Republic of the Philippines On June 20, 1990, the municipal council of Parañaque issued a resolution authorizing Parañaque
SUPREME COURT Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment,
Manila
EN BANC
G.R. No. 97764 August 10, 1992
LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Com-
mand, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of
Makati, Metro Manila, MUNICIPALITY OF PARAÑAQUE, METRO MANILA, PALANYAG
KILUSANG BAYAN FOR SERVICE,respondents.
MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the
decision of the Regional Trial Court of Makati, Branch 62, which granted the writ of preliminary
injunction applied for by respondents Municipality of Parañaque and Palanyag Kilusang Bayan for
Service (Palanyag for brevity) against petitioner herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which
authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena
Streets located at Baclaran, Parañaque, Metro Manila and the establishment of a flea market
thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance
No. 2, Series of 1979, authorizing and regulating the use of certain city and/or municipal streets,
roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas,
under certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the
municipal council of respondent municipality subject to the following conditions:
1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the res-
idents 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 dis-
tinctly, 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.
operation, maintenance and management of flea markets and/or vending areas.
On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, en-
tered 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 gov-
ernment 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. Gabri-
el 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 prelim-
inary 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 en-
forcing 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 thorough-
fares 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 appro-
priation or private contract by any person, even by the respondent Municipality of Parañaque. Pe-
titioner 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 estab-
lishment 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 Ma-
nila 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 accord-
ance 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 ordi-
nance 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, oth-
erwise 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 pat-
rimonial 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 pro-
vincial 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 respond-
ent 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 pur-
suant 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 per-
son 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 au-
thority 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 patrimo-
nial 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 Devel-
opment 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 pur-
pose 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 "Fran-
cisco 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 con-
travenes the general law that reserves city streets and roads for public use. Mayor Robles' Ex-
ecutive Order may not infringe upon the vested right of the public to use city streets for the pur-
pose 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 res-
idents 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 dis-
tinctly, 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 en-
gines, 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 se-
conds 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. In-
stead, 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 mem-
bers 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 pro-
mote 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 re-
spondent 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 wor-
thy 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 petition-
er 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. 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.
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 Christ-
mas 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 as-
sembled that:
Sec. 1. — That pursuant to the policy of the city banning the operation of casino within its territori-
al 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 de-
fined 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 fol-
lows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVID-
ING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASI-
NO 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 Per-
mit to any establishment for the using and allowing to be used its premises or por-
tion 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 pub-
lic morals and general welfare of the people and/or regulate or prohibit such ac-
tivity pertaining to amusement or entertainment in order to protect social and mor-
al 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 penal-
ties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, part-
nership or corporation undertaking the operation, conduct, maintenance of gam-
bling 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, con-
duct 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 en-
1 2
forcement. Reconsideration of this decision was denied on July 13, 1993.
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of
3
the Rules of Court. 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 op-
eration 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 cock-
fighting 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 is-
sues 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.
4
In Basco v. Philippine Amusements and Gaming Corporation, this Court sustained the constitu-
tionality 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 re-
spective 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 technologi-
cal capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and or-
der, 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 ordi-
nances, 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 exer-
cise 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 effec-
tive city government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, sup-
press and impose appropriate penalties for ha-
bitual drunkenness in public places, vagrancy,
mendicancy, prostitution, establishment and
maintenance of houses of ill repute,gambling and
other prohibited games of chance, fraudulent de-
vices and ways to obtain money or property, drug
addiction, maintenance of drug dens, drug push-
ing, juvenile delinquency, the printing, distribution
or exhibition of obscene or pornographic materi-
als or publications, and such other activities inim-
 ical to the welfare and morals of the inhabitants
of the city;
This section also authorizes the local government units to regulate properties and businesses
5
within their territorial limits in the interest of the general welfare.
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohib-
it 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 casi-
nos 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 there-
in 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 rec-
ognized the competence of such communities to determine and adopt the measures best ex-
pected 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, black-
jack and roulette, it meant allforms of gambling without distinction. Ubi lex non distinguit, nec nos
6
distinguere debemos. 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 modi-
fied 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. Sec-
tion 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 inter-
preted 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 disap-
probation of the vice. They invoke the State policies on the family and the proper upbringing of the
7
youth and, as might be expected, call attention to the old case of U.S. v. Salaveria, which sus-
tained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the im-
morality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a mar-
tial 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 gener-
ally considered inimical to the interests of the people, there is nothing in the Constitution categori-
cally 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 prohibit-
ed jueteng and monte but permits lotteries, cockfighting and horse-racing. In making such choic-
es, 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 theo-
8
ries. 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 re-
solved 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.
 9
The tests of a valid ordinance are well established. A long line of decisions has held that to be
valid, an ordinance must conform to the following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
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 ad-
mittedly 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 govern-
ment 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 govern-
ment 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, memo-
randa 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; Sec-
tion 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presiden-
tial 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
10
clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, this Court ex-
plained:
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 re-
peal 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 Govern-
ment 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 inevita-
bly 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 govern-
ment. 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 sup-
press 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 ille-
gal 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 ordi-
nances 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 prohi-
bition 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 leg-
islature. 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
11
of the legislature.
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 auton-
omy. 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 in-
cludes the power to withhold or recall. True, there are certain notable innovations in the Constitu-
12
tion, like the direct conferment on the local government units of the power to tax, which cannot
now be withdrawn by mere statute. By and large, however, the national legislature is still the prin-
cipal 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 constitu-
ents 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
13
special effort, turns the head of the workman" and that "habitual gambling is a cause of laziness
14 15
and ruin." In People v. Gorostiza, 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 touch-
stone 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 ca-
sinos 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 govern-
ment 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. 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, CON-
TESTS 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 cor-
poration engaged in the business of selling admission tickets to any movie or oth-
er 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 imprison-
ment 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 Man-
ager, 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 unenforcea-
1
ble.
2
Upon motion of the petitioners, 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.
3
640. On July 29, 1969, respondents filed their answer sustaining the validity of the ordinance.
4
5
On January 30, 1973, the litigants filed their stipulation of facts. On June 4, 1973, the respondent
6
court rendered its decision, 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 HUN-
DRED 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
8
Petitioners filed their motion for reconsideration of the decision of the court a quo which was de-
9
nied in a resolution of the said court dated November 10, 1973.
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 en-
act 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 leg-
islative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical per-
formances, cinematographs, public exhibitions and all other performances and places of amuse-
ments ...
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 pro-
vides:
(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, con-
venience, and general welfare of the city and its inhabitants, and such others as may be neces-
sary 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 li-
cense 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 im-
positions were considered as not merely license fees but taxes for purposes of revenue and not
10
regulation which the cities have no power to exact, unless expressly granted by its charter.
11
12
Applying the ruling in Kwong Sing v. City of Manila, 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.
13
While in a New York case, an ordinance which regulates the business of selling admission tick-
ets 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 pub-
lic 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 to-
kens 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 del-
14 15
egated police power by the local government. Thus, in People v. Chan, an ordinance of the
City of Manila prohibiting first run cinematographs from selling tickets beyond their seating capaci-
ty was upheld as constitutional for being a valid exercise of police power. Still in another
16
case, the validity of an ordinance of the City of Bacolod prohibiting admission of two or more
persons in moviehouses and other amusement places with the use of only one ticket was sus-
tained 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 gen-
erally 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 individu-
17
als. 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
18
conclusive, but is subject to the supervision of the courts.
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, In-
asmuch 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 Consti-
tution, the exercise of police power is necessarily subject to a qualification, limita-
tion 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 ex-
tent--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 tak-
en 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
19
reduced. a
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 inter-
20
ests. 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
21
department.
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 rea-
22
sonable relation must exist between purposes and means. The evident purpose of the ordi-
nance 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 petition-
ers 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 al-
ready 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 pa-
trons to prove the age of children. This is, however, not at all practicable. We can see that the or-
dinance is clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreo-
ver, 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 un-
conscionable 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 to-
tally 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 chil-
dren 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 at-
tractive nuisances, it is difficult to comprehend why the municipal board passed the subject ordi-
nance. How can the municipal authorities consider the movies an attractive nuisance and yet en-
courage 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 pic-
tures 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 envi-
sioned 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 propri-
etor 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
23
that he behaves properly. Such ticket, therefore, represents a right, Positive or conditional, as
the case may be, according to the terms of the original contract of sale. This right is clearly a right
of property. The ticket which represents that right is also, necessarily, a species of property. As
such, the owner thereof, in the absence of any condition to the contrary in the contract by which
he obtained it, has the clear right to dispose of it, to sell it to whom he pleases and at such price
24
as he can obtain. So that an act prohibiting the sale of tickets to theaters or other places of
amusement at more than the regular price was held invalid as conflicting with the state constitu-
25
tion securing the right of property.
26
In Collister vs. Hayman, 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 Su-
preme 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 instruc-
tion. 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
28 29
during periods of emergency, limiting the net profits of public utility as well as regulating rent-
30
als of residential apartments for a limited period, as 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 appropri-
ate 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 considera-
31
ble. People 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
32
to regulate the movie industry. Their aesthetic entertainment and even educational values can-
not 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 ordi-
nance must be reasonable, and its provisions cannot be oppressive amounting to an arbitrary in-
terference 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 pow-
33
er. 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
34
rights. The right of the owner to fix a price at which his property shall be sold or used is an in-
herent 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
36
who did not approve could stay away.
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 al-
ways in favor of the validity or reasonableness of the ordinance, such presumption must neverthe-
less be set aside when the invalidity or unreasonableness appears on the face of the ordinance
37
itself or is established by proper evidence. The exercise of police power by the local government
is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or un-
less it is against public policy or is unreasonable, oppressive, partial, discriminating or in deroga-
tion 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 considera-
tions, 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, un-
der 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 unconstitu-
tional 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.
 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.
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
1
Hills Subdivision along Epifanio de los Santos Avenue, Mandaluyong, Rizal.
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
2
be at a distance of less than two (2) meters from its boundary lines.
The above restrictions were later annotated in TCT Nos. 101509 and 101511 of the Register of
3
Deeds of Rizal, covering the said lots and issued in the name of Emma Chavez.
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 there-
4
in. Defendant-appellee bought Lot No. 5 directly from Emma Chavez, "free from all liens and en-
5
cumbrances as stated in Annex 'D', while Lot No. 6 was acquired from Republic Flour Mills
6
through a "Deed of Exchange," Annex "E". 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
7
in the Deed of Sale, Annex "F" 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 beauti-
fication and development of the Highway Hills Subdivision which forms part of the big landed es-
tate of plaintiff-appellant where commercial and industrial sites are also designated or estab-
lished.
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
9
Council of Mandaluyong, Rizal. It alleges that plaintiff-appellant 'completely sold and transferred
10
to third persons all lots in said subdivision facing Epifanio de los Santos Avenue" and the sub-
ject lots thereunder were acquired by it "only on July 23, 1962 or more than two (2) years after the
11
area ... had been declared a commercial and industrial zone ...
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 de-
fendant-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 con-
struction of the commerical building on the said lots. The latter refused to comply with the de-
mand, contending that the building was being constructed in accordance with the zoning regula-
tions, defendant-appellee having filed building and planning permit applications with the Municipal-
ity of Mandaluyong, and it had accordingly obtained building and planning permits to proceed with
12
the construction.
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 in-
junction ... 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 prem-
ises ... involved, with the view to commanding the defendant to observe and comply with the build-
ing 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 re-
13
strictions imposed by plaintiff-appellant on the lots in question. 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 sub-
ject restrictions were subordinate to Municipal Resolution No. 27, supra. It predicated its conclu-

sion 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
14
as against defendant-appellee. 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
15
whether the same is null and void.
On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above deci-
16 17
sion, which motion was opposed by defendant-appellee on March 17, 1965. 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 annotat-
ed 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
18
obligations assumed by the defendant corporation."
19
The trial court denied the motion for reconsideration in its order of March 26, 1965.
On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the com-
plaint and from the order of March 26, 1965 denying the motion for reconsideration, its record on
20 21
appeal, and a cash appeal bond." On April 14, the appeal was given due course and the rec-
22
ords of the case were elevated directly to this Court, since only questions of law are raised.
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 con-
tractual 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
23
from said property line.
The defendant-appellee submitted its counter-assignment of errors. In this connection, We al-
24
ready had occasion to hold in Relativo v. Castro that "(I)t is not incumbent on the appellee, who
occupies a purely defensive position, and is seeking no affirmative relief, to make assignments of
error, "
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 con-
tractual obligations assumed by defendant-appellee.
1. The contention that the trial court erred in sustaining the validity of Resolution No. 27 as an ex-
ercise 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,
25
and are within the issues framed by the parties. The object of requiring the parties to present all
questions and issues to the lower court before they can be presented to the appellate court is to
enable the lower court to pass thereon, so that the appellate court upon appeal may determine
whether or not such ruling was erroneous. The requirement is in furtherance of justice in that the
26
other party may not be taken by surprise. 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, pre-
27 28
vent deception. For it is well-settled that issues or defenses not raised or properly litigat-
29 30
ed or pleaded 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 stipula-
tion 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 ques-
31
tion. 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
32
Act," empowers a Municipal Council "to adopt zoning and subdivision ordinances
33
or regulations"; for the municipality. Clearly, the law does not restrict the exercise of the power
through an ordinance. Therefore, granting that Resolution No. 27 is not an ordinance, it certainly is
a regulatory measure within the intendment or ambit of the word "regulation" under the provision.
As a matter of fact the same section declares that the power exists "(A)ny provision of law to the
contrary notwithstanding ... "
34
An examination of Section 12 of the same law 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 man-
dates 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 vest-
ed 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 as-
sumed 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
35
safety and general welfare of the people. Invariably described as "the most essential, insistent,
36
and illimitable of powers" and "in a sense, the greatest and most powerful attribute of govern-
37
ment, the exercise of the power may be judicially inquired into and corrected only if it is capri-
cious, 'whimsical, unjust or unreasonable, there having been a denial of due process or a violation
 38
of any other applicable constitutional guarantee. As this Court held through Justice Jose P.
39
Bengzon in Philippine Long Distance Company vs. City of Davao, et al. police power "is elastic
and must be responsive to various social conditions; it is not, confined within narrow circumscrip-
tions of precedents resting on past conditions; it must follow the legal progress of a democratic
way of life." We were even more emphatic inVda. de Genuino vs. The Court of Agrarian Relations,
40
et al., 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, espe-
cially where lots Nos. 5 and 6 are located. The lots themselves not only front the highway; indus-
trial 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, speak-
41
ing thru Justice Laurel in the leading case of Calalang v. Williams et al., 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, be-
cause 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
42
regulation which formerly were not so considered. (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
43
and burdens, in order to secure the general comfort health and prosperity of the state and to
44
this fundamental aim of our Government, the rights of the individual are subordinated.
The need for reconciling the non-impairment clause of the Constitution and the valid exercise of
45
police power may also be gleaned from Helvering v. Davis wherein Mr. Justice Cardozo, speak-
ing 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
46
changes with the times.
The motives behind the passage of the questioned resolution being reasonable, and it being a "
47
legitimate response to a felt public need," 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
48
likely to succumb to the challenge that thereby contractual rights are rendered nugatory."
49
Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General 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,
butthe reservation of essential attributes of sovereign power is also read into contracts as a postu-
late 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 govern-
ment which retains adequate authority to secure the peace and good order of society.
50
Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial Relations, through Jus-
tice J.B.L. Reyes, that ... the law forms part of, and is read into, every contract, unless clearly ex-
cluded therefrom in those cases where such exclusion is allowed." The decision in Maritime Com-
51
pany of the Philippines v. Reparations Commission, 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
52
authorities to bolster its theory that the municipal resolution in question cannot nullify or super-
sede 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
53
each law and the context of other local legislation related thereto. and Burgess, et al v.
55
Magarian, et al., 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 con-
tractual 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 en-
forced, but will, in such a case, leave the complainant to whatever remedy he may have at
56
law. (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 es-
57
tate. 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 resi-
dential 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 bind-
ing 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
58
with or abrogate or annul any easements, covenants or other agreement between parties." 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 Trans-
fer Certificates of Title Nos. 101613 and 106092, the contractual obligations so assumed cannot
prevail over Resolution No. 27, of the Municipality of Mandaluyong, which has validly exercised its
police power through the said resolution. Accordingly, the building restrictions, which declare Lots
Nos. 5 and 6 as residential, cannot be enforced.

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

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ.,
concur.

Teehankee * and Aquino,JJ., took no part.

 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 munici-
1
pal officials enjoining them from enforcing Resolution No 29 of the Council, declaring the ware-
house of petitioner in barrio Sta. Elena of the said municipality a public nuisance within the pur-
view 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 bail-
ing 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 hous-
es, 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
2
Article 694 of the New Civil Code. His motion for reconsideration having been denied by the Mu-
nicipal 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 munici-
pality 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 Mu-
nicipal 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, constitution-
al;
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 estab-
lishments 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
3
creation. 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, pro-
mote the prosperity, improve the morals, peace, good order, comfort and convenience of the mu-
4
nicipality and the inhabitants thereof, and for the protection of property therein.
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 con-
sonance with certain well established and basic principles of a substantive nature. These princi-
ples 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 un-
5
reasonable. 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 ques-
tion a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of
6 than or differrent from what was provided in the ordinance in question. It merely stated the pur-
Virac on December 29, 1952, reads: AN ORDINANCE STRICTLY PROHIBITING THE CON-
STRUCTION 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, corpora-
tion 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 The objections interposed by the petitioner to the validity of the ordinance have not been substan-
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 exist-
ence, same warehouses shall be exempted from the spirit of the provision of section 1 of this or-
dinance,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, basical-
ly, what is regulated by the ordinance is the construction of warehouses wherein inflammable ma-
terials 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 per-
sons charged with the drafting and preparation of municipal resolutions and ordinances lack suffi-
cient education and training and are not well grounded even on the basic and fundamental ele-
ments of the English language commonly used throughout the country in such matters. Neverthe-
less, if one scrutinizes the terms of the ordinance, it is clear that what is prohibited is the construc-
tion 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 prop-
erty and life due to fire. Under Section 2, existing warehouses for the storage of the prohibited ar-
ticles 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 construc-
tion 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 or-
dinance 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
pose 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 ad-
ministration and enforcement. There is no valid reason for the petitioner to complain, in the ab-
sence 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.
tiated. 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 inflam-
mable products in the warehouse because of the danger of fire to the lives and properties of the
people residing in the vicinity. As far as public policy is concerned, there can be no better policy
than what has been conceived by the municipal government.
As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same.
The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls
under the then Court of First Instance. WHEREFORE, for lack of merit, the petition is hereby
DISMISSED. Costs against petitioner. SO ORDERED. Melencio-Herrera, Paras, Padilla and
Regalado, JJ., concur.
 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.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
1
Bocaue, Bulacan, represented by respondents, 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 li-
censes previously given to them was in effect withdrawn without judicial hearing.
2 ing. 3. That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the
3 ferred to the Department of Tourism." The cases were assigned to respondent Judge, now As-
The assailed ordinance 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 sell-
ing 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 es-
tablishments 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 per-
sons she dances with. (e) 'Operator' shall include the owner, manager, administrator or any per-
son 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 pro-
fessional hostesses, hospitality girls and professional dancers are hereby revoked upon the expi-
ration of the thirty-day period given them as provided in Section 8 hereof and thenceforth, the op-
eration 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 Or-
dinance 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. Sec-
tion 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 pro-
fessional 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
5
Court of First Instance of Bulacan. The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful busi-
ness, 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 hear-
power to license and regulate tourist-oriented businesses including night clubs, has been trans-
6
sociate Justice Paras of the Intermediate Appellate Court, who issued a restraining order on No-
vember 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 Presi-
dential Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to
7
regulate or prohibit night clubs." 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 pre-
viously 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 busi-
nesses; 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 venere-
al 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
 8
in other parts of Bocaue or in other towns of Bulacan." Then came on January 15, 1976 the de-
cision 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 rev-
olution, hereby [upholds] in the name of police power the validity and constitutionality of Ordi-
nance 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 Febru-
ary, 1976, the purpose of the grace period being to enable the petitioners herein to apply to the
9
proper appellate tribunals for any contemplated redress." 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 or-
dinances and make such regulations, not repugnant to law, as may be necessary to carry into ef-
fect and discharge the powers and duties conferred upon it by law and such as shall seem neces-
sary 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
10
for the protection of property therein." It is practically a reproduction of the former Section 39 of
11
Municipal Code. An ordinance enacted by virtue thereof, according to Justice Moreland, speak-
12
ing for the Court in the leading case of United States v. Abendan "is valid, unless it contravenes
the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is
against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of
common right. Where the power to legislate upon a given subject, and the mode of its exercise
and the details of such legislation are not prescribed, the ordinance passed pursuant thereto must
13
be a reasonable exercise of the power, or it will be pronounced invalid." In another leading
14
case, United States v. Salaveria, the ponente this time being Justice Malcolm, where the pre-
sent 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 spe-
cific 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 pol-
15
icy of the State." If night clubs were merely then regulated and not prohibited, certainly the as-
sailed 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 munici-
pal 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 reasona-
ble. 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 charac-
terized by overbreadth. The purpose sought to be achieved could have been attained by reasona-
ble 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 in-
16
vasion of personal or property rights under the guise of police regulation." It is clear that in the
guise of a police regulation, there was in this instance a clear invasion of personal or property
rights, personal in the case of those individuals desirous of patronizing those night clubs and
property in terms of the investments made and salaries to be earned by those therein employed.
17
2. The decision now under review refers to Republic Act No. 938 as amended. 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 TERRI-
18
TORIAL JURISDICTIONS.' 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 estab-
lishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions, cock-
pits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within its
19
territorial jurisdiction: ... " Then on May 21, 1954, the first section was amended to include not
20
merely "the power to regulate, but likewise "Prohibit ... " The title, however, remained the same.
It is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the
above portion of the Act were considered, a municipal council may go as far as to prohibit the op-
eration 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, notprohibition. There is
thus support for the view advanced by petitioners that to construe Republic Act No. 938 as allow-
ing 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
21
title thereof. " Since there is no dispute as the title limits the power to regulating, not prohibiting,
it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the opera-
tion of a night club was prohibited. There is a wide gap between the exercise of a regulatory pow-
22
er "to provide for the health and safety, promote the prosperity, improve the morals, in the lan-
23
guage of the Administrative Code, such competence extending to all "the great public needs, to
quote from Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the
well-settled principle of constitutional construction that between two possible interpretations by
one of which it will be free from constitutional infirmity and by the other tainted by such grave de-
fect, the former is to be preferred. A construction that would save rather than one that would affix
24
the seal of doom certainly commends itself. We have done so before We do so again.
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recent-
25
ly-enacted Local Government Code. The general welfare clause, a reiteration of the Administra-
tive Code provision, is set forth in the first paragraph of Section 149 defining the powers and du-
ties of the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regu-
lations 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 con-
venience, 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 there- Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and
26
in; ..." There are in addition provisions that may have a bearing on the question now before this Gutierrez, Jr., JJ., concur.
Court. Thus the sangguniang bayan shall "(rr) Regulate cafes, restaurants, beer-houses, hotels,
motels, inns, pension houses and lodging houses, except travel agencies, tourist guides, tourist Makasiar, J, reserves his right to file a dissent.
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 exer- De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.
cise 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
27
other forms of entertainment; ..." It is clear that municipal corporations cannot prohibit the opera-
tion 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 peti-
tioners 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 cor-
rection. 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 tem-
porary 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 ele-
ment 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
28
Mayor of Manila. 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 afore-
said Ermita-Malate Hotel and Motel Operators Association, Inc. decision that there must be a fac-
tual foundation of invalidity, it was likewise made clear that there is no need to satisfy such a re-
quirement 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.