G.R. No. 97764. August 10, 1992.
* municipality can “use or convey them for any purpose for which other
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.
Civil Law; Property; Properties of the local government which are
devoted to public service are deemed public and are under the absolute
control of Congress.—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.
Same; Same; Properties of public dominion devoted to public use
and made available to the public in general are outside the commerce
of men and cannot be disposed of or leased by the local government unit
to private persons.—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withdrawn from public use, the property then becomes patrimonial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
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.
Same; Same; 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.—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.
Constitutional Law; Local Government Code; Batas Pambansa
Blg. 337 known as Local Government Code already repealed by
Republic Act No. 7160 known as Local Government Code of 1991.—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 Code, 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.
MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court
seeking the annulment of the decision of the Regional Trial Court of
Makati, Branch 62, which granted the writ of preliminary injunction
applied for by respondents Municipality of Parañaque and Palanyag
Kilusang Bayan for Service (Palanyag for brevity) against petitioner
herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No.
86, Series of 1990 which authorized the closure of J. Gabriel, G.G.
Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at
Baclaran, Parañaque, Metro Manila and the establishment of a flea
market thereon. The said ordinance was approved by the municipal
council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing
and regulating the use of certain city and/or municipal streets, roads
and open spaces within Metropolitan Manila as sites for flea market
and/or vending areas, under certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved
Ordinance No. 86, s. 1990 of the municipal council of respondent
municipality subject to the following conditions:
1. That the aforenamed streets are not used for vehicular
traffic, and that the majority of the residents do not oppose the
establishment of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and that the 2
meters on both sides of the road shall be used by pedestrians;
3. That the time during which the vending area is to be used
shall be clearly designated;
4. That the use of the vending areas shall be temporary and
shall be closed once the reclaimed areas are developed and
donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Parañaque issued a
resolution authorizing Parañaque Mayor Walfrido N. Ferrer to enter
into contract with any service cooperative for the establishment,
operation, maintenance and management of flea markets and/or
vending areas.
On August 8, 1990, respondent municipality and respondent
Palanyag, a service cooperative, entered into an agreement whereby
the latter shall operate, maintain and manage the flea market in the
aforementioned streets with the obligation to remit dues to the
treasury of the municipal government of Parañaque. Consequently,
market stalls were put up by respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command, ordered the
destruction and confiscation of stalls along G.G. Cruz and J. Gabriel
St. in Baclaran. These stalls were later returned to respondent
Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a
letter to respondent Palanyag giving the latter ten (10) days to
discontinue the flea market; otherwise, the market stalls shall be
dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag
filed with the trial court a joint petition for prohibition
and mandamus with damages and prayer for preliminary injunction,
to which the petitioner filed his memorandum/opposition to the
issuance of the writ of preliminary injunction.
On October 24, 1990, the trial court issued a temporary restraining
order to enjoin petitioner from enforcing his letter-order of October 16,
1990 pending the hearing on the motion for writ of preliminary
injunction.
On December 17, 1990, the trial court issued an order upholding the
validity of Ordinance No. 86 s. 1990 of the Municipality' of Parañaque
and enjoining petitioner Brig. Gen. Macasiano from enforcing his
letter-order against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the
Solicitor General alleging grave abuse of discretion tantamount to lack
or excess of jurisdiction on the part of the trial judge in issuing the
assailed order.
The sole issue to be resolved in this case is whether or not an
ordinance or resolution issued by the municipal council of Parañaque
authorizing the lease and use of public streets or thoroughfares as
sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that municipal
roads are used for public service and are therefore public properties;
that as such, they cannot be subject to private appropriation or private
contract by any person, even by the respondent Municipality of
Parañaque. Petitioner submits that a property already dedicated to
public use cannot be used for another public purpose and that absent a
clear showing that the Municipality of Parañaque has been granted by
the legislature specific authority to convert a property already in
public use to another public use, respondent municipality is, therefore,
bereft of any authority to close municipal roads for the establishment
of a flea market. Petitioner also submits that assuming that the
respondent municipality is authorized to close streets, it failed to
comply with the conditions set forth by the Metropolitan Manila
Authority for the approval of the ordinance providing for the
establishment of flea markets on public streets. Lastly, petitioner
contends that by allowing the municipal streets to be used by market
vendors the municipal council of respondent municipality violated its
duty under the Local Government Code to promote the general welfare
of the residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court
ruled:
. . . that Chanter II Section 10 of the Local Government Code is
a statutory grant of power given to local government units, the
Municipality of Parañaque as such, is empowered under that
law to close its roads, streets or alley subject to limitations
stated therein (i.e., that it is in accordance with existing laws
and the provisions of this code).
xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi Macasiano,
though apparently within its power is in fact an encroachment
of power legally vested to the municipality, precisely because
when the municipality enacted the ordinance in question —
the authority of the respondent as Police Superintendent
ceases to be operative on the ground that the streets covered
by the ordinance ceases to be a public thoroughfare. (pp. 33-
34, Rollo)
We find the petition meritorious. In resolving the question of whether
the disputed municipal ordinance authorizing the flea market on the
public streets is valid, it is necessary to examine the laws in force
during the time the said ordinance was enacted, namely, Batas
Pambansa Blg. 337, otherwise known as Local Government Code, in
connection with established principles embodied in the Civil Code an
property and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into
property for public use and patrimonial property (Art. 423, Civil
Code). As to what consists of property for public use, Article 424 of
Civil Code states:
Art. 424. Property for public use, in the provinces, cities and
municipalities, consists of the provincial roads, city streets, the
squares, fountains, public waters, promenades, and public
works for public service paid for by said provinces, cities or
municipalities.
All other property possessed by any of them is patrimonial and
shall be governed by this Code, without prejudice to the
provisions of special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena streets are local roads used for public service
and are therefore considered public properties of respondent
municipality. Properties of the local government which are devoted to
public service are deemed public and are under the absolute control of
Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-
24440, March 28, 1968, 22 SCRA 1334). Hence, local governments
have no authority whatsoever to control or regulate the use of public
properties unless specific authority is vested upon them by Congress.
One such example of this authority given by Congress to the local
governments is the power to close roads as provided in Section 10,
Chapter II of the Local Government Code, which states:
Sec. 10. Closure of roads. — A local government unit may
likewise, through its head acting pursuant to a resolution of its
sangguniang and in accordance with existing law and the
provisions of this Code, close any barangay, municipal, city or
provincial road, street, alley, park or square. No such way or
place or any part of thereof shall be close without indemnifying
any person prejudiced thereby. A property thus withdrawn
from public use may be used or conveyed for any purpose for
which other real property belonging to the local unit concerned
might be lawfully used or conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to local
government units to close roads and other similar public places should
be read and interpreted in accordance with basic principles already
established by law. These basic principles have the effect of limiting
such authority of the province, city or municipality to close a public
street or thoroughfare. Article 424 of the Civil Code lays down the
basic principle that properties of public dominion devoted to public use
and made available to the public in general are outside the commerce
of man and cannot be disposed of or leased by the local government
unit to private persons. Aside from the requirement of due process
which should be complied with before closing a road, street or park,
the closure should be for the sole purpose of withdrawing the road or
other public property from public use when circumstances show that
such property is no longer intended or necessary for public use or
public service. When it is already withdrawn from public use, the
property then becomes patrimonial property of the local government
unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v.
Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It
is only then that the respondent municipality can "use or convey them
for any purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed" in accordance with
the last sentence of Section 10, Chapter II of Blg. 337, known as Local
Government Code. In one case, the City Council of Cebu, through a
resolution, declared the terminal road of M. Borces Street, Mabolo,
Cebu City as an abandoned road, the same not being included in the
City Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through
public bidding. We held therein that the City of Cebu is empowered to
close a city street and to vacate or withdraw the same from public use.
Such withdrawn portion becomes patrimonial property which can be
the object of an ordinary contract (Cebu Oxygen and Acetylene Co.,
Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and
streets which are available to the public in general and ordinarily used
for vehicular traffic are still considered public property devoted to
public use. In such case, the local government has no power to use it
for another purpose or to dispose of or lease it to private persons. This
limitation on the authority of the local government over public
properties has been discussed and settled by this Court en banc in
"Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al.,
respondents, G.R. No. 93654, May 6, 1992." This Court ruled:
There is no doubt that the disputed areas from which the
private respondents' market stalls are sought to be evicted are
public streets, as found by the trial court in Civil Case No. C-
12921. A public street is property for public use hence outside
the commerce of man (Arts. 420, 424, Civil Code). Being
outside the commerce of man, it may not be the subject of lease
or others contract (Villanueva, et al. v. Castañeda and
Macalino, 15 SCRA 142 citing the Municipality of Cavite v.
Rojas, 30 SCRA 602; Espiritu v. Municipal Council of
Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G.
4860).
As the stallholders pay fees to the City Government for the
right to occupy portions of the public street, the City
Government, contrary to law, has been leasing portions of the
streets to them. Such leases or licenses are null and void for
being contrary to law. The right of the public to use the city
streets may not be bargained away through contract. The
interests of a few should not prevail over the good of the
greater number in the community whose health, peace, safety,
good order and general welfare, the respondent city officials
are under legal obligation to protect.
The Executive Order issued by acting Mayor Robles
authorizing the use of Heroes del '96 Street as a vending area
for stallholders who were granted licenses by the city
government contravenes the general law that reserves city
streets and roads for public use. Mayor Robles' Executive
Order may not infringe upon the vested right of the public to
use city streets for the purpose they were intended to
serve: i.e., as arteries of travel for vehicles and pedestrians.
Even assuming, in gratia argumenti, that respondent municipality has
the authority to pass the disputed ordinance, the same cannot be
validly implemented because it cannot be considered approved by the
Metropolitan Manila Authority due to non-compliance by respondent
municipality of the conditions imposed by the former for the approval
of the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular
traffic, and that the majority of the residents do(es) not oppose
the establishment of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and that the 2
meters on both sides of the road shall be used by pedestrians;
3. That the time during which the vending area is to be used
shall be clearly designated;
4. That the use of the vending areas shall be temporary and
shall be closed once the reclaimed areas are developed and
donated by the Public Estate Authority. (p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has
complied with the foregoing conditions precedent to the approval of
the ordinance. The allegations of respondent municipality that the
closed streets were not used for vehicular traffic and that the majority
of the residents do not oppose the establishment of a flea market on
said streets are unsupported by any evidence that will show that this
first condition has been met. Likewise, the designation by respondents
of a time schedule during which the flea market shall operate is
absent.
Further, it is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow the
establishment of a flea market along J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would
not help in solving the problem of congestion. We take note of the
other observations of the Solicitor General when he said:
. . . There have been many instances of emergencies and fires
where ambulances and fire engines, instead of using the roads
for a more direct access to the fire area, have to maneuver and
look for other streets which are not occupied by stalls and
vendors thereby losing valuable time which could, otherwise,
have been spent in saving properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital.
However, its ambulances and the people rushing their patients
to the hospital cannot pass through G.G. Cruz because of the
stalls and the vendors. One can only imagine the tragedy of
losing a life just because of a few seconds delay brought about
by the inaccessibility of the streets leading to the hospital.
The children, too, suffer. In view of the occupancy of the roads
by stalls and vendors, normal transportation flow is disrupted
and school children have to get off at a distance still far from
their schools and walk, rain or shine.
Indeed one can only imagine the garbage and litter left by
vendors on the streets at the end of the day. Needless to say,
these cause further pollution, sickness and deterioration of
health of the residents therein. (pp. 21-22, Rollo)
Respondents do not refute the truth of the foregoing findings and
observations of petitioners. Instead, respondents want this Court to
focus its attention solely on the argument that the use of public spaces
for the establishment of a flea market is well within the powers
granted by law to a local government which should not be interfered
with by the courts.
Verily, the powers of a local government unit are not absolute. They
are subject to limitations laid down by toe Constitution and the laws
such as our Civil Code. Moreover, the exercise of such powers should
be subservient to paramount considerations of health and well-being
of the members of the community. Every local government unit has
the sworn obligation to enact measures that will enhance the public
health, safety and convenience, maintain peace and order, and
promote the general prosperity of the inhabitants of the local units.
Based on this objective, the local government should refrain from
acting towards that which might prejudice or adversely affect the
general welfare.
As what we have said in the Dacanay case, the general public have a
legal right to demand the demolition of the illegally constructed stalls
in public roads and streets and the officials of respondent municipality
have the corresponding duty arising from public office to clear the city
streets and restore them to their specific public purpose.
The instant case as well as the Dacanay case, involves an ordinance
which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at this point, We find it worthy to
note that Batas Pambansa Blg. 337, known as Local Government
Lode, has already been repealed by Republic Act No. 7160 known as
Local Government Code of 1991 which took effect on January 1, 1992.
Section 5(d) of the new Code provides that rights and obligations
existing on the date of effectivity of the new Code and arising out of
contracts or any other source of prestation involving a local
government unit shall be governed by the original terms and
conditions of the said contracts or the law in force at the time such
rights were vested.
ACCORDINGLY, the petition is GRANTED and the decision of the
respondent Regional Trial Court dated December 17, 1990 which
granted the writ of preliminary injunction enjoining petitioner as PNP
Superintendent, Metropolitan Traffic Command from enforcing the
demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan,
Lt. Garcia Extension and Opena streets is hereby RESERVED and
SET ASIDE.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-
Aquino, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ.,
concur.
No. L-38429. June 30,1988.*
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL,
petitioners-appellants, vs. COURT OF FIRST INSTANCE OF
AGUSAN DEL NORTE AND BUTUAN CITY, Branch II, and the
CITY OF BUTUAN, respondents-appellees.
Constitutional Law; Police Power; Rule 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 local government.—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. Thus, in People v. Chari, 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, 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.
Same; Same; Same; Requirements in the exercise ofpolice power;
Determinatiqn ofproper exercise ofpolice power; Subject to the super
vision of courts.—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. 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.
Same; Same; Same; Ordinance No. 640 penalizing any person,
group ofpersons, entity or corporations engaged in busifiess ofselling
admission tickets to any movie or other public exhibitions, games,
contest to require children between seven (7) and twelve (12) topayfull
payment oftickets intendedfor adults but should charge only one-half
ofthe said ticket, held unreasonable and notjustified by any necessity
for public interest; Reasons.—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. 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 petitioners suffer the loss of earnings but it likewise
penalizes them for failure to comply with it. Furthennore, 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 offtheir 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.
Same; Same; Same; Same; Theater ticket, described and defined;
Right ofthe proprietor of theater to fix the price ofadmission ticket
upheld as against the right ofthe state to interfere with it.—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. 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. 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.
Same; Same; Same; Same; Ordinance No. 640, not a valid
exercise ofpolicepower; Reasons.—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 unreasonable interfered with even by the exercise of
police power. A police ineasure 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.
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.
Same; Same; Same; Same; Although the presumption is always in
favor ofthe validity ofthe ordinance, such presumption must be set
aside when the invalidity or unreasonablcness appears on the face of
the ordinance itself.—Respondent City of Butuan argues that the
presumption is always in favor of the validity of the ordinance. This
may be the rule but it has already been held that although the
presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance
itself or is established by proper evidence. The exercise of police power
by the local government is valid unless it contravenes the fundamental
law of the land, or an act of the legislature, or unless it is against
public policy or is unreasonable, oppressive, partial, discriminating or
in derogation of a common right. 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.
GANCAYCO, J.:
At issue in the petition for review before Us is the validity and
constitutionality of Ordinance No. 640 passed by the Municipal Board
of the City of Butuan on April 21, 1969, the title and text of which are
reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF
PERSONS, ENTITY OR CORPORATION ENGAGED IN THE
BUSINESS OF SELLING ADMISSION TICKETS TO ANY
MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES,
CONTESTS OR OTHER PERFORMANCES TO REQUIRE
CHILDREN BETWEEN SEVEN (7) AND TWELVE (12)
YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS
INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY
ONE-HALF OF THE SAID TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in
session assembled, that:
SECTION 1—It shall be unlawful for any person, group of
persons, entity, or corporation engaged in the business of
selling admission tickets to any movie or other public
exhibitions, games, contests, or other performances to require
children between seven (7) and twelve (12) years of age to pay
full payment for admission tickets intended for adults but
should charge only one-half of the value of the said tickets.
SECTION 2—Any person violating the provisions of this
Ordinance shall upon conviction be punished by a fine of not
less than TWO HUNDRED PESOS (P200.00) but not more
than SIX HUNDRED PESOS (P600.00) or an imprisonment of
not less than TWO (2) MONTHS or not more than SIX (6)
MONTHS or both such firm and imprisonment in the
discretion of the Court.
 If the violator be a firm or corporation the penalty shall be
imposed upon the Manager, Agent or Representative of such
firm or corporation.
SECTION 3—This ordinance shall take effect upon its
approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel
managers of the Maya and Dalisay Theaters, the Crown Theater, and
the Diamond Theater, respectively. Aggrieved by the effect of
Ordinance No. 640, they filed a complaint before the Court of First
Instance of Agusan del Norte and Butuan City docketed as Special
Civil Case No. 237 on June 30, 1969 praying, inter alia, that the
subject ordinance be declared unconstitutional and, therefore, void
and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was
issued on July 14, 1969 by the court a quo enjoining the respondent
City of Butuan and its officials from enforcing Ordinance No. 640. 3 On
July 29, 1969, respondents filed their answer sustaining the validity of
the ordinance.4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On
June 4, 1973, the respondent court rendered its decision, 6 the
dispositive part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby
adjudges in favor of the respondents and against the
petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan
constitutional and valid: Provided, however, that the fine for a
single offense shall not exceed TWO HUNDRED PESOS, as
prescribed in the aforequoted Section 15 (nn) of Rep. Act No.
523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of
the court a quo which was denied in a resolution of the said court
dated November 10, 1973.9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No.
640 on the grounds that it is ultra vires and an invalid exercise of
police power.
Petitioners contend that Ordinance No. 640 is not within the power of'
the Municipal Board to enact as provided for in Section 15(n) of
Republic Act No. 523, the Charter of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board — Except as
otherwise provided by law, and subject to the conditions and
limitations thereof, the Municipal Board shall have the
following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the
following; . . . theaters, theatrical performances,
cinematographs, public exhibitions and all other performances
and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the
enactment of the ordinance by invoking the general welfare clause
embodied in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper
for the sanitation and safety, the furtherance of the prosperity,
and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its
inhabitants, and such others as may be necessary to carry into
effect and discharge the powers and duties conferred by this
Act, and to fix the penalties for the violation of the ordinances,
which shall not exceed a two hundred peso fine or six months
imprisonment, or both such fine and imprisonment, for a
single offense.
We can see from the aforecited Section 15(n) that the power to
regulate and fix the amount of license fees for theaters, theatrical
performances, cinematographs, public exhibitions and other places of
amusement has been expressly granted to the City of Butuan under
its charter. But the question which needs to be resolved is this: does
this power to regulate include the authority to interfere in the fixing of
prices of admission to these places of exhibition and amusement
whether under its general grant of power or under the general welfare
clause as invoked by the City?
This is the first time this Court is confronted with the question of
direct interference by the local government with the operation of
theaters, cinematographs and the like to the extent of fixing the prices
of admission to these places. Previous decisions of this Court involved
the power to impose license fees upon businesses of this nature as a
corollary to the power of the local government to regulate them.
Ordinances which required moviehouses or theaters to increase the
price of their admission tickets supposedly to cover the license fees
have been held to be invalid for these impositions were considered as
not merely license fees but taxes for purposes of revenue and not
regulation which the cities have no power to exact, 10 unless expressly
granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the
word "regulate" was interpreted to include the power to control, to
govern and to restrain, it would seem that under its power to regulate
places of exhibitions and amusement, the Municipal Board of the City
of Butuan could make proper police regulations as to the mode in
which the business shall be exercised.
While in a New York case, 13 an ordinance which regulates the
business of selling admission tickets to public exhibitions or
performances by virtue of the power of cities under the General City
Law "to maintain order, enforce the laws, protect property and
preserve and care for the safety, health, comfort and general welfare of
the inhabitants of the city and visitors thereto; and for any of said
purposes, to regulate and license occupations" was considered not to be
within the scope of any duty or power implied in the charter. It was
held therein that the power of regulation of public exhibitions and
places of amusement within the city granted by the charter does not
carry with it any authority to interfere with the price of admission to
such places or the resale of tickets or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters,
cinematographs and other places of public exhibition are subject to
regulation by the municipal council in the exercise of delegated police
power by the local government. 14 Thus, in People v. Chan, 15 an
ordinance of the City of Manila prohibiting first run cinematographs
from selling tickets beyond their seating capacity was upheld as
constitutional for being a valid exercise of police power. Still in
another case, 16 the validity of an ordinance of the City of Bacolod
prohibiting admission of two or more persons in moviehouses and
other amusement places with the use of only one ticket was sustained
as a valid regulatory police measure not only in the interest of
preventing fraud in so far as municipal taxes are concerned but also in
accordance with public health, public safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to
enact the ordinance in question under its power to regulate embodied
in Section 15(n), now invokes the police power as delegated to it under
the general welfare clause to justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the
interest of the public generally requires an interference with private
rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. 17 The legislature may not, under the guise of protecting
the public interest, arbitrarily interfere with private business, or
impose unusual and unnecessary restrictions upon lawful occupations.
In other words, the determination as to what is a proper exercise of its
police power is not final or conclusive, but is subject to the supervision
of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process
clause of the Constitution for being oppressive, unfair, unjust,
confiscatory, and an undue restraint of trade, and violative of the right
of persons to enter into contracts, considering that the theater owners
are bound under a contract with the film owners for just admission
prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal
Board of the City of Manila, 19 this Court held:
The authority of municipal corporations to regulate is
essentially police power, Inasmuch as the same generally
entails a curtailment of the liberty, the rights and/or the
property of persons, which are protected and even guaranteed
by the Constitution, the exercise of police power is necessarily
subject to a qualification, limitation or restriction demanded
by the regard, the respect and the obedience due to the
prescriptions of the fundamental law, particularly those
forming part of the Constitution of Liberty, otherwise known
as the Bill of Rights — the police power measure must be
reasonable. In other words, individual rights may be adversely
affected by the exercise of police power to the extent only —
and only to the extent--that may be fairly required by the
legitimate demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board
when the ordinance in question was passed shows that a certain
Councilor Calo, the proponent of the measure, had taken into account
the complaints of parents that for them to pay the full price of
admission for their children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance
does not spell out its raison d'etre in all probability the respondents
were impelled by the awareness that children are entitled to share in
the joys of their elders, but that considering that, apart from size,
children between the ages of seven and twelve cannot fully grasp the
nuance of movies or other public exhibitions, games, contests or other
performances, the admission prices with respect to them ought to be
reduced. 19a
We must bear in mind that there must be public necessity which
demands the adoption of proper measures to secure the ends sought to
be attained by the enactment of the ordinance, and the large
discretion is necessarily vested in the legislative authority to
determine not only what the interests of the public require, but what
measures are necessary for the protection of such interests. 20 The
methods or means used to protect the public health, morals, safety or
welfare, must have some relation to the end in view, for under the
guise of the police power, personal rights and those pertaining to
private property will not be permitted to be arbitralily invaded by the
legislative department. 21
We agree with petitioners that the ordinance is not justified by any
necessity for the public interest. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable
relation must exist between purposes and means. 22 The evident
purpose of the ordinance is to help ease the burden of cost on the part
of parents who have to shell out the same amount of money for the
admission of their children, as they would for themselves, A reduction
in the price of admission would mean corresponding savings for the
parents; however, the petitioners are the ones made to bear the cost of
these savings. The ordinance does not only make the petitioners suffer
the loss of earnings but it likewise penalizes them for failure to comply
with it. Furthermore, as petitioners point out, there will be difficulty
in its implementation because as already experienced by petitioners
since the effectivity of the ordinance, children over 12 years of age
tried to pass off their age as below 12 years in order to avail of the
benefit of the ordinance. The ordinance does not provide a safeguard
against this undesirable practice and as such, the respondent City of
Butuan now suggests that birth certificates be exhibited by movie
house patrons to prove the age of children. This is, however, not at all
practicable. We can see that the ordinance is clearly unreasonable if
not unduly oppressive upon the business of petitioners. Moreover,
there is no discernible relation between the ordinance and the
promotion of public health, safety, morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the
youth from the pernicious practice of movie operators and other public
exhibitions promoters or the like of demanding equal price for their
admission tickets along with the adults. This practice is allegedly
repugnant and unconscionable to the interest of the City in the
furtherance of the prosperity, peace, good order, comfort, convenience
and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children
and adults. The petitioners are merely conducting their legitimate
businesses. The object of every business entrepreneur is to make a
profit out of his venture. There is nothing immoral or injurious in
charging the same price for both children and adults. In fact, no
person is under compulsion to purchase a ticket. It is a totally
voluntary act on the part of the purchaser if he buys a ticket to such
performances.
Respondent City of Butuan claims that Ordinance No. 640 is
reasonable and necessary to lessen the economic burden of parents
whose minor children are lured by the attractive nuisance being
maintained by the petitioners. Respondent further alleges that by
charging the full price, the children are being exploited by movie
house operators. We fail to see how the children are exploited if they
pay the full price of admission. They are treated with the same quality
of entertainment as the adults. The supposition of the trial court that
because of their age children cannot fully grasp the nuances of such
entertainment as adults do fails to convince Us that the reduction in
admission ticket price is justifiable. In fact, by the very claim of
respondent that movies and the like are attractive nuisances, it is
difficult to comprehend why the municipal board passed the subject
ordinance. How can the municipal authorities consider the movies an
attractive nuisance and yet encourage parents and children to
patronize them by lowering the price of admission for children?
Perhaps, there is some ,truth to the argument of petitioners that
Ordinance No. 640 is detrimental to the public good and the general
welfare of society for it encourages children of tender age to frequent
the movies, rather than attend to their studies in school or be in their
homes.
Moreover, as a logical consequence of the ordinance, movie house and
theater operators will be discouraged from exhibiting wholesome
movies for general patronage, much less children's pictures if only to
avoid compliance with the ordinance and still earn profits for
themselves. For after all, these movie house and theater operators
cannot be compelled to exhibit any particular kind of film except those
films which may be dictated by public demand and those which are
restricted by censorship laws. So instead of children being able to
share in the joys of their elders as envisioned by the trial court, there
will be a dearth of wholesome and educational movies for them to
enjoy.
There are a number of cases decided by the Supreme Court and the
various state courts of the United States which upheld the right of the
proprietor of a theater to fix the price of an admission ticket as against
the right of the state to interfere in this regard and which We consider
applicable to the case at bar.
A theater ticket has been described to be either a mere license,
revocable at the will of the proprietor of the theater or it may be
evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe the
performance on condition that he behaves properly. 23 Such ticket,
therefore, represents a right, Positive or conditional, as the case may
be, according to the terms of the original contract of sale. This right is
clearly a right of property. The ticket which represents that right is
also, necessarily, a species of property. As such, the owner thereof, in
the absence of any condition to the contrary in the contract by which
he obtained it, has the clear right to dispose of it, to sell it to whom he
pleases and at such price as he can obtain. 24 So that an act
prohibiting the sale of tickets to theaters or other places of amusement
at more than the regular price was held invalid as conflicting with the
state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
The defendants were conducting a private business, which,
even if clothed with a public interest, was without a franchise
to accommodate the public, and they had the right to control it,
the same as the proprietors of any other business, subject to
such obligations as were placed upon them by statute. Unlike
a carrier of passengers, for instance, with a franchise from the
state, and hence under obligation to transport anyone who
applies and to continue the business year in and year out, the
proprietors of a theater can open and close their place at will,
and no one can make a lawful complaint. They can charge
what they choose for admission to their theater. They can limit
the number admitted. They can refuse to sell tickets and
collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on.
They can make it a part of the contract and condition of
admission, by giving due notice and printing the condition in
the ticket that no one shall be admitted under 21 years of age,
or that men only or women only shall be admitted, or that a
woman cannot enter unless she is accompanied by a male
escort, and the like. The proprietors, in the control of their
business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is
obliged to buy a ticket or make the contract. If the terms are
satisfactory, and the contract is made, the minds of the parties
meet upon the condition, and the purchaser impliedly
promises to perform it.
In Tyson and Bro. — United Theater Ticket Officers, Inc. vs.
Banton, 27 the United States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a
public utility; and quite as certainly, its activities are not such
that their enjoyment can be regarded under any conditions
from the point of view of an emergency.
The interest of the public in theaters and other places of
entertainment may be more nearly, and with better reason,
assimilated to the like interest in provision stores and markets
and in the rental of houses and apartments for residence
purposes; although in importance it fails below such an
interest in the proportion that food and shelter are of more
moment than amusement or instruction. As we have shown
there is no legislative power to fix the prices of provisions or
clothing, or the rental charges for houses and apartments, in
the absence of some controlling emergency; and we are unable
to perceive any dissimilarities of such quality or degree as to
justify a different rule in respect of amusements and
entertainment ...
We are in consonance with the foregoing observations and conclusions property in their own way, to fix what prices of admission they think
of American courts. In this jurisdiction, legislation had been passed most for their own advantage, and that any person who did not
controlling the prices of goods commodities and drugs during periods approve could stay away. 36
of emergency, 28limiting the net profits of public utility 29 as well as
Respondent City of Butuan argues that the presumption is always in
regulating rentals of residential apartments for a limited period, 30as a
favor of the validity of the ordinance. This maybe the rule but it has
matter of national policy in the interest of public health and safety,
already been held that although the presumption is always in favor of
economic security and the general welfare of the people. And these
the validity or reasonableness of the ordinance, such presumption
laws cannot be impugned as unconstitutional for being violative of the
must nevertheless be set aside when the invalidity or
due process clause.
unreasonableness appears on the face of the ordinance itself or is
However, the same could not be said of theaters, cinematographs and established by proper evidence.37 The exercise of police power by the
other exhibitions. In no sense could these businesses be considered local government is valid unless it contravenes the fundamental law of
public utilities. The State has not found it appropriate as a national the land, or an act of the legislature, or unless it is against public
policy to interfere with the admission prices to these performances. policy or is unreasonable, oppressive, partial, discriminating or in
This does not mean however, that theaters and exhibitions are not derogation of a common right.38
affected with public interest even to a certain degree. Motion pictures
Ordinance No. 640 clearly invades the personal and property rights of
have been considered important both as a medium for the
petitioners for even if We could assume that, on its face, the
communication of Ideas and expression of the artistic impulse. Their
interference was reasonable, from the foregoing considerations, it has
effects on the perceptions by our people of issues and public officials or
been fully shown that it is an unwarranted and unlawful curtailment
public figures as well as the prevailing cultural traits are
of the property and personal rights of citizens. For being unreasonable
considerable. 31People of all ages flock to movie houses, games and
and an undue restraint of trade, it cannot, under the guise of
other public exhibitions for recreation and relaxation. The government
exercising police power, be upheld as valid.
realizing their importance has seen it fit to enact censorship laws to
regulate the movie industry. 32 Their aesthetic entertainment and WHEREFORE, the decision of the trial court in Special Civil Case No.
even educational values cannot be underestimated. Even police 237 is hereby REVERSED and SET ASIDE and a new judgment is
measures regulating the operation of these businesses have been hereby rendered declaring Ordinance No. 640 unconstitutional and,
upheld in order to safeguard public health and safety. therefore, null and void. This decision is immediately executory.
Nonetheless, as to the question of the subject ordinance being a valid SO ORDERED.
exercise of police power, the same must be resolved in the negative.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-
While it is true that a business may be regulated, it is equally true
Aquino, JJ., concur.
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
No. L-73155. July 11, 1986.*
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO
HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA
ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO
LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND
CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION ON
ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.
Constitutional Law; Election Law; Local Governments; Moot and
Academic; Fact that the plebiscite which the petition at bar sought to
stop had already been held and officials of the new province appointed
does not make the petition moot, as the petition raises an issue of
constitutional dimension.—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.
Same; Same; Same; A plebiscite for creating a new province
should include the participation of the residents of the mother province
for the plebiscite to conform to the constitutional requirements.—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.
Same; Same; Same; A petition that raises the issue of compliance
with Constitutional requirements is proper subject of judicial
inquiry.—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.
Same; Same; Same; Statutes; Evidence; Courts; Motives behind
enactment of a statute are factual in nature that the Supreme Court
cannot try.—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.
Same; Same; Same; Ruling in the case of Paredes vs. Hon.
Executive Secretary (128 SCRA 6) is not a doctrinal, binding precedent
where the Supreme Court is not sure of itself and the decision itself
says that that case gives considerable leeway for the Court to exercise
its discretion in resolving the issue of whether or not residents of a
mother barangay should participate in the plebiscite to create a new
barangay.—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 reflects that “territory” as therein used, has reference only to the mass
compelling precedent when it is acknowledged therein that “it is of land area and excludes the waters over which the political unit
plausible to assert, as petitioners do, that when certain Barangays are exercises control. Said sentence states that the “territory need not be
separated from a parent municipality to form a new one, all the voters contiguous.” Contiguous means (a) in physical contact; (b) touching
therein are affected.” along all or most of one side; (c) near, next, or adjacent (Webster’s New
World Dictionary, 1972 Ed., p. 307). “Contiguous”, when employed as
Same; Same; Same; When the law says the “plebiscite shall be
an adjective, as in the above sentence, is only used when it describes
conducted in the areas affected” this means that residents of the
physical contact, or a touching of sides of two solid masses of matter.
political entity who stand to be economically dislocated by the
The meaning of particular terms in a statute may be ascertained by
separation of a portion thereof have the right to participate in said
reference to words associated with or related to them in the statute
plebiscite.—It is a well accepted rule that “in ascertaining the meaning
(Animal Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore,
of a particular provision that may give rise to doubts, the intent of the
in the context of the sentence above, what need not be “contiguous” is
framers and of the people, may be gleaned from the provisions in pari
the “territory”—the physical mass of land area. There would arise no
materia.” Parliamentary Bill No. 3644 which proposed the creation of
need for the legislators to use the word contiguous if they had
the new province of Negros del Norte recites in Sec. 4 thereof that “the
intended that the term “territory” embrace not only land area but also
plebiscite shall be conducted in the areas affected within a period of
territorial waters. It can be safely concluded that the word territory in
one hundred and twenty days from the approval of this Act.” As this
the first paragraph of Section 197 is meant to be synonymous with
draft legislation speaks of “areas,” what was contemplated evidently
“land area” only. The words and phrases used in a statute should be
are plurality of areas to participate in the plebiscite. Logically, those to
given the meaning intended by the legislature (82 C.J.S., p. 636). The
be included in such plebiscite would be the people living in the area of
sense in which the words are used furnished the rule of construction
the proposed new province and those living in the parent province.
(In re Winton Lumber Co., 63 p. 2d., p. 664).
This assumption will be consistent with the requirements set forth in
the Constitution. Same; Same; Same; Same; Jurisdiction; The Supreme Court will
not pass upon the claim that enactment of a law is marred by “dirty
Same; Same; Same; Where the law authorizing the holding of a
tricks” and “undue haste.”—It is not for this Court to affirm or reject
plebiscite is unconstitutional, the Court cannot authorize the holding of
such matters not only because the merits of this case can be resolved
a new one.—The Court is prepared to declare the said plebiscite held
without need of ascertaining the real motives and wisdom in the
on January 3, 1986 as null and void and violative of the provisions of
making of the questioned law. No proper challenge on those grounds
Sec. 3, Article XI of the Constitution. The Court is not, however,
can also be made by petitioners in this proceeding. Neither may this
disposed to direct the conduct of a new plebiscite, because We find no
Court venture to guess the motives or wisdom in the exercise of
legal basis to do so. With constitutional infirmity attaching to the
legislative powers. Repudiation of improper or unwise actions taken by
subject Batas Pambansa Blg. 885 and also because the creation of the
tools of a political machinery rests ultimately, as recent events have
new province of Negros del Norte is not in accordance with the criteria
shown, on the electorate and the power of a vigilant people.
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.
ALAMPAY, J.:
Same; Same; Same; Statutes; Use of the word “territory” in Sec.
Prompted by the enactment of Batas Pambansa Blg. 885-An Act
197 of the Local Government Code refers only to the land mass, not to
Creating a New Province in the Island of Negros to be known as the
the waters, comprising a political entity.—The last sentence of the first
Province of Negros del Norte, which took effect on December 3, 1985,
paragraph of Section 197 is most revealing. As so stated therein the
Petitioners herein, who are residents of the Province of Negros
“territory need not be contiguous if it comprises two or more islands.”
Occidental, in the various cities and municipalities therein, on
The use of the word territory in this particular provision of the Local
December 23, 1985, filed with this Court a case for Prohibition for the
Government Code and in the very last sentence thereof, clearly
purpose of stopping respondents Commission on Elections from
conducting the plebiscite which, pursuant to and in implementation of
the aforesaid law, was scheduled for January 3, 1986. Said law
provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and
the municipalities of Calatrava, Taboso, Escalante, Sagay,
Manapla, Victorias, E.R. Magalona; and Salvador Benedicto,
all in the northern portion of the Island of Negros, are hereby
separated from the province to be known as the Province of
Negros del Norte.
SEC. 2. The boundaries of the new province shall be the
southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion to the Island
of Negros on the west, north and east, comprising a territory of
4,019.95 square kilometers more or less.
SEC. 3. The seat of government of the new province shall be
the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new
province which are the areas affected within a period of one
hundred and twenty days from the approval of this Act. After
the ratification of the creation of the Province of Negros del
Norte by a majority of the votes cast in such plebiscite, the
President of the Philippines shall appoint the first officials of
the province.
SEC. 5. The Commission on Elections shall conduct and
supervise the plebiscite herein provided, the expenses for
which shall be charged to local funds.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp.
23-24)
Petitioners contend that Batas Pambansa Blg. 885 is
unconstitutional and it is not in complete accord with the
Local Government Code as in Article XI, Section 3 of our
Constitution, it is expressly mandated that—
See. 3. No province, city, municipality or barrio may be
created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria
established in the local government code, and subject to the
approval by a majority of the votes in a plebiscite in the unit or
units affected.
Section 197 of the Local Government Code enumerates the conditions
which must exist to provide the legal basis for the creation of a
provincial unit and these requisites are:
SEC. 197. Requisites for Creation. A province may be created if
it has a territory of at least three thousand five hundred
square kilometers, a population of at least five hundred
thousand persons, an average estimated annual income, as
certified by the Ministry of Finance, of not less than ten
million pesos for the last three consecutive years, and its
creation shall not reduce the population and income of the
mother province or provinces at the time of said creation to
less than the minimum requirements under this section. The
territory need not be contiguous if it comprises two or more
islands.
The average estimated annual income shall include the income
alloted for both the general and infrastructural funds,
exclusive of trust funds, transfers and nonrecurring income.
(Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas
holidays during which the Court was in recess and unable to timely
consider the petition, a supplemental pleading was filed by petitioners
on January 4, 1986, averring therein that the plebiscite sought to be
restrained by them was held on January 3, 1986 as scheduled but that
there are still serious issues raised in the instant case affecting the
legality, constitutionality and validity of such exercise which should
properly be passed upon and resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of
Negros del N•rte, namely: the Cities of Silay, Cadiz, and San Carlos,
and the municipalities of Calatrava, Taboso, Escalante, Sagay,
Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto.
Because of the exclusions of the voters from the rest of the province of
Negros Occidental, petitioners found need to change the prayer of
their petition "to the end that the constitutional issues which they
have raised in the action will be ventilated and given final
resolution.'"At the same time, they asked that the effects of the
plebiscite which they sought to stop be suspended until the Supreme
Court shall have rendered its decision on the very fundamental and
far-reaching questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening events
rendered moot the prayer in their initial petition that the plebiscite
scheduled for January 3, 1986, be enjoined, petitioners plead,
nevertheless, that-
... a writ of Prohibition be issued, directed to Respondent
Commission on Elections to desist from issuing official
proclamation of the results of the plebiscite held on January 3,
1986.
Finding that the exclusion and non-participation of the voters
of the Province of Negros Occidental other than those living
within the territory of the new province of Negros del Norte to
be not in accordance with the Constitution, that a writ of
mandamus be issued, directed to the respondent Commission
on Elections, to schedule the holding of another plebiscite at
which all the qualified voters of the entire Province of Negros
Occidental as now existing shall participate, at the same time
making pronouncement that the plebiscite held on January 3,
1986 has no legal effect, being a patent legal nullity;
And that a similar writ of Prohibition be issued, directed to the
respondent Provincial Treasurer, to desist from ordering the
release of any local funds to answer for expenses incurred in
the holding of such plebiscite until ordered by the Court. (Rollo
pp. 9-10).
Petitioners further prayed that the respondent COMELEC
hold in abeyance the issuance of any official proclamation of
the results of the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to
appear as amicus curiae in this case (dated December 27, 1985 and
filed with the Court on January 2, 1986) was submitted by former
Senator Ambrosio Padilla. Said motion was granted in Our resolution
of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for
prohibition with preliminary injunction with prayer for restraining
order, the Court, on January 7, 1986 resolved, without giving due
course to the same, to require respondents to comment, not to file a
motion to dismiss. Complying with said resolution, public respondents,
represented by the Office of the Solicitor General, on January 14,
1986, filed their Comment, arguing therein that the challenged
statute.-Batas Pambansa 885, should be accorded the presumption of
legality. They submit that the said law is not void on its face and that
the petition does not show a clear, categorical and undeniable
demonstration of the supposed infringement of the Constitution.
Respondents state that the powers of the Batasang-Pambansa to enact
the assailed law is beyond question. They claim that Batas Pambansa
Big. 885 does not infringe the Constitution because the requisites of
the Local Government Code have been complied with. Furthermore,
they submit that this case has now become moot and academic with
the proclamation of the new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the
Province of Negros Occidental not included in the area of the new
Province of Negros del Norte, de not fall within the meaning and scope
of the term "unit or units affected", as referred to in Section 3 of Art.
XI of our Constitution. On this reasoning, respondents maintain that
Batas Pambansa Blg. 885 does not violate the Constitution, invoking
and citing the case of Governor Zosimo Paredes versus the Honorable
Executive Secretary to the President, et al. (G.R. No. 55628, March 2,
1984 (128 SCRA 61), particularly the pronouncements therein,
hereunder quoted:
1. Admittedly, this is one of those cases where the discretion of
the Court is allowed considerable leeway. There is indeed an
element of ambiguity in the use of the expression 'unit or units
affected'. It is plausible to assert as petitioners do that when
certain Barangays are separated from a parent municipality to
form a new one, all the voters therein are affected. It is much
more persuasive, however, to contend as respondents do that
the acceptable construction is for those voters, who are not
from the barangays to be separated, should be excluded in the
plebiscite.
2. For one thing, it is in accordance with the settled doctrine
that between two possible constructions, one avoiding a
finding of unconstitutionality and the other yielding such a
result, the former is to be preferred. That which will save, not
that which will destroy, commends itself for acceptance. After
all, the basic presumption all these years is one of validity. ...
3. ... Adherence to such philosophy compels the conclusion that
when there are indications that the inhabitants of several
barangays are inclined to separate from a parent municipality
they should be allowed to do so. What is more logical than to
ascertain their will in a plebiscite called for that purpose. It is
 they, and they alone, who shall constitute the new unit. New
responsibilities will be assumed. New burdens will be imposed.
A new municipal corporation will come into existence. Its birth
will be a matter of choice-their choice. They should be left
alone then to decide for themselves. To allow other voters to
participate will not yield a true expression of their will. They
may even frustrate it, That certainly will be so if they vote
against it for selfish reasons, and they constitute the majority.
That is not to abide by the fundamental principle of the
Constitution to promote local autonomy, the preference being
for smaller units. To rule as this Tribunal does is to follow an
accepted principle of constitutional construction, that in
ascertaining the meaning of a particular provision that may
give rise to doubts, the intent of the framers and of the people
may be gleaned from provisions in pari materia.
Respondents submit that said ruling in the aforecited case applies
equally with force in the case at bar. Respondents also maintain that
the requisites under the Local Government Code (P.D. 337) for the
creation of the new province of Negros del Norte have all been duly
complied with, Respondents discredit petitioners' allegations that the
requisite area of 3,500 square kilometers as so prescribed in the Local
Government Code for a new province to be created has not been
satisfied. Petitioners insist that the area which would comprise the
new province of Negros del Norte, would only be about 2,856.56 square
kilometers and which evidently would be lesser than the minimum
area prescribed by the governing statute. Respondents, in this regard,
point out and stress that Section 2 of Batas Pambansa Blg. 885
creating said new province plainly declares that the territorial
boundaries of Negros del Norte comprise an area of 4,019.95 square
kilometers, more or less.
As a final argument, respondents insist that instant petition has been
rendered moot and academic considering that a plebiscite has been
already conducted on January 3, 1986; that as a result thereof, the
corresponding certificate of canvass indicated that out of 195,134 total
votes cast in said plebiscite, 164,734 were in favor of the creation of
Negros del Norte and 30,400 were against it; and because "the
affirmative votes cast represented a majority of the total votes cast in
said plebiscite, the Chairman of the Board of Canvassers proclaimed
the new province which shall be known as "Negros del Norte". Thus,
respondents stress the fact that following the proclamation of Negros
del Norte province, the appointments of the officials of said province
created were announced. On these considerations, respondents urge
that this case should be dismissed for having been rendered moot and
academic as the creation of the new province is now a "fait accompli."
In resolving this case, it will be useful to note and emphasize the facts
which appear to be agreed to by the parties herein or stand
unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the
Province of Negros Occidental has not disbursed, nor was required to
disburse any public funds in connection with the plebiscite held on
January 3, 1986 as so disclosed in the Comment to the Petition filed
by the respondent Provincial Treasurer of Negros Occidental dated
January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners
that said Provincial Treasurer be directed by this Court to desist from
ordering the release of any public funds on account of such plebiscite
should not longer deserve further consideration.
Secondly, in Parliamentary Bill No. 3644 which led to the enactment
of Batas Pambansa Blg. 885 and the creation of the new Province of
Negros del Norte, it expressly declared in Sec. 2 of the aforementioned
Parliamentary Bill, the following:
SEC. 2. The boundaries of the new province shall be the
southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the South
and the natural boundaries of the northern portion of the
Island of Negros on the West, North and East, containing an
area of 285,656 hectares more or less. (Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly
enacted into Batas Pambansa Blg. 885, the boundaries of the new
Province of Negros del Norte were defined therein and its boundaries
then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and
the municipalities of Calatrava, Toboso, Escalante, Sagay,
Manapla, Victorias, E.R. Magalona; and Salvador Benedicto,
all in the northern portion of the Island of Negros, are hereby
separated from the Province of Negros Occidental and
constituted into a new province to be known as the Province of
Negros del Norte.
SEC. 1. The boundaries of the new province shall be the
southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the south
 and the territorial limits of the northern portion of the Island
of Negros on the West, North and East, comprising a territory
of 4,019.95 square kilometers more or less.
Equally accepted by the parties is the fact that under the certification
issued by Provincial Treasurer Julian L. Ramirez of the Province of
Negros Occidental, dated July 16, 1985, it was therein certified as
follows:
xxx xxx xxx
This is to certify that the following cities and municipalities of
Negros Occidental have the land area as indicated hereunder
based on the Special Report No. 3, Philippines 1980,
Population, Land Area and Density: 1970, 1975 and 1980 by
the National Census and Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6
7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto....................................
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
(not
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 Aside from the simpler factual issue relative to the land area of the
consequent division of and substantial alteration of the boundaries of new province of Negros del Norte, the more significant and pivotal
the existing province. In this instance, the voters in the remaining issue in the present case revolves around in the interpretation and
areas of the province of Negros Occidental should have been allowed to application in the case at bar of Article XI, Section 3 of the
participate in the questioned plebiscite. Constitution, which being brief and for convenience, We again quote:
Considering that the legality of the plebiscite itself is challenged for SEC. 3. No province, city, municipality or barrio may
non-compliance with constitutional requisites, the fact that such be created, divided, merged abolished, or its boundary
plebiscite had been held and a new province proclaimed and its substantially altered, except in accordance with the
officials appointed, the case before Us cannot truly be viewed as criteria established in the local government code, and
already moot and academic. Continuation of the existence of this subject to the approval by a majority of the votes in a
newly proclaimed province which petitioners strongly profess to have plebiscite in the unit or units affected.
been illegally born, deserves to be inquired into by this Tribunal so
It can be plainly seen that the aforecited constitutional provision
that, if indeed, illegality attaches to its creation, the commission of
makes it imperative that there be first obtained "the approval of a
that error should not provide the very excuse for perpetuation of such
majority of votes in the plebiscite in the unit or units affected"
wrong. For this Court to yield to the respondents' urging that, as there
whenever a province is created, divided or merged and there is
has been fait accompli then this Court should passively accept and
substantial alteration of the boundaries. It is thus inescapable to
accede to the prevailing situation is an unacceptable suggestion.
conclude that the boundaries of the existing province of Negros
Dismissal of the instant petition, as respondents so propose is a
Occidental would necessarily be substantially altered by the division
proposition fraught with mischief. Respondents' submission will create
of its existing boundaries in order that there can be created the
a dangerous precedent. Should this Court decline now to perform its
proposed new province of Negros del Norte. Plain and simple logic will
duty of interpreting and indicating what the law is and should be, this
demonstrate than that two political units would be affected. The first
might tempt again those who strut about in the corridors of power to
would be the parent province of Negros Occidental because its
recklessly and with ulterior motives, create, merge, divide and/or alter
boundaries would be substantially altered. The other affected entity
the boundaries of political subdivisions, either brazenly or stealthily,
would be composed of those in the area subtracted from the mother
confident that this Court will abstain from entertaining future
province to constitute the proposed province of Negros del Norte.
challenges to their acts if they manage to bring about a fait accompli.
We find no way to reconcile the holding of a plebiscite that should
In the light of the facts and circumstances alluded to by petitioners as
conform to said constitutional requirement but eliminates the
attending to the unusually rapid creation of the instant province of
participation of either of these two component political units. No
Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has
amount of rhetorical flourishes can justify exclusion of the parent
the duty to repudiate and discourage the commission of acts which run
province in the plebiscite because of an alleged intent on the part of
counter to the mandate of our fundamental law, done by whatever
the authors and implementors of the challenged statute to carry out
branch of our government. This Court gives notice that it will not look
what is claimed to be a mandate to guarantee and promote autonomy
with favor upon those who may be hereafter inclined to ram through
of local government units. The alleged good intentions cannot prevail
all sorts of legislative measures and then implement the same with
and overrule the cardinal precept that what our Constitution
indecent haste, even if such acts would violate the Constitution and
categorically directs to be done or imposes as a requirement must first
the prevailing statutes of our land. It is illogical to ask that this
be observed, respected and complied with. No one should be allowed to
Tribunal be blind and deaf to protests on the ground that what is
pay homage to a supposed fundamental policy intended to guarantee
already done is done. To such untenable argument the reply would be
and promote autonomy of local government units but at the same time
that, be this so, the Court, nevertheless, still has the duty and right to
transgress, ignore and disregard what the Constitution commands in
correct and rectify the wrong brought to its attention.
Article XI Section 3 thereof. Respondents would be no different from
On the merits of the case.
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 historic province. They were inspired undoubtedly by their faithful
paragraph of Section 197 is meant to be synonymous with "land area" commitment to our Constitution which they wish to be respected and
only. The words and phrases used in a statute should be given the obeyed. Despite the setbacks and the hardships which petitioners aver
meaning intended by the legislature (82 C.J.S., p. 636). The sense in confronted them, they valiantly and unfalteringly pursued a worthy
which the words are used furnished the rule of construction (In re cause. A happy destiny for our Nation is assured as long as among our
Winton Lumber Co., 63 p. 2d., p. 664). people there would be exemplary citizens such as the petitioners
herein.
The distinction between "territory" and "land area" which respondents
make is an artificial or strained construction of the disputed provision WHEREFORE, Batas Pambansa Blg. 885 is hereby declared
whereby the words of the statute are arrested from their plain and unconstitutional. The proclamation of the new province of Negros del
obvious meaning and made to bear an entirely different meaning to Norte, as well as the appointment of the officials thereof are also
justify an absurd or unjust result. The plain meaning in the language declared null and void.
in a statute is the safest guide to follow in construing the statute. A
SO ORDERED.
construction based on a forced or artificial meaning of its words and
out of harmony of the statutory scheme is not to be favored (Helvering Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and
vs. Hutchings, 85 L. Ed., p. 909). Paras, JJ., concur.
It would be rather preposterous to maintain that a province with a Melencio-Herrera, J., concurs in the result.
small land area but which has a long, narrow, extended coast line,
(such as La Union province) can be said to have a larger territory than
a land-locked province (such as Ifugao or Benguet) whose land area
manifestly exceeds the province first mentioned.
Allegations have been made that the enactment of the questioned
state was marred by "dirty tricks", in the introduction and passing of
Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister
designs to achieve "pure and simple gerrymandering; "that recent
happenings more than amply demonstrate that far from guaranteeing
its autonomy it (Negros del Norte) has become the fiefdom of a local
strongman" (Rollo, p. 43; emphasis supplied).
It is not for this Court to affirm or reject such matters not only
because the merits of this case can be resolved without need of
ascertaining the real motives and wisdom in the making of the
questioned law. No proper challenge on those grounds can also be
made by petitioners in this proceeding. Neither may this Court
venture to guess the motives or wisdom in the exercise of legislative
powers. Repudiation of improper or unwise actions taken by tools of a
political machinery rests ultimately, as recent events have shown, on
the electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the
people of the Province of Negros Occidental and even by our Nation.
Commendable is the patriotism displayed by them in daring to
institute this case in order to preserve the continued existence of their
G.R. No. 103328. October 19, 1992.*
HON. ROY A. PADILLA, JR., In his capacity as Governor of the
Province of Camarines Norte, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
Constitutional Law; Election Law; 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.—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.
ROMERO, J.:
Pursuant to Republic Act No. 7155, the Commission on Elections
promulgated on November 13, 1991, Resolution No. 2312 which reads
as follows:
WHEREAS, Republic Act No. 7155 approved on September 6,
1991 creates the Municipality of Tulay-Na-Lupa in the
Province of Camarines Norte to be composed of Barangays
Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit,
Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa, all in
the Municipality of Labo, same province.
WHEREAS under Section 10, Article X of the 1987
Constitution 1 the creation of a municipality shall be subject to
approval by a majority 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) 2 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 take out of
the Contingent Fund under the current fiscal year
appropriations;
NOW, THEREFORE, BE IT RESOLVED, as the Commission
hereby resolves, to promulgated (sic) 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 he proposed Municipality of Tulay-Na-
Lupa and the remaining areas of the mother
Municipality of Labor, Camarines Norte (Tan vs.
COMELEC, G.R. No. 73155, July 11, 1986).
xxx xxx xxx
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. 3
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. 4
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 5 relied upon by respondent
COMELEC is now passe, thus reinstating the case of Paredes
v. Executive Secretary 6 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. 7
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 residents of the political entity who would be economically dislocated
conducted in the areas comprising the proposed Municipality of Tulay- by the separation of a portion thereof have a right to vote in said
Na-Lupa and the remaining areas of the mother Municipality of Labo plebiscite. Evidently, what is contemplated by the phase "political
is valid. units directly affected," is the plurality of political units which would
participate in the plebiscite. 10 Logically, those to be included in such
We rule that respondent COMELEC did not commit grave abuse in
political areas are the inhabitants of the 12 barangays of the proposed
promulgating Resolution No. 2312 and that the plebiscite, which
Municipality of Tulay-Na-Lupa as well as those living in the parent
rejected the creation of the proposed Municipality of Tulay-Na-Lupa,
Municipality of Labo, Camarines Norte. Thus, we conclude that
is valid.
respondent COMELEC did not commit grave abuse of discretion in
Petitioner's contention that our ruling in Tan vs. COMELEC has been promulgating Resolution No. 2312.
superseded with the ratification of the 1987 Constitution, thus
WHEREFORE, the instant petition is hereby DISMISSED.
reinstating our earlier ruling in Paredes vs. COMELEC is untenable.
Petitioner opines that since Tan vs. COMELEC was based on Section SO ORDERED.
3 of Article XI of the 1973 Constitution our ruling in said case is no
Narvasa, C.J., Gutierrez Jr., Cruz, Feliciano, Bidin, Griño-Aquino,
longer applicable under Section 10 of Article X of the 1987
Medialdea and Regalado, Davide, Jr., Nocon, Bellosillo, Melo and
Constitution, 8 especially since the latter provision deleted the words
Campos, Jr., JJ., concur.
"unit or."
Padilla, J., is on leave.
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 not affected our ruling in Tan
vs. 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 plebiscite because it is affected. It would mean a loss
of a territory.9 (Emphasis supplied)
It stands to reason that when the law states that the plebiscite shall
be conducted "in the political units directly affected," it means that
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.
Local Governments; Police Power.—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
police powers in order to effectively accomplish and carry out the
declared objects of their creation.
Same; Municipal ordinances.—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. Ordinance No. 13, Series of 1952, meets these criteria.
NOCON, J.:
This is a Petition for Prohibition with Preliminary Injunction with the
Court of First Instance of Catanduanes filed by appellant, Celestino
Tatel, a businessman engaged in the import and export of abaca and
other products against the Municipal Council of Virac, Catanduanes
and its municipal officials enjoining them from enforcing Resolution
No 29 1of the Council, declaring the warehouse of petitioner in barrio
Sta. Elena of the said municipality a public nuisance within the
purview of Article 694 of the Civil Code of the Philippines and
directing the petitioner to remove and transfer said warehouse to a
more suitable place within two (2) months from receipt of the said
resolution.
It appears from the records that on the basis of complaints received
from the residents of barrio Sta. Elena on March 18, 1966 against the
disturbance caused by the operation of the abaca bailing machine
inside the warehouse of petitioner which affected the peace and
tranquility of the neighborhood due to the smoke, obnoxious odor and
dust emitted by the machine, a committee was appointed by the
municipal council of Virac to investigate the matter. The committee
noted the crowded nature of the neighborhood with narrow roads and
the surrounding residential houses, so much so that an accidental fire
within the warehouse of the petitioner occasioned by the continuance
of the activity inside the warehouse and the storing of inflammable
materials created a danger to the lives and properties of the people
within the neighborhood.
Resultantly, Resolution No. 29 was passed by the Municipal Council of
Virac on April 22, 1966 declaring the warehouse owned and operated
by petitioner a public nuisance within the purview of Article 694 of the
New Civil Code. 2
His motion for reconsideration having been denied by the Municipal
Council of Virac, petitioner instituted the present petition for
prohibition with preliminary injunction.
Respondent municipal officials contend that petitioner's warehouse
was constructed in violation of Ordinance No. 13, series of 1952,
prohibiting the construction of warehouses near a block of houses
either in the poblacion or barrios without maintaining the necessary
distance of 200 meters from said block of houses to avoid loss of lives
and properties by accidental fire.
On the other hand, petitioner contends that said ordinance is
unconstitutional, contrary to the due process and equal protection
clause of the Constitution and null and void for not having been
passed in accordance with law.
The issue then boils down on whether petitioner's warehouse is a
nuisance within the meaning of Article 694 of the Civil Code and
whether Ordinance No. 13, S. 1952 of the Municipality of Virac is
unconstitutional and void.
In a decision dated September 18, 1969, the court a quo ruled as
follows:
 1. The warehouse in question was legally constructed under a
valid permit issued by the municipality of Virac in accordance
with existing regulations and may not be destroyed or removed
from its present location;
2. Ordinance No. 13, series of 1952, is a legitimate and valid
exercise of police power by the Municipal Council of Virac is
not (sic) unconstitutional and void as claimed by the
petitioner;
3. The storage by the petitioner of abaca and copra in the
warehouse is not only in violation of the provisions of the
ordinance but poses a grave danger to the safety of the lives
and properties of the residents of the neighborhood due to
accidental fire and constitutes a public nuisance under the
provisions of Article 694 of the New Civil code of the
Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from
the said warehouse all abaca and copra and other inflammable
articles stored therein which are prohibited under the
provisions of Ordinance No. 13, within a period of two (2)
months from the time this decision becomes final and that
henceforth, the petitioner is enjoined from storing such
prohibited articles in the warehouse. With costs against
petitioner.
Seeking appellate review, petitioner raised as errors of the court a
quo:
1. In holding that Ordinance No. 13, series of 1952, of the
Municipality of Virac, Catanduanes, is a legitimate and valid
exercise of police power of the Municipal Council, and
therefore, constitutional;
2. In giving the ordinance a meaning other than and different
from what it provided by declaring that petitioner violated the
same by using the warehouse for storage of abaca and copra
when what is prohibited and penalized by the ordinance is the
construction of warehouses.
3. In refusing to take judicial notice of the fact that in the
municipality, there are numerous establishments similarly
situated as appellants' warehouses but which are not
prosecuted.
We find no merit in the Petition.
Ordinance No. 13, series of 1952, was passed by the Municipal Council
of Virac in the exercise of its police power. It is a settled principle of
law that municipal corporations are agencies of the State for the
promotion and maintenance of local self-government and as such are
endowed with the police powers in order to effectively accomplish and
carry out the declared objects of their creation. 3 Its authority
emanates from the general welfare clause under the Administrative
Code, which reads:
The municipal council shall enact such ordinances and make
such regulations, not repugnant to law, as may be necessary to
carry into effect and discharge the powers and duties conferred
upon it by law and such as shall seem necessary and proper to
provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort and
convenience of the municipality and the inhabitants thereof,
and for the protection of property therein. 4
For an ordinance to be valid, it must not only be within the corporate
powers of the municipality to enact but must also be passed according
to the procedure prescribed by law, and must be in consonance with
certain well established and basic principles of a substantive nature.
These principles require that a municipal ordinance (1) must not
contravene the Constitution or any statute (2) must not be unfair or
oppressive (3) must not be partial or discriminatory (4) must not
prohibit but may regulate trade (5) must be general and consistent
with public policy, and (6) must not be unreasonable. 5 Ordinance No.
13, Series of 1952, meets these criteria.
As to the petitioner's second assignment of error, the trial court did
not give the ordinance in question a meaning other than what it says.
Ordinance No. 13 passed by the Municipal Council of Virac on
December 29, 1952, 6 reads:
AN ORDINANCE STRICTLY PROHIBITING THE
CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A
BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO
WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES
OF PROPERTY AND LIVES BY FIRE ACCIDENT.
Section 1 provides:
It is strictly prohibited to construct warehouses in any form to
any person, persons, entity, corporation or merchants, wherein
 to keep or store copra, hemp, gasoline, petroleum, alcohol,
crude oil, oil of turpentine and the like products or materials if
not within the distance of 200 meters from a block of houses
either in the poblacion or barrios to avoid great losses of
properties inclusive lives by fire accident.
Section 2 provides: 7
Owners of warehouses in any form, are hereby given advice to
remove their said warehouses this ordinance by the Municipal
Council, provided however, that if those warehouses now in
existence should no longer be utilized as such warehouse for
the above-described products in Section 1 of this ordinance
after a lapse of the time given for the removal of the said
warehouses now in existence, same warehouses shall be
exempted from the spirit of the provision of section 1 of this
ordinance,provided further, that these warehouses now in
existence, shall in the future be converted into non-
inflammable products and materials warehouses.
In spite of its fractured syntax, basically, what is regulated by the
ordinance is the construction of warehouses wherein inflammable
materials are stored where such warehouses are located at a distance
of 200 meters from a block of houses and not the construction per se of
a warehouse. The purpose is to avoid the loss of life and property in
case of fire which is one of the primordial obligation of the
government.
This was also the observation of the trial court:
A casual glance of the ordinance at once reveals a manifest
disregard of the elemental rules of syntax. Experience,
however, will show that this is not uncommon in law making
bodies in small towns where local authorities and in particular
the persons charged with the drafting and preparation of
municipal resolutions and ordinances lack sufficient education
and training and are not well grounded even on the basic and
fundamental elements of the English language commonly used
throughout the country in such matters. Nevertheless, if one
scrutinizes the terms of the ordinance, it is clear that what is
prohibited is the construction of warehouses by any person,
entity or corporation wherein copra, hemp, gasoline and other
inflammable products mentioned in Section 1 may be stored
unless at a distance of not less than 200 meters from a block of
houses either in the poblacion or barrios in order to avoid loss
of property and life due to fire. Under Section 2, existing
warehouses for the storage of the prohibited articles were
given one year after the approval of the ordinance within
which to remove them but were allowed to remain in operation
if they had ceased to store such prohibited articles.
The ambiguity therefore is more apparent than real and
springs from simple error in grammatical construction but
otherwise, the meaning and intent is clear that what is
prohibited is the construction or maintenance of warehouses
for the storage of inflammable articles at a distance within 200
meters from a block of houses either in the poblacion or in the
barrios. And the purpose of the ordinance is to avoid loss of life
and property in case of accidental fire which is one of the
primordial and basic obligation of any government. 8
Clearly, the lower court did NOT add meaning other than or differrent
from what was provided in the ordinance in question. It merely stated
the purpose of the ordinance and what it intends to prohibit to
accomplish its purpose.
As to the third assignment of error, that warehouses similarly situated
as that of the petitioner were not prosecuted, suffice it to say that the
mere fact that the municipal authorities of Virac have not proceeded
against other warehouses in the municipality allegedly violating
Ordinance No. 13 is no reason to claim that the ordinance is
discriminatory. A distinction must be made between the law itself and
the manner in which said law is implemented by the agencies in
charge with its administration and enforcement. There is no valid
reason for the petitioner to complain, in the absence of proof that the
other bodegas mentioned by him are operating in violation of the
ordinance and that the complaints have been lodged against the
bodegas concerned without the municipal authorities doing anything
about it.
The objections interposed by the petitioner to the validity of the
ordinance have not been substantiated. Its purpose is well within the
objectives of sound government. No undue restraint is placed upon the
petitioner or for anybody to engage in trade but merely a prohibition
from storing inflammable products in the warehouse because of the
danger of fire to the lives and properties of the people residing in the
vicinity. As far as public policy is concerned, there can be no better
policy than what has been conceived by the municipal government.
As to petitioner's contention of want of jurisdiction by the lower court
we find no merit in the same. The case is a simple civil suit for
abatement of a nuisance, the original jurisdiction of which falls under
the then Court of First Instance.
WHEREFORE, for lack of merit, the petition is hereby DISMISSED.
Costs against petitioner.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
G.R. No. 102782. December 11, 1991.*
THE SOLICITOR GENERAL, RODOLFO A. MALAPIRA,
STEPHEN A. MONSANTO, DAN R. CALDERON, and GRANDY N.
TRIESTE, petitioners, vs. THE METROPOLITAN MANILA
AUTHORITY and the MUNICIPALITY OF MANDALUYONG,
respondents.
Court rules; Power of Supreme Court to suspend procedural
rules.—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. x x x. 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.” 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,
Administrative Law; Local Government; Delegation of legislative
power.—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. 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.
Same; Same; Requisites for validity of a municipal ordinance;
Measures under consideration do not conform to existing law.—
According to Elliot, a municipal ordinance, to be valid: 1) must not
contravene the Constitution or any statute; 2) must not be unfair or
oppressive; 3) must not be partial or discriminatory; 4) must not
prohibit but may regulate trade; 5) must not be unreasonable; and 6)
must be general and consistent with public policy. 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. PD1605 does not allow either the
removal of the license plates or the confiscation of driver’s licenses for
traffic violations committed in Metropolitan Manila.
Same; Same; Same.—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 their own sources of revenue and to levy taxes is
conferred by the Constitution itself). They are mere agents vested with
what is called the power of subordinate legislation. As delegates of the
Congress, the local government 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.
CRUZ, J.:
In Metropolitan Traffic Command, West Traffic District vs. Hon.
Arsenio M. Gonong, G.R. No. 91023, promulgated on July 13,
1990, 1 the Court held that the confiscation of the license plates of
motor vehicles for traffic violations was not among the sanctions that
could be imposed by the Metro Manila Commission under PD 1605
and was permitted only under the conditions laid dowm by LOI 43 in
the case of stalled vehicles obstructing the public streets. It was there
also observed that even the confiscation of driver's licenses for traffic
violations was not directly prescribed by the decree nor was it allowed
by the decree to be imposed by the Commission. No motion for
reconsideration of that decision was submitted. The judgment became
final and executory on August 6, 1990, and it was duly entered in the
Book of Entries of Judgments on July 13, 1990.
Subsequently, the following developments transpired:
In a letter dated October 17, 1990, Rodolfo A. Malapira complained to
the Court that when he was stopped for an alleged traffic violation, his
driver's license was confiscated by Traffic Enforcer Angel de los Reyes
in Quezon City.
On December 18,1990, the Caloocan-Manila Drivers and Operators
Association sent a letter to the Court asking who should enforce the
decision in the above-mentioned case, whether they could seek
damages for confiscation of their driver's licenses, and where they
should file their complaints.
Another letter was received by the Court on February 14, 1991, from
Stephen L. Monsanto, complaining against the confiscation of his
driver's license by Traffic Enforcer A.D. Martinez for an alleged traffic
violation in Mandaluyong.
This was followed by a letter-complaint filed on March 7, 1991, from
Dan R. Calderon, a lawyer, also for confiscation of his driver's license
by Pat. R.J. Tano-an of the Makati Police Force.
Still another complaint was received by the Court dated April 29,
1991, this time from Grandy N. Trieste, another lawyer, who also
protested the removal of his front license plate by E. Ramos of the
Metropolitan Manila Authority-Traffic Operations Center and the
confiscation of his driver's license by Pat. A.V. Emmanuel of the
Metropolitan Police Command-Western Police District.
Required to submit a Comment on the complaint against him, Allan D.
Martinez invoked Ordinance No. 7, Series of 1988, of Mandaluyong,
authorizing the confiscation of driver's licenses and the removal of
license plates of motor vehicles for traffic violations.
For his part, A.V. Emmanuel said he confiscated Trieste's driver's
license pursuant to a memorandum dated February 27, 1991, from the
District Commander of the Western Traffic District of the Philippine
National Police, authorizing such sanction under certain conditions.
Director General Cesar P. Nazareno of the Philippine National Police
assured the Court in his own Comment that his office had never
authorized the removal of the license plates of illegally parked vehicles
and that he had in fact directed full compliance with the above-
mentioned decision in a memorandum, copy of which he attached,
entitled Removal of Motor Vehicle License Plates and dated February
28, 1991.
Pat. R.J. Tano-an, on the other hand, argued that the Gonong decision
prohibited only the removal of license plates and not the confiscation
of driver's licenses.
On May 24, 1990, the Metropolitan Manila Authority issued
Ordinance No. 11, Series of 1991, authorizing itself "to detach the
license plate/tow and impound attended/ unattended/ abandoned
motor vehicles illegally parked or obstructing the flow of traffic in
Metro Manila."
On July 2, 1991, the Court issued the following resolution:
The attention ofthe Court has been called to the enactment by
the Metropolitan Manila Authority of Ordinance No. 11, Series
of 1991, providing inter alia that:
Section 2. Authority to Detach Plate/Tow and
Impound. The Metropolitan Manila Authority, thru
the Traffic Operatiom Center, is authorized to detach
the license plate/tow and impound
attended/unattended/abandoned motor vehicles
illegally parked or obstructing the flow of traffic in
Metro Manila.
The provision appears to be in conflict with the decision of the
Court in the case at bar (as reported in 187 SCRA 432), where
it was held that the license plates of motor vehicles may not be
detached except only under the conditions prescribed in LOI
43. Additionally, the Court has received several complaints
against the confiscation by police authorities of driver's
licenses for alleged traffic violations, which sanction is,
according to the said decision, not among those that may be
imposed under PD 1605.
To clarify these matters for the proper guidance of law-
enforcement officers and motorists, the Court resolved to
require the Metropolitan Manila Authority and the Solicitor
General to submit, within ten (10) days from notice hereof,
separate COMMENTS on such sanctions in light of the said
decision.
In its Comment, the Metropolitan Manila Authority defended the said
ordinance on the ground that it was adopted pursuant to the powers
conferred upon it by EO 392. It particularly cited Section 2 thereof
vesting in the Council (its governing body) the responsibility among
others of:
1. Formulation of policies on the delivery of basic services
requiring coordination or consolidation for the Authority; and
2. Promulgation of resolutions and other issuances of
metropolitan wide application, approval of a code of basic
services requiring coordination, and exercise of its rule-making
powers. (Emphasis supplied)
The Authority argued that there was no conflict between the decision
and the ordinance because the latter was meant to supplement and
not supplant the latter. It stressed that the decision itself said that the
confiscation of license plates was invalid in the absence of a valid law
or ordinance, which was why Ordinance No. 11 was enacted. The
Authority also pointed out that the ordinance could not be attacked
collaterally but only in a direct action challenging its validity.
For his part, the Solicitor General expressed the view that the
ordinance was null and void because it represented an invalid exercise
of a delegated legislative power. The flaw in the measure was that it
violated existing law, specifically PD 1605, which does not permit, and
so impliedly prohibits, the removal of license plates and the
confiscation of driver's licenses for traffic violations in Metropolitan
Manila. He made no mention, however, of the alleged impropriety of
examining the said ordinance in the absence of a formal challenge to
its validity.
On October 24, 1991, the Office of the Solicitor General submitted a
motion for the early resolution of the questioned sanctions, to remove
once and for all the uncertainty of their vahdity. A similar motion was
filed by the Metropolitan Manila Authority, which reiterated its
contention that the incidents in question should be dismissed because
there was no actual case or controversy before the Court.
The Metropolitan Manila Authority is correct in invoking the doctrine
that the validity of a law or act can be challenged only in a direct
action and not collaterally. That is indeed the settled principle.
However, that rule is not inflexible and may be relaxed by the Court
under exceptional circumstances, such as those in the present
controversy.
The Solicitor General notes that the practices complained of have
created a great deal of confusion among motorists about the state of
the law on the questioned sanctions. More importantly, he maintains
that these sanctions are illegal, being violative of law and
the Gonong decision, and should therefore be stopped. We also note
the disturbing report that one policeman who confiscated a driver's
license dismissed the Gonong decision as "wrong" and said the police
would not stop their "habit" unless they received orders "from the top."
Regrettably, not one of the complainants has filed a formal challenge
to the ordinances, including Monsanto and Trieste, who are lawyers
and could have been more assertive of their rights.
Given these considerations, the Court feels it must address the
problem squarely presented to it and decide it as categorically rather
than dismiss the complaints on the basis of the technical objection
raised and thus, through its inaction, allow them to fester.
The step we now take is not without legal authority or judicial
precedent. Unquestionably, the Court has the power to suspend
procedural rules in the exercise of its inherent power, as expressly
recognized in the Constitution, to promulgate rules concerning
"pleading, practice and procedure in all courts." 2 In proper cases,
procedural rules may be relaxed or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a
rigid and formalistic adherence to such rules.
The Court has taken this step in a number of such cases,
notably Araneta vs. Dinglasan, 3 where Justice Tuason justified the
deviation on the ground that "the transcendental importance to the
public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure."
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools
designed to facilitate the attainment ofjustice. Their strict and
rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must
always be avoided. (Aznar III vs. Bernad, G.R. No. 81190, May
9, 1988, 161 SCRA 276.) Time and again, this Court has
suspended its own rules and excepted a particular case from
their operation whenever the higher interests of justice so
require. In the instant petition, we forego a lengthy
disquisition of the proper procedure that should have been
taken by the parties involved and proceed directly to the
merits of the case. (Piczon vs. Court of Appeals, 190 SCRA 31).
 Three of the cases were consolidated for argument and the
other two were argued separately on other dates. Inasmuch as
all of them present the same fundamental question which, in
our view, is decisive, they will be disposed of jointly. For the
same reason we will pass up the objection to the personality or
sufficiency of interest of the petitioners in case G.R. No. L-
3054 and case G.R. No. L-3056 and the question whether
prohibition lies in cases G.R. Nos. L-2044 and L2756. No
practical benefit can be gained from a discussion of these
procedural matters, since the decision in the cases wherein the
petitioners'cause of action or the propriety of the procedure
followed is not in dispute, will be controlling authority on the
others. Above all, the transcendental importance to the public
of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of
procedure. (Avelino vs. Cuenco, G.R. No. L-2821 cited in
Araneta vs. Dinglasan, 84 Phil. 368.)
Accordingly, the Court will consider the motion to resolve filed by the
Solicitor General a petition for prohibition against the enforcement of
Ordinance No. 11, Series of 1991, of the Metropohtan Manila
Authority, and Ordinance No. 7, Series of 1988, of the Municipality of
Mandaluyong. Stephen A. Monsanto, Rodolfo A. Malapira, Dan R.
Calderon, and Grandy N. Trieste are considered co-petitioners and the
Metropolitan Manila Authority and the Municipality of Mandaluyong
are hereby impleaded as respondents. This petition is docketed as G.R.
No. 102782. The comments already submitted are duly noted and shall
be taken into account by the Court in the resolution of the substantive
issues raised.
It is stressed that this action is not intended to disparage procedural
rules, which the Court has recognized often enough as necessary to the
orderly administration of justice. If we are relaxing them in this
particular case, it is because of the failure of the proper parties to file
the appropriate proceeding against the acts complained of, and the
necessity of resolving, in the interest of the public, the important
substantive issues raised.
Now to the merits.
The Metro Manila Authority sustains Ordinance No. 11, Series of
1991, under the specific authority conferred upon it by EO 392, while
Ordinance No. 7, Series of 1988, is justified on the basis of the General
Welfare Clause embodied in the Local Government Code. 4 It is not
disputed that both measures were enacted to promote the comfort and
convenience of the public and to alleviate the worsening traffic
problems in Metropolitan Manila due in large part to violations of
traffic rules.
The Court holds that there is a valid delegation of legislative power to
promulgate such measures, it appearing that the requisites of such
delegation are present. These requisites are. 1) the completeness of the
statute making the delegation; and 2) the presence of a sufficient
standard. 5
Under the first requirement, the statute must leave the legislature
complete in all its terms and provisions such that all the delegate will
have to do when the statute reaches it is to implement it. What only
can be delegated is not the discretion to determine what the law shall
be but the discretion to determine how the law shall be enforced. This
has been done in the case at bar.
As a second requirement, the enforcement may be effected only in
accordance with a sufficient standard, the function of which is to map
out the boundaries of the delegate's authority and thus "prevent the
delegation from running riot." This requirement has also been met. It
is settled that the "convenience and welfare" of the public, particularly
the motorists and passengers in the case at bar, is an acceptable
sufficient standard to delimit the delegate's authority. 6
But the problem before us is not the validity of the delegation of
legislative power. The question we must resolve is the validity of
the exercise of such delegated power.
The measures in question are enactments of local governments acting
only as agents of the national legislature. Necessarily, the acts of these
agents must reflect and conform to the will of their principal. To test
the validity of such acts in the specific case now before us, we apply
the particular requisites of a valid ordinance as laid down by the
accepted principles governing municipal corporations.
According to Elliot, a municipal ordinance, to be valid: 1) must not
contravene the Constitution or any statute; 2) must not be unfair or
oppressive; 3) must not be partial or discriminatory; 4) must not
prohibit but may regulate trade; 5) must not be unreasonable; and 6)
must be general and consistent with public policy. 7
A careful study of the Gonong decision will show that the measures
under consideration do not pass the first criterion because they do not
conform to existing law. The pertinent law is PD 1605. PD 1605 does
not allow either the removal of license plates or the confiscation of
driver's licenses for traffic violations committed in Metropolitan
Manila. There is nothing in the following provisions of the decree
authorizing the Metropolitan Manila Commission (and now the
Metropolitan Manila Authority) to impose such sanctions:
Section 1. The Metropolitan Manila Commission shall have the power
to impose fines and otherwise discipline drivers and operators of motor
vehicles for violations of traffic laws, ordinances, rules and regulations
in Metropolitan Manila in such amounts and under such penalties as
are herein prescribed. For this purpose, the powers of the Land
Transportation Commission and the Board of Transportation under
existing laws over such violations and punishment thereof are hereby
transferred to the Metropolitan Manila Commission. When the proper
penalty to be imposed is suspension or revocation of driver's license or
certificate of public convenience, the Metropolitan Manila Commission
or its representatives shall suspend or revoke such license or
certificate. The suspended or revoked driver's license or the report of
suspension or revocation of the certificate of public convenience shall
be sent to the Land Transportation Commission or the Board of
Transportation, as the case may be, for their records update.
xxx xxx xxx
Section 3.` Violations of traffic laws, ordinances, rules and regulations,
committed within a twelve-month period, reckoned from the date of
birth of the licensee, shall subject the violator to graduated fines as
follows: P10.00 for the first offense, P20.00 for the and offense, P50.00
for the third offense, a one-year suspension of driver's license for the
fourth offense, and a revocation of the driver's license for the fifth
offense: Provided, That the Metropolitan Manila Commission may
impose higher penalties as it may deem proper for violations of its
ordinances prohibiting or regulating the use of certain public roads,
streets and thoroughfares in Metropolitan Manila.
xxx xxx xxx
Section 5. In case of traffic violations, the driver's license shall not be
confiscated but the erring driver shall be immediately issued a traffic
citation ticket prescribed by the Metropolitan Manila Commission
which shall state the violation committed, the amount of fine imposed
for the violation and an advice that he can make payment to the city
or municipal treasurer where the violation was committed or to the
Philippine National Bank or Philippine Veterans Bank or their
branches within seven days from the date of issuance of the citation
ticket.
If the offender fails to pay the fine imposed within the period herein
prescribed, the Metropolitan Manila Commission or the law-
enforcement agency concerned shall endorse the case to the proper
fiscal for appropriate proceedings preparatory to the filing of the case
with the competent traffic court, city or municipal court.
If at the time a driver renews his driver's license and records show
that he has an unpaid fine, his driver's license shall not be renewed
until he has paid the fine and corresponding surcharges.
xxx xxx xxx
Section 8. Insofar as the Metropolitan Manila area is concerned, all
laws, decrees, orders, ordinances, rules and regulations, or parts
thereof inconsistent herewith are hereby repealed or modified
accordingly. (Emphasis supplied).
In fact, the above provisions prohibit the imposition of such sanctions
in Metropolitan Manila. The Commission was allowed to "impose fines
and otherwise discipline" traffic violators only "in such amounts and
under such penalties as are herein prescribed," that is, by the decree
itself. Nowhere is the removal of license plates directly imposed by the
decree or at least allowed by it to be imposed by the Commission.
Notably, Section 5 thereof expressly provides that "in case of traffic
violations, the driver's license shall not be confiscated." These
restrictions are applicable to the Metropolitan Manila Authority and
all other local political subdivisions comprising Metropolitan Manila,
including the Municipality of Mandaluyong.
The requirement that the municipal enactment must not violate
existing law explains itself. Local political subdivisions are able to
legislate only by virtue of a valid delegation of legislative power from
the national legislature (except only that the power to create their own
sources of revenue and to levy taxes is conferred by the Constitution
itself). They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local
government unit cannot contravene but must obey at all times the will
of their principal. In the case before us, the enactments in question,
which are merely local in origin, cannot prevail against the decree,
which has the force and effect of a statute.
The self-serving language of Section 2 of the challenged ordinance is
worth noting. Curiously, it is the measure itself, which was enacted by
the Metropolitan Manila Authority, that authorizes the Metropolitan
Manila Authority to impose the questioned sanction.
In Villacorta vs, Bemardo, 9 the Court nullified an ordinance enacted
by the Municipal Board of Dagupan City for being violative of the
Land Registration Act. The decision held in part:
In declaring the said ordinance null and void, the court a
quo declared:
From the above-recited requirements, there is no
showing that would justify the enactment of the
questioned ordinance. Section 1 of said ordinance
clearly conflicts with Section 44 of Act 496, because the
latter law does not require subdivision plans to be
submitted to the City Engineer before the same is
submitted for approval to and verification by the
General Land Registration Office or by the Director of
Lands as provided for in Section 58 of said Act. Section
2 of the same ordinance also contravenes the
provisions of Section 44 of Act 496, the latter being
silent on a service fee of P0.03 per square meter of
every lot subject of such subdivision application;
Section 3 of the ordinance in question also conflicts
with Section 44 of Act 496, because the latter law does
not mention of a certification to be made by the City
Engineer before the Register of Deeds allows
registration of the subdivision plan; and the last
section of said ordinance impose a penalty for its
violation, which Section 44 of Act 496 does not impose.
In other words, Ordinance 22 of the City of Dagupan
imposes upon a subdivision owner additional
conditions.
xxx xxx xxx
The Court takes note of the laudable purpose of the
ordinance in bringing to a halt the surreptitious
registration of lands belonging to the government. But
as already intimated above, the powers of the board in
enacting such a laudable ordinance cannot be held
valid when it shall impede the exercise of rights
granted in a general law and/or make a general law
subordinated to a local ordinance.
We affirm.
To sustain the ordinance would be to open the floodgates to
other ordinances amending and so violating national laws in
the guise of implementing them. Thus, ordinances could be
passed imposing additional requirements for the issuance of
marriage licenses, to prevent bigamy; the registration of
vehicles, to minimize carnapping; the execution of contracts, to
forestall fraud; the validation of parts, to deter imposture; the
exercise of freedom of speech, to reduce disorder; and so on.
The list is endless, but the means, even if the end be valid,
would be ultra vires.
The measures in question do not merely add to the requirement of PD
1605 but, worse, impose sanctions the decree does not allow and in
fact actually prohibits. In so doing, the ordinances disregard and
violate and in effect partially repeal the law.
We here emphasize the ruling in the Gonong case that PD 1605
applies only to the Metropolitan Manila area. It is an exception to the
general authority conferred by R.A. No. 413 on the Commissioner of
Land Transportation to punish violations of traffic rules elsewhere in
the country with the sanction therein prescribed, including those here
questioned.
The Court agrees that the challenged ordinances were enacted with
the best of motives and shares the concern of the rest of the public for
the effective reduction of traffic problems in Metropolitan Manila
through the imposition and enforcement of more deterrent penalties
upon traffic violators. At the same time, it must also reiterate the
public misgivings over the abuses that may attend the enforcement of
such sanction in eluding the illicit practices described in detail in
the Gonong decision. At any rate, the fact is that there is no statutory
authority for — and indeed there is a statutory prohibition against —
the imposition of such penalties in the Metropolitan Manila area.
Hence, regardless of their merits, they cannot be impose by the
challenged enactments by virtue only of the delegated legislative
powers.
It is for Congress to determine, in the exercise of its own discretion,
whether or not to impose such sanctions, either directly through a
statute or by simply delegating authority to this effect to the local
governments in Metropolitan Manila. Without such action, PD 1605
remains effective and continues prohibit the confiscation of license
plates of motor vehicles (except under the conditions prescribed in LOI
43) and of driver licenses as well for traffic violations in Metropolitan
Manila.
WHEREFORE, judgment is hereby rendered:
(1) declaring Ordinance No.11, Seriesof l991,of theMetropolitan
Manila Authority and Ordinance No. 7, Series of 1988 of the
Municipality of Mandaluyong, NULL and VOID; and
(2) enjoining all law enforcement authorities in Metropolitan Manila
from removing the license plates of motor vehicles (except when
authorized under LOI 43) and confiscating driver licenses for traffic
violations within the said area.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr. and
Romero, JJ., concur.
Nocon, J., took no part.
G.R. No. 111097. July 20, 1994.*
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE
ORO, petitioners, vs. PRYCE PROPERTIES CORPORATION,
INC. & PHILIPPINE AMUSEMENT AND GAMING CORPO-
RATION, respondents.
Constitutional Law; Separation of Powers; Gambling; The
morality of gambling is not a justiciable issue.—The morality of
gambling is not a justiciable issue. Gambling is not illegal per
se. While it is generally considered inimical to the interests of the
people, there is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning it at all. It is
left to Congress to deal with the activity as it sees fit. In the exercise of
its own discretion, the legislature may prohibit gambling altogether or
allow it without limitation or it may prohibit some forms of gambling
and allow others for whatever reasons it may consider sufficient. Thus,
it has prohibited jueteng and monte but permits lotteries, cockfighting
and horse-racing. In making such choices, Congress has consulted its
own wisdom, which this Court has no authority to review, much less
reverse. Well has it been said that courts do not sit to resolve the
merits of conflicting theories. That is the prerogative of the political
departments. It is settled that questions regarding the wisdom,
morality, or practicibility of statutes are not addressed to the judiciary
but may be resolved only by the legislative and executive departments,
to which the function belongs in our scheme of government. That
function is exclusive. Whichever way these branches decide, they are
answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.
Local Governments; Tests of a valid ordinance.—The tests of a
valid ordinance are well established. A long line of decisions has held
that to be valid, an ordinance must conform to the following
substantive requirements: 1) It must not contravene the constitution
or any statute; 2) It must not be unfair or oppressive; 3) It must not be
partial or discriminatory; 4) It must not prohibit but may regulate
trade; 5) It must be general and consistent with public policy; 6) It
must not be unreasonable.
Same; Gambling; Statutory Construction; Local Government
Code; Under the rule of noscitur a sociis, a word or phrase should be
interpreted in relation to, or given the same meaning of, words with
which it is associated, and, since the word “gambling” is associated
with “and other prohibited games of chance,” under Sec. 458 of the
Local Government Code, the word should be read as referring only to
illegal gambling.—We begin by observing that under Sec. 458 of the
Local Government Code, local government units are authorized to
prevent or suppress, among others, “gambling and other prohibited
games of chance.” Obviously, this provision excludes games of chance
which are not prohibited but are in fact permitted by law. The
petitioners are less than accurate in claiming that the Code could have
excluded such games of chance but did not. In fact it does. The
language of the section is clear and unmistakable. Under the rule
of noscitur a sociis,a word or phrase should be interpreted in relation
to, or given the same meaning of, words with which it is associated.
Accordingly, we conclude that since the word “gambling” is associated
with “and other prohibited games of chance,” the word should be read
as referring to only illegal gambling which, like the other prohibited
games of chance, must be prevented or suppressed.
Same; Same; Same; Same; Statutes; The ordinances in question
contravene P.D. 1869 which has not been repealed by the Local
Government Code.—The apparent flaw in the ordinances in question is
that they contravene P.D. 1869 and the public policy embodied therein
insofar as they prevent PAGCOR from exercising the power conferred
on it to operate a casino in Cagayan de Oro City. The petitioners have
an ingenious answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance admittedly
cannot prevail against a statute. Their theory is that the change has
been made by the Local Government Code itself, which was also
enacted by the national lawmaking authority. In their view, the decree
has been, not really repealed by the Code, but merely “modified pro
tanto” in the sense that PAGCOR cannot now operate a casino over
the objection of the local government unit concerned. This modification
of P.D. 1869 of 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.
Same; Same; Same; Same; Same; Implied Repeals; It is
familiar rule that implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such intention.—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. x x x 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.
Same; Same; Same; Same; Same; Same; 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.—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.
Same; Same; Same; There are indeed two kinds of gambling, to
a wit, the illegal and those authorized by law.—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.
Same; Same; The rationale of the requirement that the ordinances
should not contravene a statute is obvious as municipal governments
are only agents of the national government and that the delegate
cannot be superior to the principal or exercise powers higher than those
of the latter.—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.
Same; Same; Congress retains control of the local government units
although in significantly reduced degree now than under the previous
Constitutions.—This basic relationship between the national
legislature and the local government units has not been enfeebled by
the new provisions in the Constitution strengthening the policy of
local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units
although in significantly reduced degree now than under our previous
Constitutions. The power to create still includes the power to destroy.
The power to grant still includes the power to withhold or recall. True,
there are certain notable innovations in the Constitution, like the
direct conferment on the local government units of the power to tax,
which cannot now be withdrawn by mere statute. By and large,
however, the national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.
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
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance
Pryce Properties Corporation, Inc., one of the herein private
No. 3375-93 reading as follows:
respondents, renovated and equipped the same, and prepared to
inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City
was swift and hostile. On December 7, 1992, it enacted Ordinance No.
3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF
BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE
USING AND ALLOWING TO BE USED ITS PREMISES OR
PORTION THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City
of Cagayan de Oro, in session assembled that:
Sec. 1. — That pursuant to the policy of the city banning the
operation of casino within its territorial jurisdiction, no
business permit shall be issued to any person, partnership or
corporation for the operation of casino within the city limits.
Sec. 2. — That it shall be a violation of existing business
permit by any persons, partnership or corporation to use its
business establishment or portion thereof, or allow the use
thereof by others for casino operation and other gambling
activities.
Sec. 3. — PENALTIES. — Any violation of such existing
business permit as defined in the preceding section shall suffer
the following penalties, to wit:
a) Suspension of the business permit for sixty (60) days
for the first offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months
for the second offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and
imprisonment of One (1) year, for the third and
subsequent offenses.
Sec. 4. — This Ordinance shall take effect ten (10) days from
publication thereof.
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF
CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.
WHEREAS, the City Council established a policy as early as
1990 against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed
another Resolution No. 2673, reiterating its policy against the
establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed
Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any
 establishment for the using and allowing to be used its
premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph
VI of the Local Government Code of 1991 (Rep. Act 7160) and
under Art. 99, No. (4), Paragraph VI of the implementing rules
of the Local Government Code, the City Council as the
Legislative Body shall enact measure to suppress any activity
inimical to public morals and general welfare of the people
and/or regulate or prohibit such activity pertaining to
amusement or entertainment in order to protect social and
moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly
assembled that:
Sec. 1. — The operation of gambling CASINO in the City of
Cagayan de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject to
the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against
the proprietor, partnership or corporation undertaking the
operation, conduct, maintenance of gambling CASINO in the
City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than
one (1) year or a fine in the amount of P5,000.00 or both at the
discretion of the court against the manager, supervisor, and/or
any person responsible in the establishment, conduct and
maintenance of gambling CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days after
its publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it
was joined by PAGCOR as intervenor and supplemental petitioner.
Their challenge succeeded. On March 31, 1993, the Court of Appeals
declared the ordinances invalid and issued the writ prayed for to
prohibit their enforcement. 1 Reconsideration of this decision was
denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition
for review under Rule 45 of the Rules of Court. 3 They aver that the
respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the
City of Cagayan de Oro does not have the power and authority
to prohibit the establishment and operation of a PAGCOR
gambling casino within the City's territorial limits.
2. The phrase "gambling and other prohibited games of
chance" found in Sec. 458, par. (a), sub-par. (1) — (v) of R.A.
7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and
are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and
partial to cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not
consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws or
policy of the State.
6. It had no option but to follow the ruling in the case of Basco,
et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53
in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help
centralize and regulate all games of chance, including casinos on land
and sea within the territorial jurisdiction of the Philippines. In Basco
v. Philippine Amusements and Gaming Corporation, 4 this Court
sustained the constitutionality of the decree and even cited the
benefits of the entity to the national economy as the third highest
revenue-earner in the government, next only to the BIR and the
Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is
empowered to enact ordinances for the purposes indicated in the Local
Government Code. It is expressly vested with the police power under
what is known as the General Welfare Clause now embodied in
Section 16 as follows:
Sec. 16. — General Welfare. — Every local government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
 those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. — Powers, Duties, Functions and Compensation. —
(a) The Sangguniang Panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective city government, and in this connection,
shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and impose
appropriate penalties for habitual drunkenness in public
places, vagrancy, mendicancy, prostitution, establishment and
maintenance of houses of ill repute, gamblingand other
prohibited games of chance, fraudulent devices and ways to
obtain money or property, drug addiction, maintenance of drug
dens, drug pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or pornographic materials
or publications, and such other activities inimical to the
welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate
properties and businesses within their territorial limits in the interest
of the general welfare. 5
The petitioners argue that by virtue of these provisions, the
Sangguniang Panlungsod may prohibit the operation of casinos
because they involve games of chance, which are detrimental to the
people. Gambling is not allowed by general law and even by the
Constitution itself. The legislative power conferred upon local
government units may be exercised over all kinds of gambling and not
only over "illegal gambling" as the respondents erroneously argue.
Even if the operation of casinos may have been permitted under P.D.
1869, the government of Cagayan de Oro City has the authority to
prohibit them within its territory pursuant to the authority entrusted
to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of
local autonomy as mandated in Article II, Section 25, and Article X of
the Constitution, as well as various other provisions therein seeking to
strengthen the character of the nation. In giving the local government
units the power to prevent or suppress gambling and other social
problems, the Local Government Code has recognized the competence
of such communities to determine and adopt the measures best
expected to promote the general welfare of their inhabitants in line
with the policies of the State.
The petitioners also stress that when the Code expressly authorized
the local government units to prevent and suppress gambling and
other prohibited games of chance, like craps, baccarat, blackjack and
roulette, it meant allforms of gambling without distinction. Ubi lex
non distinguit, nec nos distinguere debemos. 6 Otherwise, it would
have expressly excluded from the scope of their power casinos and
other forms of gambling authorized by special law, as it could have
easily done. The fact that it did not do so simply means that the local
government units are permitted to prohibit all kinds of gambling
within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the
effect of modifying the charter of the PAGCOR. The Code is not only a
later enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the
PAGCOR under the decree are expressly discontinued by the Code
insofar as they do not conform to its philosophy and provisions,
pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed or
modified accordingly.
It is also maintained that assuming there is doubt regarding the effect
of the Local Government Code on P.D. 1869, the doubt must be
resolved in favor of the petitioners, in accordance with the direction in
the Code calling for its liberal interpretation in favor of the local
government units. Section 5 of the Code specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation of the
provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall
be liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality
of life for the people in the community; . . . (Emphasis
supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful
and cite various provisions of the Constitution and several decisions of
this Court expressive of the general and official disapprobation of the
vice. They invoke the State policies on the family and the proper
upbringing of the youth and, as might be expected, call attention to
the old case of U.S. v. Salaveria,7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners decry
the immorality of gambling. They also impugn the wisdom of P.D.
1869 (which they describe as "a martial law instrument") in creating
PAGCOR and authorizing it to operate casinos "on land and sea
within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not
illegal per se. While it is generally considered inimical to the interests
of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even
mentioning it at all. It is left to Congress to deal with the activity as it
sees fit. In the exercise of its own discretion, the legislature may
prohibit gambling altogether or allow it without limitation or it may
prohibit some forms of gambling and allow others for whatever
reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and
horse-racing. In making such choices, Congress has consulted its own
wisdom, which this Court has no authority to review, much less
reverse. Well has it been said that courts do not sit to resolve the
merits of conflicting theories. 8 That is the prerogative of the political
departments. It is settled that questions regarding the wisdom,
morality, or practicibility of statutes are not addressed to the judiciary
but may be resolved only by the legislative and executive departments,
to which the function belongs in our scheme of government. That
function is exclusive. Whichever way these branches decide, they are
answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the
validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted
by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall
do so only by the criteria laid down by law and not by our own
convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of
decisions 9 has held that to be valid, an ordinance must conform to the
following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government
Code, local government units are authorized to prevent or suppress,
among others, "gambling and other prohibited games of chance."
Obviously, this provision excludes games of chance which are not
prohibited but are in fact permitted by law. The petitioners are less
than accurate in claiming that the Code could have excluded such
games of chance but did not. In fact it does. The language of the
section is clear and unmistakable. Under the rule of noscitur a sociis, a
word or phrase should be interpreted in relation to, or given the same
meaning of, words with which it is associated. Accordingly, we
conclude that since the word "gambling" is associated with
"and other prohibited games of chance," the word should be read as
referring to only illegal gambling which, like the other prohibited
games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem
quite conclusively. But we will not. The vigorous efforts of the
petitioners on behalf of the inhabitants of Cagayan de Oro City, and
the earnestness of their advocacy, deserve more than short shrift from
this Court.
The apparent flaw in the ordinances in question is that they
contravene P.D. 1869 and the public policy embodied therein insofar
as they prevent PAGCOR from exercising the power conferred on it to
operate a casino in Cagayan de Oro City. The petitioners have an
ingenious answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance admittedly
cannot prevail against a statute. Their theory is that the change has
been made by the Local Government Code itself, which was also
enacted by the national lawmaking authority. In their view, the decree
has been, not really repealed by the Code, but merely "modified pro
tanto" in the sense that PAGCOR cannot now operate a casino over
the objection of the local government unit concerned. This modification
of P.D. 1869 by the Local Government Code is permissible because one
law can change or repeal another law.
It seems to us that the petitioners are playing with words. While
insisting that the decree has only been "modifiedpro tanto," they are
actually arguing that it is already dead, repealed and useless for all
intents and purposes because the Code has shorn PAGCOR of all
power to centralize and regulate casinos. Strictly speaking, its
operations may now be not only prohibited by the local government
unit; in fact, the prohibition is not only discretionary but mandated by
Section 458 of the Code if the word "shall" as used therein is to be
given its accepted meaning. Local government units have now no
choice but to prevent and suppress gambling, which in the petitioners'
view includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or centralize
as they must all be prohibited by the local government units pursuant
to the mandatory duty imposed upon them by the Code. In this
situation, PAGCOR cannot continue to exist except only as a toothless
tiger or a white elephant and will no longer be able to exercise its
powers as a prime source of government revenue through the
operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the
repealing clause, conveniently discarding the rest of the provision
which painstakingly mentions the specific laws or the parts thereof
which are repealed (or modified) by the Code. Significantly, P.D. 1869
is not one of them. A reading of the entire repealing clause, which is
reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive
Order No. 112 (1987), and Executive Order No. 319 (1988) are
hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances
related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No.
1939 regarding hospital fund; Section 3, a (3) and b (2) of
Republic Act. No. 5447 regarding the Special Education Fund;
Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as
amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos. 381,
436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and
rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as
it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended
insofar as they are inconsistent with the provisions of this
Code: Sections 2, 16, and 29 of Presidential Decree No. 704;
Sections 12 of Presidential Decree No. 87, as amended;
Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of
Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed or
modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly
presumed in the absence of a clear and unmistakable showing of such
intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
 The cases relating to the subject of repeal by implication all indication that this is the will of the legislature. Plausibly, following
proceed on the assumption that if the act of later date clearly this theory, the City of Manila could, by mere ordinance, prohibit the
reveals an intention on the part of the lawmaking power to Philippine Charity Sweepstakes Office from conducting a lottery as
abrogate the prior law, this intention must be given effect; but authorized by R.A. 1169 and B.P. 42 or stop the races at the San
there must always be a sufficient revelation of this intention, Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
and it has become an unbending rule of statutory construction
In light of all the above considerations, we see no way of arriving at
that the intention to repeal a former law will not be imputed to
the conclusion urged on us by the petitioners that the ordinances in
the Legislature when it appears that the two statutes, or
question are valid. On the contrary, we find that the ordinances
provisions, with reference to which the question arises bear to
violate P.D. 1869, which has the character and force of a statute, as
each other the relation of general to special.
well as the public policy expressed in the decree allowing the playing
There is no sufficient indication of an implied repeal of P.D. 1869. On of certain games of chance despite the prohibition of gambling in
the contrary, as the private respondent points out, PAGCOR is general.
mentioned as the source of funding in two later enactments of
The rationale of the requirement that the ordinances should not
Congress, to wit, R.A. 7309, creating a Board of Claims under the
contravene a statute is obvious. Municipal governments are only
Department of Justice for the benefit of victims of unjust punishment
agents of the national government. Local councils exercise only
or detention or of violent crimes, and R.A. 7648, providing for
delegated legislative powers conferred on them by Congress as the
measures for the solution of the power crisis. PAGCOR revenues are
national lawmaking body. The delegate cannot be superior to the
tapped by these two statutes. This would show that the PAGCOR
principal or exercise powers higher than those of the latter. It is a
charter has not been repealed by the Local Government Code but has
heresy to suggest that the local government units can undo the acts of
in fact been improved as it were to make the entity more responsive to
Congress, from which they have derived their power in the first place,
the fiscal problems of the government.
and negate by mere ordinance the mandate of the statute.
It is a canon of legal hermeneutics that instead of pitting one statute
Municipal corporations owe their origin to, and derive their
against another in an inevitably destructive confrontation, courts
powers and rights wholly from the legislature. It breathes into
must exert every effort to reconcile them, remembering that both laws
them the breath of life, without which they cannot exist. As it
deserve a becoming respect as the handiwork of a coordinate branch of
creates, so it may destroy. As it may destroy, it may abridge
the government. On the assumption of a conflict between P.D. 1869
and control. Unless there is some constitutional limitation on
and the Code, the proper action is not to uphold one and annul the
the right, the legislature might, by a single act, and if we can
other but to give effect to both by harmonizing them if possible. This is
suppose it capable of so great a folly and so great a wrong,
possible in the case before us. The proper resolution of the problem at
sweep from existence all of the municipal corporations in the
hand is to hold that under the Local Government Code, local
State, and the corporation could not prevent it. We know of no
government units may (and indeed must) prevent and suppress all
limitation on the right so far as to the corporation themselves
kinds of gambling within their territories except only those allowed by
are concerned. They are, so to phrase it, the mere tenants at
statutes like P.D. 1869. The exception reserved in such laws must be
will of the legislature. 11
read into the Code, to make both the Code and such laws equally
effective and mutually complementary. This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
This approach would also affirm that there are indeed two kinds of
Constitution strengthening the policy of local autonomy. Without
gambling, to wit, the illegal and those authorized by law. Legalized
meaning to detract from that policy, we here confirm that Congress
gambling is not a modern concept; it is probably as old as illegal
retains control of the local government units although in significantly
gambling, if not indeed more so. The petitioners' suggestion that the
reduced degree now than under our previous Constitutions. The power
Code authorizes them to prohibit all kinds of gambling would erase
to create still includes the power to destroy. The power to grant still
the distinction between these two forms of gambling without a clear
includes the power to withhold or recall. True, there are certain Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo,
notable innovations in the Constitution, like the direct conferment on Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ.,
the local government units of the power to tax, 12 which cannot now be concur.
withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for
the welfare of their constituents and their apprehensions that the
welfare of Cagayan de Oro City will be endangered by the opening of
the casino. We share the view that "the hope of large or easy gain,
obtained without special effort, turns the head of the workman" 13 and
that "habitual gambling is a cause of laziness and ruin." 14 In People v.
Gorostiza, 15 we declared: "The social scourge of gambling must be
stamped out. The laws against gambling must be enforced to the
limit." George Washington called gambling "the child of avarice, the
brother of iniquity and the father of mischief." Nevertheless, we must
recognize the power of the legislature to decide, in its own wisdom, to
legalize certain forms of gambling, as was done in P.D. 1869 and
impliedly affirmed in the Local Government Code. That decision can
be revoked by this Court only if it contravenes the Constitution as the
touchstone of all official acts. We do not find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all
games of chance, including casinos on land and sea within the
territorial jurisdiction of the Philippines, remains unimpaired. P.D.
1869 has not been modified by the Local Government Code, which
empowers the local government units to prevent or suppress only
those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the
status of a statute that cannot be amended or nullified by a mere
ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353
prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all
their praiseworthy motives, these ordinances are contrary to P.D. 1869
and the public policy announced therein and are therefore ultra
vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of
the respondent Court of Appeals is AFFIRMED, with costs against the
petitioners. It is so ordered.
G.R. No. 92389. September 11, 1991.* convenience, maintain peace and order, improve public morals,
promote the prosperity and general welfare of the municipality and
HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI,
the inhabitants thereof, and insure the protection of property therein.”
petitioners, vs. HON. EUFEMIO DOMINGO and the COMMISSION
ON AUDIT, respondents. Same; Same; Same; Police Power is the power to prescribe
regulations to promote the health, morals, peace, education, good order
Constitutional Law; Municipal Corporation; Police Power; The
or safety and general welfare of the people.—Polica power is the power
police power is a government function, an inherent attribute of
to prescribe regulations to promote the health, morals, peace,
sovereighty which was born with civilized government.—The police
education, good order or safety and general welfare of the people. It is
power is a governmental function, an inherent attribute of
the most essential, insistent, and illimitable of powers. In a sense it is
sovereignty, which was born with civilized government. It is founded
the greatest and most powerful attribute of the government. It is
largely on the maxims, “Sic utere tuo et alienum non laedas” and
elastic and must be responsive to various social conditions,
“Salus populi est suprema lex.” Its fundamental purpose is securing
(Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security
the general welfare, comfort and convenience of the people.
of social order, the life and health of the citizen, the comfort of an
Same; Same; Same; Before a municipal corporation may exercise existence in a thickly populated community, the enjoyment of private
such power there must be a valid delegation of such power by the and social life, and the beneficial use of property, and it has been said
legislative which is the repository of the inherent powers of the State.— to be the very foundation on which our social system rests, (16 C.J.S.,
Police power is inherent in the state but not in municipal corporations p. 896) However, it is not confined within narrow circumstances of
(Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a precedents resting 011 past conditions; it must follow the legal
municipal corporation may exercise such power, there must be a valid progress of a democratic way of life.
delegation of such power by the legislature which is the repository of
Same; Same; Same; Police power is not capable of an exact
the inherent powers of the State. A valid delegation of police power
definition but has been purposely veiled in general terms to underscore
may arise from express delegation, or be inferred from the mere fact of
its allcomprehensiveness.—In the case of Sangalang vs.
the creation of the municipal corporation; and as a general rule,
IAC, supra, We ruled that police power is not capable of an exact
municipal corporations may exercise police powers within the fair
definition but has been, purposely, veiled in general terms to
intent and purpose of their creation which are reasonably proper to
underscore its all-comprehensiveness. Its scope, over-expanding to
give effect to the powers expressly granted, and statutes conferring
meet the exigencies of the times, even to anticipate the future where it
powers on public corporations have been construed as empowering
could be done, provides enough room for an efficient and flexible
them to do the things essential to the enjoyment of life and desirable
response to conditions and circumstances thus assuring the greatest
for the safety of the people. (62 C.J.S., p. 277). The socalled inferred
benefits.
police powers of such corporations are as much delegated powers as
are those conferred in express terms, the inference of their delegation Same; Same; Same; Power of a municipal corporation is broad
growing out of the fact of the creation of the municipal corporation and and has been said to be commensurate with but not to exceed the duty
the additional fact that the corporation can only fully accomplish the to provide for the real needs of the people in their health, safety, comfort
objects of its creation by exercising such powers. and convenience and consistently as may be with private rights.—The
police power of a municipal corporation is broad, and has been said to
Same; Same; Same; Municipal governments exercise this power
be commensurate with, but not to exceed, the duty to provide for the
under the general welfare clause.—Municipal governments exercise
real needs of the people in their health, safety, comfort, and
this power under the general welfare clause: pursuant thereto they are
convenience as consistently as may be with private rights. It extends
clothed with authority to “enact such ordinances and issue such
to all the great public needs, and, in a broad sense includes all
regulations as may be necessary to carry out and discharge the
legislation and almost every function of the municipal government. It
responsibilities conferred upon it by law, and such as shall be
covers a wide scope of subjects, and, while it is especially occupied
necessary and proper to provide for the health, safety, comfort and
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.
Same; Same; Same; Public purpose is not unconstitutional merely
because it incidentally benefits a limited number of persons.—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.
Same; Same; Same; Same; The support for the poor has long been
an accepted exercise of police power in the promotion of the common
good.—The care for the poor is generally recognized as a public duty,
The support for the poro has long been an accepted exercise of police
power in the promotion of the common good.
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.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Padilla, Bidin,
Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur. Gutierrez, Jr. and Feliciano, JJ., are on leave.
No. L-31249. August 19, 1986.* exercise the police power only by virtue of a valid delegation from the
national legislature under the general welfare clause. In the instant
SALVADOR VILLACORTA as City Engineer of Dagupan City, and
case, Ordinance No. 22 suffers from the additional defect of violating
JUAN S. CAGUIOA as Register of Deeds of Dagupan City,
this authority for legislating in contravention of the national law by
petitioners, vs. GREGORIO BERNARDO and HON. MACARIO
adding to its requirements.
OFILADA as Judge of the Court of First Instance of Pangasinan,
respondents.
Political Law; Municipal Corporations; Ordinances; An CRUZ, J.:
Ordinance which amends and violates national laws in the guise of
This is a petition for certiorari against a decision of the Court of First
implementing them by imposing additional requirements would be
Instance of Pangasinan annulling an ordinance adopted by the
ultra vires.—To sustain the ordinance would be to open the floodgates
municipal board of Dagupan City.
to other ordinances amending and so violating national laws in the
guise of implementing them. Thus, ordinances could be passed The ordinance reads in full as follows:
imposing additional requirements for the issuance of marriage
ORDINANCE 22
licenses, to prevent bigamy; the registration of vehicles, to minimize
carnapping; the execution of contracts, to forestall fraud; the AN ORDINANCE REGULATING SUBDIVISION PLANS OVER
validation of passports, to deter imposture; the exercise of freedom of PARCELS OF LAND IN THE CITY OF DAGUPAN.
speech, to reduce disorder; and so on. The list is endless, but the
Be it ordained by the Municipal Board of Dagupan City in session
means, even if the end be valid, would be ultra vires.
assembled:
Same; Same; Same; Ordinance No. 22 of the Dagupan City Municipal
Section 1. Every proposed subdivision plan over any lot in the City of
Board is null and void for Imposing additional conditions upon
Dagupan, shalt before the same is submitted for approval and/or
subdivision owners before approval and verification of the proposed
verification by the Bureau of Lands and/or the Land Registration
subdivision plans by the Bureau of Lands and/or the Land
Commission, be previously submitted to the City Engineer of the City
Registration Commission.—In declaring the said ordinance null and
who shall see to it that no encroachment is made on any portion of the
void, the court a quo declared: “From the above-recited requirements,
public domain, that the zoning ordinance and all other pertinent rules
there is no showing that would justify the enactment of the questioned
and regulations are observed.
ordinance. Section 1 of said ordinance clearly conflicts with Section 44
of Act 496, because the latter law does not require subdivision plans to Section 2. As service fee thereof, an amount equivalent to P0.30 per
be submitted to the City Engineer before the same is submitted for square meter of every lot resulting or win result from such subdivision
approval to and verification by the General Land Registration Office shall be charged by the City Engineer's Office.
or by the Director of Lands as provided for in Section 58 of said Act.
Section 3. It shall be unlawful for the Register of Deeds of Dagupan
Section 2 of the same ordinance also contravenes the provisions of
City to allow the registration of a subdivision plan unless there is prior
Section 44 of Act 496, the latter being silent on a service fee of P0.03
written certification issued by the City Engineer that such plan has
per square meter of every lot subject of such subdivision application;
already been submitted to his office and that the same is in order.
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 Section 4. Any violation of this ordinance shall be punished by a fine
made by the City Engineer before the Register of Deeds allows not exceeding two hundred (P200.00) pesos or imprisonment not
registration of the subdivision plan; and the last section of said exceeding six (6) months or both in the discretion of the judge.
ordinance imposes a penalty for its violation, which Section 44 of Act
Section 5. This ordinance shall take effect immediately upon approval.
496 does not impose. In other words, Ordinance 22 of the City of
Dagupan imposes upon a subdivision owner additional conditions. In declaring the said ordinance null and void, the court a quo declared:
This advice is especially addressed to the local governments which
 From the above-recited requirements, there is no showing that
would justify the enactment of the questioned ordinance.
Section 1 of said ordinance clearly conflicts with Section 44 of
Act 496, because the latter law does not require subdivision
plans to be submitted to the City Engineer before the same is
submitted for approval to and verification by the General Land
Registration Office or by the Director of Lands as provided for
in Section 58 of said Act. Section 2 of the same ordinance also
contravenes the provisions of Section 44 of Act 496, the latter
being silent on a service fee of PO.03 per square meter of every
lot subject of such subdivision application; Section 3 of the
ordinance in question also conflicts with Section 44 of Act 496,
because the latter law does not mention of a certification to be
made by the City Engineer before the Register of Deeds allows
registration of the subdivision plan; and the last section of said
ordinance imposes a penalty for its violation, which Section 44
of Act 496 does not impose. In other words, Ordinance 22 of
the City of Dagupan imposes upon a subdivision owner
additional conditions.
xxx xxx xxx
The Court takes note of the laudable purpose of the ordinance
in bringing to a halt the surreptitious registration of lands
belonging to the government. But as already intimidated
above, the powers of the board in enacting such a laudable
ordinance cannot be held valid when it shall impede the
exercise of rights granted in a general law and/or make a
general law subordinated to a local ordinance.
We affirm.
To sustain the ordinance would be to open the floodgates to other
ordinances amending and so violating national laws in the guise of
implementing them. Thus, ordinances could be passed imposing
additional requirements for the issuance of marriage licenses, to
prevent bigamy; the registration of vehicles, to minimize carnaping;
the execution of contracts, to forestall fraud; the validation of
passports, to deter imposture; the exercise of freedom of speech, to
reduce disorder; and so on. The list is endless, but the means, even if
the end be valid, would be ultra vires.
So many excesses are attempted in the name of the police power that
it is time, we feel, for a brief admonition.
Regulation is a fact of life in any well-ordered community. As society
becomes more and more complex, the police power becomes
correspondingly ubiquitous. This has to be so for the individual must
subordinate his interests to the common good, on the time honored
justification of Salus populi est suprema lex.
In this prolix age, practically everything a person does and owns
affects the public interest directly or at least vicariously, unavoidably
drawing him within the embrace of the police power. Increasingly, he
is hemmed in by all manner of statutory, administrative and
municipal requirements and restrictions that he may find officious
and even oppressive.
It is necessary to stress that unless the creeping interference of the
government in essentially private matters is moderated, it is likely to
destroy that prized and peculiar virtue of the free society:
individualism.
Every member of society, while paying proper deference to the general
welfare, must not be deprived of the right to be left alone or, in the
Idiom of the day, "to do his thing." As long as he does not prejudice
others, his freedom as an individual must not be unduly curtailed.
We therefore urge that proper care attend the exercise of the police
power lest it deteriorate into an unreasonable intrusion into the
purely private affairs of the individual. The so-called "general welfare"
is too amorphous and convenient an excuse for official arbitrariness.
Let it always be remembered that in the truly democratic state,
protecting the rights of the individual is as important as, if not more
so than, protecting the rights of the public.
This advice is especially addressed to the local governments which
exercise the police power only by virtue of a valid delegation from the
national legislature under the general welfare clause. In the instant
case, Ordinance No. 22 suffers from the additional defect of violating
this authority for legislation in contravention of the national law by
adding to its requirements.
WHEREFORE, the decision of the lower court annulling the
challenged ordinance is AFFIRMED, without any pronouncement as
to costs. SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera
and Paras, JJ., concur.
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.
Municipal Corporations; Constitutional Law; When exercise of
police power by a local government council is valid.—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.” It is
practically a reproduction of the former Section 39 of Municipal Code.
An ordinance enacted by virtue thereof, according to Justice Moreland,
speaking for the Court in the leading case of United States v. Abendan
“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.”
Same; Same; A local government council cannot prohibit the
establishment of nightclubs and cabarets; it may only regulate their
operations.—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.
Same; Same; Courts; Judiciary may set aside legislation which
clearly invades personal or property rights, e.g., prohibition on
establishment of cabarets, dance halls and nightclubs.—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.” 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.
Statutes; Constitutional Law; Where title of a law empowers a
local council to regulate places of amusement, its amendment to
include power to prohibit in the body of the law without change in title
would give rise to a constitutional question on titling of bills.—Then on
May 21, 1954, the first section was amended to include not merely “the
power to regulate, but likewise “prohibit * * *.” 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.” 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,” in the language of the Administrative
Code, such competence extending to all “the great public needs,” 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.
Same; Same; Municipal Corporations; Under the Local Government
Code (Batas 337), the Sangguniang Bayan cannot prohibit
establishment of cabarets.—It is dear 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.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or
not a municipal corporation, Bocaue, Bulacan, represented by
respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such
clubs employing hostesses. It is contended that the ordinance assailed
as invalid is tainted with nullity, the municipality being devoid of
power to prohibit a lawful business, occupation or calling, petitioners
at the same time alleging that their rights to due process and equal
protection of the laws were violated as the licenses previously given to
them was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows:
"Section 1.— Title of Ordinance.— This Ordinance shall be
known and may be cited as the [Prohibition and Closure
Ordinance] of Bocaue, Bulacan.
Section 2. — Definitions of Terms — (a) 'Night Club' shall
include any place or establishment selling to the public food or
drinks where customers are allowed to dance. (b) 'Cabaret' or
'Dance Hall' shall include any place or establishment where
dancing is permitted to the public and where professional
hostesses or hospitality girls and professional dancers are
employed. (c) 'Professional hostesses' or 'hospitality girls' shall
include any woman employed by any of the establishments
herein defined to entertain guests and customers at their table
or to dance with them. (d) 'Professional dancer' shall include
any woman who dances at any of the establishments herein
defined for a fee or remuneration paid directly or indirectly by
the operator or by the persons she dances with. (e) 'Operator'
shall include the owner, manager, administrator or any person
who operates and is responsible for the operation of any night
club, cabaret or dance hall.
Section 3. — Prohibition in the Issuance and Renewal of
Licenses, Permits. — Being the principal cause in the
decadence of morality and because of their other adverse
effects on this community as explained above, no operator of
night clubs, cabarets or dance halls shall henceforth be issued
permits/licenses to operate within the jurisdiction of the
municipality and no license/permit shall be issued to any
professional hostess, hospitality girls and professional dancer
for employment in any of the aforementioned establishments.
The prohibition in the issuance of licenses/permits to said
persons and operators of said establishments shall include
prohibition in the renewal thereof.
 Section 4.— Revocation of Permits and Licenses.— The licenses
and permits issued to operators of night clubs, cabarets or
dance halls which are now in operation including permits
issued to professional hostesses, hospitality girls and
professional dancers are hereby revoked upon the expiration of
the thirty-day period given them as provided in Section 8
hereof and thenceforth, the operation of these establishments
within the jurisdiction of the municipality shall be illegal.
Section 5.— Penalty in case of violation. — Violation of any of
the provisions of this Ordinance shall be punishable by
imprisonment not exceeding three (3) months or a fine not
exceeding P200.00 or both at the discretion of the Court. If the
offense is committed by a juridical entity, the person charged
with the management and/or operation thereof shall be liable
for the penalty provided herein.
Section 6. — Separability Clause.— If, for any reason, any
section or provision of this Ordinance is held unconstitutional
or invalid, no other section or provision hereof shall be affected
thereby.
Section 7.— Repealing Clause.— All ordinance, resolutions,
circulars, memoranda or parts thereof that are inconsistent
with the provisions of this Ordinance are hereby repealed.
Section 8.— Effectivity.— This Ordinance shall take effect
immediately upon its approval; provided, however, that
operators of night clubs, cabarets and dance halls now in
operation including professional hostesses, hospitality girls
and professional dancers are given a period of thirty days from
the approval hereof within which to wind up their businesses
and comply with the provisions of this Ordinance." 4
On November 5, 1975, two cases for prohibition with preliminary
injunction were filed with the Court of First Instance of Bulacan. 5 The
grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no
authority to prohibit a lawful business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due
process and the equal protection of the law, as the license
previously given to petitioners was in effect withdrawn
without judicial hearing. 3. That under Presidential Decree
No. 189, as amended, by Presidential Decree No. 259, the
power to license and regulate tourist-oriented businesses
including night clubs, has been transferred to the Department
of Tourism." 6 The cases were assigned to respondent Judge,
now Associate Justice Paras of the Intermediate Appellate
Court, who issued a restraining order on November 7, 1975.
The answers were thereafter filed. It was therein alleged: " 1.
That the Municipal Council is authorized by law not only to
regulate but to prohibit the establishment, maintenance and
operation of night clubs invoking Section 2243 of the RAC, CA
601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance
No. 84 is not violative of petitioners' right to due process and
the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree
No. 189, as amended, did not deprive Municipal Councils of
their jurisdiction to regulate or prohibit night clubs." 7 There
was the admission of the following facts as having been
established: "l. That petitioners Vicente de la Cruz, et al. in
Civil Case No. 4755-M had been previously issued licenses by
the Municipal Mayor of Bocaue-petitioner Jose Torres III,
since 1958; petitioner Vicente de la Cruz, since 1960;
petitioner Renato Alipio, since 1961 and petitioner Leoncio
Corpuz, since 1972; 2. That petitioners had invested large
sums of money in their businesses; 3. That the night clubs are
well-lighted and have no partitions, the tables being near each
other; 4. That the petitioners owners/operators of these clubs
do not allow the hospitality girls therein to engage in immoral
acts and to go out with customers; 5. That these hospitality
girls are made to go through periodic medical check-ups and
not one of them is suffering from any venereal disease and
that those who fail to submit to a medical check-up or those
who are found to be infected with venereal disease are not
allowed to work; 6. That the crime rate there is better than in
other parts of Bocaue or in other towns of Bulacan." 8 Then
came on January 15, 1976 the decision upholding the
constitutionality and validity of Ordinance No. 84 and
dismissing the cases. Hence this petition for certiorari by way
of appeal.
In an exhaustive as well as scholarly opinion, the lower court
dismissed the petitions. Its rationale is set forth in the opening
paragraph thus: "Those who lust cannot last. This in essence is why
the Municipality of Bocaue, Province of Bulacan, stigmatized as it has
been by innuendos of sexual titillation and fearful of what the
awesome future holds for it, had no alternative except to order thru its
legislative machinery, and even at the risk of partial economic
dislocation, the closure of its night clubs and/or cabarets. This in
essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the
current legal and social revolution, hereby [upholds] in the name of
police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The
restraining orders heretofore issued in these two cases are therefore
hereby rifted, effective the first day of February, 1976, the purpose of
the grace period being to enable the petitioners herein to apply to the
proper appellate tribunals for any contemplated redress."9 This Court
is, however, unable to agree with such a conclusion and for reasons
herein set forth, holds that reliance on the police power is insufficient
to justify the enactment of the assailed ordinance. It must be declared
null and void.
1. Police power is granted to municipal corporations in general terms
as follows: "General power of council to enact ordinances and make
regulations. - The municipal council shall enact such ordinances and
make such regulations, not repugnant to law, as may be necessary to
carry into effect and discharge the powers and duties conferred upon it
by law and such as shall seem necessary and proper to provide for the
health and safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and the
inhabitants thereof, and for the protection of property therein." 10 It is
practically a reproduction of the former Section 39 of Municipal
Code.11 An ordinance enacted by virtue thereof, according to Justice
Moreland, speaking for the Court in the leading case of United States
v. Abendan 12 "is valid, unless it contravenes the fundamental law of
the Philippine Islands, or an Act of the Philippine Legislature, or
unless it is against public policy, or is unreasonable, oppressive,
partial, discriminating, or in derogation of common right. Where the
power to legislate upon a given subject, and the mode of its exercise
and the details of such legislation are not prescribed, the ordinance
passed pursuant thereto must be a reasonable exercise of the power,
or it will be pronounced invalid." 13 In another leading case, United
States v. Salaveria, 14 the ponente this time being Justice Malcolm,
where the present Administrative Code provision was applied, it was
stated by this Court: "The general welfare clause has two branches:
One branch attaches itself to the main trunk of municipal authority,
and relates to such ordinances and regulations as may be necessary to
carry into effect and discharge the powers and duties conferred upon
the municipal council by law. With this class we are not here directly
concerned. The second branch of the clause is much more independent
of the specific functions of the council which are enumerated by law. It
authorizes such ordinances as shall seem necessary and proper to
provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of
property therein.' It is a general rule that ordinances passed by virtue
of the implied power found in the general welfare clause must be
reasonable, consonant with the general powersand purposes of the
corporation, and not inconsistent with the laws or policy of the
State." 15 If night clubs were merely then regulated and not prohibited,
certainly the assailed ordinance would pass the test of validity. In the
two leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and purposes of
municipal corporations, as well as consistency with the laws or policy
of the State. It cannot be said that such a sweeping exercise of a
lawmaking power by Bocaue could qualify under the term reasonable.
The objective of fostering public morals, a worthy and desirable end
can be attained by a measure that does not encompass too wide a field.
Certainly the ordinance on its face is characterized by overbreadth.
The purpose sought to be achieved could have been attained by
reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should not
lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation." 16 It
is clear that in the guise of a police regulation, there was in this
instance a clear invasion of personal or property rights, personal in
the case of those individuals desirous of patronizing those night clubs
and property in terms of the investments made and salaries to be
earned by those therein employed.
2. The decision now under review refers to Republic Act No. 938 as
amended. 17 It was originally enacted on June 20, 1953. It is entitled:
"AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF CERTAIN PLACES OF
AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL
JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The
municipal or city board or council of each chartered city shall have the
power to regulate by ordinance the establishment, maintenance and
operation of night clubs, cabarets, dancing schools, pavilions, cockpits,
bars, saloons, bowling alleys, billiard pools, and other similar places of
amusement within its territorial jurisdiction: ... " 19Then on May 21,
1954, the first section was amended to include not merely "the power
to regulate, but likewise "Prohibit ... " 20 The title, however, remained
the same. It is worded exactly as Republic Act No. 938. It is to be
admitted that as thus amended, if only the above portion of the Act
were considered, a municipal council may go as far as to prohibit the
operation of night clubs. If that were all, then the appealed decision is
not devoid of support in law. That is not all, however. The title was not
in any way altered. It was not changed one whit. The exact wording
was followed. The power granted remains that of regulation,
not prohibition. There is thus support for the view advanced by
petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall
embrace only one subject which shall be expressed in the title thereof.
" 21 Since there is no dispute as the title limits the power to regulating,
not prohibiting, it would result in the statute being invalid if, as was
done by the Municipality of Bocaue, the operation of a night club was
prohibited. There is a wide gap between the exercise of a regulatory
power "to provide for the health and safety, promote the prosperity,
improve the morals, 22 in the language of the Administrative Code,
such competence extending to all "the great public needs, 23 to quote
from Holmes, and to interdict any calling, occupation, or enterprise. In
accordance with the well-settled principle of constitutional
construction that between two possible interpretations by one of which
it will be free from constitutional infirmity and by the other tainted by
such grave defect, the former is to be preferred. A construction that
would save rather than one that would affix the seal of doom certainly
commends itself. We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a
specific provision of the recently-enacted Local Government
Code. 25 The general welfare clause, a reiteration of the
Administrative Code provision, is set forth in the first paragraph of
Section 149 defining the powers and duties of the sangguniang bayan.
It read as follows: "(a) Enact such ordinances and issue such
regulations as may be necessary to carry out and discharge the
responsibilities conferred upon it by law, and such as shall be
necessary and proper to provide for the health, safety, comfort and
convenience, maintain peace and order, improve public morals,
promote the prosperity and general welfare of the municipality and
the inhabitants thereof, and insure the protection of property therein;
..." 26 There are in addition provisions that may have a bearing on the
question now before this Court. Thus the sangguniang bayanshall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension
houses and lodging houses, except travel agencies, tourist guides,
tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing
and regulatory power of the Ministry of Tourism which shall exercise
such authority without infringing on the taxing or regulatory powers
of the municipality; (ss) Regulate public dancing schools, public dance
halls, and sauna baths or massage parlors; (tt) Regulate the
establishment and operation of billiard pools, theatrical performances,
circuses and other forms of entertainment; ..." 27 It is clear that
municipal corporations cannot prohibit the operation of night clubs.
They may be regulated, but not prevented from carrying on their
business. It would be, therefore, an exercise in futility if the decision
under review were sustained. All that petitioners would have to do is
to apply once more for licenses to operate night clubs. A refusal to
grant licenses, because no such businesses could legally open, would
be subject to judicial correction. That is to comply with the legislative
will to allow the operation and continued existence of night clubs
subject to appropriate regulations. In the meanwhile, to compel
petitioners to close their establishments, the necessary result of an
affirmance, would amount to no more than a temporary termination of
their business. During such time, their employees would undergo a
period of deprivation. Certainly, if such an undesirable outcome can be
avoided, it should be. The law should not be susceptible to the
reproach that it displays less than sympathetic concern for the plight
of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is
to be avoided. If it were not thus, then the element of arbitrariness
enters the picture. That is to pay less, very much less, than full
deference to the due process clause with its mandate of fairness and
reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a
retreat from its resolute stand sustaining police power legislation to
promote public morals. The commitment to such an Ideal forbids such
a backward step. Legislation of that character is deserving of the
fullest sympathy from the judiciary. Accordingly, the judiciary has not
been hesitant to lend the weight of its support to measures that can be
characterized as falling within that aspect of the police power.
Reference is made by respondents to Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 There is a
misapprehension as to what was decided by this Court. That was a
regulatory measure. Necessarily, there was no valid objection on due
process or equal protection grounds. It did not prohibit motels. It
merely regulated the mode in which it may conduct business in order
precisely to put an end to practices which could encourage vice and
immorality. This is an entirely different case. What was involved is a
measure not embraced within the regulatory power but an exercise of
an assumed power to prohibit. Moreover, while it was pointed out in
the aforesaid Ermita-Malate Hotel and Motel Operators Association,
Inc. decision that there must be a factual foundation of invalidity, it
was likewise made clear that there is no need to satisfy such a
requirement if a statute were void on its face. That it certainly is if the
power to enact such ordinance is at the most dubious and under the
present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the
lower court dated January 15, 1976 reversed, set aside, and nullied.
Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is
declared void and unconstitutional. The temporary restraining order
issued by this Court is hereby made permanent. No costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana,
Escolin Relova and Gutierrez, Jr., JJ., concur.
Makasiar, J, reserves his right to file a dissent.
De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.
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.
Local Governments; Constitutional Law; An ordinance of Quezon
City requiring memorial park operators to set aside at least six percent
(6%) of their cemetery for charity burial of deceased persons is not a
valid exercise of police power, and one that constitute taking of property
without just compensation.—There is no reasonable relation between
the setting aside of at least six (6) percent of the total area of all
private cemeteries for charity burial grounds of deceased paupers and
the promotion of health, morals, good order, safety, or the general
welfare of the people. The ordinance is actually a taking without
compensation of a certain area from a private cemetery to benefit
paupers who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose, the city
passes the burden to private cemeteries.
Same; Same; Same.—The expropriation without compensation of a
portion of private cemeteries is not covered by Section 12(t) of Republic
Act 537, the Revised Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the center of
population of the city and to provide for their burial in a proper place
subject to the provisions of general law regulating burial grounds and
cemeteries. When the Local Government Code, Batas Pambansa Blg.
337 provides in Section 177 (q) that a Sangguniang Panlungsod may
“provide for the burial of the dead in such place and in such manner as
prescribed by law or ordinance” it simply authorizes the city to provide
its own city owned land or to buy or expropriate private properties to
construct public cemeteries. This has been the law and practise in the
past. It continues to the present. Expropriation, however, requires
payment of just compensation. The questioned ordinance is different
from laws and regulations requiring owners of subdivisions to set
aside certain areas for streets, parks, playgrounds, and other public
facilities from the land they sell to buyers of subdivision lots. The
necessities of public safety, health, and convenience are very clear
from said requirements which are intended to insure the development
of communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the
subdivision developer when individual lots are sold to homeowners.
GUTIERREZ, JR., J.:
This is a petition for review which seeks the reversal of the decision of
the Court of First Instance of Rizal, Branch XVIII declaring Section 9
of Ordinance No. 6118, S-64, of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE
REGULATING THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR
BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON
CITY AND PROVIDING PENALTIES FOR THE VIOLATION
THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial
park cemetery shall be set aside for charity burial of deceased
persons who are paupers and have been residents of Quezon
City for at least 5 years prior to their death, to be determined
by competent City Authorities. The area so designated shall
immediately be developed and should be open for operation not
later than six months from the date of approval of the
application.
For several years, the aforequoted section of the Ordinance was not
enforced by city authorities but seven years after the enactment of the
ordinance, the Quezon City Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as
it does hereby request the City Engineer, Quezon City, to stop
any further selling and/or transaction of memorial park lots in
Quezon City where the owners thereof have failed to donate
the required 6% space intended for paupers burial.
Pursuant to this petition, the Quezon City Engineer notified
respondent Himlayang Pilipino, Inc. in writing that Section 9 of
Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of
First Instance of Rizal Branch XVIII at Quezon City, a petition for
declaratory relief, prohibition and mandamus with preliminary
injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the
Ordinance in question The respondent alleged that the same is
contrary to the Constitution, the Quezon City Charter, the Local
Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely
legal both petitioners and respondent agreed to the rendition of a
judgment on the pleadings. The respondent court, therefore, rendered
the decision declaring Section 9 of Ordinance No. 6118, S-64 null and
void.
A motion for reconsideration having been denied, the City Government
and City Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a
valid and reasonable exercise of police power and that the land is
taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is
authorized under its charter, in the exercise of local police power, " to
make such further ordinances and resolutions not repugnant to law as
may be necessary to carry into effect and discharge the powers and
duties conferred by this Act and such as it shall deem necessary and
proper to provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort and convenience of the
city and the inhabitants thereof, and for the protection of property
therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that
the taking or confiscation of property is obvious because the
questioned ordinance permanently restricts the use of the property
such that it cannot be used for any reasonable purpose and deprives
the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not
available as a source of power for the taking of the property in this
case because it refers to "the power of promoting the public welfare by
restraining and regulating the use of liberty and property." The
respondent points out that if an owner is deprived of his property
outright under the State's police power, the property is generally not
taken for public use but is urgently and summarily destroyed in order
to promote the general welfare. The respondent cites the case of a
nuisance per se or the destruction of a house to prevent the spread of a
conflagration.
We find the stand of the private respondent as well as the decision of
the respondent Judge to be well-founded. We quote with approval the
lower court's ruling which declared null and void Section 9 of the
questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid
exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No.
537), does not reveal any provision that would justify the
ordinance in question except the provision granting police
power to the City. Section 9 cannot be justified under the
power granted to Quezon City to tax, fix the license fee,
and regulate such other business, trades, and occupation as
may be established or practised in the City.' (Subsections 'C',
Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit
(People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of
Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A
fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but
also prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation of the
provision thereof is punishable with a fine and/or
imprisonment and that upon conviction thereof the permit to
operate and maintain a private cemetery shall be revoked or
cancelled.' The confiscatory clause and the penal provision in
effect deter one from operating a memorial park cemetery.
Neither can the ordinance in question be justified under sub-
section "t", Section 12 of Republic Act 537 which authorizes the
City Council to-
'prohibit the burial of the dead within the center of
population of the city and provide for their burial in
such proper place and in such manner as the council
may determine, subject to the provisions of the general
law regulating burial grounds and cemeteries and
governing funerals and disposal of the dead.' (Sub-sec.
(t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes
confiscation or as euphemistically termed by the respondents,
'donation'
We now come to the question whether or not Section 9 of the
ordinance in question is a valid exercise of police power. The
police power of Quezon City is defined in sub-section 00, Sec.
12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and regulations
not repugnant to law as may be necessary to carry into
effect and discharge the powers and duties conferred
 by this act and such as it shall deem necessary and
proper to provide for the health and safety, promote,
the prosperity, improve the morals, peace, good order,
comfort and convenience of the city and the
inhabitants thereof, and for the protection of property
therein; and enforce obedience thereto with such
lawful fines or penalties as the City Council may
prescribe under the provisions of subsection (jj) of this
section.
We start the discussion with a restatement of certain basic
principles. Occupying the forefront in the bill of rights is the
provision which states that 'no person shall be deprived of life,
liberty or property without due process of law' (Art. Ill, Section
1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of
government by which the state interferes with the property
rights, namely-. (1) police power, (2) eminent domain, (3)
taxation. These are said to exist independently of the
Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting
the public welfare by restraining and regulating the use of
liberty and property' (Quoted in Political Law by Tanada and
Carreon, V-11, p. 50). It is usually exerted in order to merely
regulate the use and enjoyment of property of the owner. If he
is deprived of his property outright, it is not taken for public
use but rather to destroy in order to promote the general
welfare. In police power, the owner does not recover from the
government for injury sustained in consequence thereof (12
C.J. 623). It has been said that police power is the most
essential of government powers, at times the most insistent,
and always one of the least limitable of the powers of
government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong
vs. Hernandez, 1,7995, May 31, 1957). This power embraces
the whole system of public regulation (U.S. vs. Linsuya Fan,
10 PhiL 104). The Supreme Court has said that police power is
so far-reaching in scope that it has almost become impossible
to limit its sweep. As it derives its existence from the very
existence of the state itself, it does not need to be expressed or
defined in its scope. Being coextensive with self-preservation
and survival itself, it is the most positive and active of all
governmental processes, the most essential insistent and
illimitable Especially it is so under the modern democratic
framework where the demands of society and nations have
multiplied to almost unimaginable proportions. The field and
scope of police power have become almost boundless, just as
the fields of public interest and public welfare have become
almost all embracing and have transcended human foresight.
Since the Courts cannot foresee the needs and demands of
public interest and welfare, they cannot delimit beforehand
the extent or scope of the police power by which and through
which the state seeks to attain or achieve public interest and
welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the
government and the due process clause being the broadest
station on governmental power, the conflict between this
power of government and the due process clause of the
Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power
is usually exercised in the form of mere regulation or
restriction in the use of liberty or property for the promotion of
the general welfare. It does not involve the taking or
confiscation of property with the exception of a few cases
where there is a necessity to confiscate private property in
order to destroy it for the purpose of protecting the peace and
order and of promoting the general welfare as for instance, the
confiscation of an illegally possessed article, such as opium
and firearms.
It seems to the court that Section 9 of Ordinance No. 6118,
Series of 1964 of Quezon City is not a mere police regulation
but an outright confiscation. It deprives a person of his private
property without due process of law, nay, even without
compensation.
In sustaining the decision of the respondent court, we are not
unmindful of the heavy burden shouldered by whoever challenges the
validity of duly enacted legislation whether national or local As early
as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that
the courts resolve every presumption in favor of validity and, more so,
where the ma corporation asserts that the ordinance was enacted to
promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators
Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court
speaking through the then Associate Justice and now Chief Justice
Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of
any evidence to offset the presumption of validity that attaches
to a statute or ordinance. As was expressed categorically by
Justice Malcolm 'The presumption is all in favor of validity. ...
The action of the elected representatives of the people cannot
be lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular ...
municipality and with all the facts and lances which surround
the subject and necessitate action. The local legislative body,
by enacting the ordinance, has in effect given notice that the
regulations are essential to the well-being of the people. ... The
Judiciary should not lightly set aside legislative action when
there is not a clear invasion of personal or property rights
under the guise of police regulation. (U.S. v. Salaveria (1918],
39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced
in the leading Salaveria decision in Ebona v. Daet, [1950]85
Phil. 369.)
We have likewise considered the principles earlier stated in
Case v. Board of Health supra :
... Under the provisions of municipal charters which are known
as the general welfare clauses, a city, by virtue of its police
power, may adopt ordinances to the peace, safety, health,
morals and the best and highest interests of the municipality.
It is a well-settled principle, growing out of the nature of well-
ordered and society, that every holder of property, however
absolute and may be his title, holds it under the implied
liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the enjoyment of
their property, nor injurious to the rights of the community.
An property in the state is held subject to its general
regulations, which are necessary to the common good and
general welfare. Rights of property, like all other social and
conventional rights, are subject to such reasonable limitations
in their enjoyment as shall prevent them from being injurious,
and to such reasonable restraints and regulations, established
by law, as the legislature, under the governing and controlling
power vested in them by the constitution, may think necessary
and expedient. The state, under the police power, is possessed
with plenary power to deal with all matters relating to the
general health, morals, and safety of the people, so long as it
does not contravene any positive inhibition of the organic law
and providing that such power is not exercised in such a
manner as to justify the interference of the courts to prevent
positive wrong and oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least
six (6) percent of the total area of an private cemeteries for charity
burial grounds of deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of the people. The
ordinance is actually a taking without compensation of a certain area
from a private cemetery to benefit paupers who are charges of the
municipal corporation. Instead of building or maintaining a public
cemetery for this purpose, the city passes the burden to private
cemeteries.
The expropriation without compensation of a portion of private
cemeteries is not covered by Section 12(t) of Republic Act 537, the
Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the
city and to provide for their burial in a proper place subject to the
provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337 provides
in Section 177 (q) that a Sangguniang panlungsod may "provide for
the burial of the dead in such place and in such manner as prescribed
by law or ordinance" it simply authorizes the city to provide its own
city owned land or to buy or expropriate private properties to construct
public cemeteries. This has been the law and practise in the past. It
continues to the present. Expropriation, however, requires payment of
just compensation. The questioned ordinance is different from laws
and regulations requiring owners of subdivisions to set aside certain
areas for streets, parks, playgrounds, and other public facilities from
the land they sell to buyers of subdivision lots. The necessities of
public safety, health, and convenience are very clear from said
requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the
subdivision developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare
clause or on implied powers of the municipal corporation, not on any
express provision of law as statutory basis of their exercise of power.
The clause has always received broad and liberal interpretation but
we cannot stretch it to cover this particular taking. Moreover, the
questioned ordinance was passed after Himlayang Pilipino, Inc. had
incorporated. received necessary licenses and permits and commenced
operating. The sequestration of six percent of the cemetery cannot
even be considered as having been impliedly acknowledged by the
private respondent when it accepted the permits to commence
operations.
WHEREFORE, the petition for review is hereby DISMISSED. The
decision of the respondent court is affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova,
JJ., concur.
No. L-24670. December 14, 1979.*
ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-
appellant, vs. FEATI BANK AND TRUST CO., defendant-appellee.
Appeal; The appellee has no duty to make assignments of error.—
The defendant-appellee submitted its counter-assignment of errors. In
this connection, We already had occasion to hold in Relativo v.
Castro 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.”
Same; An assignment of error can include only questions that
were raised in the trial court.—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. 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.
Local Governments; Municipalities are empowered by law to
adopt zoning ordinances and regulations.—Section 3 of R.A. No. 2264
otherwise known as the Local Autonomy Act, empowers a Municipal
Council” to adopt zoning and subdivision ordinances or regulations” 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 x x x.”
Same; An exception to the general welfare powers delegated to
municipalities is when the exercise of it’s powers will conflict with
vested rights arising from its contracts.—The only exceptions under
Section 12 are existing vested rights arising out of a contract between
a “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 no apply in the case
at bar.
Same; Police Power; Contracts; Land Registration; The police
power is superior to contractual stipulations between parties on the use
of lands sold by subdivisions even if said conditions are annotated on
the Torrens Title.—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 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.” Invariably described as “the most essential, insistent, and
illimitable of powers” and “in a sense, the greatest and most powerful
attribute of government,” 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.
Same; Same; Same; Same;—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 are, 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.
Same; Same; Same; Statutory Construction; Foreign
Jurisprudence; American decisions and authorities are not per se
controlling in the Philippines.—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.
SANTOS, J.:
An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas
& Co., Limited Partnership, from the decision of the Court of First
Instance of Rizal, Branch VI, at Pasig, Hon. Andres Reyes presiding,
which dismissed its complaint in Civil Case No. 7706, entitled,
"Ortigas & Company, Limited Partnership, plaintiff, v. Feati Bank
and Trust Company, defendant," for lack of merit.
The following facts — a reproduction of the lower court's findings,
which, in turn, are based on a stipulation of facts entered into by the
parties are not disputed. Plaintiff (formerly known as "Ortigas,
Madrigal y Cia") is a limited partnership and defendant Feati Bank
and Trust Co., is a corporation duly organized and existing in
accordance with the laws of the Philippines. Plaintiff is engaged in
real estate business, developing and selling lots to the public,
particularly the Highway Hills Subdivision along Epifanio de los
Santos Avenue, Mandaluyong, Rizal. 1
On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles
and Natividad Angeles, as vendees, entered into separate agreements
of sale on installments over two parcels of land, known as Lots Nos. 5
and 6, Block 31, of the Highway Hills Subdivision, situated at
Mandaluyong, Rizal. On July 19, 1962, the said vendees transferred
their rights and interests over the aforesaid lots in favor of one Emma
Chavez. Upon completion of payment of the purchase price, the
plaintiff executed the corresponding deeds of sale in favor of Emma
Chavez. Both the agreements (of sale on installment) and the deeds of
sale contained the stipulations or restrictions that:
1. The parcel of land subject of this deed of sale shall be used
the Buyer exclusively for residential purposes, and she shall
not be entitled to take or remove soil, stones or gravel from it
or any other lots belonging to the Seller.
2. All buildings and other improvements (except the fence)
which may be constructed at any time in said lot must be, (a)
of strong materials and properly painted, (b) provided with
modern sanitary installations connected either to the public
sewer or to an approved septic tank, and (c) shall not be at a
distance of less than two (2) meters from its boundary lines. 2
The above restrictions were later annotated in TCT Nos. 101509 and
101511 of the Register of Deeds of Rizal, covering the said lots and
issued in the name of Emma Chavez.3
Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT
Nos. 101613 and 106092 issued in its name, respectively and the
building restrictions were also annotated therein. 4 Defendant-
appellee bought Lot No. 5 directly from Emma Chavez, "free from all
liens and encumbrances as stated in Annex 'D', 5 while Lot No. 6 was
acquired from Republic Flour Mills through a "Deed of Exchange,"
Annex "E". 6 TCT No. 101719 in the name of Republic Flour Mills
likewise contained the same restrictions, although defendant-appellee
claims that Republic Flour Mills purchased the said Lot No. 6 "in good
faith. free from all liens and encumbrances," as stated in the Deed of
Sale, Annex "F" 7 between it and Emma Chavez.
Plaintiff-appellant claims that the restrictions annotated on TCT Nos.
101509, 101511, 101719, 101613, and 106092 were imposed as part of
its general building scheme designed for the beautification and
development of the Highway Hills Subdivision which forms part of the
big landed estate of plaintiff-appellant where commercial and
industrial sites are also designated or established. 8
Defendant-appellee, upon the other hand, maintains that the area
along the western part of Epifanio de los Santos Avenue (EDSA) from
Shaw Boulevard to Pasig River, has been declared a commercial and
industrial zone, per Resolution No. 27, dated February 4, 1960 of the
Municipal Council of Mandaluyong, Rizal. 9 It alleges that plaintiff-
appellant 'completely sold and transferred to third persons all lots in
said subdivision facing Epifanio de los Santos Avenue" 10 and the
subject lots thereunder were acquired by it "only on July 23, 1962 or
more than two (2) years after the area ... had been declared a
commercial and industrial zone ... 11
On or about May 5, 1963, defendant-appellee began laying the
foundation and commenced the construction of a building on Lots Nos.
5 and 6, to be devoted to banking purposes, but which defendant-
appellee claims could also be devoted to, and used exclusively for,
residential purposes. The following day, plaintiff-appellant demanded
in writing that defendant-appellee stop the construction of the
commerical building on the said lots. The latter refused to comply with
the demand, contending that the building was being constructed in
accordance with the zoning regulations, defendant-appellee having
filed building and planning permit applications with the Municipality
of Mandaluyong, and it had accordingly obtained building and
planning permits to proceed with the construction. 12
On the basis of the foregoing facts, Civil Case No. 7706, supra, was
submitted in the lower court for decision. The complaint sought,
among other things, the issuance of "a writ of preliminary injunction
... restraining and enjoining defendant, its agents, assigns, and those
acting on its or their behalf from continuing or completing the
construction of a commercial bank building in the premises ...
involved, with the view to commanding the defendant to observe and
comply with the building restrictions annotated in the defendant's
transfer certificate of title."
In deciding the said case, the trial court considered, as the
fundamental issue, whether or not the resolution of the Municipal
Council of Mandaluyong declaring Lots Nos. 5 and 6, among others, as
part of the commercial and industrial zone of the municipality,
prevailed over the building restrictions imposed by plaintiff-appellant
on the lots in question. 13 The records do not show that a writ of
preliminary injunction was issued.
The trial court upheld the defendant-appellee and dismissed the
complaint, holding that the subject restrictions were subordinate to
Municipal Resolution No. 27, supra. It predicated its conclusion on the
exercise of police power of the said municipality, and stressed that
private interest should "bow down to general interest and welfare. " In
short, it upheld the classification by the Municipal Council of the area
along Epifanio de los Santos Avenue as a commercial and industrial
zone, and held that the same rendered "ineffective and unenforceable"
the restrictions in question as against defendant-appellee.14 The trial
court decision further emphasized that it "assumes said resolution to
be valid, considering that there is no issue raised by either of the
parties as to whether the same is null and void. 15
On March 2, 1965, plaintiff-appellant filed a motion for
reconsideration of the above decision, 16 which motion was opposed by
defendant-appellee on March 17, 1965.17 It averred, among others, in
the motion for reconsideration that defendant- appellee "was duty
bound to comply with the conditions of the contract of sale in its favor,
which conditions were duly annotated in the Transfer Certificates of
Title issued in her (Emma Chavez) favor." It also invited the trial
court's attention to its claim that the Municipal Council had (no)
power to nullify the contractual obligations assumed by the defendant
corporation." 18
The trial court denied the motion for reconsideration in its order of
March 26, 1965. 19
On April 2, 1965 plaintiff-appellant filed its notice of appeal from the
decision dismissing the complaint and from the order of March 26,
1965 denying the motion for reconsideration, its record on appeal, and
a cash appeal bond." 20On April 14, the appeal was given due
course 21 and the records of the case were elevated directly to this
Court, since only questions of law are raised. 22
Plaintiff-appellant alleges in its brief that the trial court erred —
I. When it sustained the view that Resolution No. 27, series of
1960 of the Municipal Council of Mandaluyong, Rizal declaring
Lots Nos. 5 and 6, among others, as part of the commercial and
industrial zone, is valid because it did so in the exercise of its
police power; and
II. When it failed to consider whether or not the Municipal
Council had the power to nullify the contractual obligations
assumed by defendant-appellee and when it did not make a
finding that the building was erected along the property line,
when it should have been erected two meters away from said
property line. 23
The defendant-appellee submitted its counter-assignment of errors. In
this connection, We already had occasion to hold in Relativo v.
Castro 24 that "(I)t is not incumbent on the appellee, who occupies a
purely defensive position, and is seeking no affirmative relief, to make
assignments of error, "
The only issues to be resolved, therefore, are: (1) whether Resolution
No. 27 s-1960 is a valid exercise of police power; and (2) whether the
said Resolution can nullify or supersede the contractual obligations
assumed by defendant-appellee.
1. The contention that the trial court erred in sustaining the validity
of Resolution No. 27 as an exercise of police power is without merit. In
the first place, the validity of the said resolution was never questioned
before it. The rule is that the question of law or of fact which may be
included in the appellant's assignment of errors must be those which
have been raised in the court below, and are within the issues framed
by the parties. 25 The object of requiring the parties to present all
questions and issues to the lower court before they can be presented to
the appellate court is to enable the lower court to pass thereon, so that
the appellate court upon appeal may determine whether or not such
ruling was erroneous. The requirement is in furtherance of justice in
that the other party may not be taken by surprise. 26 The rule against
the practice of blowing "hot and cold" by assuming one position in the
trial court and another on appeal will, in the words of Elliot, prevent
deception. 27 For it is well-settled that issues or defenses not
raised 28 or properly litigated 29 or pleaded 30 in the Court below
cannot be raised or entertained on appeal.
In this particular case, the validity of the resolution was admitted at
least impliedly, in the stipulation of facts below. when plaintiff-
appellant did not dispute the same. The only controversy then as
stated by the trial court was whether or not the resolution of the
Municipal Council of Mandaluyong ... which declared lots Nos. 4 and 5
among others, as a part of the commercial and industrial zone of the
municipality, prevails over the restrictions constituting as
encumbrances on the lots in question. 31 Having admitted the validity
of the subject resolution below, even if impliedly, plaintiff-appellant
cannot now change its position on appeal.
But, assuming arguendo that it is not yet too late in the day for
plaintiff-appellant to raise the issue of the invalidity of the municipal
resolution in question, We are of the opinion that its posture is
unsustainable. Section 3 of R.A. No. 2264, otherwise known as the
Local Autonomy Act," 32 empowers a Municipal Council "to adopt
zoning and subdivision ordinances or regulations"; 33 for the
municipality. Clearly, the law does not restrict the exercise of the
power through an ordinance. Therefore, granting that Resolution No.
27 is not an ordinance, it certainly is a regulatory measure within the
intendment or ambit of the word "regulation" under the provision. As
a matter of fact the same section declares that the power exists "(A)ny
provision of law to the contrary notwithstanding ... "
An examination of Section 12 of the same law 34 which prescribes the
rules for its interpretation likewise reveals that the implied power of a
municipality should be "liberally construed in its favor" and that
"(A)ny fair and reasonable doubt as to the existence of the power
should be interpreted in favor of the local government and it shall be
presumed to exist." The same section further mandates that the
general welfare clause be liberally interpreted in case of doubt, so as to
give more power to local governments in promoting the economic
conditions, social welfare and material progress of the people in the
community. The only exceptions under Section 12 are existing vested
rights arising out of a contract between "a province, city or
municipality on one hand and a third party on the other," in which
case the original terms and provisions of the contract should govern.
The exceptions, clearly, do not apply in the case at bar.
2. With regard to the contention that said resolution cannot nullify the
contractual obligations assumed by the defendant-appellee – referring
to the restrictions incorporated in the deeds of sale and later in the
corresponding Transfer Certificates of Title issued to defendant-
appellee – it should be stressed, that while non-impairment of
contracts is constitutionally guaranteed, the rule is not absolute, since
it has to be reconciled with the legitimate exercise of police power, i.e.,
"the power to prescribe regulations to promote the health, morals,
peace, education, good order or safety and general welfare of the
people. 35 Invariably described as "the most essential, insistent, and
illimitable of powers" 36 and "in a sense, the greatest and most
powerful attribute of government, 37 the exercise of the power may be
judicially inquired into and corrected only if it is capricious,
'whimsical, unjust or unreasonable, there having been a denial of due
process or a violation of any other applicable constitutional
guarantee. 38 As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et al. 39 police
power "is elastic and must be responsive to various social conditions; it
is not, confined within narrow circumscriptions of precedents resting
on past conditions; it must follow the legal progress of a democratic
way of life." We were even more emphatic in Vda. de Genuino vs. The
Court of Agrarian Relations, et al., 40 when We declared: "We do not
see why public welfare when clashing with the individual right to
property should not be made to prevail through the state's exercise of
its police power.
Resolution No. 27, s-1960 declaring the western part of highway 54,
now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard
to the Pasig River as an industrial and commercial zone, was
obviously passed by the Municipal Council of Mandaluyong, Rizal in
the exercise of police power to safeguard or promote the health, safety,
peace, good order and general welfare of the people in the locality,
Judicial notice may be taken of the conditions prevailing in the area,
especially where lots Nos. 5 and 6 are located. The lots themselves not
only front the highway; industrial and commercial complexes have
flourished about the place. EDSA, a main traffic artery which runs
through several cities and municipalities in the Metro Manila area,
supports an endless stream of traffic and the resulting activity, noise
and pollution are hardly conducive to the health, safety or welfare of
the residents in its route. Having been expressly granted the power to
adopt zoning and subdivision ordinances or regulations, the
municipality of Mandaluyong, through its Municipal 'council, was
reasonably, if not perfectly, justified under the circumstances, in
passing the subject resolution.
The scope of police power keeps expanding as civilization advances,
stressed this Court, speaking thru Justice Laurel in the leading case
of Calalang v. Williams et al., 41 Thus-
As was said in the case of Dobbins v. Los Angeles (195 US 223,
238 49 L. ed. 169), 'the right to exercise the police power is a
continuing one, and a business lawful today may in the future,
because of changed situation, the growth of population or other
causes, become a menace to the public health and welfare, and
be required to yield to the public good.' And in People v. Pomar
(46 Phil. 440), it was observed that 'advancing civilization is
bringing within the scope of police power of the state today
things which were not thought of as being with in such power
yesterday. The development of civilization), the rapidly
increasing population, the growth of public opinion, with an
increasing desire on the part of the masses and of the
government to look after and care for the interests of the
individuals of the state, have brought within the police power
many questions for regulation which formerly were not so
considered. 42 (Emphasis, supplied.)
Thus, the state, in order to promote the general welfare, may interfere
with personal liberty, with property, and with business and
occupations. Persons may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort health and prosperity
of the state 43 and to this fundamental aim of our Government, the
rights of the individual are subordinated. 44
The need for reconciling the non-impairment clause of the
Constitution and the valid exercise of police power may also be
gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo,
speaking for the Court, resolved the conflict "between one welfare and
another, between particular and general, thus —
Nor is the concept of the general welfare static. Needs that
were narrow or parochial a century ago may be interwoven in
our day with the well-being of the nation What is critical or
urgent changes with the times. 46
The motives behind the passage of the questioned resolution being
reasonable, and it being a " legitimate response to a felt public
need," 47 not whimsical or oppressive, the non-impairment of contracts
clause of the Constitution will not bar the municipality's proper
exercise of the power. Now Chief Justice Fernando puts it aptly when
he declared: "Police power legislation then is not likely to succumb to
the challenge that thereby contractual rights are rendered
nugatory." 48
Furthermore, We restated in Philippine American Life Ins. Co. v.
Auditor General49 that laws and reservation of essential attributes of
sovereign power are read into contracts agreed upon by the parties.
Thus —
Not only are existing laws read into contracts in order to fix
obligations as between the parties, but the reservation of
essential attributes of sovereign power is also read into
contracts as a postulate of the legal order. The policy of
protecting contracts against impairments presupposes the
maintenance of a government by virtue of which contractual
relations are worthwhile – a government which retains
adequate authority to secure the peace and good order of
society.
Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial
Relations, 50 through Justice J.B.L. Reyes, that ... the law forms part
of, and is read into, every contract, unless clearly excluded therefrom
in those cases where such exclusion is allowed." The decision
in Maritime Company of the Philippines v. Reparations
Commission, 51 written for the Court by Justice Fernando, now Chief
Justice, restates the rule.
One last observation. Appellant has placed unqualified reliance on
American jurisprudence and authorities 52 to bolster its theory that
the municipal resolution in question cannot nullify or supersede the
agreement of the parties embodied in the sales contract, as that, it
claims, would impair the obligation of contracts in violation of the
Constitution. Such reliance is misplaced.
In the first place, the views set forth in American decisions and
authorities are not per se controlling in the Philippines, the laws of
which must necessarily be construed in accordance with the intention
of its own lawmakers and such intent may be deduced from the
language of each law and the context of other local legislation related
thereto. 53 and Burgess, et al v. Magarian, et al., 55 two Of the cases
cited by plaintiff-appellant, lend support to the conclusion reached by
the trial court, i.e. that the municipal resolution
supersedes/supervenes over the contractual undertaking between the
parties. Dolan v. Brown, states that "Equity will not, as a rule, enforce
a restriction upon the use of property by injunction where the property
has so changed in character and environment as to make it unfit or
unprofitable for use should the restriction be enforced, but will, in such
a case, leave the complainant to whatever remedy he may have at
law. 56 (Emphasis supplied.) Hence, the remedy of injunction in Dolan
vs. Brown was denied on the specific holding that "A grantor may
lawfully insert in his deed conditions or restrictions which are not
against public policy and do not materially impair the beneficial
enjoyment of the estate. 57 Applying the principle just stated to the
present controversy, We can say that since it is now unprofitable, nay
a hazard to the health and comfort, to use Lots Nos. 5 and 6 for
strictly residential purposes, defendants- appellees should be
permitted, on the strength of the resolution promulgated under the
police power of the municipality, to use the same for commercial
purposes. In Burgess v. Magarian et al. it was, held that "restrictive
covenants running with the land are binding on all subsequent
purchasers ... " However, Section 23 of the zoning ordinance involved
therein contained a proviso expressly declaring that the ordinance was
not intended "to interfere with or abrogate or annul any easements,
covenants or other agreement between parties." 58 In the case at bar,
no such proviso is found in the subject resolution.
It is, therefore, clear that even if the subject building restrictions were
assumed by the defendant-appellee as vendee of Lots Nos. 5 and 6, in
the corresponding deeds of sale, and later, in Transfer Certificates of
Title Nos. 101613 and 106092, the contractual obligations so assumed
cannot prevail over Resolution No. 27, of the Municipality of
Mandaluyong, which has validly exercised its police power through the
said resolution. Accordingly, the building restrictions, which declare
Lots Nos. 5 and 6 as residential, cannot be enforced.
IN VIEW OF THE FOREGOING, the decision appealed from,
dismissing the complaint, is hereby AFFIRMED. "without
pronouncement as to costs.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez, Guerrero, De Castro
and Melencio-Herrera, JJ., concur.
Teehankee * and Aquino,JJ., took no part.
Nos. L-60549, 60553 to 60555. October 26, 1983.* time and according to place. To freeze specific programs like tourism
into express constitutional provisions would make the Constitution
HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona)
more prolix than a bulky code and require of the framers a prescience
ANASTACIO C. CABILAO, HEIRS OF CIPRIANO CABILAO
beyond Delphic proportions. The particular mention in the
(represented by Jose Cabilao) MODESTA CABILAO, HEIRS OF
Constitution of agrarian reform and the transfer of utilities and other
ROMAN CABUENAS (represented by Alberto Cabuenas), AGRIPINO
private enterprises to public ownership merely underscores the
GABISAY and PRUDENCIA MABINI, ANTONIO LABRADOR and
magnitude of the problems sought to be remedied by these programs.
LUCIA GABISAY, GERONIMO MABINI and MARCELINA SABAL,
They do not preclude nor limit the exercise of the power of eminent
INOCENCIO MABINI and ARSENIA REYES, PATRICIO MABINI
domain for such purposes like tourism and other development
and GREGORIA BORRES, ANICETO GADAPAN and MAXIMA
programs.
GABISAY, BARTOLOME MAGNO and CALINECA E. MAGNO,
ALBERTO CABUENAS, NARCISO CABUENAS and VICTORIA Same; Same; Requisites of eminent domain.—The constitutional
CABUENAS, EUTIQUIOSENO, HEIRS OF ESPERIDION restraints are public use and just compensation.
CABUENAS (represented by Alberto Cabuenas), MAXIMINA
Same; Same; The restrictive view of the term “public use” cannot
NAVARO, SULPICIO NAVARO, EDUARDO NAVARO,
be adopted in the Philippines which does not have big and correctly
MARTINIANO ROMA (in representation of Arcadio Mabini,
located public lands and which has never been a laissez-faire State.—
deceased), MARTIN SENO, FAUSTO ARDA, MAXIMA CABILAO,
The restrictive view of public use may be appropriate for a nation
ESTRELLA SENO, EDUVEGIS S. CABILAO, ROSARIO CABILAO,
which circumscribes the scope of government activities and public
MINORS DANILO, SOCORRO, JOSEFINA and MARITES, all
concerns and which possesses big and correctly located public lands
surnamed Cabilao, JUAN BORRES(represented by Francisca
that obviate the need to take private property for public purposes.
Borres), RAMON JABADAN, JESUS ALIPAR and LEONILA
Neither circumstance applies to the Philippines. We have never been a
KABAHAR, ANTONIO LABRADOR, HEIRS OF NICASIO GABISAY
laissez faire State. And the necessities which impel the exertion of
(represented by Arsenio Gabisay), PACIFICO LABRADOR,
sovereign power are all too often found in areas of scarce public land
DEMETRIO LABRADOR and FRUCTOSA TABURA, VENANCIO
or limited government resources.
DEL MAR, MARINO DEL MAR, HEIRS OF TEODORA ARCILLO
(represented by Brigida Arcillo) DIONISIA GABUNADA, HEIRS OF Same; Same; Judiciary has to defer liberally to legislative
BUENAVENTURA FRANCISCO (represented by Felicidad Sadaya discretion in the review of programs for economic development and
Francisco), HEIRS OF VICTORIA C. CABUENAS (represented by social progress.—Certain aspects of parliamentary government were
Alberto Cabuenas) HEIRS OF CIPRIANO GABUNADA (represented introduced by the 1973 amendments to the Constitution with further
by Claudio Gabunada), petitioners, vs. HON. JUAN Y. REYES, modifications in the 1976 and 1981 amendments. Insofar as the
Executive Judge and Presiding Judge of Branch I, COURT OF FIRST executive and legislative departments are concerned, the traditional
INSTANCE OF CEBU, and the PHILIPPINE TOURISM concept of checks and balances in a presidential form was considerably
AUTHORITY, respondents. modified to remove some roadblocks in the expeditious
implementation of national policies. There was no such change for the
Constitutional Law; Statutory Construction; The State’s power of
judiciary. We remain as a checking and balancing department even as
eminent domain extends to the expropriation of land for tourism
all strive to maintain respect for constitutional boundaries. At the
purposes although this specific objective is not expressed in the
same time, the philosophy of coordination in the pursuit of
Constitution.—The petitioners look for the word “tourism” in the
developmental goals implicit in the amendments also constrains the
Constitution. Understandably the search would be in vain. The policy
judiciary to defer to legislative discretion in the judicial review of
objectives of the framers can be expressed only in general terms such
programs for economic development and social progress unless a clear
as social justice, local autonomy, conservation and development of the
case of constitutional infirmity is established. We cannot stop the
national patrimony, public interest, and general welfare, among
legitimate exercise of power on an invocation of grounds better left
others. The programs to achieve these objectives vary from time to
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.
Same; Same; “Public use” does not mean “use by the public” in
expropriation cases.—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.
Same; Same; Expropriation of several barangays for provocation
of tourism and construction of sports and hotel complex constitutes
expropriation for “public use.”—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 and 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.
Same; Same; Petitioners failed to show that area being
expropriated is a land reform area. Only 8,970 square meters of 283
hectares affected is part of Operation 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.
Same; Same; Contract clause cannot bar exercise of police
power.—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
estop the legislature from enacting laws intended for the public good.”
Same; Same; Government may take immediate possession of land
subject to expropriation proceedings upon deposit of 10% of its value.—
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.
Same; Same; Agrarian Law; Pres. Decree No. 583 which penalizes
forcible ejectment of agricultural tenants has nothing to do with and
does not cover expropriation cases instituted by the government.—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 tenanted 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.
GUTIERREZ, JR., J.:
This is a petition for certiorari with preliminary injunction challenging
the constitutionality of Presidential Decree No. 564, the Revised
Charter of the Philippine Tourism Authority, and Proclamation No.
2052 declaring the barangays of Sibugay, Malubog, Babag and Sirao
including the proposed Lusaran Dam in the City of Cebu and in the
municipalities of Argao and Dalaguete in the province of Cebu as
tourist zones. The petitioners ask that we restrain respondent Court of
First Instance of Cebu and the Philippine Tourism Authority (PTA)
from enforcing and implementing the writs of possession issued in four
(4) expropriation cases filed by PTA against the petitioners: Civil
Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the Court of
First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4) Complaints with the
Court of First Instance of Cebu City for the expropriation of some 282
hectares of rolling land situated in barangays Malubog and Babag,
Cebu City, under PTA's express authority "to acquire by purchase, by
negotiation or by condemnation proceedings any private land within
and without the tourist zones" for the purposes indicated in Section 5,
paragraph B(2), of its Revised Charter (PD 564), more specifically, for
the development into integrated resort complexes of selected and well-
defined geographic areas with potential tourism value. As uniformly
alleged in the complaints, the purposes of the expropriation are:
xxx xxx xxx
V
Plaintiff, in line with the policy of the government to promote
tourism and development of tourism projects will construct in
Barangays Malubog, Busay and Babag, all of Cebu City, a
sports complex (basketball courts, tennis courts, volleyball
courts, track and field, baseball and softball diamonds, and
swimming pools), clubhouse, gold course, children's
playground and a nature area for picnics and horseback riding
for the use of the public.
The development plan, covering approximately 1,000 hectares,
includes the establishment of an electric power grid in the area
by the National Power Corporation, thus assuring the supply
of electricity therein for the benefit of the whole community.
Deep wells will also be constructed to generate water supply
within the area. Likewise, a complex sewerage and drainage
system will be devised and constructed to protect the tourists
and nearby residents from the dangers of pollution.
Complimentary and support facilities for the project will be
constructed, including public rest houses, lockers, dressing
rooms, coffee shops, shopping malls, etc. Said facilities will
create and offer employment opportunities to residents of the
community and further generate income for the whole of Cebu
City.
Plaintiff needs the property above described which is directly
covered by the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their
respective Opposition with Motion to Dismiss and/or Reconsideration.
The defendants in Civil Case No. R-19562 filed a manifestation
adopting the answer of defendants in Civil Case No. R-19864. The
defendants, now petitioners, had a common allegation in that the
taking is allegedly not impressed with public use under the
Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the
issue of public use, that there is no specific constitutional provision
authorizing the taking of private property for tourism purposes; that
assuming that PTA has such power, the intended use cannot be
paramount to the determination of the land as a land reform area;
that limiting the amount of compensation by Legislative fiat is
constitutionally repugnant; and that since the land is under the land
reform program, it is the Court of Agrarian Relations and not the
Court of First Instance that has jurisdiction over the expropriation
cases.
The Philippine Tourism Authority having deposited with The
Philippine National Bank, Cebu City Branch, an amount equivalent to
10% of the value of the properties pursuant to Presidential Decree No.
1533. the lower court issued separate orders authorizing PTA to take
immediate possession of the premises and directing the issuance of
writs of possession.
On May 25, 1982, petitioners filed this petition questioning the orders
of the respondent Judge, The respondents have correctly restated the
grounds in the petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the
Constitution does not provide for the expropriation of private
property for tourism or other related purposes;
B. The writs of possession or orders authorizing PTA to take
immediate possession is premature because the "public use"
character of the taking has not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent
domain law;
D. The properties in question have been previously declared a
land reform area; consequently, the implementation of the
social justice pro- ,vision of the Constitution on agrarian
reform is paramount to the right of the State to expropriate for
the purposes intended;
E. Proclamation No. 2052 declaring certain barangays in Cebu
City, which include the lands subject of expropriation as
within a tourist zone, is unconstitutional for it impairs the
obligation of contracts; "F. Since the properties are within a
land reform area, it is the Court of Agrarian Relations, not the
lower court, that has jurisdiction pursuant to Pres. Decree No.
946;
F. The forcible ejectment of defendants from the premises
constitutes a criminal act under Pres. Decree No. 583;
In their memorandum, the petitioners have summarized the issues as
follows:
I. Enforcement of the Writ of Possession is Premature:
II. Presidential Decree 564 Amending Presidential Decree l89
is Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore,
Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered
by the Land Reform Program Violates the Constitution:
V. Presidential Proclamation 2052 is Unconstitutional:
VI. Presidential Decree No 1533 is Unconstitutional:
VII. The Court of First Instance has no Jurisdiction:
VIII. The Filing of the Present Petition is not Premature.
The issues raised by the petitioners revolve around the proposition
that the actions to expropriate their properties are constitutionally
infirm because nowhere in the Constitution can a provision be found
which allows the taking of private property for the promotion of
tourism.
The petitioners' arguments in their pleadings in support of the above
proposition are subsumed under the following headings:
1. Non-compliance with the "public use" requirement under
the eminent domain provision of the Bill of Rights.
2. Disregard of the land reform nature of the property being
expropriated.
3. Impairment of the obligation of contracts.
There are three provisions of the Constitution which directly provide
for the exercise of the power of eminent domain. Section 2, Article IV
states that private property shall not be taken for public use without
just compensation. Section 6, Article XIV allows the State, in the
interest of national welfare or defense and upon payment of just
compensation to transfer to public ownership, utilities and other
private enterprises to be operated by the government. Section 13,
Article XIV states that the Batasang Pambansa may authorize upon
payment of just compensation the expropriation of private lands to be
subdivided into small lots and conveyed at cost to deserving citizens.
While not directly mentioning the expropriation of private properties
upon payment of just compensation, the provisions on social justice
and agrarian reforms which allow the exercise of police power together
with the power of eminent domain in the implementation of
constitutional objectives are even more far-reaching insofar as taking
of private property is concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social justice to ensure the
dignity, welfare, and security of all the people. Towards its
end, the State shall regulate the acquisition, ownership, use,
enjoyment, and disposition of private property, and equitably
diffuse property ownership and profits.
 xxx xxx xxx
Section 12, Article XIV provides:
See. 12. The State shall formulate and implement an agrarian
reform program aimed at emancipating the tenant from the
bondage of the soil and achieving the goals enunciated in this
Constitution.
The equitable diffusion of property ownership in the promotion of
social justice implies the exercise, whenever necessary, of the power to
expropriate private property. Likewise there can be no meaningful
agrarian reform program unless the power to expropriate is utilized.
We cite all the above provisions on the power to expropriate because of
the petitioners' insistence on a restrictive view of the eminent domain
provision. The thrust of all constitutional provisions on expropriation
is in the opposite direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus (40
Phil. 550) categorized the restrictive view as wholly erroneous and
based on a misconception of fundamentals.
The petitioners look for the word "tourism" in the Constitution.
Understandably the search would be in vain. The policy objectives of
the framers can be expressed only in general terms such as social
justice, local autonomy, conservation and development of the national
patrimony, public interest, and general welfare, among others. The
programs to achieve these objectives vary from time to time and
according to place, To freeze specific programs like Tourism into
express constitutional provisions would make the Constitution more
prolix than a bulky code and require of the framers a prescience
beyond Delphic proportions. The particular mention in the
Constitution of agrarian reform and the transfer of utilities and other
private enterprises to public ownership merely underscores the
magnitude of the problems sought to be remedied by these programs.
They do not preclude nor limit the exercise of the power of eminent
domain for such purposes like tourism and other development
programs.
In the leading case of Visayan Refining Co. v. Camus (supra), this
Court emphasized that the power of eminent domain is inseparable
from sovereignty being essential to the existence of the State and
inherent in government even in its most primitive forms. The only
purpose of the provision in the Bill of Rights is to provide some form of
restraint on the sovereign power. It is not a grant of authority -
The power of eminent domain does not depend for its existence
on a specific grant in the constitution. It is inherent in
sovereignty and exists in a sovereign state without any
recognition of it in the constitution. The provision found in
most of the state constitutions relating to the taking of
property for the public use do not by implication grant the
power to the government of the state, but limit a power which
would otherwise be without limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that
"public use" means literally use by the public and that "public use" is
not synonymous with "public interest", "public benefit", or "public
welfare" and much less "public convenience. "
The petitioners face two major obstacles. First, their contention which
is rather sweeping in its call for a retreat from the public welfare
orientation is unduly restrictive and outmoded. Second, no less than
the lawmaker has made a policy determination that the power of
eminent domain may be exercised in the promotion and development
of Philippine tourism.
The restrictive view of public use may be appropriate for a nation
which circumscribes the scope of government activities and public
concerns and which possesses big and correctly located public lands
that obviate the need to take private property for public purposes.
Neither circumstance applies to the Philippines. We have never been a
laissez faire State, And the necessities which impel the exertion of
sovereign power are all too often found in areas of scarce public land
or limited government resources.
Certain aspects of parliamentary government were introduced by the
1973 amendments to the Constitution with further modifications in
the 1976 and 1981 amendments. Insofar as the executive and
legislative departments are concerned, the traditional concept of
checks and balances in a presidential form was considerably modified
to remove some roadblocks in the expeditious implementation of
national policies. There was no such change for the judiciary. We
remain as a checking and balancing department even as all strive to
maintain respect for constitutional boundaries. At the same time, the
philosophy of coordination in the pursuit of developmental goals
implicit in the amendments also constrains in the judiciary to defer to
legislative discretion iii the judicial review of programs for economic
development and social progress unless a clear case of constitutional
infirmity is established. We cannot stop the legitimate exercise of
power on an invocation of grounds better left interred in a bygone age
and time.* As we review the efforts of the political departments to
bring about self-sufficiency, if not eventual abundance, we continue to
maintain the liberal approach because the primary responsibility and
the discretion belong to them.
There can be no doubt that expropriation for such traditions' purposes
as the construction of roads, bridges, ports, waterworks, schools,
electric and telecommunications systems, hydroelectric power plants,
markets and slaughterhouses, parks, hospitals, government office
buildings, and flood control or irrigation systems is valid. However,
the concept of public use is not limited to traditional purposes. Here as
elsewhere the Idea that "public use" is strictly limited to clear cases of
"use by the public" has been discarded.
In the United States, the rule was enunciated in Berman v.
Parker (348 U.S. 25; 99 L. ed. 27) as follows:
We do not sit to determine whether a particular housing
project is or is not desirable. The concept of the public welfare
is broad and inclusive. See DayBrite Lighting, Inc. v. Missouri,
342 US 421, 424, 96 L ed 469, 472, 72 S Ct 405. The values it
represents are spiritual as well as physical, aesthetic as well
as monetary. It is within the power of the legislature to
determine that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as well as
carefully patrolled. In the present case, the Congress and its
authorized agencies have made determinations that take into
account a wide variety of values. It is not for us to reappraise
them. If those who govern the District of Columbia decide that
the Nation's Capital should be beautiful as well as sanitary,
there is nothing in the Fifth Amendment that stands in the
way.
Once the object is within the authority of Congress, the right
to realize it through the exercise of eminent domain is clear.
For the power of eminent domain is merely the means to the
end. See Luxton v. North River Bridge Co. 153 US 525, 529,
530, 38 L ed 808, 810, 14 S Ct 891; United States v.
Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580,
16 S Ct 427.
In an earlier American case, where a village was isolated from the rest
of North Carolina because of the flooding of the reservoir of a dam
thus making the provision of police, school, and health services
unjustifiably expensive, the government decided to expropriate the
private properties in the village and the entire area was made part of
an adjoining national park. The district court and the appellate court
ruled against the expropriation or excess condemnation. The Court of
Appeals applied the "use by the public" test and stated that the only
land needed for public use was the area directly flooded by the
reservoir. The village may have been cut off by the dam but to also
condemn it was excess condemnation not valid under the "Public use"
requirement. The U.S. Supreme Court in United States ex rel TVA v.
Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower
courts. It stated:
The Circuit Court of Appeals, without expressly relying on a
compelling rule of construction that would give the restrictive
scope to the T.V.A. Act given it by the district court, also
interpreted the statute narrowly. It first analyzed the facts by
segregating the total problem into distinct parts, and thus
came to the conclusion that T.V.A.'s purpose in condemning
the land in question was only one to reduce its liability arising
from the destruction of the highway. The Court held that use
of the lands for that purpose is a "private" and not a "public
use" or, at best, a "public use" not authorized by the statute.
we are unable to agree with the reasoning and conclusion of
the Circuit Court of Appeals.
We think that it is the function of Congress to decide what
type of taking is for a public use and that the agency
authorized to do the taking may do so to the still extent of its
statutory authority, United States v. Gettysburg Electric R.
Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of the judicial power to
determine what is a "public use" in Fourteenth Amendment
controversies, this Court has said that when Congress has
spoken on this subject "Its decision is entitled to deference
until it is shown to involve an impossibility." Old Dominion
Land Co. v. United States, 269, US 55, 66, 70 L ed 162, 46 S Ct
39. Any departure from this judicial restraint would result in
courts deciding on what is and is not a governmental function
 and in their invalidating legislation on the basis of their view The petitioners have also failed to overcome the deference that is
on that question at the moment of decision, a practice which appropriately accorded to formulations of national policy expressed in
has proved impracticable in other fields. See Case v. Bowles legislation. The rule in Berman u. Parker (supra) of deference to
decided February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S legislative policy even if such policy might mean taking from one
Ct 438. New York v. United States, 326 US 572 ante 326, 66 S private person and conferring on another private person applies as
Ct 310). We hold that the T.V.A. took the tracts here involved well as in the Philippines.
for a public purpose, if, as we think is the case, Congress
... Once the object is within the authority of Congress, the
authorized the Authority to acquire, hold, and use the lands to
means by which it will be attained is also for Congress to
carry out the purposes of the T.V.A. Act.
determine. Here one of the means chosen is the use of private
In the Philippines, Chief Justice Enrique M. Fernando has aptly enterprise for redevelopment of the area. Appellants argue
summarized the statutory and judicial trend as follows: that this makes the project a taking from one businessman for
the benefit of another businessman. But the means of
The taking to be valid must be for public use. There was a time
executing the project are for Congress and Congress alone to
when it was felt that a literal meaning should be attached to
determine, once the public purpose has been established. Selb
such a requirement. Whatever project is undertaken must be
Luxton v. North River Bridge Co. (US) supra; cf. Highland v.
for the public to enjoy, as in the case of streets or parks.
Russel Car & Snow Plow Co. 279 US 253, 73 L ed 688, 49 S Ct
Otherwise, expropriation is not allowable. It is not any more.
314. The public end may be as well or better served through an
As long as the purpose of the taking is public, then the power
agency of private enterprise than through a department of
of eminent domain comes into play. As just noted, the
government-or so the Congress might conclude. We cannot say
constitution in at least two cases, to remove any doubt,
that public ownership is the sole method of promoting the
determines what is public use. One is the expropriation of
public purposes of community redevelopment projects. What
lands to be subdivided into small lots for resale at cost to
we have said also disposes of any contention concerning the
individuals. The other is in the transfer, through the exercise
fact that certain property owners in the area may be permitted
of this power, of utilities and other private enterprise to the
to repurchase their properties for redevelopment in harmony
government. It is accurate to state then that at present
with the over-all plan. That, too, is a legitimate means which
whatever may be beneficially employed for the general welfare
Congress and its agencies may adopt, if they choose. (Berman
satisfies the requirement of public use. (Fernando, The
v. Parker, 99 L ed 38, 348 US 33, 34)
Constitution of the Philippines, 2nd ed., pp. 523-524)
An examination of the language in the 1919 cases of City of Manila v.
The petitioners' contention that the promotion of tourism is not "public
Chinese Community of Manila (40 Phil, 349) and Visayan Refining Co.
use" because private concessioners would be allowed to maintain
vs. Camus, earlier cited, shows that from the very start of
various facilities such as restaurants, hotels, stores, etc. inside the
constitutional government in our country judicial deference to
tourist complex is impressed with even less merit. Private bus firms,
legislative policy has been clear and manifest in eminent domain
taxicab fleets, roadside restaurants, and other private businesses
proceedings.
using public streets end highways do not diminish in the least bit the
public character of expropriations for roads and streets. The lease of The expressions of national policy are found in the revised charter of
store spaces in underpasses of streets built on expropriated land does the Philippine Tourism Authority, Presidential Decree No. 564:
not make the taking for a private purpose. Airports and piers catering
WHEREAS, it is the avowed aim of the government to promote
exclusively to private airlines and shipping companies are still for
Philippine tourism and work for its accelerated and balanced
public use. The expropriation of private land for slum clearance and
growth as well as for economy and expediency in the
urban development is for a public purpose even if the developed area
development of the tourism plant of the country;
is later sold to private homeowners, commercial firms, entertainment
and service companies, and other private concerns. xxx xxx xxx
 SECTION 1. Declaration of Policy. - It is hereby declared to be of the people; and that property already taken for public use may not
the policy of the State to promote, encourage, and develop be taken for another public use.
Philippine tourism as an instrument in accelerating the
We have considered the above arguments with scrupulous and
development of the country, of strengthening the country's
thorough circumspection. For indeed any claim of rights under the
foreign exchange reserve position, and of protecting Philippine
social justice and land reform provisions of the Constitution deserves
culture, history, traditions and natural beauty, internationally
the most serious consideration. The Petitioners, however, have failed
as well as domestically.
to show that the area being developed is indeed a land reform area
The power of eminent domain is expressly provided for under Section and that the affected persons have emancipation patents and
5 B(2) as follows: certificates of land transfer.
xxx xxx xxx The records show that the area being developed into a tourism
complex consists of more than 808 hectares, almost all of which is not
2. Acquisition of Private Lands, Power of Eminent Domain. —
affected by the land reform program. The portion being expropriated is
To acquire by purchase, by negotiation or by condemnation
282 hectares of hilly and unproductive land where even subsistence
proceedings any private land within and without the tourist
farming of crops other than rice and corn can hardly survive. And of
zones for any of the following reasons: (a) consolidation of
the 282 disputed hectares, only 8,970 square meters-less than one
lands for tourist zone development purposes, (b) prevention of
hectare-is affected by Operation Land Transfer. Of the 40 defendants,
land speculation in areas declared as tourist zones, (c)
only two have emancipation patents for the less than one hectare of
acquisition of right of way to the zones, (d) protection of water
land affected. And this 8,970 square meters parcel of land is not even
shed areas and natural assets with tourism value, and (e) for
within the sports complex proper but forms part of the 32 hectares
any other purpose expressly authorized under this Decree and
resettlement area where the petitioners and others similarly situated
accordingly, to exercise the power of eminent domain under its
would be provided with proper housing, subsidiary employment,
own name, which shall proceed in the manner prescribed by
community centers, schools, and essential services like water and
law and/or the Rules of Court on condemnation proceedings.
electricity-which are non-existent in the expropriated lands. We see no
The Authority may use any mode of payment which it may
need under the facts of this petition to rule on whether one public
deem expedient and acceptable to the land owners: Provided,
purpose is superior or inferior to another purpose or engage in a
That in case bonds are used as payment, the conditions and
balancing of competing public interests. The petitioners have also
restrictions set forth in Chapter III, Section 8 to 13 inclusively,
failed to overcome the showing that the taking of the 8,970 square
of this Decree shall apply.
meters covered by Operation Land Transfer forms a necessary part of
xxx xxx xxx an inseparable transaction involving the development of the 808
hectares tourism complex. And certainly, the human settlement needs
The petitioners rely on the Land Reform Program of the government
of the many beneficiaries of the 32 hectares resettlement area should
in raising their second argument. According to them, assuming that
prevail over the property rights of two of their compatriots.
PTA has the right to expropriate, the properties subject of
expropriation may not be taken for the purposes intended since they The invocation of the contracts clause has no merit. The non-
are within the coverage of "operation land transfer" under the land impairment clause has never been a barrier to the exercise of police
reform program. Petitioners claim that certificates of land transfer power and likewise eminent domain. As stated in Manigault v.
(CLT'S) and emancipation patents have already been issued to them Springs (199 U.S. 473) "parties by entering into contracts may not stop
thereby making the lands expropriated within the coverage of the land the legislature from enacting laws intended for the public good."
reform area under Presidential Decree No. 2; that the agrarian reform
The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544)
program occupies a higher level in the order of priorities than other
which involved the expropriation of land for a public plaza. The Court
State policies like those relating to the health and physical well- being
stated:
xxx xxx xxx 649; Edu v. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481; Phil.
Virginia Tobacco Administration v. Court of Industrial
... What is claimed is that there must be a showing of necessity
Relations, L-32052, July 25, 1975, 65 SCRA 416) The
for such condemnation and that it was not done in this case in
statement therefore, that there could be discerned a
support of such a view, reliance is placed on City of Manila v.
constitutional objection to a lower court applying a
Arenano Law Colleges. (85 Phil. 663 [1950]) That doctrine
Presidential Decree, when it leaves no doubt that a grantee of
itself is based on the earlier case of City of Manila v. Chinese
the power of eminent domain need not prove the necessity for
Community of Manila, (50 Phil. 349) also, like Camus, a 1919
the expropriation, carries its own refutation.
decision. As could be discerned, however, in the Arellano Law
Colleges decision. it was the antiquarian view of Blackstone xxx xxx xxx
with its sanctification of the right to one's estate on which such
The issue of prematurity is also raised by the petitioners. They claim
an observation was based. As did appear in his Commentaries:
that since the necessity for the taking has not been previously
"So great is the regard of the law for private property that it
established, the issuance of the orders authorizing the PTA to take
will not, authorize the least violation of it, even for the public
immediate possession of the premises, as well as the corresponding
good, unless there exists a very great necessity thereof." Even
writs of possession was premature.
the most , cursory glance at such well-nigh absolutist concept
of property would show its obsolete character at least for Under Presidential Decree No. 42, as amended by Presidential Decree
Philippine constitutional law. It cannot survive the test of the No. 1533, the government, its agency or instrumentality, as plaintiff in
1935 Constitution with its mandates on social justice and an expropriation proceedings is authorized to take immediate
protection to labor. (Article II, Section 5 of the 1935 possession, control and disposition of the property and the
Constitution reads: "The promotion of social justice to unsure improvements, with power of demolition, notwithstanding the
the well-being and economic security of all the people should pendency of the issues before the court, upon deposit with the
be the concern of the State." Article XI, Section 6 of the same Philippine National Bank of an amount equivalent to 10% of the value
Constitution provides: "The State shall afford protection to of the property expropriated. The issue of immediate possession has
labor, especially to working women and minors, and shall been settled in Arce v. Genato (supra). In answer to the issue:
regulate the relation between landowner and tenant, and
... whether the order of respondent Judge in an expropriation
between labor and capital in industry and in agriculture. The
case allowing the other respondent, ... to take immediate
State may provide for compulsory arbitration.") What is more,
possession of the parcel of land sought to be condemned for the
the present Constitution pays even less heed to the claims of
beautification of its public plaza, without a prior hearing to
property and rightly so. After stating that the State shall
determine the necessity for the exercise of the power of
promote social justice, it continues: "Towards this end, the
eminent domain, is vitiated by jurisdictional defect, ...
State shall regulate the acquisition, ownership, use,
enjoyment, and disposition of private property, and equitably this Court held that:
diffuse property ownership and profits." (That is the second
... It is not disputed that in issuing such order, respondent
sentence of Article II, Section 6 of the Constitution) If there is
Judge relied on Presidential Decree No. 42 issued on the 9th of
any need for explicit confirmation of what was set forth in
November, 1972. (Presidential Decree No. 42 is entitled
Presidential Decree No. 42, the above provision supplies it.
"Authorizing the Plaintiff in Eminent Domain Proceedings to
Moreover, that is merely to accord to what of late has been the
Take Possession of the Property involved Upon Depositing the
consistent course of decisions of this Court whenever property
Assessed Value for Purposes of Taxation.") The question as
rights are pressed unduly. (Cf. Alalayan v. National Power
thus posed does not occasion any difficulty as to the answer to
Corporation, L-24396, July 29, 1968, 24 SCRA 172;
be given. This petition for certiorari must fail, there being no
Agricultural Credit and Cooperative Financing Administration
showing that compliance with the Presidential Decree, which
v. Confederation of Unions, L-21484, Nov. 29, 1969, 30 SCRA
 under the Transitory Provisions is deemed a part of the law of favor of the constitutionality of a law. The courts will not set aside a
the land, (According to Article XVII, Section 3 par. (2) of the law as violative of the Constitution except in a clear case (People v.
Constitution: "All proclamations, orders, decrees, instructions Vera, 65 Phil. 56). And in the absence of factual findings or evidence to
and acts promulgated, issued, or done by the incumbent rebut the presumption of validity, the presumption prevails (Ermita-
President shall be part of the law of the land, and shall remain Malate Hotel, etc. v. Mayor of Manila, 20 SCRA 849; Morfe v. Mutuc,
valid, legal, binding, and effective even after lifting of martial 22 SCRA 424).
law or the ratification of this Constitution, unless modified,
The public respondents have stressed that the development of the 808
revoked, or superseded by subsequent proclamations. orders,
hectares includes plans that would give the petitioners and other
decrees instructions, or other acts of the incumbent President,
displaced persons productive employment, higher incomes, decent
or unless expressly and explicitly modified or repealed by the
housing, water and electric facilities, and better living standards. Our
regular National Assembly") would be characterized as either
dismissing this petition is, in part, predicated on those assurances.
an act in excess of jurisdiction or a grave abuse of discretion.
The right of the PTA to proceed with the expropriation of the 282
So we rule.
hectares already Identified as fit for the establishment of a resort
Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449- complex to promote tourism is, therefore, sustained.
50, June 9, 1980), this Court held:
WHEREFORE, the instant petition for certiorari is hereby DISMISSE
... condemnation or expropriation proceedings is in the nature D for lack of merit.
of one that is quasi-in-rem wherein the fact that the owner of
SO ORDERED.
the property is made a party is not essentially indispensable
insofar was least as it conncerns is the immediate taking of Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana,
possession of the property and the preliminary determination Escolin and Relova, JJ., concur.
of its value, including the amount to be deposited.
Aquino, J, concurs in the result.
In their last argument, the petitioners claim that a consequence of the
De Castro, J, is on leave.
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