Republic of the Philippines
 Administrative Code is a governmental or a corporate or proprietary

SUPREME COURT
 function of the municipality.

Manila
A resolution of that issue will lead to another, viz the civil liability for
FIRST DIVISION damages of the Municipality of Malasiqui, and the members of the
Municipal Council of Malasiqui, province of Pangasinan, for a death
G.R. No. L-29993 October 23, 1978 which occurred during the celebration of the town fiesta on January
22, 1959, and which was attributed to the negligence of the
LAUDENCIO TORIO, GUILLERMO EVANGELISTA, municipality and its council members.
MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS
MACARANAS, MAXIMO MANANGAN, FIDEL The following facts are not in dispute:
MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all
Members of the Municipal Council of Malasiqui in 1959, On October 21, 1958, the Municipal Council of Malasiqui,
Malasiqui, Pangasinan, petitioners, 
 Pangasinan, passed Resolution No. 159 whereby "it resolved to
vs.
 manage the 1959 Malasiqui town fiesta celebration on January 21,
ROSALINA, ANGELINA, LEONARDO, EDUARDO, 22, and 23, 1959." Resolution No. 182 was also passed creating the
ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, "1959 Malasiqui 'Town Fiesta Executive Committee" which in turn
VIRGINIA, REMEDIOS and ROBERTO, all surnamed organized a sub-committee on entertainment and stage, with Jose
FONTANILLA, and THE HONORABLE COURT OF Macaraeg as Chairman. the council appropriated the amount of
APPEALS, respondents. P100.00 for the construction of 2 stages, one for the "zarzuela" and
another for the cancionan Jose Macaraeg supervised the construction
G.R. No. L-30183 October 23, 1978 of the stage and as constructed the stage for the "zarzuela" was "5-½
meters by 8 meters in size, had a wooden floor high at the rear and
MUNICIPALITY OF MALASIQUI, petitioner, 
 was supported by 24 bamboo posts — 4 in a row in front, 4 in the
vs.
 rear and 5 on each side — with bamboo braces." 1
ROSALINA, ANGELINA, LEONARDO, EDUARDO,
ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, The "zarzuela" entitled "Midas Extravaganza" was donated by an
VIRGINIA, REMEDIOS and ROBERTO, all surnamed association of Malasiqui employees of the Manila Railroad Company
FONTANILLA, and the Honorable COURT OF in Caloocan, Rizal. The troupe arrived in the evening of January 22
APPEALS, respondents. for the performance and one of the members of the group was
Vicente Fontanilla. The program started at about 10:15 o'clock that
evening with some speeches, and many persons went up the stage.
MUÑOZ PALMA, J.: The "zarzuela" then began but before the dramatic part of the play
was reached, the stage collapsed and Vicente Fontanilla who was at
the rear of the stage was pinned underneath. Fontanilia was taken to
These Petitions for review present the issue of whether or not the
tile San Carlos General Hospital where he died in the afternoon of the
celebration of a town fiesta authorized by a municipal council under
following day.
Sec. 2282 of the Municipal Law as embodied in the Revised
The heirs of Vicente Fontanilia filed a complaint with the Court of
First Instance of Manila on September 11, 1959 to recover damages.
Named party-defendants were the Municipality of Malasiqui, the
Municipal Council of Malasiqui and all the individual members of
the Municipal Council in 1959.
Answering the complaint defendant municipality invoked inter alia
the principal defense that as a legally and duly organized public
corporation it performs sovereign functions and the holding of a town
fiesta was an exercise of its governmental functions from which no
liability can arise to answer for the negligence of any of its agents.
The defendant councilors inturn maintained that they merely acted as
agents of the municipality in carrying out the municipal ordinance
providing for the management of the town fiesta celebration and as
such they are likewise not liable for damages as the undertaking was
not one for profit; furthermore, they had exercised due care and
diligence in implementing the municipal ordinance. 2
After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed
the issue to whether or not the defendants exercised due diligence 'm
the construction of the stage. From his findings he arrived at the
conclusion that the Executive Committee appointed by the municipal
council had exercised due diligence and care like a good father of the
family in selecting a competent man to construct a stage strong
enough for the occasion and that if it collapsed that was due to forces
beyond the control of the committee on entertainment, consequently,
the defendants were not liable for damages for the death of Vicente
Fontanilla. The complaint was accordingly dismissed in a decision
dated July 10, 1962. 3
The Fontanillas appealed to the Court of Appeals. In a decision
Promulgated on October 31, 1968, the Court of Appeals through its
Fourth Division composed at the time of Justices Salvador V.
Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the trial
court's decision and ordered all the defendants-appellees to pay
jointly and severally the heirs of Vicente Fontanilla the sums of
P12,000.00 by way of moral and actual damages: P1200.00 its
attorney's fees; and the costs. 4
The case is now before Us on various assignments of errors all of
which center on the proposition stated at the sentence of this Opinion
and which We repeat:
Is the celebration of a town fiesta an undertaking in the excercise of a
municipality's governmental or public function or is it or a private or
proprietary character?
1. Under Philippine laws municipalities are political bodies corporate
and as such ag endowed with the faculties of municipal corporations
to be exercised by and through their respective municipal
governments in conformity with law, and in their proper corporate
name, they may inter alia sue and be sued, and contract and be
contracted with. 5
The powers of a municipality are twofold in character public,
governmental or political on the one hand, and corporate, private, or
proprietary on the other. Governmental powers are those exercised by
the corporation in administering the powers of the state and
promoting the public welfare and they include the legislative, judicial
public, and political Municipal powers on the other hand are
exercised for the special benefit and advantage of the community and
include those which are ministerial private and corporate. 6
As to when a certain activity is governmental and when proprietary
or private, that is generally a difficult matter to determine. The
evolution of the municipal law in American Jurisprudence, for
instance, has shown that; none of the tests which have evolved and
are stated in textbooks have set down a conclusive principle or rule,
so that each case will have to be determined on the basis of attending
circumstances.
In McQuillin on Municipal Corporations, the rule is stated thus: "A
municipal corporation proper has ... a public character as regards the
state at large insofar as it is its agent in government, and private (so-
called) insofar as it is to promote local necessities and conveniences
for its own community. 7
Another statement of the test is given in City of Kokomo v. Loy,
decided by the Supreme Court of Indiana in 1916, thus:
Municipal corporations exist in a dual capacity, and their functions
are two fold. In one they exercise the right springing from
sovereignty, and while in the performance of the duties pertaining
thereto, their acts are political and governmental Their officers and
agents in such capacity, though elected or appointed by the are
nevertheless public functionaries performing a public service, and as
such they are officers, agents, and servants of the state. In the other
capacity the municipalities exercise a private. proprietary or
corporate right, arising from their existence as legal persons and not
as public agencies. Their officers and agents in the performance of
such functions act in behalf of the municipalities in their corporate or
in. individual capacity, and not for the state or sovereign power. (112
N. E 994-995)
In the early Philippine case of Mendoza v. de Leon 1916, the Supreme
Court, through Justice Grant T. Trent, relying mainly on American
Jurisprudence classified certain activities of the municipality as
governmental, e.g.: regulations against fire, disease, preservation of
public peace, maintenance of municipal prisons, establishment of
schools, post-offices, etc. while the following are corporate or
proprietary in character, viz: municipal waterwork, slaughter houses,
markets, stables, bathing establishments, wharves, ferries, and
fisheries. 8 Maintenance of parks, golf courses, cemeteries and
airports among others, are also recognized as municipal or city
activities of a proprietary character. 9
2. This distinction of powers becomes important for purposes of
determining the liability of the municipality for the acts of its agents
which result in an injury to third persons.
If the injury is caused in the course of the performance of a
governmental function or duty no recovery, as a rule, can be. had
from the municipality unless there is an existing statute on the matter,
10 nor from its officers, so long as they performed their duties
honestly and in good faith or that they did not act wantonly and
maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte, et
al., 1958, a truck driver employed by the provincial government of
Ilocos Norte ran over Proceto Palafox in the course of his work at the
construction of a road. The Supreme Court in affirming the trial
court's dismissal of the complaint for damages held that the province
could not be made liable because its employee was in the
performance of a governmental function — the construction and
maintenance of roads — and however tragic and deplorable it may
be, the death of Palafox imposed on the province no duty to pay
monetary consideration. 12
With respect to proprietary functions, the settled rule is that a
municipal corporation can be held liable to third persons ex
contract 13 or ex delicto. 14
Municipal corporations are subject to be sued upon contracts and in
tort. ...
The rule of law is a general one, that the superior or employer must
answer civilly for the negligence or want of skill of its agent or
servant in the course or fine of his employment, by which another,
who is free from contributory fault, is injured. Municipal
corporations under the conditions herein stated, fall within the
operation of this rule of law, and are liable, accordingly, to civil
actions for damages when the requisite elements of liability co-
exist. ... (Dillon on Municipal Corporations, 5th ed. Sec. 1610,1647,
cited in Mendoza v. de Leon, supra. 514)
3. Coming to the cam before Us, and applying the general tests given
above, We hold that the ho of the town fiesta in 1959 by the
municipality of Malsiqui Pangasinan was an exercise of a private or
proprietary function of the municipality.
Section 2282 of the Chatter on Municipal Law of the Revised
Administrative Code provides:
Section 2282. Celebration of fiesta. — fiesta may be held in each
municipality not oftener than once a year upon a date fixed by the
municipal council A fiesta s not be held upon any other date than that
lawfully fixed therefor, except when, for weighty reasons, such as
typhoons, foundations, earthquakes, epidemics, or other public ties,
the fiesta cannot be hold in the date fixed in which case it may be
held at a later date in the same year, by resolution of the council.
This provision simply gives authority to the municipality to
accelebrate a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate
a religious or historical event of the town is in essence an act for the
special benefit of the community and not for the general welfare of
the public performed in pursuance of a policy of the state. The mere
fact that the celebration, as claimed was not to secure profit or gain
but merely to provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is not a source
of income for the nonetheless it is private undertaking as
distinguished from the maintenance of public schools, jails, and the
like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are
to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is
governmental in essence, otherwise. the function becomes private or
proprietary in character. Easily, no overnmental or public policy of
the state is involved in the celebration of a town fiesta. 15
4. It follows that under the doctrine of respondent superior,
petitioner-municipality is to be held liable for damages for the death
of Vicente Fontanilia if that was at- tributable to the negligence of the
municipality's officers, employees, or agents.
Art. 2176, Civil Code: Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. . .
Art. 2180, Civil Code: The obligation imposed by article 2176 is
demandable not only for one's own acts or omission, but also for
those of persons for whom one is responsible. . .
On this point, the Court of Appeals found and held that there was
negligence.
The trial court gave credence to the testimony of Angel Novado, a
witness of the defendants (now petitioners), that a member of the
"extravaganza troupe removed two principal braces located on the
front portion of the stage and u them to hang the screen or "telon",
and that when many people went up the stage the latter collapsed.
This testimony was not believed however by respondent appellate
court, and rightly so. According to said defendants, those two braces
were "mother" or "principal" braces located semi-diagonally from the
front ends of the stage to the front posts of the ticket booth located at
the rear of the stage and were fastened with a bamboo twine. 16 That
being the case, it becomes incredible that any person in his right mind
would remove those principal braces and leave the front portion of
the stage practically unsuported Moreover, if that did happen, there
was indeed negligence as there was lack of suspension over the use
of the stage to prevent such an occurrence.
At any rate, the guitarist who was pointed to by Novado as the person
who removed the two bamboo braces denied having done go. The
Court of Appeals said "Amor by himself alone could not have
removed the two braces which must be about ten meters long and
fastened them on top of the stags for the curtain. The stage was only
five and a half meters wide. Surely, it, would be impractical and
unwieldy to use a ten meter bamboo pole, much more two poles for
the stage curtain. 17
The appellate court also found that the stage was not strong enough
considering that only P100.00 was appropriate for the construction of
two stages and while the floor of the "zarzuela" stage was of wooden
planks, the Post and braces used were of bamboo material We
likewise observe that although the stage was described by the
Petitioners as being supported by "24" posts, nevertheless there were
only 4 in front, 4 at the rear, and 5 on each side. Where were the rest?
The Court of Appeals thus concluded
The court a quo itself attributed the collapse of the stage to the great
number of onlookers who mounted the stage. The municipality and/or
its agents had the necessary means within its command to prevent
such an occurrence. Having filed to take the necessary steps to
maintain the safety of the stage for the use of the participants in the
stage presentation prepared in connection with the celebration of the
town fiesta, particularly, in preventing non participants or spectators
from mounting and accumulating on the stage which was not
constructed to meet the additional weight- the defendant-appellees
were negligent and are liable for the death of Vicente Fontanilla . (pp.
30-31, rollo, L-29993)
The findings of the respondent appellate court that the facts as
presented to it establish negligence as a matter of law and that the
Municipality failed to exercise the due diligence of a good father of
the family, will not disturbed by Us in the absence of a clear showing
of an abuse of discretion or a gross misapprehension of facts." 18
Liability rests on negligence which is "the want of such care as a
person of ordinary prudence would exercise under the circumstances
of the case." 19
Thus, private respondents argue that the "Midas Extravaganza" which
was to be performed during the town fiesta was a "donation" offered
by an association of Malasiqui employees of the Manila Railroad Co.
in Caloocan, and that when the Municipality of Malasiqui accepted
the donation of services and constructed precisely a "zarzuela stage"
for the purpose, the participants in the stage show had the right to
expect that the Municipality through its "Committee on entertainment
and stage" would build or put up a stage or platform strong enough to
sustain the weight or burden of the performance and take the
necessary measures to insure the personal safety of the
participants. 20 We agree.
Quite relevant to that argument is the American case of Sanders v.
City of Long Beach, 1942, which was an action against the city for
injuries sustained from a fall when plaintiff was descending the steps
of the city auditorium. The city was conducting a "Know your City
Week" and one of the features was the showing of a motion picture in
the city auditorium to which the general public was invited and
plaintiff Sanders was one of those who attended. In sustaining the
award for Damages in favor of plaintiff, the District Court of Appeal,
Second district, California, held inter alia that the "Know your City
Week" was a "proprietary activity" and not a "governmental one" of
the city, that defendant owed to plaintiff, an invitee the duty of
exercising ordinary care for her safety, and plaintiff was entitled to
assume that she would not be exposed to a danger (which in this case
consisted of lack of sufficient illumination of the premises) that
would come to her through a violation of defendant duty. 21
We can say that the deceased Vicente Fontanilla was similarly
situated as Sander The Municipality of Malasiqui resolved to
celebrate the town fiesta in January of 1959; it created a committee in
charge of the entertainment and stage; an association of Malasiqui
residents responded to the call for the festivities and volunteered to
present a stage show; Vicente Fontanilla was one of the participants
who like Sanders had the right to expect that he would be exposed to
danger on that occasion.
Lastly, petitioner or appellant Municipality cannot evade ability and/
or liability under the c that it was Jose Macaraeg who constructed the
stage. The municipality acting through its municipal council
appointed Macaraeg as chairman of the sub-committee on
entertainment and in charge of the construction of the "zarzuela"
stage. Macaraeg acted merely as an agent of the Municipality. Under
the doctrine of respondent superior mentioned earlier, petitioner is
responsible or liable for the negligence of its agent acting within his
assigned tasks. 22
... when it is sought to render a municipal corporation liable for the
act of servants or agents, a cardinal inquiry is, whether they are the
servants or agents of the corporation. If the corporation appoints or
elects them, can control them in the discharge of their duties, can
continue or remove the can hold them responsible for the manner in
which they discharge their trust, and if those duties relate to the
exercise of corporate powers, and are for the benefit of the
corporation in its local or special interest, they may justly be regarded
as its agents or servants, and the maxim of respondent superior
applies." ... (Dillon on Municipal Corporations, 5th Ed., Vol IV, p.
2879)
5. The remaining question to be resolved centers on the liability of
the municipal councilors who enacted the ordinance and created the
fiesta committee.
The Court of Appeals held the councilors jointly and solidarity liable
with the municipality for damages under Article 27 of the Civil Code
which provides that d any person suffering ing material or moral loss
because a public servant or employee refuses or neglects, without just
cause to perform his official duty may file an action for damages and
other relief at the latter. 23
In their Petition for review the municipal councilors allege that the
Court of Appeals erred in ruling that the holding of a town fiesta is
not a governmental function and that there was negligence on their
part for not maintaining and supervising the safe use of the stage, in
applying Article 27 of the Civil Code against them and in not holding
Jose Macaraeg liable for the collapse of the stage and the consequent
death of Vicente Fontanilla. 24
We agree with petitioners that the Court of Appeals erred in applying
Article 27 of the Civil Code against the for this particular article
covers a case of nonfeasance or non-performance by a public officer
of his official duty; it does not apply to a case of negligence or
misfeasance in carrying out an official duty.
If We are led to set aside the decision of the Court of Appeals insofar
as these petitioners are concerned, it is because of a plain error
committed by respondent court which however is not invoked in
petitioners' brief.
In Miguel v. The Court of appeal. et al., the Court, through Justice,
now Chief Justice, Fred Ruiz Castro, held that the Supreme Court is
vested with ample authority to review matters not assigned as errors
in an appeal if it finds that their consideration and resolution are
indispensable or necessary in arriving at a just decision in a given
case, and that tills is author under Sec. 7, Rule 51 of the Rules of
Court. 25 We believe that this pronouncement can well be applied in
the instant case.
The Court of Appeals in its decision now under review held that the
celebration of a town fiesta by the Municipality of Malasiqui was not
a governmental function. We upheld that ruling. The legal
consequence thereof is that the Municipality stands on the same
footing as an ordinary private corporation with the municipal council
acting as its board of directors. It is an elementary principle that a
corporation has a personality, separate and distinct from its officers,
directors, or persons composing it 26 and the latter are not as a rule
co-responsible in an action for damages for tort or negligence culpa
aquilla committed by the corporation's employees or agents unless
there is a showing of bad faith or gross or wanton negligence on their
part. 27
The ordinary doctrine is that a director, merely by reason of his
office, is not personally Stable for the torts of his corporation; he
Must be shown to have personally voted for or otherwise participated
in them ... Fletcher Encyclopedia Corporations, Vol 3A Chapt 11, p.
207)
Officers of a corporation 'are not held liable for the negligence of the
corporation merely because of their official relation to it, but because
of some wrongful or negligent act by such officer amounting to a
breach of duty which resulted in an injury ... To make an officer of a
corporation liable for the negligence of the corporation there must
have been upon his part such a breach of duty as contributed to, or
helped to bring about, the injury; that is to say, he must be a
participant in the wrongful act. ... (pp. 207-208, Ibid.)
Directors who merely employ one to give a fireworks Ambition on
the corporate are not personally liable for the negligent acts of the
exhibitor. (p. 211, Ibid.)
On these people We absolve Use municipal councilors from any
liability for the death of Vicente Fontanilla. The records do not show
that said petitioners directly participated in the defective construction
of the "zarzuela" stage or that they personally permitted spectators to
go up the platform.
6. One last point We have to resolve is on the award of attorney's fees
by respondent court. Petitioner-municipality assails the award.
Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and
expenses of litigation may be granted when the court deems it just
and equitable. In this case of Vicente Fontanilla, although respondent
appellate court failed to state the grounds for awarding attorney's
fees, the records show however that attempts were made by plaintiffs,
now private respondents, to secure an extrajudicial compensation
from the municipality: that the latter gave prorases and assurances of
assistance but failed to comply; and it was only eight month after the
incident that the bereaved family of Vicente Fontanilla was
compelled to seek relief from the courts to ventilate what was
believed to be a just cause. 28
We hold, therefore, that there is no error committed in the grant of
attorney's fees which after all is a matter of judicial discretion. The
amount of P1,200.00 is fair and reasonable.
PREMISES CONSIDERED, We AFFIRM in toto the decision of the
Court of Appeals insofar as the Municipality of Malasiqui is
concerned (L-30183), and We absolve the municipal councilors from
liability and SET ASIDE the judgment against them (L-9993).
Without pronouncement as to costs. SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. 97764 August 10, 1992
LEVY D. MACASIANO, Brigadier General/PNP
Superintendent, Metropolitan Traffic Command, petitioner, 

vs.

HONORABLE ROBERTO C. DIOKNO, Presiding Judge,
Branch 62, Regional Trial Court of Makati, Metro Manila,
MUNICIPALITY OF PARAÑAQUE, METRO MANILA,
PALANYAG KILUSANG BAYAN FOR SERVICE, respondents.
MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court
seeking the annulment of the decision of the Regional Trial Court of
Makati, Branch 62, which granted the writ of preliminary injunction
applied for by respondents Municipality of Parañaque and Palanyag
Kilusang Bayan for Service (Palanyag for brevity) against petitioner
herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No.
86, Series of 1990 which authorized the closure of J. Gabriel, G.G.
Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at
Baclaran, Parañaque, Metro Manila and the establishment of a flea
market thereon. The said ordinance was approved by the municipal
council pursuant to MMC Ordinance No. 2, Series of 1979,
authorizing and regulating the use of certain city and/or municipal
streets, roads and open spaces within Metropolitan Manila as sites for
flea market and/or vending areas, under certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved
Ordinance No. 86, s. 1990 of the municipal council of respondent
municipality subject to the following conditions:
1. That the aforenamed streets are not used for vehicular traffic, and
that the majority of the residents do not oppose the establishment of
the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides of
the road shall be used by pedestrians;
3. That the time during which the vending area is to be used shall be
clearly designated;
4. That the use of the vending areas shall be temporary and shall be
closed once the reclaimed areas are developed and donated by the
Public Estate Authority.
On June 20, 1990, the municipal council of Parañaque issued a
resolution authorizing Parañaque Mayor Walfrido N. Ferrer to enter
into contract with any service cooperative for the establishment,
operation, maintenance and management of flea markets and/or
vending areas.
On August 8, 1990, respondent municipality and respondent
Palanyag, a service cooperative, entered into an agreement whereby
the latter shall operate, maintain and manage the flea market in the
aforementioned streets with the obligation to remit dues to the
treasury of the municipal government of Parañaque. Consequently,
market stalls were put up by respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command, ordered the
destruction and confiscation of stalls along G.G. Cruz and J. Gabriel
St. in Baclaran. These stalls were later returned to respondent
Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a
letter to respondent Palanyag giving the latter ten (10) days to
discontinue the flea market; otherwise, the market stalls shall be
dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag
filed with the trial court a joint petition for prohibition
and mandamus with damages and prayer for preliminary injunction,
to which the petitioner filed his memorandum/opposition to the
issuance of the writ of preliminary injunction.
On October 24, 1990, the trial court issued a temporary restraining
order to enjoin petitioner from enforcing his letter-order of October
16, 1990 pending the hearing on the motion for writ of preliminary
injunction.
On December 17, 1990, the trial court issued an order upholding the
validity of Ordinance No. 86 s. 1990 of the Municipality' of
Parañaque and enjoining petitioner Brig. Gen. Macasiano from
enforcing his letter-order against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the
Solicitor General alleging grave abuse of discretion tantamount to
lack or excess of jurisdiction on the part of the trial judge in issuing
the assailed order.
The sole issue to be resolved in this case is whether or not an
ordinance or resolution issued by the municipal council of Parañaque
authorizing the lease and use of public streets or thoroughfares as
sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that municipal
roads are used for public service and are therefore public properties;
that as such, they cannot be subject to private appropriation or private
contract by any person, even by the respondent Municipality of
Parañaque. Petitioner submits that a property already dedicated to
public use cannot be used for another public purpose and that absent
a clear showing that the Municipality of Parañaque has been granted
by the legislature specific authority to convert a property already in
public use to another public use, respondent municipality is,
therefore, bereft of any authority to close municipal roads for the
establishment of a flea market. Petitioner also submits that assuming
that the respondent municipality is authorized to close streets, it
failed to comply with the conditions set forth by the Metropolitan
Manila Authority for the approval of the ordinance providing for the
establishment of flea markets on public streets. Lastly, petitioner
contends that by allowing the municipal streets to be used by market
vendors the municipal council of respondent municipality violated its
duty under the Local Government Code to promote the general
welfare of the residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court
ruled:
. . . that Chanter II Section 10 of the Local Government Code is a
statutory grant of power given to local government units, the
Municipality of Parañaque as such, is empowered under that law to
close its roads, streets or alley subject to limitations stated therein
(i.e., that it is in accordance with existing laws and the provisions of
this code).
The actuation of the respondent Brig. Gen. Levi Macasiano, though
apparently within its power is in fact an encroachment of power
legally vested to the municipality, precisely because when the
municipality enacted the ordinance in question — the authority of the
respondent as Police Superintendent ceases to be operative on the
ground that the streets covered by the ordinance ceases to be a public
thoroughfare. (pp. 33-34, Rollo)
We find the petition meritorious. In resolving the question of whether
the disputed municipal ordinance authorizing the flea market on the
public streets is valid, it is necessary to examine the laws in force
during the time the said ordinance was enacted, namely, Batas
Pambansa Blg. 337, otherwise known as Local Government Code, in
connection with established principles embodied in the Civil Code an
property and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into
property for public use and patrimonial property (Art. 423, Civil
Code). As to what consists of property for public use, Article 424 of
Civil Code states:
Art. 424. Property for public use, in the provinces, cities and
municipalities, consists of the provincial roads, city streets, the
squares, fountains, public waters, promenades, and public works for
public service paid for by said provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall
be governed by this Code, without prejudice to the provisions of
special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena streets are local roads used for public service
and are therefore considered public properties of respondent
municipality. Properties of the local government which are devoted to
public service are deemed public and are under the absolute control
of Congress (Province of Zamboanga del Norte v. City of
Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence, local
governments have no authority whatsoever to control or regulate the
use of public properties unless specific authority is vested upon them
by Congress. One such example of this authority given by Congress
to the local governments is the power to close roads as provided in
Section 10, Chapter II of the Local Government Code, which states:
Sec. 10. Closure of roads. — A local government unit may likewise,
through its head acting pursuant to a resolution of its sangguniang
and in accordance with existing law and the provisions of this Code,
close any barangay, municipal, city or provincial road, street, alley,
park or square. No such way or place or any part of thereof shall be
close without indemnifying any person prejudiced thereby. A property
thus withdrawn from public use may be used or conveyed for any
purpose for which other real property belonging to the local unit
concerned might be lawfully used or conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to
local government units to close roads and other similar public places
should be read and interpreted in accordance with basic principles
already established by law. These basic principles have the effect of
limiting such authority of the province, city or municipality to close a
public street or thoroughfare. Article 424 of the Civil Code lays down
the basic principle that properties of public dominion devoted to
public use and made available to the public in general are outside the
commerce of man and cannot be disposed of or leased by the local
government unit to private persons. Aside from the requirement of
due process which should be complied with before closing a road,
street or park, the closure should be for the sole purpose of
withdrawing the road or other public property from public use when
circumstances show that such property is no longer intended or
necessary for public use or public service. When it is already
withdrawn from public use, the property then becomes patrimonial
property of the local government unit concerned (Article 422, Civil
Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474,
August 29, 1975, 66 SCRA 481). It is only then that the respondent
municipality can "use or convey them for any purpose for which
other real property belonging to the local unit concerned might be
lawfully used or conveyed" in accordance with the last sentence of
Section 10, Chapter II of Blg. 337, known as Local Government
Code. In one case, the City Council of Cebu, through a resolution,
declared the terminal road of M. Borces Street, Mabolo, Cebu City as
an abandoned road, the same not being included in the City
Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through
public bidding. We held therein that the City of Cebu is empowered
to close a city street and to vacate or withdraw the same from public
use. Such withdrawn portion becomes patrimonial property which
can be the object of an ordinary contract (Cebu Oxygen and
Acetylene Co., Inc. v. Bercilles, et al., G.R. No.

L-40474, August 29, 1975, 66 SCRA 481). However, those roads and
streets which are available to the public in general and ordinarily
used for vehicular traffic are still considered public property devoted
to public use. In such case, the local government has no power to use
it for another purpose or to dispose of or lease it to private persons.
This limitation on the authority of the local government over public
properties has been discussed and settled by this Court en banc in
"Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al.,
respondents, G.R. No. 93654, May 6, 1992." This Court ruled:
There is no doubt that the disputed areas from which the private
respondents' market stalls are sought to be evicted are public streets,
as found by the trial court in Civil Case No. C-12921. A public street
is property for public use hence outside the commerce of man (Arts.
420, 424, Civil Code). Being outside the commerce of man, it may
not be the subject of lease or others contract (Villanueva, et al. v.
Castañeda and Macalino, 15 SCRA 142 citing the Municipality of
Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of
Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G.
4860).
As the stallholders pay fees to the City Government for the right to
occupy portions of the public street, the City Government, contrary to
law, has been leasing portions of the streets to them. Such leases or
licenses are null and void for being contrary to law. The right of the
public to use the city streets may not be bargained away through
contract. The interests of a few should not prevail over the good of
the greater number in the community whose health, peace, safety,
good order and general welfare, the respondent city officials are
under legal obligation to protect.
The Executive Order issued by acting Mayor Robles authorizing the
use of Heroes del '96 Street as a vending area for stallholders who
were granted licenses by the city government contravenes the general
law that reserves city streets and roads for public use. Mayor Robles'
Executive Order may not infringe upon the vested right of the public
to use city streets for the purpose they were intended to serve: i.e., as
arteries of travel for vehicles and pedestrians.
Even assuming, in gratia argumenti, that respondent municipality has
the authority to pass the disputed ordinance, the same cannot be
validly implemented because it cannot be considered approved by the
Metropolitan Manila Authority due to non-compliance by respondent
municipality of the conditions imposed by the former for the
approval of the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular traffic, and
that the majority of the residents do(es) not oppose the establishment
of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides of
the road shall be used by pedestrians;
3. That the time during which the vending area is to be used shall be
clearly designated;
4. That the use of the vending areas shall be temporary and shall be
closed once the reclaimed areas are developed and donated by the
Public Estate Authority. (p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has
complied with the foregoing conditions precedent to the approval of
the ordinance. The allegations of respondent municipality that the
closed streets were not used for vehicular traffic and that the majority
of the residents do not oppose the establishment of a flea market on
said streets are unsupported by any evidence that will show that this
first condition has been met. Likewise, the designation by
respondents of a time schedule during which the flea market shall
operate is absent.
Further, it is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow
the establishment of a flea market along J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran
would not help in solving the problem of congestion. We take note of
the other observations of the Solicitor General when he said:
. . . There have been many instances of emergencies and fires where
ambulances and fire engines, instead of using the roads for a more
direct access to the fire area, have to maneuver and look for other
streets which are not occupied by stalls and vendors thereby losing
valuable time which could, otherwise, have been spent in saving
properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However,
its ambulances and the people rushing their patients to the hospital
cannot pass through G.G. Cruz because of the stalls and the vendors.
One can only imagine the tragedy of losing a life just because of a
few seconds delay brought about by the inaccessibility of the streets
leading to the hospital.
The children, too, suffer. In view of the occupancy of the roads by
stalls and vendors, normal transportation flow is disrupted and school
children have to get off at a distance still far from their schools and
walk, rain or shine.
Indeed one can only imagine the garbage and litter left by vendors on
the streets at the end of the day. Needless to say, these cause further
pollution, sickness and deterioration of health of the residents therein.
(pp. 21-22, Rollo)
Respondents do not refute the truth of the foregoing findings and
observations of petitioners. Instead, respondents want this Court to
focus its attention solely on the argument that the use of public spaces
for the establishment of a flea market is well within the powers
granted by law to a local government which should not be interfered
with by the courts.
Verily, the powers of a local government unit are not absolute. They
are subject to limitations laid down by toe Constitution and the laws
such as our Civil Code. Moreover, the exercise of such powers should
be subservient to paramount considerations of health and well-being
of the members of the community. Every local government unit has
the sworn obligation to enact measures that will enhance the public
health, safety and convenience, maintain peace and order, and
promote the general prosperity of the inhabitants of the local units.
Based on this objective, the local government should refrain from
acting towards that which might prejudice or adversely affect the
general welfare.
As what we have said in the Dacanay case, the general public have a
legal right to demand the demolition of the illegally constructed stalls
in public roads and streets and the officials of respondent
municipality have the corresponding duty arising from public office
to clear the city streets and restore them to their specific public
purpose.
The instant case as well as the Dacanay case, involves an ordinance
which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at this point, We find it worthy
to note that Batas Pambansa Blg. 337, known as Local Government
Lode, has already been repealed by Republic Act No. 7160 known as
Local Government Code of 1991 which took effect on January 1,
1992. Section 5(d) of the new Code provides that rights and
obligations existing on the date of effectivity of the new Code and
arising out of contracts or any other source of prestation involving a
local government unit shall be governed by the original terms and
conditions of the said contracts or the law in force at the time such
rights were vested.
ACCORDINGLY, the petition is GRANTED and the decision of the
respondent Regional Trial Court dated December 17, 1990 which
granted the writ of preliminary injunction enjoining petitioner as PNP
Superintendent, Metropolitan Traffic Command from enforcing the
demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan,
Lt. Garcia Extension and Opena streets is hereby RESERVED and
SET ASIDE.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU
CARCEL, petitioners-appellants, 

vs.

COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE
AND BUTUAN CITY, Branch 11, and the CITY OF
BUTUAN, respondents-appellees.
GANCAYCO, J.:
At issue in the petition for review before Us is the validity and
constitutionality of Ordinance No. 640 passed by the Municipal
Board of the City of Butuan on April 21, 1969, the title and text of
which are reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF
PERSONS, ENTITY OR CORPORATION ENGAGED IN THE
BUSINESS OF SELLING ADMISSION TICKETS TO ANY
MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES,
CONTESTS OR OTHER PERFORMANCES TO REQUIRE
CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS
OF AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED
FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF
THE SAID TICKET
Be it ordained by the Municipal Board of the City of Butuan in
session assembled, that:
SECTION 1—It shall be unlawful for any person, group of persons,
entity, or corporation engaged in the business of selling admission
tickets to any movie or other public exhibitions, games, contests, or
other performances to require children between seven (7) and twelve
(12) years of age to pay full payment for admission tickets intended
for adults but should charge only one-half of the value of the said
tickets.
SECTION 2—Any person violating the provisions of this Ordinance
shall upon conviction be punished by a fine of not less than TWO
HUNDRED PESOS (P200.00) but not more than SIX HUNDRED
PESOS (P600.00) or an imprisonment of not less than TWO (2)
MONTHS or not more than SIX (6) MONTHS or both such firm and
imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed
upon the Manager, Agent or Representative of such firm or
corporation.
SECTION 3—This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel
managers of the Maya and Dalisay Theaters, the Crown Theater, and
the Diamond Theater, respectively. Aggrieved by the effect of
Ordinance No. 640, they filed a complaint before the Court of First
Instance of Agusan del Norte and Butuan City docketed as Special
Civil Case No. 237 on June 30, 1969 praying, inter alia, that the
subject ordinance be declared unconstitutional and, therefore, void
and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was
issued on July 14, 1969 by the court a quo enjoining the respondent
City of Butuan and its officials from enforcing Ordinance No.
640. 3 On July 29, 1969, respondents filed their answer sustaining the
validity of the ordinance.4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On
June 4, 1973, the respondent court rendered its decision, 6 the
dispositive part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby
adjudges in favor of the respondents and against the petitioners, as
follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional
and valid: Provided, however, that the fine for a single offense shall
not exceed TWO HUNDRED PESOS, as prescribed in the
aforequoted Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of
the court a quo which was denied in a resolution of the said court
dated November 10, 1973.9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No.
640 on the grounds that it is ultra vires and an invalid exercise of
police power.
Petitioners contend that Ordinance No. 640 is not within the power
of' the Municipal Board to enact as provided for in Section 15(n) of
Republic Act No. 523, the Charter of the City of Butuan, which
states:
Sec. 15. General powers and duties of the Board — Except as
otherwise provided by law, and subject to the conditions and
limitations thereof, the Municipal Board shall have the following
legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the
following; . . . theaters, theatrical performances, cinematographs,
public exhibitions and all other performances and places of
amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the
enactment of the ordinance by invoking the general welfare clause
embodied in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort, convenience,
and general welfare of the city and its inhabitants, and such others as
may be necessary to carry into effect and discharge the powers and
duties conferred by this Act, and to fix the penalties for the violation
of the ordinances, which shall not exceed a two hundred peso fine or
six months imprisonment, or both such fine and imprisonment, for a
single offense.
We can see from the aforecited Section 15(n) that the power to
regulate and fix the amount of license fees for theaters, theatrical
performances, cinematographs, public exhibitions and other places of
amusement has been expressly granted to the City of Butuan under its
charter. But the question which needs to be resolved is this: does this
power to regulate include the authority to interfere in the fixing of
prices of admission to these places of exhibition and amusement
whether under its general grant of power or under the general welfare
clause as invoked by the City?
This is the first time this Court is confronted with the question of
direct interference by the local government with the operation of
theaters, cinematographs and the like to the extent of fixing the prices
of admission to these places. Previous decisions of this Court
involved the power to impose license fees upon businesses of this
nature as a corollary to the power of the local government to regulate
them. Ordinances which required moviehouses or theaters to increase
the price of their admission tickets supposedly to cover the license
fees have been held to be invalid for these impositions were
considered as not merely license fees but taxes for purposes of
revenue and not regulation which the cities have no power to
exact, 10 unless expressly granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the
word "regulate" was interpreted to include the power to control, to
govern and to restrain, it would seem that under its power to regulate
places of exhibitions and amusement, the Municipal Board of the
City of Butuan could make proper police regulations as to the mode
in which the business shall be exercised.
While in a New York case, 13 an ordinance which regulates the
business of selling admission tickets to public exhibitions or
performances by virtue of the power of cities under the General City
Law "to maintain order, enforce the laws, protect property and
preserve and care for the safety, health, comfort and general welfare
of the inhabitants of the city and visitors thereto; and for any of said
purposes, to regulate and license occupations" was considered not to
be within the scope of any duty or power implied in the charter. It
was held therein that the power of regulation of public exhibitions
and places of amusement within the city granted by the charter does
not carry with it any authority to interfere with the price of admission
to such places or the resale of tickets or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters,
cinematographs and other places of public exhibition are subject to
regulation by the municipal council in the exercise of delegated
police power by the local government. 14 Thus, in People v.
Chan, 15 an ordinance of the City of Manila prohibiting first run
cinematographs from selling tickets beyond their seating capacity
was upheld as constitutional for being a valid exercise of police
power. Still in another case, 16 the validity of an ordinance of the City
of Bacolod prohibiting admission of two or more persons in
moviehouses and other amusement places with the use of only one
ticket was sustained as a valid regulatory police measure not only in
the interest of preventing fraud in so far as municipal taxes are
concerned but also in accordance with public health, public safety,
and the general welfare.
The City of Butuan, apparently realizing that it has no authority to
enact the ordinance in question under its power to regulate embodied
in Section 15(n), now invokes the police power as delegated to it
under the general welfare clause to justify the enactment of said
ordinance.
To invoke the exercise of police power, not only must it appear that
the interest of the public generally requires an interference with
private rights, but the means adopted must be reasonably necessary
for the accomplishment of the purpose and not unduly oppressive
upon individuals. 17 The legislature may not, under the guise of
protecting the public interest, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful
occupations. In other words, the determination as to what is a proper
exercise of its police power is not final or conclusive, but is subject to
the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process
clause of the Constitution for being oppressive, unfair, unjust,
confiscatory, and an undue restraint of trade, and violative of the right
of persons to enter into contracts, considering that the theater owners
are bound under a contract with the film owners for just admission
prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal
Board of the City of Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially
police power, Inasmuch as the same generally entails a curtailment of
the liberty, the rights and/or the property of persons, which are
protected and even guaranteed by the Constitution, the exercise of
police power is necessarily subject to a qualification, limitation or
restriction demanded by the regard, the respect and the obedience due
to the prescriptions of the fundamental law, particularly those
forming part of the Constitution of Liberty, otherwise known as the
Bill of Rights — the police power measure must be reasonable. In
other words, individual rights may be adversely affected by the
exercise of police power to the extent only — and only to the extent--
that may be fairly required by the legitimate demands of public
interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal
Board when the ordinance in question was passed shows that a
certain Councilor Calo, the proponent of the measure, had taken into
account the complaints of parents that for them to pay the full price
of admission for their children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance
does not spell out its raison d'etre in all probability the respondents
were impelled by the awareness that children are entitled to share in
the joys of their elders, but that considering that, apart from size,
children between the ages of seven and twelve cannot fully grasp the
nuance of movies or other public exhibitions, games, contests or
other performances, the admission prices with respect to them ought
to be reduced. 19a
We must bear in mind that there must be public necessity which
demands the adoption of proper measures to secure the ends sought
to be attained by the enactment of the ordinance, and the large
discretion is necessarily vested in the legislative authority to
determine not only what the interests of the public require, but what
measures are necessary for the protection of such interests. 20 The
methods or means used to protect the public health, morals, safety or
welfare, must have some relation to the end in view, for under the
guise of the police power, personal rights and those pertaining to
private property will not be permitted to be arbitralily invaded by the
legislative department. 21
We agree with petitioners that the ordinance is not justified by any
necessity for the public interest. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable
relation must exist between purposes and means.22 The evident
purpose of the ordinance is to help ease the burden of cost on the part
of parents who have to shell out the same amount of money for the
admission of their children, as they would for themselves, A
reduction in the price of admission would mean corresponding
savings for the parents; however, the petitioners are the ones made to
bear the cost of these savings. The ordinance does not only make the
petitioners suffer the loss of earnings but it likewise penalizes them
for failure to comply with it. Furthermore, as petitioners point out,
there will be difficulty in its implementation because as already
experienced by petitioners since the effectivity of the ordinance,
children over 12 years of age tried to pass off their age as below 12
years in order to avail of the benefit of the ordinance. The ordinance
does not provide a safeguard against this undesirable practice and as
such, the respondent City of Butuan now suggests that birth
certificates be exhibited by movie house patrons to prove the age of
children. This is, however, not at all practicable. We can see that the
ordinance is clearly unreasonable if not unduly oppressive upon the
business of petitioners. Moreover, there is no discernible relation
between the ordinance and the promotion of public health, safety,
morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the
youth from the pernicious practice of movie operators and other
public exhibitions promoters or the like of demanding equal price for
their admission tickets along with the adults. This practice is
allegedly repugnant and unconscionable to the interest of the City in
the furtherance of the prosperity, peace, good order, comfort,
convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both
children and adults. The petitioners are merely conducting their
legitimate businesses. The object of every business entrepreneur is to
make a profit out of his venture. There is nothing immoral or
injurious in charging the same price for both children and adults. In
fact, no person is under compulsion to purchase a ticket. It is a totally
voluntary act on the part of the purchaser if he buys a ticket to such
performances.
Respondent City of Butuan claims that Ordinance No. 640 is
reasonable and necessary to lessen the economic burden of parents
whose minor children are lured by the attractive nuisance being
maintained by the petitioners. Respondent further alleges that by
charging the full price, the children are being exploited by movie
house operators. We fail to see how the children are exploited if they
pay the full price of admission. They are treated with the same
quality of entertainment as the adults. The supposition of the trial
court that because of their age children cannot fully grasp the nuances
of such entertainment as adults do fails to convince Us that the
reduction in admission ticket price is justifiable. In fact, by the very
claim of respondent that movies and the like are attractive nuisances,
it is difficult to comprehend why the municipal board passed the
subject ordinance. How can the municipal authorities consider the
movies an attractive nuisance and yet encourage parents and children
to patronize them by lowering the price of admission for children?
Perhaps, there is some ,truth to the argument of petitioners that
Ordinance No. 640 is detrimental to the public good and the general
welfare of society for it encourages children of tender age to frequent
the movies, rather than attend to their studies in school or be in their
homes.
Moreover, as a logical consequence of the ordinance, movie house
and theater operators will be discouraged from exhibiting wholesome
movies for general patronage, much less children's pictures if only to
avoid compliance with the ordinance and still earn profits for
themselves. For after all, these movie house and theater operators
cannot be compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and those which
are restricted by censorship laws. So instead of children being able to
share in the joys of their elders as envisioned by the trial court, there
will be a dearth of wholesome and educational movies for them to
enjoy.
There are a number of cases decided by the Supreme Court and the
various state courts of the United States which upheld the right of the
proprietor of a theater to fix the price of an admission ticket as
against the right of the state to interfere in this regard and which We
consider applicable to the case at bar.
A theater ticket has been described to be either a mere license,
revocable at the will of the proprietor of the theater or it may be
evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe the
performance on condition that he behaves properly. 23 Such ticket,
therefore, represents a right, Positive or conditional, as the case may
be, according to the terms of the original contract of sale. This right is
clearly a right of property. The ticket which represents that right is
also, necessarily, a species of property. As such, the owner thereof, in
the absence of any condition to the contrary in the contract by which
he obtained it, has the clear right to dispose of it, to sell it to whom he
pleases and at such price as he can obtain. 24 So that an act
prohibiting the sale of tickets to theaters or other places of
amusement at more than the regular price was held invalid as
conflicting with the state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
The defendants were conducting a private business, which, even if
clothed with a public interest, was without a franchise to
accommodate the public, and they had the right to control it, the same
as the proprietors of any other business, subject to such obligations as
were placed upon them by statute. Unlike a carrier of passengers, for
instance, with a franchise from the state, and hence under obligation
to transport anyone who applies and to continue the business year in
and year out, the proprietors of a theater can open and close their
place at will, and no one can make a lawful complaint. They can
charge what they choose for admission to their theater. They can limit
the number admitted. They can refuse to sell tickets and collect the
price of admission at the door. They can preserve order and enforce
quiet while the performance is going on. They can make it a part of
the contract and condition of admission, by giving due notice and
printing the condition in the ticket that no one shall be admitted under
21 years of age, or that men only or women only shall be admitted, or
that a woman cannot enter unless she is accompanied by a male
escort, and the like. The proprietors, in the control of their business,
may regulate the terms of admission in any reasonable way. If those
terms are not satisfactory, no one is obliged to buy a ticket or make
the contract. If the terms are satisfactory, and the contract is made,
the minds of the parties meet upon the condition, and the purchaser
impliedly promises to perform it.
In Tyson and Bro. — United Theater Ticket Officers, Inc. vs.
Banton, 27 the United States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a public
utility; and quite as certainly, its activities are not such that their
enjoyment can be regarded under any conditions from the point of
view of an emergency.
The interest of the public in theaters and other places of
entertainment may be more nearly, and with better reason,
assimilated to the like interest in provision stores and markets and in
the rental of houses and apartments for residence purposes; although
in importance it fails below such an interest in the proportion that
food and shelter are of more moment than amusement or instruction.
As we have shown there is no legislative power to fix the prices of
provisions or clothing, or the rental charges for houses and
apartments, in the absence of some controlling emergency; and we
are unable to perceive any dissimilarities of such quality or degree as
to justify a different rule in respect of amusements and
entertainment ...
We are in consonance with the foregoing observations and
conclusions of American courts. In this jurisdiction, legislation had
been passed controlling the prices of goods commodities and drugs
during periods of emergency, 28limiting the net profits of public
utility 29 as well as regulating rentals of residential apartments for a
limited period, 30as a matter of national policy in the interest of public
health and safety, economic security and the general welfare of the
people. And these laws cannot be impugned as unconstitutional for
being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and
other exhibitions. In no sense could these businesses be considered
public utilities. The State has not found it appropriate as a national
policy to interfere with the admission prices to these performances.
This does not mean however, that theaters and exhibitions are not
affected with public interest even to a certain degree. Motion pictures
have been considered important both as a medium for the
communication of Ideas and expression of the artistic impulse. Their
effects on the perceptions by our people of issues and public officials
or public figures as well as the prevailing cultural traits are
considerable. 31People of all ages flock to movie houses, games and
other public exhibitions for recreation and relaxation. The
government realizing their importance has seen it fit to enact
censorship laws to regulate the movie industry. 32 Their aesthetic
entertainment and even educational values cannot be underestimated.
Even police measures regulating the operation of these businesses
have been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid
exercise of police power, the same must be resolved in the negative.
While it is true that a business may be regulated, it is equally true that
such regulation must be within the bounds of reason, that is, the
regulatory ordinance must be reasonable, and its provisions cannot be
oppressive amounting to an arbitrary interference with the business or
calling subject of regulation. A lawful business or calling may not,
under the guise of regulation, be unreasonably interfered with even
by the exercise of police power.33 A police measure for the regulation
of the conduct, control and operation of a business should not
encroach upon the legitimate and lawful exercise by the citizens of
their property rights.34 The right of the owner to fix a price at which
his property shall be sold or used is an inherent attribute of the
property itself and, as such, within the protection of the due process
clause."" Hence, the proprietors of a theater have a right to manage
their property in their own way, to fix what prices of admission they
think most for their own advantage, and that any person who did not
approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in
favor of the validity of the ordinance. This maybe the rule but it has
already been held that although the presumption is always in favor of
the validity or reasonableness of the ordinance, such presumption
must nevertheless be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself or is
established by proper evidence.37 The exercise of police power by the
local government is valid unless it contravenes the fundamental law
of the land, or an act of the legislature, or unless it is against public
policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right.38
Ordinance No. 640 clearly invades the personal and property rights of
petitioners for even if We could assume that, on its face, the
interference was reasonable, from the foregoing considerations, it has
been fully shown that it is an unwarranted and unlawful curtailment
of the property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, under the
guise of exercising police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case
No. 237 is hereby REVERSED and SET ASIDE and a new judgment
is hereby rendered declaring Ordinance No. 640 unconstitutional and,
therefore, null and void. This decision is immediately executory.
SO ORDERED.
 Republic of the Philippines
 SEC. 2. The boundaries of the new province shall be the southern
SUPREME COURT
 limits of the City of Silay, the Municipality of Salvador Benedicto
Manila and the City of San Carlos on the south and the territorial limits of
the northern portion to the Island of Negros on the west, north and
EN BANC east, comprising a territory of 4,019.95 square kilometers more or
less.
G.R. No. 73155 July 11, 1986
SEC. 3. The seat of government of the new province shall be the City
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, of Cadiz.
SERGIO HILADO, VIRGILIO GASTON, CONCHITA
MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, SEC. 4. A plebiscite shall be conducted in the proposed new province
ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, which are the areas affected within a period of one hundred and
EMILY JISON, NIEVES LOPEZ AND CECILIA twenty days from the approval of this Act. After the ratification of the
MAGSAYSAY, petitioners, 
 creation of the Province of Negros del Norte by a majority of the
vs.
 votes cast in such plebiscite, the President of the Philippines shall
THE COMMISSION ON ELECTIONS and THE PROVINCIAL appoint the first officials of the province.
TREASURER OF NEGROS OCCIDENTAL, respondents.
SEC. 5. The Commission on Elections shall conduct and supervise
the plebiscite herein provided, the expenses for which shall be
ALAMPAY, J.: charged to local funds.

Prompted by the enactment of Batas Pambansa Blg. 885-An Act
Creating a New Province in the Island of Negros to be known as the
Province of Negros del Norte, which took effect on December 3,
1985, Petitioners herein, who are residents of the Province of Negros
Occidental, in the various cities and municipalities therein, on
December 23, 1985, filed with this Court a case for Prohibition for
the purpose of stopping respondents Commission on Elections from
conducting the plebiscite which, pursuant to and in implementation
of the aforesaid law, was scheduled for January 3, 1986. Said law
provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the
municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern
portion of the Island of Negros, are hereby separated from the
province to be known as the Province of Negros del Norte.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional
and it is not in complete accord with the Local Government Code as
in Article XI, Section 3 of our Constitution, it is expressly mandated
that—
See. 3. No province, city, municipality or barrio may be created,
divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code enumerates the
conditions which must exist to provide the legal basis for the creation
of a provincial unit and these requisites are:
SEC. 197. Requisites for Creation. A province may be created if it
has a territory of at least three thousand five hundred square
kilometers, a population of at least five hundred thousand persons, an
average estimated annual income, as certified by the Ministry of
Finance, of not less than ten million pesos for the last three
consecutive years, and its creation shall not reduce the population and
income of the mother province or provinces at the time of said
creation to less than the minimum requirements under this section.
The territory need not be contiguous if it comprises two or more
islands.
The average estimated annual income shall include the income
alloted for both the general and infrastructural funds, exclusive of
trust funds, transfers and nonrecurring income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas
holidays during which the Court was in recess and unable to timely
consider the petition, a supplemental pleading was filed by
petitioners on January 4, 1986, averring therein that the plebiscite
sought to be restrained by them was held on January 3, 1986 as
scheduled but that there are still serious issues raised in the instant
case affecting the legality, constitutionality and validity of such
exercise which should properly be passed upon and resolved by this
Court.
The plebiscite was confined only to the inhabitants of the territory of
Negros del Nrte, namely: the Cities of Silay, Cadiz, and San Carlos,
and the municipalities of Calatrava, Taboso, Escalante, Sagay,
Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto.
Because of the exclusions of the voters from the rest of the province
of Negros Occidental, petitioners found need to change the prayer of
their petition "to the end that the constitutional issues which they
have raised in the action will be ventilated and given final
resolution.'"At the same time, they asked that the effects of the
plebiscite which they sought to stop be suspended until the Supreme
Court shall have rendered its decision on the very fundamental and
far-reaching questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening
events rendered moot the prayer in their initial petition that the
plebiscite scheduled for January 3, 1986, be enjoined, petitioners
plead, nevertheless, that-
... a writ of Prohibition be issued, directed to Respondent
Commission on Elections to desist from issuing official proclamation
of the results of the plebiscite held on January 3, 1986.
Finding that the exclusion and non-participation of the voters of the
Province of Negros Occidental other than those living within the
territory of the new province of Negros del Norte to be not in
accordance with the Constitution, that a writ of mandamus be issued,
directed to the respondent Commission on Elections, to schedule the
holding of another plebiscite at which all the qualified voters of the
entire Province of Negros Occidental as now existing shall
participate, at the same time making pronouncement that the
plebiscite held on January 3, 1986 has no legal effect, being a patent
legal nullity;
And that a similar writ of Prohibition be issued, directed to the
respondent Provincial Treasurer, to desist from ordering the release of
any local funds to answer for expenses incurred in the holding of
such plebiscite until ordered by the Court. (Rollo pp. 9-10).
Petitioners further prayed that the respondent COMELEC hold in
abeyance the issuance of any official proclamation of the results of
the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to
appear as amicus curiae in this case (dated December 27, 1985 and
filed with the Court on January 2, 1986) was submitted by former
Senator Ambrosio Padilla. Said motion was granted in Our resolution
of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for
prohibition with preliminary injunction with prayer for restraining
order, the Court, on January 7, 1986 resolved, without giving due
course to the same, to require respondents to comment, not to file a
motion to dismiss. Complying with said resolution, public
respondents, represented by the Office of the Solicitor General, on
January 14, 1986, filed their Comment, arguing therein that the
challenged statute.-Batas Pambansa 885, should be accorded the
presumption of legality. They submit that the said law is not void on
its face and that the petition does not show a clear, categorical and
undeniable demonstration of the supposed infringement of the
Constitution. Respondents state that the powers of the Batasang-
Pambansa to enact the assailed law is beyond question. They claim
that Batas Pambansa Big. 885 does not infringe the Constitution
because the requisites of the Local Government Code have been
complied with. Furthermore, they submit that this case has now
become moot and academic with the proclamation of the new
Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the
Province of Negros Occidental not included in the area of the new
Province of Negros del Norte, de not fall within the meaning and
scope of the term "unit or units affected", as referred to in Section 3
of Art. XI of our Constitution. On this reasoning, respondents
maintain that Batas Pambansa Blg. 885 does not violate the
Constitution, invoking and citing the case of Governor Zosimo
Paredes versus the Honorable Executive Secretary to the President,
et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly
the pronouncements therein, hereunder quoted:
1. Admittedly,this is one of those cases where the discretion of the
Court is allowed considerable leeway. There is indeed an element of
ambiguity in the use of the expression 'unit or units affected'. It is
plausible to assert as petitioners do that when certain Barangays are
separated from a parent municipality to form a new one, all the voters
therein are affected. It is much more persuasive, however, to contend
as respondents do that the acceptable construction is for those voters,
who are not from the barangays to be separated, should be excluded
in the plebiscite.
2. For one thing, it is in accordance with the settled doctrine that
between two possible constructions, one avoiding a finding of
unconstitutionality and the other yielding such a result, the former is
to be preferred. That which will save, not that which will destroy,
commends itself for acceptance. After all, the basic presumption all
these years is one of validity. ...
3. ... Adherence to such philosophy compels the conclusion that when
there are indications that the inhabitants of several barangays are
inclined to separate from a parent municipality they should be
allowed to do so. What is more logical than to ascertain their will in a
plebiscite called for that purpose. It is they, and they alone, who shall
constitute the new unit. New responsibilities will be assumed. New
burdens will be imposed. A new municipal corporation will come into
existence. Its birth will be a matter of choice-their choice. They
should be left alone then to decide for themselves. To allow other
voters to participate will not yield a true expression of their will.
They may even frustrate it, That certainly will be so if they vote
against it for selfish reasons, and they constitute the majority. That is
not to abide by the fundamental principle of the Constitution to
promote local autonomy, the preference being for smaller units. To
rule as this Tribunal does is to follow an accepted principle of
constitutional construction, that in ascertaining the meaning of a
particular provision that may give rise to doubts, the intent of the
framers and of the people may be gleaned from provisions in pari
materia.
Respondents submit that said ruling in the aforecited case applies
equally with force in the case at bar. Respondents also maintain that
the requisites under the Local Government Code (P.D. 337) for the
creation of the new province of Negros del Norte have all been duly
complied with, Respondents discredit petitioners' allegations that the
requisite area of 3,500 square kilometers as so prescribed in the Local
Government Code for a new province to be created has not been
satisfied. Petitioners insist that the area which would comprise the
new province of Negros del Norte, would only be about 2,856.56
square kilometers and which evidently would be lesser than the
minimum area prescribed by the governing statute. Respondents, in
this regard, point out and stress that Section 2 of Batas Pambansa
Blg. 885 creating said new province plainly declares that the
territorial boundaries of Negros del Norte comprise an area of
4,019.95 square kilometers, more or less.
As a final argument, respondents insist that instant petition has been
rendered moot and academic considering that a plebiscite has been
already conducted on January 3, 1986; that as a result thereof, the
corresponding certificate of canvass indicated that out of 195,134
total votes cast in said plebiscite, 164,734 were in favor of the
creation of Negros del Norte and 30,400 were against it; and because
"the affirmative votes cast represented a majority of the total votes
cast in said plebiscite, the Chairman of the Board of Canvassers
proclaimed the new province which shall be known as "Negros del
Norte". Thus, respondents stress the fact that following the
proclamation of Negros del Norte province, the appointments of the
officials of said province created were announced. On these
considerations, respondents urge that this case should be dismissed
for having been rendered moot and academic as the creation of the
new province is now a "fait accompli."
In resolving this case, it will be useful to note and emphasize the
facts which appear to be agreed to by the parties herein or stand
unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the
Province of Negros Occidental has not disbursed, nor was required to
disburse any public funds in connection with the plebiscite held on
January 3, 1986 as so disclosed in the Comment to the Petition filed
by the respondent Provincial Treasurer of Negros Occidental dated
January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the
petitioners that said Provincial Treasurer be directed by this Court to
desist from ordering the release of any public funds on account of
such plebiscite should not longer deserve further consideration.
Secondly, in Parliamentary Bill No. 3644 which led to the enactment
of Batas Pambansa Blg. 885 and the creation of the new Province of
Negros del Norte, it expressly declared in Sec. 2 of the
aforementioned Parliamentary Bill, the following:
SEC. 2. The boundaries of the new province shall be the southern
limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the South and the natural boundaries of
the northern portion of the Island of Negros on the West, North and
East, containing an area of 285,656 hectares more or less. (Emphasis
supplied).
However, when said Parliamentary Bill No. 3644 was very quickly
enacted into Batas Pambansa Blg. 885, the boundaries of the new
Province of Negros del Norte were defined therein and its boundaries
then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the
municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern
portion of the Island of Negros, are hereby separated from the
Province of Negros Occidental and constituted into a new province to
be known as the Province of Negros del Norte.
SEC. 1. The boundaries of the new province shall be the southern
limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the south and the territorial limits of
the northern portion of the Island of Negros on the West, North and
East, comprising a territory of 4,019.95 square kilometers more or
less.
Equally accepted by the parties is the fact that under the certification
issued by Provincial Treasurer Julian L. Ramirez of the Province of
Negros Occidental, dated July 16, 1985, it was therein certified as
follows:
xxx xxx xxx
This is to certify that the following cities and municipalities of
Negros Occidental have the land area as indicated hereunder based
on the Special Report No. 3, Philippines 1980, Population, Land Area
and Density: 1970, 1975 and 1980 by the National Census and
Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6
7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto.................................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for
whatever purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).
Although in the above certification it is stated that the land area of the
relatively new municipality of Don Salvador Benedicto is not
available, it is an uncontradicted fact that the area comprising Don
Salvador municipality, one of the component units of the new
province, was derived from the City of San Carlos and from the
Municipality of Calatrava, Negros Occidental, and added thereto was
a portion of about one-fourth the land area of the town of Murcia,
Negros Occidental. It is significant to note the uncontroverted
submission of petitioners that the total land area of the entire
municipality of Murcia, Negros Occidental is only 322.9 square
kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area
of Murcia that was added to the portions derived from the land area
of Calatrava, Negros Occidental and San Carlos City (Negros
Occidental) would constitute, therefore, only 80.2 square kilometers.
This area of 80.2 square kilometers if then added to 2,685.2 square
kilometers, representing the total land area of the Cities of Silay, San
Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias,
Manapla, Sagay, Escalante, Taboso and Calatrava, will result in
approximately an area of only 2,765.4 square kilometers using as
basis the Special Report, Philippines 1980, Population, Land Area
and Density: 1970, 1975 and 1980 of the National Census and
Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).
No controversion has been made by respondent with respect to the
allegations of petitioners that the original provision in the draft
legislation, Parliamentary Bill No. 3644, reads:
SEC. 4. A plebiscite shall be conducted in the areas affected within a
period of one hundred and twenty days from the approval of this Act.
After the ratification of the creation of the Province of Negros del
Norte by a majority of the votes cast in such plebiscite, the President
shall appoint the first officials of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a
significant change in the above provision. The statute, as modified,
provides that the requisite plebiscite "shall be conducted in the
proposed new province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively
to the cities and towns which would comprise the new province that
is assailed by the petitioners as violative of the provisions of our
Constitution. Petitioners submit that Sec. 3, ART XI thereof,
contemplates a plebiscite that would be held in the unit or units
affected by the creation of the new province as a result of the
consequent division of and substantial alteration of the boundaries of
the existing province. In this instance, the voters in the remaining
areas of the province of Negros Occidental should have been allowed
to participate in the questioned plebiscite.
Considering that the legality of the plebiscite itself is challenged for
non-compliance with constitutional requisites, the fact that such
plebiscite had been held and a new province proclaimed and its
officials appointed, the case before Us cannot truly be viewed as
already moot and academic. Continuation of the existence of this
newly proclaimed province which petitioners strongly profess to have
been illegally born, deserves to be inquired into by this Tribunal so
that, if indeed, illegality attaches to its creation, the commission of
that error should not provide the very excuse for perpetuation of such
wrong. For this Court to yield to the respondents' urging that, as there
has been fait accompli then this Court should passively accept and
accede to the prevailing situation is an unacceptable suggestion.
Dismissal of the instant petition, as respondents so propose is a
proposition fraught with mischief. Respondents' submission will
create a dangerous precedent. Should this Court decline now to
perform its duty of interpreting and indicating what the law is and
should be, this might tempt again those who strut about in the
corridors of power to recklessly and with ulterior motives, create,
merge, divide and/or alter the boundaries of political subdivisions,
either brazenly or stealthily, confident that this Court will abstain
from entertaining future challenges to their acts if they manage to
bring about a fait accompli.
In the light of the facts and circumstances alluded to by petitioners as
attending to the unusually rapid creation of the instant province of
Negros del Norte after a swiftly scheduled plebiscite, this Tribunal
has the duty to repudiate and discourage the commission of acts
which run counter to the mandate of our fundamental law, done by
whatever branch of our government. This Court gives notice that it
will not look with favor upon those who may be hereafter inclined to
ram through all sorts of legislative measures and then implement the
same with indecent haste, even if such acts would violate the
Constitution and the prevailing statutes of our land. It is illogical to
ask that this Tribunal be blind and deaf to protests on the ground that
what is already done is done. To such untenable argument the reply
would be that, be this so, the Court, nevertheless, still has the duty
and right to correct and rectify the wrong brought to its attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area of the
new province of Negros del Norte, the more significant and pivotal
issue in the present case revolves around in the interpretation and
application in the case at bar of Article XI, Section 3 of the
Constitution, which being brief and for convenience, We again quote:
SEC. 3. No province, city, municipality or barrio may be created,
divided, merged abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional provision
makes it imperative that there be first obtained "the approval of a
majority of votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged and there is
substantial alteration of the boundaries. It is thus inescapable to
conclude that the boundaries of the existing province of Negros
Occidental would necessarily be substantially altered by the division
of its existing boundaries in order that there can be created the
proposed new province of Negros del Norte. Plain and simple logic
will demonstrate than that two political units would be affected. The
first would be the parent province of Negros Occidental because its
boundaries would be substantially altered. The other affected entity
would be composed of those in the area subtracted from the mother
province to constitute the proposed province of Negros del Norte.
We find no way to reconcile the holding of a plebiscite that should
conform to said constitutional requirement but eliminates the
participation of either of these two component political units. No
amount of rhetorical flourishes can justify exclusion of the parent
province in the plebiscite because of an alleged intent on the part of
the authors and implementors of the challenged statute to carry out
what is claimed to be a mandate to guarantee and promote autonomy
of local government units. The alleged good intentions cannot prevail
and overrule the cardinal precept that what our Constitution
categorically directs to be done or imposes as a requirement must
first be observed, respected and complied with. No one should be
allowed to pay homage to a supposed fundamental policy intended to
guarantee and promote autonomy of local government units but at the
same time transgress, ignore and disregard what the Constitution
commands in Article XI Section 3 thereof. Respondents would be no
different from one who hurries to pray at the temple but then spits at
the Idol therein.
We find no merit in the submission of the respondents that the
petition should be dismissed because the motive and wisdom in
enacting the law may not be challenged by petitioners. The principal
point raised by the petitioners is not the wisdom and motive in
enacting the law but the infringement of the Constitution which is a
proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment of
B.P. Blg. 885 to say the least, are most enlightening and provoking
but are factual issues the Court cannot properly pass upon in this
case. Mention by petitioners of the unexplained changes or
differences in the proposed Parliamentary Bill No. 3644 and the
enacted Batas Pambansa Blg. 885; the swift and surreptitious manner
of passage and approval of said law; the abrupt scheduling of the
plebiscite; the reference to news articles regarding the questionable
conduct of the said plebiscite held on January 3, 1986; all serve as
interesting reading but are not the decisive matters which should be
reckoned in the resolution of this case.
What the Court considers the only significant submissions lending a
little support to respondents' case is their reliance on the rulings and
pronouncements made by this Court in the case of Governor Zosimo
Paredes versus The Honorable Executive Secretary to the President,
et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case
relating to a plebiscite held to ratify the creation of a new
municipality from existing barangays, this Court upheld the legality
of the plebiscite which was participated in exclusively by the people
of the barangay that would constitute the new municipality.
This Court is not unmindful of this solitary case alluded to by
respondents. What is, however, highly significant are the prefatory
statements therein stating that said case is "one of those cases where
the discretion of the Court is allowed considerable leeway" and that
"there is indeed an element of ambiguity in the use of the expression
unit or units affected." The ruling rendered in said case was based on
a claimed prerogative of the Court then to exercise its discretion on
the matter. It did not resolve the question of how the pertinent
provision of the Constitution should be correctly interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable
Executive Secretary, et al. (supra) should not be taken as a doctrinal
or compelling precedent when it is acknowledged therein that "it is
plausible to assert, as petitioners do, that when certain Barangays are
separated from a parent municipality to form a new one, all the voters
therein are affected."
It is relevant and most proper to mention that in the aforecited case
of Paredes vs. Executive Secretary, invoked by respondents, We find
very lucidly expressed the strong dissenting view of Justice Vicente
Abad Santos, a distinguished member of this Court, as he therein
voiced his opinion, which We hereunder quote:
2. ... when the Constitution speaks of "the unit or units affected" it
means all of the people of the municipality if the municipality is to be
divided such as in the case at bar or an of the people of two or more
municipalities if there be a merger. I see no ambiguity in the
Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the—
forerunner of the ruling which We now consider applicable to the
case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he
therein assailed as suffering from a constitutional infirmity a
referendum which did not include all the people of Bulacan and
Rizal, when such referendum was intended to ascertain if the people
of said provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful
guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is
now afforded the present Court. The reasons in the mentioned cases
invoked by respondents herein were formerly considered acceptable
because of the views then taken that local autonomy would be better
promoted However, even this consideration no longer retains
persuasive value.
The environmental facts in the case before Us readily disclose that
the subject matter under consideration is of greater magnitude with
concomitant multifarious complicated problems. In the earlier case,
what was involved was a division of a barangay which is the smallest
political unit in the Local Government Code. Understandably, few
and lesser problems are involved. In the case at bar, creation of a new
province relates to the largest political unit contemplated in Section
3, Art. XI of the Constitution. To form the new province of Negros
del Norte no less than three cities and eight municipalities will be
subtracted from the parent province of Negros Occidental. This will
result in the removal of approximately 2,768.4 square kilometers
from the land area of an existing province whose boundaries will be
consequently substantially altered. It becomes easy to realize that the
consequent effects cf the division of the parent province necessarily
will affect all the people living in the separate areas of Negros
Occidental and the proposed province of Negros del Norte. The
economy of the parent province as well as that of the new province
will be inevitably affected, either for the better or for the worse.
Whatever be the case, either or both of these political groups will be
affected and they are, therefore, the unit or units referred to in Section
3 of Article XI of the Constitution which must be included in the
plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a
particular provision that may give rise to doubts, the intent of the
framers and of the people, may be gleaned from the provisions
in pari materia." Parliamentary Bill No. 3644 which proposed the
creation of the new province of Negros del Norte recites in Sec. 4
thereof that "the plebiscite shall be conducted in the areas affected
within a period of one hundred and twenty days from the approval of
this Act." As this draft legislation speaks of "areas," what was
contemplated evidently are plurality of areas to participate in the
plebiscite. Logically, those to be included in such plebiscite would be
the people living in the area of the proposed new province and those
living in the parent province. This assumption will be consistent with
the requirements set forth in the Constitution.
We fail to find any legal basis for the unexplained change made when
Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg.
885 so that it is now provided in said enabling law that the plebiscite
"shall be conducted in the proposed new province which are the areas
affected." We are not disposed to agree that by mere legislative fiat
the unit or units affected referred in the fundamental law can be
diminished or restricted by the Batasang Pambansa to cities and
municipalities comprising the new province, thereby ignoring the
evident reality that there are other people necessarily affected.
In the mind of the Court, the change made by those responsible for
the enactment of Batas Pambansa Blg. 885 betrays their own
misgivings. They must have entertained apprehensions that by
holding the plebiscite only in the areas of the new proposed province,
this tactic will be tainted with illegality. In anticipation of a possible
strong challenge to the legality of such a plebiscite there was,
therefore, deliberately added in the enacted statute a self-serving
phrase that the new province constitutes the area affected. Such
additional statement serves no useful purpose for the same is
misleading, erroneous and far from truth. The remaining portion of
the parent province is as much an area affected. The substantial
alteration of the boundaries of the parent province, not to mention the
other adverse economic effects it might suffer, eloquently argue the
points raised by the petitioners.
Petitioners have averred without contradiction that after the creation
of Negros del Norte, the province of Negros Occidental would be
deprived of the long established Cities of Silay, Cadiz, and San
Carlos, as well as the municipality of Victorias. No controversion has
been made regarding petitioners' assertion that the areas of the
Province of Negros Occidental will be diminished by about 285,656
hectares and it will lose seven of the fifteen sugar mills which
contribute to the economy of the whole province. In the language of
petitioners, "to create Negros del Norte, the existing territory and
political subdivision known as Negros Occidental has to be
partitioned and dismembered. What was involved was no 'birth' but
"amputation." We agree with the petitioners that in the case of Negros
what was involved was a division, a separation; and consequently, as
Sec. 3 of Article XI of the Constitution anticipates, a substantial
alteration of boundary.
As contended by petitioners,—
Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in
the constitutional provision do not contemplate distinct situation
isolated from the mutually exclusive to each other. A Province
maybe created where an existing province is divided or two
provinces merged. Such cases necessarily will involve existing unit
or units abolished and definitely the boundary being substantially
altered.
It would thus be inaccurate to state that where an existing political
unit is divided or its boundary substantially altered, as the
Constitution provides, only some and not all the voters in the whole
unit which suffers dismemberment or substantial alteration of its
boundary are affected. Rather, the contrary is true.
It is also Our considered view that even hypothetically assuming that
the merits of this case can depend on the mere discretion that this
Court may exercise, nevertheless, it is the petitioners' case that
deserve to be favored.
It is now time for this Court to set aside the equivocations and the
indecisive pronouncements in the adverted case of Paredes vs. the
Honorable Executive Secretary, et al. (supra). For the reasons already
here express, We now state that the ruling in the two mentioned cases
sanctioning the exclusion of the voters belonging to an existing
political unit from which the new political unit will be derived, from
participating in the plebiscite conducted for the purpose of
determining the formation of another new political unit, is hereby
abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed for
by petitioners that a writ of mandamus be issued, directing the
respondent Commission on Elections, to schedule the holding of
another plebiscite at which all the qualified voters of the entire
province of Negros Occidental as now existing shall participate and
that this Court make a pronouncement that the plebiscite held on
January 3, 1986 has no legal effect for being a patent nullity.
The Court is prepared to declare the said plebiscite held on January 3,
1986 as null and void and violative of the provisions of Sec. 3,
Article XI of the Constitution. The Court is not, however, disposed to
direct the conduct of a new plebiscite, because We find no legal basis
to do so. With constitutional infirmity attaching to the subject Batas
Pambansa Big. 885 and also because the creation of the new province
of Negros del Norte is not in accordance with the criteria established
in the Local Government Code, the factual and legal basis for the
creation of such new province which should justify the holding of
another plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has been
gained by the new province of Negros del Norte because of the
appointment of the officials thereof, must now be erased. That
Negros del Norte is but a legal fiction should be announced. Its
existence should be put to an end as quickly as possible, if only to
settle the complications currently attending to its creation. As has
been manifested, the parent province of Negros del Norte has been
impleaded as the defendant in a suit filed by the new Province of
Negros del Norte, before the Regional Trial Court of Negros (del
Norte), docketed as Civil Case No. 169-C, for the immediate
allocation, distribution and transfer of funds by the parent province to
the new province, in an amount claimed to be at least
P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the
legality of the province of Negros del Norte is the significant fact that
this created province does not even satisfy the area requirement
prescribed in Section 197 of the Local Government Code, as earlier
discussed.
It is of course claimed by the respondents in their Comment to the
exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19
and 91), that the new province has a territory of 4,019.95 square
kilometers, more or less. This assertion is made to negate the proofs
submitted, disclosing that the land area of the new province cannot be
more than 3,500 square kilometers because its land area would, at
most, be only about 2,856 square kilometers, taking into account
government statistics relative to the total area of the cities and
municipalities constituting Negros del Norte. Respondents insist that
when Section 197 of the Local Government Code speaks of the
territory of the province to be created and requires that such territory
be at least 3,500 square kilometers, what is contemplated is not only
the land area but also the land and water over which the said province
has jurisdiction and control. It is even the submission of the
respondents that in this regard the marginal sea within the three mile
limit should be considered in determining the extent of the territory
of the new province. Such an interpretation is strained, incorrect, and
fallacious.
The last sentence of the first paragraph of Section 197 is most
revealing. As so stated therein the "territory need not be contiguous if
it comprises two or more islands." The use of the word territory in
this particular provision of the Local Government Code and in the
very last sentence thereof, clearly reflects that "territory" as therein
used, has reference only to the mass of land area and excludes the
waters over which the political unit exercises control.
Said sentence states that the "territory need not be contiguous."
Contiguous means (a) in physical contact; (b) touching along all or
most of one side; (c) near, text, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an
adjective, as in the above sentence, is only used when it describes
physical contact, or a touching of sides of two solid masses of matter.
The meaning of particular terms in a statute may be ascertained by
reference to words associated with or related to them in the statute
(Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore,
in the context of the sentence above, what need not be "contiguous"
is the "territory" the physical mass of land area. There would arise no
need for the legislators to use the word contiguous if they had
intended that the term "territory" embrace not only land area but also
territorial waters. It can be safely concluded that the word territory in
the first paragraph of Section 197 is meant to be synonymous with
"land area" only. The words and phrases used in a statute should be
given the meaning intended by the legislature (82 C.J.S., p. 636). The
sense in which the words are used furnished the rule of construction
(In re Winton Lumber Co., 63 p. 2d., p. 664).
The distinction between "territory" and "land area" which
respondents make is an artificial or strained construction of the
disputed provision whereby the words of the statute are arrested from
their plain and obvious meaning and made to bear an entirely
different meaning to justify an absurd or unjust result. The plain
meaning in the language in a statute is the safest guide to follow in
construing the statute. A construction based on a forced or artificial our people there would be exemplary citizens such as the petitioners
meaning of its words and out of harmony of the statutory scheme is herein.
not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared
It would be rather preposterous to maintain that a province with a unconstitutional. The proclamation of the new province of Negros del
small land area but which has a long, narrow, extended coast line, Norte, as well as the appointment of the officials thereof are also
(such as La Union province) can be said to have a larger territory declared null and void. SO ORDERED.
than a land-locked province (such as Ifugao or Benguet) whose land
area manifestly exceeds the province first mentioned. Republic of the Philippines

SUPREME COURT

Allegations have been made that the enactment of the questioned Manila
state was marred by "dirty tricks", in the introduction and passing of
Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister EN BANC
designs to achieve "pure and simple gerrymandering; "that recent
happenings more than amply demonstrate that far from guaranteeing G.R. No. 103328 October 19, 1992
its autonomy it (Negros del Norte) has become the fiefdom of a local
strongman" (Rollo, p. 43; emphasis supplied).
ROY A. PADILLA, petitioner, 

vs.

It is not for this Court to affirm or reject such matters not only THE COMMISSION ON ELECTIONS, respondent.
because the merits of this case can be resolved without need of
ascertaining the real motives and wisdom in the making of the
questioned law. No proper challenge on those grounds can also be
ROMERO, J.:
made by petitioners in this proceeding. Neither may this Court
venture to guess the motives or wisdom in the exercise of legislative
powers. Repudiation of improper or unwise actions taken by tools of Pursuant to Republic Act 7155, the Commission on Elections
a political machinery rests ultimately, as recent events have shown, promulgated on November 13, 1991, Resolution No. 2312 which
on the electorate and the power of a vigilant people. reads as follows:

"WHEREAS, Republic Act No. 7155 approved on September 6,

Petitioners herein deserve and should receive the gratitude of the
1991 creates the Municipality of Tulay-Na-Lupa in the Province of
people of the Province of Negros Occidental and even by our Nation.
Camarines Norte to be composed of Barangays Tulay-Na-Lupa,
Commendable is the patriotism displayed by them in daring to
Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan,
institute this case in order to preserve the continued existence of their
Matanlang, Pag-Asa, Maot, and Calabasa, all in the Municipality of
historic province. They were inspired undoubtedly by their faithful
Labo, same province.
commitment to our Constitution which they wish to be respected and
obeyed. Despite the setbacks and the hardships which petitioners aver
WHEREAS, under Section 10, Article X of the 1987 Constitution the
confronted them, they valiantly and unfalteringly pursued a worthy
creation of a municipality shall be subject to approval by a majority
cause. A happy destiny for our Nation is assured as long as among
of votes cast in a plebiscite in the political units directly affected, and
pursuant to Section 134 of the Local Government Code (Batas
Pambansa Blg. 337) said plebiscite shall be conducted by the
Commission on Elections;
WHEREAS, Section 6 of said Republic Act No. 7155 provides that
the expenses in holding the plebiscite shall be taken out of the
Contingent Fund under the current fiscal year appropriations;
NOW, THEREFORE, BE IT RESOLVED, as the Commission hereby
resolves, to promulgated the following guidelines to govern the
conduct of said plebiscite:
1. The plebiscite shall be held on December 15, 1991, in the areas
or units affected, namely the barangays comprising the proposed
Municipality of Tulay-Na-Lupa and the remaining areas of the
mother Municipality of Labo, Camarines Norte (Tan vs. COMELEC,
G.R. No. 73155, July 11, 1986).
In the plebiscite held on December 15, 1991 throughout the
Municipality of Labo, only 2,890 votes favored its creation while
3,439 voters voted against the creation of the Municipality of Tulay-
Na-Lupa. Consequently, the day after the political exercise, the
Plebiscite Board of Canvassers declared the rejection and disapproval
of the independent Municipality of Tulay-Na-Lupa by a majority of
votes.
Thus, in this special civil action of certiorari, petitioner as Governor
of Camarines Norte, seeks to set aside the plebiscite conducted on
December 15, 1991 throughout the Municipality of Labo and prays
that a new plebiscite be undertaken as provided by RA 7155. It is the
contention of petitioner that the plebiscite was a complete failure and
that the results obtained were invalid and illegal because the
plebiscite, as mandated by COMELEC Resolution No. 2312 should
have been conducted only in the political unit or units affected, i.e.
the 12 barangays comprising the new Municipality of Tulay-Na-Lupa
namely Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod,
Benit, Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa.
Petitioner stresses that the plebiscite should not have included the
remaining area of the mother unit of the Municipality of Labo,
Camarines Norte.
In support of his stand, petitioner argues that with the approval and
ratification of the 1987 Constitution, particularly Article X, Section
10, the ruling set forth in Tan v. COMELEC relied upon by
respondent COMELEC is now passe, thus reinstating the case
of Paredes v.Executive Secretary which held that where a local unit is
to be segregated from a parent unit, only the voters of the unit to be
segrated should be included in the plebiscite.
Accordingly, the issue in this case is whether or not respondent
COMELEC committed grave abuse of discretion in promulgating
Resolution No. 2312 and, consequently, whether or not the plebiscite
conducted in the areas comprising the proposed Municipality of
Tulay-Na-Lupa and the remaining areas of the mother Municipality
of Labo is valid.
We rule that respondent COMELEC did not commit grave abuse in
promulgating Resolution No. 2312 and that the plebiscite, which
rejected the creation of the proposed Municipality of Tulay-Na-Lupa,
is valid.
Petitioner's contention that our ruling in Tan v. COMELEC has been
superseded with the ratification of the 1987 Constitution, thus
reinstating our earlier ruling in Paredes v. COMELEC is untenable.
Petitioner opines that since Tan v. COMELEC was based on Section
3 of Article XI of the 1973 Constitution our ruling in said case is no
longer applicable under Section 10 of Article X of the 1987
Constitution, especially since the latter provision deleted the words
"unit or."
We do not agree. The deletion of the phrase "unit or" in Section 10,
Article X of the 1987 Constitution from its precursor, Section 3 of
Article XI of the 1973 Constitution has not affected our ruling
in Tan v. COMELEC as explained by then CONCOM Commissioner,
now my distinguished colleague, Associate Justice Hilario Davide,
during the debates in the 1986 Constitutional Commission, to wit:
Mr. Maambong. While we have already approved the deletion of
"unit or," I would like to inform the Committee that under the
formulation in the present Local Government Code, the words used
are actually "political unit or units." However, I do not know the
implication of the use of these words. Maybe there will be no
substantial difference, but I just want to inform the Committee about
this.
Mr. Nolledo. Can we not adhere to the original "unit or units"? will
there be no objection on the part of the two Gentlemen from the
floor?
Mr. Davide. I would object.
I precisely asked for the deletion of the words "unit or" because in the
plebiscite to be conducted, it must involve all the units affected.
If it is the creation of a barangay, the municipality itself must particip
ate in the plebiscite because it is affected.
It would mean a loss of a territory.
It stands to reason that when the law states that the plebiscite shall be
conducted "in the political units directly affected," it means that
residents of the political entity who would be economically
dislocated by the separation of a portion thereof have a right to vote
in said plebiscite. Evidently, what is contemplated by the phrase
"political units directly affected," is the plurality of political units
which would participate in the plebiscite. Logically, those to be
included in such political areas are the inhabitants of the 12
barangays of the proposed Municipality of Tulay-Na-Lupa as well as
those living in the parent Municipality of Labo, Camarines Norte.
Thus, we conclude that respondent COMELEC did not commit grave
abuse of discretion in promulgating Resolution No. 2312.
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
SECOND DIVISION
G.R. No. 40243 March 11, 1992
CELESTINO TATEL, petitioner, 

vs.

MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his
capacity as Mayor of Virac, Catanduanes; GAVINO V.
GUERRERO, in his capacity as Vice-Mayor of Virac,
Catanduanes; JOSE T. BUEBOS, in his capacity as Councilor of
Virac, Catanduanes; ANGELES TABLIZO, in his capacity as
Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in his
capacity as Councilor of Virac, Catanduanes; MARIANO
ALBERTO, in his capacity as Councilor of Virac, Catanduanes;
JULIA A. GARCIA, in her capacity as Councilor of Virac,
Catanduanes; and PEDRO A. GUERRERO, in his capacity as
Councilor of Virac, Catanduanes, respondents.
NOCON, J.:
This is a Petition for Prohibition with Preliminary Injunction with the
Court of First Instance of Catanduanes filed by appellant, Celestino
Tatel, a businessman engaged in the import and export of abaca and
other products against the Municipal Council of Virac, Catanduanes
and its municipal officials enjoining them from enforcing Resolution
No 29 1of the Council, declaring the warehouse of petitioner in barrio
Sta. Elena of the said municipality a public nuisance within the
purview of Article 694 of the Civil Code of the Philippines and
directing the petitioner to remove and transfer said warehouse to a
more suitable place within two (2) months from receipt of the said
resolution.
It appears from the records that on the basis of complaints received
from the residents of barrio Sta. Elena on March 18, 1966 against the
disturbance caused by the operation of the abaca bailing machine
inside the warehouse of petitioner which affected the peace and
tranquility of the neighborhood due to the smoke, obnoxious odor
and dust emitted by the machine, a committee was appointed by the
municipal council of Virac to investigate the matter. The committee
noted the crowded nature of the neighborhood with narrow roads and
the surrounding residential houses, so much so that an accidental fire
within the warehouse of the petitioner occasioned by the continuance
of the activity inside the warehouse and the storing of inflammable
materials created a danger to the lives and properties of the people
within the neighborhood.
Resultantly, Resolution No. 29 was passed by the Municipal Council
of Virac on April 22, 1966 declaring the warehouse owned and
operated by petitioner a public nuisance within the purview of Article
694 of the New Civil Code. 2
His motion for reconsideration having been denied by the Municipal
Council of Virac, petitioner instituted the present petition for
prohibition with preliminary injunction.
Respondent municipal officials contend that petitioner's warehouse
was constructed in violation of Ordinance No. 13, series of 1952,
prohibiting the construction of warehouses near a block of houses
either in the poblacion or barrios without maintaining the necessary
distance of 200 meters from said block of houses to avoid loss of
lives and properties by accidental fire.
On the other hand, petitioner contends that said ordinance is
unconstitutional, contrary to the due process and equal protection
clause of the Constitution and null and void for not having been
passed in accordance with law.
The issue then boils down on whether petitioner's warehouse is a
nuisance within the meaning of Article 694 of the Civil Code and
whether Ordinance No. 13, S. 1952 of the Municipality of Virac is
unconstitutional and void.
In a decision dated September 18, 1969, the court a quo ruled as
follows:
1. The warehouse in question was legally constructed under a valid
permit issued by the municipality of Virac in accordance with
existing regulations and may not be destroyed or removed from its
present location;
2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise
of police power by the Municipal Council of Virac is not (sic)
unconstitutional and void as claimed by the petitioner;
3. The storage by the petitioner of abaca and copra in the warehouse
is not only in violation of the provisions of the ordinance but poses a
grave danger to the safety of the lives and properties of the residents
of the neighborhood due to accidental fire and constitutes a public
nuisance under the provisions of Article 694 of the New Civil code of
the Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from the
said warehouse all abaca and copra and other inflammable articles
stored therein which are prohibited under the provisions of Ordinance
No. 13, within a period of two (2) months from the time this decision
becomes final and that henceforth, the petitioner is enjoined from
storing such prohibited articles in the warehouse. With costs against
petitioner.
Seeking appellate review, petitioner raised as errors of the court a
quo:
1. In holding that Ordinance No. 13, series of 1952, of the
Municipality of Virac, Catanduanes, is a legitimate and valid exercise
of police power of the Municipal Council, and therefore,
constitutional;
2. In giving the ordinance a meaning other than and different from
what it provided by declaring that petitioner violated the same by
using the warehouse for storage of abaca and copra when what is
prohibited and penalized by the ordinance is the construction of
warehouses.
3. In refusing to take judicial notice of the fact that in the
municipality, there are numerous establishments similarly situated as
appellants' warehouses but which are not prosecuted.
We find no merit in the Petition.
Ordinance No. 13, series of 1952, was passed by the Municipal
Council of Virac in the exercise of its police power. It is a settled
principle of law that municipal corporations are agencies of the State
for the promotion and maintenance of local self-government and as
such are endowed with the police powers in order to effectively
accomplish and carry out the declared objects of their creation. 3 Its
authority emanates from the general welfare clause under the
Administrative Code, which reads:
The municipal council shall enact such ordinances and make such
regulations, not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon it by law
and such as shall seem necessary and proper to provide for the health
and safety, promote the prosperity, improve the morals, peace, good
order, comfort and convenience of the municipality and the
inhabitants thereof, and for the protection of property therein. 4
For an ordinance to be valid, it must not only be within the corporate
powers of the municipality to enact but must also be passed
according to the procedure prescribed by law, and must be in
consonance with certain well established and basic principles of a
substantive nature. These principles require that a municipal
ordinance (1) must not contravene the Constitution or any statute (2)
must not be unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade (5) must
be general and consistent with public policy, and (6) must not be
unreasonable. 5 Ordinance No. 13, Series of 1952, meets these
criteria.
As to the petitioner's second assignment of error, the trial court did
not give the ordinance in question a meaning other than what it says.
Ordinance No. 13 passed by the Municipal Council of Virac on
December 29, 1952, 6 reads:
A N O R D I N A N C E S T R I C T LY P R O H I B I T I N G T H E
CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A
BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO
WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES OF
PROPERTY AND LIVES BY FIRE ACCIDENT.
Section 1 provides:
It is strictly prohibited to construct warehouses in any form to any
person, persons, entity, corporation or merchants, wherein to keep or
store copra, hemp, gasoline, petroleum, alcohol, crude oil, oil of
turpentine and the like products or materials if not within the distance
of 200 meters from a block of houses either in the poblacion or
barrios to avoid great losses of properties inclusive lives by fire
accident.
Section 2 provides: 7
Owners of warehouses in any form, are hereby given advice to
remove their said warehouses this ordinance by the Municipal
Council, provided however, that if those warehouses now in existence
should no longer be utilized as such warehouse for the above-
described products in Section 1 of this ordinance after a lapse of the
time given for the removal of the said warehouses now in existence,
same warehouses shall be exempted from the spirit of the provision
of section 1 of this ordinance,provided further, that these warehouses
now in existence, shall in the future be converted into non-
inflammable products and materials warehouses.
In spite of its fractured syntax, basically, what is regulated by the
ordinance is the construction of warehouses wherein inflammable
materials are stored where such warehouses are located at a distance
of 200 meters from a block of houses and not the construction per
se of a warehouse. The purpose is to avoid the loss of life and
property in case of fire which is one of the primordial obligation of
the government.
This was also the observation of the trial court:
A casual glance of the ordinance at once reveals a manifest disregard
of the elemental rules of syntax. Experience, however, will show that
this is not uncommon in law making bodies in small towns where
local authorities and in particular the persons charged with the
drafting and preparation of municipal resolutions and ordinances lack
sufficient education and training and are not well grounded even on
the basic and fundamental elements of the English language
commonly used throughout the country in such matters.
Nevertheless, if one scrutinizes the terms of the ordinance, it is clear
that what is prohibited is the construction of warehouses by any
person, entity or corporation wherein copra, hemp, gasoline and other
inflammable products mentioned in Section 1 may be stored unless at
a distance of not less than 200 meters from a block of houses either in
the poblacion or barrios in order to avoid loss of property and life due
to fire. Under Section 2, existing warehouses for the storage of the
prohibited articles were given one year after the approval of the
ordinance within which to remove them but were allowed to remain
in operation if they had ceased to store such prohibited articles.
The ambiguity therefore is more apparent than real and springs from
simple error in grammatical construction but otherwise, the meaning
and intent is clear that what is prohibited is the construction or
maintenance of warehouses for the storage of inflammable articles at
a distance within 200 meters from a block of houses either in the
poblacion or in the barrios. And the purpose of the ordinance is to
avoid loss of life and property in case of accidental fire which is one
of the primordial and basic obligation of any government.
Clearly, the lower court did NOT add meaning other than or
differrent from what was provided in the ordinance in question. It
merely stated the purpose of the ordinance and what it intends to
prohibit to accomplish its purpose.
As to the third assignment of error, that warehouses similarly situated
as that of the petitioner were not prosecuted, suffice it to say that the
mere fact that the municipal authorities of Virac have not proceeded
against other warehouses in the municipality allegedly violating
Ordinance No. 13 is no reason to claim that the ordinance is
discriminatory. A distinction must be made between the law itself and
the manner in which said law is implemented by the agencies in
charge with its administration and enforcement. There is no valid
reason for the petitioner to complain, in the absence of proof that the
other bodegas mentioned by him are operating in violation of the
ordinance and that the complaints have been lodged against the
bodegas concerned without the municipal authorities doing anything
about it.
The objections interposed by the petitioner to the validity of the
ordinance have not been substantiated. Its purpose is well within the
objectives of sound government. No undue restraint is placed upon
the petitioner or for anybody to engage in trade but merely a
prohibition from storing inflammable products in the warehouse
because of the danger of fire to the lives and properties of the people
residing in the vicinity. As far as public policy is concerned, there can
be no better policy than what has been conceived by the municipal
government.
As to petitioner's contention of want of jurisdiction by the lower court
we find no merit in the same. The case is a simple civil suit for
abatement of a nuisance, the original jurisdiction of which falls under
the then Court of First Instance.
WHEREFORE, for lack of merit, the petition is hereby DISMISSED.
Costs against petitioner.
SO ORDERED.
 Republic of the Philippines
 On December 18, 1990, the Caloocan-Manila Drivers and Operators
SUPREME COURT
 Association sent a letter to the Court asking who should enforce the
Manila decision in the above-mentioned case, whether they could seek
damages for confiscation of their driver's licenses, and where they
EN BANC should file their complaints.

G.R. No. 102782 December 11, 1991
THE SOLICITOR GENERAL, RODOLFO A. MALAPIRA,
STEPHEN A. MONSANTO, DAN R. CALDERON, and
GRANDY N. TRIESTE, petitioners
 This was followed by a letter-complaint filed on March 7, 1991, from
vs.
 Dan R. Calderon, a lawyer, also for confiscation of his driver's
THE METROPOLITAN MANILA AUTHORITY and the
MUNICIPALITY OF MANDALUYONG, respondents.
CRUZ, J.:
In Metropolitan Traffic Command, West Traffic District v. Hon.
Arsenio M. Gonong, G.R. No. 91023, promulgated on July 13, 1990,
[1] the Court held that the confiscation of the license plates of motor
vehicles for traffic violations was not among the sanctions that could
be imposed by the Metro Manila Commission under PD 1605 and
was permitted only under the conditions laid down by LOI 43 in the
case of stalled vehicles obstructing the public streets. It was there
also observed that even the confiscation of driver's licenses for traffic
violations was not directly prescribed by the decree nor was it
allowed by the decree to be imposed by the Commission. No motion
for reconsideration of that decision was submitted. The judgment
became final and executory on August 6, 1990, and it was duly
entered in the Book of Entries of Judgments on July 13, 1990.
Another letter was received by the Court on February 14, 1991, from
Stephen L. Monsanto, complaining against the confiscation of his
driver's license by Traffic Enforcer A.D. Martinez for an alleged
traffic violation in Mandaluyong.
license by Pat. R.J. Tano-an of the Makati Police Force.
Still another complaint was received by the Court dated April 29,
1991, this time from Grandy N. Trieste, another lawyer, who also
protested the removal of his front license plate by E. Ramos of the
Metropolitan Manila Authority-Traffic Operations Center and the
confiscation of his driver's license by Pat. A.V. Emmanuel of the
Metropolitan Police Command-Western Police District.
Required to submit a Comment on the complaint against him, Allan
D. Martinez invoked Ordinance No. 7, Series of 1988, of
Mandaluyong, authorizing the confiscation of driver's licenses and
the removal of license plates of motor vehicles for traffic violations.
For his part, A.V. Emmanuel said he confiscated Trieste's driver's
license pursuant to a memorandum dated February 27, 1991, from the
District Commander of the Western Traffic District of the Philippine
National Police, authorizing such sanction under certain conditions.

Director General Cesar P. Nazareno of the Philippine National Police

Subsequently, the following developments transpired:
In a letter dated October 17, 1990, Rodolfo A. Malapira complained
to the Court that when he was stopped for an alleged traffic violation,
his driver's license was confiscated by Traffic Enforcer Angel de los
Reyes in Quezon City.
assured the Court in his own Comment that his office had never
authorized the removal of the license plates of illegally parked
vehicles and that he had in fact directed full compliance with the
above-mentioned decision in a memorandum, copy of which he
attached entitled Removal of Motor Vehicle License Plates and dated
February 28, 1991.
Pat. R.J. Tano-an, on the other hand, argued that the Gonong decision
prohibited only the removal of license plates and not the confiscation
of driver's licenses.
On May 24, 1990, the Metropolitan Manila Authority issued
Ordinance No. 11, Series of 1991, authorizing itself "to detach the
license plate/tow and impound attended/unattended/abandoned motor
vehicles illegally parked or obstructing the flow of traffic in Metro
Manila."
On July 2, 1991, the Court issued the following resolution:
The attention of the Court has been called to the enactment by the
Metropolitan Manila Authority of Ordinance No. 11, Series of 1991,
providing inter alia that:
Section 2. Authority to Detach Plate/Tow and Impound. The
Metropolitan Manila Authority, thru the Traffic Operations Center, is
authorized to detach the license plate/tow and impound attended/
unattended/abandoned motor vehicles illegally parked or obstructing
the flow of traffic in Metro Manila.
The provision appears to be in conflict with the decision of the Court
in the case at bar (as reported in 187 SCRA 432), where it was held
that the license plates of motor vehicles may not be detached except
only under the conditions prescribed in LOI 43. Additionally, the
Court has received several complaints against the confiscation by
police authorities of driver's licenses for alleged traffic violations,
which sanction is, according to the said decision, not among those
that may be imposed under PD 1605.
To clarify these matters for the proper guidance of law-enforcement
officers and motorists, the Court Resolved to require the Metropolitan
Manila Authority and the Solicitor General to submit, within ten (10)
days from notice hereof, separate COMMENTS on such sanctions in
light of the said decision.
In its Comment, the Metropolitan Manila Authority defended the said
ordinance on the ground that it was adopted pursuant to the powers
conferred upon it by EO 392. It particularly cited Section 2 thereof
vesting in the Council (its governing body) the responsibility among
others of:
1. Formulation of policies on the delivery of basic services requiring
coordination or consolidation for the Authority; and
2. Promulgation of resolutions and other issuances of metropolitan
wide application, approval of a code of basic services requiring
coordination, and exercise of its rule-making powers. (Emphasis
supplied)
The Authority argued that there was no conflict between the decision
and the ordinance because the latter was meant to supplement and not
supplant the latter. It stressed that the decision itself said that the
confiscation of license plates was invalid in the absence of a valid
law or ordinance, which was why Ordinance No. 11 was
enacted. The Authority also pointed out that the ordinance could not
be attacked collaterally but only in a direct action challenging its
validity.
For his part, the Solicitor General expressed the view that the
ordinance was null and void because it represented an invalid
exercise of a delegated legislative power. The flaw in the measure
was that it violated existing law, specifically PD 1605, which does
not permit, and so impliedly prohibits, the removal of license plates
and the confiscation of driver's licenses for traffic violations in
Metropolitan Manila. He made no mention, however, of the alleged
impropriety of examining the said ordinance in the absence of a
formal challenge to its validity.
On October 24, 1991, the Office of the Solicitor General submitted a
motion for the early resolution of the questioned sanctions, to remove
once and for all the uncertainty of their validity. A similar motion
was filed by the Metropolitan Manila Authority, which reiterated its
contention that the incidents in question should be dismissed because
there was no actual case or controversy before the Court.
The Metropolitan Manila Authority is correct in invoking the doctrine
that the validity of a law or act can be challenged only in a direct
action and not collaterally. That is indeed the settled
principle. However, that rule is not inflexible and may be relaxed by
the Court under exceptional circumstances, such as those in the
present controversy.
The Solicitor General notes that the practices complained of have
created a great deal of confusion among motorists about the state of
the law on the questioned sanctions. More importantly, he maintains
that these sanctions are illegal, being violative of law and the Gonong
decision, and should therefore be stopped. We also note the
disturbing report that one policeman who confiscated a driver's
license dismissed the Gonong decision as "wrong" and said the police
would not stop their "habit" unless they received orders "from the
top." Regrettably, not one of the complainants has filed a formal
challenge to the ordinances, including Monsanto and Trieste, who are
lawyers and could have been more assertive of their rights.
Given these considerations, the Court feels it must address the
problem squarely presented to it and decide it as categorically rather
than dismiss the complaints on the basis of the technical objection
raised and thus, through its inaction, allow them to fester.
The step we now take is not without legal authority or judicial
precedent. Unquestionably, the Court has the power to suspend
procedural rules in the exercise of its inherent power, as expressly
recognized in the Constitution, to promulgate rules concerning
"pleading, practice and procedure in all courts."[2] In proper cases,
procedural rules may be relaxed or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a
rigid and formalistic adherence to such rules.
The Court has taken this step in a number of such cases, notably
Araneta v. Dinglasan,[3] where Justice Tuason justified the deviation
on the ground that "the transcendental importance to the public of
these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure."
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed
to facilitate the attainment of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be
avoided. (Aznar III v. Bernad, G.R. No. 81190, May 9, 1988, 161
SCRA 276.) Time and again, this Court has suspended its own rules
and excepted a particular case from their operation whenever the
higher interests of justice so require. In the instant petition, we
forego a lengthy disquisition of the proper procedure that should have
been taken by the parties involved and proceed directly to the merits
of the case. (Piczon v. Court of Appeals, 190 SCRA 31.)
Three of the cases were consolidated for argument and the other two
were argued separately on other dates. Inasmuch as all of them
present the same fundamental question which, in our view, is
decisive, they will be disposed of jointly. For the same reason we
will pass up the objection to the personality or sufficiency of interest
of the petitioners in case G.R. No. L-3054 and case G.R. No. L-3056
and the question whether prohibition lies in cases G.R. Nos. L-2044
and L-2756. No practical benefit can be gained from a discussion of
these procedural matters, since the decision in the cases wherein the
petitioners' cause of action or the propriety of the procedure followed
is not in dispute, will be controlling authority on the others. Above
all, the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. (Avelino v. Cuenco, G.R. No.
L-2821 cited in Araneta v. Dinglasan, 84 Phil. 368.)
Accordingly, the Court will consider the motion to resolve filed by
the Solicitor General a petition for prohibition against the
enforcement of Ordinance No. 11-Series of 1991, of the Metropolitan
Manila Authority, and Ordinance No. 7, Series of 1988, of the
Municipality of Mandaluyong. Stephen A. Monsanto, Rodolfo A.
Malapira, Dan R. Calderon, and Grandy N. Trieste are considered co-
petitioners and the Metropolitan Manila Authority and the
Municipality of Mandaluyong are hereby impleaded as
respondents. This petition is docketed as G.R. No. 102782. The
comments already submitted are duly noted and shall be taken into
account by the Court in the resolution of the substantive issues raised.
It is stressed that this action is not intended to disparage procedural
rules, which the Court has recognized often enough as necessary to
the orderly administration of justice. If we are relaxing them in this
particular case, it is because of the failure of the proper parties to file
the appropriate proceeding against the acts complained of, and the
necessity of resolving, in the interest of the public, the important
substantive issues raised.
Now to the merits.
The Metro Manila Authority sustains Ordinance No. 11-Series of
1991, under the specific authority conferred upon it by EO 392, while
Ordinance No. 7, Series of 1988, is justified on the basis of the
General Welfare Clause embodied in the Local Government Code.
[4] It is not disputed that both measures were enacted to promote the
comfort and convenience of the public and to alleviate the worsening
traffic problems in Metropolitan Manila due in large part to violations
of traffic rules.
The Court holds that there is a valid delegation of legislative power
to promulgate such measures, it appearing that the requisites of such
delegation are present. These requisites are: 1) the completeness of
the statute making the delegation; and 2) the presence of a sufficient
standard.[5]
Under the first requirement, the statute must leave the legislature
complete in all its terms and provisions such that all the delegate will
have to do when the statute reaches it is to implement it. What only
can be delegated is not the discretion to determine what the law shall
be but the discretion to determine how the law shall be
enforced. This has been done in the case at bar.
As a second requirement, the enforcement may be effected only in
accordance with a sufficient standard, the function of which is to map
out the boundaries of the delegate's authority and thus "prevent the
delegation from running riot." This requirement has also been met. It
is settled that the "convenience and welfare" of the public,
particularly the motorists and passengers in the case at bar, is an
acceptable sufficient standard to delimit the delegate's authority.[6]
But the problem before us is not the validity of the delegation of
legislative power. The question we must resolve is the validity of
the exercise of such delegated power.
The measures in question are enactments of local governments acting
only as agents of the national legislature. Necessarily, the acts of
these agents must reflect and conform to the will of their
principal. To test the validity of such acts in the specific case now
before us, we apply the particular requisites of a valid ordinance as
laid down by the accepted principles governing municipal
corporations.
According to Elliot, a municipal ordinance, to be valid: 1) must not
contravene the Constitution or any statute; 2) must not be unfair or
oppressive; 3) must not be partial or discriminatory; 4) must not
prohibit but may regulate trade; 5) must not be unreasonable; and 7)
must be general and consistent with public policy.[7]
A careful study of the Gonong decision will show that the measures
under consideration do not pass the first criterion because they do not
conform to existing law. The pertinent law is PD 1605. PD 1605
does not allow either the removal of license plates or the confiscation
of driver's licenses for traffic violations committed in Metropolitan
Manila. There is nothing in the following provisions of the decree
authorizing the Metropolitan Manila Commission (and now the
Metropolitan Manila Authority) to impose such sanctions:
Section 1. The Metropolitan Manila Commission shall have the
power to impose fines and otherwise discipline drivers and operators
of motor vehicles for violations of traffic laws, ordinances, rules and
regulations in Metropolitan Manila in such amounts and under such
penalties as are herein prescribed. For this purpose, the powers of the
Land Transportation Commission and the Board of Transportation
under existing laws over such violations and punishment thereof are
hereby transferred to the Metropolitan Manila Commission. When
the proper penalty to be imposed is suspension or revocation of
driver's license or certificate of public convenience, the Metropolitan
Manila Commission or its representatives shall suspend or revoke
such license or certificate. The suspended or revoked driver's license
or the report of suspension of revocation of the certificate of public
convenience shall be sent to the Land Transportation Commission or
the Board of Transportation, as the case may be, for their records
update.
x x x imposed by the decree or at least allowed by it to be imposed by the
Section 3. Violations of traffic laws, ordinances, rules and
regulations, committed within a twelve-month period, reckoned from
the date of birth of the licensee, shall subject the violator to graduated
fines as follows: P10.00 for the first offense, P20.00 for the second
offense, P50.00 for the third offense, a one-year suspension of
driver's license for the fourth offense, and a revocation of the driver's
license for the fifth offense: Provided, That the Metropolitan Manila
Commission may impose higher penalties as it may deem proper for
violations of its ordinances prohibiting or regulating the use of
certain public roads, streets or thoroughfares in Metropolitan Manila.
x x x their own sources of revenue and to levy taxes is conferred by
Section 5. In case of traffic violations, the driver's license shall not
be confiscated but the erring driver shall be immediately issued a
traffic citation ticket prescribed by the Metropolitan
Manila Commission which shall state the violation committed, the
amount of fine imposed for the violation and an advice that he can
make payment to the city or municipal treasurer where the violation
was committed or to the Philippine National Bank or Philippine
Veterans Bank or their branches within seven days from the date of
issuance of the citation ticket.
If the offender fails to pay the fine imposed within the period herein
prescribed, the Metropolitan Manila Commission or the law-
enforcement agency concerned shall endorse the case to the proper
fiscal for appropriate proceedings preparatory to the filing of the case
with the competent traffic court, city or municipal court.
If at the time a driver renews his driver's license and records show
that he has an unpaid fine, his driver's license shall not be renewed
until he has paid the fine and corresponding surcharges.
x x x
Section 8. Insofar as the Metropolitan Manila area is concerned, all
laws, decrees, orders, ordinances, rules and regulations, or parts
thereof inconsistent herewith are hereby repealed or modified
accordingly. (Emphasis supplied).
In fact, the above provisions prohibit the imposition of such sanctions
in Metropolitan Manila. The Commission was allowed to "impose
fines and otherwise discipline" traffic violators only "in such amounts
and under such penalties as are herein prescribed," that is, by the
decree itself. Nowhere is the removal of license plates directly
Commission. Notably, Section 5 thereof expressly provides that "in
case of traffic violations, the driver's license shall not be confiscated."
These restrictions are applicable to the Metropolitan Manila
Authority and all other local political subdivisions comprising
Metropolitan Manila, including the Municipality of Mandaluyong.
The requirement that the municipal enactment must not violate
existing law explains itself. Local political subdivisions are able to
legislate only by virtue of a valid delegation of legislative power
from the national legislature (except only that the power to create
the Constitution itself).[8] They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the
Congress, the local government unit cannot contravene but must obey
at all times the will of their principal. In the case before us, the
enactments in question, which are merely local in origin, cannot
prevail against the decree, which has the force and effect of a statute.
The self-serving language of Section 2 of the challenged ordinance is
worth noting. Curiously, it is the measure itself, which was enacted
by the Metropolitan Manila Authority, that authorizes the
Metropolitan Manila Authority to impose the questioned sanction.
In Villacorta v. Bernardo,[9] the Court nullified an ordinance enacted
by the Municipal Board of Dagupan City for being violative of the
Land Registration Act. The decision held in part:
In declaring the said ordinance null and void, the
court a quo declared:
"From the above-recited requirements, there is no showing that
would justify the enactment of the questioned ordinance. Section 1
of said ordinance clearly conflicts with Section 44 of Act 496,
because the latter law does not require subdivision plans to
be submitted to the City Engineer before the same is submitted for
approval to and verification by the General Land Registration Office
or by the Director of Landsas provided for in Section 58 of
said Act. Section 2 of the same ordinance also contravenes the
provisions of Section 44 of Act 496, the latter being silent on a
service fee of P0.03 per square meter of every lot subject of such
subdivision application; Section 3 of the ordinance in question also
conflicts with Section 44 of Act 496, because the latter law does not
mention of a certification to be made by the City Engineer before the
Register of Deeds allows registration of the subdivision plan; and the
last section of said ordinance imposes a penalty for its violation,
which Section 44 of Act 496 does not impose. In other words,
Ordinance 22 of the City of Dagupan imposes upon a subdivision
owner additional conditions.
"The Court takes note of the laudable purpose of the ordinance in
bringing to a halt the surreptitious registration of lands belonging to
the government. But as already intimated above, the powers of the
board in enacting such a laudable ordinance cannot be held valid
when it shall impede the exercise of rights granted in a general law
and/or make a general law subordinated to a local ordinance."
We affirm.
To sustain the ordinance would be to open the floodgates to other
ordinances amending and so violating national laws in the guise of
implementing them. Thus, ordinances could be passed imposing
additional requirements for the issuance of marriage licenses, to
prevent bigamy; the registration of vehicles, to minimize carnapping;
the execution of contracts, to forestall fraud; the validation of
passports, to deter imposture; the exercise of freedom of speech, to
reduce disorder; and so on. The list is endless, but the means, even if
the end be valid, would be ultra vires.
The measures in question do not merely add to the requirement of PD
1605 but, worse, impose sanctions the decree does not allow and in
fact actually prohibits. In so doing, the ordinances disregard and
violate and in effect partially repeal the law.
We here emphasize the ruling in the Gonong Case that PD 1605
applies only to the Metropolitan Manila area. It is an exception to the
general authority conferred by R.A. No. 4136 on the Commissioner
of Land Transportation to punish violations of traffic rules elsewhere
in the country with the sanctions therein prescribed, including those
here questioned.
The Court agrees that the challenged ordinances were enacted with
the best of motives and shares the concern of the rest of the public for
the effective reduction of traffic problems in Metropolitan Manila
through the imposition and enforcement of more deterrent penalties
upon traffic violators. At the same time, it must also reiterate the
public misgivings over the abuses that may attend the enforcement of
such sanctions, including the illicit practices described in detail in the
Gonong decision. At any rate, the fact is that there is no statutory
authority for - and indeed there is a statutory prohibition against the
imposition of such penalties in the Metropolitan Manila area. Hence,
regardless of their merits, they cannot be imposed by the challenged
enactments by virtue only of the delegated legislative powers.
It is for Congress to determine, in the exercise of its own discretion,
whether or not to impose such sanctions, either directly through a
statute or by simply delegating authority to this effect to the local
governments in Metropolitan Manila. Without such action, PD 1605
remains effective and continues to prohibit the confiscation of license
plates of motor vehicles (except under the conditions prescribed in
LOI 43) and of driver's licenses as well for traffic violations in
Metropolitan Manila.
WHEREFORE, judgment is hereby rendered:
(1) declaring Ordinance No. 11, Series of 1991, of the Metropolitan
Manila Authority and Ordinance No. 7, Series of 1988, of the
Municipality of Mandaluyong, NULL and VOID; and
(2) enjoining all law-enforcement authorities in Metropolitan Manila
from removing the license plates of motor vehicles (except when
authorized under LOI 43) and confiscating driver's licenses for traffic
violations within the said area.
SO ORDERED.
 Republic of the Philippines
 AN ORDINANCE PROHIBITING THE ISSUANCE OF
SUPREME COURT
 BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS
Manila PERMIT TO ANY ESTABLISHMENT FOR THE USING AND
ALLOWING TO BE USED ITS PREMISES OR PORTION
EN BANC THEREOF FOR THE OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of

G.R. No. 111097 July 20, 1994
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN
DE ORO, petitioners, 
 permit shall be issued to any person, partnership or corporation for
vs.
 the operation of casino within the city limits.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE
AMUSEMENT AND GAMING CORPORATION, respondents.
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.
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
Sec. 2. — That it shall be a violation of existing business permit by
any persons, partnership or corporation to use its business
establishment or portion thereof, or allow the use thereof by others
for casino operation and other gambling activities.
Sec. 3. — PENALTIES. — Any violation of such existing business
permit as defined in the preceding section shall suffer the following
penalties, to wit:
a) Suspension of the business permit for sixty (60) days for the first
offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months for the
second offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and imprisonment of
One (1) year, for the third and subsequent offenses.

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
Sec. 4. — This Ordinance shall take effect ten (10) days from
publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance
No. 3375-93 reading as follows:
 ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO
AND PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990
against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another
Resolution No. 2673, reiterating its policy against the establishment
of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance
No. 3353, prohibiting the issuance of Business Permit and to cancel
existing Business Permit to any establishment for the using and
allowing to be used its premises or portion thereof for the operation
of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of
the Local Government Code of 1991 (Rep. Act 7160) and under Art.
99, No. (4), Paragraph VI of the implementing rules of the Local
Government Code, the City Council as the Legislative Body shall
enact measure to suppress any activity inimical to public morals and
general welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect social
and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled
that:
Sec. 1. — The operation of gambling CASINO in the City of
Cagayan de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject to the
following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the
proprietor, partnership or corporation undertaking the operation,
conduct, maintenance of gambling CASINO in the City and closure
thereof;
b) Imprisonment of not less than six (6) months nor more than one
(1) year or a fine in the amount of P5,000.00 or both at the discretion
of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of
gambling CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days after its
publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it
was joined by PAGCOR as intervenor and supplemental petitioner.
Their challenge succeeded. On March 31, 1993, the Court of Appeals
declared the ordinances invalid and issued the writ prayed for to
prohibit their enforcement. 1 Reconsideration of this decision was
denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition
for review under Rule 45 of the Rules of Court. 3 They aver that the
respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of
Cagayan de Oro does not have the power and authority to prohibit the
establishment and operation of a PAGCOR gambling casino within
the City's territorial limits.
2. The phrase "gambling and other prohibited games of chance"
found in Sec. 458, par. (a), sub-par. (1) — (v) of R.A. 7160 could
only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are
therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial
to cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with
the general powers and purposes of the instrumentality concerned and
inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al.
v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in
disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help
centralize and regulate all games of chance, including casinos on land
and sea within the territorial jurisdiction of the Philippines. In Basco
v. Philippine Amusements and Gaming Corporation, 4 this Court
sustained the constitutionality of the decree and even cited the
benefits of the entity to the national economy as the third highest
revenue-earner in the government, next only to the BIR and the
Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is
empowered to enact ordinances for the purposes indicated in the
Local Government Code. It is expressly vested with the police power
under what is known as the General Welfare Clause now embodied in
Section 16 as follows:
Sec. 16. — General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to
the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to
a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain
peace and order, and preserve the comfort and convenience of their
inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. — Powers, Duties, Functions and Compensation. — (a)
The Sangguniang Panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds for
the general welfare of the city and its inhabitants pursuant to Section
16 of this Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective city government, and in this connection, shall:
(v) Enact ordinances intended to prevent, suppress and impose
appropriate penalties for habitual drunkenness in public places,
vagrancy, mendicancy, prostitution, establishment and maintenance
of houses of ill repute, gamblingand other prohibited games of
chance, fraudulent devices and ways to obtain money or property,
drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or
pornographic materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate
properties and businesses within their territorial limits in the interest
of the general welfare. 5
The petitioners argue that by virtue of these provisions, the
Sangguniang Panlungsod may prohibit the operation of casinos
because they involve games of chance, which are detrimental to the
people. Gambling is not allowed by general law and even by the
Constitution itself. The legislative power conferred upon local
government units may be exercised over all kinds of gambling and
not only over "illegal gambling" as the respondents erroneously
argue. Even if the operation of casinos may have been permitted
under P.D. 1869, the government of Cagayan de Oro City has the
authority to prohibit them within its territory pursuant to the authority
entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of
local autonomy as mandated in Article II, Section 25, and Article X
of the Constitution, as well as various other provisions therein
seeking to strengthen the character of the nation. In giving the local
government units the power to prevent or suppress gambling and
other social problems, the Local Government Code has recognized
the competence of such communities to determine and adopt the
measures best expected to promote the general welfare of their
inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized
the local government units to prevent and suppress gambling and
other prohibited games of chance, like craps, baccarat, blackjack and
roulette, it meant allforms of gambling without distinction. Ubi lex
non distinguit, nec nos distinguere debemos. 6 Otherwise, it would
have expressly excluded from the scope of their power casinos and
other forms of gambling authorized by special law, as it could have
easily done. The fact that it did not do so simply means that the local
government units are permitted to prohibit all kinds of gambling
within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had
the effect of modifying the charter of the PAGCOR. The Code is not
only a later enactment than P.D. 1869 and so is deemed to prevail in
case of inconsistencies between them. More than this, the powers of
the PAGCOR under the decree are expressly discontinued by the
Code insofar as they do not conform to its philosophy and provisions,
pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect
of the Local Government Code on P.D. 1869, the doubt must be
resolved in favor of the petitioners, in accordance with the direction
in the Code calling for its liberal interpretation in favor of the local
government units. Section 5 of the Code specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation of the
provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be
liberally interpreted in its favor, and in case of doubt, any question
thereon shall be resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality of life
for the people in the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful
and cite various provisions of the Constitution and several decisions
of this Court expressive of the general and official disapprobation of
the vice. They invoke the State policies on the family and the proper
upbringing of the youth and, as might be expected, call attention to
the old case of U.S. v. Salaveria,7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners
decry the immorality of gambling. They also impugn the wisdom of
P.D. 1869 (which they describe as "a martial law instrument") in
creating PAGCOR and authorizing it to operate casinos "on land and
sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not 4) It must not prohibit but may regulate trade.
illegal per se. While it is generally considered inimical to the interests
of the people, there is nothing in the Constitution categorically 5) It must be general and consistent with public policy.
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 6) It must not be unreasonable.
sees fit. In the exercise of its own discretion, the legislature may
prohibit gambling altogether or allow it without limitation or it may
We begin by observing that under Sec. 458 of the Local Government
prohibit some forms of gambling and allow others for whatever
Code, local government units are authorized to prevent or suppress,
reasons it may consider sufficient. Thus, it has
among others, "gambling and other prohibited games of chance."
prohibited jueteng and monte but permits lotteries, cockfighting and
Obviously, this provision excludes games of chance which are not
horse-racing. In making such choices, Congress has consulted its own
prohibited but are in fact permitted by law. The petitioners are less
wisdom, which this Court has no authority to review, much less
than accurate in claiming that the Code could have excluded such
reverse. Well has it been said that courts do not sit to resolve the
games of chance but did not. In fact it does. The language of the
merits of conflicting theories. 8 That is the prerogative of the political
section is clear and unmistakable. Under the rule of noscitur a sociis,
departments. It is settled that questions regarding the wisdom,
a word or phrase should be interpreted in relation to, or given the
morality, or practicibility of statutes are not addressed to the judiciary
same meaning of, words with which it is associated. Accordingly, we
but may be resolved only by the legislative and executive
conclude that since the word "gambling" is associated with
departments, to which the function belongs in our scheme of
"and other prohibited games of chance," the word should be read as
government. That function is exclusive. Whichever way these
referring to only illegal gambling which, like the other prohibited
branches decide, they are answerable only to their own conscience
games of chance, must be prevented or suppressed.
and the constituents who will ultimately judge their acts, and not to
the courts of justice.
We could stop here as this interpretation should settle the problem
quite conclusively. But we will not. The vigorous efforts of the
The only question we can and shall resolve in this petition is the
petitioners on behalf of the inhabitants of Cagayan de Oro City, and
validity of Ordinance No. 3355 and Ordinance No. 3375-93 as
the earnestness of their advocacy, deserve more than short shrift from
enacted by the Sangguniang Panlungsod of Cagayan de Oro City.
this Court.
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 apparent flaw in the ordinances in question is that they
contravene P.D. 1869 and the public policy embodied therein insofar
The tests of a valid ordinance are well established. A long line of
as they prevent PAGCOR from exercising the power conferred on it
decisions 9 has held that to be valid, an ordinance must conform to
to operate a casino in Cagayan de Oro City. The petitioners have an
the following substantive requirements:
ingenious answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance admittedly
1) It must not contravene the constitution or any statute. cannot prevail against a statute. Their theory is that the change has
been made by the Local Government Code itself, which was also
2) It must not be unfair or oppressive. enacted by the national lawmaking authority. In their view, the decree
has been, not really repealed by the Code, but merely "modified pro
3) It must not be partial or discriminatory. tanto" in the sense that PAGCOR cannot now operate a casino over
the objection of the local government unit concerned. This
modification of P.D. 1869 by the Local Government Code is
permissible because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While
insisting that the decree has only been "modifiedpro tanto," they are
actually arguing that it is already dead, repealed and useless for all
intents and purposes because the Code has shorn PAGCOR of all
power to centralize and regulate casinos. Strictly speaking, its
operations may now be not only prohibited by the local government
unit; in fact, the prohibition is not only discretionary but mandated by
Section 458 of the Code if the word "shall" as used therein is to be
given its accepted meaning. Local government units have now no
choice but to prevent and suppress gambling, which in the petitioners'
view includes both legal and illegal gambling. Under this
construction, PAGCOR will have no more games of chance to
regulate or centralize as they must all be prohibited by the local
government units pursuant to the mandatory duty imposed upon them
by the Code. In this situation, PAGCOR cannot continue to exist
except only as a toothless tiger or a white elephant and will no longer
be able to exercise its powers as a prime source of government
revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the
repealing clause, conveniently discarding the rest of the provision
which painstakingly mentions the specific laws or the parts thereof
which are repealed (or modified) by the Code. Significantly, P.D.
1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive Order
No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or
concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act.
No. 5447 regarding the Special Education Fund; Presidential Decree
No. 144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No.
436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby
repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it
governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar
as they are inconsistent with the provisions of this Code: Sections 2,
16, and 29 of Presidential Decree No. 704; Sections 12 of
Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68,
69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as
amended, and
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly
presumed in the absence of a clear and unmistakable showing of such
intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all proceed
on the assumption that if the act of later date clearly reveals an
intention on the part of the lawmaking power to abrogate the prior
law, this intention must be given effect; but there must always be a
sufficient revelation of this intention, and it has become an unbending
rule of statutory construction that the intention to repeal a former law
will not be imputed to the Legislature when it appears that the two
statutes, or provisions, with reference to which the question arises
bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869.
On the contrary, as the private respondent points out, PAGCOR is
mentioned as the source of funding in two later enactments of
Congress, to wit, R.A. 7309, creating a Board of Claims under the
Department of Justice for the benefit of victims of unjust punishment
or detention or of violent crimes, and R.A. 7648, providing for
measures for the solution of the power crisis. PAGCOR revenues are
tapped by these two statutes. This would show that the PAGCOR
charter has not been repealed by the Local Government Code but has
in fact been improved as it were to make the entity more responsive
to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute
against another in an inevitably destructive confrontation, courts must
exert every effort to reconcile them, remembering that both laws
deserve a becoming respect as the handiwork of a coordinate branch
of the government. On the assumption of a conflict between P.D.
1869 and the Code, the proper action is not to uphold one and annul
the other but to give effect to both by harmonizing them if possible.
This is possible in the case before us. The proper resolution of the
problem at hand is to hold that under the Local Government Code,
local government units may (and indeed must) prevent and suppress
all kinds of gambling within their territories except only those
allowed by statutes like P.D. 1869. The exception reserved in such
laws must be read into the Code, to make both the Code and such
laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of
gambling, to wit, the illegal and those authorized by law. Legalized
gambling is not a modern concept; it is probably as old as illegal
gambling, if not indeed more so. The petitioners' suggestion that the
Code authorizes them to prohibit all kinds of gambling would erase
the distinction between these two forms of gambling without a clear
indication that this is the will of the legislature. Plausibly, following
this theory, the City of Manila could, by mere ordinance, prohibit the
Philippine Charity Sweepstakes Office from conducting a lottery as
authorized by R.A. 1169 and B.P. 42 or stop the races at the San
Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at
the conclusion urged on us by the petitioners that the ordinances in
question are valid. On the contrary, we find that the ordinances
violate P.D. 1869, which has the character and force of a statute, as
well as the public policy expressed in the decree allowing the playing
of certain games of chance despite the prohibition of gambling in
general.
The rationale of the requirement that the ordinances should not
contravene a statute is obvious. Municipal governments are only
agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as the
national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of
Congress, from which they have derived their power in the first
place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers
and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless
there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a
folly and so great a wrong, sweep from existence all of the municipal
corporations in the State, and the corporation could not prevent it. We
know of no limitation on the right so far as to the corporation
themselves are concerned. They are, so to phrase it, the mere tenants
at will of the legislature. 11
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without
meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly
reduced degree now than under our previous Constitutions. The
power to create still includes the power to destroy. The power to
grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to
tax, 12 which cannot now be withdrawn by mere statute. By and large,
however, the national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for
the welfare of their constituents and their apprehensions that the
welfare of Cagayan de Oro City will be endangered by the opening of
the casino. We share the view that "the hope of large or easy gain,
obtained without special effort, turns the head of the workman" 13 and
that "habitual gambling is a cause of laziness and ruin." 14 In People
v. Gorostiza, 15 we declared: "The social scourge of gambling must be
stamped out. The laws against gambling must be enforced to the
limit." George Washington called gambling "the child of avarice, the
brother of iniquity and the father of mischief." Nevertheless, we must
recognize the power of the legislature to decide, in its own wisdom,
to legalize certain forms of gambling, as was done in P.D. 1869 and
impliedly affirmed in the Local Government Code. That decision can
be revoked by this Court only if it contravenes the Constitution as the
touchstone of all official acts. We do not find such contravention
here.
We hold that the power of PAGCOR to centralize and regulate all
games of chance, including casinos on land and sea within the
territorial jurisdiction of the Philippines, remains unimpaired. P.D.
1869 has not been modified by the Local Government Code, which
empowers the local government units to prevent or suppress only
those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the
status of a statute that cannot be amended or nullified by a mere
ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353
prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all
their praiseworthy motives, these ordinances are contrary to P.D.
1869 and the public policy announced therein and are therefore ultra
vires and void.
WHEREFORE, the petition is DENIED and the challenged decision
of the respondent Court of Appeals is AFFIRMED, with costs against
the petitioners. It is so ordered.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
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.
PARAS, J.:
The only pivotal issue before Us is whether or not Resolution No. 60,
re-enacted under Resolution No. 243, of the Municipality of Makati
is a valid exercise of police power under the general welfare clause.
The pertinent facts are:
On September 27, 1988, petitioner Municipality, through its Council,
approved Resolution No. 60 which reads:
A RESOLUTION TO CONFIRM AND/OR RATIFY THE
ONGOING BURIAL ASSISTANCE PROGRAM INITIATED BY
THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL
ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO A
BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF
UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE
MUNICIPAL TREASURY. (Rollo, Annnex "A" p. 39)
Qualified beneficiaries, under the Burial Assistance Program, are
bereaved families of Makati whose gross family income does not
exceed two thousand pesos (P2,000.00) a month. The beneficiaries,
upon fulfillment of other requirements, would receive the amount of
five hundred pesos (P500.00) cash relief from the Municipality of
Makati. (Reno, Annex "13", p. 41)
Metro Manila Commission approved Resolution No. 60. Thereafter,
the municipal secretary certified a disbursement fired of four hundred
thousand pesos (P400,000.00) for the implementation of the Burial
Assistance Program. (Rollo, Annex "C", p. 43).
Resolution No. 60 was referred to respondent Commission on Audit
(COA) for its expected allowance in audit. Based on its preliminary
findings, respondent COA disapproved Resolution No. 60 and
disallowed in audit the disbursement of finds for the implementation
thereof. (Rollo, Annex "D", P. 44)
Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45
and 48, respectively) filed by petitioners Mayor Jejomar Binay, were
denied by respondent in its Decision No. 1159, in the following
manner:
Your request for reconsideration is predicated on the following
grounds, to wit:
1. Subject Resolution No. 60, s. 1988, of the Municipal Council of
Makati and the intended disbursements fall within the twin principles
of 'police power and parens patriae and
2. The Metropolitan Manila Commission (MMC), under a
Certification, dated June 5, 1989, has already appropriated the
amount of P400,000.00 to implement the Id resolution, and the only
function of COA on the matter is to allow the financial assistance in
question.
The first contention is believed untenable. Suffice it to state that:
a statute or ordinance must have a real substantial, or rational relation
to the public safety, health, morals, or general welfare to be sustained
as a legitimate exercise of the police power. The mere assertion by
the legislature that a statute relates to the public health, safety, or
welfare does not in itself bring the statute within the police power of
a state for there must always be an obvious and real connection
between the actual provisions of a police regulations and its avowed
purpose, and the regulation adopted must be reasonably adapted to
accomplish the end sought to be attained. 16 Am. Jur 2d, pp.
542-543; emphasis supplied).
Here, we see no perceptible connection or relation between the
objective sought to be attained under Resolution No. 60, s.
1988, supra, and the alleged public safety, general welfare, etc. of the
inhabitants of Makati.
Anent the second contention, let it be stressed that Resolution No. 60
is still subject to the limitation that the expenditure covered thereby
should be for a public purpose, i.e., that the disbursement of the
amount of P500.00 as burial assistance to a bereaved family of the
Municipality of Makati, or a total of P400,000.00 appropriated under
the Resolution, should be for the benefit of the whole, if not the
majority, of the inhabitants of the Municipality and not for the benefit
of only a few individuals as in the present case. On this point
government funds or property shall be spent or used solely for public
purposes. (Cf. Section 4[2], P.D. 1445). (pp. 50-51, Rollo)
Bent on pursuing the Burial Assistance Program the Municipality of
Makati, through its Council, passed Resolution No. 243, re-affirming
Resolution No. 60 (Rollo, Annex "H", p. 52).
However, the Burial Assistance Program has been stayed by COA
Decision No. 1159. Petitioner, through its Mayor, was constrained to
file this special civil action of certiorari praying that COA Decision
No. 1159 be set aside as null and void.
The police power is a governmental function, an inherent attribute of
sovereignty, which was born with civilized government. It is founded
largely on the maxims, "Sic utere tuo et ahenum non laedas and
"Salus populi est suprema lex Its fundamental purpose is securing the
general welfare, comfort and convenience of the people.
Police power is inherent in the state but not in municipal corporations
(Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a
municipal corporation may exercise such power, there must be a valid
delegation of such power by the legislature which is the repository of
the inherent powers of the State. A valid delegation of police power
may arise from express delegation, or be inferred from the mere fact
of the creation of the municipal corporation; and as a general rule,
municipal corporations may exercise police powers within the fair
intent and purpose of their creation which are reasonably proper to
give effect to the powers expressly granted, and statutes conferring
powers on public corporations have been construed as empowering
them to do the things essential to the enjoyment of life and desirable
for the safety of the people. (62 C.J.S., p. 277). The so-called inferred
police powers of such corporations are as much delegated powers as
are those conferred in express terms, the inference of their delegation
growing out of the fact of the creation of the municipal corporation
and the additional fact that the corporation can only fully accomplish
the objects of its creation by exercising such powers. (Crawfordsville
vs. Braden, 28 N.E. 849). Furthermore, municipal corporations, as
governmental agencies, must have such measures of the power as are
necessary to enable them to perform their governmental functions.
The power is a continuing one, founded on public necessity. (62
C.J.S. p. 273) Thus, not only does the State effectuate its purposes
through the exercise of the police power but the municipality does
also. (U.S. v. Salaveria, 39 Phil. 102).
Municipal governments exercise this power under the general welfare
clause: pursuant thereto they are clothed with authority to "enact such
ordinances and issue such regulations as may be necessary to carry
out and discharge the responsibilities conferred upon it by law, and
such as shall be necessary and proper to provide for the health, safety,
comfort and convenience, maintain peace and order, improve public
morals, promote the prosperity and general welfare of the
municipality and the inhabitants thereof, and insure the protection of
property therein." (Sections 91, 149, 177 and 208, BP 337). And
under Section 7 of BP 337, "every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary and proper for governance
such as to promote health and safety, enhance prosperity, improve
morals, and maintain peace and order in the local government unit,
and preserve the comfort and convenience of the inhabitants therein."
Police power is the power to prescribe regulations to promote the
health, morals, peace, education, good order or safety and general
welfare of the people. It is the most essential, insistent, and
illimitable of powers. In a sense it is the greatest and most powerful
attribute of the government. It is elastic and must be responsive to
various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719).
On it depends the security of social order, the life and health of the
citizen, the comfort of an existence in a thickly populated
community, the enjoyment of private and social life, and the
beneficial use of property, and it has been said to be the very
foundation on which our social system rests. (16 C.J.S., P. 896)
However, it is not confined within narrow circumstances of
precedents resting on past conditions; it must follow the legal
progress of a democratic way of life. (Sangalang, et al. vs.
IAC, supra).
In the case at bar, COA is of the position that there is "no perceptible
connection or relation between the objective sought to be attained
under Resolution No. 60, s. 1988, supra, and the alleged public
safety, general welfare. etc. of the inhabitants of Makati." (Rollo,
Annex "G", p. 51).
Apparently, COA tries to re-define the scope of police power by
circumscribing its exercise to "public safety, general welfare, etc. of
the inhabitants of Makati."
In the case of Sangalang vs. IAC, supra, We ruled that police power
is not capable of an exact definition but has been, purposely, veiled in
general terms to underscore its all comprehensiveness. Its scope,
over-expanding to meet the exigencies of the times, even to anticipate
the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits.
The police power of a municipal corporation is broad, and has been
said to be commensurate with, but not to exceed, the duty to provide
for the real needs of the people in their health, safety, comfort, and
convenience as consistently as may be with private rights. It extends
to all the great public needs, and, in a broad sense includes all
legislation and almost every function of the municipal government. It
covers a wide scope of subjects, and, while it is especially occupied
with whatever affects the peace, security, health, morals, and general
welfare of the community, it is not limited thereto, but is broadened
to deal with conditions which exists so as to bring out of them the
greatest welfare of the people by promoting public convenience or
general prosperity, and to everything worthwhile for the preservation
of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128).
Thus, it is deemed inadvisable to attempt to frame any definition
which shall absolutely indicate the limits of police power.
COA's additional objection is based on its contention that
"Resolution No. 60 is still subject to the limitation that the
expenditure covered thereby should be for a public purpose, ... should
be for the benefit of the whole, if not the majority, of the inhabitants
of the Municipality and not for the benefit of only a few individuals
as in the present case." (Rollo, Annex "G", p. 51).
COA is not attuned to the changing of the times. Public purpose is
not unconstitutional merely because it incidentally benefits a limited
number of persons. As correctly pointed out by the Office of the
Solicitor General, "the drift is towards social welfare legislation
geared towards state policies to provide adequate social services
(Section 9, Art. II, Constitution), the promotion of the general welfare
(Section 5, Ibid) social justice (Section 10, Ibid) as well as human
dignity and respect for human rights. (Section 11, Ibid." (Comment,
p. 12)
The care for the poor is generally recognized as a public duty. The
support for the poor has long been an accepted exercise of police
power in the promotion of the common good.
There is no violation of the equal protection clause in classifying
paupers as subject of legislation. Paupers may be reasonably
classified. Different groups may receive varying treatment. Precious
to the hearts of our legislators, down to our local councilors, is the
welfare of the paupers. Thus, statutes have been passed giving rights
and benefits to the disabled, emancipating the tenant-farmer from the
bondage of the soil, housing the urban poor, etc.
Resolution No. 60, re-enacted under Resolution No. 243, of the
Municipality of Makati is a paragon of the continuing program of our
government towards social justice. The Burial Assistance Program is
a relief of pauperism, though not complete. The loss of a member of a
family is a painful experience, and it is more painful for the poor to
be financially burdened by such death. Resolution No. 60 vivifies the
very words of the late President Ramon Magsaysay 'those who have
less in life, should have more in law." This decision, however must
not be taken as a precedent, or as an official go-signal for municipal
governments to embark on a philanthropic orgy of inordinate dole-
outs for motives political or otherwise.
PREMISES CONSIDERED, and with the afore-mentioned caveat,
this petition is hereby GRANTED and the Commission on Audit's
Decision No. 1159 is hereby SET ASIDE.
SO ORDERED.
 Republic of the Philippines
 of the public domain, that the zoning ordinance and all other
SUPREME COURT
 pertinent rules and regulations are observed.
Manila
FIRST DIVISION
G.R. No. L-31249 August 19, 1986
SALVADOR VILLACORTA as City Engineer of Dagupan City,
and JUAN S. CAGUIOA as Register of Deeds of Dagupan
City, petitioners, 
 has already been submitted to his office and that the same is in order.
vs.

GREGORIO BERNARDO and HON. MACARIO OFILADA as
Judge of the Court of First Instance of Pangasinan respondents.
CRUZ, J.:
This is a petition for certiorari against a decision of the Court of First
Instance of Pangasinan annulling an ordinance adopted by the
municipal board of Dagupan City.
The ordinance reads in full as follows:
ORDINANCE 22
AN ORDINANCE REGULATING SUBDIVISION PLANS OVER
PARCELS OF LAND IN THE CITY OF DAGUPAN.
Be it ordained by the Municipal Board of Dagupan City in session
assembled:
Section 1. Every proposed subdivision plan over any lot in the City of
Dagupan, shalt before the same is submitted for approval and/or
verification by the Bureau of Lands and/or the Land Registration
Commission, be previously submitted to the City Engineer of the
City who shall see to it that no encroachment is made on any portion
Section 2. As service fee thereof, an amount equivalent to P0.30 per
square meter of every lot resulting or win result from such
subdivision shall be charged by the City Engineer's Office.
Section 3. It shall be unlawful for the Register of Deeds of Dagupan
City to allow the registration of a subdivision plan unless there is
prior written certification issued by the City Engineer that such plan
Section 4. Any violation of this ordinance shall be punished by a fine
not exceeding two hundred (P200.00) pesos or imprisonment not
exceeding six (6) months or both in the discretion of the judge.
Section 5. This ordinance shall take effect immediately upon
approval.
In declaring the said ordinance null and void, the court a
quo declared:
From the above-recited requirements, there is no showing that would
justify the enactment of the questioned ordinance. Section 1 of said
ordinance clearly conflicts with Section 44 of Act 496, because the
latter law does not require subdivision plans to be submitted to the
City Engineer before the same is submitted for approval to and
verification by the General Land Registration Office or by the
Director of Lands as provided for in Section 58 of said Act. Section 2
of the same ordinance also contravenes the provisions of Section 44
of Act 496, the latter being silent on a service fee of PO.03 per square
meter of every lot subject of such subdivision application; Section 3
of the ordinance in question also conflicts with Section 44 of Act 496,
because the latter law does not mention of a certification to be made
by the City Engineer before the Register of Deeds allows registration
of the subdivision plan; and the last section of said ordinance imposes
a penalty for its violation, which Section 44 of Act 496 does not
impose. In other words, Ordinance 22 of the City of Dagupan
imposes upon a subdivision owner additional conditions.
The Court takes note of the laudable purpose of the ordinance in
bringing to a halt the surreptitious registration of lands belonging to
the government. But as already intimidated above, the powers of the
board in enacting such a laudable ordinance cannot be held valid
when it shall impede the exercise of rights granted in a general law
and/or make a general law subordinated to a local ordinance.
We affirm.
To sustain the ordinance would be to open the floodgates to other
ordinances amending and so violating national laws in the guise of
implementing them. Thus, ordinances could be passed imposing
additional requirements for the issuance of marriage licenses, to
prevent bigamy; the registration of vehicles, to minimize carnaping;
the execution of contracts, to forestall fraud; the validation of
passports, to deter imposture; the exercise of freedom of speech, to
reduce disorder; and so on. The list is endless, but the means, even if
the end be valid, would be ultra vires.
So many excesses are attempted in the name of the police power that
it is time, we feel, for a brief admonition.
Regulation is a fact of life in any well-ordered community. As society
becomes more and more complex, the police power becomes
correspondingly ubiquitous. This has to be so for the individual must
subordinate his interests to the common good, on the time honored
justification of Salus populi est suprema lex.
In this prolix age, practically everything a person does and owns
affects the public interest directly or at least vicariously, unavoidably
drawing him within the embrace of the police power. Increasingly, he
is hemmed in by all manner of statutory, administrative and
municipal requirements and restrictions that he may find officious
and even oppressive.
It is necessary to stress that unless the creeping interference of the
government in essentially private matters is moderated, it is likely to
destroy that prized and peculiar virtue of the free society:
individualism.
Every member of society, while paying proper deference to the
general welfare, must not be deprived of the right to be left alone or,
in the Idiom of the day, "to do his thing." As long as he does not
prejudice others, his freedom as an individual must not be unduly
curtailed.
We therefore urge that proper care attend the exercise of the police
power lest it deteriorate into an unreasonable intrusion into the purely
private affairs of the individual. The so-called "general welfare" is
too amorphous and convenient an excuse for official arbitrariness.
Let it always be remembered that in the truly democratic state,
protecting the rights of the individual is as important as, if not more
so than, protecting the rights of the public.
This advice is especially addressed to the local governments which
exercise the police power only by virtue of a valid delegation from
the national legislature under the general welfare clause. In the
instant case, Ordinance No. 22 suffers from the additional defect of
violating this authority for legislation in contravention of the national
law by adding to its requirements.
WHEREFORE, the decision of the lower court annulling the
challenged ordinance is AFFIRMED, without any pronouncement as
to costs.
SO ORDERED.
 Republic of the Philippines
 The assailed ordinance 3 is worded as follows: "Section 1.— Title of
SUPREME COURT
 Ordinance.— This Ordinance shall be known and may be cited as the
Manila
EN BANC
G.R. No. L-42571-72 July 25, 1983
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES
III, LEONCIO CORPUZ, TERESITA CALOT, ROSALIA
FERNANDEZ, ELIZABETH VELASCO, NANETTE
VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE
CASTRO, VICENTE ROXAS, RICARDO DAMIAN,
DOMDINO ROMDINA, ANGELINA OBLIGACION,
CONRADO GREGORIO, TEODORO REYES, LYDIA
ATRACTIVO, NAPOLEON MENDOZA, PERFECTO
GUMATAY, ANDRES SABANGAN, ROSITA DURAN,
SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners, 

vs.

THE HONORABLE EDGARDO L. PARAS, MATIAS
RAMIREZ as the Municipal Mayor, MARIO MENDOZA as the
Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF
BOCAUE, BULACAN, respondents.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or
not a municipal corporation, Bocaue, Bulacan, represented by
respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such
clubs employing hostesses. It is contended that the ordinance assailed
as invalid is tainted with nullity, the municipality being devoid of
power to prohibit a lawful business, occupation or calling, petitioners
at the same time alleging that their rights to due process and equal
protection of the laws were violated as the licenses previously given
to them was in effect withdrawn without judicial hearing. 2
[Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2.
— Definitions of Terms — (a) 'Night Club' shall include any place or
establishment selling to the public food or drinks where customers
are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall include any
place or establishment where dancing is permitted to the public and
where professional hostesses or hospitality girls and professional
dancers are employed. (c) 'Professional hostesses' or 'hospitality girls'
shall include any woman employed by any of the establishments
herein defined to entertain guests and customers at their table or to
dance with them. (d) 'Professional dancer' shall include any woman
who dances at any of the establishments herein defined for a fee or
remuneration paid directly or indirectly by the operator or by the
persons she dances with. (e) 'Operator' shall include the owner,
manager, administrator or any person who operates and is responsible
for the operation of any night club, cabaret or dance hall. Section 3.
— Prohibition in the Issuance and Renewal of Licenses, Permits. —
Being the principal cause in the decadence of morality and because of
their other adverse effects on this community as explained above, no
operator of night clubs, cabarets or dance halls shall henceforth be
issued permits/licenses to operate within the jurisdiction of the
municipality and no license/permit shall be issued to any professional
hostess, hospitality girls and professional dancer for employment in
any of the aforementioned establishments. The prohibition in the
issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof.
Section 4.— Revocation of Permits and Licenses.— The licenses and
permits issued to operators of night clubs, cabarets or dance halls
which are now in operation including permits issued to professional
hostesses, hospitality girls and professional dancers are hereby
revoked upon the expiration of the thirty-day period given them as
provided in Section 8 hereof and thenceforth, the operation of these
establishments within the jurisdiction of the municipality shall be
illegal. Section 5.— Penalty in case of violation. — Violation of any
of the provisions of this Ordinance shall be punishable by
imprisonment not exceeding three (3) months or a fine not exceeding
P200.00 or both at the discretion of the Court. If the offense is
committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty
provided herein. Section 6. — Separability Clause.— If, for any
reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall
be affected thereby. Section 7.— Repealing Clause.— All ordinance,
resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby
repealed. Section 8.— Effectivity.— This Ordinance shall take effect
immediately upon its approval; provided, however, that operators of
night clubs, cabarets and dance halls now in operation including
professional hostesses, hospitality girls and professional dancers are
given a period of thirty days from the approval hereof within which
to wind up their businesses and comply with the provisions of this
Ordinance." 4
On November 5, 1975, two cases for prohibition with preliminary
injunction were filed with the Court of First Instance of
Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no
authority to prohibit a lawful business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due
process and the equal protection of the law, as the license previously
given to petitioners was in effect withdrawn without judicial hearing.
3. That under Presidential Decree No. 189, as amended, by
Presidential Decree No. 259, the power to license and regulate
tourist-oriented businesses including night clubs, has been transferred
to the Department of Tourism." 6 The cases were assigned to
respondent Judge, now Associate Justice Paras of the Intermediate
Appellate Court, who issued a restraining order on November 7,
1975. The answers were thereafter filed. It was therein alleged: " 1.
That the Municipal Council is authorized by law not only to regulate
but to prohibit the establishment, maintenance and operation of night
clubs invoking Section 2243 of the RAC, CA 601, Republic Acts
Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not violative of
petitioners' right to due process and the equal protection of the law,
since property rights are subordinate to public interests. 3. That
Presidential Decree No. 189, as amended, did not deprive Municipal
Councils of their jurisdiction to regulate or prohibit night
clubs." 7 There was the admission of the following facts as having
been established: "l. That petitioners Vicente de la Cruz, et al. in Civil
Case No. 4755-M had been previously issued licenses by the
Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958;
petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio,
since 1961 and petitioner Leoncio Corpuz, since 1972; 2. That
petitioners had invested large sums of money in their businesses; 3.
That the night clubs are well-lighted and have no partitions, the tables
being near each other; 4. That the petitioners owners/operators of
these clubs do not allow the hospitality girls therein to engage in
immoral acts and to go out with customers; 5. That these hospitality
girls are made to go through periodic medical check-ups and not one
of them is suffering from any venereal disease and that those who fail
to submit to a medical check-up or those who are found to be infected
with venereal disease are not allowed to work; 6. That the crime rate
there is better than in other parts of Bocaue or in other towns of
Bulacan." 8 Then came on January 15, 1976 the decision upholding
the constitutionality and validity of Ordinance No. 84 and dismissing
the cases. Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court
dismissed the petitions. Its rationale is set forth in the opening
paragraph thus: "Those who lust cannot last. This in essence is why
the Municipality of Bocaue, Province of Bulacan, stigmatized as it
has been by innuendos of sexual titillation and fearful of what the
awesome future holds for it, had no alternative except to order thru its
legislative machinery, and even at the risk of partial economic
dislocation, the closure of its night clubs and/or cabarets. This in
essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the
current legal and social revolution, hereby [upholds] in the name of
police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The
restraining orders heretofore issued in these two cases are therefore
hereby rifted, effective the first day of February, 1976, the purpose of
the grace period being to enable the petitioners herein to apply to the
proper appellate tribunals for any contemplated redress."9 This Court
is, however, unable to agree with such a conclusion and for reasons
herein set forth, holds that reliance on the police power is insufficient
to justify the enactment of the assailed ordinance. It must be declared
null and void.
1. Police power is granted to municipal corporations in general terms
as follows: "General power of council to enact ordinances and make
regulations. - The municipal council shall enact such ordinances and
make such regulations, not repugnant to law, as may be necessary to
carry into effect and discharge the powers and duties conferred upon
it by law and such as shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals,
peace, good order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property
therein." 10 It is practically a reproduction of the former Section 39 of
Municipal Code.11 An ordinance enacted by virtue thereof, according
to Justice Moreland, speaking for the Court in the leading case
of United States v. Abendan 12 "is valid, unless it contravenes the
fundamental law of the Philippine Islands, or an Act of the Philippine
Legislature, or unless it is against public policy, or is unreasonable,
oppressive, partial, discriminating, or in derogation of common right.
Where the power to legislate upon a given subject, and the mode of
its exercise and the details of such legislation are not prescribed, the
ordinance passed pursuant thereto must be a reasonable exercise of
the power, or it will be pronounced invalid." 13 In another leading
case, United States v. Salaveria, 14 the ponente this time being Justice
Malcolm, where the present Administrative Code provision was
applied, it was stated by this Court: "The general welfare clause has
two branches: One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and regulations as
may be necessary to carry into effect and discharge the powers and
duties conferred upon the municipal council by law. With this class
we are not here directly concerned. The second branch of the clause
is much more independent of the specific functions of the council
which are enumerated by law. It authorizes such ordinances as shall
seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants
thereof, and for the protection of property therein.' It is a general rule
that ordinances passed by virtue of the implied power found in the
general welfare clause must be reasonable, consonant with the
general powersand purposes of the corporation, and not inconsistent
with the laws or policy of the State." 15 If night clubs were merely
then regulated and not prohibited, certainly the assailed ordinance
would pass the test of validity. In the two leading cases above set
forth, this Court had stressed reasonableness, consonant with the
general powers and purposes of municipal corporations, as well as
consistency with the laws or policy of the State. It cannot be said that
such a sweeping exercise of a lawmaking power by Bocaue could
qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that
does not encompass too wide a field. Certainly the ordinance on its
face is characterized by overbreadth. The purpose sought to be
achieved could have been attained by reasonable restrictions rather
than by an absolute prohibition. The admonition in Salaveria should
be heeded: "The Judiciary should not lightly set aside legislative
action when there is not a clear invasion of personal or property
rights under the guise of police regulation." 16 It is clear that in the
guise of a police regulation, there was in this instance a clear invasion
of personal or property rights, personal in the case of those
individuals desirous of patronizing those night clubs and property in
terms of the investments made and salaries to be earned by those
therein employed.
2. The decision now under review refers to Republic Act No. 938 as
amended. 17 It was originally enacted on June 20, 1953. It is entitled:
"AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
C O U N C I L S T H E P O W E R T O R E G U L AT E T H E
ESTABLISHMENT, MAINTENANCE AND OPERATION OF
CERTAIN PLACES OF AMUSEMENT WITHIN THEIR
RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section
insofar as pertinent reads: "The municipal or city board or council of
each chartered city shall have the power to regulate by ordinance the
establishment, maintenance and operation of night clubs, cabarets,
dancing schools, pavilions, cockpits, bars, saloons, bowling alleys,
billiard pools, and other similar places of amusement within its
territorial jurisdiction: ... " 19Then on May 21, 1954, the first section
was amended to include not merely "the power to regulate, but
likewise "Prohibit ... " 20 The title, however, remained the same. It is
worded exactly as Republic Act No. 938. It is to be admitted that as
thus amended, if only the above portion of the Act were considered, a
municipal council may go as far as to prohibit the operation of night
clubs. If that were all, then the appealed decision is not devoid of
support in law. That is not all, however. The title was not in any way
altered. It was not changed one whit. The exact wording was
followed. The power granted remains that of regulation,
not prohibition. There is thus support for the view advanced by
petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall
embrace only one subject which shall be expressed in the title
thereof. " 21 Since there is no dispute as the title limits the power to
regulating, not prohibiting, it would result in the statute being invalid
if, as was done by the Municipality of Bocaue, the operation of a
night club was prohibited. There is a wide gap between the exercise
of a regulatory power "to provide for the health and safety, promote
the prosperity, improve the morals, 22 in the language of the
Administrative Code, such competence extending to all "the great
public needs, 23 to quote from Holmes, and to interdict any calling,
occupation, or enterprise. In accordance with the well-settled
principle of constitutional construction that between two possible
interpretations by one of which it will be free from constitutional
infirmity and by the other tainted by such grave defect, the former is
to be preferred. A construction that would save rather than one that
would affix the seal of doom certainly commends itself. We have
done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a
specific provision of the recently-enacted Local Government
Code. 25 The general welfare clause, a reiteration of the
Administrative Code provision, is set forth in the first paragraph of
Section 149 defining the powers and duties of the sangguniang
bayan. It read as follows: "(a) Enact such ordinances and issue such
regulations as may be necessary to carry out and discharge the
responsibilities conferred upon it by law, and such as shall be
necessary and proper to provide for the health, safety, comfort and
convenience, maintain peace and order, improve public morals,
promote the prosperity and general welfare of the municipality and
the inhabitants thereof, and insure the protection of property
therein; ..." 26 There are in addition provisions that may have a
bearing on the question now before this Court. Thus the sangguniang
bayanshall "(rr) Regulate cafes, restaurants, beer-houses, hotels,
motels, inns, pension houses and lodging houses, except travel
agencies, tourist guides, tourist transports, hotels, resorts, de luxe
restaurants, and tourist inns of international standards which shall
remain under the licensing and regulatory power of the Ministry of
Tourism which shall exercise such authority without infringing on the
taxing or regulatory powers of the municipality; (ss) Regulate public
dancing schools, public dance halls, and sauna baths or massage
parlors; (tt) Regulate the establishment and operation of billiard
pools, theatrical performances, circuses and other forms of
entertainment; ..." 27 It is clear that municipal corporations cannot
prohibit the operation of night clubs. They may be regulated, but not
prevented from carrying on their business. It would be, therefore, an
exercise in futility if the decision under review were sustained. All
that petitioners would have to do is to apply once more for licenses to
operate night clubs. A refusal to grant licenses, because no such
businesses could legally open, would be subject to judicial correction.
That is to comply with the legislative will to allow the operation and
continued existence of night clubs subject to appropriate regulations.
In the meanwhile, to compel petitioners to close their establishments,
the necessary result of an affirmance, would amount to no more than
a temporary termination of their business. During such time, their
employees would undergo a period of deprivation. Certainly, if such
an undesirable outcome can be avoided, it should be. The law should
not be susceptible to the reproach that it displays less than
sympathetic concern for the plight of those who, under a mistaken
appreciation of a municipal power, were thus left without
employment. Such a deplorable consequence is to be avoided. If it
were not thus, then the element of arbitrariness enters the picture.
That is to pay less, very much less, than full deference to the due
process clause with its mandate of fairness and reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a
retreat from its resolute stand sustaining police power legislation to
promote public morals. The commitment to such an Ideal forbids
such a backward step. Legislation of that character is deserving of the
fullest sympathy from the judiciary. Accordingly, the judiciary has
not been hesitant to lend the weight of its support to measures that
can be characterized as falling within that aspect of the police power.
Reference is made by respondents to Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 There is a
misapprehension as to what was decided by this Court. That was a
regulatory measure. Necessarily, there was no valid objection on due
process or equal protection grounds. It did not prohibit motels. It
merely regulated the mode in which it may conduct business in order
precisely to put an end to practices which could encourage vice and
immorality. This is an entirely different case. What was involved is a
measure not embraced within the regulatory power but an exercise of
an assumed power to prohibit. Moreover, while it was pointed out in
the aforesaid Ermita-Malate Hotel and Motel Operators Association,
Inc. decision that there must be a factual foundation of invalidity, it
was likewise made clear that there is no need to satisfy such a
requirement if a statute were void on its face. That it certainly is if the
power to enact such ordinance is at the most dubious and under the
present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of
the lower court dated January 15, 1976 reversed, set aside, and
nullied. Ordinance No. 84, Series of 1975 of the Municipality of
Bocaue is declared void and unconstitutional. The temporary
restraining order issued by this Court is hereby made permanent. No
costs.
Republic of the Philippines

SUPREME COURT

Manila
FIRST DIVISION
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY
COUNCIL OF QUEZON CITY, petitioners, 

vs.

HON. JUDGE VICENTE G. ERICTA as Judge of the Court of
First Instance of Rizal, Quezon City, Branch XVIII;
HIMLAYANG PILIPINO, INC., respondents.
GUTIERREZ, JR., J.:
This is a petition for review which seeks the reversal of the decision
of the Court of First Instance of Rizal, Branch XVIII declaring
Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council
null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE
REGULATING THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR
BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON
CITY AND PROVIDING PENALTIES FOR THE VIOLATION
THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial park
cemetery shall be set aside for charity burial of deceased persons who
are paupers and have been residents of Quezon City for at least 5
years prior to their death, to be determined by competent City
Authorities. The area so designated shall immediately be developed
and should be open for operation not later than six months from the
date of approval of the application.
For several years, the aforequoted section of the Ordinance was not
enforced by city authorities but seven years after the enactment of the
ordinance, the Quezon City Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it
does hereby request the City Engineer, Quezon City, to stop any
further selling and/or transaction of memorial park lots in Quezon
City where the owners thereof have failed to donate the required 6%
space intended for paupers burial.
Pursuant to this petition, the Quezon City Engineer notified
respondent Himlayang Pilipino, Inc. in writing that Section 9 of
Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of
First Instance of Rizal Branch XVIII at Quezon City, a petition for
declaratory relief, prohibition and mandamus with preliminary
injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the
Ordinance in question The respondent alleged that the same is
contrary to the Constitution, the Quezon City Charter, the Local
Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely
legal both petitioners and respondent agreed to the rendition of a
judgment on the pleadings. The respondent court, therefore, rendered
the decision declaring Section 9 of Ordinance No. 6118, S-64 null
and void.
A motion for reconsideration having been denied, the City
Government and City Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid
and reasonable exercise of police power and that the land is taken for
a public use as it is intended for the burial ground of paupers. They
further argue that the Quezon City Council is authorized under its
charter, in the exercise of local police power, " to make such further
ordinances and resolutions not repugnant to law as may be necessary
to carry into effect and discharge the powers and duties conferred by
this Act and such as it shall deem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals,
peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that
the taking or confiscation of property is obvious because the
questioned ordinance permanently restricts the use of the property
such that it cannot be used for any reasonable purpose and deprives
the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not
available as a source of power for the taking of the property in this
case because it refers to "the power of promoting the public welfare
by restraining and regulating the use of liberty and property." The
respondent points out that if an owner is deprived of his property
outright under the State's police power, the property is generally not
taken for public use but is urgently and summarily destroyed in order
to promote the general welfare. The respondent cites the case of a
nuisance per se or the destruction of a house to prevent the spread of
a conflagration.
We find the stand of the private respondent as well as the decision of
the respondent Judge to be well-founded. We quote with approval the
lower court's ruling which declared null and void Section 9 of the
questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise
of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537),
does not reveal any provision that would justify the ordinance in
question except the provision granting police power to the City.
Section 9 cannot be justified under the power granted to Quezon City
to tax, fix the license fee, and regulate such other business, trades,
and occupation as may be established or practised in the
City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People
vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765,
May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to
regulate does not include the power to confiscate. The ordinance in
question not only confiscates but also prohibits the operation of a
memorial park cemetery, because under Section 13 of said ordinance,
'Violation of the provision thereof is punishable with a fine and/or
imprisonment and that upon conviction thereof the permit to operate
and maintain a private cemetery shall be revoked or cancelled.' The
confiscatory clause and the penal provision in effect deter one from
operating a memorial park cemetery. Neither can the ordinance in
question be justified under sub- section "t", Section 12 of Republic
Act 537 which authorizes the City Council to-
'prohibit the burial of the dead within the center of population of the
city and provide for their burial in such proper place and in such
manner as the council may determine, subject to the provisions of the
general law regulating burial grounds and cemeteries and governing
funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No.
537).
There is nothing in the above provision which authorizes confiscation
or as euphemistically termed by the respondents, 'donation'
We now come to the question whether or not Section 9 of the
ordinance in question is a valid exercise of police power. The police
power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act
537 which reads as follows:
(00) To make such further ordinance and regulations not repugnant to
law as may be necessary to carry into effect and discharge the powers
and duties conferred by this act and such as it shall deem necessary
and proper to provide for the health and safety, promote, the
prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles.
Occupying the forefront in the bill of rights is the provision which
states that 'no person shall be deprived of life, liberty or property
without due process of law' (Art. Ill, Section 1 subparagraph 1,
Constitution).
On the other hand, there are three inherent powers of government by
which the state interferes with the property rights, namely-. (1) police
power, (2) eminent domain, (3) taxation. These are said to exist
independently of the Constitution as necessary attributes of
sovereignty.
Police power is defined by Freund as 'the power of promoting the
public welfare by restraining and regulating the use of liberty and
property' (Quoted in Political Law by Tanada and Carreon, V-11, p.
50). It is usually exerted in order to merely regulate the use and
enjoyment of property of the owner. If he is deprived of his property
outright, it is not taken for public use but rather to destroy in order to
promote the general welfare. In police power, the owner does not
recover from the government for injury sustained in consequence
thereof (12 C.J. 623). It has been said that police power is the most
essential of government powers, at times the most insistent, and
always one of the least limitable of the powers of government (Ruby
vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995,
May 31, 1957). This power embraces the whole system of public
regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court
has said that police power is so far-reaching in scope that it has
almost become impossible to limit its sweep. As it derives its
existence from the very existence of the state itself, it does not need
to be expressed or defined in its scope. Being coextensive with self-
preservation and survival itself, it is the most positive and active of
all governmental processes, the most essential insistent and
illimitable Especially it is so under the modern democratic
framework where the demands of society and nations have multiplied
to almost unimaginable proportions. The field and scope of police
power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and
have transcended human foresight. Since the Courts cannot foresee
the needs and demands of public interest and welfare, they cannot
delimit beforehand the extent or scope of the police power by which
and through which the state seeks to attain or achieve public interest
and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and
the due process clause being the broadest station on governmental
power, the conflict between this power of government and the due
process clause of the Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is
usually exercised in the form of mere regulation or restriction in the
use of liberty or property for the promotion of the general welfare. It
does not involve the taking or confiscation of property with the
exception of a few cases where there is a necessity to confiscate
private property in order to destroy it for the purpose of protecting
the peace and order and of promoting the general welfare as for
instance, the confiscation of an illegally possessed article, such as
opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of
1964 of Quezon City is not a mere police regulation but an outright
confiscation. It deprives a person of his private property without due
process of law, nay, even without compensation.
In sustaining the decision of the respondent court, we are not
unmindful of the heavy burden shouldered by whoever challenges the
validity of duly enacted legislation whether national or local As early
as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250)
that the courts resolve every presumption in favor of validity and,
more so, where the ma corporation asserts that the ordinance was
enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators
Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court
speaking through the then Associate Justice and now Chief Justice
Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any
evidence to offset the presumption of validity that attaches to a
statute or ordinance. As was expressed categorically by Justice
Malcolm 'The presumption is all in favor of validity. ... The action of
the elected representatives of the people cannot be lightly set aside.
The councilors must, in the very nature of things, be familiar with the
necessities of their particular ... municipality and with all the facts
and lances which surround the subject and necessitate action. The
local legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well-being of the
people. ... The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under
the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102,
at p. 111. There was an affirmation of the presumption of validity of
municipal ordinance as announced in the leading Salaveria decision
in Ebona v. Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v.
Board of Health supra :
... Under the provisions of municipal charters which are known as the
general welfare clauses, a city, by virtue of its police power, may
adopt ordinances to the peace, safety, health, morals and the best and
highest interests of the municipality. It is a well-settled principle,
growing out of the nature of well-ordered and society, that every
holder of property, however absolute and may be his title, holds it
under the implied liability that his use of it shall not be injurious to
the equal enjoyment of others having an equal right to the enjoyment
of their property, nor injurious to the rights of the community. An
property in the state is held subject to its general regulations, which
are necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject to
such reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restraints and
regulations, established by law, as the legislature, under the
governing and controlling power vested in them by the constitution,
may think necessary and expedient. The state, under the police
power, is possessed with plenary power to deal with all matters
relating to the general health, morals, and safety of the people, so and wholesome environments. The beneficiaries of the regulation, in
long as it does not contravene any positive inhibition of the organic turn, are made to pay by the subdivision developer when individual
law and providing that such power is not exercised in such a manner lots are sold to home-owners.
as to justify the interference of the courts to prevent positive wrong
and oppression. As a matter of fact, the petitioners rely solely on the general welfare
clause or on implied powers of the municipal corporation, not on any
but find them not applicable to the facts of this case. express provision of law as statutory basis of their exercise of power.
The clause has always received broad and liberal interpretation but
There is no reasonable relation between the setting aside of at least we cannot stretch it to cover this particular taking. Moreover, the
six (6) percent of the total area of an private cemeteries for charity questioned ordinance was passed after Himlayang Pilipino, Inc. had
burial grounds of deceased paupers and the promotion of health, incorporated. received necessary licenses and permits and
morals, good order, safety, or the general welfare of the people. The commenced operating. The sequestration of six percent of the
ordinance is actually a taking without compensation of a certain area cemetery cannot even be considered as having been impliedly
from a private cemetery to benefit paupers who are charges of the acknowledged by the private respondent when it accepted the permits
municipal corporation. Instead of building or maintaining a public to commence operations.
cemetery for this purpose, the city passes the burden to private
cemeteries. WHEREFORE, the petition for review is hereby DISMISSED. The
decision of the respondent court is affirmed.
The expropriation without compensation of a portion of private
cemeteries is not covered by Section 12(t) of Republic Act 537, the SO ORDERED.
Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the
city and to provide for their burial in a proper place subject to the
provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337
provides in Section 177 (q) that a Sangguniang panlungsod may
"provide for the burial of the dead in such place and in such manner
as prescribed by law or ordinance" it simply authorizes the city to
provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law and
practise in the past. It continues to the present. Expropriation,
however, requires payment of just compensation. The questioned
ordinance is different from laws and regulations requiring owners of
subdivisions to set aside certain areas for streets, parks, playgrounds,
and other public facilities from the land they sell to buyers of
subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are
intended to insure the development of communities with salubrious
 Republic of the Philippines
 transferred their rights and interests over the aforesaid lots in favor of
SUPREME COURT
 one Emma Chavez. Upon completion of payment of the purchase
Manila
EN BANC
G.R. No. L-24670 December 14, 1979
ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-
appellant, 
 lots belonging to the Seller.
vs.

FEATI BANK AND TRUST CO., defendant-appellee.
SANTOS, J.:
An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas
& Co., Limited Partnership, from the decision of the Court of First
Instance of Rizal, Branch VI, at Pasig, Hon. Andres Reyes presiding,
which dismissed its complaint in Civil Case No. 7706, entitled,
"Ortigas & Company, Limited Partnership, plaintiff, v. Feati Bank
and Trust Company, defendant," for lack of merit.
The following facts — a reproduction of the lower court's findings,
which, in turn, are based on a stipulation of facts entered into by the
parties are not disputed. Plaintiff (formerly known as "Ortigas,
Madrigal y Cia") is a limited partnership and defendant Feati Bank
and Trust Co., is a corporation duly organized and existing in
accordance with the laws of the Philippines. Plaintiff is engaged in
real estate business, developing and selling lots to the public,
particularly the Highway Hills Subdivision along Epifanio de los
Santos Avenue, Mandaluyong, Rizal. 1
On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y
Angeles and Natividad Angeles, as vendees, entered into separate
agreements of sale on installments over two parcels of land, known
as Lots Nos. 5 and 6, Block 31, of the Highway Hills Subdivision,
situated at Mandaluyong, Rizal. On July 19, 1962, the said vendees
price, the plaintiff executed the corresponding deeds of sale in favor
of Emma Chavez. Both the agreements (of sale on installment) and
the deeds of sale contained the stipulations or restrictions that:
1. The parcel of land subject of this deed of sale shall be used the
Buyer exclusively for residential purposes, and she shall not be
entitled to take or remove soil, stones or gravel from it or any other
2. All buildings and other improvements (except the fence) which
may be constructed at any time in said lot must be, (a) of strong
materials and properly painted, (b) provided with modern sanitary
installations connected either to the public sewer or to an approved
septic tank, and (c) shall not be at a distance of less than two (2)
meters from its boundary lines. 2
The above restrictions were later annotated in TCT Nos. 101509 and
101511 of the Register of Deeds of Rizal, covering the said lots and
issued in the name of Emma Chavez.3
Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT
Nos. 101613 and 106092 issued in its name, respectively and the
building restrictions were also annotated therein. 4 Defendant-
appellee bought Lot No. 5 directly from Emma Chavez, "free from
all liens and encumbrances as stated in Annex 'D', 5 while Lot No. 6
was acquired from Republic Flour Mills through a "Deed of
Exchange," Annex "E". 6 TCT No. 101719 in the name of Republic
Flour Mills likewise contained the same restrictions, although
defendant-appellee claims that Republic Flour Mills purchased the
said Lot No. 6 "in good faith. free from all liens and encumbrances,"
as stated in the Deed of Sale, Annex "F" 7 between it and Emma
Chavez.
Plaintiff-appellant claims that the restrictions annotated on TCT Nos.
101509, 101511, 101719, 101613, and 106092 were imposed as part
of its general building scheme designed for the beautification and
development of the Highway Hills Subdivision which forms part of
the big landed estate of plaintiff-appellant where commercial and
industrial sites are also designated or established. 8
Defendant-appellee, upon the other hand, maintains that the area
along the western part of Epifanio de los Santos Avenue (EDSA)
from Shaw Boulevard to Pasig River, has been declared a commercial
and industrial zone, per Resolution No. 27, dated February 4, 1960 of
the Municipal Council of Mandaluyong, Rizal. 9 It alleges that
plaintiff-appellant 'completely sold and transferred to third persons
all lots in said subdivision facing Epifanio de los Santos
Avenue" 10 and the subject lots thereunder were acquired by it "only
on July 23, 1962 or more than two (2) years after the area ... had been
declared a commercial and industrial zone ... 11
On or about May 5, 1963, defendant-appellee began laying the
foundation and commenced the construction of a building on Lots
Nos. 5 and 6, to be devoted to banking purposes, but which
defendant-appellee claims could also be devoted to, and used
exclusively for, residential purposes. The following day, plaintiff-
appellant demanded in writing that defendant-appellee stop the
construction of the commerical building on the said lots. The latter
refused to comply with the demand, contending that the building was
being constructed in accordance with the zoning regulations,
defendant-appellee having filed building and planning permit
applications with the Municipality of Mandaluyong, and it had
accordingly obtained building and planning permits to proceed with
the construction.12
On the basis of the foregoing facts, Civil Case No. 7706, supra, was
submitted in the lower court for decision. The complaint sought,
among other things, the issuance of "a writ of preliminary
injunction ... restraining and enjoining defendant, its agents, assigns,
and those acting on its or their behalf from continuing or completing
the construction of a commercial bank building in the premises ...
involved, with the view to commanding the defendant to observe and
comply with the building restrictions annotated in the defendant's
transfer certificate of title."
In deciding the said case, the trial court considered, as the
fundamental issue, whether or not the resolution of the Municipal
Council of Mandaluyong declaring Lots Nos. 5 and 6, among others,
as part of the commercial and industrial zone of the municipality,
prevailed over the building restrictions imposed by plaintiff-appellant
on the lots in question. 13 The records do not show that a writ of
preliminary injunction was issued.
The trial court upheld the defendant-appellee and dismissed the
complaint, holding that the subject restrictions were subordinate to
Municipal Resolution No. 27, supra. It predicated its conclusion on
the exercise of police power of the said municipality, and stressed
that private interest should "bow down to general interest and
welfare. " In short, it upheld the classification by the Municipal
Council of the area along Epifanio de los Santos Avenue as a
commercial and industrial zone, and held that the same rendered
"ineffective and unenforceable" the restrictions in question as against
defendant-appellee.14 The trial court decision further emphasized that
it "assumes said resolution to be valid, considering that there is no
issue raised by either of the parties as to whether the same is null and
void. 15
On March 2, 1965, plaintiff-appellant filed a motion for
reconsideration of the above decision, 16 which motion was opposed
by defendant-appellee on March 17, 1965.17 It averred, among others,
in the motion for reconsideration that defendant- appellee "was duty
bound to comply with the conditions of the contract of sale in its
favor, which conditions were duly annotated in the Transfer
Certificates of Title issued in her (Emma Chavez) favor." It also
invited the trial court's attention to its claim that the Municipal
Council had (no) power to nullify the contractual obligations
assumed by the defendant corporation." 18
The trial court denied the motion for reconsideration in its order of
March 26, 1965. 19
On April 2, 1965 plaintiff-appellant filed its notice of appeal from the
decision dismissing the complaint and from the order of March 26,
1965 denying the motion for reconsideration, its record on appeal,
and a cash appeal bond." 20On April 14, the appeal was given due
course 21 and the records of the case were elevated directly to this
Court, since only questions of law are raised. 22
Plaintiff-appellant alleges in its brief that the trial court erred —
I. When it sustained the view that Resolution No. 27, series of 1960
of the Municipal Council of Mandaluyong, Rizal declaring Lots Nos.
5 and 6, among others, as part of the commercial and industrial zone,
is valid because it did so in the exercise of its police power; and
II. When it failed to consider whether or not the Municipal Council
had the power to nullify the contractual obligations assumed by
defendant-appellee and when it did not make a finding that the
building was erected along the property line, when it should have
been erected two meters away from said property line. 23
The defendant-appellee submitted its counter-assignment of errors. In
this connection, We already had occasion to hold in Relativo v.
Castro 24 that "(I)t is not incumbent on the appellee, who occupies a
purely defensive position, and is seeking no affirmative relief, to
make assignments of error, "
The only issues to be resolved, therefore, are: (1) whether Resolution
No. 27 s-1960 is a valid exercise of police power; and (2) whether the
said Resolution can nullify or supersede the contractual obligations
assumed by defendant-appellee.
1. The contention that the trial court erred in sustaining the validity of
Resolution No. 27 as an exercise of police power is without merit. In
the first place, the validity of the said resolution was never
questioned before it. The rule is that the question of law or of fact
which may be included in the appellant's assignment of errors must
be those which have been raised in the court below, and are within
the issues framed by the parties. 25 The object of requiring the parties
to present all questions and issues to the lower court before they can
be presented to the appellate court is to enable the lower court to pass
thereon, so that the appellate court upon appeal may determine
whether or not such ruling was erroneous. The requirement is in
furtherance of justice in that the other party may not be taken by
surprise. 26 The rule against the practice of blowing "hot and cold" by
assuming one position in the trial court and another on appeal will, in
the words of Elliot, prevent deception. 27 For it is well-settled that
issues or defenses not raised 28 or properly litigated 29 or pleaded 30 in
the Court below cannot be raised or entertained on appeal.
In this particular case, the validity of the resolution was admitted at
least impliedly, in the stipulation of facts below. when plaintiff-
appellant did not dispute the same. The only controversy then as
stated by the trial court was whether or not the resolution of the
Municipal Council of Mandaluyong ... which declared lots Nos. 4
and 5 among others, as a part of the commercial and industrial zone
of the municipality, prevails over the restrictions constituting as
encumbrances on the lots in question. 31 Having admitted the validity
of the subject resolution below, even if impliedly, plaintiff-appellant
cannot now change its position on appeal.
But, assuming arguendo that it is not yet too late in the day for
plaintiff-appellant to raise the issue of the invalidity of the municipal
resolution in question, We are of the opinion that its posture is
unsustainable. Section 3 of R.A. No. 2264, otherwise known as the
Local Autonomy Act," 32 empowers a Municipal Council "to adopt
zoning and subdivision ordinances or regulations"; 33 for the
municipality. Clearly, the law does not restrict the exercise of the
power through an ordinance. Therefore, granting that Resolution No.
27 is not an ordinance, it certainly is a regulatory measure within the
intendment or ambit of the word "regulation" under the provision. As
a matter of fact the same section declares that the power exists
"(A)ny provision of law to the contrary notwithstanding ... "
An examination of Section 12 of the same law 34 which prescribes the
rules for its interpretation likewise reveals that the implied power of a
municipality should be "liberally construed in its favor" and that
"(A)ny fair and reasonable doubt as to the existence of the power
should be interpreted in favor of the local government and it shall be
presumed to exist." The same section further mandates that the
general welfare clause be liberally interpreted in case of doubt, so as
to give more power to local governments in promoting the economic
conditions, social welfare and material progress of the people in the
community. The only exceptions under Section 12 are existing vested
rights arising out of a contract between "a province, city or
municipality on one hand and a third party on the other," in which
case the original terms and provisions of the contract should govern.
The exceptions, clearly, do not apply in the case at bar.
2. With regard to the contention that said resolution cannot nullify the
contractual obligations assumed by the defendant-appellee – referring
to the restrictions incorporated in the deeds of sale and later in the
corresponding Transfer Certificates of Title issued to defendant-
appellee – it should be stressed, that while non-impairment of
contracts is constitutionally guaranteed, the rule is not absolute, since
it has to be reconciled with the legitimate exercise of police power,
i.e., "the power to prescribe regulations to promote the health,
morals, peace, education, good order or safety and general welfare of
the people. 35 Invariably described as "the most essential, insistent,
and illimitable of powers" 36 and "in a sense, the greatest and most
powerful attribute of government, 37 the exercise of the power may be
judicially inquired into and corrected only if it is capricious,
'whimsical, unjust or unreasonable, there having been a denial of due
process or a violation of any other applicable constitutional
guarantee. 38 As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et
al. 39 police power "is elastic and must be responsive to various social
conditions; it is not, confined within narrow circumscriptions of
precedents resting on past conditions; it must follow the legal
progress of a democratic way of life." We were even more emphatic
in Vda. de Genuino vs. The Court of Agrarian Relations, et
al., 40 when We declared: "We do not see why public welfare when
clashing with the individual right to property should not be made to
prevail through the state's exercise of its police power.
Resolution No. 27, s-1960 declaring the western part of highway 54,
now E. de los Santos Avenue (EDSA, for short) from Shaw
Boulevard to the Pasig River as an industrial and commercial zone,
was obviously passed by the Municipal Council of Mandaluyong,
Rizal in the exercise of police power to safeguard or promote the
health, safety, peace, good order and general welfare of the people in
the locality, Judicial notice may be taken of the conditions prevailing
in the area, especially where lots Nos. 5 and 6 are located. The lots
themselves not only front the highway; industrial and commercial
complexes have flourished about the place. EDSA, a main traffic
artery which runs through several cities and municipalities in the
Metro Manila area, supports an endless stream of traffic and the
resulting activity, noise and pollution are hardly conducive to the
health, safety or welfare of the residents in its route. Having been
expressly granted the power to adopt zoning and subdivision
ordinances or regulations, the municipality of Mandaluyong, through
its Municipal 'council, was reasonably, if not perfectly, justified under
the circumstances, in passing the subject resolution.
The scope of police power keeps expanding as civilization advances,
stressed this Court, speaking thru Justice Laurel in the leading case
of Calalang v. Williams et al., 41 Thus-
As was said in the case of Dobbins v. Los Angeles (195 US 223, 238
49 L. ed. 169), 'the right to exercise the police power is a continuing
one, and a business lawful today may in the future, because of
changed situation, the growth of population or other causes, become
a menace to the public health and welfare, and be required to yield to
the public good.' And in People v. Pomar (46 Phil. 440), it was
observed that 'advancing civilization is bringing within the scope of
police power of the state today things which were not thought of as
being with in such power yesterday. The development of civilization),
the rapidly increasing population, the growth of public opinion, with
an increasing desire on the part of the masses and of the government
to look after and care for the interests of the individuals of the state,
have brought within the police power many questions for regulation
which formerly were not so considered. 42 (Emphasis, supplied.)
Thus, the state, in order to promote the general welfare, may interfere
with personal liberty, with property, and with business and
occupations. Persons may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort health and prosperity
of the state 43 and to this fundamental aim of our Government, the
rights of the individual are subordinated. 44
The need for reconciling the non-impairment clause of the
Constitution and the valid exercise of police power may also be
gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo,
speaking for the Court, resolved the conflict "between one welfare
and another, between particular and general, thus —
Nor is the concept of the general welfare static. Needs that were
narrow or parochial a century ago may be interwoven in our day
with the well-being of the nation What is critical or urgent changes
with the times. 46
The motives behind the passage of the questioned resolution being
reasonable, and it being a " legitimate response to a felt public
need," 47 not whimsical or oppressive, the non-impairment of
contracts clause of the Constitution will not bar the municipality's
proper exercise of the power. Now Chief Justice Fernando puts it
aptly when he declared: "Police power legislation then is not likely to
succumb to the challenge that thereby contractual rights are rendered
nugatory." 48
Furthermore, We restated in Philippine American Life Ins. Co. v.
Auditor General49 that laws and reservation of essential attributes of
sovereign power are read into contracts agreed upon by the parties.
Thus —
Not only are existing laws read into contracts in order to fix
obligations as between the parties, but the reservation of essential
attributes of sovereign power is also read into contracts as a
postulate of the legal order. The policy of protecting contracts against
impairments presupposes the maintenance of a government by virtue
of which contractual relations are worthwhile – a government which
retains adequate authority to secure the peace and good order of
society.
Again, We held in Liberation Steamship Co., Inc. v. Court of
Industrial Relations, 50 through Justice J.B.L. Reyes, that ... the law
forms part of, and is read into, every contract, unless clearly excluded
therefrom in those cases where such exclusion is allowed." The
decision in Maritime Company of the Philippines v. Reparations
Commission, 51 written for the Court by Justice Fernando, now Chief
Justice, restates the rule.
One last observation. Appellant has placed unqualified reliance on
American jurisprudence and authorities 52 to bolster its theory that the
municipal resolution in question cannot nullify or supersede the
agreement of the parties embodied in the sales contract, as that, it
claims, would impair the obligation of contracts in violation of the
Constitution. Such reliance is misplaced.
In the first place, the views set forth in American decisions and
authorities are not per se controlling in the Philippines, the laws of
which must necessarily be construed in accordance with the intention
of its own lawmakers and such intent may be deduced from the
language of each law and the context of other local legislation related
thereto. 53 and Burgess, et al v. Magarian, et al., 55 two Of the cases
cited by plaintiff-appellant, lend support to the conclusion reached by
the trial court, i.e. that the municipal resolution supersedes/
supervenes over the contractual undertaking between the
parties. Dolan v. Brown, states that "Equity will not, as a rule, enforce
a restriction upon the use of property by injunction where the
property has so changed in character and environment as to make it
unfit or unprofitable for use should the restriction be enforced, but
will, in such a case, leave the complainant to whatever remedy he
may have at law. 56 (Emphasis supplied.) Hence, the remedy of
injunction in Dolan vs. Brown was denied on the specific holding that
"A grantor may lawfully insert in his deed conditions or restrictions
which are not against public policy and do not materially impair the
beneficial enjoyment of the estate. 57 Applying the principle just
stated to the present controversy, We can say that since it is now
unprofitable, nay a hazard to the health and comfort, to use Lots Nos.
5 and 6 for strictly residential purposes, defendants- appellees should
be permitted, on the strength of the resolution promulgated under the
police power of the municipality, to use the same for commercial
purposes. In Burgess v. Magarian et al. it was, held that "restrictive
covenants running with the land are binding on all subsequent
purchasers ... " However, Section 23 of the zoning ordinance
involved therein contained a proviso expressly declaring that the
ordinance was not intended "to interfere with or abrogate or annul
any easements, covenants or other agreement between parties." 58 In
the case at bar, no such proviso is found in the subject resolution.
It is, therefore, clear that even if the subject building restrictions were
assumed by the defendant-appellee as vendee of Lots Nos. 5 and 6, in
the corresponding deeds of sale, and later, in Transfer Certificates of
Title Nos. 101613 and 106092, the contractual obligations so
assumed cannot prevail over Resolution No. 27, of the Municipality
of Mandaluyong, which has validly exercised its police power
through the said resolution. Accordingly, the building restrictions,
which declare Lots Nos. 5 and 6 as residential, cannot be enforced.
IN VIEW OF THE FOREGOING, the decision appealed from,
dismissing the complaint, is hereby AFFIRMED. "without
pronouncement as to costs.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. Nos. L-60549, 60553 to 60555 October 26, 1983
HEIRS OF JUANCHO ARDONA (represented by Gloria
Ardona) ANASTACIO C. CABILAO, HEIRS OF CIPRIANO
CABILAO (represented by Jose Cabilao) MODESTA CABILAO,
HEIRS OF ROMAN CABUENAS (represented by Alberto
Cabuenas), AGRIPINO GABISAY and PRUDENCIA MABINI,
ANTONIO LABRADOR and LUCIA GABISAY, GERONIMO
MABINI and MARCELINA SABAL, INOCENCIO MABINI
and ARSENIA REYES, PATRICIO MABINI and GREGORIA
BORRES, ANICETO GADAPAN and MAXIMA GABISAY,
BARTOLOME MAGNO and CALINECA E. MAGNO,
ALBERTO CABUENAS, NARCISO CABUENAS and
VICTORIA CABUENAS, EUTIQUIOSENO, HEIRS OF
ESPERIDION CABUENAS (represented by Alberto Cabuenas),
MAXIMINA NAVARO, SULPICIO NAVARO, EDUARDO
NAVARO, MARTINIANO ROMA (in representation of Arcadio
Mabini, deceased), MARTIN SENO, FAUSTO ARDA, MAXIMA
CABILAO, ESTRELLA SENO, EDUVEGIS S. CABILAO,
ROSARIO CABILAO, MINORS DANILO, SOCORRO,
JOSEFINA and MARITES, all surnamed Cabilao, JUAN
BORRES (represented by Francisca Borres), RAMON
JABADAN, JESUS ALIPAR and LEONILA KABAHAR,
ANTONIO LABRADOR, HEIRS OF NICASIO GABISAY
(represented by Arsenio Gabisay), PACIFICO LABRADOR,
DEMETRIO LABRADOR and FRUCTOSA TABURA,
VENANCIO DEL MAR, MARINO DEL MAR, HEIRS OF
TEODORA ARCILLO (represented by Brigida Arcillo)
DIONISIA GABUNADA, HEIRS OF BUENAVENTURA
FRANCISCO (represented by Felicidad Sadaya Francisco),
HEIRS OF VICTORIA C. CABUENAS (represented by Alberto
Cabuenas) HEIRS OF CIPRIANO GABUNADA (represented by
Claudio Gabunada), petitioners, 
 Barangays Malubog, Busay and Babag, all of Cebu City, a sports
vs.
 complex (basketball courts, tennis courts, volleyball courts, track and
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of
Branch I, COURT OF FIRST instance OF CEBU, and the
PHILIPPINE TOURISM AUTHORITY, respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari with preliminary injunction
challenging the constitutionality of Presidential Decree No. 564, the
Revised Charter of the Philippine Tourism Authority, and
Proclamation No. 2052 declaring the barangays of Sibugay, Malubog,
Babag and Sirao including the proposed Lusaran Dam in the City of
Cebu and in the municipalities of Argao and Dalaguete in the
province of Cebu as tourist zones. The petitioners ask that we restrain
respondent Court of First Instance of Cebu and the Philippine
Tourism Authority (PTA) from enforcing and implementing the writs
of possession issued in four (4) expropriation cases filed by PTA
against the petitioners: Civil Cases Nos. R-19562, R-19684,
R-20701, and R-21608 of the Court of First Instance of Cebu (Branch
1).
The Philippine Tourism Authority filed four (4) Complaints with the
Court of First Instance of Cebu City for the expropriation of some
282 hectares of rolling land situated in barangays Malubog and
Babag, Cebu City, under PTA's express authority "to acquire by
purchase, by negotiation or by condemnation proceedings any private
land within and without the tourist zones" for the purposes indicated
in Section 5, paragraph B(2), of its Revised Charter (PD 564), more
specifically, for the development into integrated resort complexes of
selected and well-defined geographic areas with potential tourism
value. As uniformly alleged in the complaints, the purposes of the
expropriation are:
V authorizing the taking of private property for tourism purposes; that
Plaintiff, in line with the policy of the government to promote
tourism and development of tourism projects will construct in
field, baseball and softball diamonds, and swimming pools),
clubhouse, gold course, children's playground and a nature area for
picnics and horseback riding for the use of the public.
The development plan, covering approximately 1,000 hectares,
includes the establishment of an electric power grid in the area by the
National Power Corporation, thus assuring the supply of electricity
therein for the benefit of the whole community. Deep wells will also
be constructed to generate water supply within the area. Likewise, a
complex sewerage and drainage system will be devised and
constructed to protect the tourists and nearby residents from the
dangers of pollution.
Complimentary and support facilities for the project will be
constructed, including public rest houses, lockers, dressing rooms,
coffee shops, shopping malls, etc. Said facilities will create and offer
employment opportunities to residents of the community and further
generate income for the whole of Cebu City.
Plaintiff needs the property above described which is directly covered
by the proposed golf court.
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their
respective Opposition with Motion to Dismiss and/or
Reconsideration. The defendants in Civil Case No. R-19562 filed a
manifestation adopting the answer of defendants in Civil Case No.
R-19864. The defendants, now petitioners, had a common allegation
in that the taking is allegedly not impressed with public use under the
Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the
issue of public use, that there is no specific constitutional provision
assuming that PTA has such power, the intended use cannot be
paramount to the determination of the land as a land reform area; that
limiting the amount of compensation by Legislative fiat is
constitutionally repugnant; and that since the land is under the land
reform program, it is the Court of Agrarian Relations and not the
Court of First Instance that has jurisdiction over the expropriation
cases.
The Philippine Tourism Authority having deposited with The
Philippine National Bank, Cebu City Branch, an amount equivalent
to 10% of the value of the properties pursuant to Presidential Decree
No. 1533. the lower court issued separate orders authorizing PTA to
take immediate possession of the premises and directing the issuance
of writs of possession.
On May 25, 1982, petitioners filed this petition questioning the
orders of the respondent Judge, The respondents have correctly
restated the grounds in the petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the
Constitution does not provide for the expropriation of private
property for tourism or other related purposes;
B. The writs of possession or orders authorizing PTA to take
immediate possession is premature because the "public use" character
of the taking has not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent
domain law;
D. The properties in question have been previously declared a land
reform area; consequently, the implementation of the social justice
pro- ,vision of the Constitution on agrarian reform is paramount to
the right of the State to expropriate for the purposes intended;
E. Proclamation No. 2052 declaring certain barangays in Cebu City,
which include the lands subject of expropriation as within a tourist
zone, is unconstitutional for it impairs the obligation of contracts; "F.
Since the properties are within a land reform area, it is the Court of
Agrarian Relations, not the lower court, that has jurisdiction pursuant
to Pres. Decree No. 946;
F. The forcible ejectment of defendants from the premises constitutes
a criminal act under Pres. Decree No. 583;
In their memorandum, the petitioners have summarized the issues as
follows:
I. Enforcement of the Writ of Possession is Premature:
II. Presidential Decree 564 Amending Presidential Decree l89 is
Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore,
Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered by the
Land Reform Program Violates the Constitution:
V. Presidential Proclamation 2052 is Unconstitutional:
VI. Presidential Decree No 1533 is Unconstitutional:
VII. The Court of First Instance has no Jurisdiction:
VIII. The Filing of the Present Petition is not Premature.
The issues raised by the petitioners revolve around the proposition
that the actions to expropriate their properties are constitutionally
infirm because nowhere in the Constitution can a provision be found
which allows the taking of private property for the promotion of
tourism.
The petitioners' arguments in their pleadings in support of the above
proposition are subsumed under the following headings:
1. Non-compliance with the "public use" requirement under the
eminent domain provision of the Bill of Rights.
2. Disregard of the land reform nature of the property being
expropriated.
3. Impairment of the obligation of contracts.
There are three provisions of the Constitution which directly provide
for the exercise of the power of eminent domain. Section 2, Article
IV states that private property shall not be taken for public use
without just compensation. Section 6, Article XIV allows the State, in
the interest of national welfare or defense and upon payment of just
compensation to transfer to public ownership, utilities and other
private enterprises to be operated by the government. Section 13,
Article XIV states that the Batasang Pambansa may authorize upon
payment of just compensation the expropriation of private lands to be
subdivided into small lots and conveyed at cost to deserving citizens.
While not directly mentioning the expropriation of private properties
upon payment of just compensation, the provisions on social justice
and agrarian reforms which allow the exercise of police power
together with the power of eminent domain in the implementation of
constitutional objectives are even more far-reaching insofar as taking
of private property is concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social justice to ensure the dignity,
welfare, and security of all the people. Towards its end, the State
shall regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property
ownership and profits.
Section 12, Article XIV provides:
See. 12. The State shall formulate and implement an agrarian reform
program aimed at emancipating the tenant from the bondage of the
soil and achieving the goals enunciated in this Constitution.
The equitable diffusion of property ownership in the promotion of
social justice implies the exercise, whenever necessary, of the power
to expropriate private property. Likewise there can be no meaningful
agrarian reform program unless the power to expropriate is utilized.
We cite all the above provisions on the power to expropriate because
of the petitioners' insistence on a restrictive view of the eminent
domain provision. The thrust of all constitutional provisions on
expropriation is in the opposite direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus (40
Phil. 550) categorized the restrictive view as wholly erroneous and
based on a misconception of fundamentals.
The petitioners look for the word "tourism" in the Constitution.
Understandably the search would be in vain. The policy objectives of
the framers can be expressed only in general terms such as social
justice, local autonomy, conservation and development of the
national patrimony, public interest, and general welfare, among
others. The programs to achieve these objectives vary from time to
time and according to place, To freeze specific programs like Tourism
into express constitutional provisions would make the Constitution
more prolix than a bulky code and require of the framers a prescience
beyond Delphic proportions. The particular mention in the
Constitution of agrarian reform and the transfer of utilities and other
private enterprises to public ownership merely underscores the
magnitude of the problems sought to be remedied by these programs.
They do not preclude nor limit the exercise of the power of eminent
domain for such purposes like tourism and other development
programs.
In the leading case of Visayan Refining Co. v. Camus (supra), this
Court emphasized that the power of eminent domain is inseparable
from sovereignty being essential to the existence of the State and
inherent in government even in its most primitive forms. The only
purpose of the provision in the Bill of Rights is to provide some form
of restraint on the sovereign power. It is not a grant of authority -
The power of eminent domain does not depend for its existence on a
specific grant in the constitution. It is inherent in sovereignty and
exists in a sovereign state without any recognition of it in the
constitution. The provision found in most of the state constitutions
relating to the taking of property for the public use do not by
implication grant the power to the government of the state, but limit a
power which would otherwise be without limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that
"public use" means literally use by the public and that "public use" is
not synonymous with "public interest", "public benefit", or "public
welfare" and much less "public convenience. "
The petitioners face two major obstacles. First, their contention
which is rather sweeping in its call for a retreat from the public
welfare orientation is unduly restrictive and outmoded. Second, no
less than the lawmaker has made a policy determination that the
power of eminent domain may be exercised in the promotion and
development of Philippine tourism.
The restrictive view of public use may be appropriate for a nation
which circumscribes the scope of government activities and public
concerns and which possesses big and correctly located public lands
that obviate the need to take private property for public purposes.
Neither circumstance applies to the Philippines. We have never been
a laissez faire State, And the necessities which impel the exertion of
sovereign power are all too often found in areas of scarce public land
or limited government resources.
Certain aspects of parliamentary government were introduced by the
1973 amendments to the Constitution with further modifications in
the 1976 and 1981 amendments. Insofar as the executive and
legislative departments are concerned, the traditional concept of
checks and balances in a presidential form was considerably modified
to remove some roadblocks in the expeditious implementation of
national policies. There was no such change for the judiciary. We
remain as a checking and balancing department even as all strive to
maintain respect for constitutional boundaries. At the same time, the
philosophy of coordination in the pursuit of developmental goals
implicit in the amendments also constrains in the judiciary to defer to
legislative discretion iii the judicial review of programs for economic
development and social progress unless a clear case of constitutional
infirmity is established. We cannot stop the legitimate exercise of
power on an invocation of grounds better left interred in a bygone
age and time.* As we review the efforts of the political departments
to bring about self-sufficiency, if not eventual abundance, we
continue to maintain the liberal approach because the primary
responsibility and the discretion belong to them.
There can be no doubt that expropriation for such traditions' purposes
as the construction of roads, bridges, ports, waterworks, schools,
electric and telecommunications systems, hydroelectric power plants,
markets and slaughterhouses, parks, hospitals, government office
buildings, and flood control or irrigation systems is valid. However,
the concept of public use is not limited to traditional purposes. Here
as elsewhere the Idea that "public use" is strictly limited to clear
cases of "use by the public" has been discarded.
In the United States, the rule was enunciated in Berman v.
Parker (348 U.S. 25; 99 L. ed. 27) as follows:
We do not sit to determine whether a particular housing project is or
is not desirable. The concept of the public welfare is broad and
inclusive. See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424,
96 L ed 469, 472, 72 S Ct 405. The values it represents are spiritual
as well as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community should be
beautiful as well as healthy, spacious as well as clean, well-balanced
as well as carefully patrolled. In the present case, the Congress and
its authorized agencies have made determinations that take into
account a wide variety of values. It is not for us to reappraise them. If
those who govern the District of Columbia decide that the Nation's
Capital should be beautiful as well as sanitary, there is nothing in the
Fifth Amendment that stands in the way.
Once the object is within the authority of Congress, the right to
realize it through the exercise of eminent domain is clear. For the
power of eminent domain is merely the means to the end. See Luxton
v. North River Bridge Co. 153 US 525, 529, 530, 38 L ed 808, 810,
14 S Ct 891; United States v. Gettysburg Electric R. Co. 160 US 668,
679, 40 L ed 576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated from the
rest of North Carolina because of the flooding of the reservoir of a
dam thus making the provision of police, school, and health services
unjustifiably expensive, the government decided to expropriate the
private properties in the village and the entire area was made part of
an adjoining national park. The district court and the appellate court
ruled against the expropriation or excess condemnation. The Court of
Appeals applied the "use by the public" test and stated that the only
land needed for public use was the area directly flooded by the
reservoir. The village may have been cut off by the dam but to also
condemn it was excess condemnation not valid under the "Public
use" requirement. The U.S. Supreme Court in United States ex rel
TVA v. Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the
lower courts. It stated:
The Circuit Court of Appeals, without expressly relying on a
compelling rule of construction that would give the restrictive scope
to the T.V.A. Act given it by the district court, also interpreted the
statute narrowly. It first analyzed the facts by segregating the total
problem into distinct parts, and thus came to the conclusion that
T.V.A.'s purpose in condemning the land in question was only one to
reduce its liability arising from the destruction of the highway. The
Court held that use of the lands for that purpose is a "private" and not
a "public use" or, at best, a "public use" not authorized by the statute.
we are unable to agree with the reasoning and conclusion of the
Circuit Court of Appeals.
We think that it is the function of Congress to decide what type of
taking is for a public use and that the agency authorized to do the
taking may do so to the still extent of its statutory authority, United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576,
580, 16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of the judicial power to determine
what is a "public use" in Fourteenth Amendment controversies, this
Court has said that when Congress has spoken on this subject "Its
decision is entitled to deference until it is shown to involve an
impossibility." Old Dominion Land Co. v. United States, 269, US 55,
66, 70 L ed 162, 46 S Ct 39. Any departure from this judicial restraint
would result in courts deciding on what is and is not a governmental
function and in their invalidating legislation on the basis of their view
on that question at the moment of decision, a practice which has
proved impracticable in other fields. See Case v. Bowles decided
February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438. New
York v. United States, 326 US 572 ante 326, 66 S Ct 310). We hold
that the T.V.A. took the tracts here involved for a public purpose, if,
as we think is the case, Congress authorized the Authority to acquire,
hold, and use the lands to carry out the purposes of the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando has aptly
summarized the statutory and judicial trend as follows:
The taking to be valid must be for public use. There was a time when
it was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is
not allowable. It is not any more. As long as the purpose of the taking
is public, then the power of eminent domain comes into play. As just
noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals. The other
is in the transfer, through the exercise of this power, of utilities and
other private enterprise to the government. It is accurate to state then
that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Fernando, The
Constitution of the Philippines, 2nd ed., pp. 523-524)
The petitioners' contention that the promotion of tourism is not
"public use" because private concessioners would be allowed to
maintain various facilities such as restaurants, hotels, stores, etc.
inside the tourist complex is impressed with even less merit. Private
bus firms, taxicab fleets, roadside restaurants, and other private
businesses using public streets end highways do not diminish in the
least bit the public character of expropriations for roads and streets.
The lease of store spaces in underpasses of streets built on
expropriated land does not make the taking for a private purpose.
Airports and piers catering exclusively to private airlines and
shipping companies are still for public use. The expropriation of
private land for slum clearance and urban development is for a public
purpose even if the developed area is later sold to private
homeowners, commercial firms, entertainment and service
companies, and other private concerns.
The petitioners have also failed to overcome the deference that is
appropriately accorded to formulations of national policy expressed
in legislation. The rule in Berman u. Parker (supra) of deference to
legislative policy even if such policy might mean taking from one
private person and conferring on another private person applies as
well as in the Philippines.
... Once the object is within the authority of Congress, the means by
which it will be attained is also for Congress to determine. Here one
of the means chosen is the use of private enterprise for
redevelopment of the area. Appellants argue that this makes the
project a taking from one businessman for the benefit of another
businessman. But the means of executing the project are for Congress
and Congress alone to determine, once the public purpose has been
established. Selb Luxton v. North River Bridge Co. (US) supra; cf.
Highland v. Russel Car & Snow Plow Co. 279 US 253, 73 L ed 688,
49 S Ct 314. The public end may be as well or better served through
an agency of private enterprise than through a department of
government-or so the Congress might conclude. We cannot say that
public ownership is the sole method of promoting the public purposes
of community redevelopment projects. What we have said also
disposes of any contention concerning the fact that certain property
owners in the area may be permitted to repurchase their properties for
redevelopment in harmony with the over-all plan. That, too, is a
legitimate means which Congress and its agencies may adopt, if they
choose. (Berman v. Parker, 99 L ed 38, 348 US 33, 34)
An examination of the language in the 1919 cases of City of Manila v.
Chinese Community of Manila (40 Phil, 349) and Visayan Refining
Co. vs. Camus, earlier cited, shows that from the very start of
constitutional government in our country judicial deference to
legislative policy has been clear and manifest in eminent domain
proceedings.
The expressions of national policy are found in the revised charter of
the Philippine Tourism Authority, Presidential Decree No. 564:
WHEREAS, it is the avowed aim of the government to promote
Philippine tourism and work for its accelerated and balanced growth
as well as for economy and expediency in the development of the
tourism plant of the country;
SECTION 1. Declaration of Policy. - It is hereby declared to be the
policy of the State to promote, encourage, and develop Philippine
tourism as an instrument in accelerating the development of the
country, of strengthening the country's foreign exchange reserve
position, and of protecting Philippine culture, history, traditions and
natural beauty, internationally as well as domestically.
The power of eminent domain is expressly provided for under
Section 5 B(2) as follows:
2. Acquisition of Private Lands, Power of Eminent Domain.
— To acquire by purchase, by negotiation or by condemnation
proceedings any private land within and without the tourist zones for
any of the following reasons: (a) consolidation of lands for tourist
zone development purposes, (b) prevention of land speculation in
areas declared as tourist zones, (c) acquisition of right of way to the
zones, (d) protection of water shed areas and natural assets with
tourism value, and (e) for any other purpose expressly authorized
under this Decree and accordingly, to exercise the power of eminent
domain under its own name, which shall proceed in the manner
prescribed by law and/or the Rules of Court on condemnation
proceedings. The Authority may use any mode of payment which it
may deem expedient and acceptable to the land owners: Provided,
That in case bonds are used as payment, the conditions and
restrictions set forth in Chapter III, Section 8 to 13 inclusively, of this
Decree shall apply.
The petitioners rely on the Land Reform Program of the government
in raising their second argument. According to them, assuming that
PTA has the right to expropriate, the properties subject of
expropriation may not be taken for the purposes intended since they
are within the coverage of "operation land transfer" under the land
reform program. Petitioners claim that certificates of land transfer
(CLT'S) and emancipation patents have already been issued to them
thereby making the lands expropriated within the coverage of the
land reform area under Presidential Decree No. 2; that the agrarian
reform program occupies a higher level in the order of priorities than
other State policies like those relating to the health and physical well-
being of the people; and that property already taken for public use
may not be taken for another public use.
We have considered the above arguments with scrupulous and
thorough circumspection. For indeed any claim of rights under the
social justice and land reform provisions of the Constitution deserves
the most serious consideration. The Petitioners, however, have failed
to show that the area being developed is indeed a land reform area
and that the affected persons have emancipation patents and
certificates of land transfer.
The records show that the area being developed into a tourism
complex consists of more than 808 hectares, almost all of which is
not affected by the land reform program. The portion being
expropriated is 282 hectares of hilly and unproductive land where
even subsistence farming of crops other than rice and corn can hardly
survive. And of the 282 disputed hectares, only 8,970 square meters-
less than one hectare-is affected by Operation Land Transfer. Of the
40 defendants, only two have emancipation patents for the less than
one hectare of land affected. And this 8,970 square meters parcel of
land is not even within the sports complex proper but forms part of
the 32 hectares resettlement area where the petitioners and others
similarly situated would be provided with proper housing, subsidiary
employment, community centers, schools, and essential services like
water and electricity-which are non-existent in the expropriated
lands. We see no need under the facts of this petition to rule on
whether one public purpose is superior or inferior to another purpose
or engage in a balancing of competing public interests. The
petitioners have also failed to overcome the showing that the taking
of the 8,970 square meters covered by Operation Land Transfer forms
a necessary part of an inseparable transaction involving the
development of the 808 hectares tourism complex. And certainly, the
human settlement needs of the many beneficiaries of the 32 hectares
resettlement area should prevail over the property rights of two of
their compatriots.
The invocation of the contracts clause has no merit. The non-
impairment clause has never been a barrier to the exercise of police
power and likewise eminent domain. As stated in Manigault v.
Springs (199 U.S. 473) "parties by entering into contracts may not
stop the legislature from enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v. Genato (69 SCRA
544) which involved the expropriation of land for a public plaza. The
Court stated:
... What is claimed is that there must be a showing of necessity for
such condemnation and that it was not done in this case in support of
such a view, reliance is placed on City of Manila v. Arenano Law
Colleges. (85 Phil. 663 [1950]) That doctrine itself is based on the
earlier case of City of Manila v. Chinese Community of Manila, (50
Phil. 349) also, like Camus, a 1919 decision. As could be discerned,
however, in the Arellano Law Colleges decision. it was the
antiquarian view of Blackstone with its sanctification of the right to
one's estate on which such an observation was based. As did appear
in his Commentaries: "So great is the regard of the law for private
property that it will not, authorize the least violation of it, even for
the public good, unless there exists a very great necessity thereof."
Even the most , cursory glance at such well-nigh absolutist concept
of property would show its obsolete character at least for Philippine
constitutional law. It cannot survive the test of the 1935 Constitution
with its mandates on social justice and protection to labor. (Article II,
Section 5 of the 1935 Constitution reads: "The promotion of social
justice to unsure the well-being and economic security of all the
people should be the concern of the State." Article XI, Section 6 of
the same Constitution provides: "The State shall afford protection to
labor, especially to working women and minors, and shall regulate
the relation between landowner and tenant, and between labor and
capital in industry and in agriculture. The State may provide for
compulsory arbitration.") What is more, the present Constitution pays
even less heed to the claims of property and rightly so. After stating
that the State shall promote social justice, it continues: "Towards this
end, the State shall regulate the acquisition, ownership, use,
enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits." (That is the second sentence of
Article II, Section 6 of the Constitution) If there is any need for
explicit confirmation of what was set forth in Presidential Decree No.
42, the above provision supplies it. Moreover, that is merely to
accord to what of late has been the consistent course of decisions of
this Court whenever property rights are pressed unduly. (Cf. Alalayan
v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA
172; Agricultural Credit and Cooperative Financing Administration v.
Confederation of Unions, L-21484, Nov. 29, 1969, 30 SCRA 649;
Edu v. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481; Phil. Virginia
Tobacco Administration v. Court of Industrial Relations, L-32052,
July 25, 1975, 65 SCRA 416) The statement therefore, that there
could be discerned a constitutional objection to a lower court
applying a Presidential Decree, when it leaves no doubt that a grantee
of the power of eminent domain need not prove the necessity for the
expropriation, carries its own refutation.
xxx xxx xxx
The issue of prematurity is also raised by the petitioners. They claim
that since the necessity for the taking has not been previously
established, the issuance of the orders authorizing the PTA to take
immediate possession of the premises, as well as the corresponding
writs of possession was premature.
Under Presidential Decree No. 42, as amended by Presidential
Decree No. 1533, the government, its agency or instrumentality, as
plaintiff in an expropriation proceedings is authorized to take
immediate possession, control and disposition of the property and the
improvements, with power of demolition, notwithstanding the
pendency of the issues before the court, upon deposit with the
Philippine National Bank of an amount equivalent to 10% of the
value of the property expropriated. The issue of immediate
possession has been settled in Arce v. Genato (supra). In answer to
the issue:
... whether the order of respondent Judge in an expropriation case
allowing the other respondent, ... to take immediate possession of the
parcel of land sought to be condemned for the beautification of its
public plaza, without a prior hearing to determine the necessity for
the exercise of the power of eminent domain, is vitiated by
jurisdictional defect, ...
this Court held that:
... It is not disputed that in issuing such order, respondent Judge relied
on Presidential Decree No. 42 issued on the 9th of November, 1972.
(Presidential Decree No. 42 is entitled "Authorizing the Plaintiff in
Eminent Domain Proceedings to Take Possession of the Property
involved Upon Depositing the Assessed Value for Purposes of
Taxation.") The question as thus posed does not occasion any
difficulty as to the answer to be given. This petition for certiorari
must fail, there being no showing that compliance with the
Presidential Decree, which under the Transitory Provisions is deemed
a part of the law of the land, (According to Article XVII, Section 3
par. (2) of the Constitution: "All proclamations, orders, decrees,
instructions and acts promulgated, issued, or done by the incumbent
President shall be part of the law of the land, and shall remain valid,
legal, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations. orders, decrees instructions,
or other acts of the incumbent President, or unless expressly and
explicitly modified or repealed by the regular National Assembly")
would be characterized as either an act in excess of jurisdiction or a
grave abuse of discretion. So we rule.
Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos.
52449-50, June 9, 1980), this Court held:
... condemnation or expropriation proceedings is in the nature of one
that is quasi-in-rem wherein the fact that the owner of the property is
made a party is not essentially indispensable insofar was least as it
conncerns is the immediate taking of possession of the property and
the preliminary determination of its value, including the amount to be
deposited.
In their last argument, the petitioners claim that a consequence of the
expropriation proceedings would be their forcible ejectment. They
contend that such forcible ejectment is a criminal act under
Presidential Decree No. 583. This contention is not valid. Presidential
Decree No. 583 prohibits the taking cognizance or implementation of
orders designed to obstruct the land reform program. It refers to the
harassment of tenant- farmers who try to enforce emancipation rights.
It has nothing to do with the expropriation by the State of lands
needed for public purposes. As a matter of fact, the expropriated area
does not appear in the master lists of the Ministry of Agrarian
Reforms as a teranted area. The petitioners' bare allegations have not
been supported with particulars pointing to specific parcels which are
subject of tenancy contracts. The petitioners may be owner-tillers or
may have some form of possessory or ownership rights but there has
been no showing of their being tenants on the disputed lands.
The petitioners have failed to overcome the burden of anyone trying
to strike down a statute or decree whose avowed purpose is the
legislative perception is the public good. A statute has in its favor the
presumption of validity. All reasonable doubts should be resolved in
favor of the constitutionality of a law. The courts will not set aside a
law as violative of the Constitution except in a clear case (People v.
Vera, 65 Phil. 56). And in the absence of factual findings or evidence
to rebut the presumption of validity, the presumption prevails
(Ermita-Malate Hotel, etc. v. Mayor of Manila, 20 SCRA 849; Morfe
v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the development of the 808
hectares includes plans that would give the petitioners and other
displaced persons productive employment, higher incomes, decent
housing, water and electric facilities, and better living standards. Our
dismissing this petition is, in part, predicated on those assurances.
The right of the PTA to proceed with the expropriation of the 282
hectares already Identified as fit for the establishment of a resort
complex to promote tourism is, therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby
DISMISSE D for lack of merit.
SO ORDERED.