G.R. 161107 FERNANDO V. ST.

SCHOLASTICA COLLEGE MARCH 12,

2013
Doctrine: For an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and pass according to
the procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable.
FACTS:
Respondent is an educational institution organized under laws of the
Republic of the Philippines having offices in Malate Manila and West
Drive Marikina Heights.
Respondent owning 4 parcels of land enclosed by a tall concrete
perimeter built 30 years ago.
Petitioners are officials of the City Government of Marikina and on Sept
30, 1994, the Sangguniang Panlungsod of Marikina enacted Ordinance
No. 192 Regulating the Construction of Fences and Walls in the
Municipality of Marikina.
It requires among others:
o Prohibition of walls created in front of commercial and industrial
establishment to retain space for parking space
o That fences shall be no more than 1 meter in height and fences in
excess of 1 meter shall be an open fence type at least 80% see-thru
In April 2, 2000, the City Government of Marikina sent a letter to
respondents ordering them to demolish hand replace the fence of their
Marikina property to make it 80% see-thru and to also move it to provide
parking space.
Respondents requested for extension to comply
Petitioners through then City Mayor, Fernando, insisted on the
enforcement of the ordinance
Respondents filed a petition for prohibition with application of writ of
preliminary injunction and temporary restraining order before the
Regional Trial Court
Respondents argued that petitioners are acting in excess of jurisdiction
in enforcing said Ordinance asserting that it contravenes the
Constitution Sec 1, Article III as it would result to great loss of property
and destruction of property tantamount to appropriation of property
without due process.
Petitioners argue that said ordinance is a valid exercise of Police power
to restrain property rights for the protection of public safety, health,
morals, or the promotion of public convenience and general prosperity.
RTC decided:
o Ordered a writ of prohibition from implementing the Ordinance
o Agreeing with respondents, said ordinance should be performed
through appropriation only exercised by eminent domain and that
the petitioners cannot take respondents property under the guise
of police power to evade payment of just compensation.
o Also the 80% see-thru fence would counter respondents right to
privacy

 CA decided:
o Objectives of the ordinance did not justify the exercise of police
power as it involved of taking without due process of law.
o Petitioners failed to comply with substantive due process in the
creation of the ordinance
ISSUE: WON the ordinance is a valid exercise of police power by the LGU
HELD:
No. Citing White Light Corporation v. City of Manila:
o The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the
local government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not
be unreasonable.
Police power defined:
o Police power is the plenary power vested in the legislature to
make statutes and ordinances to promote the health, morals, peace,
education, good order or safety and general welfare of the
people.21 The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of
the State. This delegation of police power is embodied in Section
1622 of the Local Government Code of 1991 (R.A. No. 7160), known
as the General Welfare Clause,23 which has two branches. The
first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not
repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal
council by law. The second, known as the police power proper,
authorizes the municipality to enact ordinances as may be
necessary and proper for the health and safety, prosperity, morals,
peace, good order, comfort, and convenience of the municipality
and its inhabitants, and for the protection of their property.
Ordinance failed the rational relationship test and the strict scrutiny test,
although courts only used rational basis test
It failed the rational basis test for it is not reasonably necessary to
accomplish the Citys purpose as it is oppressive or private rights
Citing SJS v. Atienza on ratio0nal relationship test:
o the following requisites are met: (1) the interests of the public
generally, as distinguished from those of a particular class, require
its exercise and (2) the means employed are reasonably necessary
for the accomplishment of the purpose and not unduly oppressive
upon individuals. In short, there must be a concurrence of a lawful
subject and lawful method.
o Lacking a concurrence of these two requisites, the police power
measure shall be struck down as an arbitrary intrusion into private
rights and a violation of the due process clause

 The fence requirement

o Courts held that petitioner cannot justify the setback by arguing
that the ownership of the property will continue to remain with
respondents. The court held that the setback requirement would be
tantamount to taking 3,762.36 square meters of respondents
private property for public use without just compensation
o The courts held that the 80% see-thru fence failed the rational
relationship test as the petitioners must show the relation between
the purpose of police power measure and means employed as the
purpose was to discourage, suppress or prevent the concealment of
prohibited unlawful acts and the means employed. The court held
that the means employed was unduly oppressive to private rights
o Petitioners failed to show that 80% see-thru fence would provide a
better protection and higher level of security than a tall solid
concrete wall.