G.R. No.
92389 September 11, 1991
HON. JEJOMAR C. BINAY and the MUNICIPALITY OF
MAKATI, petitioners,
vs.
HON. EUFEMIO DOMINGO and the COMMISSION ON
AUDIT, respondents.
Jejomar C. Binay for himself and for his co-petitioner.
Manuel D. Tamase and Rafael C. Marquez for
respondents.
PARAS, J.:
The only pivotal issue before Us is whether or not
Resolution No. 60, re-enacted under Resolution No. 243,
of the Municipality of Makati is a valid exercise of police
power under the general welfare clause.
The pertinent facts are:
On September 27, 1988, petitioner Municipality, through
its Council, approved Resolution No. 60 which reads:
A RESOLUTION TO CONFIRM AND/OR RATIFY THE
ONGOING BURIAL ASSISTANCE PROGRAM INITIATED BY
THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL
ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO A
BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF
UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE
MUNICIPAL TREASURY. (Rollo, Annnex "A" p. 39)
Qualified beneficiaries, under the Burial Assistance
Program, are bereaved families of Makati whose gross
family income does not exceed two thousand pesos
(P2,000.00) a month. The beneficiaries, upon fulfillment
of other requirements, would receive the amount of five
hundred pesos (P500.00) cash relief from the
Municipality of Makati. (Reno, Annex "13", p. 41)
Metro Manila Commission approved Resolution No. 60.
Thereafter, the municipal secretary certified a
disbursement fired of four hundred thousand pesos
(P400,000.00) for the implementation of the Burial
Assistance Program. (Rollo, Annex "C", p. 43).
Resolution No. 60 was referred to respondent
Commission on Audit (COA) for its expected allowance in
audit. Based on its preliminary findings, respondent COA
disapproved Resolution No. 60 and disallowed in audit
the disbursement of finds for the implementation
thereof. (Rollo, Annex "D", P. 44)
Two letters for reconsideration (Annexes "E" and "F",
Rollo, pp. 45 and 48, respectively) filed by petitioners
Mayor Jejomar Binay, were denied by respondent in its
Decision No. 1159, in the following manner:
Your request for reconsideration is predicated on the
following grounds, to wit:
1. Subject Resolution No. 60, s. 1988, of the Municipal
Council of Makati and the intended disbursements fall
within the twin principles of 'police power and parens
patriae and
2. The Metropolitan Manila Commission (MMC), under a
Certification, dated June 5, 1989, has already
appropriated the amount of P400,000.00 to implement
the Id resolution, and the only function of COA on the
matter is to allow the financial assistance in question.
The first contention is believed untenable. Suffice it to
state that:
a statute or ordinance must have a real substantial, or
rational relation to the public safety, health, morals, or
general welfare to be sustained as a legitimate exercise
of the police power. The mere assertion by the legislature
that a statute relates to the public health, safety, or
welfare does not in itself bring the statute within the
police power of a state for there must always be an
obvious and real connection between the actual
provisions of a police regulations and its avowed purpose,
and the regulation adopted must be reasonably adapted
to accomplish the end sought to be attained. 16 Am. Jur
2d, pp. 542-543; emphasis supplied).
Here, we see no perceptible connection or relation
between the objective sought to be attained under
Resolution No. 60, s. 1988, supra, and the alleged public
safety, general welfare, etc. of the inhabitants of Makati.
Anent the second contention, let it be stressed that
Resolution No. 60 is still subject to the limitation that the
expenditure covered thereby should be for a public
purpose, i.e., that the disbursement of the amount of
P500.00 as burial assistance to a bereaved family of the
Municipality of Makati, or a total of P400,000.00
appropriated under the Resolution, should be for the
benefit of the whole, if not the majority, of the
inhabitants of the Municipality and not for the benefit of
only a few individuals as in the present case. On this point
government funds or property shall be spent or used
solely for public purposes. (Cf. Section 4[2], P.D. 1445).
(pp. 50-51, Rollo)
Bent on pursuing the Burial Assistance Program the
Municipality of Makati, through its Council, passed
Resolution No. 243, re-affirming Resolution No. 60 (Rollo,
Annex "H", p. 52).
However, the Burial Assistance Program has been stayed
by COA Decision No. 1159. Petitioner, through its Mayor,
was constrained to file this special civil action of
certiorari praying that COA Decision No. 1159 be set
aside as null and void.
The police power is a governmental function, an inherent
attribute of sovereignty, which was born with civilized
government. It is founded largely on the maxims, "Sic
utere tuo et ahenum non laedas and "Salus populi est
suprema lex Its fundamental purpose is securing the
general welfare, comfort and convenience of the people.
1
Police power is inherent in the state but not in municipal
corporations (Balacuit v. CFI of Agusan del Norte, 163
SCRA 182). Before a municipal corporation may exercise
such power, there must be a valid delegation of such
power by the legislature which is the repository of the
inherent powers of the State. A valid delegation of police
power may arise from express delegation, or be inferred
from the mere fact of the creation of the municipal
corporation; and as a general rule, municipal
corporations may exercise police powers within the fair
intent and purpose of their creation which are
reasonably proper to give effect to the powers expressly
granted, and statutes conferring powers on public
corporations have been construed as empowering them
to do the things essential to the enjoyment of life and
desirable for the safety of the people. (62 C.J.S., p. 277).
The so-called inferred police powers of such corporations
are as much delegated powers as are those conferred in
express terms, the inference of their delegation growing
out of the fact of the creation of the municipal
corporation and the additional fact that the corporation
can only fully accomplish the objects of its creation by
exercising such powers. (Crawfordsville vs. Braden, 28
N.E. 849). Furthermore, municipal corporations, as
governmental agencies, must have such measures of the
power as are necessary to enable them to perform their
governmental functions. The power is a continuing one,
founded on public necessity. (62 C.J.S. p. 273) Thus, not
only does the State effectuate its purposes through the
exercise of the police power but the municipality does
also. (U.S. v. Salaveria, 39 Phil. 102).
Municipal governments exercise this power under the
general welfare clause: pursuant thereto they are
clothed with authority to "enact such ordinances and
issue such regulations as may be necessary to carry out
and discharge the responsibilities conferred upon it by
law, and such as shall be necessary and proper to provide
for the health, safety, comfort and convenience,
maintain peace and order, improve public morals,
promote the prosperity and general welfare of the
municipality and the inhabitants thereof, and insure the
protection of property therein." (Sections 91, 149, 177
and 208, BP 337). And under Section 7 of BP 337, "every
local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom,
as well as powers necessary and proper for governance
such as to promote health and safety, enhance
prosperity, improve morals, and maintain peace and
order in the local government unit, and preserve the
comfort and convenience of the inhabitants therein."
Police power is the power to prescribe regulations to
promote the health, morals, peace, education, good
order or safety and general welfare of the people. It is
the most essential, insistent, and illimitable of powers. In
a sense it is the greatest and most powerful attribute of
the government. It is elastic and must be responsive to
various social conditions. (Sangalang, et al. vs. IAC, 176
2
SCRA 719). On it depends the security of social order, the
life and health of the citizen, the comfort of an existence
in a thickly populated community, the enjoyment of
private and social life, and the beneficial use of property,
and it has been said to be the very foundation on which
our social system rests. (16 C.J.S., P. 896) However, it is
not confined within narrow circumstances of precedents
resting on past conditions; it must follow the legal
progress of a democratic way of life. (Sangalang, et al. vs.
IAC, supra).
In the case at bar, COA is of the position that there is "no
perceptible connection or relation between the objective
sought to be attained under Resolution No. 60, s. 1988,
supra, and the alleged public safety, general welfare. etc.
of the inhabitants of Makati." (Rollo, Annex "G", p. 51).
Apparently, COA tries to re-define the scope of police
power by circumscribing its exercise to "public safety,
general welfare, etc. of the inhabitants of Makati."
In the case of Sangalang vs. IAC, supra, We ruled that
police power is not capable of an exact definition but has
been, purposely, veiled in general terms to underscore
its all comprehensiveness. Its scope, over-expanding to
meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for
an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits.
The police power of a municipal corporation is broad,
and has been said to be commensurate with, but not to
exceed, the duty to provide for the real needs of the
people in their health, safety, comfort, and convenience
as consistently as may be with private rights. It extends
to all the great public needs, and, in a broad sense
includes all legislation and almost every function of the
municipal government. It covers a wide scope of
subjects, and, while it is especially occupied with
whatever affects the peace, security, health, morals, and
general welfare of the community, it is not limited
thereto, but is broadened to deal with conditions which
exists so as to bring out of them the greatest welfare of
the people by promoting public convenience or general
prosperity, and to everything worthwhile for the
preservation of comfort of the inhabitants of the
corporation (62 C.J.S. Sec. 128). Thus, it is deemed
inadvisable to attempt to frame any definition which
shall absolutely indicate the limits of police power.
COA's additional objection is based on its contention that
"Resolution No. 60 is still subject to the limitation that
the expenditure covered thereby should be for a public
purpose, ... should be for the benefit of the whole, if not
the majority, of the inhabitants of the Municipality and
not for the benefit of only a few individuals as in the
present case." (Rollo, Annex "G", p. 51).
COA is not attuned to the changing of the times. Public
purpose is not unconstitutional merely because it
incidentally benefits a limited number of persons. As
correctly pointed out by the Office of the Solicitor
General, "the drift is towards social welfare legislation
geared towards state policies to provide adequate social
services (Section 9, Art. II, Constitution), the promotion
of the general welfare (Section 5, Ibid) social justice
(Section 10, Ibid) as well as human dignity and respect for
human rights. (Section 11, Ibid." (Comment, p. 12)
The care for the poor is generally recognized as a public
duty. The support for the poor has long been an accepted
exercise of police power in the promotion of the
common good.
There is no violation of the equal protection clause in
classifying paupers as subject of legislation. Paupers may
be reasonably classified. Different groups may receive
varying treatment. Precious to the hearts of our
legislators, down to our local councilors, is the welfare of
the paupers. Thus, statutes have been passed giving
rights and benefits to the disabled, emancipating the
tenant-farmer from the bondage of the soil, housing the
urban poor, etc.
Resolution No. 60, re-enacted under Resolution No. 243,
of the Municipality of Makati is a paragon of the
continuing program of our government towards social
justice. The Burial Assistance Program is a relief of
pauperism, though not complete. The loss of a member
of a family is a painful experience, and it is more painful
for the poor to be financially burdened by such death.
Resolution No. 60 vivifies the very words of the late
President Ramon Magsaysay 'those who have less in life,
should have more in law." This decision, however must
not be taken as a precedent, or as an official go-signal for
municipal governments to embark on a philanthropic
orgy of inordinate dole-outs for motives political or
otherwise.
PREMISES CONSIDERED, and with the afore-mentioned
caveat, this petition is hereby GRANTED and the
Commission on Audit's Decision No. 1159 is hereby SET
ASIDE.
Case Nature : SPECIAL CIVIL ACTION of certiorari to
review the decision of the Comm
Syllabi Class : Constitutional Law|Municipal
Corporation|Police Power
G.R. No. 166494 June 29, 2007
CARLOS SUPERDRUG CORP., doing business under the
name and style "Carlos Superdrug," ELSIE M. CANO,
3
doing business under the name and style "Advance
Drug," Dr. SIMPLICIO L. YAP, JR., doing business under
the name and style "City Pharmacy," MELVIN S. DELA
SERNA, doing business under the name and style
"Botica dela Serna," and LEYTE SERV-WELL CORP., doing
business under the name and style "Leyte Serv-Well
Drugstore," petitioners,
vs.
DEPARTMENT OF SOCIAL WELFARE and DEVELOPMENT
(DSWD), DEPARTMENT OF HEALTH (DOH),
DEPARTMENT OF FINANCE (DOF), DEPARTMENT OF
JUSTICE (DOJ), and DEPARTMENT OF INTERIOR and
LOCAL GOVERNMENT (DILG), respondents.
DECISION
AZCUNA, J.:
This is a petition1 for Prohibition with Prayer for
Preliminary Injunction assailing the constitutionality of
Section 4(a) of Republic Act (R.A.) No. 9257,2 otherwise
known as the "Expanded Senior Citizens Act of 2003."
Petitioners are domestic corporations and proprietors
operating drugstores in the Philippines.
Public respondents, on the other hand, include the
Department of Social Welfare and Development (DSWD),
the Department of Health (DOH), the Department of
Finance (DOF), the Department of Justice (DOJ), and the
Department of Interior and Local Government (DILG)
which have been specifically tasked to monitor the
drugstores’ compliance with the law; promulgate the
implementing rules and regulations for the effective
implementation of the law; and prosecute and revoke
the licenses of erring drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No.
7432,3 was signed into law by President Gloria
Macapagal-Arroyo and it became effective on March 21,
2004. Section 4(a) of the Act states:
SEC. 4. Privileges for the Senior Citizens. – The senior
citizens shall be entitled to the following:
(a) the grant of twenty percent (20%) discount from all
establishments relative to the utilization of services in
hotels and similar lodging establishments, restaurants
and recreation centers, and purchase of medicines in all
establishments for the exclusive use or enjoyment of
senior citizens, including funeral and burial services for
the death of senior citizens;
...
The establishment may claim the discounts granted
under (a), (f), (g) and (h) as tax deduction based on the
net cost of the goods sold or services rendered: Provided,
That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year
that the discount is granted. Provided, further, That the
total amount of the claimed tax deduction net of value
added tax if applicable, shall be included in their gross
sales receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the
National Internal Revenue Code, as amended.4
On May 28, 2004, the DSWD approved and adopted the
Implementing Rules and Regulations of R.A. No. 9257,
Rule VI, Article 8 of which states:
Article 8. Tax Deduction of Establishments. – The
establishment may claim the discounts granted
under Rule V, Section 4– Discounts
5
Establishments; Section 9, Medical and Dental Services
in Private Facilities[,]6 and Sections 107 and 118 – Air, Sea
and Land Transportation as tax deduction based on the
net cost of the goods sold or services rendered. Provided,
That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year
that the discount is granted; Provided, further, That the
total amount of the claimed tax deduction net of value
added tax if applicable, shall be included in their gross
sales receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the
National Internal Revenue Code, as amended; Provided,
finally, that the implementation of the tax deduction
shall be subject to the Revenue Regulations to be issued
by the Bureau of Internal Revenue (BIR) and approved by
the Department of Finance (DOF).9
On July 10, 2004, in reference to the query of the Drug
Stores Association of the Philippines (DSAP) concerning
the meaning of a tax deduction under the Expanded
Senior Citizens Act, the DOF, through Director IV Ma.
Lourdes B. Recente, clarified as follows:
1) The difference between the Tax Credit (under the Old
Senior Citizens Act) and Tax Deduction (under the
Expanded Senior Citizens Act).
1.1. The provision of Section 4 of R.A. No. 7432 (the old
Senior Citizens Act) grants twenty percent (20%) discount
from all establishments relative to the utilization of
transportation services, hotels and similar lodging
establishment, restaurants and recreation centers and
purchase of medicines anywhere in the country, the
costs of which may be claimed by the private
establishments concerned as tax credit.
Effectively, a tax credit is a peso-for-peso deduction
from a taxpayer’s tax liability due to the government of
the amount of discounts such establishment has granted
to a senior citizen. The establishment recovers the full
amount of discount given to a senior citizen and hence,
the government shoulders 100% of the discounts
granted.
It must be noted, however, that conceptually, a tax
credit scheme under the Philippine tax system,
necessitates that prior payments of taxes have been
made and the taxpayer is attempting to recover this tax
payment from his/her income tax due. The tax credit
scheme under R.A. No. 7432 is, therefore, inapplicable
since no tax payments have previously occurred.
1.2. The provision under R.A. No. 9257, on the other
hand, provides that the establishment concerned may
claim the discounts under Section 4(a), (f), (g) and (h)
as tax deduction from gross income, based on the net
cost of goods sold or services rendered.
Under this scheme, the establishment concerned is
allowed to deduct from gross income, in computing for
its tax liability, the amount of discounts granted to senior
for citizens. Effectively, the government loses in terms of
foregone revenues an amount equivalent to the marginal
tax rate the said establishment is liable to pay the
government. This will be an amount equivalent to 32% of
the twenty percent (20%) discounts so granted. The
establishment shoulders the remaining portion of the
granted discounts.
It may be necessary to note that while the burden on
[the] government is slightly diminished in terms of its
percentage share on the discounts granted to senior
citizens, the number of potential establishments that
may claim tax deductions, have however, been
broadened. Aside from the establishments that may
claim tax credits under the old law, more establishments
were added under the new law such as: establishments
providing medical and dental services, diagnostic and
laboratory services, including professional fees of
attending doctors in all private hospitals and medical
facilities, operators of domestic air and sea transport
services, public railways and skyways and bus transport
services.
A simple illustration might help amplify the points
discussed above, as follows:
Tax Deduction Tax Credit
Gross Sales x x x x x x x x x x x x
Less : Cost of goods sold x x x x x x x x x x
Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x --
Other deductions: x x x x x x x x
Net Taxable Income x x x x x x x x x x
Tax Due x x x x x x
Less: Tax Credit -- ______x x
Net Tax Due -- x x
As shown above, under a tax deduction scheme, the tax
deduction on discounts was subtracted from Net Sales
together with other deductions which are considered as
operating expenses before the Tax Due was computed
based on the Net Taxable Income. On the other hand,
under a tax credit scheme, the amount of discounts
4
which is the tax credit item, was deducted directly from
the tax due amount.10
Meanwhile, on October 1, 2004, Administrative Order
(A.O.) No. 171 or the Policies and Guidelines to
Implement the Relevant Provisions of Republic Act 9257,
otherwise known as the "Expanded Senior Citizens Act of
2003"11was issued by the DOH, providing the grant of
twenty percent (20%) discount in the purchase of
unbranded generic medicines from all establishments
dispensing medicines for the exclusive use of the senior
citizens.
On November 12, 2004, the DOH issued Administrative
Order No 17712 amending A.O. No. 171. Under A.O. No.
177, the twenty percent discount shall not be limited to
the purchase of unbranded generic medicines only, but
shall extend to both prescription and non-prescription
medicines whether branded or generic. Thus, it stated
that "[t]he grant of twenty percent (20%) discount shall
be provided in the purchase of medicines from all
establishments dispensing medicines for the exclusive
use of the senior citizens."
Petitioners assail the constitutionality of Section 4(a) of
the Expanded Senior Citizens Act based on the following
grounds:13
1) The law is confiscatory because it infringes Art. III, Sec.
9 of the Constitution which provides that private
property shall not be taken for public use without just
compensation;
2) It violates the equal protection clause (Art. III, Sec. 1)
enshrined in our Constitution which states that "no
person shall be deprived of life, liberty or property
without due process of law, nor shall any person be
denied of the equal protection of the laws;" and
3) The 20% discount on medicines violates the
constitutional guarantee in Article XIII, Section 11 that
makes "essential goods, health and other social services
available to all people at affordable cost."14
Petitioners assert that Section 4(a) of the law is
unconstitutional because it constitutes deprivation of
private property. Compelling drugstore owners and
establishments to grant the discount will result in a loss
of profit
and capital because 1) drugstores impose a mark-up of
only 5% to 10% on branded medicines; and 2) the law
failed to provide a scheme whereby drugstores will be
justly compensated for the discount.
Examining petitioners’ arguments, it is apparent that
what petitioners are ultimately questioning is the validity
of the tax deduction scheme as a reimbursement
mechanism for the twenty percent (20%) discount that
they extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax
deduction scheme does not fully reimburse petitioners
5
for the discount privilege accorded to senior citizens. This
is because the discount is treated as a deduction, a tax-
deductible expense that is subtracted from the gross
income and results in a lower taxable income. Stated
otherwise, it is an amount that is allowed by law15 to
reduce the income prior to the application of the tax rate
to compute the amount of tax which is due.16 Being a tax
deduction, the discount does not reduce taxes owed on
a peso for peso basis but merely offers a fractional
reduction in taxes owed.
Theoretically, the treatment of the discount as a
deduction reduces the net income of the private
establishments concerned. The discounts given would
have entered the coffers and formed part of the gross
sales of the private establishments, were it not for R.A.
No. 9257.
The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of private
property for public use or benefit.17 This constitutes
compensable taking for which petitioners would
ordinarily become entitled to a just compensation.
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by the
expropriator. The measure is not the taker’s gain but the
owner’s loss. The word just is used to intensify the
meaning of the word compensation, and to convey the
idea that the equivalent to be rendered for the property
to be taken shall be real, substantial, full and ample.18
A tax deduction does not offer full reimbursement of the
senior citizen discount. As such, it would not meet the
definition of just compensation.19
Having said that, this raises the question of whether the
State, in promoting the health and welfare of a special
group of citizens, can impose upon private
establishments the burden of partly subsidizing a
government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to
maximize the contribution of senior citizens to nation-
building, and to grant benefits and privileges to them for
their improvement and well-being as the State considers
them an integral part of our society.20
The priority given to senior citizens finds its basis in the
Constitution as set forth in the law itself. Thus, the Act
provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read
as follows:
SECTION 1. Declaration of Policies and Objectives.
– Pursuant to Article XV, Section 4 of the Constitution, it
is the duty of the family to take care of its elderly
members while the State may design programs of social
security for them. In addition to this, Section 10 in the
Declaration of Principles and State Policies provides:
"The State shall provide social justice in all phases of
national development." Further, Article XIII, Section 11,
provides: "The State shall adopt an integrated and
comprehensive approach to health development which
shall endeavor to make essential goods, health and other
social services available to all the people at affordable
cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women and
children." Consonant with these constitutional principles
the following are the declared policies of this Act:
...
(f) To recognize the important role of the private sector
in the improvement of the welfare of senior citizens and
to actively seek their partnership.21
To implement the above policy, the law grants a twenty
percent discount to senior citizens for medical and dental
services, and diagnostic and laboratory fees; admission
fees charged by theaters, concert halls, circuses,
carnivals, and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel;
utilization of services in hotels and similar lodging
establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or
enjoyment of senior citizens. As a form of
reimbursement, the law provides that business
establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which,
similar to the power of eminent domain, has general
welfare for its object. Police power is not capable of an
exact definition, but has been purposely veiled in general
terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and
flexible response to conditions and circumstances, thus
assuring the greatest benefits. 22 Accordingly, it has been
described as "the most essential, insistent and the least
limitable of powers, extending as it does to all the great
public needs."23 It is "[t]he power vested in the
legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws,
statutes, and ordinances, either with penalties or
without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the
commonwealth, and of the subjects of the same."24
For this reason, when the conditions so demand as
determined by the legislature, property rights must bow
to the primacy of police power because property rights,
though sheltered by due process, must yield to general
welfare.25
Police power as an attribute to promote the common
good would be diluted considerably if on the mere plea
of petitioners that they will suffer loss of earnings and
capital, the questioned provision is invalidated.
Moreover, in the absence of evidence demonstrating the
alleged confiscatory effect of the provision in question,
6
there is no basis for its nullification in view of the
presumption of validity which every law has in its favor.26
Given these, it is incorrect for petitioners to insist that
the grant of the senior citizen discount is unduly
oppressive to their business, because petitioners have
not taken time to calculate correctly and come up with a
financial report, so that they have not been able to show
properly whether or not the tax deduction scheme really
works greatly to their disadvantage.27
In treating the discount as a tax deduction, petitioners
insist that they will incur losses because, referring to the
DOF Opinion, for every ₱1.00 senior citizen discount that
petitioners would give, ₱0.68 will be shouldered by them
as only ₱0.32 will be refunded by the government by way
of a tax deduction.
To illustrate this point, petitioner Carlos Super Drug cited
the anti-hypertensive maintenance drug Norvasc as an
example. According to the latter, it
acquires Norvasc from the distributors at ₱37.57 per
tablet, and retails it at ₱39.60 (or at a margin of 5%). If it
grants a 20% discount to senior citizens or an amount
equivalent to ₱7.92, then it would have to sell Norvasc at
₱31.68 which translates to a loss from capital of ₱5.89
per tablet. Even if the government will allow a tax
deduction, only ₱2.53 per tablet will be refunded and not
the full amount of the discount which is ₱7.92. In short,
only 32% of the 20% discount will be reimbursed to the
drugstores.28
Petitioners’ computation is flawed. For purposes of
reimbursement, the law states that the cost of the
discount shall be deducted from gross income,29 the
amount of income derived from all sources before
deducting allowable expenses, which will result in net
income. Here, petitioners tried to show a loss on a per
transaction basis, which should not be the case. An
income statement, showing an accounting of petitioners’
sales, expenses, and net profit (or loss) for a given period
could have accurately reflected the effect of the discount
on their income. Absent any financial statement,
petitioners cannot substantiate their claim that they will
be operating at a loss should they give the discount. In
addition, the computation was erroneously based on the
assumption that their customers consisted wholly of
senior citizens. Lastly, the 32% tax rate is to be imposed
on income, not on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the
law because they cannot raise the prices of their
medicines given the cutthroat nature of the players in
the industry. It is a business decision on the part of
petitioners to peg the mark-up at 5%. Selling the
medicines below acquisition cost, as alleged by
petitioners, is merely a result of this decision. Inasmuch
as pricing is a property right, petitioners cannot reproach
the law for being oppressive, simply because they cannot
afford to raise their prices for fear of losing their
customers to competition.
The Court is not oblivious of the retail side of the
pharmaceutical industry and the competitive pricing
component of the business. While the Constitution
protects property rights, petitioners must accept the
realities of business and the State, in the exercise of
police power, can intervene in the operations of a
business which may result in an impairment of property
rights in the process.

Moreover, the right to property has a social dimension.

While Article XIII of the Constitution provides the precept
for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the
regulation of contracts and public utilities, continuously
serve as a reminder that the right to property can be
relinquished upon the command of the State for the
promotion of public good.30

Undeniably, the success of the senior citizens program

rests largely on the support imparted by petitioners and
G.R. No. 126102 December 4, 2000
the other private establishments concerned. This being
the case, the means employed in invoking the active ORTIGAS & CO. LTD., petitioner,
participation of the private sector, in order to achieve the vs.
purpose or objective of the law, is reasonably and THE COURT OF APPEALS and ISMAEL G. MATHAY
directly related. Without sufficient proof that Section III, respondents.
4(a) of R.A. No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably DECISION
detrimental to petitioners, the Court will refrain from QUISUMBING, J.:
quashing a legislative act.31
This petition seeks to reverse the decision of the Court of
WHEREFORE, the petition is DISMISSED for lack of merit. Appeals, dated March 25, 1996, in CA-G.R. SP No. 39193,
No costs. which nullified the writ of preliminary injunction issued
by the Regional Trial Court of Pasig City, Branch 261, in
Case Nature : SPECIAL CIVIL ACTION in the Supreme Civil Case No. 64931. It also assails the resolution of the
Court. Prohibition. appellate court, dated August 13, 1996, denying
petitioner’s motion for reconsideration.
Syllabi Class : Expanded Senior Citizens Act of 2003 (R.A.
No. 9257)|Taxation|Eminent Domain|Words and The facts of this case, as culled from the records, are as
Phrases|Police Power follows:

On August 25, 1976, petitioner Ortigas & Company sold

to Emilia Hermoso, a parcel of land known as Lot 1, Block
21, Psd-66759, with an area of 1,508 square meters,
located in Greenhills Subdivision IV, San Juan, Metro
Manila, and covered by Transfer Certificate of Title No.
0737. The contract of sale provided that the lot:

1. …(1) be used exclusively…for residential purposes

only, and not more than one single-family residential
building will be constructed thereon,…

xxx

6. The BUYER shall not erect…any sign or billboard on the

roof…for advertising purposes…

xxx

11. No single-family residential building shall be

erected…until the building plans, specification…have
been approved by the SELLER…

xxx

7
14....restrictions shall run with the land and shall be
construed as real covenants until December 31, 2025
when they shall cease and terminate…1
These and the other conditions were duly annotated on
the certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now
Metropolitan Manila Development Authority) enacted
MMC Ordinance No. 81-01, also known as the
Comprehensive Zoning Area for the National Capital
Region. The ordinance reclassified as a commercial area
a portion of Ortigas Avenue from Madison to Roosevelt
Streets of Greenhills Subdivision where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III
leased the lot from Emilia Hermoso and J.P. Hermoso
Realty Corp.. The lease contract did not specify the
purposes of the lease. Thereupon, private respondent
constructed a single story commercial building for
Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against
Emilia Hermoso with the Regional Trial Court of Pasig,
Branch 261. Docketed as Civil Case No. 64931, the
complaint sought the demolition of the said commercial
structure for having violated the terms and conditions of
the Deed of Sale. Complainant prayed for the issuance of
a temporary restraining order and a writ of preliminary
injunction to prohibit petitioner from constructing the
commercial building and/or engaging in commercial
activity on the lot. The complaint was later amended to
implead Ismael G. Mathay III and J.P. Hermoso Realty
Corp., which has a ten percent (10%) interest in the lot.
In his answer, Mathay III denied any knowledge of the
restrictions on the use of the lot and filed a cross-claim
against the Hermosos.
On June 16, 1995, the trial court issued the writ of
preliminary injunction. On June 29, 1995, Mathay III
moved to set aside the injunctive order, but the trial
court denied the motion.
Mathay III then filed with the Court of Appeals a special
civil action for certiorari, docketed as CA-G.R. SP No.
39193, ascribing to the trial court grave abuse of
discretion in issuing the writ of preliminary injunction. He
claimed that MMC Ordinance No. 81-01 classified the
area where the lot was located as commercial area and
said ordinance must be read into the August 25, 1976
Deed of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the
restrictions on the use of the lot were duly annotated on
the title it issued to Emilia Hermoso, said restrictions
must prevail over the ordinance, specially since these
restrictions were agreed upon before the passage of
MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the
case as follows:
8
WHEREFORE, in light of the foregoing, the petition is
hereby GRANTED. The assailed orders are hereby
nullified and set aside.
SO ORDERED.2
In finding for Mathay III, the Court of Appeals held that
the MMC Ordinance No. 81-01 effectively nullified the
restrictions allowing only residential use of the property
in question.
Ortigas seasonably moved for reconsideration, but the
appellate court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the
"principal issue in this case is whether respondent Court
of Appeals correctly set aside the Order dated June 16,
1995 of the trial court which issued the writ of
preliminary injunction on the sole ground that MMC
Ordinance No. 81-01 nullified the building restriction
imposing exclusive residential use on the property in
question."3 It also asserts that "Mathay III lacks legal
capacity to question the validity of conditions of the deed
of sale; and he is barred by estoppel or waiver to raise
the same question like his principals, the
owners."4 Lastly, it avers that the appellate court
"unaccountably failed to address" several questions of
fact.
Principally, we must resolve the issue of whether the
Court of Appeals erred in holding that the trial court
committed grave abuse of discretion when it refused to
apply MMC Ordinance No.81-01 to Civil Case No. 64931.
But first, we must address petitioner’s allegation that the
Court of Appeals "unaccountably failed to address"
questions of fact. For basic is the rule that factual issues
may not be raised before this Court in a petition for
review and this Court is not duty-bound to consider said
questions.5 CA-G.R. SP No. 39193 was a special civil
action for certiorari, and the appellate court only had to
determine if the trial court committed grave abuse of
discretion amounting to want or excess of jurisdiction in
issuing the writ of preliminary injunction. Thus, unless
vital to our determination of the issue at hand, we shall
refrain from further consideration of factual questions.
Petitioner contends that the appellate court erred in
limiting its decision to the cited zoning ordinance. It avers
that a contractual right is not automatically discarded
once a claim is made that it conflicts with police power.
Petitioner submits that the restrictive clauses in the
questioned contract is not in conflict with the zoning
ordinance. For one, according to petitioner, the MMC
Ordinance No. 81-01 did not prohibit the construction of
residential buildings. Petitioner argues that even with
the zoning ordinance, the seller and buyer of the re-
classified lot can voluntarily agree to an exclusive
residential use thereof. Hence, petitioner concludes that
the Court of Appeals erred in holding that the condition
imposing exclusive residential use was effectively
nullified by the zoning ordinance.
In its turn, private respondent argues that the appellate
court correctly ruled that the trial court had acted with
grave abuse of discretion in refusing to subject the
contract to the MMC Ordinance No. 81-01. He avers that
the appellate court properly held the police power
superior to the non-impairment of contract clause in the
Constitution. He concludes that the appellate court did
not err in dissolving the writ of preliminary injunction
issued by the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary
injunction, the trial court observed that the contract of
sale was entered into in August 1976, while the zoning
ordinance was enacted only in March 1981. The trial
court reasoned that since private respondent had failed
to show that MMC Ordinance No. 81-01 had retroactive
effect, said ordinance should be given prospective
application only,6 citing Co vs. Intermediate Appellate
Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as
having only prospective operation. Lex prospicit, non
respicit.Equally settled, only laws existing at the time of
the execution of a contract are applicable thereto and
not later statutes, unless the latter are specifically
intended to have retroactive effect.7 A later law which
enlarges, abridges, or in any manner changes the intent
of the parties to the contract necessarily impairs the
contract itself8 and cannot be given retroactive effect
without violating the constitutional prohibition against
impairment of contracts.9
But, the foregoing principles do admit of certain
exceptions. One involves police power. A law enacted in
the exercise of police power to regulate or govern certain
activities or transactions could be given retroactive effect
and may reasonably impair vested rights or contracts.
Police power legislation is applicable not only to future
contracts, but equally to those already in
existence.10 Nonimpairment of contracts or vested rights
clauses will have to yield to the superior and legitimate
exercise by the State of police power to promote the
health, morals, peace, education, good order, safety, and
general welfare of the people.11 Moreover, statutes in
exercise of valid police power must be read into every
contract.12 Noteworthy, in Sangalang vs. Intermediate
Appellate Court,13 we already upheld MMC Ordinance
No. 81-01 as a legitimate police power measure.
The trial court’s reliance on the Co vs. IAC,14 is misplaced.
In Co, the disputed area was agricultural and Ordinance
No. 81-01 did not specifically provide that "it shall have
retroactive effect so as to discontinue all rights
previously acquired over lands located within the zone
which are neither residential nor light industrial in
nature,"15 and stated with respect to agricultural areas
covered that "the zoning ordinance should be given
prospective operation only."16The area in this case
9
involves not agricultural but urban residential land.
Ordinance No. 81-01 retroactively affected the operation
of the zoning ordinance in Greenhills by reclassifying
certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank
& Trust Co., 94 SCRA 533 (1979), the contractual
stipulations annotated on the Torrens Title, on which
Ortigas relies, must yield to the ordinance. When that
stretch of Ortigas Avenue from Roosevelt Street to
Madison Street was reclassified as a commercial zone by
the Metropolitan Manila Commission in March 1981, the
restrictions in the contract of sale between Ortigas and
Hermoso, limiting all construction on the disputed lot to
single-family residential buildings, were deemed
extinguished by the retroactive operation of the zoning
ordinance and could no longer be enforced. While our
legal system upholds the sanctity of contract so that a
contract is deemed law between the contracting
parties,17 nonetheless, stipulations in a contract cannot
contravene "law, morals, good customs, public order, or
public policy."18 Otherwise such stipulations would be
deemed null and void. Respondent court correctly found
that the trial court committed in this case a grave abuse
of discretion amounting to want of or excess of
jurisdiction in refusing to treat Ordinance No. 81-01 as
applicable to Civil Case No. 64931. In resolving matters in
litigation, judges are not only duty-bound to ascertain
the facts and the applicable laws,19 they are also bound
by their oath of office to apply the applicable law.20
As a secondary issue, petitioner contends that
respondent Mathay III, as a mere lessee of the lot in
question, is a total stranger to the deed of sale and is thus
barred from questioning the conditions of said deed.
Petitioner points out that the owners of the lot
voluntarily agreed to the restrictions on the use of the lot
and do not question the validity of these restrictions.
Petitioner argues that Mathay III as a lessee is merely an
agent of the owners, and could not override and rise
above the status of his principals. Petitioner submits that
he could not have a higher interest than those of the
owners, the Hermosos, and thus had no locus standi to
file CA-G.R. SP No. 39193 to dissolve the injunctive writ
issued by the RTC of Pasig City.
For his part, private respondent argues that as the lessee
who built the commercial structure, it is he and he alone
who stands to be either benefited or injured by the
results of the judgment in Civil Case No. 64931. He avers
he is the party with real interest in the subject matter of
the action, as it would be his business, not the
Hermosos’, which would suffer had not the respondent
court dissolved the writ of preliminary injunction.
A real party in interest is defined as "the party who
stands to be benefited or injured by the judgment or the
party entitled to the avails of the suit." "Interest" within
the meaning of the rule means material interest, an
interest in issue and to be affected by the decree, as
distinguished from mere interest in the question
involved, or a mere incidental interest.21 By real interest
is meant a present substantial interest, as distinguished
from a mere expectancy or a future, contingent,
subordinate, or consequential interest.22

Tested by the foregoing definition, private respondent in

this case is clearly a real party in interest.1âwphi1 It is not
disputed that he is in possession of the lot pursuant to a
valid lease. He is a possessor in the concept of a "holder
of the thing" under Article 525 of the Civil Code.23 He was
impleaded as a defendant in the amended complaint in
Civil Case No. 64931. Further, what petitioner seeks to
enjoin is the building by respondent of a commercial
structure on the lot. Clearly, it is private respondent’s
acts which are in issue, and his interest in said issue
cannot be a mere incidental interest. In its amended
complaint, petitioner prayed for, among others,
judgment "ordering the demolition of all improvements
illegally built on the lot in question."24 These show that it
is petitioner Mathay III, doing business as "Greenhills
Autohaus, Inc.," and not only the Hermosos, who will be
adversely affected by the court’s decree.

Petitioner also cites the rule that a stranger to a contract

has no rights or obligations under it,25 and thus has no
standing to challenge its validity.26 But in seeking to
enforce the stipulations in the deed of sale, petitioner
impleaded private respondent as a defendant. Thus
petitioner must recognize that where a plaintiff has
impleaded a party as a defendant, he cannot
subsequently question the latter’s standing in court.27

WHEREFORE, the instant petition is DENIED. The

challenged decision of the Court of Appeals dated March
25, 1996, as well as the assailed resolution of August 13,
1996, in CA-G.R. SP No. 39193 is AFFIRMED. Costs against
petitioner.

Case Nature : PETITION for review on certiorari of a

decision of the Court of Appeals.

Syllabi Class : Contracts|Courts|Actions|Contract

Clause|Police
Power|Statutes|Judges|Judgments|Parties|Words and
Phrases|Lease|Estoppel

G.R. No. 135962 March 27, 2000

METROPOLITAN MANILA DEVELOPMENT

AUTHORITY, petitioner,

10
vs.
BEL-AIR VILLAGE ASSOCIATION, INC., respondent.
PUNO, J.:
Not infrequently, the government is tempted to take
legal shortcuts solve urgent problems of the people. But
even when government is armed with the best of
intention, we cannot allow it to run roughshod over the
rule of law. Again, we let the hammer fall and fall hard on
the illegal attempt of the MMDA to open for public use a
private road in a private subdivision. While we hold that
the general welfare should be promoted, we stress that
it should not be achieved at the expense of the rule of
law.
Petitioner MMDA is a government agency tasked with
the delivery of basic services in Metro Manila.
Respondent Bel-Air Village Association, Inc. (BAVA) is a
non-stock, non-profit corporation whose members are
homeowners in Bel-Air Village, a private subdivision in
Makati City. Respondent BAVA is the registered owner of
Neptune Street, a road inside Bel-Air Village.
On December 30, 1995, respondent received from
petitioner, through its Chairman, a notice dated
December 22, 1995 requesting respondent to open
Neptune Street to public vehicular traffic starting January
2, 1996. The notice reads:
SUBJECT: NOTICE of the Opening of Neptune Street to
Traffic.
Dear President Lindo,
Please be informed that pursuant to the mandate of the
MMDA law or Republic Act No. 7924 which requires the
Authority to rationalize the use of roads and/or
thoroughfares for the safe and convenient movement of
persons, Neptune Street shall be opened to vehicular
traffic effective January 2, 1996.
In view whereof, the undersigned requests you to
voluntarily open the points of entry and exit on said
street.
Thank you for your cooperation and whatever assistance
that may be extended by your association to the MMDA
personnel who will be directing traffic in the area.
Finally, we are furnishing you with a copy of the
handwritten instruction of the President on the matter.
Very truly yours,
PROSPERO I. ORETA
Chairman 1
On the same day, respondent was apprised that the
perimeter wall separating the subdivision from the
adjacent Kalayaan Avenue would be demolished.
On January 2, 1996, respondent instituted against
petitioner before the Regional Trial Court, Branch 136,
11
Makati City, Civil Case No. 96-001 for injunction.
Respondent prayed for the issuance of a temporary
restraining order and preliminary injunction enjoining
the opening of Neptune Street and prohibiting the
demolition of the perimeter wall. The trial court issued a
temporary restraining order the following day.
On January 23, 1996, after due hearing, the trial court
denied issuance of a preliminary
2
injunction. Respondent questioned the denial before
the Court of Appeals in CA-G.R. SP No. 39549. The
appellate court conducted an ocular inspection of
Neptune Street 3 and on February 13, 1996, it issued a
writ of preliminary injunction enjoining the
implementation of the MMDA's proposed action. 4
On January 28, 1997, the appellate court rendered a
Decision on the merits of the case finding that the MMDA
has no authority to order the opening of Neptune Street,
a private subdivision road and cause the demolition of its
perimeter walls. It held that the authority is lodged in the
City Council of Makati by ordinance. The decision
disposed of as follows:
WHEREFORE, the Petition is GRANTED; the challenged
Order dated January 23, 1995, in Civil Case No. 96-001, is
SET ASIDE and the Writ of Preliminary Injunction issued
on February 13, 1996 is hereby made permanent.
For want of sustainable substantiation, the Motion to
Cite Roberto L. del Rosario in contempt is denied. 5
No pronouncement as to costs.
SO ORDERED. 6
The Motion for Reconsideration of the decision was
denied on September 28, 1998. Hence, this recourse.
Petitioner MMDA raises the following questions:
I
HAS THE METROPOLITAN MANILA DEVELOPMENT
AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE
STREET TO PUBLIC TRAFFIC PURSUANT TO ITS
REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION
PRECEDENT BEFORE THE MMDA MAY ORDER THE
OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC.
ESTOPPED FROM DENYING OR ASSAILING THE
AUTHORITY OF THE MMDA TO OPEN THE SUBJECT
STREET?
IV
WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE
THE SEVERAL MEETINGS HELD BETWEEN MMDA AND
THE AFFECTED EEL-AIR RESIDENTS AND BAVA OFFICERS?
V a corporate entity representing the inhabitants of its
HAS RESPONDENT COME TO COURT WITH UNCLEAN
HANDS?7
Neptune Street is owned by respondent BAVA. It is a
private road inside Bel-Air Village, a private residential
subdivision in the heart of the financial and commercial
district of Makati City. It runs parallel to Kalayaan
Avenue, a national road open to the general public.
Dividing the two (2) streets is a concrete perimeter wall
approximately fifteen (15) feet high. The western end of
Neptune Street intersects Nicanor Garcia, formerly
Reposo Street, a subdivision road open to public
vehicular traffic, while its eastern end intersects Makati
Avenue, a national road. Both ends of Neptune Street are
guarded by iron gates.
Petitioner MMDA claims that it has the authority to open
Neptune Street to public traffic because it is an agent of
the state endowed with police power in the delivery of
basic services in Metro Manila. One of these basic
services is traffic management which involves the
regulation of the use of thoroughfares to insure the
safety, convenience and welfare of the general public. It
is alleged that the police power of MMDA was affirmed
by this Court in the consolidated cases of Sangalang
v. Intermediate Appellate Court. 8 From the premise that
it has police power, it is now urged that there is no need
for the City of Makati to enact an ordinance opening
Neptune street to the public. 9
Police power is an inherent attribute of sovereignty. It
has been defined as the power vested by the
Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall
judge to be for the good and welfare of the
commonwealth, and for the subjects of the same. 10 The
power is plenary and its scope is vast and pervasive,
reaching and justifying measures for public health, public
safety, public morals, and the general welfare. 11
It bears stressing that police power is lodged primarily in
the National Legislature. 12 It cannot be exercised by any
group or body of individuals not possessing legislative
power. 13 The National Legislature, however, may
delegate this power to the President and administrative
boards as well as the lawmaking bodies of municipal
corporations or local government units. 14 Once
delegated, the agents can exercise only such legislative
powers as are conferred on them by the national
lawmaking body. 15
A local government is a "political subdivision of a nation
or state which is constituted by law and has substantial
control of local affairs." 16 The Local Government Code of
1991 defines a local government unit as a "body politic
and corporate." 17 — one endowed with powers as a
political subdivision of the National Government and as
12
territory. 18 Local government units are the provinces,
cities, municipalities and barangays. 19 They are also the
territorial and political subdivisions of the state. 20
Our Congress delegated police power to the local
government units in the Local Government Code of 1991.
This delegation is found in Section 16 of the same Code,
known as the general welfare clause, viz:
Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants. 21
Local government units exercise police power through
their respective legislative bodies. The legislative body of
the provincial government is the sangguniang
panlalawigan, that of the city government is
the sangguniang panlungsod, that of the municipal
government is the sangguniang bayan, and that of the
barangay is the sangguniang barangay. The Local
Government Code of 1991 empowers the sangguniang
panlalawigan, sangguniang panlungsod and
sangguniang bayan to "enact ordinances, approve
resolutions and appropriate funds for the general
welfare of the [province, city or municipality, as the case
may be], and its inhabitants pursuant to Section 16 of the
Code and in the proper exercise of the corporate powers
of the [province, city municipality] provided under the
Code . . . " 22 The same Code gives the sangguniang
barangay the power to "enact ordinances as may be
necessary to discharge the responsibilities conferred
upon it by law or ordinance and to promote the general
welfare of the inhabitants thereon." 23
Metropolitan or Metro Manila is a body composed of
several local government units — i.e., twelve (12) cities
and five (5) municipalities, namely, the cities of Caloocan,
Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon,
Muntinlupa, Las Pinas, Marikina, Paranaque and
Valenzuela, and the municipalities of Malabon, Navotas,
Pateros, San Juan and Taguig. With the passage of
Republic Act (R. A.) No. 7924 24 in 1995, Metropolitan
Manila was declared as a "special development and
administrative region" and the Administration of "metro-
wide" basic services affecting the region placed under "a
development authority" referred to as the MMDA. 25
"Metro-wide services" 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 local government units comprising Metro
Manila." 26 There are seven (7) basic metro-wide services
and the scope of these services cover the following: (1)
development planning; (2) transport and traffic
management; (3) solid waste disposal and management;
(4) flood control and sewerage management; (5) urban
renewal, zoning and land use planning, and shelter
services; (6) health and sanitation, urban protection and
pollution control; and (7) public safety. The basic service
of transport and traffic management includes the
following:
(b) Transport and traffic management which include the
formulation, coordination, and monitoring of
policies, standards, programs and projects to rationalize
the existing transport operations, infrastructure
requirements,the use of thoroughfares, and promotion of
safe and convenient movement of persons and
goods; provision for the mass transport system and the
institution of a system to regulate road
users; administration and implementation of all traffic
enforcement operations, traffic engineering services and
traffic education programs, including the institution of a
single ticketing system in Metropolitan Manila;" 27
In the delivery of the seven (7) basic services, the MMDA
has the following powers and functions:
Sec. 5. Functions and powers of the Metro Manila
Development Authority. — The MMDA shall:
(a) Formulate, coordinate and regulate the
implementation of medium and long-term plans and
programs for the delivery of metro-wide services, land
use and physical development within Metropolitan
Manila, consistent with national development objectives
and priorities;
(b) Prepare, coordinate and regulate the implementation
of medium-term investment programs for metro-wide
services which shall indicate sources and uses of funds
for priority programs and projects, and which shall
include the packaging of projects and presentation to
funding institutions;
(c) Undertake and manage on its own metro-wide
programs and projects for the delivery of specific services
under its jurisdiction, subject to the approval of the
Council. For this purpose, MMDA can create appropriate
project management offices;
(d) Coordinate and monitor the implementation of such
plans, programs and projects in Metro Manila; identify
bottlenecks and adopt solutions to problems of
implementation;
13
(e) The MMDA shall set the policies concerning traffic in
Metro Manila, and shall coordinate and regulate the
implementation of all programs and projects concerning
traffic management, specifically pertaining to
enforcement, engineering and education. Upon request,
it shall be extended assistance and
cooperation, including but not limited to, assignment of
personnel, by all other government agencies and offices
concerned;
(f) Install and administer a single ticketing
system, fix, impose and collect fines and penalties for all
kinds of violations of traffic rules and
regulations, whether moving or non-moving in
nature, and confiscate and suspend or revoke drivers'
licenses in the enforcement of such traffic laws and
regulations, the provisions of RA 4136 and PD 1605 to the
contrary notwithstanding. For this purpose, the Authority
shall impose all traffic laws and regulations in Metro
Manila, through its traffic operation center, and may
deputize members of the PNP, traffic enforcers of local
government units, duly licensed security guards, or
members of non-governmental organizations to whom
may be delegated certain authority, subject to such
conditions and requirements as the Authority may
impose; and
(g) Perform other related functions required to achieve
the objectives of the MMDA, including the undertaking
of delivery of basic services to the local government
units, when deemed necessary subject to prior
coordination with and consent of the local government
unit concerned.
The implementation of the MMDA's plans, programs and
projects is undertaken by the local government units,
national government agencies, accredited people's
organizations, non-governmental organizations, and the
private sector as well as by the MMDA itself. For this
purpose, the MMDA has the power to enter into
contracts, memoranda of agreement and other
arrangements with these bodies for the delivery of the
required services Metro Manila. 28
The governing board of the MMDA is the Metro Manila
Council. The Council is composed of the mayors of the
component 12 cities and 5 municipalities, the president
of the Metro Manila Vice-Mayors' League and the
president of the Metro Manila Councilors' League. 29 The
Council is headed by Chairman who is appointed by the
President and vested with the rank of cabinet member.
As the policy-making body of the MMDA, the Metro
Manila Council approves metro-wide plans, programs
and projects, and issues the necessary rules and
regulations for the implementation of said plans; it
approves the annual budget of the MMDA and
promulgate the rules and regulations for the delivery of
basic services, collection of service and regulatory fees,
fines and penalties. These functions are particularly
enumerated as follows:
Sec. 6. Functions of the Metro Manila Council. — organizations and the private sector for the efficient and
expeditious delivery of basic services in the vast
(a) The Council shall be the policy-making body of the
metropolitan area. All its functions are administrative in
MMDA;
nature and these are actually summed up in the charter
(b) It shall approve metro-wide plans, programs and itself, viz:
projects and issue rules and regulations deemed
Sec. 2. Creation of the Metropolitan Manila Development
necessary by the MMDA to carry out the purposes of this
Authority. — . . . .
Act;
The MMDA shall perform planning, monitoring and
(c) It may increase the rate of allowances and per
coordinative functions, and in the process
diems of the members of the Council to be effective
exercise regulatory and supervisory authority over the
during the term of the succeeding Council. It shall fix the
delivery of metro-wide services within Metro Manila,
compensation of the officers and personnel of the
without diminution of the autonomy of the local
MMDA, and approve the annual budget thereof for
government units concerning purely local matters. 31
submission to the Department of Budget and
Management (DBM); Petitioner cannot seek refuge in the cases of Sangalang
v. Intermediate Appellate Court 32 where we upheld a
(d) It shall promulgate rules and regulations and set
zoning ordinance issued by the Metro Manila
policies and standards for metro-wide application
Commission (MMC), the predecessor of the MMDA, as
governing the delivery of basic services, prescribe and
an exercise of police power. The first Sangalang decision
collect service and regulatory fees, and impose and
was on the merits of the petition, 33 while the second
collect fines and penalties.
decision denied reconsideration of the first case and in
Clearly, the scope of the MMDA's function is limited to addition discussed the case of Yabut v. Court of
the delivery of the seven (7) basic services. One of these Appeals. 34
is transport and traffic management which includes the
Sangalang v. IAC involved five (5) consolidated petitions
formulation and monitoring of policies, standards and
filed by respondent BAVA and three residents of Bel-Air
projects to rationalize the existing transport operations,
Village against other residents of the Village and the
infrastructure requirements, the use of thoroughfares
Ayala Corporation, formerly the Makati Development
and promotion of the safe movement of persons and
Corporation, as the developer of the subdivision. The
goods. It also covers the mass transport system and the
petitioners sought to enforce certain restrictive
institution of a system of road regulation, the
easements in the deeds of sale over their respective lots
administration of all traffic enforcement operations,
in the subdivision. These were the prohibition on the
traffic engineering services and traffic education
setting up of commercial and advertising signs on the
programs, including the institution of a single ticketing
lots, and the condition that the lots be used only for
system in Metro Manila for traffic violations. Under the
residential purposes. Petitioners alleged that
service, the MMDA is expressly authorized "to set the
respondents, who were residents along Jupiter Street of
policies concerning traffic" and "coordinate and regulate
the subdivision, converted their residences into
the implementation of all traffic management
commercial establishments in violation of the "deed
programs." In addition, the MMDA may "install and
restrictions," and that respondent Ayala Corporation
administer a single ticketing system," fix, impose and
ushered in the full commercialization" of Jupiter Street
collect fines and penalties for all traffic violations.
by tearing down the perimeter wall that separated the
It will be noted that the powers of the MMDA are limited commercial from the residential section of the village. 35
to the following acts: formulation, coordination,
The petitions were dismissed based on Ordinance No. 81
regulation, implementation, preparation, management,
of the Municipal Council of Makati and Ordinance No. 81-
monitoring, setting of policies, installation of a system
01 of the Metro Manila Commission (MMC). Municipal
and administration. There is no syllable in R.A. No. 7924
Ordinance No. 81 classified Bel-Air Village as a Class A
that grants the MMDA police power, let alone legislative
Residential Zone, with its boundary in the south
power. Even the Metro Manila Council has not been
extending to the center line of Jupiter Street. The
delegated any legislative power. Unlike the legislative
Municipal Ordinance was adopted by the MMC under
bodies of the local government units, there is no
the Comprehensive Zoning Ordinance for the National
provision in R.A. No. 7924 that empowers the MMDA or
Capital Region and promulgated as MMC Ordinance No.
its Council to "enact ordinances, approve resolutions
81-01. Bel-Air Village was indicated therein as bounded
appropriate funds for the general welfare" of the
by Jupiter Street and the block adjacent thereto was
inhabitants of Metro Manila. The MMDA is, as termed in
classified as a High Intensity Commercial Zone. 36
the charter itself, "development authority." 30 It is an
agency created for the purpose of laying down policies We ruled that since both Ordinances recognized Jupiter
and coordinating with the various national government Street as the boundary between Bel-Air Village and the
agencies, people's organizations, non-governmental commercial district, Jupiter Street was not for the

14
exclusive benefit of Bel-Air residents. We also held that
the perimeter wall on said street was constructed not to
separate the residential from the commercial blocks but
simply for security reasons, hence, in tearing down said
wall, Ayala Corporation did not violate the "deed
restrictions" in the deeds of sale.
We upheld the ordinances, specifically MMC Ordinance
No. 81-01, as a legitimate exercise of police power. 37 The
power of the MMC and the Makati Municipal Council to
enact zoning ordinances for the general welfare
prevailed over the "deed restrictions".
In the second Sangalang/Yabut decision, we held that
the opening of Jupiter Street was warranted by the
demands of the common good in terms of "traffic
decongestion and public convenience." Jupiter was
opened by the Municipal Mayor to alleviate traffic
congestion along the public streets adjacent to the
Village. 38 The same reason was given for the opening to
public vehicular traffic of Orbit Street, a road inside the
same village. The destruction of the gate in Orbit Street
was also made under the police power of the municipal
government. The gate, like the perimeter wall along
Jupiter, was a public nuisance because it hindered and
impaired the use of property, hence, its summary
abatement by the mayor was proper and legal. 39
Contrary to petitioner's claim, the two Sangalang cases
do not apply to the case at bar. Firstly, both involved
zoning ordinances passed by the municipal council of
Makati and the MMC. In the instant case, the basis for
the proposed opening of Neptune Street is contained in
the notice of December 22, 1995 sent by petitioner to
respondent BAVA, through its president. The notice does
not cite any ordinance or law, either by the Sangguniang
Panlungsod of Makati City or by the MMDA, as the legal
basis for the proposed opening of Neptune Street.
Petitioner MMDA simply relied on its authority under its
charter "to rationalize the use of roads and/or
thoroughfares for the safe and convenient movement of
persons." Rationalizing the use of roads and
thoroughfares is one of the acts that fall within the scope
of transport and traffic management. By no stretch of the
imagination, however, can this be interpreted as an
express or implied grant of ordinance-making power,
much less police power.
Secondly, the MMDA is not the same entity as the MMC
in Sangalang. Although the MMC is the forerunner of the
present MMDA, an examination of Presidential Decree
(P. D.) No. 824, the charter of the MMC, shows that the
latter possessed greater powers which were not
bestowed on the present MMDA.
Metropolitan Manila was first created in 1975 by
Presidential Decree (P.D.) No. 824. It comprised the
Greater Manila Area composed of the contiguous four (4)
cities of Manila, Quezon, Pasay and Caloocan, and the
thirteen (13) municipalities of Makati, Mandaluyong, San
Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros,
15
Paranaque, Marikina, Muntinlupa and Taguig in the
province of Rizal, and Valenzuela in the province of
Bulacan. 40 Metropolitan Manila was created as a
response to the finding that the rapid growth of
population and the increase of social and economic
requirements in these areas demand a call for
simultaneous and unified development; that the public
services rendered by the respective local governments
could be administered more efficiently and economically
if integrated under a system of central planning; and this
coordination, "especially in the maintenance of peace
and order and the eradication of social and economic ills
that fanned the flames of rebellion and discontent [were]
part of reform measures under Martial Law essential to
the safety and security of the State." 41
Metropolitan Manila was established as a "public
corporation" with the following powers:
Sec. 1. Creation of the Metropolitan Manila. — There is
hereby created a public corporation, to be known as the
Metropolitan Manila, vested with powers and attributes
of a corporation including the power to make
contracts, sue and be
sued, acquire, purchase, expropriate, hold, transfer and
dispose of property and such other powers as are
necessary to carry out its purposes. The Corporation shall
be administered by a Commission created under this
Decree. 42
The administration of Metropolitan Manila was placed
under the Metro Manila Commission (MMC) vested with
the following powers:
Sec. 4. Powers and Functions of the Commission. — The
Commission shall have the following powers and
functions:
1. To act as a central government to establish and
administer programs and provide services common to
the area;
2. To levy and collect taxes and special assessments,
borrow and expend money and issue bonds, revenue
certificates, and other obligations of indebtedness.
Existing tax measures should, however, continue to be
operative until otherwise modified or repealed by the
Commission;
3. To charge and collect fees for the use of public service
facilities;
4. To appropriate money for the operation of the
metropolitan government and review appropriations for
the city and municipal units within its jurisdiction with
authority to disapprove the same if found to be not in
accordance with the established policies of the
Commission, without prejudice to any contractual
obligation of the local government units involved existing
at the time of approval of this Decree;
5. To review, amend, revise or repeal all ordinances,
resolutions and acts of cities and municipalities within
Metropolitan Manila;
6. To enact or approve ordinances, resolutions and to fix
penalties for any violation thereof which shall not exceed
a fine of P10,000.00 or imprisonment of six years or both
such fine and imprisonment for a single offense;
7. To perform general administrative, executive and
policy-making functions;
8. To establish a fire control operation center, which shall
direct the fire services of the city and municipal
governments in the metropolitan area;
9. To establish a garbage disposal operation center,
which shall direct garbage collection and disposal in the
metropolitan area;
10. To establish and operate a transport and traffic
center, which shall direct traffic activities;
11. To coordinate and monitor governmental and private
activities pertaining to essential services such as
transportation, flood control and drainage, water supply
and sewerage, social, health and environmental services,
housing, park development, and others;
12. To insure and monitor the undertaking of a
comprehensive social, economic and physical planning
and development of the area;
13. To study the feasibility of increasing barangay
participation in the affairs of their respective local
governments and to propose to the President of the
Philippines definite programs and policies for
implementation;
14. To submit within thirty (30) days after the close of
each fiscal year an annual report to the President of the
Philippines and to submit a periodic report whenever
deemed necessary; and
15. To perform such other tasks as may be assigned or
directed by the President of the Philippines.
The MMC was the "central government" of Metro
Manila for the purpose of establishing and administering
programs providing services common to the area. As a
"central government" it had the power to levy and collect
taxes and special assessments, the power to charge and
collect fees; the power to appropriate money for its
operation, and at the same time, review appropriations
for the city and municipal units within its jurisdiction. It
was bestowed the power to enact or approve
ordinances, resolutions and fix penalties for violation of
such ordinances and resolutions. It also had the power to
review, amend, revise or repeal all ordinances,
resolutions and acts of any of the four (4) cities and
thirteen (13) municipalities comprising Metro Manila.
P.D. No. 824 further provided:
16
Sec. 9. Until otherwise provided, the governments of the
four cities and thirteen municipalities in the
Metropolitan Manila shall continue to exist in their
present form except as may be inconsistent with this
Decree. The members of the existing city and municipal
councils in Metropolitan Manila shall, upon promulgation
of this Decree, and until December 31, 1975, become
members of the Sangguniang Bayan which is hereby
created for every city and municipality of Metropolitan
Manila.
In addition, the Sangguniang Bayan shall be composed of
as many barangay captains as may be determined and
chosen by the Commission, and such number of
representatives from other sectors of the society as may
be appointed by the President upon recommendation of
the Commission.
xxx xxx xxx
The Sangguniang Bayan may recommend to the
Commission ordinances, resolutions or such measures as
it may adopt; Provided, that no such ordinance,
resolution or measure shall become effective, until after
its approval by the Commission; and Provided further,
that the power to impose taxes and other levies, the
power to appropriate money and the power to pass
ordinances or resolutions with penal sanctions shall be
vested exclusively in the Commission.
The creation of the MMC also carried with it the creation
of the Sangguniang Bayan. This was composed of the
members of the component city and municipal councils,
barangay captains chosen by the MMC and sectoral
representatives appointed by the President.
The Sangguniang Bayan had the power to recommend
to the MMC the adoption of ordinances, resolutions or
measures. It was the MMC itself, however, that
possessed legislative powers. All ordinances, resolutions
and measures recommended by the Sangguniang
Bayan were subject to the MMC's approval. Moreover,
the power to impose taxes and other levies, the power
to appropriate money, and the power to pass ordinances
or resolutions with penal sanctions were vested
exclusively in the MMC.
Thus, Metropolitan Manila had a "central government,"
i.e., the MMC which fully possessed legislative police
powers. Whatever legislative powers the component
cities and municipalities had were all subject to review
and approval by the MMC.
After President Corazon Aquino assumed power, there
was a clamor to restore the autonomy of the local
government units in Metro Manila. Hence, Sections 1
and 2 of Article X of the 1987 Constitution provided:
Sec. 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities and barangays. There shall be
autonomous regions in Muslim Mindanao and the
Cordilleras as herein provided.
Sec. 2. The territorial and political subdivisions shall not have legislative power. Its power was merely to
enjoy local autonomy. provide the local government units technical assistance
in the preparation of local development plans. Any
The Constitution, however, recognized the necessity of
semblance of legislative power it had was confined to a
creating metropolitan regions not only in the existing
"review [of] legislation proposed by the local legislative
National Capital Region but also in potential equivalents
assemblies to ensure consistency among local
in the Visayas and Mindanao. 43 Section 11 of the same
governments and with the comprehensive development
Article X thus provided:
plan of Metro Manila," and to "advise the local
Sec. 11. The Congress may, by law, create special governments accordingly." 49
metropolitan political subdivisions, subject to a plebiscite
When R.A. No. 7924 took effect, Metropolitan Manila
as set forth in Section 10 hereof. The component cities
became a "special development and administrative
and municipalities shall retain their basic autonomy and
region" and the MMDA a "special development
shall be entitled to their own local executives and
authority" whose functions were "without prejudice to
legislative assemblies. The jurisdiction of the
the autonomy of the affected local government units."
metropolitan authority that will thereby be created shall
The character of the MMDA was clearly defined in the
be limited to basic services requiring coordination.
legislative debates enacting its charter.
Constitution itself expressly provides that Congress may,
R.A. No. 7924 originated as House Bill No. 14170/11116
by law, create "special metropolitan political
and was introduced by several legislators led by Dante
subdivisions" which shall be subject to approval by a
Tinga, Roilo Golez and Feliciano Belmonte. It was
majority of the votes cast in a plebiscite in the political
presented to the House of Representatives by the
units directly affected; the jurisdiction of this subdivision
Committee on Local Governments chaired by
shall be limited to basic services requiring coordination;
Congressman Ciriaco R. Alfelor. The bill was a product of
and the cities and municipalities comprising this
Committee consultations with the local government
subdivision shall retain their basic services requiring
units in the National Capital Region (NCR), with former
coordination; and the cities and municipalities
Chairmen of the MMC and MMA, 50 and career officials
comprising this subdivision shall retain their basic
of said agencies. When the bill was first taken up by the
autonomy and their own local executive and legislative
Committee on Local Governments, the following debate
assemblies. 44 Pending enactment of this law, the
took place:
Transitory Provisions of the Constitution gave the
President of the Philippines the power to constitute the THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me
Metropolitan Authority, viz: explain. This has been debated a long time ago, you
know. It's a special . . . we can create a special
Sec. 8. Until otherwise provided by Congress, the
metropolitan political subdivision.
President may constitute the Metropolitan Authority to
be composed of the heads of all local government units Actually, there are only six (6) political subdivisions
comprising the Metropolitan Manila area. 45 provided for in the Constitution: barangay, municipality,
city, province, and we have the Autonomous Region of
In 1990, President Aquino issued Executive Order (E. O.)
Mindanao and we have the Cordillera. So we have 6.
No. 392 and constituted the Metropolitan Manila
Now. . . . .
Authority (MMA). The powers and functions of the MMC
were devolved to the MMA. 46 It ought to be stressed, HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the
however, that not all powers and functions of the MMC case of the Autonomous Region, that is also specifically
were passed to the MMA. The MMA's power was limited mandated by the Constitution.
to the "delivery of basic urban services requiring
THE CHAIRMAN: That's correct. But it is considered to be
coordination in Metropolitan Manila." 47 The MMA's
a political subdivision. What is the meaning of a political
governing body, the Metropolitan Manila Council,
subdivision? Meaning to say, that it has its own
although composed of the mayors of the component
government, it has its own political personality, it has the
cities and municipalities, was merely given power of: (1)
power to tax, and all governmental powers: police power
formulation of policies on the delivery of basic services
and everything. All right. Authority is different; because
requiring coordination and consolidation; and (2)
it does not have its own government. It is only a council,
promulgation resolutions and other issuances, approval
it is an organization of political subdivision, powers, "no,
of a code of basic services and the exercise of its rule-
which is not imbued with any political power.
making power. 48
If you go over Section 6, where the powers and functions
Under the 1987 Constitution, the local government units
of the Metro Manila Development Authority, it is purely
became primarily responsible for the governance of their
coordinative. And it provides here that the council is
respective political subdivisions. The MMA's jurisdiction
policy-making. All right.
was limited to addressing common problems involving
basic services that transcended local boundaries. It did

17
Under the Constitution is a Metropolitan Authority with
coordinative power. Meaning to say, it coordinates all of
the different basic services which have to be delivered to
the constituency. All right.
There is now a problem. Each local government unit is
given its respective . . . as a political subdivision. Kalookan
has its powers, as provided for and protected and
guaranteed by the Constitution. All right, the exercise.
However, in the exercise of that power, it might be
deleterious and disadvantageous to other local
government units. So, we are forming an authority where
all of these will be members and then set up a policy in
order that the basic services can be effectively
coordinated. All right.
Of course, we cannot deny that the MMDA has to
survive. We have to provide some funds, resources. But
it does not possess any political power. We do not elect
the Governor. We do not have the power to tax. As a
matter of fact, I was trying to intimate to the author that
it must have the power to sue and be sued because it
coordinates. All right. It coordinates practically all these
basic services so that the flow and the distribution of the
basic services will be continuous. Like traffic, we cannot
deny that. It's before our eyes. Sewerage, flood control,
water system, peace and order, we cannot deny these.
It's right on our face. We have to look for a solution. What
would be the right solution? All right, we envision that
there should be a coordinating agency and it is called an
authority. All right, if you do not want to call it an
authority, it's alright. We may call it a council or maybe a
management agency.
xxx xxx x x x 51
Clearly, the MMDA is not a political unit of government.
The power delegated to the MMDA is that given to the
Metro Manila Council to promulgate administrative rules
and regulations in the implementation of the MMDA's
functions. There is no grant of authority to enact
ordinances and regulations for the general welfare of the
inhabitants of the metropolis. This was explicitly stated
in the last Committee deliberations prior to the bill's
presentation to Congress. Thus:
THE CHAIRMAN: Yeah, but we have to go over the
suggested revision. I think this was already approved
before, but it was reconsidered in view of the proposals,
set-up, to make the MMDA stronger. Okay, so if there is
no objection to paragraph "f". . . And then next is
paragraph "b," under Section 6. "It shall approve metro-
wide plans, programs and projects and issue ordinances
or resolutions deemed necessary by the MMDA to carry
out the purposes of this Act." Do you have the powers?
Does the MMDA... because that takes the form of a local
government unit, a political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your
Honor. When we say that it has the policies, it's very clear
that those policies must be followed. Otherwise, what's
18
the use of empowering it to come out with policies. Now,
the policies may be in the form of a resolution or it may
be in the form of a ordinance. The term "ordinance" in
this case really gives it more teeth, your honor.
Otherwise, we are going to see a situation where you
have the power to adopt the policy but you cannot really
make it stick as in the case now, and I think here is
Chairman Bunye. I think he will agree that that is the case
now. You've got the power to set a policy, the body wants
to follow your policy, then we say let's call it an ordinance
and see if they will not follow it.
THE CHAIRMAN: That's very nice. I like that. However,
there is a constitutional impediment.1âwphi1 You are
making this MMDA a political subdivision. The creation
of the MMDA would be subject to a plebiscite. That is
what I'm trying to avoid. I've been trying to avoid this
kind of predicament. Under the Constitution it states: if
it is a political subdivision, once it is created it has to be
subject to a plebiscite. I'm trying to make this as
administrative. That's why we place the Chairman as a
cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what
you are saying there is . . . . .
THE CHAIRMAN: In setting up ordinances, it is a political
exercise, Believe me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into
issuances of rules and regulations. That would be . . . it
shall also be enforced.
HON. BELMONTE: Okay, I will . . . .
HON. LOPEZ: And you can also say that violation of such
rule, you impose a sanction. But you know, ordinance has
a different legal connotation.
HON. BELMONTE: All right, I defer to that opinion, your
Honor.
THE CHAIRMAN: So instead of ordinances, say rules and
regulations.
HON. BELMONTE: Or resolutions. Actually, they are
actually considering resolutions now.
THE CHAIRMAN: Rules and resolutions.
HON. BELMONTE: Rules, regulations and resolutions. 52
The draft of H. B. No. 14170/11116 was presented by the
Committee to the House of Representatives. The
explanatory note to the bill stated that the proposed
MMDA is a "development authority" which is a "national
agency, not a political government unit." 53 The
explanatory note was adopted as the sponsorship speech
of the Committee on Local Governments. No
interpellations or debates were made on the floor and no
amendments introduced. The bill was approved on
second reading on the same day it was presented. 54
When the bill was forwarded to the Senate, several Syllabi Class : Constitutional Law|Political
amendments were made.1âwphi1 These amendments, Subdivision|Police Power
however, did not affect the nature of the MMDA as
originally conceived in the House of Representatives. 55

It is thus beyond doubt that the MMDA is not a local

government unit or a public corporation endowed with
legislative power. It is not even a "special metropolitan
political subdivision" as contemplated in Section 11,
Article X of the Constitution. The creation of a "special
metropolitan political subdivision" requires the approval
by a majority of the votes cast in a plebiscite in the
political units directly affected." 56 R. A. No. 7924 was not
submitted to the inhabitants of Metro Manila in a
plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President
with the rank and privileges of a cabinet member. In fact,
part of his function is to perform such other duties as
may be assigned to him by the President, 57 whereas in
local government units, the President merely exercises
supervisory authority. This emphasizes the
administrative character of the MMDA.

Clearly then, the MMC under P.D. No. 824 is not the same
entity as the MMDA under R.A. No. 7924. Unlike the
MMC, the MMDA has no power to enact ordinances for
the welfare of the community. It is the local government
units, acting through their respective legislative councils,
that possess legislative power and police power. In the
case at bar, the Sangguniang Panlungsod of Makati City
did not pass any ordinance or resolution ordering the
opening of Neptune Street, hence, its proposed opening
by petitioner MMDA is illegal and the respondent Court
of Appeals did not err in so ruling. We desist from ruling
on the other issues as they are unnecessary.

We stress that this decision does not make light of the

MMDA's noble efforts to solve the chaotic traffic
condition in Metro Manila. Everyday, traffic jams and
traffic bottlenecks plague the metropolis. Even our once
sprawling boulevards and avenues are now crammed
with cars while city streets are clogged with motorists
and pedestrians. Traffic has become a social malaise
affecting our people's productivity and the efficient
delivery of goods and services in the country. The MMDA
was created to put some order in the metropolitan
transportation system but unfortunately the powers
granted by its charter are limited. Its good intentions
cannot justify the opening for public use of a private
street in a private subdivision without any legal warrant.
The promotion of the general welfare is not antithetical
to the preservation of the rule of law.1âwphi1.nêt

IN VIEW WHEREOF, the petition is denied. The Decision

and Resolution of the Court of Appeals in CA-G.R. SP No.
39549 are affirmed.

Case Nature : PETITION for review on certiorari of a

decision of the Court of Appeals.

19

G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of
the City of Manila, HON. JOSELITO L. ATIENZA, in his
capacity as Vice-Mayor of the City of Manila and
Presiding Officer of the City Council of Manila,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge,
RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after
and what is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act,
if performed by oneself, is less immoral than if
performed by someone else, who would be well-
intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is
secondary to its fealty to the fundamental law of the
land. It is foremost a guardian of the Constitution but not
the conscience of individuals. And if it need be, the Court
will not hesitate to "make the hammer fall, and heavily"
in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that,
though not lacking in zeal to promote morality,
nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then
Rule 42) of the Revised Rules on Civil Procedure seeking
the reversal of the Decision2 in Civil Case No. 93-66511 of
the Regional Trial Court (RTC) of Manila, Branch 18
(lower court),3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development
Corporation (MTDC) is a corporation engaged in the
20
business of operating hotels, motels, hostels and lodging
houses.5 It built and opened Victoria Court in Malate
which was licensed as a motel although duly accredited
with the Department of Tourism as a hotel.6 On 28 June
1993, MTDC filed a Petition for Declaratory Relief with
Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order7 (RTC Petition) with the
lower court impleading as defendants, herein petitioners
City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L.
Atienza, and the members of the City Council of Manila
(City Council). MTDC prayed that the Ordinance, insofar
as it includes motels and inns as among its prohibited
establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and
approved by petitioner City Mayor on 30 March 1993,
the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS
OF AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER
PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances
to the contrary notwithstanding, no person,
partnership, corporation or entity shall, in the Ermita-
Malate area bounded by Teodoro M. Kalaw Sr. Street in
the North, Taft Avenue in the East, Vito Cruz Street in the
South and Roxas Boulevard in the West, pursuant to P.D.
499 be allowed or authorized to contract and engage in,
any business providing certain forms of amusement,
entertainment, services and facilities where women are
used as tools in entertainment and which tend to
disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the
community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person
acting in behalf of the said officials are prohibited from
issuing permits, temporary or otherwise, or from
granting licenses and accepting payments for the
operation of business enumerated in the preceding
section.
SEC. 3. Owners and/or operator of
establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are
hereby given three (3) months from the date of
approval of this ordinance within which to wind up
business operations or to transfer to any place outside
of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area, such
as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-
defined activities for wholesome family entertainment
that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of
motion pictures but also of cultural shows, stage and
theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium
intensity districts as provided for in the zoning
ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor
repair shop, gasoline service station, light industry with
any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this
ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND
(P5,000.00) PESOS, or both, at the discretion of the
Court, PROVIDED, that in case of juridical person, the
President, the General Manager, or person-in-charge of
operation shall be liable thereof; PROVIDED FURTHER,
that in case of subsequent violation and conviction, the
premises of the erring establishment shall be closed and
padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular
session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993.
(Emphasis supplied)
21
In the RTC Petition, MTDC argued that
the Ordinance erroneously and improperly included in its
enumeration of prohibited establishments, motels and
inns such as MTDC's Victoria Court considering that these
were not establishments for "amusement" or
"entertainment" and they were not "services or facilities
for entertainment," nor did they use women as "tools for
entertainment," and neither did they "disturb the
community," "annoy the inhabitants" or "adversely
affect the social and moral welfare of the community."11
MTDC further advanced that the Ordinance was invalid
and unconstitutional for the following reasons: (1) The
City Council has no power to prohibit the operation of
motels as Section 458 (a) 4 (iv)12 of the Local Government
Code of 1991 (the Code) grants to the City Council only
the power to regulate the establishment, operation and
maintenance of hotels, motels, inns, pension houses,
lodging houses and other similar establishments; (2) The
Ordinance is void as it is violative of Presidential Decree
(P.D.) No. 49913 which specifically declared portions of
the Ermita-Malate area as a commercial zone with
certain restrictions; (3) The Ordinance does not
constitute a proper exercise of police power as the
compulsory closure of the motel business has no
reasonable relation to the legitimate municipal interests
sought to be protected; (4) The Ordinance constitutes
an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its
enactment; (5) The Ordinance violates MTDC's
constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b)
the City Council has no power to find as a fact that a
particular thing is a nuisance per se nor does it have the
power to extrajudicially destroy it; and (6)
The Ordinance constitutes a denial of equal protection
under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not
pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the
Ermita-Malate area but not outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of
Manila and Lim maintained that the City Council had the
power to "prohibit certain forms of entertainment in
order to protect the social and moral welfare of the
community" as provided for in Section 458 (a) 4 (vii) of
the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant
to Section 16 of this Code and in the proper exercise of
the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land,
buildings and structures within the city in order to
promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses,
billiard pools, public dancing schools, public dance halls,
sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other
events or activities for amusement or entertainment,
particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms of
amusement or entertainment in order to protect the
social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted
that the power of regulation spoken of in the above-
quoted provision included the power to control, to
govern and to restrain places of exhibition and
amusement.18
Petitioners likewise asserted that the Ordinance was
enacted by the City Council of Manila to protect the
social and moral welfare of the community in
conjunction with its police power as found in Article III,
Section 18(kk) of Republic Act No. 409,19 otherwise
known as the Revised Charter of the City of Manila
(Revised Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. – The Municipal Board
shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance of
the prosperity, and the promotion of the morality, peace,
good order, comfort, convenience, and general welfare
of the city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers
and duties conferred by this chapter; and to fix penalties
for the violation of ordinances which shall not exceed
two hundred pesos fine or six months' imprisonment, or
both such fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the
presumption of validity; hence, private respondent had
the burden to prove its illegality or unconstitutionality.21
Petitioners also maintained that there was no
inconsistency between P.D. 499 and the Ordinance as
the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to
remain a commercial zone.22 The Ordinance, the
22
petitioners likewise claimed, cannot be assailed as ex
post facto as it was prospective in
operation.23 The Ordinance also did not infringe the
equal protection clause and cannot be denounced as
class legislation as there existed substantial and real
differences between the Ermita-Malate area and other
places in the City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio,
Jr. (Judge Laguio) issued an ex-parte temporary
restraining order against the enforcement of
the Ordinance.25 And on 16 July 1993, again in an intrepid
gesture, he granted the writ of preliminary injunction
prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered
the assailed Decision, enjoining the petitioners from
implementing the Ordinance. The dispositive portion of
said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring
Ordinance No. 778[3], Series of 1993, of the City of
Manila null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court
against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of
Appeal29 on 12 December 1994, manifesting that they
are elevating the case to this Court under then Rule 42
on pure questions of law.30
On 11 January 1995, petitioners filed the
present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in
concluding that the subject ordinance is ultra vires, or
otherwise, unfair, unreasonable and oppressive exercise
of police power; (2) It erred in holding that the
questioned Ordinancecontravenes P.D. 49931 which
allows operators of all kinds of commercial
establishments, except those specified therein; and (3) It
erred in declaring the Ordinance void and
unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in
essence repeat the assertions they made before the
lower court. They contend that the
assailed Ordinance was enacted in the exercise of the
inherent and plenary power of the State and the general
welfare clause exercised by local government units
provided for in Art. 3, Sec. 18 (kk) of the Revised Charter
of Manila and conjunctively, Section 458 (a) 4 (vii) of the
Code.34 They allege that the Ordinance is a valid exercise
of police power; it does not contravene P.D. 499; and
that it enjoys the presumption of validity.35
In its Memorandum36 dated 27 May 1996, private
respondent maintains that the Ordinance is ultra
vires and that it is void for being repugnant to the general
law. It reiterates that the questioned Ordinance is not a
valid exercise of police power; that it is violative of due
process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of
the equal protection clause; and that it confers on
petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules
to guide and control his actions.
This is an opportune time to express the Court's deep
sentiment and tenderness for the Ermita-Malate area
being its home for several decades. A long-time resident,
the Court witnessed the area's many turn of events. It
relished its glory days and endured its days of infamy.
Much as the Court harks back to the resplendent era of
the Old Manila and yearns to restore its lost grandeur, it
believes that the Ordinance is not the fitting means to
that end. The Court is of the opinion, and so holds, that
the lower court did not err in declaring the Ordinance, as
it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional
infirmities that almost every sentence thereof violates a
constitutional provision. The prohibitions and sanctions
therein transgress the cardinal rights of persons
enshrined by the Constitution. The Court is called upon
to shelter these rights from attempts at rendering them
worthless.
The tests of a valid ordinance are well established. A long
line of decisions has held that for an ordinance to be
valid, it must not only be within the corporate powers of
the local government unit to enact and must be passed
according to the procedure prescribed by law, it must
also conform to the following substantive requirements:
(1) must not contravene the Constitution or any statute;
(2) must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with
public policy; and (6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid
when they are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it
must pass muster under the test of constitutionality and
the test of consistency with the prevailing laws. That
ordinances should be constitutional uphold the principle
of the supremacy of the Constitution. The requirement
that the enactment must not violate existing law gives
stress to the precept that local government units are able
to legislate only by virtue of their derivative legislative
power, a delegation of legislative power from the
national legislature. The delegate cannot be superior to
the principal or exercise powers higher than those of the
latter.39
This relationship between the national legislature and
the local government units has not been enfeebled by
the new provisions in the Constitution strengthening the
policy of local autonomy. The national legislature is still
the principal of the local government units, which cannot
defy its will or modify or violate it.40
23
The Ordinance was passed by the City Council in the
exercise of its police power, an enactment of the City
Council acting as agent of Congress. Local government
units, as agencies of the State, are endowed with police
power in order to effectively accomplish and carry out
the declared objects of their creation.41 This delegated
police power is found in Section 16 of the Code, known
as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants.
Local government units exercise police power through
their respective legislative bodies; in this case,
the sangguniang panlungsod or the city council. The
Code empowers the legislative bodies to "enact
ordinances, approve resolutions and appropriate funds
for the general welfare of the province/city/municipality
and its inhabitants pursuant to Section 16 of the Code
and in the proper exercise of the corporate powers of the
province/city/ municipality provided under the
Code.42 The inquiry in this Petition is concerned with the
validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and
far-reaching, is subordinate to the constitutional
limitations thereon; and is subject to the limitation that
its exercise must be reasonable and for the public
good.43 In the case at bar, the enactment of
the Ordinance was an invalid exercise of delegated
power as it is unconstitutional and repugnant to general
laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the
protection of life, liberty, and property, and the
promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of
democracy.44
SEC. 14. The State recognizes the role of women in
nation-building, and shall ensure the fundamental
equality before the law of women and men.45
SEC. 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any
person be denied the equal protection of laws.46
Sec. 9. Private property shall not be taken for public use
without just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied
in the fiat "(N)o person shall be deprived of life, liberty or
property without due process of law. . . ."48
There is no controlling and precise definition of due
process. It furnishes though a standard to which
governmental action should conform in order that
deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of
reason, obedience to the dictates of justice,49and as such
it is a limitation upon the exercise of the police power.50
The purpose of the guaranty is to prevent governmental
encroachment against the life, liberty and property of
individuals; to secure the individual from the arbitrary
exercise of the powers of the government, unrestrained
by the established principles of private rights and
distributive justice; to protect property from confiscation
by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary
mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general
law.51
The guaranty serves as a protection against arbitrary
regulation, and private corporations and partnerships
are "persons" within the scope of the guaranty insofar as
their property is concerned.52
This clause has been interpreted as imposing two
separate limits on government, usually called
"procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to
the procedures that the government must follow before
it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what
kind of notice and what form of hearing the government
must provide when it takes a particular action.53
Substantive due process, as that phrase connotes, asks
whether the government has an adequate reason for
taking away a person's life, liberty, or property. In other
words, substantive due process looks to whether there is
a sufficient justification for the government's
action.54 Case law in the United States (U.S.) tells us that
whether there is such a justification depends very much
on the level of scrutiny used.55 For example, if a law is in
an area where only rational basis review is applied,
substantive due process is met so long as the law is
rationally related to a legitimate government
24
purpose. But if it is an area where strict scrutiny is used,
such as for protecting fundamental rights, then the
government will meet substantive due process only if it
can prove that the law is necessary to achieve a
compelling government purpose.56
The police power granted to local government units must
always be exercised with utmost observance of the rights
of the people to due process and equal protection of the
law. Such power cannot be exercised whimsically,
arbitrarily or despotically57 as its exercise is subject to a
qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the
fundamental law, particularly those forming part of the
Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or
public welfare.58 Due process requires the intrinsic
validity of the law in interfering with the rights of the
person to his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the
rationale for the enactment of the Ordinance, and to free
it from the imputation of constitutional infirmity, not
only must it appear that the interests of the public
generally, as distinguished from those of a particular
class, require an interference with private rights, but the
means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly
oppressive upon individuals.60It must be evident that no
other alternative for the accomplishment of the purpose
less intrusive of private rights can work. A reasonable
relation must exist between the purposes of the police
measure and the means employed for its
accomplishment, for even under the guise of protecting
the public interest, personal rights and those pertaining
to private property will not be permitted to be arbitrarily
invaded.61
Lacking a concurrence of these two requisites, the police
measure shall be struck down as an arbitrary intrusion
into private rights62 a violation of the due process
clause.
The Ordinance was enacted to address and arrest the
social ills purportedly spawned by the establishments in
the Ermita-Malate area which are allegedly operated
under the deceptive veneer of legitimate, licensed and
tax-paying nightclubs, bars, karaoke bars, girlie houses,
cocktail lounges, hotels and motels. Petitioners insist
that even the Court in the case of Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor of
Manila63 had already taken judicial notice of the
"alarming increase in the rate of prostitution, adultery
and fornication in Manila traceable in great part to
existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and
thus become the ideal haven for prostitutes and thrill-
seekers."64
The object of the Ordinance was, accordingly, the
promotion and protection of the social and moral values
of the community. Granting for the sake of argument
that the objectives of the Ordinance are within the scope
of the City Council's police powers, the means employed
for the accomplishment thereof were unreasonable and
unduly oppressive.
It is undoubtedly one of the fundamental duties of the
City of Manila to make all reasonable regulations looking
to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public
morals and the eradication of the community's social ills
can be achieved through means less restrictive of private
rights; it can be attained by reasonable restrictions rather
than by an absolute prohibition. The closing down and
transfer of businesses or their conversion into businesses
"allowed" under the Ordinance have no reasonable
relation to the accomplishment of its purposes.
Otherwise stated, the prohibition of the enumerated
establishments will not per seprotect and promote the
social and moral welfare of the community; it will not in
itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual
disease in Manila.
Conceding for the nonce that the Ermita-Malate area
teems with houses of ill-repute and establishments of
the like which the City Council may lawfully prohibit,65 it
is baseless and insupportable to bring within that
classification sauna parlors, massage parlors, karaoke
bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not
warranted under the accepted definitions of these
terms. The enumerated establishments are lawful
pursuits which are not per se offensive to the moral
welfare of the community.
That these are used as arenas to consummate illicit
sexual affairs and as venues to further the illegal
prostitution is of no moment. We lay stress on the acrid
truth that sexual immorality, being a human frailty, may
take place in the most innocent of places that it may even
take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote
instance that an immoral sexual act transpires in a church
cloister or a court chamber, we would behold the
spectacle of the City of Manila ordering the closure of the
church or court concerned. Every house, building, park,
curb, street or even vehicles for that matter will not be
exempt from the prohibition. Simply because there are
no "pure" places where there are impure men. Indeed,
even the Scripture and the Tradition of Christians
churches continually recall the presence and universality
of sin in man's history.66
25
The problem, it needs to be pointed out, is not the
establishment, which by its nature cannot be said to be
injurious to the health or comfort of the community and
which in itself is amoral, but the deplorable human
activity that may occur within its premises. While a motel
may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be
classified as a house of ill-repute or as a nuisance per
se on a mere likelihood or a naked assumption. If that
were so and if that were allowed, then the Ermita-Malate
area would not only be purged of its supposed social ills,
it would be extinguished of its soul as well as every
human activity, reprehensible or not, in its every nook
and cranny would be laid bare to the estimation of the
authorities.
The Ordinance seeks to legislate morality but fails to
address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster
the illusion that it can make a moral man out of it
because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council
instead should regulate human conduct that occurs
inside the establishments, but not to the detriment of
liberty and privacy which are covenants, premiums and
blessings of democracy.
While petitioners' earnestness at curbing clearly
objectionable social ills is commendable, they
unwittingly punish even the proprietors and operators of
"wholesome," "innocent" establishments. In the instant
case, there is a clear invasion of personal or property
rights, personal in the case of those individuals desirous
of owning, operating and patronizing those motels and
property in terms of the investments made and the
salaries to be paid to those therein employed. If the City
of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their
licenses or permits; it may exercise its authority to
suspend or revoke their licenses for these
violations;67 and it may even impose increased license
fees. In other words, there are other means to
reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors,
massage parlors, karaoke bars, beerhouses, night clubs,
day clubs, super clubs, discotheques, cabarets, dance
halls, motels and inns in the Ermita-Malate area. In
Section 3 thereof, owners and/or operators of the
enumerated establishments are given three (3) months
from the date of approval of the Ordinance within which
"to wind up business operations or to transfer to any
place outside the Ermita-Malate area or convert said
businesses to other kinds of business allowable within
the area." Further, it states in Section 4 that in cases of
subsequent violations of the provisions of the Ordinance,
the "premises of the erring establishment shall be closed
and padlocked permanently."
It is readily apparent that the means employed by
the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the
constitutional guarantees of a person's fundamental
right to liberty and property.
Liberty as guaranteed by the Constitution was defined by
Justice Malcolm to include "the right to exist and the
right to be free from arbitrary restraint or servitude. The
term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the
facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the
common welfare."68 In accordance with this case, the
rights of the citizen to be free to use his faculties in all
lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of
liberty.69
The U.S. Supreme Court in the case of Roth v. Board of
Regents,70 sought to clarify the meaning of "liberty." It
said:
While the Court has not attempted to define with
exactness the liberty. . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely
freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to
worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long
recognized…as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of
"liberty" must be broad indeed.
In another case, it also confirmed that liberty protected
by the due process clause includes personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining
the respect the Constitution demands for the autonomy
of the person in making these choices, the U.S. Supreme
Court explained:
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central
to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the
heart of liberty is the right to define one's own concept
of existence, of meaning, of universe, and of the mystery
of human life. Beliefs about these matters could not
define the attributes of personhood where they formed
under compulsion of the State.71
26
Persons desirous to own, operate and patronize the
enumerated establishments under Section 1 of
the Ordinancemay seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke
this right to autonomy to consummate their bonds in
intimate sexual conduct within the motel's premisesbe
it stressed that their consensual sexual behavior does not
contravene any fundamental state policy as contained in
the Constitution.72 Adults have a right to choose to forge
such relationships with others in the confines of their
own private lives and still retain their dignity as free
persons. The liberty protected by the Constitution allows
persons the right to make this choice.73 Their right to
liberty under the due process clause gives them the full
right to engage in their conduct without intervention of
the government, as long as they do not run afoul of the
law. Liberty should be the rule and restraint the
exception.
Liberty in the constitutional sense not only means
freedom from unlawful government restraint; it must
include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of all
freedomit is the most comprehensive of rights and the
right most valued by civilized men.74
The concept of liberty compels respect for the individual
whose claim to privacy and interference demands
respect. As the case of Morfe v. Mutuc,75 borrowing the
words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction
to unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis
on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are,
broadly speaking, that his experience is private, and the
will built out of that experience personal to himself. If he
surrenders his will to others, he surrenders himself. If his
will is set by the will of others, he ceases to be a master
of himself. I cannot believe that a man no longer a master
of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was
recognized in Morfe, the invasion of which should be
justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of
the citizen.76
There is a great temptation to have an extended
discussion on these civil liberties but the Court chooses
to exercise restraint and restrict itself to the issues
presented when it should. The previous
pronouncements of the Court are not to be interpreted
as a license for adults to engage in criminal conduct. The
reprehensibility of such conduct is not diminished. The
Court only reaffirms and guarantees their right to make
this choice. Should they be prosecuted for their illegal economic loss caused by public action must be
conduct, they should suffer the consequences of the compensated by the government and thus borne by the
choice they have made. That, ultimately, is their choice. public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public
Modality employed is
action.83
unlawful taking
What is crucial in judicial consideration of regulatory
In addition, the Ordinance is unreasonable and
takings is that government regulation is a taking if it
oppressive as it substantially divests the respondent of
leaves no reasonable economically viable use of property
the beneficial use of its property.77 The Ordinance in
in a manner that interferes with reasonable expectations
Section 1 thereof forbids the running of the enumerated
for use.84 A regulation that permanently denies all
businesses in the Ermita-Malate area and in Section 3
economically beneficial or productive use of land is, from
instructs its owners/operators to wind up business
the owner's point of view, equivalent to a "taking" unless
operations or to transfer outside the area or convert said
principles of nuisance or property law that existed when
businesses into allowed businesses. An ordinance which
the owner acquired the land make the use
permanently restricts the use of property that it can not
prohibitable.85 When the owner of real property has
be used for any reasonable purpose goes beyond
been called upon to sacrifice all economically beneficial
regulation and must be recognized as a taking of the
uses in the name of the common good, that is, to leave
property without just compensation.78 It is intrusive and
his property economically idle, he has suffered a taking.86
violative of the private property rights of individuals.
A regulation which denies all economically beneficial or
The Constitution expressly provides in Article III, Section
productive use of land will require compensation under
9, that "private property shall not be taken for public use
the takings clause. Where a regulation places limitations
without just compensation." The provision is the most
on land that fall short of eliminating all economically
important protection of property rights in the
beneficial use, a taking nonetheless may have occurred,
Constitution. This is a restriction on the general power of
depending on a complex of factors including the
the government to take property. The constitutional
regulation's economic effect on the landowner, the
provision is about ensuring that the government does
extent to which the regulation interferes with reasonable
not confiscate the property of some to give it to others.
investment-backed expectations and the character of
In part too, it is about loss spreading. If the government
government action. These inquiries are informed by the
takes away a person's property to benefit society, then
purpose of the takings clause which is to prevent the
society should pay. The principal purpose of the
government from forcing some people alone to bear
guarantee is "to bar the Government from forcing some
public burdens which, in all fairness and justice, should
people alone to bear public burdens which, in all fairness
be borne by the public as a whole.87
and justice, should be borne by the public as a whole.79
A restriction on use of property may also constitute a
There are two different types of taking that can be
"taking" if not reasonably necessary to the effectuation
identified. A "possessory" taking occurs when the
of a substantial public purpose or if it has an unduly harsh
government confiscates or physically occupies property.
impact on the distinct investment-backed expectations
A "regulatory" taking occurs when the government's
of the owner.88
regulation leaves no reasonable economically viable use
of the property.80 The Ordinance gives the owners and operators of the
"prohibited" establishments three (3) months from its
In the landmark case of Pennsylvania Coal v. Mahon,81 it
approval within which to "wind up business operations
was held that a taking also could be found if government
or to transfer to any place outside of the Ermita-Malate
regulation of the use of property went "too far." When
area or convert said businesses to other kinds of business
regulation reaches a certain magnitude, in most if not in
allowable within the area." The directive to "wind up
all cases there must be an exercise of eminent domain
business operations" amounts to a closure of the
and compensation to support the act. While property
establishment, a permanent deprivation of property, and
may be regulated to a certain extent, if regulation goes
is practically confiscatory. Unless the owner converts his
too far it will be recognized as a taking.82
establishment to accommodate an "allowed" business,
No formula or rule can be devised to answer the the structure which housed the previous business will be
questions of what is too far and when regulation left empty and gathering dust. Suppose he transfers it to
becomes a taking. In Mahon, Justice Holmes recognized another area, he will likewise leave the entire
that it was "a question of degree and therefore cannot establishment idle. Consideration must be given to the
be disposed of by general propositions." On many other substantial amount of money invested to build the
occasions as well, the U.S. Supreme Court has said that edifices which the owner reasonably expects to be
the issue of when regulation constitutes a taking is a returned within a period of time. It is apparent that
matter of considering the facts in each case. The Court the Ordinance leaves no reasonable economically viable
asks whether justice and fairness require that the

27
use of property in a manner that interferes with
reasonable expectations for use.
The second and third options to transfer to any place
outside of the Ermita-Malate area or to convert into
allowed businessesare confiscatory as well. The
penalty of permanent closure in cases of subsequent
violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their
property and build another one outside the Ermita-
Malate area. In every sense, it qualifies as a taking
without just compensation with an additional burden
imposed on the owner to build another establishment
solely from his coffers. The proffered solution does not
put an end to the "problem," it merely relocates it. Not
only is this impractical, it is unreasonable, onerous and
oppressive. The conversion into allowed enterprises is
just as ridiculous. How may the respondent convert a
motel into a restaurant or a coffee shop, art gallery or
music lounge without essentially destroying its property?
This is a taking of private property without due process
of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful
taking that should be compensated by the government.
The burden on the owner to convert or transfer his
business, otherwise it will be closed permanently after a
subsequent violation should be borne by the public as
this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure
as a zoning ordinance. A zoning ordinance, although a
valid exercise of police power, which limits a
"wholesome" property to a use which can not reasonably
be made of it constitutes the taking of such property
without just compensation. Private property which is
not noxious nor intended for noxious purposes may not,
by zoning, be destroyed without compensation. Such
principle finds no support in the principles of justice as
we know them. The police powers of local government
units which have always received broad and liberal
interpretation cannot be stretched to cover this
particular taking.
Distinction should be made between destruction from
necessity and eminent domain. It needs restating that
the property taken in the exercise of police power is
destroyed because it is noxious or intended for a noxious
purpose while the property taken under the power of
eminent domain is intended for a public use or purpose
and is therefore "wholesome."89 If it be of public benefit
that a "wholesome" property remain unused or
relegated to a particular purpose, then certainly the
public should bear the cost of reasonable compensation
for the condemnation of private property for public
use.90
Further, the Ordinance fails to set up any standard to
guide or limit the petitioners' actions. It in no way
28
controls or guides the discretion vested in them. It
provides no definition of the establishments covered by
it and it fails to set forth the conditions when the
establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and
unrestricted power to close down establishments.
Ordinances such as this, which make possible abuses in
its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by
which its validity is to be tested, are unreasonable and
invalid. The Ordinance should have established a rule by
which its impartial enforcement could be secured.91
Ordinances placing restrictions upon the lawful use of
property must, in order to be valid and constitutional,
specify the rules and conditions to be observed and
conduct to avoid; and must not admit of the exercise, or
of an opportunity for the exercise, of unbridled
discretion by the law enforcers in carrying out its
provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v.
Nazario,94 the U.S. Supreme Court struck down an
ordinance that had made it illegal for "three or more
persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by."
The ordinance was nullified as it imposed no standard at
all "because one may never know in advance what
'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards
to ascertain which establishments "tend to disturb the
community," "annoy the inhabitants," and "adversely
affect the social and moral welfare of the community."
The cited case supports the nullification of
the Ordinance for lack of comprehensible standards to
guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the
enumerated establishments without infringing the due
process clause. These lawful establishments may be
regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that
is a result of a lack of imagination on the part of the City
Council and which amounts to an interference into
personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to
uphold the constitutional guarantee of the right to liberty
and property.
Worthy of note is an example derived from the U.S. of a
reasonable regulation which is a far cry from the ill-
considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a
comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters
as well as escort agencies, nude model studio and sexual
encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of
motel owners were among the three groups of
businesses that filed separate suits challenging the
ordinance. The motel owners asserted that the city
violated the due process clause by failing to produce
adequate support for its supposition that renting room
for fewer than ten (10) hours resulted in increased crime
and other secondary effects. They likewise argued than
the ten (10)-hour limitation on the rental of motel rooms
placed an unconstitutional burden on the right to
freedom of association. Anent the first contention, the
U.S. Supreme Court held that the reasonableness of the
legislative judgment combined with a study which the
city considered, was adequate to support the city's
determination that motels permitting room rentals for
fewer than ten (10 ) hours should be included within the
licensing scheme. As regards the second point, the Court
held that limiting motel room rentals to ten (10) hours
will have no discernible effect on personal bonds as those
bonds that are formed from the use of a motel room for
fewer than ten (10) hours are not those that have played
a critical role in the culture and traditions of the nation
by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely
regulated the targeted businesses. It imposed
reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila,96 it needs
pointing out, is also different from this case in that what
was involved therein was a measure which regulated the
mode in which motels may conduct business in order to
put an end to practices which could encourage vice and
immorality. Necessarily, there was no valid objection on
due process or equal protection grounds as the
ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an
exercise of an assumed power to prohibit.97
The foregoing premises show that the Ordinance is an
unwarranted and unlawful curtailment of property and
personal rights of citizens. For being unreasonable and
an undue restraint of trade, it cannot, even under the
guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things
similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated
differently, so as to give undue favor to some and
unjustly discriminate against others.98 The guarantee
means that no person or class of persons shall be denied
the same protection of laws which is enjoyed by other
persons or other classes in like circumstances.99 The
"equal protection of the laws is a pledge of the
protection of equal laws."100 It limits governmental
discrimination. The equal protection clause extends to
29
artificial persons but only insofar as their property is
concerned.101
The Court has explained the scope of the equal
protection clause in this wise:
… What does it signify? To quote from J.M. Tuason & Co.
v. Land Tenure Administration: "The ideal situation is for
the law's benefits to be available to all, that none be
placed outside the sphere of its coverage. Only thus
could chance and favor be excluded and the affairs of
men governed by that serene and impartial uniformity,
which is of the very essence of the idea of law." There is
recognition, however, in the opinion that what in fact
exists "cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into
account the realities of the situation. The constitutional
guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that
the general welfare be promoted, which is the end of
law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may
under such circumstances invoke the equal protection
clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the
common weal was prompted by the spirit of hostility, or
at the very least, discrimination that finds no support in
reason." Classification is thus not ruled out, it being
sufficient to quote from the Tuason decision anew "that
the laws operate equally and uniformly on all persons
under similar circumstances or that all persons must be
treated in the same manner, the conditions not being
different, both in the privileges conferred and the
liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal
protection and security shall be given to every person
under circumstances which, if not identical, are
analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated
in the same fashion, whatever restrictions cast on some
in the group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of
legislation. If the classification is reasonable, the law may
operate only on some and not all of the people without
violating the equal protection clause.103 The classification
must, as an indispensable requisite, not be arbitrary. To
be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions
between motels, inns, pension houses, hotels, lodging
houses or other similar establishments. By definition, all
are commercial establishments providing lodging and
usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension
houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both
as to rights conferred and obligations imposed. It is
arbitrary as it does not rest on substantial distinctions
bearing a just and fair relation to the purpose of
the Ordinance.
The Court likewise cannot see the logic for prohibiting
the business and operation of motels in the Ermita-
Malate area but not outside of this area. A noxious
establishment does not become any less noxious if
located outside the area.
The standard "where women are used as tools for
entertainment" is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims
to banishis not a profession exclusive to women. Both
men and women have an equal propensity to engage in
prostitution. It is not any less grave a sin when men
engage in it. And why would the assumption that there is
an ongoing immoral activity apply only when women are
employed and be inapposite when men are in harness?
This discrimination based on gender violates equal
protection as it is not substantially related to important
government objectives.105 Thus, the discrimination is
invalid.
Failing the test of constitutionality, the Ordinance
likewise failed to pass the test of consistency with
prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the
latter merely empowers local government units to
regulate, and not prohibit, the establishments
enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances
the establishment, operation, and maintenance of
motels, hotels and other similar establishments is found
in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant
to Section 16 of this Code and in the proper exercise of
the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land,
buildings and structures within the city in order to
promote the general welfare and for said purpose shall:
. . .
30
(iv) Regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other
similar establishments, including tourist guides and
transports . . . .
While its power to regulate the establishment, operation
and maintenance of any entertainment or amusement
facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of
the Code, which reads as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant
to Section 16 of this Code and in the proper exercise of
the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land,
buildings and structures within the city in order to
promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses,
billiard pools, public dancing schools, public dance halls,
sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other
events or activities for amusement or entertainment,
particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms of
amusement or entertainment in order to protect the
social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses, and
other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to
promote the general welfare. The Code still withholds
from cities the power to suppress and prohibit altogether
the establishment, operation and maintenance of such
establishments. It is well to recall the rulings of the Court
in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section
2444 of the Administrative Code, means and includes the
power to control, to govern, and to restrain; but
"regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power
to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which
the employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified the City Council.113 Moreover, it is a general rule in
an ordinance of the Municipality of Tacloban which statutory construction that the express mention of one
prohibited the selling, giving and dispensing of liquor person, thing, or consequence is tantamount to an
ratiocinating that the municipality is empowered only to express exclusion of all others. Expressio unius est
regulate the same and not prohibit. The Court therein exclusio alterium. This maxim is based upon the rules of
declared that: logic and the natural workings of human mind. It is
particularly applicable in the construction of such
(A)s a general rule when a municipal corporation is
statutes as create new rights or remedies, impose
specifically given authority or power to regulate or to
penalties or punishments, or otherwise come under the
license and regulate the liquor traffic, power to prohibit
rule of strict construction.114
is impliedly withheld.109
The argument that the City Council is empowered to
These doctrines still hold contrary to petitioners'
enact the Ordinance by virtue of the general welfare
assertion110 that they were modified by the Code vesting
clause of the Code and of Art. 3, Sec. 18 (kk) of the
upon City Councils prohibitory powers.
Revised Charter of Manila is likewise without merit. On
Similarly, the City Council exercises regulatory powers the first point, the ruling of the Court in People v.
over public dancing schools, public dance halls, sauna Esguerra,115 is instructive. It held that:
baths, massage parlors, and other places for
The powers conferred upon a municipal council in the
entertainment or amusement as found in the first clause
general welfare clause, or section 2238 of the Revised
of Section 458 (a) 4 (vii). Its powers to regulate, suppress
Administrative Code, refers to matters not covered by
and suspend "such other events or activities for
the other provisions of the same Code, and therefore it
amusement or entertainment, particularly those which
can not be applied to intoxicating liquors, for the power
tend to disturb the community or annoy the inhabitants"
to regulate the selling, giving away and dispensing
and to "prohibit certain forms of amusement or
thereof is granted specifically by section 2242 (g) to
entertainment in order to protect the social and moral
municipal councils. To hold that, under the general
welfare of the community" are stated in the second and
power granted by section 2238, a municipal council may
third clauses, respectively of the same Section. The
enact the ordinance in question, notwithstanding the
several powers of the City Council as provided in Section
provision of section 2242 (g), would be to make the latter
458 (a) 4 (vii) of the Code, it is pertinent to emphasize,
superfluous and nugatory, because the power to
are separated by semi-colons (;), the use of which
prohibit, includes the power to regulate, the selling,
indicates that the clauses in which these powers are set
giving away and dispensing of intoxicating liquors.
forth are independent of each other albeit closely related
to justify being put together in a single enumeration or On the second point, it suffices to say that the Code being
paragraph.111 These powers, therefore, should not be a later expression of the legislative will must necessarily
confused, commingled or consolidated as to create a prevail and override the earlier law, the Revised Charter
conglomerated and unified power of regulation, of Manila. Legis posteriores priores contrarias abrogant,
suppression and prohibition.112 or later statute repeals prior ones which are repugnant
thereto. As between two laws on the same subject
The Congress unequivocably specified the
matter, which are irreconcilably inconsistent, that which
establishments and forms of amusement or
is passed later prevails, since it is the latest expression of
entertainment subject to regulation among which are
legislative will.116 If there is an inconsistency or
beerhouses, hotels, motels, inns, pension houses,
repugnance between two statutes, both relating to the
lodging houses, and other similar establishments
same subject matter, which cannot be removed by any
(Section 458 (a) 4 (iv)), public dancing schools, public
fair and reasonable method of interpretation, it is the
dance halls, sauna baths, massage parlors, and other
latest expression of the legislative will which must prevail
places for entertainment or amusement (Section 458 (a)
and override the earlier.117
4 (vii)). This enumeration therefore cannot be included
as among "other events or activities for amusement or Implied repeals are those which take place when a
entertainment, particularly those which tend to disturb subsequently enacted law contains provisions contrary
the community or annoy the inhabitants" or "certain to those of an existing law but no provisions expressly
forms of amusement or entertainment" which the City repealing them. Such repeals have been divided into two
Council may suspend, suppress or prohibit. general classes: those which occur where an act is so
inconsistent or irreconcilable with an existing prior act
The rule is that the City Council has only such powers as
that only one of the two can remain in force and those
are expressly granted to it and those which are
which occur when an act covers the whole subject of an
necessarily implied or incidental to the exercise
earlier act and is intended to be a substitute therefor.
thereof. By reason of its limited powers and the nature
The validity of such a repeal is sustained on the ground
thereof, said powers are to be construed strictissimi
that the latest expression of the legislative will should
juris and any doubt or ambiguity arising out of the terms
prevail.118
used in granting said powers must be construed against
31
In addition, Section 534(f) of the Code states that "All
general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly." Thus,
submitting to petitioners' interpretation that the Revised
Charter of Manila empowers the City Council to prohibit
motels, that portion of the Charter stating such must be
considered repealed by the Code as it is at variance with
the latter's provisions granting the City Council mere
regulatory powers.
It is well to point out that petitioners also cannot seek
cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property
and may be summarily abated under the undefined law
of necessity. It can not be said that motels are injurious
to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a
nuisance per accidens it may be so proven in a hearing
conducted for that purpose. A motel is not per se a
nuisance warranting its summary abatement without
judicial intervention.119
Notably, the City Council was conferred powers to
prevent and prohibit certain activities and
establishments in another section of the Code which is
reproduced as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant
to Section 16 of this Code and in the proper exercise of
the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary
for an efficient and effective city government, and in this
connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness
in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill
repute, gambling and other prohibited games of
chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens,
drug pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or pornographic
materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of
the city;
. . .
32
If it were the intention of Congress to confer upon the
City Council the power to prohibit the establishments
enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list
of the matters it may prohibit under the above-quoted
Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and
expand the City Council's powers in the second and third
clauses of Section 458 (a) 4 (vii) of the Code in an effort
to overreach its prohibitory powers. It is evident that
these establishments may only be regulated in their
establishment, operation and maintenance.
It is important to distinguish the punishable activities
from the establishments themselves. That these
establishments are recognized legitimate enterprises can
be gleaned from another Section of the Code. Section
131 under the Title on Local Government Taxation
expressly mentioned proprietors or operators of
massage clinics, sauna, Turkish and Swedish baths,
hotels, motels and lodging houses as among the
"contractors" defined in paragraph (h) thereof. The
same Section also defined "amusement" as a
"pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;"
and "amusement places" to include "theaters, cinemas,
concert halls, circuses and other places of amusement
where one seeks admission to entertain oneself by
seeing or viewing the show or performances." Thus, it
can be inferred that the Code considers these
establishments as legitimate enterprises and activities. It
is well to recall the maxim reddendo singula
singulis which means that words in different parts of a
statute must be referred to their appropriate connection,
giving to each in its place, its proper force and effect, and,
if possible, rendering none of them useless or
superfluous, even if strict grammatical construction
demands otherwise. Likewise, where words under
consideration appear in different sections or are widely
dispersed throughout an act the same principle
applies.120
Not only does the Ordinance contravene the Code, it
likewise runs counter to the provisions of P.D. 499. As
correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a
commercial area. The decree allowed the establishment
and operation of all kinds of commercial establishments
except warehouse or open storage depot, dump or yard,
motor repair shop, gasoline service station, light industry
with any machinery or funeral establishment. The rule is
that for an ordinance to be valid and to have force and
effect, it must not only be within the powers of the
council to enact but the same must not be in conflict with
or repugnant to the general law.121As succinctly
illustrated in Solicitor General v. Metropolitan Manila
Authority:122
The requirement that the enactment must not violate
existing law explains itself. Local political subdivisions are
able to legislate only by virtue of a valid delegation of Syllabi Class : Constitutional Law|Ordinances|Local
legislative power from the national legislature (except Governments|Police Power|Due Process
only that the power to create their own sources of
revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with
what is called the power of subordinate legislation. As
delegates of the Congress, the local government units
cannot contravene but must obey at all times the will of
their principal. In the case before us, the enactment in
question, which are merely local in origin cannot prevail
against the decree, which has the force and effect of a
statute.123

Petitioners contend that the Ordinance enjoys the

presumption of validity. While this may be the rule, it has
already been held that although the presumption is
always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set
aside when the invalidity or unreasonableness appears
on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the
local government is valid unless it contravenes the
fundamental law of the land, or an act of the legislature,
or unless it is against public policy or is unreasonable,
oppressive, partial, discriminating or in derogation of a
common right.124

Conclusion

All considered, the Ordinance invades fundamental

personal and property rights and impairs personal
privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory
and unreasonable in its operation; it is not sufficiently
detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten,
the City Council under the Code had no power to enact
the Ordinance and is therefore ultra vires, null and void.

Concededly, the challenged Ordinance was enacted with

the best of motives and shares the concern of the public
for the cleansing of the Ermita-Malate area of its social
sins. Police power legislation of such character deserves
the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the
enactment of the Ordinance has no statutory or
constitutional authority to stand on. Local legislative
bodies, in this case, the City Council, cannot prohibit the
operation of the enumerated establishments under
Section 1 thereof or order their transfer or conversion
without infringing the constitutional guarantees of due
process and equal protection of laws not even under
the guise of police power.

WHEREFORE, the Petition is hereby DENIED and the

decision of the Regional Trial Court declaring
the Ordinancevoid is AFFIRMED. Costs against
petitioners.

ase Nature : PETITION for review on certiorari of a

decision of the Court of Appeals.
33
G.R. No. 100152 March 31, 2000
ACEBEDO OPTICAL COMPANY, INC., petitioner,
vs.
THE HONORABLE COURT OF APPEALS, Hon.
MAMINDIARA MANGOTARA, in his capacity as
Presiding Judge of the RTC, 12th Judicial Region, Br. 1,
Iligan City; SAMAHANG OPTOMETRIST Sa PILIPINAS —
Iligan City Chapter, LEO T. CAHANAP, City Legal Officer,
and Hon. CAMILO P. CABILI, City Mayor of
Iligan,respondents.
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Rules
of Court seeking to nullify the dismissal by the Court of
Appeals of the original petition for certiorari, prohibition
and mandamus filed by the herein petitioner against the
City Mayor and City Legal Officer of Iligan and the
Samahang Optometrist sa Pilipinas — Iligan Chapter
(SOPI, for brevity).
The antecedent facts leading to the filing of the instant
petition are as follows:
Petitioner applied with the Office of the City Mayor of
Iligan for a business permit. After consideration of
petitioner's application and the opposition interposed
thereto by local optometrists, respondent City Mayor
issued Business Permit No. 5342 subject to the following
conditions:
1. Since it is a corporation, Acebedo cannot put up an
optical clinic but only a commercial store;
2. Acebedo cannot examine and/or prescribe reading
and similar optical glasses for patients, because these are
functions of optical clinics;
3. Acebedo cannot sell reading and similar eyeglasses
without a prescription having first been made by an
independent optometrist (not its employee) or
independent optical clinic. Acebedo can only sell directly
to the public, without need of a prescription, Ray-Ban
and similar eyeglasses;
4. Acebedo cannot advertise optical lenses and
eyeglasses, but can advertise Ray-Ban and similar glasses
and frames;
5. Acebedo is allowed to grind lenses but only upon the
prescription of an independent optometrist. 1
On December 5, 1988, private respondent Samahan ng
Optometrist Sa Pilipinas (SOPI), Iligan Chapter, through
its Acting President, Dr. Frances B. Apostol, lodged a
complaint against the petitioner before the Office of the
City Mayor, alleging that Acebedo had violated the
conditions set forth in its business permit and requesting
the cancellation and/or revocation of such permit.
Acting on such complaint, then City Mayor Camilo P.
Cabili designated City Legal Officer Leo T. Cahanap to
conduct an investigation on the matter. On July 12, 1989,
34
respondent City Legal Officer submitted a report to the
City Mayor finding the herein petitioner guilty of
violating all the conditions of its business permit and
recommending the disqualification of petitioner from
operating its business in Iligan City. The report further
advised that no new permit shall be granted to petitioner
for the year 1989 and should only be given time to wind
up its affairs.
On July 19, 1989, the City Mayor sent petitioner a Notice
of Resolution and Cancellation of Business Permit
effective as of said date and giving petitioner three (3)
months to wind up its affairs.
On October 17, 1989, petitioner brought a petition
for certiorari, prohibition and mandamus with prayer for
restraining order/preliminary injunction against the
respondents, City Mayor, City Legal Officer and Samahan
ng Optometrists sa Pilipinas-Iligan City Chapter (SOPI),
docketed as Civil Case No. 1497 before the Regional Trial
Court of Iligan City, Branch I. Petitioner alleged that (1) it
was denied due process because it was not given an
opportunity to present its evidence during the
investigation conducted by the City Legal Officer; (2) it
was denied equal protection of the laws as the
limitations imposed on its business permit were not
imposed on similar businesses in Iligan City; (3) the City
Mayor had no authority to impose the special conditions
on its business permit; and (4) the City Legal Officer had
no authority to conduct the investigation as the matter
falls within the exclusive jurisdiction of the Professional
Regulation Commission and the Board of Optometry.
Respondent SOPI interposed a Motion to Dismiss the
Petition on the ground of non-exhaustion of
administrative remedies but on November 24, 1989,
Presiding Judge Mamindiara P. Mangotara deferred
resolution of such Motion to Dismiss until after trial of
the case on the merits. However, the prayer for a writ of
preliminary injunction was granted. Thereafter,
respondent SOPI filed its answer.1âwphi1.nêt
On May 30, 1990, the trial court dismissed the petition
for failure to exhaust administrative remedies, and
dissolved the writ of preliminary injunction it earlier
issued. Petitioner's motion for reconsideration met the
same fate. It was denied by an Order dated June 28,
1990.
On October 3, 1990, instead of taking an appeal,
petitioner filed a petition for certiorari, prohibition and
mandamus with the Court of Appeals seeking to set aside
the questioned Order of Dismissal, branding the same as
tainted with grave abuse of discretion on the part of the
trial court.
On January 24, 1991, the Ninth Division 2 of the Court of
Appeals dismissed the petition for lack of merit.
Petitioner's motion reconsideration was also denied in
the Resolution dated May 15, 1991.
Undaunted, petitioner has come before this court via the
present petition, theorizing that:
A.
THE RESPONDENT COURT, WHILE CORRECTLY HOLDING
THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS
AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN
THE PERMIT AS THEY HAD NO BASIS IN ANY LAW OR
ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL
CONDITIONS NEVERTHELESS BECAME BINDING ON
PETITIONER UPON ITS ACCEPTANCE THEREOF AS A
PRIVATE AGREEMENT OR CONTRACT.
B.
THE RESPONDENT COURT OF APPEALS ERRED IN
HOLDING THAT THE CONTRACT BETWEEN PETITIONER
AND THE CITY OF ILIGAN WAS ENTERED INTO BY THE
LATTER IN THE PERFORMANCE OF ITS PROPRIETARY
FUNCTIONS.
The petition is impressed with merit.
Although petitioner agrees with the finding of the Court
of Appeals that respondent City Mayor acted beyond the
scope of his authority in imposing the assailed conditions
in subject business permit, it has excepted to the ruling
of the Court of Appeals that the said conditions
nonetheless became binding on petitioner, once
accepted, as a private agreement or contract. Petitioner
maintains that the said special conditions are null and
void for being ultra vires and cannot be given effect; and
therefore, the principle of estoppel cannot apply against
it.
On the other hand, the public respondents, City Mayor
and City Legal Officer, private respondent SOPI and the
Office of the Solicitor General contend that as a valid
exercise of police power, respondent City Mayor has the
authority to impose, as he did, special conditions in the
grant of business permits.
Police power as an inherent attribute of sovereignty is
the power to prescribe regulations to promote the
health, morals, peace, education, good order or safety
and general welfare of the people. 9 The State, through
the legislature, has delegated the exercise of police
power to local government units, as agencies of the
State, in order to effectively accomplish and carry out the
declared objects of their creation. 4 This delegation of
police power is embodied in the general welfare clause
of the Local Government Code which provides:
Sec. 6. 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
35
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.
The scope of police power has been held to be so
comprehensive as to encompass almost all matters
affecting the health, safety, peace, order, morals,
comfort and convenience of the community. Police
power is essentially regulatory in nature and the power
to issue licenses or grant business permits, if exercised
for a regulatory and not revenue-raising purpose, is
within the ambit of this power. 5
The authority of city mayors to issue or grant licenses and
business permits is beyond cavil. It is provided for by law.
Section 171, paragraph 2 (n) of Batas Pambansa Bilang
337 otherwise known as the Local Government Code of
1983, reads:
Sec. 171. The City Mayor shall:
xxx xxx xxx
n) Grant or refuse to grant, pursuant to law, city licenses
or permits, and revoke the same for violation of law or
ordinance or the conditions upon which they are
granted.
However, the power to grant or issue licenses or business
permits must always be exercised in accordance with
law, with utmost observance of the rights of all
concerned to due process and equal protection of the
law.
Succinct and in point is the ruling of this Court, that:
. . . While a business may be regulated, such regulation
must, however, be within the bounds of reason, i.e., the
regulatory ordinance must be reasonable, and its
provision cannot be oppressive amounting to an
arbitrary interference with the business or calling subject
of regulation. A lawful business or calling may not, under
the guise of regulation, be unreasonably interfered with
even by the exercise of police power. . . .
xxx xxx xxx
. . . The exercise of police power by the local government
is valid unless it contravenes the fundamental law of the
land or an act of the legislature, or unless it is against
public policy or is unreasonable, oppressive, partial,
discriminating or in derogation of a common right. 6
In the case under consideration, the business permit
granted by respondent City Mayor to petitioner was
burdened with several conditions. Petitioner agrees with
the holding by the Court of Appeals that respondent City
Mayor acted beyond his authority in imposing such
special conditions in its permit as the same have no basis
in the law or ordinance. Public respondents and private
respondent SOPI, on the other hand, are one in saying
that the imposition of said special conditions on
petitioner's business permit is well within the authority
of the City Mayor as a valid exercise of police power.
As aptly discussed by the Solicitor General in his
Comment, the power to issue licenses and permits
necessarily includes the corollary power to revoke,
withdraw or cancel the same. And the power to revoke
or cancel, likewise includes the power to restrict through
the imposition of certain conditions. In the case
of Austin-Hardware, Inc. vs. Court of Appeals, 7 it was
held that the power to license carries with it the
authority to provide reasonable terms and conditions
under which the licensed business shall be conducted. As
the Solicitor General puts it:
If the City Mayor is empowered to grant or refuse to
grant a license, which is a broader power, it stands to
reason that he can also exercise a lesser power that is
reasonably incidental to his express power, i.e. to restrict
a license through the imposition of certain conditions,
especially so that there is no positive prohibition to the
exercise of such prerogative by the City Mayor, nor is
there any particular official or body vested with such
authority. 8
However, the present inquiry does not stop there, as the
Solicitor General believes. The power or authority of the
City Mayor to impose conditions or restrictions in the
business permit is indisputable. What petitioner assails
are the conditions imposed in its particular case which, it
complains, amount to a confiscation of the business in
which petitioner is engaged.
Distinction must be made between the grant of a license
or permit to do business and the issuance of a license to
engage in the practice of a particular profession. The first
is usually granted by the local authorities and the second
is issued by the Board or Commission tasked to regulate
the particular profession. A business permit authorizes
the person, natural or otherwise, to engage in business
or some form of commercial activity. A professional
license, on the other hand, is the grant of authority to a
natural person to engage in the practice or exercise of his
or her profession.
In the case at bar, what is sought by petitioner from
respondent City Mayor is a permit to engage in the
business of running an optical shop. It does not purport
to seek a license to engage in the practice of optometry
as a corporate body or entity, although it does have in its
employ, persons who are duly licensed to practice
optometry by the Board of Examiners in Optometry.
The case of Samahan ng Optometrists sa Pilipinas
vs. Acebedo International Corporation, G.R. No.
117097, 9promulgated by this Court on March 21, 1997,
36
is in point. The factual antecedents of that case are
similar to those of the case under consideration and the
issue ultimately resolved therein is exactly the same
issue posed for resolution by this Court en banc.
In the said case, the Acebedo International Corporation
filed with the Office of the Municipal Mayor an
application for a business permit for the operation of a
branch of Acebedo Optical in Candon, Ilocos Sur. The
application was opposed by the Samahan ng
Optometrists sa Pilipinas-Ilocos Sur Chapter, theorizing
that Acebedo is a juridical entity not qualified to practice
optometry. A committee was created by the Office of the
Mayor to study private respondent's application. Upon
recommendation of the said committee, Acebedo's
application for a business permit was denied. Acebedo
filed a petition with the Regional Trial Court but the same
was dismissed. On appeal, however, the Court of Appeals
reversed the trial court's disposition, prompting the
Samahan ng Optometrists to elevate the matter to this
Court.
The First Division of this Court, then composed of
Honorable Justice Teodoro Padilla, Josue Bellosillo, Jose
Vitug and Santiago Kapunan, with Honorable Justice
Regino Hermosisima, Jr. as ponente, denied the petition
and ruled in favor of respondent Acebedo International
Corporation, holding that "the fact that private
respondent hires optometrists who practice their
profession in the course of their employment in private
respondent's optical shops, does not translate into a
practice of optometry by private respondent
itself," 10 The Court further elucidated that in both the old
and new Optometry Law, R.A. No. 1998, superseded by
R.A. No. 8050, it is significant to note that there is no
prohibition against the hiring by corporations of
optometrists. The Court concluded thus:
All told, there is no law that prohibits the hiring by
corporations of optometrists or considers the hiring by
corporations of optometrists as a practice by the
corporation itself of the profession of optometry.
In the present case, the objective of the imposition of
subject conditions on petitioner's business permit could
be attained by requiring the optometrists in petitioner's
employ to produce a valid certificate of registration as
optometrist, from the Board of Examiners in Optometry.
A business permit is issued primarily to regulate the
conduct of business and the City Mayor cannot, through
the issuance of such permit, regulate the practice of a
profession, like that of optometry. Such a function is
within the exclusive domain of the administrative agency
specifically empowered by law to supervise the
profession, in this case the Professional Regulations
Commission and the Board of Examiners in Optometry.
It is significant to note that during the deliberations of
the bicameral conference committee of the Senate and
the House of Representatives on R.A. 8050 (Senate Bill
No. 1998 and House Bill No. 14100), the committee failed
to reach a consensus as to the prohibition on indirect
practice of optometry by corporations. The proponent of
the bill, former Senator Freddie Webb, admitted thus:
Senator Webb: xxx xxx xxx
The focus of contention remains to be the proposal of
prohibiting the indirect practice of optometry by
corporations.1âwphi1 We took a second look and even a
third look at the issue in the bicameral conference, but a
compromise remained elusive. 11
Former Senator Leticia Ramos-Shahani likewise voted
her reservation in casting her vote:
Senator Shahani: Mr. President.
The optometry bills have evoked controversial views
from the members of the panel. While we realize the
need to uplift the standards of optometry as a
profession, the consesnsus of both Houses was to avoid
touching sensitive issues which properly belong to
judicial determination. Thus, the bicameral conference
committee decided to leave the issue of indirect practice
of optometry and the use of trade names open to the
wisdom of the Courts which are vested with the
prerogative of interpreting the laws. 12
From the foregoing, it is thus evident that Congress has
not adopted a unanimous position on the matter of
prohibition of indirect practice of optometry by
corporations, specifically on the hiring and employment
of licensed optometrists by optical corporations. It is
clear that Congress left the resolution of such issue for
judicial determination, and it is therefore proper for this
Court to resolve the issue.
Even in the United States, jurisprudence varies and there
is a conflict of opinions among the federal courts as to
the right of a corporation or individual not himself
licensed, to hire and employ licensed optometrists. 13
Courts have distinguished between optometry as a
learned profession in the category of law and medicine,
and optometry as a mechanical art. And, insofar as the
courts regard optometry as merely a mechanical art, they
have tended to find nothing objectionable in the making
and selling of eyeglasses, spectacles and lenses by
corporations so long as the patient is actually examined
and prescribed for by a qualified practitioner. 14
The primary purpose of the statute regulating the
practice of optometry is to insure that optometrical
services are to be rendered by competent and licensed
persons in order to protect the health and physical
welfare of the people from the dangers engendered by
unlicensed practice. Such purpose may be fully
accomplished although the person rendering the service
is employed by a corporation. 15
Furthermore, it was ruled that the employment of a
qualified optometrist by a corporation is not against
public policy. 16 Unless prohibited by statutes, a
37
corporation has all the contractual rights that an
individual has 17 and it does not become the practice of
medicine or optometry because of the presence of a
physician or optometrist. 18 The manufacturing, selling,
trading and bartering of eyeglasses and spectacles as
articles of merchandise do not constitute the practice of
optometry. 19
In the case of Dvorine vs. Castelberg Jewelry
Corporation, 20 defendant corporation conducted as part
of its business, a department for the sale of eyeglasses
and the furnishing of optometrical services to its clients.
It employed a registered optometrist who was
compensated at a regular salary and commission and
who was furnished instruments and appliances needed
for the work, as well as an office. In holding that
corporation was not engaged in the practice of
optometry, the court ruled that there is no public policy
forbidding the commercialization of optometry, as in law
and medicine, and recognized the general practice of
making it a commercial business by advertising and
selling eyeglasses.
To accomplish the objective of the regulation, a state
may provide by statute that corporations cannot sell
eyeglasses, spectacles, and lenses unless a duly licensed
physician or a duly qualified optometrist is in charge of,
and in personal attendance at the place where such
articles are sold. 21 In such a case, the patient's primary
and essential safeguard lies in the optometrist's control
of the "treatment" by means of prescription and
preliminary and final examination. 22
In analogy, it is noteworthy that private hospitals are
maintained by corporations incorporated for the
purpose of furnishing medical and surgical treatment. In
the course of providing such treatments, these
corporations employ physicians, surgeons and medical
practitioners, in the same way that in the course of
manufacturing and selling eyeglasses, eye frames and
optical lenses, optical shops hire licensed optometrists to
examine, prescribe and dispense ophthalmic lenses. No
one has ever charged that these corporations are
engaged in the practice of medicine. There is indeed no
valid basis for treating corporations engaged in the
business of running optical shops differently.
It also bears stressing, as petitioner has pointed out, that
the public and private respondents did not appeal from
the ruling of the Court of Appeals. Consequently, the
holding by the Court of Appeals that the act of
respondent City Mayor in imposing the questioned
special conditions on petitioner's business permit is ultra
vires cannot be put into issue here by the respondents. It
is well-settled that:
A party who has not appealed from the decision may not
obtain any affirmative relief from the appellate court
other than what he had obtain from the lower court, if
any, whose decision is brought up on appeal. 23
. . . an appellee who is not an appellant may assign errors
in his brief where his purpose is to maintain the judgment
on other grounds, but he cannot seek modification or
reversal of the judgment or affirmative relief unless he
has also appealed. 24
Thus, respondents' submission that the imposition of
subject special conditions on petitioner's business permit
is not ultra vires cannot prevail over the finding and
ruling by the Court of Appeals from which they
(respondents) did not appeal.
such licenses or permits, is essentially in the exercise of
the police power of the State within the contemplation
of the general welfare clause of the Local Government
Code.
WHEREFORE, the petition is GRANTED; the Decision of
the Court of Appeals in CA-GR SP No. 22995 REVERSED:
and the respondent City Mayor is hereby ordered to
reissue petitioner's business permit in accordance with
law and with this disposition. No pronouncement as to
costs.

Anent the second assigned error, petitioner maintains Case Nature : PETITION for review on certiorari of a
that its business permit issued by the City Mayor is not a decision of the Court of Appeals.
contract entered into by Iligan City in the exercise of its
Syllabi Class : Police
proprietary functions, such that although petitioner
Power|Optometry|Appeals|Municipal
agreed to such conditions, it cannot be held in estoppel
Corporations|Municipal Corporations|Local
since ultra vires acts cannot be given effect.
Government Code|General Welfare
Respondents, on the other hand, agree with the ruling of Clause|Courts|Jurisdiction|Equal Protection|Pleadings
the Court of Appeals that the business permit in question and Practice|Permits and Licenses|Ultra Vires
is in the nature of a contract between Iligan City and the Acts|Estoppel|Police Power|Words and
herein petitioner, the terms and conditions of which are Phrases|Licenses and Permits
binding upon agreement, and that petitioner is estopped
Dispositive Portion:
from questioning the same. Moreover, in the Resolution
denying petitioner's motion for reconsideration, the WHEREFORE, the petition is GRANTED; the Decision of
Court of Appeals held that the contract between the the Court of Appeals in CA-GR SP No. 22995 REVERSED;
petitioner and the City of Iligan was entered into by the and the respondent City Mayor is hereby ordered to
latter in the performance of its proprietary functions. reissue petitioner’s business permit in accordance with
law and with this disposition. No pronouncement as to
This Court holds otherwise. It had occasion to rule that a
costs
license or permit is not in the nature of a contract but a
special privilege.

. . . a license or a permit is not a contract between the

sovereignty and the licensee or permitee, and is not a
property in the constitutional sense, as to which the
constitutional proscription against impairment of the
obligation of contracts may extend. A license is rather in
the nature of a special privilege, of a permission or
authority to do what is within its terms. It is not in any
way vested, permanent or absolute. 25

It is therefore decisively clear that estoppel cannot apply

in this case. The fact that petitioner acquiesced in the
special conditions imposed by the City Mayor in subject
business permit does not preclude it from challenging
the said imposition, which is ultra vires or beyond the
ambit of authority of respondent City Mayor. Ultra
vires acts or acts which are clearly beyond the scope of
one's authority are null and void and cannot be given any
effect. The doctrine of estoppel cannot operate to give
effect to an act which is otherwise null and void or ultra
vires.

The Court of Appeals erred in adjudging subject business

permit as having been issued by responded City Mayor in
the performance of proprietary functions of Iligan City.
As hereinabove elaborated upon, the issuance of
business licenses and permits by a municipality or city is
essentially regulatory in nature. The authority, which
devolved upon local government units to issue or grant
38
G.R. No. L-59234 September 30, 1982
TAXICAB OPERATORS OF METRO MANILA, INC.,
FELICISIMO CABIGAO and ACE TRANSPORTATION
CORPORATION, petitioners,
vs.
THE BOARD OF TRANSPORTATION and THE DIRECTOR
OF THE BUREAU OF LAND
TRANSPORTATION, respondents.
MELENCIO-HERRERA, J.:
This Petition for "Certiorari, Prohibition and mandamus
with Preliminary Injunction and Temporary Restraining
Order" filed by the Taxicab Operators of Metro Manila,
Inc., Felicisimo Cabigao and Ace Transportation, seeks to
declare the nullity of Memorandum Circular No. 77-42,
dated October 10, 1977, of the Board of Transportation,
and Memorandum Circular No. 52, dated August 15,
1980, of the Bureau of Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc.
(TOMMI) is a domestic corporation composed of taxicab
operators, who are grantees of Certificates of Public
Convenience to operate taxicabs within the City of
Manila and to any other place in Luzon accessible to
vehicular traffic. Petitioners Ace Transportation
Corporation and Felicisimo Cabigao are two of the
members of TOMMI, each being an operator and grantee
of such certificate of public convenience.
On October 10, 1977, respondent Board of
Transportation (BOT) issued Memorandum Circular No.
77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure
that only safe and comfortable units are used as public
conveyances;
WHEREAS, the riding public, particularly in Metro-
Manila, has, time and again, complained against, and
condemned, the continued operation of old and
dilapidated taxis;
WHEREAS, in order that the commuting public may be
assured of comfort, convenience, and safety, a program
of phasing out of old and dilapidated taxis should be
adopted;
WHEREAS, after studies and inquiries made by the Board
of Transportation, the latter believes that in six years of
operation, a taxi operator has not only covered the cost
of his taxis, but has made reasonable profit for his
investments;
NOW, THEREFORE, pursuant to this policy, the Board
hereby declares that no car beyond six years shall be
39
operated as taxi, and in implementation of the same
hereby promulgates the following rules and regulations:
1. As of December 31, 1977, all taxis of Model 1971 and
earlier are ordered withdrawn from public service and
thereafter may no longer be registered and operated as
taxis. In the registration of cards for 1978, only taxis of
Model 1972 and later shall be accepted for registration
and allowed for operation;
2. As of December 31, 1978, all taxis of Model 1972 are
ordered withdrawn from public service and thereafter
may no longer be registered and operated as taxis. In the
registration of cars for 1979, only taxis of Model 1973
and later shall be accepted for registration and allowed
for operation; and every year thereafter, there shall be a
six-year lifetime of taxi, to wit:
1980 — Model 1974
1981 — Model 1975, etc.
All taxis of earlier models than those provided above are
hereby ordered withdrawn from public service as of the
last day of registration of each particular year and their
respective plates shall be surrendered directly to the
Board of Transportation for subsequent turnover to the
Land Transportation Commission.
For an orderly implementation of this Memorandum
Circular, the rules herein shall immediately be effective
in Metro-Manila. Its implementation outside Metro-
Manila shall be carried out only after the project has
been implemented in Metro-Manila and only after the
date has been determined by the Board. 1
Pursuant to the above BOT circular, respondent Director
of the Bureau of Land Transportation (BLT) issued
Implementing Circular No. 52, dated August 15, 1980,
instructing the Regional Director, the MV Registrars and
other personnel of BLT, all within the National Capitol
Region, to implement said Circular, and formulating a
schedule of phase-out of vehicles to be allowed and
accepted for registration as public conveyances. To
quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units
with year models over six (6) years old are now banned
from operating as public utilities in Metro Manila. As
such the units involved should be considered as
automatically dropped as public utilities and, therefore,
do not require any further dropping order from the BOT.
Henceforth, taxi units within the National Capitol Region
having year models over 6 years old shall be refused
registration. The following schedule of phase-out is
herewith prescribed for the guidance of all concerned:
Year Model Automatic Phase-Out Year
1980
 1974 1981
1975 1982
1976 1983
1977
etc. etc.
Strict compliance here is desired. 2
In accordance therewith, cabs of model 1971 were
phase-out in registration year 1978; those of model
1972, in 1979; those of model 1973, in 1980; and those
of model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the
BOT, docketed as Case No. 80-7553, seeking to nullify MC
No. 77-42 or to stop its implementation; to allow the
registration and operation in 1981 and subsequent years
of taxicabs of model 1974, as well as those of earlier
models which were phased-out, provided that, at the
time of registration, they are roadworthy and fit for
operation.
On February 16, 1981, petitioners filed before the BOT a
"Manifestation and Urgent Motion", praying for an early
hearing of their petition. The case was heard on February
20, 1981. Petitioners presented testimonial and
documentary evidence, offered the same, and
manifested that they would submit additional
documentary proofs. Said proofs were submitted on
March 27, 1981 attached to petitioners' pleading
entitled, "Manifestation, Presentation of Additional
Evidence and Submission of the Case for Resolution." 3
On November 28, 1981, petitioners filed before the same
Board a "Manifestation and Urgent Motion to Resolve or
Decide Main Petition" praying that the case be resolved
or decided not later than December 10, 1981 to enable
them, in case of denial, to avail of whatever remedy they
may have under the law for the protection of their
interests before their 1975 model cabs are phased-out
on January 1, 1982.
Petitioners, through its President, allegedly made
personal follow-ups of the case, but was later informed
that the records of the case could not be located.
On December 29, 1981, the present Petition was
instituted wherein the following queries were posed for
consideration by this Court:
A. Did BOT and BLT promulgate the questioned
memorandum circulars in accord with the manner
required by Presidential Decree No. 101, thereby
safeguarding the petitioners' constitutional right to
procedural due process?
40
B. Granting, arguendo, that respondents did comply with
the procedural requirements imposed by Presidential
Decree No. 101, would the implementation and
enforcement of the assailed memorandum circulars
violate the petitioners' constitutional rights to.
(1) Equal protection of the law;
(2) Substantive due process; and
(3) Protection against arbitrary and unreasonable
classification and standard?
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of
Transportation the power
4. To fix just and reasonable standards, classification,
regulations, practices, measurements, or service to be
furnished, imposed, observed, and followed by
operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines
for said agency to follow in the exercise of its powers:
Sec. 2. Exercise of powers. — In the exercise of the
powers granted in the preceding section, the Board shag
proceed promptly along the method of legislative
inquiry.
Apart from its own investigation and studies, the Board,
in its discretion, may require the cooperation and
assistance of the Bureau of Transportation, the
Philippine Constabulary, particularly the Highway Patrol
Group, the support agencies within the Department of
Public Works, Transportation and Communications, or
any other government office or agency that may be able
to furnish useful information or data in the formulation
of the Board of any policy, plan or program in the
implementation of this Decree.
The Board may also can conferences, require the
submission of position papers or other documents,
information, or data by operators or other persons that
may be affected by the implementation of this Decree,
or employ any other suitable means of inquiry.
In support of their submission that they were denied
procedural due process, petitioners contend that they
were not caged upon to submit their position papers, nor
were they ever summoned to attend any conference
prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that
the leeway accorded the Board gives it a wide range of
choice in gathering necessary information or data in the
formulation of any policy, plan or program. It is not
mandatory that it should first call a conference or require
the submission of position papers or other documents
from operators or persons who may be affected, this
being only one of the options open to the Board, which
is given wide discretionary authority. Petitioners cannot
justifiably claim, therefore, that they were deprived of
procedural due process. Neither can they state with
certainty that public respondents had not availed of
other sources of inquiry prior to issuing the challenged
Circulars. operators of public conveyances are not the
only primary sources of the data and information that
may be desired by the BOT.
Dispensing with a public hearing prior to the issuance of
the Circulars is neither violative of procedural due
process. As held in Central Bank vs. Hon. Cloribel and
Banco Filipino, 44 SCRA 307 (1972):
Pevious notice and hearing as elements of due process,
are constitutionally required for the protection of life or
vested property rights, as well as of liberty, when its
limitation or loss takes place in consequence of a judicial
or quasi-judicial proceeding, generally dependent upon a
past act or event which has to be established or
ascertained. It is not essential to the validity of general
rules or regulations promulgated to govern future
conduct of a class or persons or enterprises, unless the
law provides otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling
at six (6) years is arbitrary and oppressive because the
roadworthiness of taxicabs depends upon their kind of
maintenance and the use to which they are subjected,
and, therefore, their actual physical condition should be
taken into consideration at the time of registration. As
public contend, however, it is impractical to subject
every taxicab to constant and recurring evaluation, not
to speak of the fact that it can open the door to the
adoption of multiple standards, possible collusion, and
even graft and corruption. A reasonable standard must
be adopted to apply to an vehicles affected uniformly,
fairly, and justly. The span of six years supplies that
reasonable standard. The product of experience shows
that by that time taxis have fully depreciated, their cost
recovered, and a fair return on investment obtained.
They are also generally dilapidated and no longer fit for
safe and comfortable service to the public specially
considering that they are in continuous operation
practically 24 hours everyday in three shifts of eight
hours per shift. With that standard of reasonableness
and absence of arbitrariness, the requirement of due
process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates
their right to equal protection of the law because the
same is being enforced in Metro Manila only and is
directed solely towards the taxi industry. At the outset it
should be pointed out that implementation outside
Metro Manila is also envisioned in Memorandum
Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum
Circular, the rules herein shall immediately be effective
in Metro Manila. Its implementation outside Metro
Manila shall be carried out only after the project has
41
been implemented in Metro Manila and only after the
date has been determined by the Board. 4
In fact, it is the understanding of the Court that
implementation of the Circulars in Cebu City is already
being effected, with the BOT in the process of conducting
studies regarding the operation of taxicabs in other
cities.
The Board's reason for enforcing the Circular initially in
Metro Manila is that taxicabs in this city, compared to
those of other places, are subjected to heavier traffic
pressure and more constant use. This is of common
knowledge. Considering that traffic conditions are not
the same in every city, a substantial distinction exists so
that infringement of the equal protection clause can
hardly be successfully claimed.
As enunciated in the preambular clauses of the
challenged BOT Circular, the overriding consideration is
the safety and comfort of the riding public from the
dangers posed by old and dilapidated taxis. The State, in
the exercise, of its police power, can prescribe
regulations to promote the health, morals, peace, good
order, safety and general welfare of the people. It can
prohibit all things hurtful to comfort, safety and welfare
of society. 5 It may also regulate property rights. 6 In the
language of Chief Justice Enrique M. Fernando "the
necessities imposed by public welfare may justify the
exercise of governmental authority to regulate even if
thereby certain groups may plausibly assert that their
interests are disregarded". 7
In so far as the non-application of the assailed Circulars
to other transportation services is concerned, it need
only be recalled that the equal protection clause does
not imply that the same treatment be accorded all and
sundry. It applies to things or persons Identically or
similarly situated. It permits of classification of the object
or subject of the law provided classification is reasonable
or based on substantial distinction, which make for real
differences, and that it must apply equally to each
member of the class. 8 What is required under the equal
protection clause is the uniform operation by legal
means so that all persons under Identical or similar
circumstance would be accorded the same treatment
both in privilege conferred and the liabilities
imposed. 9 The challenged Circulars satisfy the foregoing
criteria.
Evident then is the conclusion that the questioned
Circulars do not suffer from any constitutional infirmity.
To declare a law unconstitutional, the infringement of
constitutional right must be clear, categorical and
undeniable. 10
WHEREFORE, the Writs prayed for are denied and this
Petition is hereby dismissed. No costs.
G.R. No. L-24153 February 14, 1983
TOMAS VELASCO, LOURDES RAMIREZ, SY PIN,
EDMUNDO UNSON, APOLONIA RAMIREZ and LOURDES
LOMIBAO, as component members of the STA. CRUZ
BARBERSHOP ASSOCIATION, in their own behalf and in
representation of the other owners of barbershops in
the City of Manila, petitioners-appellants,
vs.
HON. ANTONIO J. VILLEGAS, City Mayor of Manila,
HON. HERMINIO A. ASTORGA, Vice-Mayor and
Presiding Officer of the Municipal Board in relation to
Republic Act 4065, THE MUNICIPAL BOARD OF THE CITY
OF MANILA and EDUARDO QUINTOS SR., Chief of Police
of the City of Manila, respondents-appellees.
Leonardo L. Arguelles for respondent-appellant.
has in its relation to the particular circumstances of the
case been liberally construed by the courts. Such, it is
well to really is the progressive view of Philippine
jurisprudence." 5 As it was then, so it has continued to
be. 6 There is no showing, therefore, of the
unconstitutionality of such ordinance.
WHEREFORE, the appealed order of the lower court is
affirmed. No costs.
Syllabi Class : Statutes|Ordinances|Municipal
Corporations
Syllabi:
1. Statutes; Ordinances; Municipal Corporations; A city
ordinance of Manila prohibiting barbershop operators
from rendering massage service to their customers in a
separate room is a valid exercise of the police power.

Dispositive Portion:
FERNANDO, C.J.:
WHEREFORE, the appealed order of the lower court is
This is an appeal from an order of the lower court
affirmed. No costs.
dismissing a suit for declaratory relief challenging the
constitutionality based on Ordinance No. 4964 of the City
of Manila, the contention being that it amounts to a
deprivation of property of petitioners-appellants of their
means of livelihood without due process of law. The
assailed ordinance is worded thus: "It shall be prohibited
for any operator of any barber shop to conduct the
business of massaging customers or other persons in any
adjacent room or rooms of said barber shop, or in any
room or rooms within the same building where the
barber shop is located as long as the operator of the
barber shop and the room where massaging is conducted
is the same person." 1 As noted in the appealed order,
petitioners-appellants admitted that criminal cases for
the violation of this ordinance had been previously filed
and decided. The lower court, therefore, held that a
petition for declaratory relief did not lie, its availability
being dependent on there being as yet no case involving
such issue having been filed. 2

Even if such were not the case, the attack against the
validity cannot succeed. As pointed out in the brief of
respondents-appellees, it is a police power measure. The
objectives behind its enactment are: "(1) To be able to
impose payment of the license fee for engaging in the
business of massage clinic under Ordinance No. 3659 as
amended by Ordinance 4767, an entirely different
measure than the ordinance regulating the business of
barbershops and, (2) in order to forestall possible
immorality which might grow out of the construction of
separate rooms for massage of customers." 3 This Court
has been most liberal in sustaining ordinances based on
the general welfare clause. As far back as U.S. v.
Salaveria, 4 a 1918 decision, this Court through Justice
Malcolm made clear the significance and scope of such a
clause, which "delegates in statutory form the police
power to a municipality. As above stated, this clause has
been given wide application by municipal authorities and

42
G.R. No. 111097 July 20, 1994
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN
DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE
AMUSEMENT AND GAMING
CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.
CRUZ, J.:
There was instant opposition when PAGCOR announced
the opening of a casino in Cagayan de Oro City. Civic
organizations angrily denounced the project. The
religious elements echoed the objection and so did the
women's groups and the youth. Demonstrations were
led by the mayor and the city legislators. The media
trumpeted the protest, describing the casino as an
affront to the welfare of the city.
The trouble arose when in 1992, flush with its
tremendous success in several cities, PAGCOR decided to
expand its operations to Cagayan de Oro City. To this
end, it leased a portion of a building belonging to Pryce
Properties Corporation, Inc., one of the herein private
respondents, renovated and equipped the same, and
prepared to inaugurate its casino there during the
Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan
de Oro City was swift and hostile. On December 7, 1992,
it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF
BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS
PERMIT TO ANY ESTABLISHMENT FOR THE USING AND
ALLOWING TO BE USED ITS PREMISES OR PORTION
THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the
City of Cagayan de Oro, in session assembled that:
Sec. 1. — That pursuant to the policy of the city banning
the operation of casino within its territorial jurisdiction,
no business permit shall be issued to any person,
partnership or corporation for the operation of casino
within the city limits.
Sec. 2. — That it shall be a violation of existing business
permit by any persons, partnership or corporation to use
its business establishment or portion thereof, or allow
the use thereof by others for casino operation and other
gambling activities.
Sec. 3. — PENALTIES. — Any violation of such existing
business permit as defined in the preceding section shall
suffer the following penalties, to wit:
43
a) Suspension of the business permit for sixty (60) days
for the first offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months
for the second offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and
imprisonment of One (1) year, for the third and
subsequent offenses.
Sec. 4. — This Ordinance shall take effect ten (10) days
from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner
Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF
CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.
WHEREAS, the City Council established a policy as early
as 1990 against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed
another Resolution No. 2673, reiterating its policy
against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed
Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any
establishment for the using and allowing to be used its
premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub
paragraph VI of the Local Government Code of 1991
(Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI
of the implementing rules of the Local Government
Code, the City Council as the Legislative Body shall enact
measure to suppress any activity inimical to public
morals and general welfare of the people and/or
regulate or prohibit such activity pertaining to
amusement or entertainment in order to protect social
and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly
assembled that:
Sec. 1. — The operation of gambling CASINO in the City
of Cagayan de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject
to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed
against the proprietor, partnership or corporation
undertaking the operation, conduct, maintenance of
gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more
than one (1) year or a fine in the amount of P5,000.00 or
both at the discretion of the court against the manager,
supervisor, and/or any person responsible in the
establishment, conduct and maintenance of gambling
CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days
after its publication in a local newspaper of general
circulation.
Pryce assailed the ordinances before the Court of
Appeals, where it was joined by PAGCOR as intervenor
and supplemental petitioner. Their challenge succeeded.
On March 31, 1993, the Court of Appeals declared the
ordinances invalid and issued the writ prayed for to
prohibit their enforcement. 1 Reconsideration of this
decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in
this petition for review under Rule 45 of the Rules of
Court. 3 They aver that the respondent Court of Appeals
erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of
the City of Cagayan de Oro does not have the power and
authority to prohibit the establishment and operation of
a PAGCOR gambling casino within the City's territorial
limits.
2. The phrase "gambling and other prohibited games of
chance" found in Sec. 458, par. (a), sub-par. (1) — (v) of
R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869
and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to
casino and partial to cockfighting and are therefore
invalid on that point.
5. The questioned Ordinances are not reasonable, not
consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the
laws or policy of the State.
6. It had no option but to follow the ruling in the case
of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991,
197 SCRA 53 in disposing of the issues presented in this
present case.
PAGCOR is a corporation created directly by P.D. 1869 to
help centralize and regulate all games of chance,
including casinos on land and sea within the territorial
jurisdiction of the Philippines. In Basco v. Philippine
Amusements and Gaming Corporation, 4 this Court
sustained the constitutionality of the decree and even
cited the benefits of the entity to the national economy
as the third highest revenue-earner in the government,
next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political
subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is
expressly vested with the police power under what is
known as the General Welfare Clause now embodied in
Section 16 as follows:
44
Sec. 16. — General Welfare. — Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants.
In addition, Section 458 of the said Code specifically
declares that:
Sec. 458. — Powers, Duties, Functions and
Compensation. — (a) The Sangguniang Panlungsod, as
the legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant
to Section 16 of this Code and in the proper exercise of
the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary
for an efficient and effective city government, and in this
connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness
in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill
repute, gamblingand other prohibited games of chance,
fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens,
drug pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or pornographic
materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of
the city;
This section also authorizes the local government units
to regulate properties and businesses within their
territorial limits in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions,
the Sangguniang Panlungsod may prohibit the operation
of casinos because they involve games of chance, which
are detrimental to the people. Gambling is not allowed
by general law and even by the Constitution itself. The
legislative power conferred upon local government units
may be exercised over all kinds of gambling and not only
over "illegal gambling" as the respondents erroneously
argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan
de Oro City has the authority to prohibit them within its
territory pursuant to the authority entrusted to it by the
Local Government Code.
It is submitted that this interpretation is consonant with
the policy of local autonomy as mandated in Article II,
Section 25, and Article X of the Constitution, as well as
various other provisions therein seeking to strengthen
the character of the nation. In giving the local
government units the power to prevent or suppress
gambling and other social problems, the Local
Government Code has recognized the competence of
such communities to determine and adopt the measures
best expected to promote the general welfare of their
inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly
authorized the local government units to prevent and
suppress gambling and other prohibited games of
chance, like craps, baccarat, blackjack and roulette, it
meant allforms of gambling without distinction. Ubi lex
non distinguit, nec nos distinguere
debemos. 6 Otherwise, it would have expressly excluded
from the scope of their power casinos and other forms of
gambling authorized by special law, as it could have
easily done. The fact that it did not do so simply means
that the local government units are permitted to prohibit
all kinds of gambling within their territories, including the
operation of casinos.
The adoption of the Local Government Code, it is pointed
out, had the effect of modifying the charter of the
PAGCOR. The Code is not only a later enactment than
P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the
powers of the PAGCOR under the decree are expressly
discontinued by the Code insofar as they do not conform
to its philosophy and provisions, pursuant to Par. (f) of its
repealing clause reading as follows:
(f) All general and special laws, acts, city charters,
decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt
regarding the effect of the Local Government Code on
P.D. 1869, the doubt must be resolved in favor of the
petitioners, in accordance with the direction in the Code
calling for its liberal interpretation in favor of the local
government units. Section 5 of the Code specifically
provides:
Sec. 5. Rules of Interpretation. — In the interpretation of
the provisions of this Code, the following rules shall
apply:
(a) Any provision on a power of a local government unit
shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of
45
devolution of powers and of the lower local government
unit. Any fair and reasonable doubt as to the existence of
the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local
government units in accelerating economic development
and upgrading the quality of life for the people in the
community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as
intrinsically harmful and cite various provisions of the
Constitution and several decisions of this Court
expressive of the general and official disapprobation of
the vice. They invoke the State policies on the family and
the proper upbringing of the youth and, as might be
expected, call attention to the old case of U.S. v.
Salaveria,7 which sustained a municipal ordinance
prohibiting the playing of panguingue. The petitioners
decry the immorality of gambling. They also impugn the
wisdom of P.D. 1869 (which they describe as "a martial
law instrument") in creating PAGCOR and authorizing it
to operate casinos "on land and sea within the territorial
jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue.
Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there
is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning
it at all. It is left to Congress to deal with the activity as it
sees fit. In the exercise of its own discretion, the
legislature may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of
gambling and allow others for whatever reasons it may
consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries,
cockfighting and horse-racing. In making such choices,
Congress has consulted its own wisdom, which this Court
has no authority to review, much less reverse. Well has it
been said that courts do not sit to resolve the merits of
conflicting theories. 8 That is the prerogative of the
political departments. It is settled that questions
regarding the wisdom, morality, or practicibility of
statutes are not addressed to the judiciary but may be
resolved only by the legislative and executive
departments, to which the function belongs in our
scheme of government. That function is exclusive.
Whichever way these branches decide, they are
answerable only to their own conscience and the
constituents who will ultimately judge their acts, and not
to the courts of justice.
The only question we can and shall resolve in this petition
is the validity of Ordinance No. 3355 and Ordinance No.
3375-93 as enacted by the Sangguniang Panlungsod of
Cagayan de Oro City. And we shall do so only by the
criteria laid down by law and not by our own convictions
on the propriety of gambling.
The tests of a valid ordinance are well established. A long
line of decisions 9 has held that to be valid, an ordinance
must conform to the following substantive
requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local
Government Code, local government units are
authorized to prevent or suppress, among others,
"gambling and other prohibited games of chance."
Obviously, this provision excludes games of chance
which are not prohibited but are in fact permitted by law.
The petitioners are less than accurate in claiming that the
Code could have excluded such games of chance but did
not. In fact it does. The language of the section is clear
and unmistakable. Under the rule of noscitur a sociis, a
word or phrase should be interpreted in relation to, or
given the same meaning of, words with which it is
associated. Accordingly, we conclude that since the word
"gambling" is associated with "and other prohibited
games of chance," the word should be read as referring
to only illegal gambling which, like the other prohibited
games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle
the problem quite conclusively. But we will not. The
vigorous efforts of the petitioners on behalf of the
inhabitants of Cagayan de Oro City, and the earnestness
of their advocacy, deserve more than short shrift from
this Court.
The apparent flaw in the ordinances in question is that
they contravene P.D. 1869 and the public policy
embodied therein insofar as they prevent PAGCOR from
exercising the power conferred on it to operate a casino
in Cagayan de Oro City. The petitioners have an ingenious
answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance
admittedly cannot prevail against a statute. Their theory
is that the change has been made by the Local
Government Code itself, which was also enacted by the
national lawmaking authority. In their view, the decree
has been, not really repealed by the Code, but merely
"modified pro tanto" in the sense that PAGCOR cannot
now operate a casino over the objection of the local
government unit concerned. This modification of P.D.
1869 by the Local Government Code is permissible
because one law can change or repeal another law.
46
It seems to us that the petitioners are playing with words.
While insisting that the decree has only been
"modifiedpro tanto," they are actually arguing that it is
already dead, repealed and useless for all intents and
purposes because the Code has shorn PAGCOR of all
power to centralize and regulate casinos. Strictly
speaking, its operations may now be not only prohibited
by the local government unit; in fact, the prohibition is
not only discretionary but mandated by Section 458 of
the Code if the word "shall" as used therein is to be given
its accepted meaning. Local government units have now
no choice but to prevent and suppress gambling, which
in the petitioners' view includes both legal and illegal
gambling. Under this construction, PAGCOR will have no
more games of chance to regulate or centralize as they
must all be prohibited by the local government units
pursuant to the mandatory duty imposed upon them by
the Code. In this situation, PAGCOR cannot continue to
exist except only as a toothless tiger or a white elephant
and will no longer be able to exercise its powers as a
prime source of government revenue through the
operation of casinos.
It is noteworthy that the petitioners have cited only Par.
(f) of the repealing clause, conveniently discarding the
rest of the provision which painstakingly mentions the
specific laws or the parts thereof which are repealed (or
modified) by the Code. Significantly, P.D. 1869 is not one
of them. A reading of the entire repealing clause, which
is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg.
337, otherwise known as the "Local Government Code,"
Executive Order No. 112 (1987), and Executive Order No.
319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such
other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are
hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act
No. 1939 regarding hospital fund; Section 3, a (3) and b
(2) of Republic Act. No. 5447 regarding the Special
Education Fund; Presidential Decree No. 144 as amended
by Presidential Decree Nos. 559 and 1741; Presidential
Decree No. 231 as amended; Presidential Decree No. 436
as amended by Presidential Decree No. 558; and
Presidential Decree Nos. 381, 436, 464, 477, 526, 632,
752, and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby repealed
insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or
amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16, and 29 of
Presidential Decree No. 704; Sections 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68,
69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463,
as amended; and Section 16 of Presidential Decree No.
972, as amended, and
(f) All general and special laws, acts, city charters,
decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are
not lightly presumed in the absence of a clear and
unmistakable showing of such intention. In Lichauco &
Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication
all proceed on the assumption that if the act of later date
clearly reveals an intention on the part of the lawmaking
power to abrogate the prior law, this intention must be
given effect; but there must always be a sufficient
revelation of this intention, and it has become an
unbending rule of statutory construction that the
intention to repeal a former law will not be imputed to
the Legislature when it appears that the two statutes, or
provisions, with reference to which the question arises
bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of
P.D. 1869. On the contrary, as the private respondent
points out, PAGCOR is mentioned as the source of
funding in two later enactments of Congress, to wit, R.A.
7309, creating a Board of Claims under the Department
of Justice for the benefit of victims of unjust punishment
or detention or of violent crimes, and R.A. 7648,
providing for measures for the solution of the power
crisis. PAGCOR revenues are tapped by these two
statutes. This would show that the PAGCOR charter has
not been repealed by the Local Government Code but
has in fact been improved as it were to make the entity
more responsive to the fiscal problems of the
government.
It is a canon of legal hermeneutics that instead of pitting
one statute against another in an inevitably destructive
confrontation, courts must exert every effort to reconcile
them, remembering that both laws deserve a becoming
respect as the handiwork of a coordinate branch of the
government. On the assumption of a conflict between
P.D. 1869 and the Code, the proper action is not to
uphold one and annul the other but to give effect to both
by harmonizing them if possible. This is possible in the
case before us. The proper resolution of the problem at
hand is to hold that under the Local Government Code,
local government units may (and indeed must) prevent
and suppress all kinds of gambling within their territories
except only those allowed by statutes like P.D. 1869. The
exception reserved in such laws must be read into the
Code, to make both the Code and such laws equally
effective and mutually complementary.
This approach would also affirm that there are indeed
two kinds of gambling, to wit, the illegal and those
47
authorized by law. Legalized gambling is not a modern
concept; it is probably as old as illegal gambling, if not
indeed more so. The petitioners' suggestion that the
Code authorizes them to prohibit all kinds of gambling
would erase the distinction between these two forms of
gambling without a clear indication that this is the will of
the legislature. Plausibly, following this theory, the City
of Manila could, by mere ordinance, prohibit the
Philippine Charity Sweepstakes Office from conducting a
lottery as authorized by R.A. 1169 and B.P. 42 or stop the
races at the San Lazaro Hippodrome as authorized by
R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of
arriving at the conclusion urged on us by the petitioners
that the ordinances in question are valid. On the
contrary, we find that the ordinances violate P.D. 1869,
which has the character and force of a statute, as well as
the public policy expressed in the decree allowing the
playing of certain games of chance despite the
prohibition of gambling in general.
The rationale of the requirement that the ordinances
should not contravene a statute is obvious. Municipal
governments are only agents of the national
government. Local councils exercise only delegated
legislative powers conferred on them by Congress as the
national lawmaking body. The delegate cannot be
superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from
which they have derived their power in the first place,
and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and derive
their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they
cannot exist. As it creates, so it may destroy. As it may
destroy, it may abridge and control. Unless there is some
constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of
so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State,
and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation
themselves are concerned. They are, so to phrase it, the
mere tenants at will of the legislature. 11
This basic relationship between the national legislature
and the local government units has not been enfeebled
by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress
retains control of the local government units although in
significantly reduced degree now than under our
previous Constitutions. The power to create still includes
the power to destroy. The power to grant still includes
the power to withhold or recall. True, there are certain
notable innovations in the Constitution, like the direct
conferment on the local government units of the power
to tax, 12 which cannot now be withdrawn by mere
statute. By and large, however, the national legislature is
still the principal of the local government units, which
cannot defy its will or modify or violate it.
The Court understands and admires the concern of the
petitioners for the welfare of their constituents and their
apprehensions that the welfare of Cagayan de Oro City
will be endangered by the opening of the casino. We
share the view that "the hope of large or easy gain,
obtained without special effort, turns the head of the
workman" 13 and that "habitual gambling is a cause of
laziness and ruin." 14 In People v. Gorostiza, 15 we
declared: "The social scourge of gambling must be
stamped out. The laws against gambling must be
enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and
the father of mischief." Nevertheless, we must recognize
the power of the legislature to decide, in its own wisdom,
to legalize certain forms of gambling, as was done in P.D.
1869 and impliedly affirmed in the Local Government
Code. That decision can be revoked by this Court only if
it contravenes the Constitution as the touchstone of all
official acts. We do not find such contravention here.
We hold that the power of PAGCOR to centralize and
regulate all games of chance, including casinos on land
and sea within the territorial jurisdiction of the
Philippines, remains unimpaired. P.D. 1869 has not been
modified by the Local Government Code, which
empowers the local government units to prevent or
suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree
has the status of a statute that cannot be amended or
nullified by a mere ordinance. Hence, it was not
competent for the Sangguniang Panlungsod of Cagayan
de Oro City to enact Ordinance No. 3353 prohibiting the
use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of
casinos. For all their praiseworthy motives, these
ordinances are contrary to P.D. 1869 and the public
policy announced therein and are therefore ultra
vires and void.
WHEREFORE, the petition is DENIED and the challenged
decision of the respondent Court of Appeals is
AFFIRMED, with costs against the petitioners. It is so
ordered.
Syllabi Class : Constitutional Law|Local
Governments||Gambling|Pleadings and
Practice|Separation of Powers|Gambling|Statutory
Construction|Local Government Code|Statutes|Implied
Repeals|Prohibition|Court of Appeals|Hierarchy of
Courts
Syllabi:
48
1. Constitutional Law; Separation of
Powers; Gambling; The morality of gambling is not a
justiciable issue.+
2. Local Governments; Tests of a valid ordinance.+
3. Local Governments; Gambling; Statutory
Construction; Local Government Code; Under the rule of
noscitur a sociis, a word or phrase should be interpreted
in relation to, or given the same meaning of, words with
which it is associated, and, since the word “gambling” is
associated with “and other prohibited games of chance,”
under Sec. 458 of the Local Government Code, the word
should be read as referring only to illegal gambling.+
4. Local Governments; Gambling; Statutory
Construction; Local Government Code; Statutes; The
ordinances in question contravene P.D. 1869 which has
not been repealed by the Local Government Code.+
5. Local Governments; Gambling; Statutory
Construction; Local Government Code; Statutes;Implied
Repeals; It is a familiar rule that implied repeals are not
lightly presumed in the absence of a clear and
unmistakable showing of such intention.+
6. Local Governments; Gambling; Statutory
Construction; Local Government Code; Statutes;Implied
Repeals; It is a canon of legal hermeneutics that instead
of pitting one statute against another in an inevitably
destructive confrontation, courts must exert every effort
to reconcile them, remembering that both laws deserve a
becoming respect as the handiwork of a coordinate
branch of the government.+
7. Local Governments; Gambling; Statutory
Construction; There are indeed two kinds of gambling, to
wit, the illegal and those authorized by law.+
8. Local Governments; Gambling; The rationale of the
requirement that the ordinances should not contravene a
statute is obvious as municipal governments are only
agents of the national government and that the delegate
cannot be superior to the principal or exercise powers
higher than those of the latter.+
9. Local Governments; Gambling; Congress retains
control of the local government units although in
significantly reduced degree now than under the previous
Constitutions.+
10. Gambling; It is worth remembering that 1) what is
legal is not always moral and 2) the ends do not always
justify the means.+
11. Gambling; The national government (through
PAGCOR) should reexamine and re-evaluate its decision
of imposing the gambling casino on the residents of
Cagayan de Oro City.+
12. Pleadings and Practice; Prohibition; Court of
Appeals; Hierarchy of Courts; The petition for prohibition
should have been initially filed with the Regional Trial
Court, instead of the Court of Appeals.+
13. Constitutional Law; Statutory Construction; A
contravention of a law is not necessarily a contravention
of the constitution.+
14. Gambling; Gambling, even if legalized, would be inimical to the
general welfare of the inhabitants of the City, or of any place for that
matter, accordingly, PAGCOR must consider the valid concerns of the
people of the City of Cagayan de Oro and should not impose its will
upon them in an arbitrary, if not despotic, manner.+
Dispositive Portion:
WHEREFORE, the petition is DENIED and the challenged decision of
the respondent Court of Appeals is AFFIRMED, with costs against the
petitioners. It is so ordered.
G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS
ASSOCIATION, INC., HOTEL DEL MAR INC. and GO
CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-
appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for
respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-
appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of
the lower court in an action for prohibition is whether
Ordinance No. 4760 of the City of Manila is violative of
the due process clause. The lower court held that it is and
adjudged it "unconstitutional, and, therefore, null and
void." For reasons to be more specifically set forth, such
judgment must be reversed, there being a failure of the
requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760
was filed on July 5, 1963 by the petitioners, Ermita-
Malate Hotel and Motel Operators Association, one of its
members, Hotel del Mar Inc., and a certain Go Chiu, who
is "the president and general manager of the second
petitioner" against the respondent Mayor of the City of
Manila who was sued in his capacity as such "charged
with the general power and duty to enforce ordinances
of the City of Manila and to give the necessary orders for
the faithful execution and enforcement of such
ordinances." (par. 1). It was alleged that the petitioner
non-stock corporation is dedicated to the promotion and
protection of the interest of its eighteen (18) members
"operating hotels and motels, characterized as legitimate
businesses duly licensed by both national and city
authorities, regularly paying taxes, employing and giving
livelihood to not less than 2,500 person and representing
an investment of more than P3 million."1 (par. 2). It was
then alleged that on June 13, 1963, the Municipal Board
of the City of Manila enacted Ordinance No. 4760,
49
approved on June 14, 1963 by the then Vice-Mayor
Herminio Astorga, who was at the time acting as Mayor
of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance
were set forth in detail. There was the assertion of its
being beyond the powers of the Municipal Board of the
City of Manila to enact insofar as it would regulate
motels, on the ground that in the revised charter of the
City of Manila or in any other law, no reference is made
to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and
violative of due process insofar as it would impose
P6,000.00 fee per annum for first class motels and
P4,500.00 for second class motels; that the provision in
the same section which would require the owner,
manager, keeper or duly authorized representative of a
hotel, motel, or lodging house to refrain from
entertaining or accepting any guest or customer or
letting any room or other quarter to any person or
persons without his filling up the prescribed form in a
lobby open to public view at all times and in his presence,
wherein the surname, given name and middle name, the
date of birth, the address, the occupation, the sex, the
nationality, the length of stay and the number of
companions in the room, if any, with the name,
relationship, age and sex would be specified, with data
furnished as to his residence certificate as well as his
passport number, if any, coupled with a certification that
a person signing such form has personally filled it up and
affixed his signature in the presence of such owner,
manager, keeper or duly authorized representative, with
such registration forms and records kept and bound
together, it also being provided that the premises and
facilities of such hotels, motels and lodging houses would
be open for inspection either by the City Mayor, or the
Chief of Police, or their duly authorized representatives
is unconstitutional and void again on due process
grounds, not only for being arbitrary, unreasonable or
oppressive but also for being vague, indefinite and
uncertain, and likewise for the alleged invasion of the
right to privacy and the guaranty against self-
incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class
motels such as a telephone in each room, a dining room
or, restaurant and laundry similarly offends against the
due process clause for being arbitrary, unreasonable and
oppressive, a conclusion which applies to the portion of
the ordinance requiring second class motels to have a
dining room; that the provision of Section 2 of the
challenged ordinance prohibiting a person less than 18
years old from being accepted in such hotels, motels,
lodging houses, tavern or common inn unless
accompanied by parents or a lawful guardian and making
it unlawful for the owner, manager, keeper or duly
authorized representative of such establishments to
lease any room or portion thereof more than twice every
24 hours, runs counter to the due process guaranty for
lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty
provided for in Section 4 of the challenged ordinance for
a subsequent conviction would, cause the automatic
cancellation of the license of the offended party, in effect
causing the destruction of the business and loss of its
investments, there is once again a transgression of the
due process clause.
There was a plea for the issuance of preliminary
injunction and for a final judgment declaring the above
ordinance null and void and unenforceable. The lower
court on July 6, 1963 issued a writ of preliminary
injunction ordering respondent Mayor to refrain from
enforcing said Ordinance No. 4760 from and after July 8,
1963.
In the a answer filed on August 3, 1963, there was an
admission of the personal circumstances regarding the
respondent Mayor and of the fact that petitioners are
licensed to engage in the hotel or motel business in the
City of Manila, of the provisions of the cited Ordinance
but a denial of its alleged nullity, whether on statutory or
constitutional grounds. After setting forth that the
petition did fail to state a cause of action and that the
challenged ordinance bears a reasonable relation, to a
proper purpose, which is to curb immorality, a valid and
proper exercise of the police power and that only the
guests or customers not before the court could complain
of the alleged invasion of the right to privacy and the
guaranty against self incrimination, with the assertion
that the issuance of the preliminary injunction ex
parte was contrary to law, respondent Mayor prayed for,
its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there
was submitted a stipulation of facts dated September 28,
1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel
Operators Association, Inc. and Hotel del Mar Inc. are
duly organized and existing under the laws of the
Philippines, both with offices in the City of Manila, while
the petitioner Go Chin is the president and general
manager of Hotel del Mar Inc., and the intervenor Victor
Alabanza is a resident of Baguio City, all having the
capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and
incumbent City Mayor and chief executive of the City of
Manila charged with the general power and duty to
enforce ordinances of the City of Manila and to give the
necessary orders for the faithful execution and
enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the
business of operating hotels and motels in Malate and
Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City
of Manila enacted Ordinance No. 4760, which was
approved on June 14, 1963, by Vice-Mayor Herminio
50
Astorga, then the acting City Mayor of Manila, in the
absence of the respondent regular City Mayor, amending
sections 661, 662, 668-a, 668-b and 669 of the
compilation of the ordinances of the City of Manila
besides inserting therein three new sections. This
ordinance is similar to the one vetoed by the respondent
Mayor (Annex A) for the reasons stated in its 4th
Indorsement dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor
Herminio Astorga was submitted with the proposed
ordinance (now Ordinance 4760) to the Municipal Board,
copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual
income of P101,904.05 from license fees paid by the 105
hotels and motels (including herein petitioners)
operating in the City of Manila.1äwphï1.ñët
Thereafter came a memorandum for respondent on
January 22, 1965, wherein stress was laid on the
presumption of the validity of the challenged ordinance,
the burden of showing its lack of conformity to the
Constitution resting on the party who assails it, citing not
only U.S. v. Salaveria, but likewise applicable American
authorities. Such a memorandum likewise refuted point
by point the arguments advanced by petitioners against
its validity. Then barely two weeks later, on February 4,
1965, the memorandum for petitioners was filed
reiterating in detail what was set forth in the petition,
with citations of what they considered to be applicable
American authorities and praying for a judgment
declaring the challenged ordinance "null and void and
unenforceable" and making permanent the writ of
preliminary injunction issued.
After referring to the motels and hotels, which are
members of the petitioners association, and referring to
the alleged constitutional questions raised by the party,
the lower court observed: "The only remaining issue here
being purely a question of law, the parties, with the nod
of the Court, agreed to file memoranda and thereafter,
to submit the case for decision of the Court." It does
appear obvious then that without any evidence
submitted by the parties, the decision passed upon the
alleged infirmity on constitutional grounds of the
challenged ordinance, dismissing as is undoubtedly right
and proper the untenable objection on the alleged lack
of authority of the City of Manila to regulate motels, and
came to the conclusion that "the challenged Ordinance
No. 4760 of the City of Manila, would be unconstitutional
and, therefore, null and void." It made permanent the
preliminary injunction issued against respondent Mayor
and his agents "to restrain him from enforcing the
ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed.
A decent regard for constitutional doctrines of a
fundamental character ought to have admonished the
lower court against such a sweeping condemnation of
the challenged ordinance. Its decision cannot be allowed
to stand, consistently with what has hitherto been the
accepted standards of constitutional adjudication, in
both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the
absence of any evidence to offset the presumption of
validity that attaches to a challenged statute or
ordinance. As was expressed categorically by Justice
Malcolm: "The presumption is all in favor of validity x x x
. 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
x x x . 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.2
It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to
rebut it is unavoidable, unless the statute or ordinance is
void on its face which is not the case here. The principle
has been nowhere better expressed than in the leading
case of O'Gorman & Young v. Hartford Fire Insurance
Co.,3 where the American Supreme Court through Justice
Brandeis tersely and succinctly summed up the matter
thus: The statute here questioned deals with a subject
clearly within the scope of the police power. We are
asked to declare it void on the ground that the specific
method of regulation prescribed is unreasonable and
hence deprives the plaintiff of due process of law. As
underlying questions of fact may condition the
constitutionality of legislation of this character, the
resumption of constitutionality must prevail in the
absence of some factual foundation of record for
overthrowing the statute." No such factual foundation
being laid in the present case, the lower court deciding
the matter on the pleadings and the stipulation of facts,
the presumption of validity must prevail and the
judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its
face the ordinance is fatally defective as being repugnant
to the due process clause of the Constitution. The mantle
of protection associated with the due process guaranty
does not cover petitioners. This particular manifestation
of a police power measure being specifically aimed to
safeguard public morals is immune from such imputation
of nullity resting purely on conjecture and unsupported
by anything of substance. To hold otherwise would be to
unduly restrict and narrow the scope of police power
which has been properly characterized as the most
essential, insistent and the least limitable of
powers,4 extending as it does "to all the great public
needs."5 It would be, to paraphrase another leading
decision, to destroy the very purpose of the state if it
could be deprived or allowed itself to be deprived of its
51
competence to promote public health, public morals,
public safety and the genera welfare.6 Negatively put,
police power is "that inherent and plenary power in the
State which enables it to prohibit all that is hurt full to
the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance
was precisely enacted to minimize certain practices
hurtful to public morals. The explanatory note of the
Councilor Herminio Astorga included as annex to the
stipulation of facts, speaks of the alarming increase in the
rate of prostitution, adultery and fornication in Manila
traceable in great part to the existence of motels, which
"provide a necessary atmosphere for clandestine entry,
presence and exit" and thus become the "ideal haven for
prostitutes and thrill-seekers." The challenged ordinance
then proposes to check the clandestine harboring of
transients and guests of these establishments by
requiring these transients and guests to fill up a
registration form, prepared for the purpose, in a lobby
open to public view at all times, and by introducing
several other amendatory provisions calculated to
shatter the privacy that characterizes the registration of
transients and guests." Moreover, the increase in the
licensed fees was intended to discourage
"establishments of the kind from operating for purpose
other than legal" and at the same time, to increase "the
income of the city government." It would appear
therefore that the stipulation of facts, far from sustaining
any attack against the validity of the ordinance, argues
eloquently for it.
It is a fact worth noting that this Court has invariably
stamped with the seal of its approval, ordinances
punishing vagrancy and classifying a pimp or procurer as
a vagrant;8 provide a license tax for and regulating the
maintenance or operation of public dance
halls;9 prohibiting gambling;10 prohibiting jueteng;11 and
monte;12 prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the
operation of pinball machines;14 and prohibiting any
person from keeping, conducting or maintaining an
opium joint or visiting a place where opium is smoked or
otherwise used,15 all of which are intended to protect
public morals.
On the legislative organs of the government, whether
national or local, primarily rest the exercise of the police
power, which, it cannot be too often emphasized, is the
power to prescribe regulations to promote the health,
morals, peace, good order, safety and general welfare of
the people. In view of the requirements of due process,
equal protection and other applicable constitutional
guaranties however, the exercise of such police power
insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise
of police power may be considered as either capricious,
whimsical, unjust or unreasonable, a denial of due
process or a violation of any other applicable
constitutional guaranty may call for correction by the
courts.
We are thus led to considering the insistent, almost shrill
tone, in which the objection is raised to the question of
due process.16 There is no controlling and precise
definition of due process. It furnishes though a standard
to which the governmental action should conform in
order that deprivation of life, liberty or property, in each
appropriate case, be valid. What then is the standard of
due process which must exist both as a procedural and a
substantive requisite to free the challenged ordinance, or
any governmental action for that matter, from the
imputation of legal infirmity sufficient to spell its doom?
It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is
thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as
freedom from arbitrariness. It is the embodiment of the
sporting idea of fair play.17 It exacts fealty "to those
strivings for justice" and judges the act of officialdom of
whatever branch "in the light of reason drawn from
considerations of fairness that reflect [democratic]
traditions of legal and political thought."18 It is not a
narrow or "technical conception with fixed content
unrelated to time, place and circumstances,"19 decisions
based on such a clause requiring a "close and perceptive
inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated
narrowly or pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an
ordinance enacted precisely to meet what a municipal
lawmaking body considers an evil of rather serious
proportion an arbitrary and capricious exercise of
authority. It would seem that what should be deemed
unreasonable and what would amount to an abdication
of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To
be more specific, the Municipal Board of the City of
Manila felt the need for a remedial measure. It provided
it with the enactment of the challenged ordinance. A
strong case must be found in the records, and, as has
been set forth, none is even attempted here to attach to
an ordinance of such character the taint of nullity for an
alleged failure to meet the due process requirement. Nor
does it lend any semblance even of deceptive plausibility
to petitioners' indictment of Ordinance No. 4760 on due
process grounds to single out such features as the
increased fees for motels and hotels, the curtailment of
the area of freedom to contract, and, in certain
particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual
license fees provided for by the challenged ordinance for
hotels and motels, 150% for the former and over 200%
52
for the latter, first-class motels being required to pay a
P6,000 annual fee and second-class motels, P4,500
yearly. It has been the settled law however, as far back
as 1922 that municipal license fees could be classified
into those imposed for regulating occupations or regular
enterprises, for the regulation or restriction of non-
useful occupations or enterprises and for revenue
purposes only.22 As was explained more in detail in the
above Cu Unjieng case: (2) Licenses for non-useful
occupations are also incidental to the police power and
the right to exact a fee may be implied from the power
to license and regulate, but in fixing amount of the
license fees the municipal corporations are allowed a
much wider discretion in this class of cases than in the
former, and aside from applying the well-known legal
principle that municipal ordinances must not be
unreasonable, oppressive, or tyrannical, courts have, as
a general rule, declined to interfere with such discretion.
The desirability of imposing restraint upon the number
of persons who might otherwise engage in non-useful
enterprises is, of course, generally an important factor in
the determination of the amount of this kind of license
fee. Hence license fees clearly in the nature of privilege
taxes for revenue have frequently been upheld,
especially in of licenses for the sale of liquors. In fact, in
the latter cases the fees have rarely been declared
unreasonable.23
Moreover in the equally leading case of Lutz v.
Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court that taxation
may be made to implement the state's police power.
Only the other day, this Court had occasion to affirm that
the broad taxing authority conferred by the Local
Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with
the only limitation that the tax so levied is for public
purposes, just and uniform.25
As a matter of fact, even without reference to the wide
latitude enjoyed by the City of Manila in imposing
licenses for revenue, it has been explicitly held in one
case that "much discretion is given to municipal
corporations in determining the amount," here the
license fee of the operator of a massage clinic, even if it
were viewed purely as a police power measure.26 The
discussion of this particular matter may fitly close with
this pertinent citation from another decision of
significance: "It is urged on behalf of the plaintiffs-
appellees that the enforcement of the ordinance could
deprive them of their lawful occupation and means of
livelihood because they can not rent stalls in the public
markets. But it appears that plaintiffs are also dealers in
refrigerated or cold storage meat, the sale of which
outside the city markets under certain conditions is
permitted x x x . And surely, the mere fact, that some
individuals in the community may be deprived of their
present business or a particular mode of earning a living
cannot prevent the exercise of the police power. As was
said in a case, persons licensed to pursue occupations
which may in the public need and interest be affected by
the exercise of the police power embark in these
occupations subject to the disadvantages which may
result from the legal exercise of that power."27
Nor does the restriction on the freedom to contract,
insofar as the challenged ordinance makes it unlawful for
the owner, manager, keeper or duly authorized
representative of any hotel, motel, lodging house,
tavern, common inn or the like, to lease or rent room or
portion thereof more than twice every 24 hours, with a
proviso that in all cases full payment shall be charged, call
for a different conclusion. Again, such a limitation cannot
be viewed as a transgression against the command of
due process. It is neither unreasonable nor arbitrary.
Precisely it was intended to curb the opportunity for the
immoral or illegitimate use to which such premises could
be, and, according to the explanatory note, are being
devoted. How could it then be arbitrary or oppressive
when there appears a correspondence between the
undeniable existence of an undesirable situation and the
legislative attempt at correction. Moreover, petitioners
cannot be unaware that every regulation of conduct
amounts to curtailment of liberty which as pointed out
by Justice Malcolm cannot be absolute. Thus: "One
thought which runs through all these different
conceptions of liberty is plainly apparent. It is this:
'Liberty' as understood in democracies, is not license; it
is 'liberty regulated by law.' Implied in the term is
restraint by law for the good of the individual and for the
greater good of the peace and order of society and the
general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of
the individual is necessarily subject to reasonable
restraint by general law for the common good x x x The
liberty of the citizen may be restrained in the interest of
the public health, or of the public order and safety, or
otherwise within the proper scope of the police
power."28
A similar observation was made by Justice Laurel: "Public
welfare, then, lies at the bottom of the enactment of said
law, and the state in order to promote the general
welfare may interfere with personal liberty, with
property, and with business and occupations. Persons
and property may be subjected to all kinds of restraints
and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this
fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into
slavery. The citizen should achieve the required balance
of liberty and authority in his mind through education
and personal discipline, so that there may be established
53
the resultant equilibrium, which means peace and order
and happiness for all.29
It is noteworthy that the only decision of this Court
nullifying legislation because of undue deprivation of
freedom to contract, People v. Pomar,30 no longer
"retains its virtuality as a living principle. The policy
of laissez faire has to some extent given way to the
assumption by the government of the right of
intervention even in contractual relations affected with
public interest.31 What may be stressed sufficiently is
that if the liberty involved were freedom of the mind or
the person, the standard for the validity of governmental
acts is much more rigorous and exacting, but where the
liberty curtailed affects at the most rights of property,
the permissible scope of regulatory measure is
wider.32 How justify then the allegation of a denial of due
process?
Lastly, there is the attempt to impugn the ordinance on
another due process ground by invoking the principles of
vagueness or uncertainty. It would appear from a recital
in the petition itself that what seems to be the gravamen
of the alleged grievance is that the provisions are too
detailed and specific rather than vague or uncertain.
Petitioners, however, point to the requirement that a
guest should give the name, relationship, age and sex of
the companion or companions as indefinite and
uncertain in view of the necessity for determining
whether the companion or companions referred to are
those arriving with the customer or guest at the time of
the registry or entering the room With him at about the
same time or coming at any indefinite time later to join
him; a proviso in one of its sections which cast doubt as
to whether the maintenance of a restaurant in a motel is
dependent upon the discretion of its owners or
operators; another proviso which from their standpoint
would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof
means a full day's or merely a half-day's rate. It may be
asked, do these allegations suffice to render the
ordinance void on its face for alleged vagueness or
uncertainty? To ask the question is to answer it.
From Connally v. General Construction Co.33 to Adderley
v. Florida,34 the principle has been consistently upheld
that what makes a statute susceptible to such a charge is
an enactment either forbidding or requiring the doing of
an act that men of common intelligence must necessarily
guess at its meaning and differ as to its application. Is this
the situation before us? A citation from Justice Holmes
would prove illuminating: "We agree to all the
generalities about not supplying criminal laws with what
they omit but there is no canon against using common
sense in construing laws as saying what they obviously
mean."35
That is all then that this case presents. As it stands, with
all due allowance for the arguments pressed with such
vigor and determination, the attack against the validity
of the challenged ordinance cannot be considered a
success. Far from it. Respect for constitutional law
principles so uniformly held and so uninterruptedly
adhered to by this Court compels a reversal of the
appealed decision.

Wherefore, the judgment of the lower court is reversed

and the injunction issued lifted forthwith. With costs.

Case Nature : APPEAL from a decision of the Court of

First Instance of Manila.

Syllabi Class : Constitutional Law|Municipal

Corporations|Statutes|Municipal
Corporations|Presumption as to constitutionality of
ordinance|Police power|Due process|Public interest

Syllabi:

1. Constitutional Law; Municipal

Corporations; Presumption as to constitutionality of
ordinance;Evidence is necessary to show invalidity.+

2. Constitutional Law; Police power; Ordinance

regulating hotels, motels, etc.+

3. Constitutional Law; Nature of police power; Judicial

inquiry.+

4. Municipal Corporations; Municipal license fees.+

5. Municipal Corporations; Discretion in fixing license

fees.+

6. Constitutional Law; Due process; Standards of legal

infirmity.+

7. Constitutional Law; Reasonableness of ordinance

regulating hotels, etc.+

8. Constitutional Law; Public interest; Government

interference.+

9. Statutes; When statute is void because of ambiguity.+

Dispositive Portion:

Wherefore, the judgment of the lower court is reversed

and the injunction issued lifted forthwith. With costs.

54

G.R. No. 110249 August 21, 1997
ALFREDO TANO, BALDOMERO TANO,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF
SANGGUNIANG PANLALAWIGAN OF PALAWAN,
namely, VICE-GOVERNOR JOEL T. REYES, JOSE D.
ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON,
ANDRES R. BAACO, NELSON P. PENEYRA, CIPRIANO C.
BARROMA, CLARO E. ORDINARIO, ERNESTO A.
LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S. BAACO,
WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL
P. ACOSTA, CITY MAYOR EDWARD HAGEDORN,
MEMBERS OF SANGGUNIANG PANLUNGSOD NG
PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT,
MEMBERS OF PHILIPPINE NATIONAL POLICE OF
PALAWAN, PROVINCIAL AND CITY PROSECUTORS OF
PALAWAN and PUERTO PRINCESA CITY, and ALL JUDGES
OF PALAWAN, REGIONAL, MUNICIPAL AND
METROPOLITAN, respondents.
DAVIDE, JR., J.:
Petitioners caption their petition as one for "Certiorari,
Injunction With Preliminary and Mandatory Injunction,
with Prayer for Temporary Restraining Order" and pray
that this Court: (1) declare as unconstitutional: (a)
Ordinance No. 15-92, dated 15 December 1992, of the
Sangguniang Panglungsod of Puerto Princesa; (b) Office
Order No. 23, Series of 1993, dated 22 January 1993,
issued by Acting City Mayor Amado L. Lucero of Puerto
Princesa City; and (c) Resolution No. 33, Ordinance No. 2,
Series of 1993, dated 19 February 1993, of the
Sangguniang Panlalawigan of Palawan; (2) enjoin the
enforcement thereof; and (3) restrain respondents
Provincial and City Prosecutors of Palawan and Puerto
Princesa City and Judges of the Regional Trial Courts,
Metropolitan Trial Courts 1 and Municipal Circuit Trial
Courts in Palawan from assuming jurisdiction over and
hearing cases concerning the violation of the Ordinances
and of the Office Order.
More appropriately, the petition is, and shall be treated
as, a special civil action for certiorari and prohibition.
55
The following is petitioners' summary of the factual
antecedents giving rise to the petition:
1. On December 15, 1992, the Sangguniang Panlungsod
ng Puerto Princesa City enacted Ordinance No. 15-92
which took effect on January 1, 1993 entitled: "AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM
JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES
THEREOF", the full text of which reads as follows:
Sec. 1. Title of the Ordinance. — This Ordinance is
entitled: AN ORDINANCE BANNING THE SHIPMENT OF
ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA
CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND
PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER
PURPOSES THEREOF.
Sec. 2. Purpose, Scope and Coverage. — To effectively
free our City Sea Waters from Cyanide and other
Obnoxious substance[s], and shall cover all persons
and/or entities operating within and outside the City of
Puerto Princesa who is are (sic) directly or indirectly in
the business or shipment of live fish and lobster outside
the City.
Sec. 3. Definition of terms. — For purpose of this
Ordinance the following are hereby defined:
A. SEA BASS — A kind of fish under the family of
Centropomidae, better known as APAHAP;
B. CATFISH — A kind of fish under the family of
Plotosidae, better known as HITO-HITO;
C. MUDFISH — A kind of fish under the family of
Orphicaphalisae better known as DALAG;
D. ALL LIVE FISH — All alive, breathing not necessarily
moving of all specie[s] use[d] for food and for aquarium
purposes.
E. LIVE LOBSTER — Several relatively, large marine
crusteceans [sic] of the genus Homarus that are alive and
breathing not necessarily moving.
Sec. 4. It shall be unlawful [for] any person or any
business enterprise or company to ship out from Puerto
Princesa City to any point of destination either via aircraft
or seacraft of any live fish and lobster except SEA BASS,
CATFISH, MUDFISH, AND MILKFISH FRIES.
Sec. 5. Penalty Clause. — Any person/s and or business
entity violating this Ordinance shall be penalized with a
fine of not more than P5,000.00 or imprisonment of not
more than twelve (12) months, cancellation of their
permit to do business in the City of Puerto Princesa or all
of the herein stated penalties, upon the discretion of the
court.
Sec. 6. If the owner and/or operator of the establishment
found violating the provisions of this ordinance is a
corporation or a partnership, the penalty prescribed in
Section 5 hereof shall be imposed upon its president
and/or General Manager or Managing Partner and/or
Manager, as the case maybe [sic].
Sec. 7. Any existing ordinance or any provision of any
ordinance inconsistent to [sic] this ordinance is deemed
repealed.
Sec. 8. This Ordinance shall take effect on January 1,
1993.
SO ORDAINED.
xxx xxx xxx
2. To implement said city ordinance, then Acting City
Mayor Amado L. Lucero issued Office Order No. 23,
Series of 1993 dated January 22, 1993 which reads as
follows:
In the interest of public service and for purposes of City
Ordinance No. PD 426-14-74, otherwise known as "AN
ORDINANCE REQUIRING ANY PERSON ENGAGED OR
INTENDING TO ENGAGE IN ANY BUSINESS, TRADE,
OCCUPATION, CALLING OR PROFESSION OR HAVING IN
HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A
PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A
MAYOR'S PERMIT" and "City Ordinance No. 15-92, AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM
JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby
authorized and directed to check or conduct necessary
inspections on cargoes containing live fish and lobster
being shipped out from the Puerto Princesa Airport,
Puerto Princesa Wharf or at any port within the
jurisdiction of the City to any point of destinations [sic]
either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by
this Office and the shipment is covered by invoice or
clearance issued by the local office of the Bureau of
Fisheries and Aquatic Resources and as to compliance
with all other existing rules and regulations on the
matter.
Any cargo containing live fish and lobster without the
required documents as stated herein must be held for
proper disposition.
In the pursuit of this Order, you are hereby authorized to
coordinate with the PAL Manager, the PPA Manager, the
local PNP Station and other offices concerned for the
needed support and cooperation. Further, that the usual
courtesy and diplomacy must be observed at all times in
the conduct of the inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan,
Provincial Government of Palawan enacted Resolution
No. 33 entitled: "A RESOLUTION PROHIBITING THE
56
CATCHING, GATHERING, POSSESSING, BUYING, SELLING
AND SHIPMENT OF LIVE MARINE CORAL DWELLING
AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS
FASCIATUS (SUNO). CROMILEPTES ALTIVELIS(PANTHER
OR SENORITA), LOBSTER BELOW 200 GRAMS AND
SPAWNING, TRIDACNA GIGAS(TAKLOBO), PINCTADA
MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT
CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR
MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL
AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND
COMING FROM PALAWAN WATERS", the full text of
which reads as follows:
WHEREAS, scientific and factual researches [sic] and
studies disclose that only five (5) percent of the corals of
our province remain to be in excellent condition as [a]
habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally
due to illegal fishing activities like dynamite fishing,
sodium cyanide fishing, use of other obnoxious
substances and other related activities;
WHEREAS, there is an imperative and urgent need to
protect and preserve the existence of the remaining
excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality
within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A.
7160 otherwise known as the Local Government Code of
1991 empowers the Sangguniang Panlalawigan to
protect the environment and impose appropriate
penalties [upon] acts which endanger the environment
such as dynamite fishing and other forms of destructive
fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P.
Peneyra and upon unanimous decision of all the
members present;
Be it resolved as it is hereby resolved, to approve
Resolution No. 33, Series of 1993 of the Sangguniang
Panlalawigan and to enact Ordinance No. 2 for the
purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN
IN SESSION ASSEMBLED:
Sec. 1. TITLE — This Ordinance shall be known as an
"Ordinance Prohibiting the catching, gathering,
possessing, buying, selling and shipment of live marine
coral dwelling aquatic organisms, to wit: 1. Family:
Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno) 3.
Cromileptes altivelis (Panther or Senorita), lobster below
200 grams and spawning), 4. Tridacna Gigas (Taklobo), 5.
Pinctada Margaretefera (Mother Pearl, Oysters, Giant
Clams and other species), 6. Penaeus Monodon (Tiger
Prawn-breeder size or mother), 7. Epinephelus Suillus
(Loba or Green Grouper) and 8. Family: Balistidae
(T[r]opical Aquarium Fishes) for a period of five (5) years
in and coming from Palawan Waters.
Sec. II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). 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.
2. Sec. 5-A (R.A. 7160). 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 government units. "Any fair and reasonable doubts
as to the existence of the power shall be interpreted in
favor of the Local Government Unit concerned."
3. Sec. 5-C (R.A. 7160). The general welfare provisions in
this Code shall be liberally interpreted to give more
powers to local government units in accelerating
economic development and upgrading the quality of life
for the people in the community.
4. Sec. 16 (R.A. 7160). 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.
Sec. III. DECLARATION OF POLICY. — It is hereby declared
to be the policy of the Province of Palawan to protect and
conserve the marine resources of Palawan not only for
the greatest good of the majority of the present
generation but with [the] proper perspective and
consideration of [sic] their prosperity, and to attain this
end, the Sangguniang Panlalawigan henceforth declares
that is (sic) shall be unlawful for any person or any
business entity to engage in catching, gathering,
possessing, buying, selling and shipment of live marine
coral dwelling aquatic organisms as enumerated in
Section 1 hereof in and coming out of Palawan Waters
for a period of five (5) years;
Sec. IV. PENALTY CLAUSE. — Any person and/or business
entity violating this Ordinance shall be penalized with a
fine of not more than Five Thousand Pesos (P5,000.00),
Philippine Currency, and/or imprisonment of six (6)
57
months to twelve (12) months and confiscation and
forfeiture of paraphernalias [sic] and equipment in favor
of the government at the discretion of the Court;
Sec. V. SEPARABILITY CLAUSE. — If for any reason, a
Section or provision of this Ordinance shall be held as
unconditional [sic] or invalid, it shall not affect the other
provisions hereof.
Sec. VI. REPEALING CLAUSE. — Any existing Ordinance or
a provision of any ordinance inconsistent herewith is
deemed modified, amended or repealed.
Sec. VII. EFFECTIVITY — This Ordinance shall take effect
ten (10) days after its publication.
SO ORDAINED.
xxx xxx xxx
4. The respondents implemented the said ordinances,
Annexes "A" and "C" hereof thereby depriving all the
fishermen of the whole province of Palawan and the City
of Puerto Princesa of their only means of livelihood and
the petitioners Airline Shippers Association of Palawan
and other marine merchants from performing their
lawful occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes
Midello, Angel de Mesa, Eulogio Tremocha, and Felipe
Ongonion, Jr. were even charged criminally under
criminal case no. 93-05-C in the 1st Municipal Circuit Trial
Court of Cuyo-Agutaya-Magsaysay, an original carbon
copy of the criminal complaint dated April 12, 1993 is
hereto attached as Annex "D"; while xerox copies are
attached as Annex "D" to the copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other
hand, were charged by the respondent PNP with the
respondent City Prosecutor of Puerto Princess City, a
xerox copy of the complaint is hereto attached as Annex
"E";
Without seeking redress from the concerned local
government units, prosecutor's office and courts,
petitioners directly invoked our original jurisdiction by
filing this petition on 4 June 1993. In sum, petitioners
contend that:
First, the Ordinances deprived them of due process of
law, their livelihood, and unduly restricted them from the
practice of their trade, in violation of Section 2, Article XII
and Sections 2 and 7 of Article XIII of the 1987
Constitution.
Second, Office Order No. 23 contained no regulation nor
condition under which the Mayor's permit could be
granted or denied; in other words, the Mayor had the
absolute authority to determine whether or not to issue
the permit.
Third, as Ordinance No. 2 of the Province of Palawan
"altogether prohibited the catching, gathering,
possession, buying, selling and shipping of live marine
coral dwelling organisms, without any distinction
whether it was caught or gathered through lawful fishing
method," the Ordinance took away the right of
petitioners-fishermen to earn their livelihood in lawful
ways; and insofar as petitioners-members of Airline
Shippers Association are concerned, they were unduly
prevented from pursuing their vocation and entering
"into contracts which are proper, necessary, and
essential to carry out their business endeavors to a
successful conclusion."
Finally, as Ordinance No. 2 of the Sangguniang
Panlalawigan is null and void, the criminal cases based
thereon against petitioners Tano and the others have to
be dismissed.
In the Resolution of 15 June 1993 we required
respondents to comment on the petition, and furnished
the Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public
respondents Governor Socrates and Members of the
Sangguniang Panlalawigan of Palawan defended the
validity of Ordinance No. 2, Series of 1993, as a valid
exercise of the Provincial Government's power under the
general welfare clause (Section 16 of the Local
Government Code of 1991 [hereafter, LGC]), and its
specific power to protect the environment and impose
appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms
of destructive fishing under Section 447 (a) (1) (vi),
Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the
LGC. They claimed that in the exercise of such powers,
the Province of Palawan had "the right and responsibility
. . . to insure that the remaining coral reefs, where fish
dwells [sic], within its territory remain healthy for the
future generation." The Ordinance, they further
asserted, covered only live marine coral dwelling aquatic
organisms which were enumerated in the ordinance and
excluded other kinds of live marine aquatic organisms
not dwelling in coral reefs; besides the prohibition was
for only five (5) years to protect and preserve the pristine
coral and allow those damaged to regenerate.
Aforementioned respondents likewise maintained that
there was no violation of the due process and equal
protection clauses of the Constitution. As to the former,
public hearings were conducted before the enactment of
the Ordinance which, undoubtedly, had a lawful purpose
and employed reasonable means; while as to the latter,
a substantial distinction existed "between a fisherman
who catches live fish with the intention of selling it live,
and a fisherman who catches live fish with no intention
at all of selling it live," i.e., "the former uses sodium
cyanide while the latter does not." Further, the
Ordinance applied equally to all those belonging to one
class.
On 25 October 1993 petitioners filed an Urgent Plea for
the Immediate Issuance of a Temporary Restraining
Order, claiming that despite the pendency of this case,
58
Branch 50 of the Regional Trial Court of Palawan was
bent on proceeding with Criminal Case No. 11223 against
petitioners Danilo Tano, Alfredo Tano, Eulogio
Tremocha, Romualdo Tano, Baldomero Tano, Andres
Linijan and Angel de Mesa for violation of Ordinance No.
2 of the Sangguniang Panlalawigan of Palawan. Acting on
said plea, we issued on 11 November 1993 a temporary
restraining order directing Judge Angel Miclat of said
court to cease and desist from proceeding with the
arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor
General from filing a comment, considering that as
claimed by said office in its Manifestation of 28 June
1994, respondents were already represented by counsel.
The rest of the respondents did not file any comment on
the petition.
In the resolution of 15 September 1994, we resolved to
consider the comment on the petition as the Answer,
gave due course to the petition and required the parties
to submit their respective memoranda. 2
On 22 April 1997 we ordered impleaded as party
respondents the Department of Agriculture and the
Bureau of Fisheries and Aquatic Resources and required
the Office of the Solicitor General to comment on their
behalf. But in light of the latter's motion of 9 July 1997
for an extension of time to file the comment which would
only result in further delay, we dispensed with said
comment.
After due deliberation on the pleadings filed, we resolved
to dismiss this petition for want of merit, and on 22 July
1997, assigned it to the ponente to write the opinion of
the Court.
I
There are actually two sets of petitioners in this case. The
first is composed of Alfredo Tano, Baldomero Tano,
Danilo Tano, Romualdo Tano, Teocenes Midello, Angel
de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres
Linijan, and Felimon de Mesa, who were criminally
charged with violating Sangguniang Panlalawigan
Resolution No. 33 and Ordinance No. 2, Series of 1993,
of the Province of Palawan, in Criminal Case No. 93-05-C
of the 1st Municipal Circuit Trial Court (MCTC) of
Palawan; 3 and Robert Lim and Virginia Lim who were
charged with violating City Ordinance No. 15-92 of
Puerto Princesa City and Ordinance No. 2, Series of 1993,
of the Province of Palawan before the Office of the City
Prosecutor of Puerto Princesa. 4 All of them, with the
exception of Teocenes Midello, Felipe Ongonion, Jr.,
Felimon de Mesa, Robert Lim and Virginia Lim, are
likewise the accused in Criminal Case No. 11223 for the
violation of Ordinance No. 2 of the Sangguniang
Panlalawigan of Palawan, pending before Branch 50 of
the Regional Trial Court of Palawan. 5
The second set of petitioners is composed of the rest of
the petitioners numbering seventy-seven (77), all of
whom, except the Airline Shippers Association of
Palawan — an alleged private association of several
marine merchants — are natural persons who claim to
be fishermen.
The primary interest of the first set of petitioners is, of
course, to prevent the prosecution, trial and
determination of the criminal cases until the
constitutionality or legality of the Ordinances they
allegedly violated shall have been resolved. The second
set of petitioners merely claim that being fishermen or
marine merchants, they would be adversely affected by
the ordinance's.
As to the first set of petitioners, this special civil
for certiorari must fail on the ground of prematurity
amounting to a lack of cause of action. There is no
showing that said petitioners, as the accused in the
criminal cases, have filed motions to quash the
informations therein and that the same were denied. The
ground available for such motions is that the facts
charged therein do not constitute an offense because the
ordinances in question are unconstitutional. 6It cannot
then be said that the lower courts acted without or in
excess of jurisdiction or with grave abuse of discretion to
justify recourse to the extraordinary remedy
of certiorari or prohibition. It must further be stressed
that even if petitioners did file motions to quash, the
denial thereof would not forthwith give rise to a cause of
action under Rule 65 of the Rules of Court. The general
rule is that where a motion to quash is denied, the
remedy therefrom is not certiorari, but for the party
aggrieved thereby to go to trial without prejudice to
reiterating special defenses involved in said motion, and
if, after trial on the merits an adverse decision is
rendered, to appeal therefrom in the manner authorized
by law. 7 And, even where in an exceptional
circumstance such denial may be the subject of a special
civil action for certiorari, a motion for reconsideration
must have to be filed to allow the court concerned an
opportunity to correct its errors, unless such motion may
be dispensed with because of existing exceptional
circumstances. 8 Finally, even if a motion for
reconsideration has been filed and denied, the remedy
under Rule 65 is still unavailable absent any showing of
the grounds provided for in Section 1 thereof. 9 For
obvious reasons, the petition at bar does not, and could
not have, alleged any of such grounds.
As to the second set of petitioners, the instant petition is
obviously one for DECLARATORY RELIEF, i.e., for a
declaration that the Ordinances in question are a "nullity
. . . for being unconstitutional."10 As such, their petition
must likewise fail, as this Court is not possessed of
original jurisdiction over petitions for declaratory relief
even if only questions of law are involved,11 it being
settled that the Court merely exercises appellate
jurisdiction over such petitions.12
59
II
Even granting arguendo that the first set of petitioners
have a cause of action ripe for the extraordinary writ
of certiorari, there is here a clear disregard of the
hierarchy of courts, and no special and important reason
or exceptional and compelling circumstance has been
adduced why direct recourse to us should be allowed.
While we have concurrent jurisdiction with Regional Trial
courts and with the Court of Appeals to issue writs
of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such
concurrence gives petitioners no unrestricted freedom of
choice of court forum, so we held in People
v. Cuaresma.13
This concurrence of jurisdiction is not . . . to be taken as
according to parties seeking any of the writs an absolute
unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all
hierarchy of courts. That hierarchy is determinative of
the venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that
judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court's
original jurisdiction to issue these writs should be
allowed only when there are special and important
reasons therefor, clearly and specifically set out in the
petition. This is established policy. It is a policy necessary
to prevent inordinate demands upon the Court's time
and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further
over-crowding of the Court's docket. . . .
The Court feels the need to reaffirm that policy at this
time, and to enjoin strict adherence thereto in the light
of what it perceives to be a growing tendency on the part
of litigants and lawyers to have their applications for the
so-called extraordinary writs, and sometimes even their
appeals, passed upon and adjudicated directly and
immediately by the highest tribunal of the land. . . .
In Santiago v. Vasquez,14 this Court forcefully expressed
that the propensity of litigants and lawyers to disregard
the hierarchy of courts must be put to a halt, not only
because of the imposition upon the precious time of this
Court, but also because of the inevitable and resultant
delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the
lower court, the proper forum under the rules of
procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We reiterated "the
judicial policy that this Court will not entertain direct
resort to it unless the redress desired cannot be obtained
in the appropriate courts or where exceptional and
compelling circumstances justify availment of a remedy
within and calling for the exercise of [its] primary
jurisdiction."
III
Notwithstanding the foregoing procedural obstacles
against the first set of petitioners, we opt to resolve this
case on its merits considering that the lifetime of the
challenged Ordinances is about to end. Ordinance No.
15-92 of the City of Puerto Princesa is effective only up
to 1 January 1998, while Ordinance No. 2 of the Province
of Palawan, enacted on 19 February 1993, is effective for
only five (5) years. Besides, these Ordinances were
undoubtedly enacted in the exercise of powers under the
new LGC relative to the protection and preservation of
the environment and are thus novel and of paramount
importance. No further delay then may be allowed in the
resolution of the issues raised.
It is of course settled that laws (including ordinances
enacted by local government units) enjoy the
presumption of constitutionality. 15 To overthrow this
presumption, there must be a clear and unequivocal
breach of the Constitution, not merely a doubtful or
argumentative contradiction. In short, the conflict with
the Constitution must be shown beyond reasonable
doubt.16 Where doubt exists, even if well-founded, there
can be no finding of unconstitutionality. To doubt is to
sustain.17
After a scrutiny of the challenged Ordinances and the
provisions of the Constitution petitioners claim to have
been violated, we find petitioners' contentions baseless
and so hold that the former do not suffer from any
infirmity, both under the Constitution and applicable
laws.
Petitioners specifically point to Section 2, Article XII and
Sections 2 and 7, Article XIII of the Constitution as having
been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Sec. 2. . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the
commitment to create economic opportunities based on
freedom of initiative and self-reliance.
xxx xxx xxx
60
Sec. 7. The State shall protect the rights of subsistence
fishermen, especially of local communities, to the
preferential use of the communal marine and fishing
resources, both inland and offshore. It shall provide
support to such fishermen through appropriate
technology and research, adequate financial, production,
and marketing assistance, and other services. The State
shall also protect, develop, and conserve such resources.
The protection shall extend to offshore fishing grounds
of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in
the utilization of marine and fishing resources.
There is absolutely no showing that any of the petitioners
qualifies as a subsistence or marginal fisherman. In their
petition, petitioner Airline Shippers Association of
Palawan is self-described as "a private association
composed of Marine Merchants;" petitioners Robert Lim
and Virginia Lim, as "merchants;" while the rest of the
petitioners claim to be "fishermen," without any
qualification, however, as to their status.
Since the Constitution does not specifically provide a
definition of the terms "subsistence" or "marginal"
fishermen,18 they should be construed in their general
and ordinary sense. A marginal fisherman is an individual
engaged in fishing whose margin of return or reward in
his harvest of fish as measured by existing price levels is
barely sufficient to yield a profit or cover the cost of
gathering the fish,19 while a subsistence fisherman is one
whose catch yields but the irreducible minimum for his
livelihood.20 Section 131(p) of the LGC (R.A. No. 7160)
defines a marginal farmer or fisherman as "an individual
engaged in subsistence farming or fishing which shall be
limited to the sale, barter or exchange of agricultural or
marine products produced by himself and his immediate
family." It bears repeating that nothing in the record
supports a finding that any petitioner falls within these
definitions.
Besides, Section 2 of Article XII aims primarily not to
bestow any right to subsistence fishermen, but to lay
stress on the duty of the State to protect the nation's
marine wealth. What the provision merely recognizes is
that the State may allow, by law, cooperative fish
farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays and lagoons. Our survey
of the statute books reveals that the only provision of law
which speaks of a preferential right of marginal
fishermen is Section 149 of the LGC, which pertinently
provides:
Sec. 149. Fishery Rentals, Fees and Charges. — . . .
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster,
mussels or other aquatic beds or bangus fry areas, within
a definite zone of the municipal waters, as determined
by it: Provided, however, That duly registered
organizations and cooperatives of marginal fishermen
shall have the preferential right to such fishery privileges
....
In a Joint Administrative Order No. 3 dated 25 April 1996,
the Secretary of the Department of Agriculture and the
Secretary of the Department of Interior and Local
Government prescribed guidelines concerning the
preferential treatment of small fisherfolk relative to the
fishery right mentioned in Section 149. This case,
however, does not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the
use of communal marine and fishing resources, but of
their protection, development and conservation. As
hereafter shown, the ordinances in question are meant
precisely to protect and conserve our marine resources
to the end that their enjoyment may be guaranteed not
only for the present generation, but also for the
generations to come.
The so-called "preferential right" of subsistence or
marginal fishermen to the use of marine resources is not
at all absolute. In accordance with the Regalian Doctrine,
marine resources belong to the State, and, pursuant to
the first paragraph of Section 2, Article XII of the
Constitution, their "exploration, development and
utilization . . . shall be under the full control and
supervision of the State." Moreover, their mandated
protection, development and conservation as necessarily
recognized by the framers of the Constitution, imply
certain restrictions on whatever right of enjoyment there
may be in favor of anyone. Thus, as to the curtailment of
the preferential treatment of marginal fishermen, the
following exchange between Commissioner Francisco
Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took
place at the plenary session of the Constitutional
Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would
not raise the hopes of our people, and afterwards fail in
the implementation. How will this be implemented? Will
there be a licensing or giving of permits so that
government officials will know that one is really a
marginal fisherman? Or if policeman say that a person is
not a marginal fisherman, he can show his permit, to
prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as
this is concerned and this particular question could be
tackled when we discuss the Article on Local
Governments — whether we will leave to the local
governments or to Congress on how these things will be
implemented. But certainly, I think our congressmen and
our local officials will not be bereft of ideas on how to
implement this mandate.
xxx xxx xxx
61
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can
go anywhere in the Philippines and fish in any fishing
grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws
that may be passed, may be existing or will be
passed.21 (emphasis supplied)
What must likewise be borne in mind is the state policy
enshrined in the Constitution regarding the duty of the
State to protect and advance the right of the people to a
balanced and healthful ecology in accord with the
rhythm and harmony of nature. 22 On this score, in Oposa
v. Factoran, 23 this Court declared:
While the right to a balanced and healthful ecology is to
be found under the Declaration of Principles the State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation
— aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution
for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting
their continuing importance and imposing upon the state
a solemn obligation to preserve the first and protect and
advance the second, the day would not be too far when
all else would be lost not only for the present generation,
but also for those to come — generations which stand to
inherit nothing but parched earth incapable of sustaining
life.
The right to a balanced and healthful ecology carries with
it a correlative duty to refrain from impairing the
environment. . . .
The LGC provisions invoked by private respondents
merely seek to give flesh and blood to the right of the
people to a balanced and healthful ecology. In fact, the
General Welfare Clause, expressly mentions this right:
Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants. (emphasis supplied).
Moreover, Section 5(c) of the LGC explicitly mandates
that the general welfare provisions of the LGC "shall be
liberally interpreted to give more powers to the local
government units in accelerating economic development
and upgrading the quality of life for the people of the
community."
The LGC vests municipalities with the power to grant
fishery privileges in municipal waters and impose rentals,
fees or charges therefor; to penalize, by appropriate
ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute any violation of the
provisions of applicable fishery laws.24 Further, the
sangguniang bayan, the sangguniang panlungsod and the
sangguniang panlalawigan are directed to enact
ordinances for the general welfare of the municipality
and its inhabitants, which shall include, inter alia,
ordinances that "[p]rotect the environment and impose
appropriate penalties for acts which endanger the
environment such as dynamite fishing and other forms of
destructive fishing . . . and such other activities which
result in pollution, acceleration of eutrophication of
rivers and lakes, or of ecological
imbalance."25
Finally, the centerpiece of LGC is the system of
decentralization26 as expressly mandated by the
Constitution.27 Indispensable to decentralization
is devolution and the LGC expressly provides that "[a]ny
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."28 Devolution refers to the
act by which the National Government confers power
and authority upon the various local government units to
perform specific functions and responsibilities.29
One of the devolved powers enumerated in the section
of the LGC on devolution is the enforcement of fishery
laws in municipal waters including the conservation of
mangroves.30 This necessarily includes the enactment of
ordinances to effectively carry out such fishery laws
within the municipal waters.
The term "municipal waters," in turn, includes not only
streams, lakes, and tidal waters within the municipality,
not being the subject of private ownership and not
comprised within the national parks, public forest,
62
timber lands, forest reserves, or fishery reserves, but also
marine waters included between two lines drawn
perpendicularly to the general coastline from points
where the boundary lines of the municipality or city
touch the sea at low tide and a third line parallel with the
general coastline and fifteen kilometers from
it.31 Under P.D. No. 704, the marine waters included in
municipal waters is limited to three nautical miles from
the general coastline using the above perpendicular lines
and a third parallel line.
These "fishery laws" which local government units may
enforce under Section 17(b)(2)(i) in municipal waters
include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter
alia, authorizes the establishment of a "closed season" in
any Philippine water if necessary for conservation or
ecological purposes; (3) P.D. No. 1219 which provides for
the exploration, exploitation, utilization and
conservation of coral resources; (4) R.A. No. 5474, as
amended by B.P. Blg. 58, which makes it unlawful for any
person, association or corporation to catch or cause to
be caught, sell, offer to sell, purchase, or have in
possession any of the fish specie called gobiidae or
"ipon" during closed season; and (5) R.A. No. 6451 which
prohibits and punishes electrofishing, as well as various
issuances of the BFAR.
To those specifically devolved insofar as the control and
regulation of fishing in municipal waters and the
protection of its marine environment are concerned,
must be added the following:
1. Issuance of permits to construct fish cages within
municipal waters;
2. Issuance of permits to gather aquarium fishes within
municipal waters;
3. Issuance of permits to gather kapis shells within
municipal waters;
4. Issuance of permits to gather/culture shelled mollusks
within municipal waters;
5. Issuance of licenses to establish seaweed farms within
municipal waters;
6. Issuance of licenses to establish culture pearls within
municipal waters;
7. Issuance of auxiliary invoice to transport fish and
fishery products; and
8. Establishment of "closed season" in municipal waters.
These functions are covered in the Memorandum of
Agreement of 5 April 1994 between the Department of
Agriculture and the Department of Interior and Local
Government.
In light then of the principles of decentralization and
devolution enshrined in the LGC and the powers granted
therein to local government units under Section 16 (the
General Welfare Clause), and under Sections 149, 447(a)
(1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which
unquestionably involve the exercise of police power, the
validity of the questioned Ordinances cannot be
doubted.
Parenthetically, we wish to add that these Ordinances
find full support under R.A. No. 7611, otherwise known
as the Strategic Environmental Plan (SEP) for Palawan
Act, approved on 19 June 1992. This statute adopts a
"comprehensive framework for the sustainable
development of Palawan compatible with protecting and
enhancing the natural resources and endangered
environment of the province," which "shall serve to
guide the local government of Palawan and the
government agencies concerned in the formulation and
implementation of plans, programs and projects
affecting said province."32
At this time then, it would be appropriate to determine
the relation between the assailed Ordinances and the
aforesaid powers of the Sangguniang Panlungsod of the
City of Puerto Princesa and the Sangguniang
Panlalawigan of the Province of Palawan to protect the
environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or
declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two
principal objectives or purposes: (1) to establish a "closed
season" for the species of fish or aquatic animals covered
therein for a period of five years; and (2) to protect the
coral in the marine waters of the City of Puerto Princesa
and the Province of Palawan from further destruction
due to illegal fishing activities.
The accomplishment of the first objective is well within
the devolved power to enforce fishery laws in municipal
waters, such as P.D. No. 1015, which allows the
establishment of "closed seasons." The devolution of
such power has been expressly confirmed in the
Memorandum of Agreement of 5 April 1994 between the
Department of Agriculture and the Department of
Interior and Local Government.
The realization of the second objective clearly falls within
both the general welfare clause of the LGC and the
express mandate thereunder to cities and provinces to
protect the environment and impose appropriate
penalties for acts which endanger the environment.33
The destruction of coral reefs results in serious, if not
irreparable, ecological imbalance, for coral reefs are
among nature's life-support systems.34 They collect,
retain and recycle nutrients for adjacent nearshore areas
such as mangroves, seagrass beds, and reef flats; provide
food for marine plants and animals; and serve as a
protective shelter for aquatic organisms.35 It is said that
"[e]cologically, the reefs are to the oceans what forests
are to continents: they are shelter and breeding grounds
for fish and plant species that will disappear without
them."36
63
The prohibition against catching live fish stems, in part,
from the modern phenomenon of live-fish trade which
entails the catching of so-called exotic species of tropical
fish, not only for aquarium use in the West, but also for
"the market for live banquet fish [which] is virtually
insatiable in ever more affluent Asia.37 These exotic
species are coral-dwellers, and fishermen catch them by
"diving in shallow water with corraline habitats and
squirting sodium cyanide poison at passing fish directly
or onto coral crevices; once affected the fish are
immobilized [merely stunned] and then scooped by
hand."38 The diver then surfaces and dumps his catch
into a submerged net attached to the skiff. Twenty
minutes later, the fish can swim normally. Back on shore,
they are placed in holding pens, and within a few weeks,
they expel the cyanide from their system and are ready
to be hauled. They are then placed in saltwater tanks or
packaged in plastic bags filled with seawater for
shipment by air freight to major markets for live food
fish.39 While the fish are meant to survive, the opposite
holds true for their former home as "[a]fter the
fisherman squirts the cyanide, the first thing to perish is
the reef algae, on which fish feed. Days later, the living
coral starts to expire. Soon the reef loses its function as
habitat for the fish, which eat both the algae and
invertebrates that cling to the coral. The reef becomes an
underwater graveyard, its skeletal remains brittle,
bleached of all color and vulnerable to erosion from the
pounding of the waves."40 It has been found that cyanide
fishing kills most hard and soft corals within three
months of repeated application.41
The nexus then between the activities barred by
Ordinance No. 15-92 of the City of Puerto Princesa and
the prohibited acts provided in Ordinance No. 2, Series
of 1993 of the Province of Palawan, on one hand, and the
use of sodium cyanide, on the other, is painfully obvious.
In sum, the public purpose and reasonableness of the
Ordinances may not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting
City Mayor Amado L. Lucero of the City of Puerto
Princesa, we find nothing therein violative of any
constitutional or statutory provision. The Order refers to
the implementation of the challenged ordinance and is
not the Mayor's Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo
relies upon the lack of authority on the part of the
Sangguniang Panglungsod of Puerto Princesa to enact
Ordinance No. 15, Series of 1992, on the theory that the
subject thereof is within the jurisdiction and
responsibility of the Bureau of Fisheries and Aquatic
Resources (BFAR) under P.D. No. 704, otherwise known
as the Fisheries Decree of 1975; and that, in any event,
the Ordinance is unenforceable for lack of approval by
the Secretary of the Department of Natural Resources
(DNR), likewise in accordance with P.D. No. 704.
The majority is unable to accommodate this view. The
jurisdiction and responsibility of the BFAR under P.D. No.
704, over the management, conservation, development,
protection, utilization and disposition of all fishery and
aquatic resources of the country is not all-encompassing.
First, Section 4 thereof excludes from such jurisdiction
and responsibility municipal waters, which shall be under
the municipal or city government concerned, except
insofar as fishpens and seaweed culture in municipal
centers are concerned. This section provides, however,
that all municipal or city ordinances and resolutions
affecting fishing and fisheries and any disposition
thereunder shall be submitted to the Secretary of the
Department of Natural Resources for appropriate action
and shall have full force and effect only upon his
approval.42
Second, it must at once be pointed out that the BFAR is
no longer under the Department of Natural Resources
(now Department of Environment and Natural
Resources). Executive Order No. 967 of 30 June 1984
transferred the BFAR from the control and supervision of
the Minister (formerly Secretary) Of Natural Resources to
the Ministry of Agriculture and Food (MAF) and
converted it into a mere staff agency thereof, integrating
its functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which
reorganized the MAF, the BFAR was retained as an
attached agency of the MAF. And under the
Administrative Code of 1987,43 the BFAR is placed under
the Title concerning the Departm/ent of Agriculture.44
Therefore, it is incorrect to say that the challenged
Ordinance of the City of Puerto Princesa is invalid or
unenforceable because it was not approved by the
Secretary of the DENR. If at all, the approval that should
be sought would be that of the Secretary of the
Department of Agriculture. However, the requirement of
approval by the Secretary of the Department of
Agriculture (not DENR) of municipal ordinances affecting
fishing and fisheries in municipal waters has been
dispensed with in view of the following reasons:
the sangguniang panlalawigan the duty to enact
ordinances to "[p]rotect the environment and impose
appropriate penalties for acts which endanger the
environment such as dynamite fishing and other forms of
destructive fishing . . . and such other activities which
result in pollution, acceleration of eutrophication of
rivers and lakes or of ecological imbalance."47
In closing, we commend the Sangguniang Panlungsod of
the City of Puerto Princesa and Sangguniang
Panlalawigan of the Province of Palawan for exercising
the requisite political will to enact urgently needed
legislation to protect and enhance the marine
environment, thereby sharing in the herculean task of
arresting the tide of ecological destruction. We hope that
other local government units shall now be roused from
their lethargy and adopt a more vigilant stand in the
battle against the decimation of our legacy to future
generations. At this time, the repercussions of any
further delay in their response may prove disastrous, if
not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of
merit and the temporary restraining order issued on 11
November 1993 is LIFTED.
No pronouncement as to costs.
Case Nature : SPECIAL CIVIL ACTION in the Supreme
Court. Certiorari and Prohibition.
Syllabi Class : Remedial Law|Constitutional
Law|Municipal Corporations|Statutes|Special Civil
Action|Certiorari|Declaratory Relief|Statute|Statutory
Construction|Local Government
Code|Statutes|Municipal Ordinances
Dispositive Portion:
WHEREFORE, the instant petition is DISMISSED for lack of
merit and the temporary restraining order issued on 11
November 1993 is LIFTED.

(1) Section 534 (Repealing Clause) of the LGC expressly

repeals or amends Sections 16 and 29 of P.D. No.
70445 insofar as they are inconsistent with the provisions
of the LGC.

(2) As discussed earlier, under the general welfare clause

of the LGC, local government units have the power, inter
alia, to enact ordinances to enhance the right of the
people to a balanced ecology. It likewise specifically vests
municipalities with the power to grant fishery privileges
in municipal waters, and impose rentals, fees or charges
therefor; to penalize, by appropriate ordinances, the use
of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of
fishing; and to prosecute any violation of the provisions
of applicable fishery laws.46 Finally, it imposes upon the
sangguniang bayan, the sangguniang panlungsod, and
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