Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-29993 October 23, 1978

LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO

R. MAGSANOC, JESUS MACARANAS, MAXIMO MANANGAN, FIDEL MONTEMAYOR,
MELCHOR VIRAY, RAMON TULAGAN, all Members of the Municipal Council of
Malasiqui in 1959, Malasiqui, Pangasinan, petitioners,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA,
ERNESTO, NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA,
and THE HONORABLE COURT OF APPEALS, respondents.

G.R. No. L-30183 October 23, 1978

MUNICIPALITY OF MALASIQUI, petitioner,

vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA,
ERNESTO, NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA,
and the Honorable COURT OF APPEALS, respondents.

Julian M. Armas, Assistant Provincial Fiscal for petitioners.

Isidro L. Padilla for respondents.

MUÑOZ PALMA, J.:

These Petitions for review present the issue of whether or not the celebration of a town fiesta
authorized by a municipal council under Sec. 2282 of the Municipal Law as embodied in the
Revised Administrative Code is a governmental or a corporate or proprietary function of the
municipality.

A resolution of that issue will lead to another, viz the civil liability for damages of the
Municipality of Malasiqui, and the members of the Municipal Council of Malasiqui, province of
Pangasinan, for a death which occurred during the celebration of the town fiesta on January
22, 1959, and which was attributed to the negligence of the municipality and its council
members.

The following facts are not in dispute:

On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution
No. 159 whereby "it resolved to manage the 1959 Malasiqui town fiesta celebration on
January 21, 22, and 23, 1959." Resolution No. 182 was also passed creating the "1959
Malasiqui 'Town Fiesta Executive Committee" which in turn organized a sub-committee on
entertainment and stage, with Jose Macaraeg as Chairman. the council appropriated the
amount of P100.00 for the construction of 2 stages, one for the "zarzuela" and another for
the cancionan Jose Macaraeg supervised the construction of the stage and as constructed
the stage for the "zarzuela" was "5-½ meters by 8 meters in size, had a wooden floor high at
the rear and was supported by 24 bamboo posts — 4 in a row in front, 4 in the rear and 5 on
each side — with bamboo braces." 1

The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui

employees of the Manila Railroad Company in Caloocan, Rizal. The troupe arrived in the
evening of January 22 for the performance and one of the members of the group was
Vicente Fontanilla. The program started at about 10:15 o'clock that evening with some
speeches, and many persons went up the stage. The "zarzuela" then began but before the
dramatic part of the play was reached, the stage collapsed and Vicente Fontanilla who was
at the rear of the stage was pinned underneath. Fontanilia was taken to tile San Carlos
General Hospital where he died in the afternoon of the following day.

The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on
September 11, 1959 to recover damages. Named party-defendants were the Municipality of
Malasiqui, the Municipal Council of Malasiqui and all the individual members of the Municipal
Council in 1959.

Answering the complaint defendant municipality invoked inter alia the principal defense that
as a legally and duly organized public corporation it performs sovereign functions and the
holding of a town fiesta was an exercise of its governmental functions from which no liability
can arise to answer for the negligence of any of its agents.

The defendant councilors inturn maintained that they merely acted as agents of the
municipality in carrying out the municipal ordinance providing for the management of the
town fiesta celebration and as such they are likewise not liable for damages as the
undertaking was not one for profit; furthermore, they had exercised due care and diligence in
implementing the municipal ordinance. 2

After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not
the defendants exercised due diligence 'm the construction of the stage. From his findings he
arrived at the conclusion that the Executive Committee appointed by the municipal council
had exercised due diligence and care like a good father of the family in selecting a
competent man to construct a stage strong enough for the occasion and that if it collapsed
that was due to forces beyond the control of the committee on entertainment, consequently,
the defendants were not liable for damages for the death of Vicente Fontanilla. The
complaint was accordingly dismissed in a decision dated July 10, 1962. 3

The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31,
1968, the Court of Appeals through its Fourth Division composed at the time of Justices
Salvador V. Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the trial court's
decision and ordered all the defendants-appellees to pay jointly and severally the heirs of
Vicente Fontanilla the sums of P12,000.00 by way of moral and actual damages: P1200.00
its attorney's fees; and the costs. 4

The case is now before Us on various assignments of errors all of which center on the
proposition stated at the sentence of this Opinion and which We repeat:
Is the celebration of a town fiesta an undertaking in the excercise of a municipality's
governmental or public function or is it or a private or proprietary character?

1. Under Philippine laws municipalities are political bodies corporate and as such ag
endowed with the faculties of municipal corporations to be exercised by and through their
respective municipal governments in conformity with law, and in their proper corporate name,
they may inter alia sue and be sued, and contract and be contracted with. 5

The powers of a municipality are twofold in character public, governmental or political on the
one hand, and corporate, private, or proprietary on the other. Governmental powers are
those exercised by the corporation in administering the powers of the state and promoting
the public welfare and they include the legislative, judicial public, and political Municipal
powers on the other hand are exercised for the special benefit and advantage of the
community and include those which are ministerial private and corporate. 6

As to when a certain activity is governmental and when proprietary or private, that is

generally a difficult matter to determine. The evolution of the municipal law in American
Jurisprudence, for instance, has shown that; none of the tests which have evolved and are
stated in textbooks have set down a conclusive principle or rule, so that each case will have
to be determined on the basis of attending circumstances.

In McQuillin on Municipal Corporations, the rule is stated thus: "A municipal corporation
proper has ... a public character as regards the state at large insofar as it is its agent in
government, and private (so-called) insofar as it is to promote local necessities and
conveniences for its own community. 7

Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme
Court of Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are two
fold. In one they exercise the right springing from sovereignty, and while in
the performance of the duties pertaining thereto, their acts are political and
governmental Their officers and agents in such capacity, though elected or
appointed by the are nevertheless public functionaries performing a public
service, and as such they are officers, agents, and servants of the state. In
the other capacity the municipalities exercise a private. proprietary or
corporate right, arising from their existence as legal persons and not as
public agencies. Their officers and agents in the performance of such
functions act in behalf of the municipalities in their corporate or in. individual
capacity, and not for the state or sovereign power. (112 N. E 994-995)

In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through
Justice Grant T. Trent, relying mainly on American Jurisprudence classified certain activities
of the municipality as governmental, e.g.: regulations against fire, disease, preservation of
public peace, maintenance of municipal prisons, establishment of schools, post-offices, etc.
while the following are corporate or proprietary in character, viz: municipal waterwork,
slaughter houses, markets, stables, bathing establishments, wharves, ferries, and
fisheries. 8 Maintenance of parks, golf courses, cemeteries and airports among others, are
also recognized as municipal or city activities of a proprietary character. 9

2. This distinction of powers becomes important for purposes of determining the liability of
the municipality for the acts of its agents which result in an injury to third persons.
If the injury is caused in the course of the performance of a governmental function or duty no
recovery, as a rule, can be. had from the municipality unless there is an existing statute on
the matter,10 nor from its officers, so long as they performed their duties honestly and in good
faith or that they did not act wantonly and maliciously. 11 In Palafox, et al., v. Province of
Ilocos Norte, et al., 1958, a truck driver employed by the provincial government of Ilocos
Norte ran over Proceto Palafox in the course of his work at the construction of a road. The
Supreme Court in affirming the trial court's dismissal of the complaint for damages held that
the province could not be made liable because its employee was in the performance of a
governmental function — the construction and maintenance of roads — and however tragic
and deplorable it may be, the death of Palafox imposed on the province no duty to pay
monetary consideration. 12

With respect to proprietary functions, the settled rule is that a municipal corporation can be
held liable to third persons ex contract 13 or ex delicto. 14

Municipal corporations are subject to be sued upon contracts and in tort. ...

xxx xxx xxx

The rule of law is a general one, that the superior or employer must answer
civilly for the negligence or want of skill of its agent or servant in the course
or fine of his employment, by which another, who is free from contributory
fault, is injured. Municipal corporations under the conditions herein stated, fall
within the operation of this rule of law, and are liable, accordingly, to civil
actions for damages when the requisite elements of liability co-exist. ...
(Dillon on Municipal Corporations, 5th ed. Sec. 1610,1647, cited in Mendoza
v. de Leon, supra. 514)

3. Coming to the cam before Us, and applying the general tests given above, We hold that
the ho of the town fiesta in 1959 by the municipality of Malsiqui Pangasinan was an exercise
of a private or proprietary function of the municipality.

Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:

Section 2282. Celebration of fiesta. — fiesta may be held in each municipality

not oftener than once a year upon a date fixed by the municipal council A
fiesta s not be held upon any other date than that lawfully fixed therefor,
except when, for weighty reasons, such as typhoons, foundations,
earthquakes, epidemics, or other public ties, the fiesta cannot be hold in the
date fixed in which case it may be held at a later date in the same year, by
resolution of the council.

This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it
does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for the special
benefit of the community and not for the general welfare of the public performed in
pursuance of a policy of the state. The mere fact that the celebration, as claimed was not to
secure profit or gain but merely to provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is not a source of income for the
nonetheless it is private undertaking as distinguished from the maintenance of public
schools, jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true
nature of an undertaking or function of a municipality; the surrounding circumstances of a
particular case are to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is governmental in essence,
otherwise. the function becomes private or proprietary in character. Easily, no overnmental
or public policy of the state is involved in the celebration of a town fiesta. 15

4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be

held liable for damages for the death of Vicente Fontanilia if that was at- tributable to the
negligence of the municipality's officers, employees, or agents.

Art. 2176, Civil Code: Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for the damage
done. . .

Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable
not only for one's own acts or omission, but also for those of persons for
whom one is responsible. . .

On this point, the Court of Appeals found and held that there was negligence.

The trial court gave credence to the testimony of Angel Novado, a witness of the defendants
(now petitioners), that a member of the "extravaganza troupe removed two principal braces
located on the front portion of the stage and u them to hang the screen or "telon", and that
when many people went up the stage the latter collapsed. This testimony was not believed
however by respondent appellate court, and rightly so. According to said defendants, those
two braces were "mother" or "principal" braces located semi-diagonally from the front ends of
the stage to the front posts of the ticket booth located at the rear of the stage and were
fastened with a bamboo twine. 16 That being the case, it becomes incredible that any person
in his right mind would remove those principal braces and leave the front portion of the stage
practically unsuported Moreover, if that did happen, there was indeed negligence as there
was lack of suspension over the use of the stage to prevent such an occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two
bamboo braces denied having done go. The Court of Appeals said "Amor by himself alone
could not have removed the two braces which must be about ten meters long and fastened
them on top of the stags for the curtain. The stage was only five and a half meters wide.
Surely, it, would be impractical and unwieldy to use a ten meter bamboo pole, much more
two poles for the stage curtain. 17

The appellate court also found that the stage was not strong enough considering that only
P100.00 was appropriate for the construction of two stages and while the floor of the
"zarzuela" stage was of wooden planks, the Post and braces used were of bamboo material
We likewise observe that although the stage was described by the Petitioners as being
supported by "24" posts, nevertheless there were only 4 in front, 4 at the rear, and 5 on each
side. Where were the rest?

The Court of Appeals thus concluded

The court a quo itself attributed the collapse of the stage to the great number
of onlookers who mounted the stage. The municipality and/or its agents had
the necessary means within its command to prevent such an occurrence.
 Having filed to take the necessary steps to maintain the safety of the stage
for the use of the participants in the stage presentation prepared in
connection with the celebration of the town fiesta, particularly, in preventing
non participants or spectators from mounting and accumulating on the stage
which was not constructed to meet the additional weight- the defendant-
appellees were negligent and are liable for the death of Vicente Fontanilla .
(pp. 30-31, rollo, L-29993)

The findings of the respondent appellate court that the facts as presented to it establish
negligence as a matter of law and that the Municipality failed to exercise the due diligence of
a good father of the family, will not disturbed by Us in the absence of a clear showing of an
abuse of discretion or a gross misapprehension of facts." 18

Liability rests on negligence which is "the want of such care as a person of ordinary
prudence would exercise under the circumstances of the case." 19

Thus, private respondents argue that the "Midas Extravaganza" which was to be performed
during the town fiesta was a "donation" offered by an association of Malasiqui employees of
the Manila Railroad Co. in Caloocan, and that when the Municipality of Malasiqui accepted
the donation of services and constructed precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect that the Municipality through its
"Committee on entertainment and stage" would build or put up a stage or platform strong
enough to sustain the weight or burden of the performance and take the necessary
measures to insure the personal safety of the participants. 20 We agree.

Quite relevant to that argument is the American case of Sanders v. City of Long Beach,
1942, which was an action against the city for injuries sustained from a fall when plaintiff was
descending the steps of the city auditorium. The city was conducting a "Know your City
Week" and one of the features was the showing of a motion picture in the city auditorium to
which the general public was invited and plaintiff Sanders was one of those who attended. In
sustaining the award for Damages in favor of plaintiff, the District Court of Appeal, Second
district, California, held inter alia that the "Know your City Week" was a "proprietary activity"
and not a "governmental one" of the city, that defendant owed to plaintiff, an invitee the duty
of exercising ordinary care for her safety, and plaintiff was entitled to assume that she would
not be exposed to a danger (which in this case consisted of lack of sufficient illumination of
the premises) that would come to her through a violation of defendant duty. 21

We can say that the deceased Vicente Fontanilla was similarly situated as Sander The
Municipality of Malasiqui resolved to celebrate the town fiesta in January of 1959; it created a
committee in charge of the entertainment and stage; an association of Malasiqui residents
responded to the call for the festivities and volunteered to present a stage show; Vicente
Fontanilla was one of the participants who like Sanders had the right to expect that he would
be exposed to danger on that occasion.

Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that
it was Jose Macaraeg who constructed the stage. The municipality acting through its
municipal council appointed Macaraeg as chairman of the sub-committee on entertainment
and in charge of the construction of the "zarzuela" stage. Macaraeg acted merely as an
agent of the Municipality. Under the doctrine of respondent superior mentioned earlier,
petitioner is responsible or liable for the negligence of its agent acting within his assigned
tasks. 22
... when it is sought to render a municipal corporation liable for the act of servants or agents,
a cardinal inquiry is, whether they are the servants or agents of the corporation. If the
corporation appoints or elects them, can control them in the discharge of their duties, can
continue or remove the can hold them responsible for the manner in which they discharge
their trust, and if those duties relate to the exercise of corporate powers, and are for the
benefit of the corporation in its local or special interest, they may justly be regarded as its
agents or servants, and the maxim of respondent superior applies." ... (Dillon on Municipal
Corporations, 5th Ed., Vol IV, p. 2879)

5. The remaining question to be resolved centers on the liability of the municipal councilors
who enacted the ordinance and created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarity liable with the municipality for
damages under Article 27 of the Civil Code which provides that d any person suffering ing
material or moral loss because a public servant or employee refuses or neglects, without just
cause to perform his official duty may file an action for damages and other relief at the
latter. 23

In their Petition for review the municipal councilors allege that the Court of Appeals erred in
ruling that the holding of a town fiesta is not a governmental function and that there was
negligence on their part for not maintaining and supervising the safe use of the stage, in
applying Article 27 of the Civil Code against them and in not holding Jose Macaraeg liable for
the collapse of the stage and the consequent death of Vicente Fontanilla. 24

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil
Code against the for this particular article covers a case of nonfeasance or non-performance
by a public officer of his official duty; it does not apply to a case of negligence or
misfeasance in carrying out an official duty.

If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are
concerned, it is because of a plain error committed by respondent court which however is not
invoked in petitioners' brief.

In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred
Ruiz Castro, held that the Supreme Court is vested with ample authority to review matters
not assigned as errors in an appeal if it finds that their consideration and resolution are
indispensable or necessary in arriving at a just decision in a given case, and that tills is
author under Sec. 7, Rule 51 of the Rules of Court. 25 We believe that this pronouncement
can well be applied in the instant case.

The Court of Appeals in its decision now under review held that the celebration of a town
fiesta by the Municipality of Malasiqui was not a governmental function. We upheld that
ruling. The legal consequence thereof is that the Municipality stands on the same footing as
an ordinary private corporation with the municipal council acting as its board of directors. It is
an elementary principle that a corporation has a personality, separate and distinct from its
officers, directors, or persons composing it 26 and the latter are not as a rule co-responsible in
an action for damages for tort or negligence culpa aquilla committed by the corporation's
employees or agents unless there is a showing of bad faith or gross or wanton negligence on
their part. 27

xxx xxx xxx

 The ordinary doctrine is that a director, merely by reason of his office, is not
personally Stable for the torts of his corporation; he Must be shown to have
personally voted for or otherwise participated in them ... Fletcher
Encyclopedia Corporations, Vol 3A Chapt 11, p. 207)

Officers of a corporation 'are not held liable for the negligence of the
corporation merely because of their official relation to it, but because of some
wrongful or negligent act by such officer amounting to a breach of duty which
resulted in an injury ... To make an officer of a corporation liable for the
negligence of the corporation there must have been upon his part such a
breach of duty as contributed to, or helped to bring about, the injury; that is to
say, he must be a participant in the wrongful act. ... (pp. 207-208, Ibid.)

xxx xxx xxx

Directors who merely employ one to give a fireworks Ambition on the

corporate are not personally liable for the negligent acts of the exhibitor. (p.
211, Ibid.)

On these people We absolve Use municipal councilors from any liability for the death of
Vicente Fontanilla. The records do not show that said petitioners directly participated in the
defective construction of the "zarzuela" stage or that they personally permitted spectators to
go up the platform.

6. One last point We have to resolve is on the award of attorney's fees by respondent court.
Petitioner-municipality assails the award.

Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation
may be granted when the court deems it just and equitable. In this case of Vicente
Fontanilla, although respondent appellate court failed to state the grounds for awarding
attorney's fees, the records show however that attempts were made by plaintiffs, now private
respondents, to secure an extrajudicial compensation from the municipality: that the latter
gave prorases and assurances of assistance but failed to comply; and it was only eight
month after the incident that the bereaved family of Vicente Fontanilla was compelled to seek
relief from the courts to ventilate what was believed to be a just cause. 28

We hold, therefore, that there is no error committed in the grant of attorney's fees which after
all is a matter of judicial discretion. The amount of P1,200.00 is fair and reasonable.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar
as the Municipality of Malasiqui is concerned (L-30183), and We absolve the municipal
councilors from liability and SET ASIDE the judgment against them (L-9993).

Without pronouncement as to costs.

SO ORDERED,

Teehankee (Chairman), Makasiar, Fernandez, and Guerrero, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 97764 August 10, 1992

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

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

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

Manuel de Guia for Municipality of Parañaque.

MEDIALDEA, J.:

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

The antecedent facts are as follows:

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

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

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

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

4. That the use of the vending areas shall be temporary and shall be closed
once the reclaimed areas are developed and donated by the Public Estate
Authority.

On June 20, 1990, the municipal council of Parañaque issued a resolution authorizing
Parañaque Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for
the establishment, operation, maintenance and management of flea markets and/or vending
areas.

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

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

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

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

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

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

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

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

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

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

In upholding the legality of the disputed ordinance, the trial court ruled:

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

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

xxx xxx xxx

The actuation of the respondent Brig. Gen. Levi Macasiano, though

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

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

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

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

All other property possessed by any of them is patrimonial and shall be

governed by this Code, without prejudice to the provisions of special laws.

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . There have been many instances of emergencies and fires where

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

Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its
ambulances and the people rushing their patients to the hospital cannot pass
through G.G. Cruz because of the stalls and the vendors. One can only
imagine the tragedy of losing a life just because of a few seconds delay
brought about by the inaccessibility of the streets leading to the hospital.

The children, too, suffer. In view of the occupancy of the roads by stalls and
vendors, normal transportation flow is disrupted and school children have to
get off at a distance still far from their schools and walk, rain or shine.

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

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

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

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

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

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

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado,
Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-38429 June 30, 1988

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-appellants,

vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch
11, and the CITY OF BUTUAN, respondents-appellees.

Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.

The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:

At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the Municipal
Board of the City of Butuan on April 21, 1969, the title and text of which are reproduced below:

ORDINANCE--640

ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY

OR CORPORATION ENGAGED IN THE BUSINESS OF SELLING
ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS,
GAMES, CONTESTS OR OTHER PERFORMANCES TO REQUIRE
CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS OF AGE TO
PAY FULL PAYMENT FOR TICKETS INTENDED FOR ADULTS BUT
SHOULD CHARGE ONLY ONE-HALF OF THE SAID TICKET

xxx xxx xxx

 Be it ordained by the Municipal Board of the City of Butuan in session
assembled, that:

SECTION 1—It shall be unlawful for any person, group of persons, entity, or
corporation engaged in the business of selling admission tickets to any movie
or other public exhibitions, games, contests, or other performances to require
children between seven (7) and twelve (12) years of age to pay full payment
for admission tickets intended for adults but should charge only one-half of
the value of the said tickets.

SECTION 2—Any person violating the provisions of this Ordinance shall

upon conviction be punished by a fine of not less than TWO HUNDRED
PESOS (P200.00) but not more than SIX HUNDRED PESOS (P600.00) or
an imprisonment of not less than TWO (2) MONTHS or not more than SIX (6)
MONTHS or both such firm and imprisonment in the discretion of the Court.

If the violator be a firm or corporation the penalty shall be imposed upon the
Manager, Agent or Representative of such firm or corporation.

SECTION 3—This ordinance shall take effect upon its approval.

Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya
and Dalisay Theaters, the Crown Theater, and the Diamond Theater, respectively. Aggrieved
by the effect of Ordinance No. 640, they filed a complaint before the Court of First Instance
of Agusan del Norte and Butuan City docketed as Special Civil Case No. 237 on June 30,
1969 praying, inter alia, that the subject ordinance be declared unconstitutional and,
therefore, void and unenforceable. 1

Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969
by the court a quo enjoining the respondent City of Butuan and its officials from enforcing
Ordinance No. 640. 3 On July 29, 1969, respondents filed their answer sustaining the validity
of the ordinance.4

On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the
respondent court rendered its decision, 6 the dispositive part of which reads:

IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in

favor of the respondents and against the petitioners, as follows:

1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid:
Provided, however, that the fine for a single offense shall not exceed TWO
HUNDRED PESOS, as prescribed in the aforequoted Section 15 (nn) of Rep.
Act No. 523;

2. Dissolving the restraining order issued by this Court; and;

3. Dismissing the complaint, with costs against the petitioners.

4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was
denied in a resolution of the said court dated November 10, 1973.9

Hence, this petition.

Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that
it is ultra vires and an invalid exercise of police power.

Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to
enact as provided for in Section 15(n) of Republic Act No. 523, the Charter of the City of
Butuan, which states:

Sec. 15. General powers and duties of the Board — Except as otherwise
provided by law, and subject to the conditions and limitations thereof, the
Municipal Board shall have the following legislative powers:

xxx xxx xxx

(n) To regulate and fix the amount of the license fees for the following; . . .
theaters, theatrical performances, cinematographs, public exhibitions and all
other performances and places of amusements ...

xxx xxx xxx

Respondent City of Butuan, on the other hand, attempts to justify the enactment of the
ordinance by invoking the general welfare clause embodied in Section 15 (nn) of the cited
law, which provides:

(nn) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion of
the morality, peace, good order, comfort, convenience, and general welfare
of the city and its inhabitants, and such others as may be necessary to carry
into effect and discharge the powers and duties conferred by this Act, and to
fix the penalties for the violation of the ordinances, which shall not exceed a
two hundred peso fine or six months imprisonment, or both such fine and
imprisonment, for a single offense.

We can see from the aforecited Section 15(n) that the power to regulate and fix the amount
of license fees for theaters, theatrical performances, cinematographs, public exhibitions and
other places of amusement has been expressly granted to the City of Butuan under its
charter. But the question which needs to be resolved is this: does this power to regulate
include the authority to interfere in the fixing of prices of admission to these places of
exhibition and amusement whether under its general grant of power or under the general
welfare clause as invoked by the City?

This is the first time this Court is confronted with the question of direct interference by the
local government with the operation of theaters, cinematographs and the like to the extent of
fixing the prices of admission to these places. Previous decisions of this Court involved the
power to impose license fees upon businesses of this nature as a corollary to the power of
the local government to regulate them. Ordinances which required moviehouses or theaters
to increase the price of their admission tickets supposedly to cover the license fees have
been held to be invalid for these impositions were considered as not merely license fees but
taxes for purposes of revenue and not regulation which the cities have no power to
exact, 10 unless expressly granted by its charter. 11

Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was
interpreted to include the power to control, to govern and to restrain, it would seem that
under its power to regulate places of exhibitions and amusement, the Municipal Board of the
City of Butuan could make proper police regulations as to the mode in which the business
shall be exercised.

While in a New York case, 13 an ordinance which regulates the business of selling admission
tickets to public exhibitions or performances by virtue of the power of cities under the
General City Law "to maintain order, enforce the laws, protect property and preserve and
care for the safety, health, comfort and general welfare of the inhabitants of the city and
visitors thereto; and for any of said purposes, to regulate and license occupations" was
considered not to be within the scope of any duty or power implied in the charter. It was held
therein that the power of regulation of public exhibitions and places of amusement within the
city granted by the charter does not carry with it any authority to interfere with the price of
admission to such places or the resale of tickets or tokens of admission.

In this jurisdiction, it is already settled that the operation of theaters, cinematographs and
other places of public exhibition are subject to regulation by the municipal council in the
exercise of delegated police power by the local government. 14 Thus, in People v. Chan, 15 an
ordinance of the City of Manila prohibiting first run cinematographs from selling tickets
beyond their seating capacity was upheld as constitutional for being a valid exercise of police
power. Still in another case, 16 the validity of an ordinance of the City of Bacolod prohibiting
admission of two or more persons in moviehouses and other amusement places with the use
of only one ticket was sustained as a valid regulatory police measure not only in the interest
of preventing fraud in so far as municipal taxes are concerned but also in accordance with
public health, public safety, and the general welfare.

The City of Butuan, apparently realizing that it has no authority to enact the ordinance in
question under its power to regulate embodied in Section 15(n), now invokes the police
power as delegated to it under the general welfare clause to justify the enactment of said
ordinance.

To invoke the exercise of police power, not only must it appear that the interest of the public
generally requires an interference with private rights, but the means adopted must be
reasonably necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. 17 The legislature may not, under the guise of protecting the public interest,
arbitrarily interfere with private business, or impose unusual and unnecessary restrictions
upon lawful occupations. In other words, the determination as to what is a proper exercise of
its police power is not final or conclusive, but is subject to the supervision of the courts. 18

Petitioners maintain that Ordinance No. 640 violates the due process clause of the
Constitution for being oppressive, unfair, unjust, confiscatory, and an undue restraint of
trade, and violative of the right of persons to enter into contracts, considering that the theater
owners are bound under a contract with the film owners for just admission prices for general
admission, balcony and lodge.

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of

Manila, 19 this Court held:
 The authority of municipal corporations to regulate is essentially police
power, Inasmuch as the same generally entails a curtailment of the liberty,
the rights and/or the property of persons, which are protected and even
guaranteed by the Constitution, the exercise of police power is necessarily
subject to a qualification, limitation or restriction demanded by the regard, the
respect and the obedience due to the prescriptions of the fundamental law,
particularly those forming part of the Constitution of Liberty, otherwise known
as the Bill of Rights — the police power measure must be reasonable. In
other words, individual rights may be adversely affected by the exercise of
police power to the extent only — and only to the extent--that may be fairly
required by the legitimate demands of public interest or public welfare.

What is the reason behind the enactment of Ordinance No. 640?

A reading of the minutes of the regular session of the Municipal Board when the ordinance in
question was passed shows that a certain Councilor Calo, the proponent of the measure,
had taken into account the complaints of parents that for them to pay the full price of
admission for their children is too financially burdensome.

The trial court advances the view that "even if the subject ordinance does not spell out
its raison d'etre in all probability the respondents were impelled by the awareness that
children are entitled to share in the joys of their elders, but that considering that, apart from
size, children between the ages of seven and twelve cannot fully grasp the nuance of movies
or other public exhibitions, games, contests or other performances, the admission prices with
respect to them ought to be reduced. 19a

We must bear in mind that there must be public necessity which demands the adoption of
proper measures to secure the ends sought to be attained by the enactment of the
ordinance, and the large discretion is necessarily vested in the legislative authority to
determine not only what the interests of the public require, but what measures are necessary
for the protection of such interests. 20 The methods or means used to protect the public
health, morals, safety or welfare, must have some relation to the end in view, for under the
guise of the police power, personal rights and those pertaining to private property will not be
permitted to be arbitralily invaded by the legislative department. 21

We agree with petitioners that the ordinance is not justified by any necessity for the public
interest. The police power legislation must be firmly grounded on public interest and welfare,
and a reasonable relation must exist between purposes and means.22 The evident purpose of
the ordinance is to help ease the burden of cost on the part of parents who have to shell out
the same amount of money for the admission of their children, as they would for themselves,
A reduction in the price of admission would mean corresponding savings for the parents;
however, the petitioners are the ones made to bear the cost of these savings. The ordinance
does not only make the petitioners suffer the loss of earnings but it likewise penalizes them
for failure to comply with it. Furthermore, as petitioners point out, there will be difficulty in its
implementation because as already experienced by petitioners since the effectivity of the
ordinance, children over 12 years of age tried to pass off their age as below 12 years in order
to avail of the benefit of the ordinance. The ordinance does not provide a safeguard against
this undesirable practice and as such, the respondent City of Butuan now suggests that birth
certificates be exhibited by movie house patrons to prove the age of children. This is,
however, not at all practicable. We can see that the ordinance is clearly unreasonable if not
unduly oppressive upon the business of petitioners. Moreover, there is no discernible relation
between the ordinance and the promotion of public health, safety, morals and the general
welfare.

Respondent City of Butuan claims that it was impelled to protect the youth from the
pernicious practice of movie operators and other public exhibitions promoters or the like of
demanding equal price for their admission tickets along with the adults. This practice is
allegedly repugnant and unconscionable to the interest of the City in the furtherance of the
prosperity, peace, good order, comfort, convenience and the general well-being of its
inhabitants.

There is nothing pernicious in demanding equal price for both children and adults. The
petitioners are merely conducting their legitimate businesses. The object of every business
entrepreneur is to make a profit out of his venture. There is nothing immoral or injurious in
charging the same price for both children and adults. In fact, no person is under compulsion
to purchase a ticket. It is a totally voluntary act on the part of the purchaser if he buys a ticket
to such performances.

Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to
lessen the economic burden of parents whose minor children are lured by the attractive
nuisance being maintained by the petitioners. Respondent further alleges that by charging
the full price, the children are being exploited by movie house operators. We fail to see how
the children are exploited if they pay the full price of admission. They are treated with the
same quality of entertainment as the adults. The supposition of the trial court that because of
their age children cannot fully grasp the nuances of such entertainment as adults do fails to
convince Us that the reduction in admission ticket price is justifiable. In fact, by the very claim
of respondent that movies and the like are attractive nuisances, it is difficult to comprehend
why the municipal board passed the subject ordinance. How can the municipal authorities
consider the movies an attractive nuisance and yet encourage parents and children to
patronize them by lowering the price of admission for children? Perhaps, there is some ,truth
to the argument of petitioners that Ordinance No. 640 is detrimental to the public good and
the general welfare of society for it encourages children of tender age to frequent the movies,
rather than attend to their studies in school or be in their homes.

Moreover, as a logical consequence of the ordinance, movie house and theater operators
will be discouraged from exhibiting wholesome movies for general patronage, much less
children's pictures if only to avoid compliance with the ordinance and still earn profits for
themselves. For after all, these movie house and theater operators cannot be compelled to
exhibit any particular kind of film except those films which may be dictated by public demand
and those which are restricted by censorship laws. So instead of children being able to share
in the joys of their elders as envisioned by the trial court, there will be a dearth of wholesome
and educational movies for them to enjoy.

There are a number of cases decided by the Supreme Court and the various state courts of
the United States which upheld the right of the proprietor of a theater to fix the price of an
admission ticket as against the right of the state to interfere in this regard and which We
consider applicable to the case at bar.

A theater ticket has been described to be either a mere license, revocable at the will of the
proprietor of the theater or it may be evidence of a contract whereby, for a valuable
consideration, the purchaser has acquired the right to enter the theater and observe the
performance on condition that he behaves properly. 23 Such ticket, therefore, represents a
right, Positive or conditional, as the case may be, according to the terms of the original
contract of sale. This right is clearly a right of property. The ticket which represents that right
is also, necessarily, a species of property. As such, the owner thereof, in the absence of any
condition to the contrary in the contract by which he obtained it, has the clear right to dispose
of it, to sell it to whom he pleases and at such price as he can obtain. 24 So that an act
prohibiting the sale of tickets to theaters or other places of amusement at more than the
regular price was held invalid as conflicting with the state constitution securing the right of
property. 25

In Collister vs. Hayman, 26 it was held:

The defendants were conducting a private business, which, even if clothed

with a public interest, was without a franchise to accommodate the public,
and they had the right to control it, the same as the proprietors of any other
business, subject to such obligations as were placed upon them by statute.
Unlike a carrier of passengers, for instance, with a franchise from the state,
and hence under obligation to transport anyone who applies and to continue
the business year in and year out, the proprietors of a theater can open and
close their place at will, and no one can make a lawful complaint. They can
charge what they choose for admission to their theater. They can limit the
number admitted. They can refuse to sell tickets and collect the price of
admission at the door. They can preserve order and enforce quiet while the
performance is going on. They can make it a part of the contract and
condition of admission, by giving due notice and printing the condition in the
ticket that no one shall be admitted under 21 years of age, or that men only
or women only shall be admitted, or that a woman cannot enter unless she is
accompanied by a male escort, and the like. The proprietors, in the control of
their business, may regulate the terms of admission in any reasonable way. If
those terms are not satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is made, the minds of
the parties meet upon the condition, and the purchaser impliedly promises to
perform it.

In Tyson and Bro. — United Theater Ticket Officers, Inc. vs. Banton, 27 the United States
Supreme Court held:

... And certainly a place of entertainment is in no legal sense a public utility;

and quite as certainly, its activities are not such that their enjoyment can be
regarded under any conditions from the point of view of an emergency.

The interest of the public in theaters and other places of entertainment may
be more nearly, and with better reason, assimilated to the like interest in
provision stores and markets and in the rental of houses and apartments for
residence purposes; although in importance it fails below such an interest in
the proportion that food and shelter are of more moment than amusement or
instruction. As we have shown there is no legislative power to fix the prices of
provisions or clothing, or the rental charges for houses and apartments, in
the absence of some controlling emergency; and we are unable to perceive
any dissimilarities of such quality or degree as to justify a different rule in
respect of amusements and entertainment ...

We are in consonance with the foregoing observations and conclusions of American courts.
In this jurisdiction, legislation had been passed controlling the prices of goods commodities
and drugs during periods of emergency, 28limiting the net profits of public utility 29 as well as
regulating rentals of residential apartments for a limited period, 30as a matter of national
policy in the interest of public health and safety, economic security and the general welfare of
the people. And these laws cannot be impugned as unconstitutional for being violative of the
due process clause.

However, the same could not be said of theaters, cinematographs and other exhibitions. In
no sense could these businesses be considered public utilities. The State has not found it
appropriate as a national policy to interfere with the admission prices to these performances.
This does not mean however, that theaters and exhibitions are not affected with public
interest even to a certain degree. Motion pictures have been considered important both as a
medium for the communication of Ideas and expression of the artistic impulse. Their effects
on the perceptions by our people of issues and public officials or public figures as well as the
prevailing cultural traits are considerable. 31People of all ages flock to movie houses, games
and other public exhibitions for recreation and relaxation. The government realizing their
importance has seen it fit to enact censorship laws to regulate the movie industry. 32 Their
aesthetic entertainment and even educational values cannot be underestimated. Even police
measures regulating the operation of these businesses have been upheld in order to
safeguard public health and safety.

Nonetheless, as to the question of the subject ordinance being a valid exercise of police
power, the same must be resolved in the negative. While it is true that a business may be
regulated, it is equally true that such regulation must be within the bounds of reason, that is,
the regulatory ordinance must be reasonable, and its provisions cannot be oppressive
amounting to an arbitrary interference with the business or calling subject of regulation. A
lawful business or calling may not, under the guise of regulation, be unreasonably interfered
with even by the exercise of police power.33 A police measure for the regulation of the
conduct, control and operation of a business should not encroach upon the legitimate and
lawful exercise by the citizens of their property rights.34 The right of the owner to fix a price at
which his property shall be sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause."" Hence, the proprietors of a theater
have a right to manage their property in their own way, to fix what prices of admission they
think most for their own advantage, and that any person who did not approve could stay
away. 36

Respondent City of Butuan argues that the presumption is always in favor of the validity of
the ordinance. This maybe the rule but it has already been held that although the
presumption is always in favor of the validity or reasonableness of the ordinance, such
presumption must nevertheless be set aside when the invalidity or unreasonableness
appears on the face of the ordinance itself or is established by proper evidence.37 The
exercise of police power by the local government is valid unless it contravenes the
fundamental law of the land, or an act of the legislature, or unless it is against public policy or
is unreasonable, oppressive, partial, discriminating or in derogation of a common right.38

Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if
We could assume that, on its face, the interference was reasonable, from the foregoing
considerations, it has been fully shown that it is an unwarranted and unlawful curtailment of
the property and personal rights of citizens. For being unreasonable and an undue restraint
of trade, it cannot, under the guise of exercising police power, be upheld as valid.

WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby
REVERSED and SET ASIDE and a new judgment is hereby rendered declaring Ordinance
No. 640 unconstitutional and, therefore, null and void. This decision is immediately
executory.

SO ORDERED.

Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-Aquino, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., Separate opinion

The issue before the Court is a simple one. Does Butuan City have the power to compel
theatre owners to charge only half fares for children below twelve even as they charge all
other moviegoers full prices for admission into moviehouses?

Instead of nullifying the municipal ordinance through a broad and sweeping justification of
property rights, I believe, however, that we should do so on a more limited ground directly
bearing on the issue.

I find no rational basis for classifying children as a distinct group insofar as paying for
admission into a moviehouse is concerned. There is absolutely no pretense that the
municipal ordinance is intended to protect children, enhance their morals, promote their
health, safeguard their safety, improve their education, or otherwise promote the general
welfare. In fact, the effect of the ordinance may be the opposite.

With the price of movie tickets suddenly within the reach of many children, they may neglect
their studies or use money intended for food or school supplies to enter moviehouses. Movie
owners who are compelled to accept half prices for a newly increased group of young
patrons will be tempted to allow them to enter moviehouses indiscriminately, including those
where scenes of violence, crime, or even sex are portrayed. Addiction of the young to movie
going is definitely injurious to their health.

The avowed purpose of the ordinance--to ease the burden of costs for parents who have to
shell out the same amount of money for the admission of their children as they would for
themselves — is not covered by police power. If the city cannot compel refreshment parlors
to charge half-prices for hamburgers, soft drinks, pizzas, or cakes consumed by children by
what authority can it impose the obligation of similarly easing parents' burdens upon the
owners of moviehouses?

As discussed by the minority opinion, 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. The imposition enacted by the municipal
board of Butuan City has not been justified by its proponents as a restriction necessary for
public health or public welfare. No reasonable relationship has been shown between a valid
purpose and the proper means to accomplish it.

I hesitate, however, to make a brief for owners of theatres and expound a laissez
faire approach insofar as their businesses are concerned. Movie houses may not be public
utilities but as places of entertainment affected with a certain degree of public interest, they
are subject to reasonable regulation. That regulation is stronger and more restrictive than
that of regular or ordinary businesses.

The following citation for instance, is pure obiter insofar as half-prices for minors are
concerned:

... [T]he proprietors of a theater can open and close their place at will, and no
one can make 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 a 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. (Collister v.
Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St.
Rep. 740, An Cas. 344).

I see no reason at this time why we should pass upon situations that are not before us or
warn municipal governments beforehand to avoid enacting certain regulations when nobody
knows exactly what circumstances may call for those regulations.

For instance,

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 (Law of the State.

Screen and Radio by Marchetti, 1939, ec., page 268). 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 y 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
Ibids, citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A. [N.S],
183, 117 Am. St. Rep. 11 5, 9 Ann. Ca. 747; Also People v. Steele, 231, III.
340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep. 321, 83 N.E. 236). ....
 xxx xxx xxx

.... A lawful business or calling may not, under the guise of regulation, be
unreasonably interfered with even by the exercise of police power. (Ogden
City v. Leo, 54 Utah 556, 182 P. 530) 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
(Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3 SCRA 816). 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 (Tyson and Bro.--United Theater Ticket Officers, Inc.
v. Banton, supra). 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 ally person who did not approve could stay
away (Ibid, citing v. Clifford v. Brandon, 2 Campb. 358, 368.).

may be interpreted as carte blanche for movie owners to practically ignore municipal
regulation and do as they please.

More appropriate to my maid is to state that while tile Butuan City ordinance is invalid, it does
not necessarily follow that all forms of regulation are proscribed.

We have ruled in People v. Chan (65 Phil. 612):

In the first place, it must be noted that there can be no doubt that the City of
Manila exercises police power, by delegation and that in the exercise of that
power it is authorized to enact ordinances for, the regulation of the operation
of theatres and cinematographs (sec. 2444(m) and (ee) of the Revised
Administrative Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v. Pompeya,
31 Phil. 245).

On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it

provides that all first run theatres or cinematographs should register their
seating capacity with the City Treasurer, and in section 1 it prohibits the sale
of tickets in said theatres or cinematographs in excess of their registered
seating capacity.

Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved
on July 22, 1933, was in force, section 1 of which divides cinematographs
into three different classes: first, second and third. The first class includes
those located on certain and specified streets like Rosario, Escolta, etc.,
which exhibit films for the first time; those belonging to the second class are
those which, not being located on said streets, also exhibit films for the first
time, and those which, being located on said streets, regularly show films for
the second time or which have the exclusive right to show secondhand films;
and the third class comprehends all those which are not included in the first
and second classes.

xxx xxx xxx

To the foregoing must be added, and this is of common knowledge, that the
films which are shown for the first time attract a large attendance, and the
 theatre or cinematograph, whether it is first or second class, presenting
shows for the first time, would be suffocatingly overcrowded if the number of
tickets were not limited. This is the reason for the prohibition of the sale of
tickets in excess of the seating capacity. The prohibition applies with equal
force wherever the same reason exists, that is, to first and second class
theatres which show films for the first time. (at pp. 612- 613)

There being a rational basis for the restriction of sales of tickets beyond seating capacity, the
ordinance is perfectly valid.

The same is true for the situation found in Samson v. Mayor of Bacolod City (60 SCRA 274):

When it is further remembered that insofar as movie houses and other places
of amusement are concerned. (According to Section 17[1] of the City Charter
of Bacolod, Commonwealth Act No. 326 119381: 'To regulate and fix the
amount of the fees for the following: ... theatres, theatrical performances,
cinematographs, public exhibitions, circuses and all other performances and
places of amusements ....") the least doubt cannot be entertained as to the
validity of a measure prohibiting a proprietor, lessee or operator of an
amusement place to admit two or more persons with only one admission
ticket, not only in the interest of preventing fraud insofar as municipal taxes
are concerned but also in accordance with public health, public safety and
the general welfare. (Cf. People v. Chan, 65 Phil. 611 [1938]). An American
Supreme Court decision, Western Turf Association v. Greenberg, (204 US
359 [1907] the opinion being penned by Justice Harlan is equally illuminating:
'The statute is only a regulation of places of public entertainment and
amusement upon terms of equal and exact justice to everyone holding a
ticket of admission, and who is not, at the time, under the influence of liquor,
or boisterous in conduct, or of lewd and immoral character. .... Such a
regulation, in itself just, is likewise promotive of peace and good order among
those who attend places of public entertainment and amusement. It is neither
an arbitrary exertion of the state's inherent or governmental power, nor a
violation of any right secured by the constitution of the United States. (at pp.
363-364).

The City of Butuan tries to justify the challenged ordinance by invoking police power. The
invocation is improper. The definitions of police power, including its exercise based on the
general welfare clause, are emphasized to show that the respondents' arguments have no
merit —

Police power is inherent in the State but not in municipal corporations. For a
municipal corporation to exercise police power, there must be a legislative
grant which necessarily also sets the limits for the exercise of the power.

In the Philippines, the grant of authority to the municipality to exercise police

power is embodied in Section 2238 of the Revised Administrative Code,
otherwise known as the General Welfare Clause. Chartered cities are
granted similar authority in their respective charters

The general welfare clause has two branches. The first authorizes the
municipal council to 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 the municipal council by law. The second
branch authorizes the municipality to enact such ordinances as may be
necessary and proper for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and convenience of the
municipality and inhabitants thereof, and for the protection of property
therein. (U.S. v. Salaveria 39 Phil. 103).

This Court has generally been liberal in sustaining municipal action based on the general
welfare clause. In the case before us, however, there appears to be no basis for sustaining
the ordinance even on a generous interpretation of the general welfare clause.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO

GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO
GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND
CECILIA MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.

Gamboa & Hofileña Law Office for petitioners.

ALAMPAY, J.:

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

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

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

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

SEC. 4. A plebiscite shall be conducted in the proposed new province which

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

SEC. 5. The Commission on Elections shall conduct and supervise the

plebiscite herein provided, the expenses for which shall be charged to local
funds.

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

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it

is not in complete accord with the Local Government Code as in Article XI,
Section 3 of our Constitution, it is expressly mandated that—

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

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

Section 197 of the Local Government Code enumerates the conditions which must exist to
provide the legal basis for the creation of a provincial unit and these requisites are:

SEC. 197. Requisites for Creation. A province may be created if it has a

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

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

Due to the constraints brought about by the supervening Christmas holidays during which
the Court was in recess and unable to timely consider the petition, a supplemental pleading
was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be
restrained by them was held on January 3, 1986 as scheduled but that there are still serious
issues raised in the instant case affecting the legality, constitutionality and validity of such
exercise which should properly be passed upon and resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of Negros del N•rte,
namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava,
Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto.
Because of the exclusions of the voters from the rest of the province of Negros Occidental,
petitioners found need to change the prayer of their petition "to the end that the constitutional
issues which they have raised in the action will be ventilated and given final resolution.'"At
the same time, they asked that the effects of the plebiscite which they sought to stop be
suspended until the Supreme Court shall have rendered its decision on the very fundamental
and far-reaching questions that petitioners have brought out.

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

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

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

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

And that a similar writ of Prohibition be issued, directed to the respondent

Provincial Treasurer, to desist from ordering the release of any local funds to
answer for expenses incurred in the holding of such plebiscite until ordered
by the Court. (Rollo pp. 9-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance

the issuance of any official proclamation of the results of the aforestated
plebiscite.

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

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

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

1. Admittedly,this is one of those cases where the discretion of the Court is

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

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

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

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

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

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

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

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

SEC. 2. The boundaries of the new province shall be the southern limits of
the City of Silay, the Municipality of Salvador Benedicto and the City of San
Carlos on the South and the natural boundaries of the northern portion of the
Island of Negros on the West, North and East, containing an area of 285,656
hectares more or less. (Emphasis supplied).

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas
Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined
therein and its boundaries then stated to be as follows:

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

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

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

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros

Occidental have the land area as indicated hereunder based on the Special
Report No. 3, Philippines 1980, Population, Land Area and Density: 1970,
1975 and 1980 by the National Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

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

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

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

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

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

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

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

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

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

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

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

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

(SGD.) JULIAN L. RAMIREZ

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

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

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

SEC. 4. A plebiscite shall be conducted in the areas affected within a period

of one hundred and twenty days from the approval of this Act. After the
ratification of the creation of the Province of Negros del Norte by a majority of
the votes cast in such plebiscite, the President shall appoint the first officials
of the new province.

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

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

Considering that the legality of the plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us cannot truly be viewed as already
moot and academic. Continuation of the existence of this newly proclaimed province which
petitioners strongly profess to have been illegally born, deserves to be inquired into by this
Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error
should not provide the very excuse for perpetuation of such wrong. For this Court to yield to
the respondents' urging that, as there has been fait accompli then this Court should
passively accept and accede to the prevailing situation is an unacceptable suggestion.
Dismissal of the instant petition, as respondents so propose is a proposition fraught with
mischief. Respondents' submission will create a dangerous precedent. Should this Court
decline now to perform its duty of interpreting and indicating what the law is and should be,
this might tempt again those who strut about in the corridors of power to recklessly and with
ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions,
either brazenly or stealthily, confident that this Court will abstain from entertaining future
challenges to their acts if they manage to bring about a fait accompli.
In the light of the facts and circumstances alluded to by petitioners as attending to the
unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled
plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts
which run counter to the mandate of our fundamental law, done by whatever branch of our
government. This Court gives notice that it will not look with favor upon those who may be
hereafter inclined to ram through all sorts of legislative measures and then implement the
same with indecent haste, even if such acts would violate the Constitution and the prevailing
statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the
ground that what is already done is done. To such untenable argument the reply would be
that, be this so, the Court, nevertheless, still has the duty and right to correct and rectify the
wrong brought to its attention.

On the merits of the case.

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

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

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

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

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

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

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

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

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

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

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

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

This dissenting opinion of Justice Vicente Abad Santos is the— forerunner of the ruling
which We now consider applicable to the case at bar, In the analogous case of Emilio C.
Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as
suffering from a constitutional infirmity a referendum which did not include all the people of
Bulacan and Rizal, when such referendum was intended to ascertain if the people of said
provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting
opinion served as a useful guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is now afforded the present
Court. The reasons in the mentioned cases invoked by respondents herein were formerly
considered acceptable because of the views then taken that local autonomy would be better
promoted However, even this consideration no longer retains persuasive value.

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

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

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

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

As contended by petitioners,—

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

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

It would thus be inaccurate to state that where an existing political unit is

divided or its boundary substantially altered, as the Constitution provides,
only some and not all the voters in the whole unit which suffers
dismemberment or substantial alteration of its boundary are affected. Rather,
the contrary is true.

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

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

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

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

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

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

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

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

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

The distinction between "territory" and "land area" which respondents make is an artificial or
strained construction of the disputed provision whereby the words of the statute are arrested
from their plain and obvious meaning and made to bear an entirely different meaning to
justify an absurd or unjust result. The plain meaning in the language in a statute is the safest
guide to follow in construing the statute. A construction based on a forced or artificial
meaning of its words and out of harmony of the statutory scheme is not to be favored
(Helvering vs. Hutchings, 85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which
has a long, narrow, extended coast line, (such as La Union province) can be said to have a
larger territory than a land-locked province (such as Ifugao or Benguet) whose land area
manifestly exceeds the province first mentioned.

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

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

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

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The

proclamation of the new province of Negros del Norte, as well as the appointment of the
officials thereof are also declared null and void.

SO ORDERED.

Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

RESOLUTION

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 conducted in the areas comprising the
proposed Municipality of Tulay-Na-Lupa and the remaining areas of the mother
Municipality of Labo is valid.

We rule that respondent COMELEC did not commit grave abuse in promulgating
Resolution No. 2312 and that the plebiscite, which rejected the creation of the
proposed Municipality of Tulay-Na-Lupa, is valid.

Petitioner's contention that our ruling in Tan vs. COMELEC has been superseded
with the ratification of the 1987 Constitution, thus reinstating our earlier ruling in
Paredes vs. COMELEC is untenable. Petitioner opines that since Tan vs. COMELEC
was based on Section 3 of Article XI of the 1973 Constitution our ruling in said case
is no longer applicable under Section 10 of Article X of the 1987 Constitution, 8
especially since the latter provision deleted the words "unit or."

We do not agree. The deletion of the phrase "unit or" in Section 10, Article X of the
1987 Constitution from its precursor, Section 3 of Article XI of the 1973 Constitution
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 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 phase
"political units directly affected," is the plurality of political units which would
participate in the plebiscite. 10 Logically, those to be included in such political areas
are the inhabitants of the 12 barangays of the proposed Municipality of Tulay-Na-
Lupa as well as those living in the parent Municipality of Labo, Camarines Norte.
Thus, we conclude that respondent COMELEC did not commit grave abuse of
discretion in promulgating Resolution No. 2312.

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 40243 March 11, 1992

CELESTINO TATEL, petitioner,

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

NOCON, J.:

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

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

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

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

Respondent municipal officials contend that petitioner's warehouse was constructed in

violation of Ordinance No. 13, series of 1952, prohibiting the construction of warehouses
near a block of houses either in the poblacion or barrios without maintaining the necessary
distance of 200 meters from said block of houses to avoid loss of lives and properties by
accidental fire.

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

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

In a decision dated September 18, 1969, the court a quo ruled as follows:
 1. The warehouse in question was legally constructed under a valid permit
issued by the municipality of Virac in accordance with existing regulations
and may not be destroyed or removed from its present location;

2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of

police power by the Municipal Council of Virac is not (sic) unconstitutional
and void as claimed by the petitioner;

3. The storage by the petitioner of abaca and copra in the warehouse is not
only in violation of the provisions of the ordinance but poses a grave danger
to the safety of the lives and properties of the residents of the neighborhood
due to accidental fire and constitutes a public nuisance under the provisions
of Article 694 of the New Civil code of the Philippines and may be abated;

4. Accordingly, the petitioner is hereby directed to remove from the said

warehouse all abaca and copra and other inflammable articles stored therein
which are prohibited under the provisions of Ordinance No. 13, within a
period of two (2) months from the time this decision becomes final and that
henceforth, the petitioner is enjoined from storing such prohibited articles in
the warehouse. With costs against petitioner.

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

1. In holding that Ordinance No. 13, series of 1952, of the Municipality of

Virac, Catanduanes, is a legitimate and valid exercise of police power of the
Municipal Council, and therefore, constitutional;

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

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

We find no merit in the Petition.

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

The municipal council shall enact such ordinances and make such
regulations, not repugnant to law, as may be necessary to carry into effect
and discharge the powers and duties conferred upon it by law and such as
shall seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort and
convenience of the municipality and the inhabitants thereof, and for the
protection of property therein. 4
For an ordinance to be valid, it must not only be within the corporate powers of the
municipality to enact but must also be passed according to the procedure prescribed by law,
and must be in consonance with certain well established and basic principles of a
substantive nature. These principles require that a municipal ordinance (1) must not
contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not
be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general
and consistent with public policy, and (6) must not be unreasonable. 5 Ordinance No. 13,
Series of 1952, meets these criteria.

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

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.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 102782 December 11, 1991

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

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

CRUZ, J.:

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

Subsequently, the following developments transpired:

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

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

Another letter was received by the Court on February 14, 1991, from Stephen L. Monsanto,
complaining against the confiscation of his driver's license by Traffic Enforcer A.D. Martinez
for an alleged traffic violation in Mandaluyong.
This was followed by a letter-complaint filed on March 7, 1991, from Dan R. Calderon, a
lawyer, also for confiscation of his driver's license by Pat. R.J. Tano-an of the Makati Police
Force.

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

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

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

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

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

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

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

The attention ofthe Court has been called to the enactment by the Metropolitan
Manila Authority of Ordinance No. 11, Series of 1991, providing inter alia that:

Section 2. Authority to Detach Plate/Tow and Impound. The Metropolitan

Manila Authority, thru the Traffic Operatiom Center, is authorized to detach
the license plate/tow and impound attended/unattended/abandoned motor
vehicles illegally parked or obstructing the flow of traffic in Metro Manila.

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

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

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

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

consolidation for the Authority; and

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

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

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

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

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

The Metropolitan Manila Authority is correct in invoking the doctrine that the validity of a law
or act can be challenged only in a direct action and not collaterally. That is indeed the settled
principle. However, that rule is not inflexible and may be relaxed by the Court under
exceptional circumstances, such as those in the present controversy.

The Solicitor General notes that the practices complained of have created a great deal of
confusion among motorists about the state of the law on the questioned sanctions. More
importantly, he maintains that these sanctions are illegal, being violative of law and
the Gonong decision, and should therefore be stopped. We also note the disturbing report
that one policeman who confiscated a driver's license dismissed the Gonong decision as
"wrong" and said the police would not stop their "habit" unless they received orders "from the
top." Regrettably, not one of the complainants has filed a formal challenge to the ordinances,
including Monsanto and Trieste, who are lawyers and could have been more assertive of
their rights.
Given these considerations, the Court feels it must address the problem squarely presented
to it and decide it as categorically rather than dismiss the complaints on the basis of the
technical objection raised and thus, through its inaction, allow them to fester.

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

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

We have made similar rulings in other cases, thus:

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

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

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

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

Now to the merits.

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

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

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

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

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

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

According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit but may
regulate trade; 5) must not be unreasonable; and 6) must be general and consistent with public policy. 7

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

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

xxx xxx xxx

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

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

The requirement that the municipal enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national

They are mere agents vested with

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

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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 111097 July 20, 1994

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

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

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

R.R. Torralba & Associates for private respondent.

CRUZ, J.:

There was instant opposition when PAGCOR announced the opening of a casino in
Cagayan de Oro City. Civic organizations angrily denounced the project. The religious
elements echoed the objection and so did the women's groups and the youth.
Demonstrations were led by the mayor and the city legislators. The media trumpeted the
protest, describing the casino as an affront to the welfare of the city.

The trouble arose when in 1992, flush with its tremendous success in several cities,
PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a
portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private
respondents, renovated and equipped the same, and prepared to inaugurate its casino there
during the Christmas season.

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

ORDINANCE NO. 3353

AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT

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

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan

de Oro, in session assembled that:

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

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

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

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

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

a) Suspension of the business permit for sixty

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

b) Suspension of the business permit for Six

(6) months for the second offense, and a fine
of P3,000.00/day
 c) Permanent revocation of the business
permit and imprisonment of One (1) year, for
the third and subsequent offenses.

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

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

ORDINANCE NO. 3375-93

AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND

PROVIDING PENALTY FOR VIOLATION THEREFOR.

WHEREAS, the City Council established a policy as early as 1990 against

CASINO under its Resolution No. 2295;

WHEREAS, on October 14, 1992, the City Council passed another

Resolution No. 2673, reiterating its policy against the establishment of
CASINO;

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

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

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

NOW THEREFORE,

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

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

is hereby prohibited.

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

penalties:

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

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

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

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

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

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

1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan

de Oro does not have the power and authority to prohibit the establishment
and operation of a PAGCOR gambling casino within the City's territorial
limits.

2. The phrase "gambling and other prohibited games of chance" found in

Sec. 458, par. (a), sub-par. (1) — (v) of R.A. 7160 could only mean "illegal
gambling."

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

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

cockfighting and are therefore invalid on that point.

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

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

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

Cagayan de Oro City, like other local political subdivisions, is empowered to enact
ordinances for the purposes indicated in the Local Government Code. It is expressly vested
with the police power under what is known as the General Welfare Clause now embodied in
Section 16 as follows:
 Sec. 16. — General Welfare. — Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well
as powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.

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

Sec. 458. — Powers, Duties, Functions and Compensation. — (a) The

Sangguniang Panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and
in the proper exercise of the corporate powers of the city as provided for
under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:

xxx xxx xxx

(v) Enact ordinances intended to prevent,

suppress and impose appropriate penalties for
habitual drunkenness in public places,
vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of
ill repute, gamblingand other prohibited games
of chance, fraudulent devices and ways to
obtain money or property, drug addiction,
maintenance of drug dens, drug pushing,
juvenile delinquency, the printing, distribution
or exhibition of obscene or pornographic
materials or publications, and such other
activities inimical to the welfare and morals of
the inhabitants of the city;

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

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

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

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

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

(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code are hereby repealed
or modified accordingly.

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

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

Code, the following rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally

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

xxx xxx xxx

(c) The general welfare provisions in this Code shall be liberally interpreted to
give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the
community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various
provisions of the Constitution and several decisions of this Court expressive of the general
and official disapprobation of the vice. They invoke the State policies on the family and the
proper upbringing of the youth and, as might be expected, call attention to the old case
of U.S. v. Salaveria,7 which sustained a municipal ordinance prohibiting the playing
of panguingue. The petitioners decry the immorality of gambling. They also impugn the
wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating
PAGCOR and authorizing it to operate casinos "on land and sea within the territorial
jurisdiction of the Philippines."

This is the opportune time to stress an important point.

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

The only question we can and shall resolve in this petition is the validity of Ordinance No.
3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan
de Oro City. And we shall do so only by the criteria laid down by law and not by our own
convictions on the propriety of gambling.

The tests of a valid ordinance are well established. A long line of decisions 9 has held that to
be valid, an ordinance must conform to the following substantive requirements:

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

2) It must not be unfair or oppressive.

3) It must not be partial or discriminatory.

4) It must not prohibit but may regulate trade.

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

6) It must not be unreasonable.

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

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

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

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

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

Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise
known as the "Local Government Code," Executive Order No. 112 (1987),
and Executive Order No. 319 (1988) are hereby repealed.
 (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or concerning the
barangay are hereby repealed.

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

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs

locally-funded projects.

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

(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code are hereby repealed
or modified accordingly.

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

The cases relating to the subject of repeal by implication all proceed on the
assumption that if the act of later date clearly reveals an intention on the part
of the lawmaking power to abrogate the prior law, this intention must be given
effect; but there must always be a sufficient revelation of this intention, and it
has become an unbending rule of statutory construction that the intention to
repeal a former law will not be imputed to the Legislature when it appears
that the two statutes, or provisions, with reference to which the question
arises bear to each other the relation of general to special.

There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the
private respondent points out, PAGCOR is mentioned as the source of funding in two later
enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department
of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and
R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues
are tapped by these two statutes. This would show that the PAGCOR charter has not been
repealed by the Local Government Code but has in fact been improved as it were to make
the entity more responsive to the fiscal problems of the government.

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

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

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

The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred on them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the first place, and negate by
mere ordinance the mandate of the statute.

Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without
which they cannot exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, and if we can suppose it capable
of so great a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not prevent it.
We know of no limitation on the right so far as to the corporation themselves
are concerned. They are, so to phrase it, the mere tenants at will of the
legislature. 11

This basic relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes the power to
destroy. The power to grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By
and large, however, the national legislature is still the principal of the local government units,
which cannot defy its will or modify or violate it.

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

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

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

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

Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno,
Vitug, Kapunan and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 92389 September 11, 1991

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

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

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

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

PARAS, J.:

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

The pertinent facts are:

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

A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL

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

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

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

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

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

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

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

2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5,

1989, has already appropriated the amount of P400,000.00 to implement the Id
resolution, and the only function of COA on the matter is to allow the financial
assistance in question.
 The first contention is believed untenable. Suffice it to state that:

a statute or ordinance must have a real substantial, or rational relation to the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is no violation of the equal protection clause in classifying paupers as subject of

legislation. Paupers may be reasonably classified. Different groups may receive varying
treatment. Precious to the hearts of our legislators, down to our local councilors, is the
welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the
disabled, emancipating the tenant-farmer from the bondage of the soil, housing the urban
poor, etc.

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

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

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

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

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

Victor T. Llamas, Jr. for respondents.

CRUZ, J.:

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

The ordinance reads in full as follows:

ORDINANCE 22

AN ORDINANCE REGULATING SUBDIVISION PLANS OVER PARCELS

OF LAND IN THE CITY OF DAGUPAN.

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

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

Section 2. As service fee thereof, an amount equivalent to P0.30 per square

meter of every lot resulting or win result from such subdivision shall be
charged by the City Engineer's Office.

Section 3. It shall be unlawful for the Register of Deeds of Dagupan City to

allow the registration of a subdivision plan unless there is prior written
certification issued by the City Engineer that such plan has already been
submitted to his office and that the same is in order.

Section 4. Any violation of this ordinance shall be punished by a fine not

exceeding two hundred (P200.00) pesos or imprisonment not exceeding six
(6) months or both in the discretion of the judge.

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

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

From the above-recited requirements, there is no showing that would justify

the enactment of the questioned ordinance. Section 1 of said ordinance
clearly conflicts with Section 44 of Act 496, because the latter law does not
require subdivision plans to be submitted to the City Engineer before the
same is submitted for approval to and verification by the General Land
Registration Office or by the Director of Lands as provided for in Section 58
 of said Act. Section 2 of the same ordinance also contravenes the provisions
of Section 44 of Act 496, the latter being silent on a service fee of PO.03 per
square meter of every lot subject of such subdivision application; Section 3 of
the ordinance in question also conflicts with Section 44 of Act 496, because
the latter law does not mention of a certification to be made by the City
Engineer before the Register of Deeds allows registration of the subdivision
plan; and the last section of said ordinance imposes a penalty for its violation,
which Section 44 of Act 496 does not impose. In other words, Ordinance 22
of the City of Dagupan imposes upon a subdivision owner additional
conditions.

xxx xxx xxx

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

We affirm.

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

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

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

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

It is necessary to stress that unless the creeping interference of the government in

essentially private matters is moderated, it is likely to destroy that prized and peculiar virtue
of the free society: individualism.

Every member of society, while paying proper deference to the general welfare, must not be
deprived of the right to be left alone or, in the Idiom of the day, "to do his thing." As long as
he does not prejudice others, his freedom as an individual must not be unduly curtailed.
We therefore urge that proper care attend the exercise of the police power lest it deteriorate
into an unreasonable intrusion into the purely private affairs of the individual. The so-called
"general welfare" is too amorphous and convenient an excuse for official arbitrariness.

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

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

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

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ,

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

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

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

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

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

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

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

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its
rationale is set forth in the opening paragraph thus: "Those who lust cannot last. This in
essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been
by innuendos of sexual titillation and fearful of what the awesome future holds for it, had no
alternative except to order thru its legislative machinery, and even at the risk of partial
economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also
why this Court, obedient to the mandates of good government, and cognizant of the
categorical imperatives of the current legal and social revolution, hereby [upholds] in the
name of police power the validity and constitutionality of Ordinance No. 84, Series of 1975,
of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in
these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper
appellate tribunals for any contemplated redress."9 This Court is, however, unable to agree
with such a conclusion and for reasons herein set forth, holds that reliance on the police
power is insufficient to justify the enactment of the assailed ordinance. It must be declared
null and void.

1. Police power is granted to municipal corporations in general terms as follows: "General

power of council to enact ordinances and make regulations. - The municipal council shall
enact such ordinances and make such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon it by law
and such as shall seem necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein." 10 It is
practically a reproduction of the former Section 39 of Municipal Code.11 An ordinance enacted
by virtue thereof, according to Justice Moreland, speaking for the Court in the leading case
of United States v. Abendan 12 "is valid, unless it contravenes the fundamental law of the
Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy,
or is unreasonable, oppressive, partial, discriminating, or in derogation of common right.
Where the power to legislate upon a given subject, and the mode of its exercise and the
details of such legislation are not prescribed, the ordinance passed pursuant thereto must be
a reasonable exercise of the power, or it will be pronounced invalid." 13 In another leading
case, United States v. Salaveria, 14 the ponente this time being Justice Malcolm, where the
present Administrative Code provision was applied, it was stated by this Court: "The general
welfare clause has two branches: One branch attaches itself to the main trunk of municipal
authority, and relates to such ordinances and regulations as may be necessary to carry into
effect and discharge the powers and duties conferred upon the municipal council by law.
With this class we are not here directly concerned. The second branch of the clause is much
more independent of the specific functions of the council which are enumerated by law. It
authorizes such ordinances as shall seem necessary and proper to provide for the health
and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants thereof, and for the protection of property
therein.' It is a general rule that ordinances passed by virtue of the implied power found in
the general welfare clause must be reasonable, consonant with the general powersand
purposes of the corporation, and not inconsistent with the laws or policy of the State." 15 If
night clubs were merely then regulated and not prohibited, certainly the assailed ordinance
would pass the test of validity. In the two leading cases above set forth, this Court had
stressed reasonableness, consonant with the general powers and purposes of municipal
corporations, as well as consistency with the laws or policy of the State. It cannot be said
that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term
reasonable. The objective of fostering public morals, a worthy and desirable end can be
attained by a measure that does not encompass too wide a field. Certainly the ordinance on
its face is characterized by overbreadth. The purpose sought to be achieved could have
been attained by reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of personal or property rights under the
guise of police regulation." 16 It is clear that in the guise of a police regulation, there was in
this instance a clear invasion of personal or property rights, personal in the case of those
individuals desirous of patronizing those night clubs and property in terms of the investments
made and salaries to be earned by those therein employed.

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

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the

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

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

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

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.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON

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

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First
Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the
Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park
cemetery shall be set aside for charity burial of deceased persons who are
paupers and have been residents of Quezon City for at least 5 years prior to
their death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for operation
not later than six months from the date of approval of the application.

For several years, the aforequoted section of the Ordinance was not enforced by city
authorities but seven years after the enactment of the ordinance, the Quezon City Council
passed the following resolution:

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

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

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

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

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

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

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

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

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

We find the stand of the private respondent as well as the decision of the respondent Judge
to be well-founded. We quote with approval the lower court's ruling which declared null and
void Section 9 of the questioned city ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the
police power?

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

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

'prohibit the burial of the dead within the center of population

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

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

euphemistically termed by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in

question is a valid exercise of police power. The police power of Quezon City
is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:
 (00) To make such further ordinance and regulations not
repugnant to law as may be necessary to carry into effect and
discharge the powers and duties conferred by this act and
such as it shall deem necessary and proper to provide for the
health and safety, promote, the prosperity, improve the
morals, peace, good order, comfort and convenience of the
city and the inhabitants thereof, and for the protection of
property therein; and enforce obedience thereto with such
lawful fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this section.

We start the discussion with a restatement of certain basic principles.

Occupying the forefront in the bill of rights is the provision which states that
'no person shall be deprived of life, liberty or property without due process of
law' (Art. Ill, Section 1 subparagraph 1, Constitution).

On the other hand, there are three inherent powers of government by which
the state interferes with the property rights, namely-. (1) police power, (2)
eminent domain, (3) taxation. These are said to exist independently of the
Constitution as necessary attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public

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

The police power being the most active power of the government and the due
process clause being the broadest station on governmental power, the
conflict between this power of government and the due process clause of the
Constitution is oftentimes inevitable.
 It will be seen from the foregoing authorities that police power is usually
exercised in the form of mere regulation or restriction in the use of liberty or
property for the promotion of the general welfare. It does not involve the
taking or confiscation of property with the exception of a few cases where
there is a necessity to confiscate private property in order to destroy it for the
purpose of protecting the peace and order and of promoting the general
welfare as for instance, the confiscation of an illegally possessed article, such
as opium and firearms.

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

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden
shouldered by whoever challenges the validity of duly enacted legislation whether national or
local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the
courts resolve every presumption in favor of validity and, more so, where the ma corporation
asserts that the ordinance was enacted to promote the common good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City
Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate Justice and
now Chief Justice Enrique M. Fernando stated

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

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

Health supra :

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

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

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

The expropriation without compensation of a portion of private cemeteries is not covered by

Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the
city council to prohibit the burial of the dead within the center of population of the city and to
provide for their burial in a proper place subject to the provisions of general law regulating
burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg.
337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial
of the dead in such place and in such manner as prescribed by law or ordinance" it simply
authorizes the city to provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law and practise in the past. It
continues to the present. Expropriation, however, requires payment of just compensation.
The questioned ordinance is different from laws and regulations requiring owners of
subdivisions to set aside certain areas for streets, parks, playgrounds, and other public
facilities from the land they sell to buyers of subdivision lots. The necessities of public safety,
health, and convenience are very clear from said requirements which are intended to insure
the development of communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when
individual lots are sold to home-owners.

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

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

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

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

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

Ramirez & Ortigas for appellant.

Tañada, Teehankee & Carreon for appellee.

SANTOS, J.:

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

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

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

1. The parcel of land subject of this deed of sale shall be used the Buyer
exclusively for residential purposes, and she shall not be entitled to take or
remove soil, stones or gravel from it or any other lots belonging to the Seller.
 2. All buildings and other improvements (except the fence) which may be
constructed at any time in said lot must be, (a) of strong materials and
properly painted, (b) provided with modern sanitary installations connected
either to the public sewer or to an approved septic tank, and (c) shall not be
at a distance of less than two (2) meters from its boundary lines. 2

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

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

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

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

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

On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the lower
court for decision. The complaint sought, among other things, the issuance of "a writ of
preliminary injunction ... restraining and enjoining defendant, its agents, assigns, and those
acting on its or their behalf from continuing or completing the construction of a commercial
bank building in the premises ... involved, with the view to commanding the defendant to
observe and comply with the building restrictions annotated in the defendant's transfer
certificate of title."
In deciding the said case, the trial court considered, as the fundamental issue, whether or not
the resolution of the Municipal Council of Mandaluyong declaring Lots Nos. 5 and 6, among
others, as part of the commercial and industrial zone of the municipality, prevailed over the
building restrictions imposed by plaintiff-appellant on the lots in question. 13 The records do
not show that a writ of preliminary injunction was issued.

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

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above

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

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

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

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

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

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

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

already had occasion to hold in Relativo v. Castro 24 that "(I)t is not incumbent on the
appellee, who occupies a purely defensive position, and is seeking no affirmative relief, to
make assignments of error, "
The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is a
valid exercise of police power; and (2) whether the said Resolution can nullify or supersede
the contractual obligations assumed by defendant-appellee.

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

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

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

An examination of Section 12 of the same law 34 which prescribes the rules for its
interpretation likewise reveals that the implied power of a municipality should be "liberally
construed in its favor" and that "(A)ny fair and reasonable doubt as to the existence of the
power should be interpreted in favor of the local government and it shall be presumed to
exist." The same section further mandates that the general welfare clause be liberally
interpreted in case of doubt, so as to give more power to local governments in promoting the
economic conditions, social welfare and material progress of the people in the community.
The only exceptions under Section 12 are existing vested rights arising out of a contract
between "a province, city or municipality on one hand and a third party on the other," in
which case the original terms and provisions of the contract should govern. The exceptions,
clearly, do not apply in the case at bar.

2. With regard to the contention that said resolution cannot nullify the contractual obligations
assumed by the defendant-appellee – referring to the restrictions incorporated in the deeds
of sale and later in the corresponding Transfer Certificates of Title issued to defendant-
appellee – it should be stressed, that while non-impairment of contracts is constitutionally
guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise
of police power, i.e., "the power to prescribe regulations to promote the health, morals,
peace, education, good order or safety and general welfare of the people. 35 Invariably
described as "the most essential, insistent, and illimitable of powers" 36 and "in a sense, the
greatest and most powerful attribute of government, 37 the exercise of the power may be
judicially inquired into and corrected only if it is capricious, 'whimsical, unjust or
unreasonable, there having been a denial of due process or a violation of any other
applicable constitutional guarantee. 38 As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et al. 39 police power "is elastic and
must be responsive to various social conditions; it is not, confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal progress of
a democratic way of life." We were even more emphatic in Vda. de Genuino vs. The Court of
Agrarian Relations, et al., 40 when We declared: "We do not see why public welfare when
clashing with the individual right to property should not be made to prevail through the state's
exercise of its police power.

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

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

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

Thus, the state, in order to promote the general welfare, may interfere with personal liberty,
with property, and with business and occupations. Persons may be subjected to all kinds of
restraints and burdens, in order to secure the general comfort health and prosperity of the
state 43 and to this fundamental aim of our Government, the rights of the individual are
subordinated. 44

The need for reconciling the non-impairment clause of the Constitution and the valid exercise
of police power may also be gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo,
speaking for the Court, resolved the conflict "between one welfare and another, between
particular and general, thus —

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

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

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

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

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

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

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

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

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

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

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

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

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

The Solicitor General for respondent Judge.

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

GUTIERREZ, JR., J.:

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

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

xxx xxx xxx

Plaintiff, in line with the policy of the government to promote tourism and
development of tourism projects will construct in Barangays Malubog, Busay
and Babag, all of Cebu City, a sports complex (basketball courts, tennis
courts, volleyball courts, track and field, baseball and softball diamonds, and
swimming pools), clubhouse, gold course, children's playground and a nature
area for picnics and horseback riding for the use of the public.
 The development plan, covering approximately 1,000 hectares, includes the
establishment of an electric power grid in the area by the National Power
Corporation, thus assuring the supply of electricity therein for the benefit of
the whole community. Deep wells will also be constructed to generate water
supply within the area. Likewise, a complex sewerage and drainage system
will be devised and constructed to protect the tourists and nearby residents
from the dangers of pollution.

Complimentary and support facilities for the project will be constructed,

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

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

xxx xxx xxx

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

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

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

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

xxx xxx xxx

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

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

possession is premature because the "public use" character of the taking has
not been previously demonstrated;
 C. The taking is not for public use in contemplation of eminent domain law;

D. The properties in question have been previously declared a land reform

area; consequently, the implementation of the social justice pro- ,vision of the
Constitution on agrarian reform is paramount to the right of the State to
expropriate for the purposes intended;

E. Proclamation No. 2052 declaring certain barangays in Cebu City, which

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

F. The forcible ejectment of defendants from the premises constitutes a

criminal act under Pres. Decree No. 583;

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

I. Enforcement of the Writ of Possession is Premature:

II. Presidential Decree 564 Amending Presidential Decree l89 is

Constitutionally Repugnant:

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

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

V. Presidential Proclamation 2052 is Unconstitutional:

VI. Presidential Decree No 1533 is Unconstitutional:

VII. The Court of First Instance has no Jurisdiction:

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

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

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

1. Non-compliance with the "public use" requirement under the eminent

domain provision of the Bill of Rights.

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

3. Impairment of the obligation of contracts.

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

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

Section 6, Article II provides:

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

xxx xxx xxx

Section 12, Article XIV provides:

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

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

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

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

The petitioners look for the word "tourism" in the Constitution. Understandably the search
would be in vain. The policy objectives of the framers can be expressed only in general
terms such as social justice, local autonomy, conservation and development of the national
patrimony, public interest, and general welfare, among others. The programs to achieve
these objectives vary from time to time and according to place, To freeze specific programs
like Tourism into express constitutional provisions would make the Constitution more prolix
than a bulky code and require of the framers a prescience beyond Delphic proportions. The
particular mention in the Constitution of agrarian reform and the transfer of utilities and other
private enterprises to public ownership merely underscores the magnitude of the problems
sought to be remedied by these programs. They do not preclude nor limit the exercise of the
power of eminent domain for such purposes like tourism and other development programs.
In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized that
the power of eminent domain is inseparable from sovereignty being essential to the
existence of the State and inherent in government even in its most primitive forms. The only
purpose of the provision in the Bill of Rights is to provide some form of restraint on the
sovereign power. It is not a grant of authority -

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

The constitutional restraints are public use and just compensation.

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

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

The petitioners face two major obstacles. First, their contention which is rather sweeping in
its call for a retreat from the public welfare orientation is unduly restrictive and outmoded.
Second, no less than the lawmaker has made a policy determination that the power of
eminent domain may be exercised in the promotion and development of Philippine tourism.

The restrictive view of public use may be appropriate for a nation which circumscribes the
scope of government activities and public concerns and which possesses big and correctly
located public lands that obviate the need to take private property for public purposes.
Neither circumstance applies to the Philippines. We have never been a laissez faire State,
And the necessities which impel the exertion of sovereign power are all too often found in
areas of scarce public land or limited government resources.

Certain aspects of parliamentary government were introduced by the 1973 amendments to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

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

xxx xxx xxx

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

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

xxx xxx xxx

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

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

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

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

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

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

xxx xxx xxx

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

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

... whether the order of respondent Judge in an expropriation case allowing

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

this Court held that:

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

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

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

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

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

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

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

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

SO ORDERED.

Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin and Relova, JJ.,
concur.

Aquino, J, concurs in the result.

De Castro, J, is on leave.