PEOPLE OF THE PHILIPPINES, respondents.
DECISION
ROMERO, J.:
The significance of the minutes taken during the session of a local legislative
assembly is the determinant issue in this present petition.
Petitioner, along with two others, was charged with the crime of falsification of
a public document, specifically Resolution No. 57-S-92 dated July 27, 1992 of the
Municipal Council of Mariveles, Bataan. The complaint[1] alleged that the resolution,
appropriating the amount of P8,500.00 for the payment of the terminal leave of two
municipal employees, was anomalous for not having been approved by the said
Council, as the minutes of the proceedings therein made no reference to the
supposed approval thereof. It contended that its seeming passage was carried out
by petitioner in connivance with Sangguniang Bayan (SB) Member Jesse
Concepcion and SB Secretary Antonio Zurita.
After preliminary investigation, the deputized prosecutor of Balanga, Bataan
recommended the filing of an information[2] for Falsification of Public Document
against petitioner and Concepcion, excluding Zurita who died during the pendency
hereof.
On September 21, 1994, the information filed before the Sandiganbayan reads
as follows:
That on or about July 27, 1992 or sometimes (sic) prior or subsequent thereto, in
Mariveles, Bataan, Philippines, and within the jurisdiction of this Honorable Court,
OSCAR DELOS REYES and JESSE CONCEPCION, both public officers, being
Municipal Mayor of Mariveles, Bataan and Member of the Sangguniang Bayan of
Mariveles, Bataan, passed and approved the said resolution appropriating the
amount of P8,500.00 for payment of the terminal leave of two (2) employees of the
municipality, when in truth and in fact as both accused knew well the same is false
and incorrect as the said resolution was not approved by the aforesaid Sangguniang
Bayan for which both accused has the obligation to disclose the truth.
CONTRARY TO LAW.[3]
On October 14, 1994, prior to his arraignment, petitioner filed a Motion for
Reinvestigation arguing, among other things, that the Ombudsman previously
dismissed a similar complaint against him involving the same factual setting. [4]
LGC Sec. 17-22,48-59
Likewise adduced in the motion is the joint affidavit of the other members of the
Sangguniang Bayan of Mariveles attesting to the actual passage and approval of
Resolution No. 57-S-92.
In a resolution dated December 29, 1994, respondent Sandiganbayan denied
the Motion for Reinvestigation, the pertinent portion of which reads:
Acting on accused Mayor Oscar delos Reyes Motion for Reinvestigation and
accused Jesse Concepcions Manifestation, the same are hereby DENIED, being
without merit and the prosecution having vigorously opposed the Motion. The
allegations of fact and the arguments of counsel are best taken up in the trial on the
merits. As found by the prosecution, a prima facie case exists.
Consequently, let the arraignment of the above entitled case be set on March 03,
1995, at 8:30 A.M.[5]
After the motion for reconsideration was denied on May 24, 1995, petitioner
filed this instant petition for certiorari. On September 18, 1995, the Court resolved
to issue the temporary restraining order prayed for by petitioner.
The order of respondent Sandiganbayan must be sustained.
In an effort to exonerate himself from the charge, petitioner argues that the
deliberations undertaken and the consequent passage of Resolution No. 57-S-92
are legislative in nature. He adds that as local chief executive, he has neither the
official custody of nor the duty to prepare said resolution; hence, he could not have
taken advantage of his official position in committing the crime of falsification as
defined and punished under Article 171[6] of the Revised Penal Code.
Petitioner would like to impress upon this Court that the final step in the
approval of an ordinance or resolution, where the local chief executive affixes his
signature, is purely a ministerial act. This view is erroneous. Article 109(b) of the
Local Government Code outlines the veto power of the Local Chief Executive which
provides:
Article 109 (b) The local chief executive, except the punong barangay shall have the
power to veto any particular item or items of an appropriations ordinance, an
ordinance or resolution adopting a local development plan and public investment
program or an ordinance directing the payment of money or creating liability. x x x.
(Underscoring supplied)
Contrary to petitioners belief, the grant of the veto power confers authority
beyond the simple mechanical act of signing an ordinance or resolution, as a
requisite to its enforceability. Such power accords the local chief executive the
discretion to sustain a resolution or ordinance in the first instance or to veto it and
return it with his objections to the Sanggunian, which may proceed to reconsider the
same. The Sanggunian concerned, however, may override the veto by a two-thirds
(2/3) vote of all its members thereby making the ordinance or resolution effective for
all legal intents and purposes. It is clear, therefore, that the concurrence of a local
chief executive in the enactment of an ordinance or resolution requires, not only a
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flourish of the pen, but the application of judgment after meticulous analysis and
intelligence as well.
Petitioners other contention that the Ombudsman should have dismissed the
present case in view of a previous dismissal of a similar complaint involving the
same factual context is likewise misplaced.
As explained by Deputy Special Prosecutor Leonardo P. Tamayo in his
comment, the other case relied upon by petitioner has no relation whatsoever with
the one in question. Notably, the former case was subject of a separate complaint
and preliminary investigation, hence, the findings and records therein could not be
made part of the case under consideration.[7]
It must be stressed that the Ombudsman correctly relied on the minutes taken
during the session of the Sangguniang Bayan held last July 27, 1992, which
petitioner regards as inconclusive evidence of what actually transpired therein. In a
long line of cases, the Court, in resolving conflicting assertions of the protagonists
in a case, has placed reliance on the minutes or the transcribed stenographic notes
to ascertain the truth of the proceedings therein.
The following cases illustrate the importance of the minutes:
It was held that contrary to petitioners claim, what the minutes only show is that on
August 12, 1994 the Sanggunian took a vote on the administrative case of
respondent Mayor and not that it then rendered a decision as required by Section
66(a) of the Local Government Code.[8]
With the same factual context as in the case at bar, petitioners herein were accused
of having falsified or caused the falsification of the excerpts of the minutes of the
regular sessions of the Sangguniang Panlalawigan of Quirino province on August
15, 1988 and September 19, 1988. x x x.[9]
In his resolution, Secretary Drilon declared that there were no written notices of
public hearings on the proposed Manila Revenue Code that were sent to interested
parties as required by Article 276(b) of the Implementing Rules of the Local
Government Code nor were copies of the proposed ordinance published in three
successive issues of a newspaper of general circulation pursuant to Article
276(a). No minutes were submitted to show that the obligatory public hearings had
been held.[10]
It appears from the minutes of the board meeting of February 28, 1958 that the
names of the members present as well those who were absent have been recorded,
and that all those present took active part in the debates and deliberations. At the
end of the session, when the presiding officer asked the members if there were any
objections to the approval of the proposed budget, only one councilor raised an
objection. The minutes, therefore, could readily show who of the members present
in the deliberations voted pro and who voted con.[11]
The certification of the election registrar relied upon by the petitioner is correct as
far as it goes. Only 80 votes appear to have voted according to the precinct book in
LGC Sec. 17-22,48-59
the sense that only 80 voters affixed their signatures thereon after voting. But this
does not necessarily mean that no other voters cast their ballots in the questioned
precinct: there were 279 in all, according to the minutes of voting, although only 80
of them signed the precinct book.[12]
As found by the trial court, the said minutes of the meeting of the Sangguniang
Bayan do not mention the execution of any deed to perfect the agreement. An
engineer was appointed to survey the old abandoned road, but this act does not in
any manner convey title over the abandoned road to the Pansacola spouses nor
extinguishes their ownership over the land traversed by the new provincial
highway.[13]
In the case at bar, the minutes of the session reveal that petitioner attended
the session of the Sangguniang Bayan on July 27, 1992. It is evident, therefore, that
petitioner approved the subject resolution knowing fully well that the subject matter
treated therein was neither taken up and discussed nor passed upon by the
Sangguniang Bayan during the legislative session.[14]
Thus, the Court accords full recognition to the minutes as the official repository
of what actually transpires in every proceeding. It has happened that the minutes
may be corrected to reflect the true account of a proceeding, thus giving the Court
more reason to accord them great weight for such subsequent corrections, if any,
are made precisely to preserve the accuracy of the records. In light of the conflicting
claims of the parties in the case at bar, the Court, without resorting to the minutes,
will encounter difficulty in resolving the dispute at hand.
With regard to the joint affidavit of some members of the Sangguniang Bayan
attesting to the actual passage and approval of Resolution No. 57-S-92, the Court
finds the same to have been belatedly submitted as a last minute attempt to bolster
petitioners position, and, therefore, could not in any way aid the latters cause.
Indeed, the arguments raised by petitioners counsel are best taken up in the
trial on the merits.
WHEREFORE, in view of the foregoing, the instant petition is
DISMISSED. The assailed resolutions of the Sandiganbayan dated December 29,
1994, and May 24, 1995, are hereby AFFIRMED. The temporary restraining order
issued by this Court on September 18, 1995, is hereby LIFTED.
The Sandiganbayan is DIRECTED to set Criminal Case No. 21073 for
arraignment and trial.
SO ORDERED.
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