PART V LOCAL POLICE POWER

Contents
Sec 16, LGC ............................................................................................................................................ 1
City of Gen Santos v. COA ..................................................................................................................... 2
US v. Salaveria ..................................................................................................................................... 14
Binay v Domingo ................................................................................................................................. 19
Tatel v Mun of Virac ............................................................................................................................ 23
Tano v Socrates supra ......................................................................................................................... 27
Lim v Pacquing .................................................................................................................................... 27
De la Cruz v Paras ................................................................................................................................ 37
Ortigas v FEATI Bank ........................................................................................................................... 41
Balcuit v CFI of Agusan ........................................................................................................................ 47
Zoomzat v People................................................................................................................................ 55
Tan v Perea.......................................................................................................................................... 55
Lucena Grand Terminal v JAC Liner..................................................................................................... 63
Ermita Malate Hotel and Motel Operators v City Mayor of Manila ................................................... 71
City of Manila v Laguio ........................................................................................................................ 78
White Light Corp v City of Manila ....................................................................................................... 99
Rimando v Naguilian Emission Testing Center.................................................................................. 109
Fernando v St Scholastica’s College .................................................................................................. 113
Legaspi v City of Cebu ....................................................................................................................... 124
Social Justice Society v Atienza ......................................................................................................... 136
Social Justice Society Officers v Lim .................................................................................................. 140

Sec 16, LGC

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

City of Gen Santos v. COA

G.R. No. 199439 April 22, 2014

CITY OF GENERAL SANTOS, represented by its Mayor, HON. DARLENE MAGNOLIA R.

ANTONINO-CUSTODIO Petitioner,
vs.
COMMISSION ON AUDIT, Respondent.

DECISION

LEONEN, J.:

In order to be able to deliver more effective and efficient services, the law allows local government
units the power to reorganize. In doing so, they should be given leeway to entice their employees to
avail of severance benefits that the local government can afford. However, local government units
may not provide such when it amounts to a supplementary retirement benefit scheme.

In this special civil action for certiorari,1 the city of General Santos asks us to find grave abuse of
discretion on the part of the Commission on Audit (COA). On January 20, 2011, respondent
Commission on Audit affirmed the findings of its Legal Services Sector in its Opinion No. 2010-021
declaring Ordinance No. 08, series of 2009, as illegal. This was reiterated in respondent
Commission’s resolution denying the motion for reconsideration dated October 17, 2011.2

Ordinance No. 08, series of 2009, was enacted by the city of General Santos on August 13, 2009. It
is entitled An Ordinance Establishing the GenSan Scheme on Early Retirement for Valued
Employees Security (GenSan SERVES).3

It is important to view this ordinance in its proper context.

Then mayor of General Santos City, Pedro B. Acharon, Jr., issued Executive Order No. 40, series of
2008, creating management teams pursuant to its organization development program. This was
patterned after Executive Order No. 366 dated October 4, 2004 entitled Directing a Strategic Review
of the Operations and Organizations of the Executive Branch and Providing Options and Incentives
for Government Employees who may be Affected by the Rationalization of the Functions and
Agencies of the Executive Branch and its implementing rules and regulations.4

Mayor Pedro B. Acharon, Jr. declared the city’s byword of "Total Quality Service" in his state of the
city address in 2005. This was followed by the conduct of a process and practice review for each
department, section, and unit of the local government. The product was an organization
development masterplan adopted as Executive Order No. 13, series of 2009.5

This was followed by Resolution No. 004, series of 2009, requesting for the mayor’s support for
GenSan SERVES, an early retirement program to be proposed to the Sangguniang Panlungsod.
Consequently, Ordinance No. 08, series of 2009, was passed together with its implementing rules
and regulations, designed "to entice those employees who were unproductive due to health reasons
to avail of the incentives being offered therein by way of early retirement package."6

This contextual background in the passing of Ordinance No. 08, series of 2009, was not contested
by respondent Commission on Audit.

The ordinance, as amended, provides that qualified employees below sixty (60) years of age but not
less than fifty (50) years and sickly employees below fifty (50) years of age but not less than forty
(40) years may avail of the incentives under the program.7 In other words, the ordinance "provides
for separation benefits for sickly employees who have not yet reached retirement age."8 Section 5 of
the ordinance states:

Section 5. GenSan SERVES Program Incentives On Top of Government Service Insurance System
(GSIS) and PAG-IBIG Benefits – Any personnel qualified and approved to receive the incentives of
this program shall be entitled to whatever retirement benefits the GSIS or PAG-IBIG is granting to a
retiring government employee.

Moreover, an eligible employee shall receive an early retirement incentive provided under this
program at the rate of one and one-half (1 1/2) months of the employee’s latest basic salary for
every year of service in the City Government.9

Also, the ordinance provides:

Section 6. GenSan SERVES Post-Retirement Incentives – Upon availment of early retirement, a

qualified employee shall enjoy the following in addition to the above incentives:

(a) Cash gift of Fifty Thousand Pesos (P50,000.00) for the sickly employees;

(b) Lifetime free medical consultation at General Santos City Hospital;

(c) Annual aid in the maximum amount of Five Thousand Pesos (P5,000.00), if admitted at
General Santos City Hospital; and

(d) 14 karat gold ring as a token.10

As provided, payment would be made in two tranches: 50% paid in January 2010 and the remainder
in July 2010.11 Petitioner city alleged that out of its 1,361 regular employees, 50 employees applied,
from which 39 employees qualified to avail of the incentives provided by the ordinance. 12 The first
tranche of benefits was released in January 2010.13

In a letter dated February 10, 2010, the city’s audit team leader, through its supervising auditor, sent
a query on the legality of the ordinance to respondent Commission on Audit’s director for Regional
Office No. XII, Cotabato City.14

In his second indorsement dated March 15, 2010, respondent Commission’s regional director
agreed that the grant lacked legal basis and was contrary to the Government Service Insurance
System (GSIS) Act. He forwarded the matter to respondent Commission’s Office of General
Counsel, Legal Services Sector, for a more authoritative opinion.15
The Office of General Counsel issued COA-LSS Opinion No. 2010-021 on March 25, 2010. The
opinion explained that Ordinance No. 08, series of 2009, partakes of a supplementary retirement
benefit plan. In its view, Section 28, paragraph (b) of Commonwealth Act No. 186, as amended,
prohibits government agencies from establishing supplementary retirement or pension plans from
the time the Government Service Insurance System charter took effect while those plans already
existing when the charter was enacted were declared abolished.16

The opinion discussed that this prohibition was reiterated in Conte v. Commission on Audit. 17 Laraño
v. Commission on Audit,18 on the other hand, ruled that an early retirement program should be by
virtue of a valid reorganization pursuant to law in order to be valid. The opinion concludes as follows:

In fine, since Ordinance No. 08 is in the nature of an ERP [Early Retirement Program] of the City
Government of General Santos, a law authorizing the same is a requisite for its validity. In the
absence, however, of such law, the nullity of Ordinance No. 08 becomes a necessary consequence.

It is hoped that the foregoing sufficiently answers the instant query.19

Petitioner city, through then mayor, Pedro B. Acharon, Jr., filed a letter-reconsideration dated June
7, 2010. They followed through with two letters addressed to respondent Commission’s chairman
dated July 26, 2010 and October 6, 2010, respectively, for the reconsideration of COA-LSS Opinion
No. 2010-021.20

Respondent Commission on Audit treated these letters as an appeal. On January 20, 2011, it
rendered its decision denying the appeal and affirming COA-LSS Opinion No. 2010-021.21 It also
denied reconsideration by resolution dated October 17, 2011.22 The dispositive portion of its decision
reads:

WHEREFORE, premises considered, the instant appeal is hereby DENIED for lack of merit and
COA-LSS Opinion No. 2010-021 dated March 25, 2010 of the OGC, this Commission is hereby
AFFIRMED. Accordingly, the ATL of General Santos City is hereby directed to issue a Notice of
Disallowance on the illegal disbursements made under the Gen[S]san SERVES.23

Respondent Commission on Audit agreed that Ordinance No. 08, series of 2009, partakes of the
nature of a supplementary retirement benefit plan proscribed by Section 28, paragraph (b) of
Commonwealth Act No. 186 as amended. It also cited Conte v. Commission on Audit24 and Laraño v.
Commission on Audit.25

In its opinion, respondent Commission on Audit observed that GenSan SERVES was not based on a
law passed by Congress but on ordinances and resolutions passed and approved by the
Sangguniang Panlungsod and Executive Orders by the city mayor.26 Moreover, nowhere in Section
76 of Republic Act No. 7160, otherwise known as the Local Government Code, does it provide a
specific power for local government units to establish an early retirement program.

Mayor Acharon, Jr. submitted that other local government units such as Cebu in 2005 and 2008
have adopted their own early retirement programs. The resolutions of the Sangguniang Panlungsod
of Cebu invoked Republic Act No. 6683 dated December 2, 1988, which provided for early
retirement and voluntary separation. The questioned decision mentioned that respondent
Commission on Audit would look into this program supposedly adopted by Cebu.27 Assuming Cebu’s
invocation of Republic Act No. 6683 was proper, respondent Commission on Audit explained that
this has already been amended by Republic Act No. 8291, otherwise known as the GSIS Act of
1997. Moreover, Section 9 of Republic Act No. 668328 provides for limited application.29
The present petition raises this sole issue:

WHETHER RESPONDENT COMMISSION ON AUDIT COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT CONSIDERED ORDINANCE NO. 08, SERIES OF 2009, IN THE NATURE
OF AN EARLY RETIREMENT PROGRAM REQUIRING A LAW AUTHORIZING IT FOR ITS
VALIDITY

This court has consistently held that findings of administrative agencies are generally respected,
unless found to have been tainted with unfairness that amounted to grave abuse of discretion:

It is the general policy of the Court to sustain the decisions of administrative authorities, especially
one which is constitutionally-created not only on the basis of the doctrine of separation of powers but
also for their presumed expertise in the laws they are entrusted to enforce. Findings of administrative
agencies are accorded not only respect but also finality when the decision and order are not tainted
with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when the
COA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. There is
grave abuse of discretion when there is an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based
on law and evidence but on caprice, whim and despotism.30 (Emphasis supplied, citations omitted)

We have ruled that "not every error in the proceedings, or every erroneous conclusion of law or fact,
constitutes grave abuse of discretion."31 Grave abuse of discretion has been defined as follows:

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. x x x.32

In Yap v. Commission on Audit,33 this court explained that the Commission on Audit has the duty to
make its own assessment of the merits of the disallowance and need not be limited to a review of
the grounds relied upon by the auditor of the agency concerned:

x x x we rule that, in resolving cases brought before it on appeal, respondent COA is not required to
limit its review only to the grounds relied upon by a government agency’s auditor with respect to
disallowing certain disbursements of public funds. In consonance with its general audit power,
respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment
of the merits of the disallowed disbursement and not simply restrict itself to reviewing the validity of
the ground relied upon by the auditor of the government agency concerned. To hold otherwise would
render COA’s vital constitutional power unduly limited and thereby useless and ineffective.34

Moreover, Article IX-A, Section 7 of the Constitution provides that "unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
Rule 64, Section 2 of the Revised Rules of Civil Procedure also provides that "a judgment or final
order or resolution of the Commission on Elections and the Commission on Audit may be brought by
the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter
provided."
Thus, we proceed to determine whether respondent Commission on Audit acted with grave abuse of
discretion in affirming the opinion of its Legal Services Sector and finding that the entire Ordinance
No. 08, series of 2009, partakes of the nature of a proscribed supplementary retirement benefit plan.

II

According to petitioner city, GenSan SERVES does not provide for supplementary retirement
benefits, and Conte does not apply.35

Petitioner city explains that unlike the facts in Conte, Ordinance No. 08, series of 2009, was
designed to entice employees who are unproductive due to health reasons to avail of the incentives
by way of an early retirement package. In essence, the incentives are severance pay. Those who
have reached retirement age are disqualified.36

Petitioner city adds that GenSan SERVES is a one-time offer. It is available only to qualified
employees who applied within two months from the ordinance’s effectivity. In fact, out of its 1,361
regular employees, 50 employees applied. Out of all that applied, only 39 employees qualified to
avail of the incentives provided by the ordinance.37

These incentives are independent and distinct from the Government Service Insurance System
retirement package.38

Section 5 of Ordinance No. 08, series of 2009, was amended by Ordinance No. 11, series of 2009,
"to exclude those GSIS and PAG-IBIG benefits the payment[s] of which are passed on [to] the
employer."39 This was to remove any doubt as to its coverage and applicability and to ensure that no
employee will be paid twice.40 The amended provision reads:

Section 5. Gen[S]an SERVES Program Incentives On Top of Government Service Insurance

System (GSIS) and PAG-IBIG Benefits – Any personnel qualified and approved to receive the
incentives of this program shall be entitled to whatever retirement benefits the GSIS or PAG-IBIG is
granting to a retiring government employee, except those benefits the payment of which are passed
on to the employer. In which case, the benefits granted under this ordinance shall only be
considered as one of the options available to a retiring city employee.

Moreover, an eligible employee shall receive an early retirement incentive provided under this
program at the rate of one and one-half (1 1/2) months of the employee’s latest basic salary for
every year of service in the City Government. (Emphasis supplied)

According to petitioner city, GenSan SERVES is an initial step pursuant to its organization
development masterplan,41 which began with the city mayor’s issuance of Executive Order No. 40,
series of 2008, creating change management teams.42

Petitioner city cites Sections 16 and 76 of the Local Government Code as its authority to reorganize.
It argues that these provisions necessarily imply the authority of petitioner city to provide retirement
benefits, separation pay, and other incentives to those affected by the reorganization.43

Petitioner city also cites Republic Act No. 6656, otherwise known as An Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of Government
Reorganization.44 According to petitioner city, this not only requires good faith in the implementation
of reorganization but mandates the payment of appropriate separation pay, retirement, and other
benefits under existing laws within 90 days from effectivity date of separation.45
Even President Gloria Macapagal-Arroyo issued Executive Order No. 184 entitled Directing the
Reorganization and Streamlining of the National Development Company on March 10, 2003. In
Section 4, it provides for a separation package anchored on Republic Act No. 6656.46 Petitioner city
submits that if the President can reorganize in the absence of any law authorizing her to do so and
provide compensation based on Republic Act No. 6656, with more reason that a local government
unit can reorganize as its power to reorganize is expressly provided in the Local Government Code.47

Respondent Commission on Audit counters that it correctly found Ordinance No. 08, series of 2009,
as invalid in the absence of a law passed by Congress specifically authorizing the enactment of an
ordinance granting an early retirement scheme.48

Respondent Commission on Audit contends that Sections 16 and 76 of the Local Government Code
do not confer authority upon any local government unit to create a separate or supplementary
retirement benefit plan.49 As for Republic Act No. 6656, this contemplates situations where a
government position has been abolished, or rendered redundant, or a need to merge, divide or
consolidate positions for lawful causes allowed by the Civil Service Law exists.50

According to respondent Commission on Audit, petitioner city failed to demonstrate arbitrariness on

its part as it merely observed the proscription under Section 28, paragraph (b) of Commonwealth Act
No. 186 when it found the ordinance a nullity.51

We agree with respondent Commission on Audit but only insofar as Section 5 of the ordinance is
concerned. We declare Section 6 on post-retirement incentives as valid.

III

The constitutional mandate for local autonomy supports petitioner city’s issuance of Executive Order
No. 40, series of 2008, creating change management teams52 as an initial step for its organization
development masterplan.

Local autonomy also grants local governments the power to streamline and reorganize. This power
is inferred from Section 76 of the Local Government Code on organizational structure and staffing
pattern, and Section 16 otherwise known as the general welfare clause:

Section 76. Organizational Structure and Staffing Pattern. - Every local government unit shall design
and implement its own organizational structure and staffing pattern taking into consideration its
service requirements and financial capability, subject to the minimum standards and guidelines
prescribed by the Civil Service Commission.

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

Section 5, paragraph (a) of the Local Government Code states that "any provision on a power of a
local government unit shall be liberally interpreted in its favor, and in case of doubt, any question
thereon shall be resolved in favor or devolution of powers x x x."
Section 5, paragraph (c) also provides that "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." These rules of
interpretation emphasize the policy of local autonomy and the devolution of powers to the local
government units.

Designing and implementing a local government unit’s own "organizational structure and staffing
pattern" also implies the power to revise and reorganize. Without such power, local governments will
lose the ability to adjust to the needs of its constituents. Effective and efficient governmental services
especially at the local government level require rational and deliberate changes planned and
executed in good faith from time to time.

This was implied in Province of Negros Occidental v. Commissioners, Commission on Audit. 53 In that
case, this court declared as valid the ordinance passed by the province granting and releasing
hospitalization and health care insurance benefits to its officials and employees. This court held that
Section 2 of Administrative Order No. 10354 requiring the President’s prior approval before the grant
of any allowance or benefit is applicable only to offices under the executive branch.55 Section 2 does
not mention local government units, thus, the prohibition does not apply to them.56 This court then
referred to the policy of local autonomy as follows:

Thus, consistent with the state policy of local autonomy as guaranteed by the 1987 Constitution,
under Section 25, Article II and Section 2, Article X, and the Local Government Code of 1991, we
declare that the grant and release of the hospitalization and health care insurance benefits given to
petitioner’s officials and employees were validly enacted through an ordinance passed by petitioner’s
Sangguniang Panlalawigan.57

Local autonomy allows an interpretation of Sections 76 and 16 as granting petitioner city the
authority to create its organization development program.

Petitioner city’s vision in 2005 of "Total Quality Service" for "the improvement of the quality of
services delivered by the city to the delight of its internal and external customers"58 is a matter within
its discretion. It then conducted a process and practice review for each and every unit within the city,
resulting in the formulation of an organization development masterplan adopted as Executive Order
No. 13, series of 2009.59

Resolution No. 004, series of 2009, was later passed requesting for the mayor’s support for GenSan
SERVES. The third preambular clause states that in order "to transform the bureaucracy into [an]
effective and result[s]-oriented structure, redounding to improved governance, there is a need to
entice employees aged 50-59 years old, to retire earlier than [age] 65 for them to enjoy their
retirement while they are still healthy."60 Consequently, Ordinance No. 08, series of 2009, was
passed creating the GenSan SERVES program.

In Betoy v. The Board of Directors, NAPOCOR,61 this court explained that a streamlining of
organization for a more efficient system must pass the test of good faith in order to be valid:

A reorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by

reason of economy or redundancy of functions.62 It could result in the loss of one's position through
removal or abolition of an office. However, for a reorganization for the purpose of economy or to
make the bureaucracy more efficient to be valid, it must pass the test of good faith; otherwise, it is
void ab initio.63 (Emphasis supplied)

There are indicia of bad faith, none of which are present in this case.
Republic Act No. 6656 invoked by petitioner city as authority for the creation of GenSan SERVES,
for example, enumerates situations considered as bad faith when employees are removed as a
result of any reorganization:

SECTION 2. No officer or employee in the career service shall be removed except for a valid cause
and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant or there is a need to merge,
divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes
allowed by the Civil Service Law. The existence of any or some of the following circumstances may
be considered as evidence of bad faith in the removals made as a result of reorganization, giving
rise to a claim for reinstatement or reappointment by an aggrieved party:

a) Where there is a significant increase in the number of positions in the new staffing pattern
of the department or agency concerned;

b) Where an office is abolished and another performing substantially the same functions in
created;

c) Where incumbents are replaced by those less qualified in terms of status of appointment,
performance and merit;

d) Where there is a reclassification of offices in the department or agency concerned and the
reclassified offices perform substantially the same functions as the original offices; and

e) Where the removal violates the order of separation provided in Section 3 hereof.
(Emphasis supplied)

None of these badges of bad faith exist in this case.

Petitioner city followed the order of priority under Section 4 of its ordinance.64 It required applicants to
undergo medical examination with the local hospital and considered the hospital chief’s
recommendations.65

Unfortunately, these allegations showing good faith is not enough to declare the program created by
petitioner city as a reorganization that justifies the creation of a retirement benefit plan.

Petitioner city alleged that the positions occupied by those who qualified for GenSan SERVES
remained vacant, and it would neither hire replacements nor promote employees earlier than June
30, 2011.66 This means the positions left by those who availed of the program will eventually be filled
up by others. Their positions were not abolished or merged with other positions for streamlining in
the service.

IV

The assailed decision by respondent Commission on Audit was anchored on Section 28, paragraph
(b) of Commonwealth Act No. 186, otherwise known as the Government Service Insurance Act,67 as
amended by Republic Act No. 4968.68 This proscribes all supplementary retirement or pension plans
for government employees:

(b) Hereafter no insurance or retirement plan for officers or employees shall be created by any
employer. All supplementary retirement or pension plans heretofore in force in any government
office, agency, or instrumentality or corporation owned and controlled by the government, are hereby
declared inoperative or abolished: Provided, That the rights of those who are already eligible to retire
thereunder shall not be affected.

Jurisprudence has discussed the nature and purpose of retirement benefits and pension plans as
follows:

Retirement benefits are, after all, a form of reward for an employee’s loyalty and service to the
employer, and are intended to help the employee enjoy the remaining years of his life, lessening the
burden of worrying about his financial support or upkeep. On the other hand, a pension partakes of
the nature of "retained wages" of the retiree for a dual purpose: to entice competent people to enter
the government service, and to permit them to retire from the service with relative security, not only
for those who have retained their vigor, but more so for those who have been incapacitated by
illness or accident.69 (Emphasis supplied)

In Conte v. Commission on Audit,70 this court discussed the purpose behind the proscription found in
Section 28, paragraph (b), as amended. It was to address the need to prevent the proliferation of
inequitous plans:

x x x Sec. 28 (b) as amended by RA 4968 in no uncertain terms bars the creation of any insurance
or retirement plan – other than the GSIS – for government officers and employees, in order to
prevent the undue and inequitous proliferation of such plans. x x x. To ignore this and rule otherwise
would be tantamount to permitting every other government office or agency to put up its own
supplementary retirement benefit plan under the guise of such "financial assistance.71

Section 2 of the ordinance, as amended, defined "applicants" as referring to "qualified employees

below sixty (60) years of age but not less than fifty (50) years and sickly employees below fifty (50)
years of age but not less than forty (40) years old from the effectivity of this Ordinance and shall
have rendered service in the City government for at least 15 years."

This means that even employees other than those who are unproductive due to health reasons may
apply under the ordinance. Albeit last in priority, they may still qualify to avail of the incentives
pursuant to Section 4, paragraph (d), as amended:

Section 4. Prioritization. – The following applicants shall be prioritized in availing the program:

a) First – Employees below sixty (60) years of age but not less than fifty (50) years who are
determined by the Chief of General Santos City Hospital to be qualified to avail of the
program;

b) Second – Employees below sixty (60) years of age but not less than fifty (50) years who
are under continuous medication as determined by the Chief of General Santos City
Hospital;

c) Third – Employees below fifty (50) years of age but not less than forty (40) years who are
determined by the Chief of General Santos City Hospital to be physically or mentally
incapacitated to further continue rendering service with the City Government and
recommended to avail of the program; and

d) Fourth – Employees below sixty (60) years of age but not less than fifty (50) years who
are desirous to avail of the program.
Moreover, Section 3 of the ordinance, as amended, enumerates those who are covered by the
program and may thus apply under the ordinance:

Section 3. Coverage. – GenSan SERVES program covers the following employees of the City
Government:

(a) personnel occupying permanent positions;

(b) those who are below sixty (60) years of age but not less than fifty (50) years on the date
of application;

(c) those who are below fifty (50) years of age but not less than forty (40) years on the date
of application but confirmed by the Chief of General Santos City Hospital to be sickly and
recommended to avail early retirement; and

(d) those who must have served the City Government of General Santos a minimum of
fifteen (15) continuous years.

Under paragraph (d), employees should have served for a minimum of 15 years to qualify. This
requirement is consistent with the definition of a retirement plan as a form of reward for an
employee’s loyalty and service to the employer. Moreover, pension plans as defined permit
employees to retire with relative security, especially for those who have been incapacitated by
illness.72

Section 5 states that "an eligible employee shall receive an early retirement incentive provided under
this program at the rate of 1 1/2 months of the employee’s latest basic salary for every year of
service in the City Government." This may be more than the amount of annuity provided in Section
11, paragraph (a) of Commonwealth Act No. 186 as amended,73 considering that an applicant must
have rendered at least 15 years of service in the city government to qualify.74

Section 5 refers to an "early retirement incentive," the amount of which is pegged on the
beneficiary’s years of service in the city government. The ordinance provides that only those who
have rendered service to the city government for at least 15 years may apply.75 Consequently, this
provision falls under the definition of a retirement benefit. Applying the definition in Conte, it is a form
of reward for an employee’s loyalty and service to the city government, and it is intended to help the
employee enjoy the remaining years of his or her life by lessening his or her financial worries.

In any case, those who availed of the GenSan SERVES were separated from the service. Those
who are separated from the service, whether compulsorily for lawful cause,76 or voluntarily when
incentivized to retire early for streamlining purposes,77 should consequently be entitled to a form of
separation or severance pay.

Petitioner city invoked Republic Act No. 6656, which provides that employees separated from the
service as a result of any reorganization shall be entitled to separation pay, retirement, and other
benefits:

Section 9. All officers and employees who are found by the Civil Service Commission to have been
separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the
case may be without loss of seniority and shall be entitled to full pay for the period of separation.
Unless also separated for cause, all officers and employees, who have been separated pursuant to
reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and
other benefits under existing laws within ninety (90) days from the date of the effectivity of their
separation or from the date of the receipt of the resolution of their appeals as the case may be:
Provided, That application for clearance has been filed and no action thereon has been made by the
corresponding department or agency. Those who are not entitled to said benefits shall be paid a
separation gratuity in the amount equivalent to one (1) month salary for every year of service. Such
separation pay and retirement benefits shall have priority of payment out of the savings of the
department or agency concerned. (Emphasis supplied)

Separation or severance pay has been defined as "an allowance usually based on length of service
that is payable to an employee on severance x x x, or as compensation due an employee upon the
severance of his employment status with the employer."78

Section 6 of the ordinance on post-retirement incentives provides for benefits that are not computed
based on years of service. They are lump sum amounts and healthcare benefits:

Section 6. GenSan SERVES Post-Retirement Incentives – Upon availment of early retirement, a

qualified employee shall enjoy the following in addition to the above incentives:

(e) Cash gift of Fifty Thousand Pesos (P50,000.00) for the sickly employees;

(f) Lifetime free medical consultation at General Santos City Hospital;

(g) Annual aid in the maximum amount of Five Thousand Pesos (P5,000.00), if admitted at
General Santos City Hospital; and

(h) 14 karat gold ring as token.

The text of the ordinance indicates its purpose of encouraging employees, especially those who are
unproductive due to health reasons, to avail of the program even before they reach the compulsory
retirement age. Section 6 provides for a form of severance pay to those who availed of GenSan
SERVES, which was executed in good faith.

We should not be misled by the use of the term "retirement" in Section 6 in determining the nature of
the benefits it provides. Labels are not determinative of substantive content. It is the purpose behind
these incentives, as read from the text of the ordinance and as inferred from the effect of the
ordinance as applied, which must govern.

The purpose of Section 6 is also different from the benefits proscribed in Conte v. Commission on
Audit,79 and the nature of its benefits must be taken in the context of its rationale. The benefits
provided in Section 6 serve its purpose of inducing petitioner city’s employees, who are unproductive
due to health reasons, to retire early. Respondent Commission on Audit’s observation that the
benefit provided is broader than that provided in Conte v Commission on Audit fails to take this
rationale into consideration. Furthermore, the benefits under GenSan SERVES were only given to a
select few—the sickly and unproductive due to health reasons. Certainly, this negates the position
that the benefits provide for supplementary retirement benefits that augment existing retirement
laws.

In Conte v. Commission on Audit80 cited by respondent Commission on Audit, this court held that the
"financial assistance" option for the difference of benefits under Republic Act No. 660 and Republic
Act No. 1616 violated Section 28, paragraph (b) as amended. Social Security System (SSS)
Resolution No. 56 subject of that case provides in part:

NOW, THEREFORE, BE IT RESOLVED, That all the SSS employees who are simultaneously
qualified for compulsory retirement at age 65 or for optional retirement at a lower age be encouraged
to avail for themselves the life annuity under R.A. 660, as amended; x x x.81

The fifth preambular clause of Resolution No. 56 also states that "it is the policy of the Social
Security Commission to promote and to protect the interest of all SSS employees, with a view to
providing for their well-being during both their working and retirement years."82 The financial
assistance provides benefits to all Social Security System employees who are retirable under
existing laws and who are qualified to apply. It is available to all present and future Social Security
System employees upon reaching retirement age.83

Without doubt, this financial assistance of Conte augments the retirement benefits provided under
existing laws, in violation of Section 28, paragraph (b), as amended.

On the other hand, Section 3 of Ordinance No. 08, series of 2009 limits its coverage. Only qualified
1a\^ /phi1

employees below sixty (60) years of age but not less than fifty (50) years and sickly employees
below fifty (50) years of age but not less than forty (40) years from the effectivity of the ordinance,
with at least 15 years of service, are considered. Out of 1,361 regular employees of petitioner city,
only 50 employees applied, from which only 39 employees qualified to avail of the ordinance
benefits.84 Petitioner city alleged that there was one more applicant who was supposed to qualify, but
she had died of acute renal failure secondary to diabetes nephropathy before her application was
acted upon.85

Furthermore, unlike in Conte, Ordinance No. 08, series of 2009, was a one-time limited offer.86 The
availment period was only within two months from the ordinance’s effectivity.87

In any case, petitioner city is authorized by the Local Government Code to approve ordinances to
provide for the care of the sick:

SECTION 458. – Powers, Duties, Functions and Compensation. – (a) The Sangguniang
Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its inhabitants pursuant to section 16 of this
Code and in the proper exercise of the corporate powers of the city as provided for under section 22
of this Code, and shall:

xxxx

(5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of this Code, and in addition to said services and
facilities, shall:

xxxx

(xiv) Provide for the care of disabled persons, paupers, the aged, the sick, persons of unsound mind,
abandoned minors, juvenile delinquents, drug dependents, abused children and other needy and
disadvantaged persons, particularly children and youth below eighteen (18) years of age; and,
subject to availability of funds, establish and provide for the operation of centers and facilities for
said needy and disadvantaged persons[.] (Emphasis supplied)
This is also consistent with the constitutional mandate for a comprehensive approach to health
development, with priority for the needs of the sick:

ARTICLE XIII
Social Justice and Human Rights

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Thus, the cash gift for the sickly employees, lifetime free medical consultation in petitioner city's
hospital, and other similar benefits under Section 6 of the ordinance are valid.

The proscription under Section 28, paragraph (b) of Commonwealth Act No. 186, as amended, does
not apply to Section 6 of the ordinance. Consequently, the Commission on Audit acted with grave
1âwphi1

abuse of discretion when it declared the entire ordinance void and of no effect.

WHEREFORE, the petition is PARTIALLY GRANTED. The assailed Commission on Audit decision
dated January 20, 2011 and resolution dated October 17, 2011 are AFFIRMED with
MODIFICATION insofar as Section 6 of Ordinance No. 08, series of 2009, as amended by
Ordinance No. 11, series of 2009, is declared as VALID.

SO ORDERED.

US v. Salaveria

G.R. No. L-13678 November 12, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PRUDENCIO SALAVERIA, defendant-appellant.

Jose R. Varela for appellant.

Office of the Solicitor-General Paredes for appellee.

MALCOLM, J.:

The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which, among
other things, prohibited the playing of panguingue on days not Sundays or legal holidays, and
penalized the violation thereof by a casero [housekeeper] by a fine of not less than P10 nor more
than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than P200. The
justice of the peace of Orion, when this ordinance went into effect, was Prudencio Salaveria, now the
defendant and appellant. Notwithstanding his official station, on the evening of March 8, 1917, not a
Sunday or legal holiday, seven persons including the justice of the peace an his wife were surprised
by the police while indulging in a game of panguingue in the house of the justice of the peace. The
chief of police took possession of the cards, the counters (sigayes), a tray, an P2.07 in money, used
in the game.

These are facts fully proven by the evince and by the admissions of the accused. Convicted in the
justice of the peace court of Orion, and again in the Court of First Instance of Bataan, Salaveria
appeals to this court, making five assignments of error. The three assignments, of a technical nature,
are without merit, and a fourth, relating to the evidence, is not sustained by the proof. The remaining
assignment of error, questioning the validity of the ordinance under which the accused was
convicted, requires serious consideration and final resolution. This ordinance in part reads:

RESOLUTION NO. 28

xxx xxx xxx

Whereas, this Council is vested with certain powers by sections 2184 and 2185 of the
Administrative Code;

Whereas, it is the moral duty of this body to safeguard the tranquillity and stability of the
Government and to foster the welfare and prosperity of each an all of the inhabitants of this
municipality; therefore,

Be it resolved to enact, as it hereby is enacted, the following ordinance:

Ordinance No. 3

xxx xxx xxx

Third. — The games known as "Panguingue" "Manilla," "Jung-kiang," "Paris-Paris," "Poker,"

"Tute," "Burro," and "Treinta-y-uno" shall be allowed only on Sundays an official holidays.

xxx xxx xxx

The following penalties shall be imposed upon those who play the above games on days
other than Sundays and official holidays:

For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiary
imprisonment in case of insolvency at the rate of one peso a day.

For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary imprisonment
in case of insolvency at the rate of one peso a day.

The Philippine Legislature has granted to municipalities legislative powers of a dual character, one
class mandatory an the other discretionary. Of the first class is the provision of the Administrative
Code which makes it the duty of the municipal council, conformably with law, "to prohibit and
penalize . . . gambling." (Sec. 2188 [i], Adm. Code of 1916; sec. 2242 [i], Adm. Code of 1917.) This
is a more restricted power than that found in the original Municipal Code which authorized a
municipal council to "provide against the evils of gambling, gambling houses, and disorderly houses
of whatsoever sort." (Act No. 82, sec. 39 [u].) The present municipal law, since making use of the
word "gambling," must be construed with reference to the Insular Law, Act No. 1757, relating to the
same subject. Act No. 1757 in section 1 defines "gambling" as "the paying of any game for money or
any representative of value or valuable consideration or thing, the result of which game depends
wholly or chiefly upon chance or hazard, or the use of any mechanical inventions or contrivance to
determine by chance the loser or winner of money or of any representative of value or of any
valuable consideration or thing." In the United States vs. Hilario ([1913], 24 Phil., 392), the Supreme
Court went into the subject of the meaning of "gambling" in this jurisdiction, and found that it includes
those games the result of which depend wholly or chiefly upon chance or hazard, and excludes
those games the result of which depend wholly or chiefly upon skill, with the result that sections 621
to 625 of the Revise Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917)
were found to prohibit only games of chance or hazard.

The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days, without
describing it. Further, although this court has considered the method by which many other games
are played, it has never as yet authoritatively decided whether panguingue was a game of skill or
hazard. Nor was any evidence on this point introduced in the present case. However, a reading of
the decision of the trial court and of official opinions of two Attorneys-General, of which we can take
judicial cognizance, warrants the deduction that panguingue is not a game of chance or hazard and
is not prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25,
1904; October 10, 1905; and September 7, 1911; also Berriz, Diccionario de la Administracion, p.
35.) If, therefore, we were to restrict our investigation to those portions of the Administrative Code
which authorize a municipal council to prohibit and penalize gambling, there would exist grave doubt,
to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan.

There remains for consideration a different approach to the question.

While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader
signification, gambling relates to play by certain rules at cards, dice, or other contrivance, so that one
shall be the loser an the other the winner. (20 Cyc., 878; Bouvier's Law Dictionary; People vs. Todd
[1889], 51 Hun [N. Y.], 446 451; 4 N. Y. Supp., 25.) As one example the Charter of the town of
Ruston, State of Louisiana, authorized it "to restrain, prohibit, an suppress . . . games and gambling
houses and rooms . . ., and to provide for the punishment of the persons engaged in the same."
Under this power the town passed an ordinance prohibiting "all games of chance, lottery, banking
games, raffling, and all other species of gambling," indicating that there were other species of
gambling in addition to games of chance. (See Town of Ruston vs. Perkins [1905], 114 La., 851.)
The common law notion of gambling, which only made it an indictable offense when the play was
attended by such circumstances as would in themselves amount to a riot or a nuisance or to an
actual breach of the peace, has given way to statutes and ordinances designed to restrain,
suppress, or control gambling.

Authority for the State or a municipality to take action to control gambling in this larger sense can be
found in an analysis of what is calle the police power.

Any attempt to define the police power with circumstantial precision would savor of pedantry. The
United States Supreme Court tritely describes it as "the most essential of all powers, at times the
most insistent, an always one of least limitable of the powers of government." (District of
Columbia vs. Brooks [1909], 214 U.S., 138.) The police power is based on the maxim "salus populi
est suprema lex" — the welfare of the people is the first law. The United States Supreme Court has
said that it extends "to the protection of the lives, health and property of the citizens, and to
the preservation of good order and the public morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S.,
25; Barbier vs. Connolly [1885], 113 U.S., 27.) The Supreme Court of these Islands has said that it
extends "the police power of the state includes not only the public health safety, but also the public
welfare, protection against impositions, and generally the public's best interest." (U.S. vs. Pompeya
[1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive scope to the police
power that the older cases. The public welfare is rightfully made the basis of construction.

Not only does the State effectuate its purposes through the exercise of the police power but the
municipality does also. Like the State, the police power of a municipal corporation extends to all
matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens —
the security of social order — the best and highest interests of the municipality. (Case vs. Board of
Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered decisions have tended to
broaden the scope of action of the municipality in dealing with police offenses. Within the general
police powers of a municipal corporation is the suppression of gambling. Ordinances aimed in a
reasonable way at the accomplishment of this purpose are undoubtedly valid. (See U.S. vs. Pacis
[1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley's Constitutional Limitations, 6th edition, pp. 138,
226, 742; Greenville vs. Kemmis [1900], 58 S. C., 427 [holding that under the general welfare clause
a city may pass an ordinance prohibiting gambling in any private house].)

The Philippine Legislature, as before intimated, delegated to municipalities certain legislative powers
are named specifically. But in addition, and preceding both the specific powers of a mandatory and
discretionary character, is the general power of a municipal council to enact ordinances and make
regulations. It is this grant that the preamble of the ordinance of Orion assigns as authority for its
enactment. Said section 2184 of the Administrative Code of 1916 (sec. 2238, Adm. Code of 1917)
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 an
duties conferred upon it by law an suchas 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.

This section, known as the general welfare clause, delegates in statutory form the police power to a
municipality. As above stated, this clause has been given wide application by municipal authorities
and has in its relation to the particular circumstances of the case been liberally construed by the
courts. Such, it is well to recall, is the progressive view of Philippine jurisprudence.

The general welfare clause has two branches. One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and regulations as may be necessary to carry
into effect and discharge the powers and duties conferred upon the municipal council by law. With
this class we are not here directly concerned. The second branch of the clause is much more
independent of the specific functions of the council which are enumerated by law. It authorizes such
ordinances "as shall seem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property therein."

It is a general rule that ordinances passed by virtue of the implied power found in the general powers
and purposes of the corporation, and not inconsistent with the laws or policy of the State. The
ordinance of the municipality of Orion does not seem in itself to be pernicious, or unreasonable or
discriminatory. Its purposes evidently are to improve the morals and stimulate the industry of the
people. A person is to be compelled to refrain from private acts injurious both to himself an his
neighbors. These objects, to be attained by limiting the pastime to definite days, do not infringe any
law of the general government.
The constitutional provision that no person shall be deprived of liberty without due process of law is
not violated by this ordinance. Liberty of action by the individual is not unduly circumscribed; that is,
it is not unduly circumscribed if we have in mind the correct notion of this "the greatest of all rights."
That gravest of sociological questions — How far, consistently with freedom, may the liberties of the
individual member of society be subordinated to the will of the Government? — has been debated
for centuries, in vain, if we can not now discount the time worn objection to any and all interference
with private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts
[1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless are the
governmental restrictions on the citizen.

The presumption is all favor of validity. The inhabitants of a municipality are in themselves miniature
states. The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality an with all the facts and circumstances which surround the subject, and necessities of
their particular municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice
that the regulations are essential to the well being of the people. Who is in a better position to say
whether the playing of panguingue is deleterious to social order and the public interest in a certain
municipality — the municipal council, or the courts? The answer is self-evident. The Judiciary should
not lightly set aside legislative action when there is not a clear invasion of personal or property rights
under the guise of police regulation. (See U.S. vs. Joson [1913], 26 Phil., 1.)

President McKinley's Instructions to the Commission still remain undisturbed by subsequent Acts of
Congress dealing with Philippine affairs and yet constitute a portion of our constitutional law, as to
the inviolable rule that "municipal governments . . . shall be afforded the opportunity to manage their
own affairs to the fullest extent of which they are capable." Again the same organic law says, "In the
distribution of powers among the governments organized by the Commission, the presumption is
always to be in favor of the smaller subdivision, so that all the powers which can properly be
exercised by the municipal government shall be vested in that government . . . ." Let us never forget
these principles so highly protective of local self-government.

The judiciary can very well take notice of the fact that municipalities are accustomed to enacting
ordinances aimed at the regulation of gambling. The executive authorities an the Attorney-General
have usually upheld the validity of such ordinances, especially those intended to restrict the playing
of panguingue. (Opinions of the Attorney-General, supra; Opinion of the Executive Secretary, July 6,
1909; Indorsement of the Governor-General, July 21, 1904.) This general municipal practice,
indicative of a social cancer to be eradicated, should not be discouraged by strict judicial
construction.

More important still, the courts cannot but realize that gambling, in its larger sense as well as in its
restricted sense, is an act beyond the pale of good morals, which, for the welfare of the Filipino
people, should be exterminated. The suppression of the evil does not interfere with any of the
inherent rights of citizenship. The pernicious practice is rightfully regarded as the offspring of
idleness and the prolific parent of vice and immorality, demoralizing in its association and
tendencies, detrimental to the best interests of society, and encouraging wastefulness,
thriftlessness, and a belief that a livelihood may be earned by other means than honest industry. To
be condemned in itself, it has the further effect of causing poverty, dishonesty, fraud, and deceit.
Many a man has neglected his business and mortgaged his integrity to follow the fickle Goddess of
the cards. Many a woman has wasted her hours and squandered her substance at the gambling
board while home and children were forgotten. It is highly proper that this pastime should be subject
to the control of restraints imposed by the ordinances of local governments peculiarly afflicted by the
evil. (See In re Voss [1903], 11 N. D., 540; Ex parte Tuttle [1891], 91, Cal., 589;
Greenwood vs. State [1873], 6 Baxt., 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.)
For the suppression of such an evil, coordinate and harmonious action must concur between the
three departments of Government. A law or ordinance enacted by the legislative body must exist.
Such an ordinance is before us. Vigorous executive enforcement must take place to make the law or
ordinance a reality. Such activity by the police has brought this case to the courts. And finally the
Judiciary, having full respect for the legislative action of the municipal council and for the prosecution
by the executive officials, must, by judicial construction, equally as progressive and constructive,
give effect to the action of the other two powers. Wherefore, althoughpanguingue is not entirely a
game of chance, since it is a proper subject for regulation by municipal authorities acting under their
delegated police power, whose laudable intention is to improve the public morals and promote the
prosperity of their people, their action should be upheld by the courts. Ordinance No. 3 of Orion,
Bataan, is found to be valid.

The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has
scorned it. His example to the people of Orion has been pernicious in its influence. If gambling is to
be suppressed, not only the weak and ignorant must be punished, but those with full knowledge of
the law and the consequences of violation. We would accordingly suggest to Courts of First Instance
that in all cases arising under the Gambling Law or ordinances, except for unusual circumstances, a
prison sentence should be imposed, if permitted by the law or ordinance. We further suggest that,
where the defendant has been found guilty and is a man of station, he be given the maximum
penalty.law phil.net

Applying the foregoing in this instance, it results that the defendant and appellant must be found
guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance
therewith, shall be sentenced to the maximum penalty of the payment of a fine of P200, or to
subsidiary imprisonment in case of insolvency, with the costs of all three instances against him. So
ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Binay v Domingo

G.R. No. 92389 September 11, 1991

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

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

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

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

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

The pertinent facts are:

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

A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL

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

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

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

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

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

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

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

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

1989, has already appropriated the amount of P400,000.00 to implement the Id
resolution, and the only function of COA on the matter is to allow the financial
assistance in question.

The first contention is believed untenable. Suffice it to state that:

a statute or ordinance must have a real substantial, or rational

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

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

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

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

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

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

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

Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del
Norte, 163 SCRA 182). Before a municipal corporation may exercise such power, there must be a
valid delegation of such power by the legislature which is the repository of the inherent powers of the
State. A valid delegation of police power may arise from express delegation, or be inferred from the
mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations
may exercise police powers within the fair intent and purpose of their creation which are reasonably
proper to give effect to the powers expressly granted, and statutes conferring powers on public
corporations have been construed as empowering them to do the things essential to the enjoyment
of life and desirable for the safety of the people. (62 C.J.S., p. 277). The so-called inferred police
powers of such corporations are as much delegated powers as are those conferred in express
terms, the inference of their delegation growing out of the fact of the creation of the municipal
corporation and the additional fact that the corporation can only fully accomplish the objects of its
creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore,
municipal corporations, as governmental agencies, must have such measures of the power as are
necessary to enable them to perform their governmental functions. The power is a continuing one,
founded on public necessity. (62 C.J.S. p. 273) Thus, not only does the State effectuate its purposes
through the exercise of the police power but the municipality does also. (U.S. v. Salaveria, 39 Phil.
102).
Municipal governments exercise this power under the general welfare clause: pursuant thereto they
are clothed with authority to "enact such ordinances and issue such regulations as may be
necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace
and order, improve public morals, promote the prosperity and general welfare of the municipality and
the inhabitants thereof, and insure the protection of property therein." (Sections 91, 149, 177 and
208, BP 337). And under Section 7 of BP 337, "every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers necessary and
proper for governance such as to promote health and safety, enhance prosperity, improve morals,
and maintain peace and order in the local government unit, and preserve the comfort and
convenience of the inhabitants therein."

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

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

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

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

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

COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the
limitation that the expenditure covered thereby should be for a public purpose, ... should be for the
benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of
only a few individuals as in the present case." (Rollo, Annex "G", p. 51).
COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely
because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of
the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to
provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general
welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for
human rights. (Section 11, Ibid." (Comment, p. 12)

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

There is no violation of the equal protection clause in classifying paupers as subject of legislation.
Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to
the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus,
statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer
from the bondage of the soil, housing the urban poor, etc.

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

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

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.

Gutierrez, Jr. and Feliciano, JJ., are on leave.

Tatel v Mun of Virac

G.R. No. 40243 March 11, 1992

CELESTINO TATEL, petitioner,

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

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

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

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

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

Respondent municipal officials contend that petitioner's warehouse was constructed in violation of
Ordinance No. 13, series of 1952, prohibiting the construction of warehouses near a block of houses
either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said
block of houses to avoid loss of lives and properties by accidental fire.

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

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

In a decision dated September 18, 1969, the court a quo ruled as follows:

1. The warehouse in question was legally constructed under a valid permit issued by
the municipality of Virac in accordance with existing regulations and may not be
destroyed or removed from its present location;

2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police
power by the Municipal Council of Virac is not (sic) unconstitutional and void as
claimed by the petitioner;
 3. The storage by the petitioner of abaca and copra in the warehouse is not only in
violation of the provisions of the ordinance but poses a grave danger to the safety of
the lives and properties of the residents of the neighborhood due to accidental fire
and constitutes a public nuisance under the provisions of Article 694 of the New Civil
code of the Philippines and may be abated;

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

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

1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac,
Catanduanes, is a legitimate and valid exercise of police power of the Municipal
Council, and therefore, constitutional;

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

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

We find no merit in the Petition.

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

The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers
and duties conferred upon it by law and such as shall seem necessary and proper to
provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein. 4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to
enact but must also be passed according to the procedure prescribed by law, and must be in
consonance with certain well established and basic principles of a substantive nature. These
principles require that a municipal ordinance (1) must not contravene the Constitution or any statute
(2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but
may regulate trade (5) must be general and consistent with public policy, and (6) must not be
unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria.
As to the petitioner's second assignment of error, the trial court did not give the ordinance in
question a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of
Virac on December 29, 1952, 6reads:

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF

WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT
LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.

Section 1 provides:

It is strictly prohibited to construct warehouses in any form to any person, persons,

entity, corporation or merchants, wherein to keep or store copra, hemp, gasoline,
petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if not
within the distance of 200 meters from a block of houses either in the poblacion or
barrios to avoid great losses of properties inclusive lives by fire accident.

Section 2 provides: 7

Owners of warehouses in any form, are hereby given advice to remove their said
warehouses this ordinance by the Municipal Council, provided however, that if those
warehouses now in existence should no longer be utilized as such warehouse for the
above-described products in Section 1 of this ordinance after a lapse of the time
given for the removal of the said warehouses now in existence, same warehouses
shall be exempted from the spirit of the provision of section 1 of this
ordinance,provided further, that these warehouses now in existence, shall in the
future be converted into non-inflammable products and materials warehouses.

In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of
warehouses wherein inflammable materials are stored where such warehouses are located at a
distance of 200 meters from a block of houses and not the construction per se of a warehouse. The
purpose is to avoid the loss of life and property in case of fire which is one of the primordial
obligation of the government.

This was also the observation of the trial court:

A casual glance of the ordinance at once reveals a manifest disregard of the

elemental rules of syntax. Experience, however, will show that this is not uncommon
in law making bodies in small towns where local authorities and in particular the
persons charged with the drafting and preparation of municipal resolutions and
ordinances lack sufficient education and training and are not well grounded even on
the basic and fundamental elements of the English language commonly used
throughout the country in such matters. Nevertheless, if one scrutinizes the terms of
the ordinance, it is clear that what is prohibited is the construction of warehouses by
any person, entity or corporation wherein copra, hemp, gasoline and other
inflammable products mentioned in Section 1 may be stored unless at a distance of
not less than 200 meters from a block of houses either in the poblacion or barrios in
order to avoid loss of property and life due to fire. Under Section 2, existing
warehouses for the storage of the prohibited articles were given one year after the
approval of the ordinance within which to remove them but were allowed to remain in
operation if they had ceased to store such prohibited articles.
 The ambiguity therefore is more apparent than real and springs from simple error in
grammatical construction but otherwise, the meaning and intent is clear that what is
prohibited is the construction or maintenance of warehouses for the storage of
inflammable articles at a distance within 200 meters from a block of houses either in
the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of
life and property in case of accidental fire which is one of the primordial and basic
obligation of any government. 8

Clearly, the lower court did NOT add meaning other than or differrent from what was provided in the
ordinance in question. It merely stated the purpose of the ordinance and what it intends to prohibit to
accomplish its purpose.

As to the third assignment of error, that warehouses similarly situated as that of the petitioner were
not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not
proceeded against other warehouses in the municipality allegedly violating Ordinance No. 13 is no
reason to claim that the ordinance is discriminatory. A distinction must be made between the law
itself and the manner in which said law is implemented by the agencies in charge with its
administration and enforcement. There is no valid reason for the petitioner to complain, in the
absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance
and that the complaints have been lodged against the bodegas concerned without the municipal
authorities doing anything about it.

The objections interposed by the petitioner to the validity of the ordinance have not been
substantiated. Its purpose is well within the objectives of sound government. No undue restraint is
placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing
inflammable products in the warehouse because of the danger of fire to the lives and properties of
the people residing in the vicinity. As far as public policy is concerned, there can be no better policy
than what has been conceived by the municipal government.

As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same.
The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls
under the then Court of First Instance.

WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Tano v Socrates supra

Lim v Pacquing

G.R. No. 115044 January 27, 1995

HON. ALFREDO S. LIM, in his capacity as Mayor of Manila, and the City of Manila, petitioners,
vs.
HON. FELIPE G. PACQUING, as Judge, branch 40, Regional Trial Court of Manila and
ASSOCIATED CORPORATION, respondents.

G.R. No. 117263 January 27, 1995

TEOFISTO GUINGONA, JR. and DOMINADOR R. CEPEDA, petitioners,

vs.
HON. VETINO REYES and ASSOCIATED DEVELOPMENT CORPORATION, respondents.

PADILLA, J.:

These two (2) cases which are inter-related actually involve simple issues. if these issues have
apparently become complicated, it is not by reason of their nature because of the events
and dramatis personae involved.

The petition in G.R. No. 115044 was dismissed by the First Division of this Court on 01 September
1994 based on a finding that there was "no abuse of discretion, much less lack of or excess of
jurisdiction, on the part of respondent judge [Pacquing]", in issuing the questioned orders. Judge
Pacquing had earlier issued in Civil Case No. 88-45660, RTC of Manila, Branch 40, the following
orders which were assailed by the Mayor of the City of Manila, Hon. Alfredo S. Lim, in said G.R. No.
115044:

a. order dated 28 March 1994 directing Manila mayor Alfredo S. Lim to issue
the permit/license to operate the jai-alai in favor of Associated Development
Corporation (ADC).

b. order dated 11 April 1994 directing mayor Lim to explain why he should not be
cited for contempt for non-compliance with the order dated 28 March 1994.

c. order dated 20 April 1994 reiterating the previous order directing Mayor Lim to
immediately issue the permit/license to Associated Development Corporation (ADC).

The order dated 28 march 1994 was in turn issued upon motion by ADC for execution of a final
judgment rendered on 9 September 1988 which ordered the Manila Mayor to immediately issue to
ADC the permit/licenseto operate the jai-alai in Manila, under Manila Ordinance No. 7065.

On 13 September 1994, petitioner Guingona (as executive secretary) issued a directive to then
chairman of the Games and Amusements Board (GAB) Francisco R. Sumulong, jr. to hold in
abeyance the grant of authority, or if any had been issued, to withdraw such grant of authority, to
Associated Development Corporation to operate the jai-alai in the City of Manila, until the following
legal questions are properly resolved:

1. Whether P.D. 771 which revoked all existing Jai-Alai franchisers issued by local
governments as of 20 August 1975 is unconstitutional.

2. Assuming that the City of Manila had the power on 7 September 1971 to issue a
Jai-Alai franchise to Associated Development Corporation, whether the franchise
granted is valied considering that the franchise has no duration, and appears to be
granted in perpetuity.
 3. Whether the City of Manila had the power to issue a Jai-Alai franchise to
Associated Development Corporation on 7 September 1971 in view of executive
Order No. 392 dated 1 January 1951 which transferred from local governments to the
Games and Amusements Board the power to regulate Jai-Alai. 1

On 15 September 1994, respondent Associated Development Corporation (ADC) filed a petition for
prohibition,mandamus, injunction and damages with prayer for temporary restraining order and/or
writ of preliminary injunction in the Regional Trial Court of Manila against petitioner Guingona and
then GAB chairman Sumulong, docketed as Civil Case No. 94-71656, seeking to prevent GAB from
withdrawing the provisional authority that had earlier been granted to ADC. On the same day, the
RTC of Manila, Branch 4, through presiding Judge Vetino Reyes, issued a temporary restraining
order enjoining the GAB from withdrawing ADC's provisional authority. This temporary restraining
order was converted into a writ of preliminary injunction upon ADC's posting of a bond in the amount
of P2,000,000.00. 2

Subsequently, also in G.R. No. 115044, the Republic of the Philippines, through the Games and
Amusements Board, filed a "Motion for Intervention; for Leave to File a Motion for reconsideration in
Intervention; and to Refer the case to the Court En Banc" and later a "Motion for Leave to File
Supplemental Motion for Reconsideration-in-Intervention and to Admit Attached Supplemental
Motion for Reconsideration-in-Intervention".

In an En Banc Resolution dated 20 September 1994, this Court referred G.R. No. 115044 to the
Court En Bancand required the respondents therein to comment on the aforementioned motions.

Meanwhile, Judge Reyes on 19 October 1994 issued another order, this time, granting ADC a writ of
preliminarymandatory injunction against Guingona and GAB to compel them to issue in favor of ADC
the authority to operate jai-alai.

Guingona, as executive secretary, and Dominador Cepeda, Jr. as the new GAB chairman, then filed
the petition in G.R. No. 117263 assailing the abovementioned orders of respondent Judge Vetino
Reyes.

On 25 October 1994, in G.R. No. 117263, this Court granted petitioner's motion for leave to file
supplemental petition and to admit attached supplemental petition with urgent prayer for restraining
order. The Court further required respondents to file their comment on the petition and supplemental
petition with urgent prayer for restraining order. The Court likewise set the case and all incidents
thereof for hearing on 10 November 1994.

At the hearing on 10 November 1994, the issues to be resolved were formulated by the Court as
follows:

1. whether or not intervention by the Republic of the Philippines at this stage of the
proceedings is proper;

2. assuming such intervention is proper, whether or not the Associated Development

Corporation has a valid and subsisting franchise to maintain and operate the jai-alai;

3. whether or not there was grave abuse of discretion committed by respondent

Judge Reyes in issuing the aforementioned temporary restraining order (later writ of
preliminary injunction); and
 4. whether or not there was grave abuse of discretion committed by respondent
Judge Reyes in issuing the aforementioned writ of preliminary mandatory injunction.

On the issue of the propriety of the intervention by the Republic of the Philippines, a question was
raised during the hearing on 10 November 1994 as to whether intervention in G.R. No. 115044 was
the proper remedy for the national government to take in questioning the existence of a valid ADC
franchise to operate the jai-alai or whether a separate action for quo warranto under Section 2, Rule
66 of the Rules of Court was the proper remedy.

We need not belabor this issue since counsel for respondent ADC agreed to the suggestion that this
Court once and for all settle all substantive issues raised by the parties in these cases. Moreover,
this Court can consider the petition filed in G.R. No. 117263 as one for quo warranto which is within
the original jurisdiction of the Court under section 5(1), Article VIII of the Constitution. 3

On the propriety of intervention by the Republic, however, it will be recalled that this Court in Director
of Lands v. Court of Appeals (93 SCRA 238) allowed intervention even beyond the period prescribed
in Section 2 Rule 12 of the Rules of Court. The Court ruled in said case that a denial of the motions
for intervention would "lead the Court to commit an act of injustice to the movants, to their
successor-in-interest and to all purchasers for value and in good faith and thereby open the door to
fraud, falsehood and misrepresentation, should intervenors' claim be proven to be true."

In the present case, the resulting injustice and injury, should the national government's allegations
be proven correct, are manifest, since the latter has squarely questioned the very existence of a
valid franchise to maintain and operate the jai-alai (which is a gambling operation) in favor of ADC.
As will be more extensively discussed later, the national government contends that Manila
Ordinance No. 7065 which purported to grant to ADC a franchise to conduct jai-alai operations is
void and ultra vires since Republic Act No. 954, approved on 20 June 1953, or very much earlier
than said Ordinance No. 7065, the latter approved 7 September 1971, in Section 4 thereof, requires
a legislative franchise, not a municipal franchise, for the operation of jai-alai. Additionally, the
national government argues that even assuming, arguendo, that the abovementioned ordinance is
valid, ADC's franchise was nonetheless effectively revoked by Presidential decree No. 771, issued
on 20 August 1975, Sec. 3 of which expressly revoked all existing franchises and permits to operate
all forms of gambling facilities (including the jai-alai) issued by local governments.

On the other hand, ADC's position is that Ordinance No. 7065 was validly enacted by the City of
Manila pursuant to its delegated powers under it charter, Republic Act No. 409. ADC also squarely
assails the constitutionality of PD No. 771 as violative of the equal protection and non-impairment
clauses of the Constitution. In this connection, counsel for ADC contends that this Court should
really rule on the validity of PD No. 771 to be able to determine whether ADC continues to possess a
valid franchise.

It will undoubtedly be a grave injustice to both parties in this case if this Court were to shirk from
ruling on the issue of constitutionality of PD No. 771. Such issue has, in our view, become the
very lis mota in resolving the present controversy, in view of ADC's insistence that it was granted a
valid and legal franchise by Ordinance No. 7065 to operate the jai-alai.

The time-honored doctrine is that all laws (PD No. 771 included) are presumed valid and
constitutional until or unless otherwise ruled by this Court. Not only this; Article XVIII Section 3 of the
Constitution states:
 Sec. 3. All existing laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with this Constitution
shall remain operative until amended, repealed or revoked.

There is nothing on record to show or even suggest that PD No. 771 has been repealed, altered or
amended by any subsequent law or presidential issuance (when the executive still exercised
legislative powers).

Neither can it be tenably stated that the issue of the continued existence of ADC's franchise by
reason of the unconstitutionality of PD No. 771 was settled in G.R. No. 115044, for the decision of
the Court's First Division in said case, aside from not being final, cannot have the effect of nullifying
PD No. 771 as unconstitutional, since only the Court En Banc has that power under Article VIII,
Section 4(2) of the Constitution. 4

And on the question of whether or not the government is estopped from contesting ADC's
possession of a valid franchise, the well-settled rule is that the State cannot be put in estoppel by the
mistakes or errors, if any, of its officials or agents (Republic v. Intermediate Appellate Court, 209
SCRA 90)

Consequently, in the light of the foregoing expostulation, we conclude that the republic (in contra
distinction to the City of Manila) may be allowed to intervene in G.R. No. 115044. The Republic is
intervening in G.R. No. 115044 in the exercise, not of its business or proprietary functions, but in the
exercise of its governmental functions to protect public morals and promote the general welfare.

II

Anent the question of whether ADC has a valid franchise to operate the Jai-Alai de Manila, a
statement of the pertinent laws is in order.

1. The Charter of the City of Manila was enacted by Congress on 18 June 1949. Section 18 thereof
provides:

Sec. 18. Legislative Powers. — The Municipal Board shall have the following
legislative powers:

xxx xxx xxx

(jj) To tax, license, permit and regulate wagers or betting by the public on boxing,
sipa, bowling, billiards, pools, horse and dog races, cockpits, jai-alai, roller or ice-
skating on any sporting or athletic contests, as well as grant exclusive rights to
establishments for this purpose, notwithstanding any existing law to the contrary.

2. On 1 January 1951, Executive Order No. 392 was issued transferring the authority to regulate jai-
alais from local government to the Games and Amusements Board (GAB).

3. On 20 June 1953, Congress enacted Republic Act No. 954, entitled "An Act to Prohibit With Horse
Races and Basque Pelota Games (Jai-Alai), And To Prescribe Penalties For Its Violation". The
provisions of Republic Act No. 954 relating to jai-alai are as follows:

Sec. 4. No person, or group of persons other than the operator or maintainer of a

fronton with legislative franchise to conduct basque pelota games (Jai-alai), shall
 offer, to take or arrange bets on any basque pelota game or event, or maintain or use
a totalizator or other device, method or system to bet or gamble on any basque
pelota game or event. (emphasis supplied).

Sec. 5. No person, operator or maintainer of a fronton with legislative franchise to

conduct basque pelota games shall offer, take, or arrange bets on any basque pelota
game or event, or maintain or use a totalizator or other device, method or system to
bet or gamble on any basque pelota game or event outside the place, enclosure, or
fronton where the basque pelota game is held. (emphasis supplied).

4. On 07 September 1971, however, the Municipal Board of Manila nonetheless passed Ordinance
No. 7065 entitled "An Ordinance Authorizing the Mayor To Allow And Permit The Associated
Development Corporation To Establish, Maintain And Operate A Jai-Alai In The City Of Manila,
Under Certain Terms And Conditions And For Other Purposes."

5. On 20 August 1975, Presidential Decree No. 771 was issued by then President Marcos. The
decree, entitled "Revoking All Powers and Authority of Local Government(s) To Grant Franchise,
License or Permit And Regulate Wagers Or Betting By The Public On Horse And Dog Races, Jai-
Alai Or Basque Pelota, And Other Forms Of Gambling", in Section 3 thereof, expressly revoked all
existing franchises and permits issued by local governments.

6. On 16 October 1975, Presidential Decree No. 810, entitled "An Act granting The Philippine Jai-
Alai And Amusement Corporation A Franchise To Operate, Construct And Maintain A Fronton For
Basque Pelota And Similar Games of Skill In THE Greater Manila Area," was promulgated.

7 On 08 May 1987, then President Aquino, by virtue of Article XVIII, Section 6, of the Constitution,
which allowed the incumbent legislative powers until the first Congress was convened, issued
Executive Order No. 169 expressly repealing PD 810 and revoking and cancelling the franchise
granted to the Philippine Jai-Alai and Amusement Corporation.

Petitioners in G.R. No. 117263 argue that Republic Act No. 954 effectively removed the power of the
Municipal Board of Manila to grant franchises for gambling operations. It is argued that the term
"legislative franchise" in Rep. Act No. 954 is used to refer to franchises issued by Congress.

On the other hand, ADC contends that Republic Act N. 409 (Manila Chapter) gives legislative
powers to the Municipal Board to grant franchises, and since Republic Act No. 954 does not
specifically qualify the word "legislative" as referring exclusively to Congress, then Rep. Act No. 954
did not remove the power of the Municipal Board under Section 18(jj) of Republic Act No. 409 and
consequently it was within the power of the City of Manila to allow ADC to operate the jai-alai in the
City of Manila.

On this point, the government counter-argues that the term "legislative powers" is used in Rep. Act
No. 409 merely to distinguish the powers under Section 18 of the law from the other powers of the
Municipal Board, but that the term "legislative franchise" in Rep. Act No. 954 refers to a franchise
granted solely by Congress.

Further, the government argues that Executive Order No. 392 dated 01 January 1951 transferred
even the power to regulate Jai-Alai from the local governments to the Games and Amusements
Board (GAB), a national government agency.

It is worthy of note that neither of the authorities relied upon by ADC to support its alleged
possession of a valid franchise, namely the Charter of the City of Manila (Rep. Act No. 409) and
Manila Ordinance No. 7065 uses the word "franchise". Rep. Act No. 409 empowers the Municipal
Board of Manila to "tax, license, permit and regulatewagers or betting" and to "grant
exclusive rights to establishments", while Ordinance No. 7065 authorized the Manila City Mayor to
"allow and permit" ADC to operate jai-alai facilities in the City of Manila.

It is clear from the foregoing that Congress did not delegate to the City of Manila the power "to
franchise" wagers or betting, including the jai-alai, but retained for itself such power "to franchise".
What Congress delegated to the City of Manila in Rep. Act No. 409, with respect to wagers or
betting, was the power to "license, permit, or regulate" which therefore means that a license or
permit issued by the City of Manila to operate a wager or betting activity, such as the jai-alai where
bets are accepted, would not amount to something meaningful UNLESS the holder of the permit or
license was also FRANCHISED by the national government to so operate. Moreover, even this
power to license, permit, or regulate wagers or betting on jai-alai was removed from local
governments, including the City of Manila, and transferred to the GAB on 1 January 1951 by
Executive Order No. 392. The net result is that the authority to grant franchises for the operation of
jai-alai frontons is in Congress, while the regulatory function is vested in the GAB.

In relation, therefore, to the facts of this case, since ADC has no franchise from Congress to operate
the jai-alai, it may not so operate even if its has a license or permit from the City Mayor to operate
the jai-alai in the City of Manila.

It cannot be overlooked, in this connection, that the Revised Penal Code punishes gambling and
betting under Articles 195 to 199 thereof. Gambling is thus generally prohibited by law, unless
another law is enacted byCongress expressly exempting or excluding certain forms of gambling from
the reach of criminal law. Among these form the reach of criminal law. Among these forms of
gambling allowed by special law are the horse races authorized by Republic Acts Nos. 309 and 983
and gambling casinos authorized under Presidential Decree No. 1869.

While jai-alai as a sport is not illegal per se, the accepting of bets or wagers on the results of jai-alai
games is undoubtedly gambling and, therefore, a criminal offense punishable under Articles 195-199
of the Revised Penal Code, unless it is shown that a later or special law had been passed allowing it.
ADC has not shown any such special law.

Republic Act No. 409 (the Revised Charter of the City of Manila) which was enacted by Congress on
18 June 1949 gave the Municipal Board certain delegated legislative powers under Section 18. A
perusal of the powers enumerated under Section 18 shows that these powers are basically
regulatory in nature. 5 The regulatory nature of these powers finds support not only in the plain words of
the enumerations under Section 28 but also in this Court's ruling inPeople v. Vera (65 Phil. 56).

In Vera, this Court declared that a law which gives the Provincial Board the discretion to determine
whether or not a law of general application (such as, the Probation law-Act No. 4221) would or would
not be operative within the province, is unconstitutional for being an undue delegation of legislative
power.

From the ruling in Vera, it would be logical to conclude that, if ADC's arguments were to prevail, this
Court would likewise declare Section 18(jj) of the Revised Charter of Manila unconstitutional for the
power it would delegate to the Municipal Board of Manila would give the latter the absolute and
unlimited discretion to render the penal code provisions on gambling inapplicable or inoperative to
persons or entities issued permits to operate gambling establishments in the City of Manila.

We need not go to this extent, however, since the rule is that laws must be presumed valid,
constitutional and in harmony with other laws. Thus, the relevant provisions of Rep. Acts Nos. 409
and 954 and Ordinance No. 7065 should be taken together and it should then be clear that the
legislative powers of the Municipal Board should be understood to be regulatory in nature and that
Republic Act No. 954 should be understood to refer tocongressional franchises, as a necessity for
the operation of jai-alai.

We need not, however, again belabor this issue further since the task at hand which will ultimately,
and with finality, decide the issues in this case is to determine whether PD No. 771 validly revoked
ADC's franchise to operate the jai-alai, assuming (without conceding) that it indeed possessed such
franchise under Ordinance No. 7065.

ADC argues that PD No. 771 is unconstitutional for being violative of the equal protection and non-
impairment provisions of the Constitution. On the other hand, the government contends that PD No.
771 is a valid exercise of the inherent police power of the State.

The police power has been described as the least limitable of the inherent powers of the State. It is
based on the ancient doctrine — salus populi est suprema lex (the welfare of the people is the
supreme law.) In the early case of Rubi v. Provincial Board of Mindoro (39 Phil. 660), this Court
through Mr. Justice George A. Malcolm stated thus:

The police power of the State . . . is a power co-extensive with self-protection, and is
not inaptly termed the "law of overruling necessity." It may be said to be that inherent
and plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety and welfare of society. Carried onward by the current of legislation,
the judiciary rarely attempts to dam the onrushing power of legislative discretion,
provided the purposes of the law do not go beyond the great principles that mean
security for the public welfare or do not arbitrarily interfere with the right of the
individual.

In the matter of PD No. 771, the purpose of the law is clearly stated in the "whereas clause" as
follows:

WHEREAS, it has been reported that in spite of the current drive of our law
enforcement agencies against vices and illegal gambling, these social ills are still
prevalent in many areas of the country;

WHEREAS, there is need to consolidate all the efforts of the government to eradicate
and minimize vices and other forms of social ills in pursuance of the social and
economic development program under the new society;

WHEREAS, in order to effectively control and regulate wagers or betting by the

public on horse and dog races, jai-alai and other forms of gambling there is a
necessity to transfer the issuance of permit and/or franchise from local government
to the National Government.

It cannot be argued that the control and regulation of gambling do not promote public morals and
welfare. Gambling is essentially antagonistic and self-reliance. It breeds indolence and erodes the
value of good, honest and hard work. It is, as very aptly stated by PD No. 771, a vice and a social ill
which government must minimize (if not eradicate) in pursuit of social and economic development.

In Magtajas v. Pryce Properties Corporation (20 July 1994, G.R. No. 111097), this Court stated thru
Mr. Justice Isagani A. Cruz:
 In the exercise of its own discretion, the legislative power may prohibit gambling
altogether or allow it without limitation or it may prohibit some forms of gambling and
allow others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In
making such choices, Congress has consulted its own wisdom, which this Court
has no authority to review, much less reverse. Well has it been said that courts do
not sit to resolve the merits of conflicting theories. That is the prerogative of the
political departments. It is settled that questions regarding wisdom, morality and
practicability of statutes are not addressed to the judiciary but may be resolved only
by the executive and legislative departments, to which the function belongs in our
scheme of government. (Emphasis supplied)

Talks regarding the supposed vanishing line between right and privilege in American constitutional
law has no relevance in the context of these cases since the reference there is to economic
regulations. On the other hand, jai-alai is not a mere economic activity which the law seeks to
regulate. It is essentially gambling and whether it should be permitted and, if so, under what
conditions are questions primarily for the lawmaking authority to determine, talking into account
national and local interests. Here, it is the police power of the State that is paramount.

ADC questions the motive for the issuance of PD Nos. 771. Clearly, however, this Court cannot look
into allegations that PD No. 771 was enacted to benefit a select group which was later given
authority to operate the jai-alai under PD No. 810. The examination of legislative motivation is
generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438 [1971] per
Black, J.) There is, the first place, absolute lack of evidence to support ADC's allegation of improper
motivation in the issuance of PD No. 771. In the second place, as already averred, this Court cannot
go behind the expressed and proclaimed purposes of PD No. 771, which are reasonable and even
laudable.

It should also be remembered that PD No. 771 provides that the national government can
subsequently grant franchises "upon proper application and verification of the qualifications of the
applicant." ADC has not alleged that it filed an application for a franchise with the national
government subsequent to the enactment of PD No. 771; thus, the allegations abovementioned (of
preference to a select group) are based on conjectures, speculations and imagined biases which do
not warrant the consideration of this Court.

On the other hand, it is noteworthy that while then president Aquino issued Executive Order No. 169
revoking PD No. 810 (which granted a franchise to a Marcos-crony to operate the jai-alai), she did
not scrap or repeal PD No. 771 which had revoked all franchises to operate jai-alais issued by local
governments, thereby re-affirming the government policy that franchises to operate jai-alais are for
the national government (not local governments) to consider and approve.

On the alleged violation of the non-impairment and equal protection clauses of the Constitution, it
should be remembered that a franchise is not in the strict sense a simple contract but rather it is
more importantly, a mere privilege specially in matters which are within the government's power to
regulate and even prohibit through the exercise of the police power. Thus, a gambling franchise is
always subject to the exercise of police power for the public welfare.

In RCPI v. NTC (150 SCRA 450), we held that:

A franchise started out as a "royal privilege or (a) branch of the King's prerogative,
subsisting in the hands of a subject." This definition was given by Finch, adopted by
Blackstone, and accepted by every authority since . . . Today, a franchise being
 merely a privilege emanating from the sovereign power of the state and owing its
existence to a grant, is subject to regulation by the state itself by virtue of its police
power through its administrative agencies.

There is a stronger reason for holding ADC's permit to be a mere privilege because jai-alai, when
played for bets, is pure and simple gambling. To analogize a gambling franchise for the operation of
a public utility, such as public transportation company, is to trivialize the great historic origin of this
branch of royal privilege.

As earlier noted, ADC has not alleged ever applying for a franchise under the provisions of PD No.
771. and yet, the purpose of PD No. 771 is quite clear from its provisions, i.e., to give to the national
government the exclusive power to grant gambling franchises. Thus, all franchises then existing
were revoked but were made subject to reissuance by the national government upon compliance by
the applicant with government-set qualifications and requirements.

There was no violation by PD No. 771 of the equal protection clause since the decree
revoked all franchises issued by local governments without qualification or exception. ADC cannot
allege violation of the equal protection clause simply because it was the only one affected by the
decree, for as correctly pointed out by the government, ADC was not singled out when all jai-alai
franchises were revoked. Besides, it is too late in the day for ADC to seek redress for alleged
violation of its constitutional rights for it could have raised these issues as early as 1975, almost
twenty 920) years ago.

Finally, we do not agree that Section 3 of PD No. 771 and the requirement of a legislative franchise
in Republic Act No. 954 are "riders" to the two 92) laws and are violative of the rule that laws should
embrace one subject which shall be expressed in the title, as argued by ADC. In Cordero v.
Cabatuando (6 SCRA 418), this Court ruled that the requirement under the constitution that all laws
should embrace only one subject which shall be expressed in the title is sufficiently met if the title is
comprehensive enough reasonably to include the general object which the statute seeks to effect,
without expressing each and every end and means necessary or convenient for the accomplishing of
the objective.

III

On the issue of whether or not there was grave abuse of discretion committed by respondent Judge
Reyes in issuing the temporary restraining order (later converted to a writ of preliminary injunction)
and the writ of preliminary mandatory injunction, we hold and rule there was.

Section 3, Rule 58 of the rules of Court provides for the grounds for the issuance of a preliminary
injunction. While ADC could allege these grounds, respondent judge should have taken judicial
notice of Republic Act No. 954 and PD 771, under Section 1 rule 129 of the Rules of court. These
laws negate the existence of any legal right on the part of ADC to the reliefs it sought so as to justify
the issuance of a writ of preliminary injunction. since PD No. 771 and Republic Act No. 954 are
presumed valid and constitutional until ruled otherwise by the Supreme Court after due hearing,
ADC was not entitled to the writs issued and consequently there was grave abuse of discretion in
issuing them.

WHEREFORE, for the foregoing reasons, judgment is hereby rendered:

1. allowing the Republic of the Philippines to intervene in G.R. No. 115044.

2. declaring Presidential Decree No. 771 valid and constitutional.

 3. declaring that respondent Associated Development corporation (ADC) does not
possess the required congressional franchise to operate and conduct the jai-alai
under Republic Act No. 954 and Presidential Decree No. 771.

4. setting aside the writs of preliminary injunction and preliminary mandatory

injunction issued by respondent Judge Vetino Reyes in civil Case No. 94-71656.

SO ORDERED.

Feliciano, Bidin, Regalado, Romero, Bellosillo and Mendoza, JJ., concur.

Narvasa, C.J. and Francisco, JJ., took no part.

De la Cruz v Paras

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

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

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

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

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

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

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

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

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

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

2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally

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

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

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

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

Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez,
Jr., JJ., concur.

Makasiar, J, reserves his right to file a dissent.

De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.

Ortigas v FEATI Bank

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

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

vs.
FEATI BANK AND TRUST CO., defendant-appellee.
Ramirez & Ortigas for appellant.

Tañada, Teehankee & Carreon for appellee.

SANTOS, J.:

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

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

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

1. The parcel of land subject of this deed of sale shall be used the Buyer exclusively
for residential purposes, and she shall not be entitled to take or remove soil, stones
or gravel from it or any other lots belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed
at any time in said lot must be, (a) of strong materials and properly painted, (b)
provided with modern sanitary installations connected either to the public sewer or to
an approved septic tank, and (c) shall not be at a distance of less than two (2) meters
from its boundary lines. 2

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

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

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

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

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

On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the lower court for
decision. The complaint sought, among other things, the issuance of "a writ of preliminary injunction
... restraining and enjoining defendant, its agents, assigns, and those acting on its or their behalf
from continuing or completing the construction of a commercial bank building in the premises ...
involved, with the view to commanding the defendant to observe and comply with the building
restrictions annotated in the defendant's transfer certificate of title."

In deciding the said case, the trial court considered, as the fundamental issue, whether or not the
resolution of the Municipal Council of Mandaluyong declaring Lots Nos. 5 and 6, among others, as
part of the commercial and industrial zone of the municipality, prevailed over the building restrictions
imposed by plaintiff-appellant on the lots in question. 13 The records do not show that a writ of
preliminary injunction was issued.

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

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above decision, 16 which
motion was opposed by defendant-appellee on March 17, 1965. 17 It averred, among others, in the motion
for reconsideration that defendant- appellee "was duty bound to comply with the conditions of the contract
of sale in its favor, which conditions were duly annotated in the Transfer Certificates of Title issued in her
(Emma Chavez) favor." It also invited the trial court's attention to its claim that the Municipal Council had
(no) power to nullify the contractual obligations assumed by the defendant corporation." 18

The trial court denied the motion for reconsideration in its order of March 26, 1965. 19
On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the
complaint and from the order of March 26, 1965 denying the motion for reconsideration, its record on
appeal, and a cash appeal bond." 20 On April 14, the appeal was given due course 21 and the records of
22
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 contractual obligations assumed by defendant-appellee and when it did not
make a finding that the building was erected along the property line, when it should
have been erected two meters away from said property line. 23

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

had occasion to hold in Relativo v. Castro 24 that "(I)t is not incumbent on the appellee, who occupies a
purely defensive position, and is seeking no affirmative relief, to make assignments of error, "

The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is a valid
exercise of police power; and (2) whether the said Resolution can nullify or supersede the
contractual obligations assumed by defendant-appellee.

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

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

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

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

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

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

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

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

Thus, the state, in order to promote the general welfare, may interfere with personal liberty, with
property, and with business and occupations. Persons may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort health and prosperity of the state 43 and to this
44
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
police power may also be gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo, speaking
for the Court, resolved the conflict "between one welfare and another, between particular and general,
thus —

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

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

Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General 49 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 postulate of the legal order. The policy of protecting contracts
against impairments presupposes the maintenance of a government by virtue of
which contractual relations are worthwhile – a government which retains adequate
authority to secure the peace and good order of society.

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

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

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

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

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

SO ORDERED.

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

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

Balcuit v CFI of Agusan

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

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

vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch 11, and
the CITY OF BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.

The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:

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

ORDINANCE--640

ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR

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

xxx xxx xxx

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

that:

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

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

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

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

Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and
Dalisay Theaters, the Crown Theater, and the Diamond Theater, respectively. Aggrieved by the
effect of Ordinance No. 640, they filed a complaint before the Court of First Instance of Agusan del
Norte and Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia,
that the subject ordinance be declared unconstitutional and, therefore, void and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court
a quo enjoining the respondent City of Butuan and its officials from enforcing Ordinance No. 640. 3 On
July 29, 1969, respondents filed their answer sustaining the validity of the ordinance. 4

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

IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the
respondents and against the petitioners, as follows:

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

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

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

4. SO ORDERED. 7

Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in
a resolution of the said court dated November 10, 1973. 9

Hence, this petition.

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

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

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this
Court held:

The authority of municipal corporations to regulate is essentially police power,

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

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

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

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

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

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

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

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

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

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

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

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

In Collister vs. Hayman, 26 it was held:

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

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

... And certainly a place of entertainment is in no legal sense a public utility; and quite
as certainly, its activities are not such that their enjoyment can be regarded under
any conditions from the point of view of an emergency.

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

We are in consonance with the foregoing observations and conclusions of American courts. In this
jurisdiction, legislation had been passed controlling the prices of goods commodities and drugs
during periods of emergency,28 limiting the net profits of public utility 29 as well as regulating rentals of
residential apartments for a limited period, 30 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 appropriate as a
national policy to interfere with the admission prices to these performances. This does not mean
however, that theaters and exhibitions are not affected with public interest even to a certain degree.
Motion pictures have been considered important both as a medium for the communication of Ideas
and expression of the artistic impulse. Their effects on the perceptions by our people of issues and
public officials or public figures as well as the prevailing cultural traits are considerable. 31 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 to regulate the movie
industry.32 Their aesthetic entertainment and even educational values cannot be underestimated. Even
police measures regulating the operation of these businesses have been upheld in order to safeguard
public health and safety.

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

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

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

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

SO ORDERED.

Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-Aquino, JJ., concur.
Zoomzat v People
Tan v Perea
EN BANC

[G.R. No. 149743. February 18, 2005]

LEONARDO TAN, ROBERT UY and LAMBERTO TE, petitioners, vs. SOCORRO Y. PEREA, respondent.

DECISION
TINGA, J.:

The resolution of the present petition effectively settles the question of how many cockpits may be
allowed to operate in a city or municipality.
There are two competing values of high order that come to fore in this casethe traditional power of
the national government to enact police power measures, on one hand, and the vague principle of local
autonomy now enshrined in the Constitution on the other. The facts are simple, but may be best
appreciated taking into account the legal milieu which frames them.
In 1974, Presidential Decree (P.D.) No. 449, otherwise known as the Cockfighting Law of 1974, was
enacted. Section 5(b) of the Decree provided for limits on the number of cockpits that may be
established in cities and municipalities in the following manner:

Section 5. Cockpits and Cockfighting in General.

(b) Establishment of Cockpits. Only one cockpit shall be allowed in each city or municipality, except that
in cities or municipalities with a population of over one hundred thousand, two cockpits may be
established, maintained and operated.

With the enactment of the Local Government Code of 1991,[1] the municipal sangguniang bayan
were empowered, [a]ny law to the contrary notwithstanding, to authorize and license the
establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial
breeding of gamecocks.[2]
In 1993, the Sangguniang Bayan of the municipality of Daanbantayan,[3] Cebu Province, enacted
Municipal Ordinance No. 6 (Ordinance No. 6), Series of 1993, which served as the Revised Omnibus
Ordinance prescribing and promulgating the rules and regulations governing cockpit operations in
Daanbantayan.[4] Section 5 thereof, relative to the number of cockpits allowed in the municipality,
stated:

Section 5. There shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not
more than its equal number of cockpits based upon the population provided for in PD 449, provided
however, that this specific section can be amended for purposes of establishing additional cockpits, if
the Municipal population so warrants.[5]
 Shortly thereafter, the Sangguniang Bayan passed an amendatory ordinance, Municipal Ordinance
No. 7 (Ordinance No. 7), Series of 1993, which amended the aforequoted Section 5 to now read as
follows:

Section 5. Establishment of Cockpit. There shall be allowed to operate in the Municipality of

Daanbantayan, Province of Cebu, not more than three (3) cockpits.[6]

On 8 November 1995, petitioner Leonardo Tan (Tan) applied with the Municipal Gamefowl
Commission for the issuance of a permit/license to establish and operate a cockpit in Sitio Combado,
Bagay, in Daanbantayan. At the time of his application, there was already another cockpit in operation in
Daanbantayan, operated by respondent Socorro Y. Perea (Perea), who was the duly franchised and
licensed cockpit operator in the municipality since the 1970s. Pereas franchise, per records, was valid
until 2002.[7]
The Municipal Gamefowl Commission favorably recommended to the mayor of Daanbantayan,
petitioner Lamberto Te (Te), that a permit be issued to Tan. On 20 January 1996, Te issued a mayors
permit allowing Tan to establish/operate/conduct the business of a cockpit in Combado, Bagay,
Daanbantayan, Cebu for the period from 20 January 1996 to 31 December 1996.[8]
This act of the mayor served as cause for Perea to file a Complaint for damages with a prayer for
injunction against Tan, Te, and Roberto Uy, the latter allegedly an agent of Tan.[9]Perea alleged that
there was no lawful basis for the establishment of a second cockpit. She claimed that Tan conducted his
cockpit fights not in Combado, but in Malingin, at a site less than five kilometers away from her own
cockpit. She insisted that the unlawful operation of Tans cockpit has caused injury to her own legitimate
business, and demanded damages of at least Ten Thousand Pesos (P10,000.00) per month as actual
damages, One Hundred Fifty Thousand Pesos (P150,000.00) as moral damages, and Fifty Thousand
Pesos (P50,000.00) as exemplary damages. Perea also prayed that the permit issued by Te in favor of
Tan be declared as null and void, and that a permanent writ of injunction be issued against Te and Tan
preventing Tan from conducting cockfights within the municipality and Te from issuing any authority for
Tan to pursue such activity.[10]
The case was heard by the Regional Trial Court (RTC),[11] Branch 61 of Bogo, Cebu, which initially
granted a writ of preliminary injunction.[12] During trial, herein petitioners asserted that under the Local
Government Code of 1991, the sangguniang bayan of each municipality now had the power and
authority to grant franchises and enact ordinances authorizing the establishment, licensing, operation
and maintenance of cockpits.[13] By virtue of such authority, the Sangguniang Bayan of Daanbantayan
promulgated Ordinance Nos. 6 and 7. On the other hand, Perea claimed that the amendment
authorizing the operation of not more than three (3) cockpits in Daanbantayan violated Section 5(b) of
the Cockfighting Law of 1974, which allowed for only one cockpit in a municipality with a population as
Daanbantayan.[14]
In a Decision dated 10 March 1997, the RTC dismissed the complaint. The court observed that
Section 5 of Ordinance No. 6, prior to its amendment, was by specific provision, an implementation of
the Cockfighting Law.[15] Yet according to the RTC, questions could be raised as to the efficacy of the
subsequent amendment under Ordinance No. 7, since under the old Section 5, an amendment allowing
additional cockpits could be had only if the municipal population so warrants.[16] While the RTC seemed
to doubt whether this condition had actually been fulfilled, it nonetheless declared that since the case
was only for damages, the [RTC] cannot grant more relief than that prayed for.[17] It ruled that there was
no evidence, testimonial or documentary, to show that plaintiff had actually suffered damages. Neither
was there evidence that Te, by issuing the permit to Tan, had acted in bad faith, since such issuance was
pursuant to municipal ordinances that nonetheless remained in force.[18] Finally, the RTC noted that the
assailed permit had expired on 31 December 1996, and there was no showing that it had been
renewed.[19]
Perea filed a Motion for Reconsideration which was denied in an Order dated 24 February 1998. In
this Order, the RTC categorically stated that Ordinance Nos. 6 and 7 were valid and legal for all intents
and purpose[s].[20] The RTC also noted that the Sangguniang Bayan had also promulgated Resolution No.
78-96, conferring on Tan a franchise to operate a cockpit for a period of ten (10) years from February
1996 to 2006.[21] This Resolution was likewise affirmed as valid by the RTC. The RTC noted that while the
ordinances seemed to be in conflict with the Cockfighting Law, any doubt in interpretation should be
resolved in favor of the grant of more power to the local government unit, following the principles of
devolution under the Local Government Code.[22]
The Decision and Order of the RTC were assailed by Perea on an appeal with the Court of Appeals
which on 21 May 2001, rendered the Decision now assailed.[23] The perspective from which the Court of
Appeals viewed the issue was markedly different from that adopted by the RTC. Its analysis of the Local
Government Code, particularly Section 447(a)(3)(V), was that the provision vesting unto the
sangguniang bayan the power to authorize and license the establishment of cockpits did not do away
with the Cockfighting Law, as these two laws are not necessarily inconsistent with each other. What the
provision of the Local Government Code did, according to the Court of Appeals, was to transfer to the
sangguniang bayan powers that were previously conferred on the Municipal Gamefowl Commission.[24]
Given these premises, the appellate court declared as follows:

Ordinance No. 7 should [be] held invalid for allowing, in unconditional terms, the operation of not more
than three cockpits in Daan Bantayan (sic), clearly dispensing with the standard set forth in PD 449.
However, this issue appears to have been mooted by the expiration of the Mayors Permit granted to the
defendant which has not been renewed.[25]

As to the question of damages, the Court of Appeals agreed with the findings of the RTC that Perea
was not entitled to damages. Thus, it affirmed the previous ruling denying the claim for damages.
However, the Court of Appeals modified the RTCs Decision in that it now ordered that Tan be enjoined
from operating a cockpit and conducting any cockfights within Daanbantayan.[26]
Thus, the present Petition for Review on Certiorari.
Petitioners present two legal questions for determination: whether the Local Government Code has
rendered inoperative the Cockfighting Law; and whether the validity of a municipal ordinance may be
determined in an action for damages which does not even contain a prayer to declare the ordinance
invalid.[27] As the denial of the prayer for damages by the lower court is not put in issue before this
Court, it shall not be passed upon on review.
The first question raised is particularly interesting, and any definitive resolution on that point would
have obvious ramifications not only to Daanbantayan, but all other municipalities and cities. However,
we must first determine the proper scope of judicial inquiry that we could engage in, given the nature of
the initiatory complaint and the rulings rendered thereupon, the exact point raised in the second
question.
Petitioners claim that the Court of Appeals, in declaring Ordinance No. 7 as invalid, embarked on an
unwarranted collateral attack on the validity of a municipal ordinance.[28] Pereas complaint, which was
for damages with preliminary injunction, did not pray for the nullity of Ordinance No. 7. The
Municipality of Daanbantayan as a local government unit was not made a party to the case, nor did any
legal counsel on its behalf enter any appearance. Neither was the Office of the Solicitor General given
any notice of the case.[29]
These concerns are not trivial.[30] Yet, we must point out that the Court of Appeals did not expressly
nullify Ordinance No. 7, or any ordinance for that matter. What the appellate court did was to say that
Ordinance No. 7 should therefore be held invalid for being in violation of the Cockfighting Law.[31] In the
next breath though, the Court of Appeals backtracked, saying that this issue appears to have been
mooted by the expiration of the Mayors Permit granted to Tan.[32]
But our curiosity is aroused by the dispositive portion of the assailed Decision, wherein the Court of
Appeals enjoined Tan from operating a cockpit and conducting any cockfights within
Daanbantayan.[33] Absent the invalidity of Ordinance No. 7, there would be no basis for this injunction.
After all, any future operation of a cockpit by Tan in Daanbantayan, assuming all other requisites are
complied with, would be validly authorized should Ordinance No. 7 subsist.
So it seems, for all intents and purposes, that the Court of Appeals did deem Ordinance No. 7 a
nullity. Through such resort, did the appellate court in effect allow a collateral attack on the validity of
an ordinance through an action for damages, as the petitioners argue?
The initiatory Complaint filed by Perea deserves close scrutiny. Immediately, it can be seen that it is
not only an action for damages, but also one for injunction. An action for injunction will require judicial
determination whether there exists a right in esse which is to be protected, and if there is an act
constituting a violation of such right against which injunction is sought. At the same time, the mere fact
of injury alone does not give rise to a right to recover damages. To warrant the recovery of damages,
there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting
to the plaintiff therefrom. In other words, in order that the law will give redress for an act causing
damage, there must be damnum et injuriathat act must be not only hurtful, but wrongful.[34]
Indubitably, the determination of whether injunction or damages avail in this case requires the
ascertainment of whether a second cockpit may be legally allowed in Daanbantayan. If this is
permissible, Perea would not be entitled either to injunctive relief or damages.
Moreover, an examination of the specific allegations in the Complaint reveals that Perea therein
puts into question the legal basis for allowing Tan to operate another cockpit in Daanbantayan. She
asserted that there is no lawful basis for the establishment of a second cockpit considering the small
population of [Daanbantayan],[35] a claim which alludes to Section 5(b) of the Cockfighting Law which
prohibits the establishment of a second cockpit in municipalities of less than ten thousand (10,000) in
population. Perea likewise assails the validity of the permit issued to Tan and prays for its annulment,
and also seeks that Te be enjoined from issuing any special permit not only to Tan, but also to any other
person outside of a duly licensed cockpit in Daanbantayan, Cebu.[36]
It would have been preferable had Perea expressly sought the annulment of Ordinance No. 7. Yet it
is apparent from her Complaint that she sufficiently alleges that there is no legal basis for the
establishment of a second cockpit. More importantly, the petitioners themselves raised the valid effect
of Ordinance No. 7 at the heart of their defense against the complaint, as adverted to in
their Answer.[37] The averment in the Answer that Ordinance No. 7 is valid can be considered as an
affirmative defense, as it is the allegation of a new matter which, while hypothetically admitting the
material allegations in the complaint, would nevertheless bar recovery.[38] Clearly then, the validity of
Ordinance No. 7 became a justiciable matter for the RTC, and indeed Perea squarely raised the
argument during trial that said ordinance violated the Cockfighting Law.[39]
 Moreover, the assailed rulings of the RTC, its Decision and subsequent Order denying
Pereas Motion for Reconsideration, both discuss the validity of Ordinance No. 7. In the Decision, the RTC
evaded making a categorical ruling on the ordinances validity because the case was only for damages,
[thus the RTC could] not grant more relief than that prayed for. This reasoning is unjustified, considering
that Perea also prayed for an injunction, as well as for the annulment of Tans permit. The resolution of
these two questions could very well hinge on the validity of Ordinance No. 7.
Still, in the Order denying Pereas Motion for Reconsideration, the RTC felt less inhibited and
promptly declared as valid not only Ordinance No. 7, but also Resolution No. 78-96 of the Sangguniang
Bayan dated 23 February 1996, which conferred on Tan a franchise to operate a cockpit from 1996 to
2006.[40] In the Order, the RTC ruled that while Ordinance No. 7 was in apparent conflict with the
Cockfighting Law, the ordinance was justified under Section 447(a)(3)(v) of the Local Government Code.
This express affirmation of the validity of Ordinance No. 7 by the RTC was the first assigned error in
Pereas appeal to the Court of Appeals.[41] In their Appellees Brief before the appellate court, the
petitioners likewise argued that Ordinance No. 7 was valid and that the Cockfighting Law was repealed
by the Local Government Code.[42] On the basis of these arguments, the Court of Appeals rendered its
assailed Decision, including its ruling that the Section 5(b) of the Cockfighting Law remains in effect
notwithstanding the enactment of the Local Government Code.
Indubitably, the question on the validity of Ordinance No. 7 in view of the continuing efficacy of
Section 5(b) of the Cockfighting Law is one that has been fully litigated in the courts below. We are
comfortable with reviewing that question in the case at bar and make dispositions proceeding from that
key legal question. This is militated by the realization that in order to resolve the question whether
injunction should be imposed against the petitioners, there must be first a determination whether Tan
may be allowed to operate a second cockpit in Daanbantayan. Thus, the conflict between Section 5(b) of
the Cockfighting Law and Ordinance No. 7 now ripens for adjudication.
In arguing that Section 5(b) of the Cockfighting Law has been repealed, petitioners cite the
following provisions of Section 447(a)(3)(v) of the Local Government Code:

Section 447. Powers, Duties, Functions and Compensation. (a) The sangguniang bayan, as the legislative
body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the municipality as provided for under Section 22 of this
Code, and shall:

....

(3) Subject to the provisions of Book II of this Code, grant franchises, enact ordinances authorizing the
issuance of permits or licenses, or enact ordinances levying taxes, fees and charges upon such conditions
and for such purposes intended to promote the general welfare of the inhabitants of the municipality,
and pursuant to this legislative authority shall:

....

(v) Any law to the contrary notwithstanding, authorize and license the establishment,
operation, and maintenance of cockpits, and regulate cockfighting and commercial
breeding of gamecocks; Provided, that existing rights should not be prejudiced;
 For the petitioners, Section 447(a)(3)(v) sufficiently repeals Section 5(b) of the Cockfighting Law,
vesting as it does on LGUs the power and authority to issue franchises and regulate the operation and
establishment of cockpits in their respective municipalities, any law to the contrary notwithstanding.
However, while the Local Government Code expressly repealed several laws, the Cockfighting Law
was not among them. Section 534(f) of the Local Government Code declares that all general and special
laws or decrees inconsistent with the Code are hereby repealed or modified accordingly, but such clause
is not an express repealing clause because it fails to identify or designate the acts that are intended to
be repealed.[43] It is a cardinal rule in statutory construction that implied repeals are disfavored and will
not be so declared unless the intent of the legislators is manifest.[44] As laws are presumed to be passed
with deliberation and with knowledge of all existing ones on the subject, it is logical to conclude that in
passing a statute it is not intended to interfere with or abrogate a former law relating to the same
subject matter, unless the repugnancy between the two is not only irreconcilable but also clear and
convincing as a result of the language used, or unless the latter Act fully embraces the subject matter of
the earlier.[45]
Is the one-cockpit-per-municipality rule under the Cockfighting Law clearly and convincingly
irreconcilable with Section 447(a)(3)(v) of the Local Government Code? The clear import of Section
447(a)(3)(v) is that it is the sangguniang bayan which is empowered to authorize and license the
establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial
breeding of gamecocks, notwithstanding any law to the contrary. The necessity of the qualifying phrase
any law to the contrary notwithstanding can be discerned by examining the history of laws pertaining to
the authorization of cockpit operation in this country.
Cockfighting, or sabong in the local parlance, has a long and storied tradition in our culture and was
prevalent even during the Spanish occupation. When the newly-arrived Americans proceeded to
organize a governmental structure in the Philippines, they recognized cockfighting as an activity that
needed to be regulated, and it was deemed that it was the local municipal council that was best suited
to oversee such regulation. Hence, under Section 40 of Act No. 82, the general act for the organization
of municipal governments promulgated in 1901, the municipal council was empowered to license, tax or
close cockpits. This power of the municipal council to authorize or license cockpits was repeatedly
recognized even after the establishment of the present Republic in 1946.[46] Such authority granted unto
the municipal councils to license the operation of cockpits was generally unqualified by
restrictions.[47] The Revised Administrative Code did impose restrictions on what days cockfights could
be held.[48]
However, in the 1970s, the desire for stricter licensing requirements of cockpits started to see
legislative fruit. The Cockfighting Law of 1974 enacted several of these restrictions. Apart from the one-
cockpit-per-municipality rule, other restrictions were imposed, such as the limitation of ownership of
cockpits to Filipino citizens.[49] More importantly, under Section 6 of the Cockfighting Law, it was the city
or municipal mayor who was authorized to issue licenses for the operation and maintenance of cockpits,
subject to the approval of the Chief of Constabulary or his authorized representatives.[50] Thus, the sole
discretion to authorize the operation of cockpits was removed from the local government unit since the
approval of the Chief of Constabulary was now required.
P.D. No. 1802 reestablished the Philippine Gamefowl Commission[51] and imposed further structure
in the regulation of cockfighting. Under Section 4 thereof, city and municipal mayors with the
concurrence of their respective sangguniang panglunsod or sangguniang bayan, were given the
authority to license and regulate cockfighting, under the supervision of the City Mayor or the Provincial
Governor. However, Section 4 of P.D. No. 1802 was subsequently amended, removing the supervision
exercised by the mayor or governor and substituting in their stead the Philippine Gamefowl
Commission. The amended provision ordained:

Sec. 4. City and Municipal Mayors with the concurrence of their respective Sanggunians shall have the
authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated
by the Commission and subject to its review and supervision.

The Court, on a few occasions prior to the enactment of the Local Government Code in 1991, had
opportunity to expound on Section 4 as amended. A discussion of these cases will provide a better
understanding of the qualifier any law to the contrary notwithstanding provided in Section 447(a)(3)(v).
In Philippine Gamefowl Commission v. Intermediate Appellate Court,[52] the Court, through Justice
Cruz, asserted that the conferment of the power to license and regulate municipal cockpits in municipal
authorities is in line with the policy of local autonomy embodied in the Constitution.[53] The Court
affirmed the annulment of a resolution of the Philippine Gamefowl Commission which ordered the
revocation of a permit issued by a municipal mayor for the operation of a cockpit and the issuance of a
new permit to a different applicant. According to the Court, the Philippine Gamefowl Commission did
not possess the power to issue cockpit licenses, as this was vested by Section 4 of P.D. No. 1802, as
amended, to the municipal mayor with the concurrence of the sanggunian. It emphasized that the
Philippine Gamefowl Commission only had review and supervision powers, as distinguished from
control, over ordinary cockpits.[54] The Court also noted that the regulation of cockpits was vested in
municipal officials, subject only to the guidelines laid down by the Philippine Gamefowl
Commission.[55] The Court conceded that [if] at all, the power to review includes the power to
disapprove; but it does not carry the authority to substitute ones own preferences for that chosen by
the subordinate in the exercise of its sound discretion.
The twin pronouncements that it is the municipal authorities who are empowered to issue cockpit
licenses and that the powers of the Philippine Gamefowl Commission were limited to review and
supervision were affirmed in Deang v. Intermediate Appellate Court,[56] Municipality of Malolos v.
Libangang Malolos Inc.[57] and Adlawan v. Intermediate Appellate Court.[58] But notably in Cootauco v.
Court of Appeals,[59] the Court especially noted that Philippine Gamefowl Commission did indicate that
the Commissions power of review includes the power to disapprove.[60] Interestingly, Justice Cruz, the
writer of Philippine Gamefowl Commission, qualified his concurrence in Cootauco subject to the
reservations made in [Philippine Gamefowl Commission] regarding the review powers of the PGC over
cockpit licenses issued by city and municipal mayors.[61]
These cases reiterate what has been the traditional prerogative of municipal officials to control the
issuances of licenses for the operation of cockpits. Nevertheless, the newly-introduced role of the
Philippine Gamefowl Commission vis--vis the operation of cockpits had caused some degree of
controversy, as shown by the cases above cited.
Then, the Local Government Code of 1991 was enacted. There is no more forceful authority on this
landmark legislation than Senator Aquilino Pimentel, Jr., its principal author. In his annotations to the
Local Government Code, he makes the following remarks relating to Section 447(a)(3)(v):

12. Licensing power. In connection with the power to grant licenses lodged with it, the Sangguniang
Bayan may now regulate not only businesses but also occupations, professions or callings that do not
require government examinations within its jurisdiction. It may also authorize and license the
establishment, operation and maintenance of cockpits, regulate cockfighting, and the commercial
breeding of gamecocks. Existing rights however, may not be prejudiced. The power to license cockpits
and permits for cockfighting has been removed completely from the Gamefowl Commission.

Thus, that part of the ruling of the Supreme Court in the case of Municipality of Malolos v. Libangang
Malolos, Inc. et al., which held that the regulation of cockpits is vested in the municipal councils
guidelines laid down by the Philippine Gamefowl Commission is no longer controlling. Under [Section
447(a)(3)(v)], the power of the Sanggunian concerned is no longer subject to the supervision of the
Gamefowl Commission.[62]

The above observations may be faulted somewhat in the sense that they fail to acknowledge the
Courts consistent position that the licensing power over cockpits belongs exclusively to the municipal
authorities and not the Philippine Gamefowl Commission. Yet these views of Senator Pimentel evince
the apparent confusion regarding the role of the Philippine Gamefowl Commission as indicated in the
cases previously cited, and accordingly bring the phrase Section 447(a)(3)(v) used in any law to the
contrary notwithstanding into its proper light. The qualifier serves notice, in case it was still doubtful,
that it is the sanggunian bayan concerned alone which has the power to authorize and license the
establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial
breeding of gamecocks within its territorial jurisdiction.
Given the historical perspective, it becomes evident why the legislature found the need to use the
phrase any law to the contrary notwithstanding in Section 447(a)(3)(v). However, does the phrase
similarly allow the Sangguniang Bayan to authorize more cockpits than allowed under Section 5(d) of the
Cockfighting Law? Certainly, applying the test of implied repeal, these two provisions can stand
together. While the sanggunian retains the power to authorize and license the establishment, operation,
and maintenance of cockpits, its discretion is limited in that it cannot authorize more than one cockpit
per city or municipality, unless such cities or municipalities have a population of over one hundred
thousand, in which case two cockpits may be established. Considering that Section 447(a)(3)(v) speaks
essentially of the identity of the wielder of the power of control and supervision over cockpit operation,
it is not inconsistent with previous enactments that impose restrictions on how such power may be
exercised. In short, there is no dichotomy between affirming the power and subjecting it to limitations
at the same time.
Perhaps more essential than the fact that the two controverted provisions are not inconsistent
when put together, the Court recognizes that Section 5(d) of the Cockfighting Law arises from a valid
exercise of police power by the national government. Of course, local governments are similarly
empowered under Section 16 of the Local Government Code. The national government ought to be
attuned to the sensitivities of devolution and strive to be sparing in usurping the prerogatives of local
governments to regulate the general welfare of their constituents.
We do not doubt, however, the ability of the national government to implement police power
measures that affect the subjects of municipal government, especially if the subject of regulation is a
condition of universal character irrespective of territorial jurisdictions. Cockfighting is one such
condition. It is a traditionally regulated activity, due to the attendant gambling involved[63] or maybe
even the fact that it essentially consists of two birds killing each other for public amusement. Laws have
been enacted restricting the days when cockfights could be held,[64] and legislation has even been
emphatic that cockfights could not be held on holidays celebrating national honor such as Independence
Day[65] and Rizal Day.[66]
The Whereas clauses of the Cockfighting Law emphasize that cockfighting should neither be
exploited as an object of commercialism or business enterprise, nor made a tool of uncontrolled
gambling, but more as a vehicle for the preservation and perpetuation of native Filipino heritage and
thereby enhance our national identity.[67] The obvious thrust of our laws designating when cockfights
could be held is to limit cockfighting and imposing the one-cockpit-per-municipality rule is in line with
that aim. Cockfighting is a valid matter of police power regulation, as it is a form of gambling essentially
antagonistic to the aims of enhancing national productivity and self-reliance.[68] Limitation on the
number of cockpits in a given municipality is a reasonably necessary means for the accomplishment of
the purpose of controlling cockfighting, for clearly more cockpits equals more cockfights.
If we construe Section 447(a)(3)(v) as vesting an unlimited discretion to the sanggunian to control
all aspects of cockpits and cockfighting in their respective jurisdiction, this could lead to the prospect of
daily cockfights in municipalities, a certain distraction in the daily routine of life in a municipality. This
certainly goes against the grain of the legislation earlier discussed. If the arguments of the petitioners
were adopted, the national government would be effectively barred from imposing any future
regulatory enactments pertaining to cockpits and cockfighting unless it were to repeal Section
447(a)(3)(v).
A municipal ordinance must not contravene the Constitution or any statute, otherwise it is
void.[69] Ordinance No. 7 unmistakably contravenes the Cockfighting Law in allowing three cockpits in
Daanbantayan. Thus, no rights can be asserted by the petitioners arising from the Ordinance. We find
the grant of injunction as ordered by the appellate court to be well-taken.
WHEREFORE, the petition is DENIED. Costs against petitioners.
SO ORDERED.
Davide, Jr., CJ., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario andGarcia, JJ., concur.

Lucena Grand Terminal v JAC Liner

EN BANC

[G.R. No. 148339. February 23, 2005]

LUCENA GRAND CENTRAL TERMINAL, INC., petitioner, vs. JAC LINER, INC., respondent.

DECISION
CARPIO MORALES, J.:

Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to and from
Lucena City, assailed, via a petition for prohibition and injunction[1] against the City of Lucena, its Mayor,
and the Sangguniang Panlungsod of Lucena before the Regional Trial Court (RTC) of Lucena City, City
Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia, the same constituted
an invalid exercise of police power, an undue taking of private property, and a violation of the
constitutional prohibition against monopolies. The salient provisions of the ordinances are:

Ordinance No. 1631[2]

AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A FRANCHISE TO

CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A COMMON BUS-JEEPNEY TERMINAL
FACILITY IN THE CITY OF LUCENA

xxx

SECTION 1. There is hereby granted to the Lucena Grand Central Terminal, Inc., its successors or assigns,
hereinafter referred to as the grantee, a franchise to construct, finance, establish, operate, and maintain
a common bus-jeepney terminal facility in the City of Lucena.

SECTION 2. This franchise shall continue for a period of twenty-five years, counted from the approval of
this Ordinance, and renewable at the option of the grantee for another period of twenty-five (25) years
upon such expiration.

xxx

SECTION 4. Responsibilities and Obligations of the City Government of Lucena. During the existence of
the franchise, the City Government of Lucena shall have the following responsibilities and obligations:

xxx

(c) It shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or
jeepney terminal.

xxx

Ordinance No. 1778[3]

AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL BUSES, MINI-BUSES AND
OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS PURPOSE, AMENDING ORDINACE NO. 1420, SERIES
OF 1993, AND ORDINANCE NO. 1557, SERIES OF 1995

xxx

SECTION 1. The entrance to the City of Lucena of all buses, mini-buses and out-of-town passenger
jeepneys is hereby regulated as follows:

(a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited from entering the
city and are hereby directed to proceed to the common terminal, for picking-up and/or dropping of their
passengers.
(b) All temporary terminals in the City of Lucena are hereby declared inoperable starting from the
effectivity of this ordinance.

xxx

SECTION 3. a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local government units
going to Lucena City are directed to proceed to the Common Terminal located at Diversion Road, Brgy.
Ilayang Dupay, to unload and load passengers.

xxx

c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities and/or
local government units shall utilize the facilities of the Lucena Grand Central Terminal at Diversion Road,
Brgy. Ilayang Dupay, this City, and no other terminals shall be situated inside or within the City
of Lucena;

d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities and/or
local government units shall avail of the facilities of the Lucena Grand Central Terminal which is hereby
designated as the officially sanctioned common terminal for the City of Lucena;

e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

The Lucena Grand Central Terminal is the permanent common terminal as this is the entity which was
given the exclusive franchise by the Sangguniang Panglungsod under Ordinance No. 1631;(Emphasis
and underscoring supplied)

These ordinances, by granting an exclusive franchise for twenty five years, renewable for another
twenty five years, to one entity for the construction and operation of one common bus and jeepney
terminal facility in Lucena City, to be located outside the city proper, were professedly aimed towards
alleviating the traffic congestion alleged to have been caused by the existence of various bus and
jeepney terminals within the city, as the Explanatory Note-Whereas Clause adopting Ordinance No.
1778 states:

WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with the purpose of
easing and regulating the flow of the same, it is imperative that the Buses, Mini-Buses and out-of-town
jeepneys be prohibited from maintaining terminals within the City, but instead directing to proceed to
the Lucena Grand Central Terminal for purposes of picking-up and/or dropping off their passengers;[4]

Respondent, who had maintained a terminal within the city, was one of those affected by the
ordinances.
 Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee of the
exclusive franchise for the operation of the common terminal,[5] was allowed to intervene in the petition
before the trial court.
In the hearing conducted on November 25, 1998, all the parties agreed to dispense with the
presentation of evidence and to submit the case for resolution solely on the basis of the pleadings
filed.[6]
By Order of March 31, 1999,[7] Branch 54 of the Lucena RTC rendered judgment, the dispositive
portion of which reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as follows:

1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of the police power of
the City Government of Lucena insofar as the grant of franchise to the Lucena Grand Central Terminal,
Inc., to construct, finance, establish, operate and maintain common bus-jeepney terminal facility in the
City of Lucena;

2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the effect that the City
Government shall not grant any third party any privilege and/or concession to operate a bus, mini-bus
and/or jeepney terminal, as illegal and ultra vires because it contravenes the provisions of Republic Act
No. 7160, otherwise known as The Local Government Code;

3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra vires act of the City
Government of Lucena arising from an invalid, oppressive and unreasonable exercise of the police
power, more specifically, declaring illegal [sections 1(b), 3(c) and 3(e)];

4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the respondents public
officials, the City Mayor and the Sangguniang Panglungsod of Lucena, to cease and desist from
implementing Ordinance No. 1778 insofar as said ordinance prohibits or curtails petitioner from
maintaining and operating its own bus terminal subject to the conditions provided for in Ordinance No.
1557, Sec. 3, which authorizes the construction of terminal outside the poblacion of Lucena City; and
likewise, insofar as said ordinance directs and compels the petitioner to use the Lucena Grand Central
Terminal Inc., and furthermore, insofar as it declares that no other terminals shall be situated,
constructed, maintained or established inside or within the City of Lucena; and furthermore,

5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc., dated October 19,
1998, is hereby DENIED for lack of merit.

SO ORDERED. (Emphasis and underscoring supplied)[8]

Petitioners Motion for Reconsideration[9] of the trial courts order having been denied by Order of
August 6, 1999,[10] it elevated it via petition for review under Rule 45 before this Court.[11]This Court, by
Resolution of November 24, 1999,[12] referred the petition to the Court of Appeals with which it has
concurrent jurisdiction, no special and important reason having been cited for it to take cognizance
thereof in the first instance.
By Decision of December 15, 2000,[13] the appellate court dismissed the petition and affirmed the
challenged orders of the trial court. Its motion for reconsideration[14] having been denied by the
appellate court by Resolution dated June 5, 2001,[15] petitioner once again comes to this Court via
petition for review,[16] this time assailing the Decision and Resolution of the Court of Appeals.
Decision on the petition hinges on two issues, to wit: (1) whether the trial court has jurisdiction
over the case, it not having furnished the Office of the Solicitor General copy of the orders it issued
therein, and (2) whether the City of Lucena properly exercised its police power when it enacted the
subject ordinances.
Petitioner argues that since the trial court failed to serve a copy of its assailed orders upon the
Office of the Solicitor General, it never acquired jurisdiction over the case, it citingSection 22, Rule 3 of
the Rules which provides:

SEC. 22. Notice to the Solicitor General.In any action involving the validity of any treaty, law, ordinance,
executive order, presidential decree, rules or regulations, the court in its discretion, may require the
appearance of the Solicitor General who may be heard in person or through representative duly
designated by him. (Emphasis and underscoring supplied)

Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide:

SEC. 3. Notice on Solicitor General. In any action which involves the validity of a statute, executive order
or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party
assailing the same and shall be entitled to be heard upon such question.

SEC. 4. Local government ordinances. In any action involving the validity of a local government
ordinance, the corresponding prosecutor or attorney of the local government unit involved shall be
similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the
Solicitor General shall also be notified and entitled to be heard. (Emphasis and underscoring supplied)

Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor General
about the action is a jurisdictional defect.
In fact, Rule 3, Section 22 gives the courts in any action involving the validity of any ordinance, inter
alia, discretion to notify the Solicitor General.
Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality, not just
the validity, of a local government ordinance, directs that the Solicitor General shallalso be notified and
entitled to be heard. Who will notify him, Sec. 3 of the same rule provides it is the party which is
assailing the local governments ordinance.
More importantly, however, this Court finds that no procedural defect, fatal or otherwise, attended
the disposition of the case. For respondent actually served a copy of its petition upon the Office of the
Solicitor General on October 1, 1998, two days after it was filed. The Solicitor General has issued a
Certification to that effect.[17] There was thus compliance with above-quoted rules.
Respecting the issue of whether police power was properly exercised when the subject ordinances
were enacted: As with the State, the local government may be considered as having properly exercised
its police power only if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State, and (2) the means
employed are reasonably necessary for the attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. Otherwise stated, there must be a concurrence of a lawful
subject and lawful method.[18]
That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In Calalang v.
Williams[19] which involved a statute authorizing the Director of Public Works to promulgate rules and
regulations to regulate and control traffic on national roads, this Court held:

In enacting said law, therefore, the National Assembly was prompted by considerations of public
convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the
least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law,
and the state in order to promote the general welfare may interfere with personal liberty, with
property, and with business and occupations.[20] (Emphasis supplied)

The questioned ordinances having been enacted with the objective of relieving traffic congestion in
the City of Lucena, they involve public interest warranting the interference of the State. The first
requisite for the proper exercise of police power is thus present.
Respondents suggestion to have this Court look behind the explicit objective of the ordinances
which, to it, was actually to benefit the private interest of petitioner by coercing all bus operators to
patronize its terminal does not lie.[21] Lim v. Pacquing[22] instructs:

. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select group which
was later given authority to operate the jai-alai under PD No. 810. The examination of legislative
motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438 [1971] per Black,
J.) There is, in the first place, absolute lack of evidence to support ADCs allegation of improper
motivation in the issuance of PD No. 771. In the second place, as already averred, this Court cannot go
behind the expressed and proclaimed purposes of PD No. 771, which are reasonable and even laudable.
(Underscoring supplied)[23]

This leaves for determination the issue of whether the means employed by the Lucena Sangguniang
Panlungsod to attain its professed objective were reasonably necessary and not unduly oppressive upon
individuals.
With the aim of localizing the source of traffic congestion in the city to a single location, [24] the
subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena, including
those already existing, and allow the operation of only one common terminal located outside the city
proper, the franchise for which was granted to petitioner. The common carriers plying routes to and
from Lucena City are thus compelled to close down their existing terminals and use the facilities of
petitioner.
In De la Cruz v. Paras,[25] this Court declared unconstitutional an ordinance characterized by
overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the operation of all night
clubs, cabarets and dance halls within its jurisdiction for the protection of public morals. Held the Court:

It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the
term reasonable. The objective of fostering public morals, a worthy and desirable end can be attainedb
y a measure that does not encompass too wide a field. Certainly the ordinance on its face is characterize
d by overbreadth. The purpose sought to be achieved could have been attained by reasonablerestriction
s rather than by an absolute prohibition. The admonition in Salaveria should be heeded: The Judiciary
should not lightly set aside legislative action when there is not a clear invasion of personal or property
rights under the guise of police regulation. 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. (Underscoring supplied)[26]

In Lupangco v. Court of Appeals,[27] this Court, in declaring unconstitutional the resolution subject
thereof, advanced a similar consideration. That case involved a resolution issued by the Professional
Regulation Commission which prohibited examinees from attending review classes and receiving
handout materials, tips, and the like three days before the date of examination in order to preserve the
integrity and purity of the licensure examinations in accountancy. Besides being unreasonable on its
face and violative of academic freedom, the measure was found to be more sweeping than what was
necessary, viz:

Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages in
the licensure examinations will be eradicated or at least minimized. Making the examinees suffer by
depriving them of legitimate means of review or preparation on those last three precious days when
they should be refreshing themselves with all that they have learned in the review classes and preparing
their mental and psychological make-up for the examination day itself would be like uprooting the tree
to get rid of a rotten branch. What is needed to be done by the respondent is to find out the source of
such leakages and stop it right there. If corrupt officials or personnel should be terminated from their
loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by
examiners should be set up and if violations are committed, then licenses should be suspended or
revoked. x x x (Emphasis and underscoring supplied)[28]

As in De la Cruz[29] and Lupangco,[30] the ordinances assailed herein are characterized by

overbreadth. They go beyond what is reasonably necessary to solve the traffic problem. Additionally,
since the compulsory use of the terminal operated by petitioner would subject the users thereof to fees,
rentals and charges, such measure is unduly oppressive, as correctly found by the appellate
court. [31] What should have been done was to determine exactly where the problem lies and then to
stop it right there.

The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that
rights are exercised within the framework of the law and the laws are enacted with due deference to
rights. (Underscoring supplied)[32]

A due deference to the rights of the individual thus requires a more careful formulation of solutions
to societal problems.
From the memorandum[33] filed before this Court by petitioner, it is gathered that the Sangguniang
Panlungsod had identified the cause of traffic congestion to be the indiscriminate loading and unloading
of passengers by buses on the streets of the city proper, hence, the conclusion that the terminals
contributed to the proliferation of buses obstructing traffic on the city streets.
Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright
proscription against the existence of all terminals, apart from that franchised to petitioner, can be
considered as reasonably necessary to solve the traffic problem, this Court has not been enlightened. If
terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the
streets instead of inside the terminals, then reasonable specifications for the size of terminals could be
instituted, with permits to operate the same denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription against the maintenance of
terminals is so broad that even entities which might be able to provide facilities better than the
franchised terminal are barred from operating at all.
Petitioner argues, however, that other solutions for the traffic problem have already been tried but
proven ineffective. But the grant of an exclusive franchise to petitioner has not been shown to be the
only solution to the problem.
While the Sangguniang Panlungsod, via Ordinance No. 1557,[34] previously directed bus owners and
operators to put up their terminals outside the poblacion of Lucena City, petitioner informs that said
ordinance only resulted in the relocation of terminals to other well-populated barangays, thereby giving
rise to traffic congestion in those areas.[35] Assuming that information to be true, the Sangguniang
Panlungsod was not without remedy. It could have defined, among other considerations, in a more
precise manner, the area of relocation to avoid such consequences.
As for petitioners argument that the challenged ordinances were enacted pursuant to the power of
the Sangguniang Panlungsod to [r]egulate traffic on all streets and bridges; prohibitencroachments or
obstacles thereon and, when necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places:[36] Absent any showing, nay allegation, that the
terminals are encroaching upon public roads, they are not obstacles. The buses which indiscriminately
load and unload passengers on the city streets are. The power then of the Sangguniang Panlungsod to
prohibit encroachments and obstacles does not extend to terminals.
Neither are terminals public nuisances as petitioner argues. For their operation is a legitimate
business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of
the community.
But even assuming that terminals are nuisances due to their alleged indirect effects upon the flow
of traffic, at most they are nuisance per accidens, not per se.
Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial
proceedings, as was done in the case at bar.
In Estate of Gregoria Francisco v. Court of Appeals,[37] this Court held:

Respondents can not seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the
immediate safety of persons and property and may be summarily abated under the undefined law of
necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is
a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of
comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted
for that purpose. It is not per se a nuisance warranting its summary abatement without judicial
intervention. (Underscoring supplied)[38]

In Pampanga Bus Co., Inc. v. Municipality of Tarlac[39] where the appellant-municipality similarly
argued that the terminal involved therein is a nuisance that may be abated by the Municipal Council via
an ordinance, this Court held: Suffice it to say that in the abatement of nuisances the provisions of the
Civil Code (Articles 694-707) must be observed and followed. This appellant failed to do.
 As for petitioners claim that the challenged ordinances have actually been proven effective in
easing traffic congestion: Whether an ordinance is effective is an issue different from whether it is
reasonably necessary. It is its reasonableness, not its effectiveness, which bears upon its
constitutionality. If the constitutionality of a law were measured by its effectiveness, then even
tyrannical laws may be justified whenever they happen to be effective.
The Court is not unaware of the resolutions of various barangays in Lucena City supporting the
establishment of a common terminal, and similar expressions of support from the private sector, copies
of which were submitted to this Court by petitioner. The weight of popular opinion, however, must be
balanced with that of an individuals rights.

There is no question that not even the strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation who would deny him that right.[40]

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ.,concur.

Ermita Malate Hotel and Motel Operators v City Mayor of Manila

G.R. No. L-24693 July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR
INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.

Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.

FERNANDO, J.:

The principal question in this appeal from a judgment of the lower court in an action for prohibition is
whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower
court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be
more specifically set forth, such judgment must be reversed, there being a failure of the requisite
showing to sustain an attack against its validity.

The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners,
Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a
certain Go Chiu, who is "the president and general manager of the second petitioner" against the
respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the
general power and duty to enforce ordinances of the City of Manila and to give the necessary orders
for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the
petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its
eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying taxes, employing and giving livelihood
to not less than 2,500 person and representing an investment of more than P3 million."1 (par. 2). It
was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who
was at the time acting as Mayor of the City of Manila. (par. 3).

After which the alleged grievances against the ordinance were set forth in detail. There was the
assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar
as it would regulate motels, on the ground that in the revised charter of the City of Manila or in any
other law, no reference is made to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and violative of due process insofar as it would
impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that
the provision in the same section which would require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting
any guest or customer or letting any room or other quarter to any person or persons without his filling
up the prescribed form in a lobby open to public view at all times and in his presence, wherein the
surname, given name and middle name, the date of birth, the address, the occupation, the sex, the
nationality, the length of stay and the number of companions in the room, if any, with the name,
relationship, age and sex would be specified, with data furnished as to his residence certificate as
well as his passport number, if any, coupled with a certification that a person signing such form has
personally filled it up and affixed his signature in the presence of such owner, manager, keeper or
duly authorized representative, with such registration forms and records kept and bound together, it
also being provided that the premises and facilities of such hotels, motels and lodging houses would
be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process grounds, not only for being
arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise
for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that
Section 2 of the challenged ordinance classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class motels such as a telephone in each room, a
dining room or, restaurant and laundry similarly offends against the due process clause for being
arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance
requiring second class motels to have a dining room; that the provision of Section 2 of the
challenged ordinance prohibiting a person less than 18 years old from being accepted in such
hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful
guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of
such establishments to lease any room or portion thereof more than twice every 24 hours, runs
counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the
offended party, in effect causing the destruction of the business and loss of its investments, there is
once again a transgression of the due process clause.

There was a plea for the issuance of preliminary injunction and for a final judgment declaring the
above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of
preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760
from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances
regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or
motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its
alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did
fail to state a cause of action and that the challenged ordinance bears a reasonable relation, to a
proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that
only the guests or customers not before the court could complain of the alleged invasion of the right
to privacy and the guaranty against self incrimination, with the assertion that the issuance of the
preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and
the dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated
September 28, 1964, which reads:

1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel
del Mar Inc. are duly organized and existing under the laws of the Philippines, both with
offices in the City of Manila, while the petitioner Go Chin is the president and general
manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio
City, all having the capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances;

3. That the petitioners are duly licensed to engage in the business of operating hotels and
motels in Malate and Ermita districts in Manila;

4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No.
4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the
acting City Mayor of Manila, in the absence of the respondent regular City Mayor, amending
sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of the City of
Manila besides inserting therein three new sections. This ordinance is similar to the one
vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement
dated February 15, 1963 (Annex B);

5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with
the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is
attached hereto as Annex C;

6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license
fees paid by the 105 hotels and motels (including herein petitioners) operating in the City of
Manila.1äwphï1.ñët

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on
the presumption of the validity of the challenged ordinance, the burden of showing its lack of
conformity to the Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but
likewise applicable American authorities. Such a memorandum likewise refuted point by point the
arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4,
1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition,
with citations of what they considered to be applicable American authorities and praying for a
judgment declaring the challenged ordinance "null and void and unenforceable" and making
permanent the writ of preliminary injunction issued.

After referring to the motels and hotels, which are members of the petitioners association, and
referring to the alleged constitutional questions raised by the party, the lower court observed: "The
only remaining issue here being purely a question of law, the parties, with the nod of the Court,
agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does
appear obvious then that without any evidence submitted by the parties, the decision passed upon
the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of
Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of
the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the
preliminary injunction issued against respondent Mayor and his agents "to restrain him from
enforcing the ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines
of a fundamental character ought to have admonished the lower court against such a sweeping
condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with
what has hitherto been the accepted standards of constitutional adjudication, in both procedural and
substantive aspects.

Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the
elected representatives of the people cannot be lightly set aside. The councilors must, in the very
nature of things, be familiar with the necessities of their particular municipality and with all the facts
and circumstances which surround the subject and necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that the regulations are essential to the well being
of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation.2

It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence
to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case
here. The principle has been nowhere better expressed than in the leading case of O'Gorman &
Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice Brandeis
tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject
clearly within the scope of the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the constitutionality of legislation of
this character, the resumption of constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute." No such factual foundation being laid in the
present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the
presumption of validity must prevail and the judgment against the ordinance set aside.

Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being
repugnant to the due process clause of the Constitution. The mantle of protection associated with
the due process guaranty does not cover petitioners. This particular manifestation of a police power
measure being specifically aimed to safeguard public morals is immune from such imputation of
nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise
would be to unduly restrict and narrow the scope of police power which has been properly
characterized as the most essential, insistent and the least limitable of powers,4extending as it does
"to all the great public needs."5 It would be, to paraphrase another leading decision, to destroy the
very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to
promote public health, public morals, public safety and the genera welfare.6 Negatively put, police
power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full
to the comfort, safety, and welfare of society.7

There is no question but that the challenged ordinance was precisely enacted to minimize certain
practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included
as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution,
adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a
necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven
for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine
harboring of transients and guests of these establishments by requiring these transients and guests
to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and
by introducing several other amendatory provisions calculated to shatter the privacy that
characterizes the registration of transients and guests." Moreover, the increase in the licensed fees
was intended to discourage "establishments of the kind from operating for purpose other than legal"
and at the same time, to increase "the income of the city government." It would appear therefore that
the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues
eloquently for it.

It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a license
tax for and regulating the maintenance or operation of public dance halls;9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days other than
Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any
person from keeping, conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect public morals.

On the legislative organs of the government, whether national or local, primarily rest the exercise of
the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to
promote the health, morals, peace, good order, safety and general welfare of the people. In view of
the requirements of due process, equal protection and other applicable constitutional guaranties
however, the exercise of such police power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police power may be considered as
either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any
other applicable constitutional guaranty may call for correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the
question of due process.16 There is no controlling and precise definition of due process. It furnishes
though a standard to which the governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. What then is the standard of due process
which must exist both as a procedural and a substantive requisite to free the challenged ordinance,
or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result
in sheer oppression. Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment
of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of
officialdom of whatever branch "in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical
conception with fixed content unrelated to time, place and circumstances,"19 decisions based on
such a clause requiring a "close and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form
or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a
municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious
exercise of authority. It would seem that what should be deemed unreasonable and what would
amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of
the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the
need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong
case must be found in the records, and, as has been set forth, none is even attempted here to attach
to an ordinance of such character the taint of nullity for an alleged failure to meet the due process
requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment
of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for
motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its
alleged vagueness.

Admittedly there was a decided increase of the annual license fees provided for by the challenged
ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels
being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the
settled law however, as far back as 1922 that municipal license fees could be classified into those
imposed for regulating occupations or regular enterprises, for the regulation or restriction of non-
useful occupations or enterprises and for revenue purposes only.22 As was explained more in detail
in the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the
police power and the right to exact a fee may be implied from the power to license and regulate, but
in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in
this class of cases than in the former, and aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number
of persons who might otherwise engage in non-useful enterprises is, of course, generally an
important factor in the determination of the amount of this kind of license fee. Hence license fees
clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of
licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court that taxation may be made to implement the state's
police power. Only the other day, this Court had occasion to affirm that the broad taxing authority
conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to
cover a wide range of subjects with the only limitation that the tax so levied is for public purposes,
just and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in
imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given
to municipal corporations in determining the amount," here the license fee of the operator of a
massage clinic, even if it were viewed purely as a police power measure.26 The discussion of this
particular matter may fitly close with this pertinent citation from another decision of significance: "It is
urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them
of their lawful occupation and means of livelihood because they can not rent stalls in the public
markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale
of which outside the city markets under certain conditions is permitted x x x . And surely, the mere
fact, that some individuals in the community may be deprived of their present business or a
particular mode of earning a living cannot prevent the exercise of the police power. As was said in a
case, persons licensed to pursue occupations which may in the public need and interest be affected
by the exercise of the police power embark in these occupations subject to the disadvantages which
may result from the legal exercise of that power."27

Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it
unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel,
lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more than
twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different
conclusion. Again, such a limitation cannot be viewed as a transgression against the command of
due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises could be, and, according to
the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there
appears a correspondence between the undeniable existence of an undesirable situation and the
legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of
conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be
absolute. Thus: "One thought which runs through all these different conceptions of liberty is plainly
apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by
law.' Implied in the term is restraint by law for the good of the individual and for the greater good of
the peace and order of society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good x x x The liberty of the citizen may be
restrained in the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power."28

A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to promote the general welfare may interfere with
personal liberty, with property, and with business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the state x x x To this fundamental aim of our Government the rights of the individual
are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made
to prevail over authority because then society will fall into anarchy. Neither should authority be made
to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the
required balance of liberty and authority in his mind through education and personal discipline, so
that there may be established the resultant equilibrium, which means peace and order and
happiness for all.29

It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation
of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The
policy of laissez faire has to some extent given way to the assumption by the government of the right
of intervention even in contractual relations affected with public interest.31 What may be stressed
sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the
validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects at the most rights of property, the permissible scope of regulatory measure is wider.32 How
justify then the allegation of a denial of due process?

Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the
principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what
seems to be the gravamen of the alleged grievance is that the provisions are too detailed and
specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest
should give the name, relationship, age and sex of the companion or companions as indefinite and
uncertain in view of the necessity for determining whether the companion or companions referred to
are those arriving with the customer or guest at the time of the registry or entering the room With him
at about the same time or coming at any indefinite time later to join him; a proviso in one of its
sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent
upon the discretion of its owners or operators; another proviso which from their standpoint would
require a guess as to whether the "full rate of payment" to be charged for every such lease thereof
means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render
the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to
answer it. From Connally v. General Construction Co.33 toAdderley v. Florida,34 the principle has
been consistently upheld that what makes a statute susceptible to such a charge is an enactment
either forbidding or requiring the doing of an act that men of common intelligence must necessarily
guess at its meaning and differ as to its application. Is this the situation before us? A citation from
Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying
criminal laws with what they omit but there is no canon against using common sense in construing
laws as saying what they obviously mean."35

That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so
uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed
decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With
costs.

Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.

City of Manila v Laguio

EN BANC

[G.R. No. 118127. April 12, 2005]

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L.
ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City
Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S.
CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ,
HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G.
RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG,
HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A.
MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V.
ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON,
HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON.
BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON.
BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT,
 HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their
capacity as councilors of the City of Manila, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR.,
as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, respondents.

DECISION
TINGA, J.:

I know only that what is moral is what you feel good after and what is immoral is what you feel bad
after.

Ernest Hermingway
Death in the Afternoon, Ch. 1

It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than
if performed by someone else, who would be well-intentioned in his dishonesty.

J. Christopher Gerald
Bonaparte in Egypt, Ch. I

The Courts commitment to the protection of morals is secondary to its fealty to the fundamental
law of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if
it need be, the Court will not hesitate to make the hammer fall, and heavily in the words of Justice
Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in zeal
to promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition[1] under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision[2] in Civil Case No. 93-66511 of the Regional Trial Court
(RTC) of Manila, Branch 18 (lower court),[3] is the validity of Ordinance No. 7783 (the Ordinance) of the
City of Manila.[4]
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in
the business of operating hotels, motels, hostels and lodging houses.[5] It built and opened Victoria Court
in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a
hotel.[6] On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order[7] (RTC Petition) with the lower court
impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L.
Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and
unconstitutional.[8]
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner City Mayor on 30 March
1993, the said Ordinance is entitled

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN

FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.[10]
 The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person,
partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr.
Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the
West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing
certain forms of amusement, entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect
the social and moral welfare of the community, such as but not limited to:

1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are
prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting
payments for the operation of business enumerated in the preceding section.

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses
enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this
ordinance within which to wind up business operations or to transfer to any place outside of the
Ermita-Malate area or convert said businesses to other kinds of business allowable within the
area,such as but not limited to:

1. Curio or antique shop

2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of
cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or
 open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry
with any machinery, or funeral establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion
of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-
in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation
and conviction, the premises of the erring establishment shall be closed and padlocked permanently.

SEC. 5. This ordinance shall take effect upon approval.

Enacted by the City Council of Manila at its regular session today, March 9, 1993.

Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its
enumeration of prohibited establishments, motels and inns such as MTDCs Victoria Court considering
that these were not establishments for amusement or entertainment and they were not services or
facilities for entertainment, nor did they use women as tools for entertainment, and neither did they
disturb the community, annoy the inhabitants or adversely affect the social and moral welfare of the
community.[11]
MTDC further advanced that the Ordinance was invalid and unconstitutional for the following
reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4
(iv)[12] of the Local Government Code of 1991 (the Code) grants to the City Council only the power to
regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses, lodging
houses and other similar establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 499[13] which specifically declared portions of the Ermita-Malate area as a commercial
zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of police power
as the compulsory closure of the motel business has no reasonable relation to the legitimate municipal
interests sought to be protected; (4) The Ordinance constitutes an ex post facto law by punishing the
operation of Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDCs constitutional rights in that: (a) it is confiscatory and constitutes an
invasion of plaintiffs property rights; (b) the City Council has no power to find as a fact that a particular
thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and (6)
TheOrdinance constitutes a denial of equal protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses or other
similar establishments, and for prohibiting said business in the Ermita-Malate area but not outside of
this area.[14]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim maintained that the City
Council had the power to prohibit certain forms of entertainment in order to protect the social and
moral welfare of the community as provided for in Section 458 (a) 4 (vii) of the Local Government
Code,[16] which reads, thus:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

....

(4) Regulate activities relative to the use of land, buildings and structures within the city in order to
promote the general welfare and for said purpose shall:

....

(vii) Regulate the establishment, operation, and maintenance of any entertainment or

amusement facilities, including theatrical performances, circuses, billiard pools, public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment
or amusement; regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants, or require
the suspension or suppression of the same; or, prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community.

Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of regulation spoken of in
the above-quoted provision included the power to control, to govern and to restrain places of exhibition
and amusement.[18]
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to
protect the social and moral welfare of the community in conjunction with its police power as found in
Article III, Section 18(kk) of Republic Act No. 409,[19] otherwise known as the Revised Charter of the City
of Manila (Revised Charter of Manila)[20] which reads, thus:

ARTICLE III
THE MUNICIPAL BOARD

...

Section 18. Legislative powers. The Municipal Board shall have the following legislative
powers:

...

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

Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality.[21]
 Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as
the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to
remain a commercial zone.[22] The Ordinance, the petitioners likewise claimed, cannot be assailed as ex
post facto as it was prospective in operation.[23] The Ordinance also did not infringe the equal protection
clause and cannot be denounced as class legislation as there existed substantial and real differences
between the Ermita-Malate area and other places in the City of Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte
temporary restraining order against the enforcement of the Ordinance.[25] And on 16 July 1993, again in
an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC.[26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the
petitioners from implementing the Ordinance. The dispositive portion of said Decisionreads:[27]

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of
Manila null and void, and making permanent the writ of preliminary injunction that had been issued by
this Court against the defendant. No costs.

SO ORDERED.[28]

Petitioners filed with the lower court a Notice of Appeal[29] on 12 December 1994, manifesting that
they are elevating the case to this Court under then Rule 42 on pure questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding
that the questioned Ordinance contravenes P.D. 499[31] which allows operators of all kinds of
commercial establishments, except those specified therein; and (3) It erred in declaring
the Ordinance void and unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the assertions they made
before the lower court. They contend that the assailed Ordinance was enacted in the exercise of the
inherent and plenary power of the State and the general welfare clause exercised by local government
units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458
(a) 4 (vii) of the Code.[34] They allege that the Ordinance is a valid exercise of police power; it does not
contravene P.D. 499; and that it enjoys the presumption of validity.[35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that the Ordinance is ultra
vires and that it is void for being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that it is violative of due process,
confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the
equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Courts deep sentiment and tenderness for the Ermita-
Malate area being its home for several decades. A long-time resident, the Court witnessed the areas
many turn of events. It relished its glory days and endured its days of infamy. Much as the Court harks
back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it believes that
the Ordinance is not the fitting means to that end. The Court is of the opinion, and so holds, that the
lower court did not err in declaring theOrdinance, as it did, ultra vires and therefore null and void.
 The Ordinance is so replete with constitutional infirmities that almost every sentence thereof
violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights
of persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts
at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government unit to
enact and must be passed according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must
not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.[37]
Anent the first criterion, ordinances shall only be valid when they are not contrary to the
Constitution and to the laws.[38] The Ordinance must satisfy two requirements: it must pass muster
under the test of constitutionality and the test of consistency with the prevailing laws. That ordinances
should be constitutional uphold the principle of the supremacy of the Constitution. The requirement
that the enactment must not violate existing law gives stress to the precept that local government units
are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power
from the national legislature. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter.[39]
This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police power, an enactment of
the City Council acting as agent of Congress. Local government units, as agencies of the State, are
endowed with police power in order to effectively accomplish and carry out the declared objects of their
creation.[41] This delegated police power is found in Section 16 of the Code, known as the general
welfare clause, viz:

SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents, maintain peace and
order, and preserve the comfort and convenience of their inhabitants.

Local government units exercise police power through their respective legislative bodies; in this
case, the sangguniang panlungsod or the city council. The Code empowers the legislative bodies to
enact ordinances, approve resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/ municipality provided under the Code. [42] The
inquiry in this Petition is concerned with the validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution

The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable
and for the public good.[43] In the case at bar, the enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:

SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.[44]

SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men.[45]

SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any
person be denied the equal protection of laws.[46]

Sec. 9. Private property shall not be taken for public use without just compensation.[47]

A. The Ordinance infringes

the Due Process Clause

The constitutional safeguard of due process is embodied in the fiat (N)o person shall be deprived of
life, liberty or property without due process of law. . . .[48]
There is no controlling and precise definition of due process. It furnishes though a standard to
which governmental action should conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of
reason, obedience to the dictates of justice,[49] and as such it is a limitation upon the exercise of the
police power.[50]
The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and
property of individuals; to secure the individual from the arbitrary exercise of the powers of the
government, unrestrained by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law.[51]
The guaranty serves as a protection against arbitrary regulation, and private corporations and
partnerships are persons within the scope of the guaranty insofar as their property is concerned.[52]
This clause has been interpreted as imposing two separate limits on government, usually called
procedural due process and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are
concerned with what kind of notice and what form of hearing the government must provide when it
takes a particular action.[53]
Substantive due process, as that phrase connotes, asks whether the government has an adequate
reason for taking away a persons life, liberty, or property. In other words, substantive due process looks
to whether there is a sufficient justification for the governments action.[54] Case law in the United States
(U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny
used.[55] For example, if a law is in an area where only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a legitimate government purpose. But if it is an
area where strict scrutiny is used, such as for protecting fundamental rights, then the government will
meet substantive due process only if it can prove that the law is necessary to achieve a compelling
government purpose.[56]
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically[57] as its exercise is subject to a qualification,
limitation or restriction demanded by the respect and regard due to the prescription of the fundamental
law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the legitimate demands of public
interest or public welfare.[58] Due process requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty and property.[59]

Requisites for the valid exercise

of Police Power are not met

To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that
the interests of the public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.[60] It must be evident that
no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A
reasonable relation must exist between the purposes of the police measure and the means employed
for its accomplishment, for even under the guise of protecting the public interest, personal rights and
those pertaining to private property will not be permitted to be arbitrarily invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights[62] a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of
legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels
and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila[63] had already taken judicial notice of the alarming
increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to
existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and
thus become the ideal haven for prostitutes and thrill-seekers.[64]
The object of the Ordinance was, accordingly, the promotion and protection of the social and moral
values of the community. Granting for the sake of argument that the objectives of theOrdinance are
within the scope of the City Councils police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community. However, the
worthy aim of fostering public morals and the eradication of the communitys social ills can be achieved
through means less restrictive of private rights; it can be attained by reasonable restrictions rather than
by an absolute prohibition. The closing down and transfer of businesses or their conversion into
businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its
purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se protect
and promote the social and moral welfare of the community; it will not in itself eradicate the alluded
social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit,[65] it is baseless and
insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night
clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted
under the accepted definitions of these terms. The enumerated establishments are lawful pursuits
which are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the
illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a
human frailty, may take place in the most innocent of places that it may even take place in the
substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a
church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the
closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for
that matter will not be exempt from the prohibition. Simply because there are no pure places where
there are impure men. Indeed, even the Scripture and the Tradition of Christians churches continually
recall the presence and universality of sin in mans history.[66]
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be
said to be injurious to the health or comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises. While a motel may be used as a venue for
immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of
ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were so and if that
were allowed, then the Ermita-Malate area would not only be purged of its supposed social ills, it would
be extinguished of its soul as well as every human activity, reprehensible or not, in its every nook and
cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man out
of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City
Council instead should regulate human conduct that occurs inside the establishments, but not to the
detriment of liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is commendable, they
unwittingly punish even the proprietors and operators of wholesome, innocent establishments. In the
instant case, there is a clear invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City of Manila so desires
to put an end to prostitution, fornication and other social ills, it can instead impose reasonable
regulations such as daily inspections of the establishments for any violation of the conditions of their
licenses or permits; it may exercise its authority to suspend or revoke their licenses for these
violations;[67] and it may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.

Means employed are

constitutionally infirm

The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in
the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of the Ordinancewithin which to
wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said
businesses to other kinds of business allowable within the area. Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance, the premises of the erring
establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the achievement of its
purposes, the governmental interference itself, infringes on the constitutional guarantees of a persons
fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint
as are necessary for the common welfare.[68] In accordance with this case, the rights of the citizen to be
free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to clarify the meaning of
liberty. It said:

While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right
of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognizedas essential to the orderly
pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the
meaning of liberty must be broad indeed.

In another case, it also confirmed that liberty protected by the due process clause includes personal
decisions relating to marriage, procreation, contraception, family relationships, child rearing, and
education. In explaining the respect the Constitution demands for the autonomy of the person in
making these choices, the U.S. Supreme Court explained:

These matters, involving the most intimate and personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define ones own concept of existence, of meaning, of
universe, and of the mystery of human life. Beliefs about these matters could not define the attributes
of personhood where they formed under compulsion of the State.[71]

Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of
the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to consummate
their bonds in intimate sexual conduct within the motels premisesbe it stressed that their consensual
sexual behavior does not contravene any fundamental state policy as contained in the
Constitution.[72] Adults have a right to choose to forge such relationships with others in the confines of
their own private lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice.[73] Their right to liberty under the due process
clause gives them the full right to engage in their conduct without intervention of the government, as
long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint; it
must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights and the right most valued by civilized
men.[74]
The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc,[75] borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.[76]
There is a great temptation to have an extended discussion on these civil liberties but the Court
chooses to exercise restraint and restrict itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal
conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they
should suffer the consequences of the choice they have made. That, ultimately, is their choice.

Modality employed is
unlawful taking

In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent
of the beneficial use of its property.[77] The Ordinance in Section 1 thereof forbids the running of the
enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to
wind up business operations or to transfer outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use of property that it can not be used for any
reasonable purpose goes beyond regulation and must be recognized as a taking of the property without
just compensation.[78] It is intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property shall not be taken
for public use without just compensation. The provision is the most important protection of property
rights in the Constitution. This is a restriction on the general power of the government to take property.
The constitutional provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government takes away a persons
property to benefit society, then society should pay. The principal purpose of the guarantee is to bar the
Government from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.[79]
There are two different types of taking that can be identified. A possessory taking occurs when the
government confiscates or physically occupies property. A regulatory taking occurs when the
governments regulation leaves no reasonable economically viable use of the property.[80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking also could be found
if government regulation of the use of property went too far. When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to
support the act. While property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was a question of degree and therefore
cannot be disposed of by general propositions. On many other occasions as well, the U.S. Supreme Court
has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each
case. The Court asks whether justice and fairness require that the economic loss caused by public action
must be compensated by the government and thus borne by the public as a whole, or whether the loss
should remain concentrated on those few persons subject to the public action.[83]
What is crucial in judicial consideration of regulatory takings is that government regulation is a
taking if it leaves no reasonable economically viable use of property in a manner that interferes with
reasonable expectations for use.[84] A regulation that permanently denies all economically beneficial or
productive use of land is, from the owners point of view, equivalent to a taking unless principles of
nuisance or property law that existed when the owner acquired the land make the use
prohibitable.[85] When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle, he has
suffered a taking.[86]
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall short of
eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a
complex of factors including the regulations economic effect on the landowner, the extent to which the
regulation interferes with reasonable investment-backed expectations and the character of government
action. These inquiries are informed by the purpose of the takings clause which is to prevent the
government from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.[87]
 A restriction on use of property may also constitute a taking if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.[88]
The Ordinance gives the owners and operators of the prohibited establishments three (3) months
from its approval within which to wind up business operations or to transfer to any place outside of the
Ermita-Malate area or convert said businesses to other kinds of business allowable within the area. The
directive to wind up business operations amounts to a closure of the establishment, a permanent
deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to
accommodate an allowed business, the structure which housed the previous business will be left empty
and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire
establishment idle. Consideration must be given to the substantial amount of money invested to build
the edifices which the owner reasonably expects to be returned within a period of time. It is apparent
that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to
convert into allowed businessesare confiscatory as well. The penalty of permanent closure in cases of
subsequent violations found in Section 4 of the Ordinance is also equivalent to a taking of private
property.
The second option instructs the owners to abandon their property and build another one outside
the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another establishment solely from his coffers. The
proffered solution does not put an end to the problem, it merely relocates it. Not only is this impractical,
it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous.
How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge
without essentially destroying its property? This is a taking of private property without due process of
law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the
government. The burden on the owner to convert or transfer his business, otherwise it will be closed
permanently after a subsequent violation should be borne by the public as this end benefits them as a
whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance,
although a valid exercise of police power, which limits a wholesome property to a use which can not
reasonably be made of it constitutes the taking of such property without just compensation. Private
property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed
without compensation. Such principle finds no support in the principles of justice as we know them. The
police powers of local government units which have always received broad and liberal interpretation
cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It needs
restating that the property taken in the exercise of police power is destroyed because it is noxious or
intended for a noxious purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore wholesome.[89] If it be of public benefit that a
wholesome property remain unused or relegated to a particular purpose, then certainly the public
should bear the cost of reasonable compensation for the condemnation of private property for public
use.[90]
 Further, the Ordinance fails to set up any standard to guide or limit the petitioners actions. It in no
way controls or guides the discretion vested in them. It provides no definition of the establishments
covered by it and it fails to set forth the conditions when the establishments come within its ambit of
prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down
establishments. Ordinances such as this, which make possible abuses in its execution, depending upon
no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its impartial enforcement could be secured.[91]
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers
in carrying out its provisions.[92]
Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the U.S. Supreme Court
struck down an ordinance that had made it illegal for three or more persons to assemble on any
sidewalk and there conduct themselves in a manner annoying to persons passing by. The ordinance was
nullified as it imposed no standard at all because one may never know in advance what annoys some
people but does not annoy others.
Similarly, the Ordinance does not specify the standards to ascertain which establishments tend to
disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the
community. The cited case supports the nullification of the Ordinance for lack of comprehensible
standards to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not prevented
from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of
imagination on the part of the City Council and which amounts to an interference into personal and
private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold
the constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry
from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive ordinance regulating
sexually oriented businesses, which are defined to include adult arcades, bookstores, video stores,
cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter
centers. Among other things, the ordinance required that such businesses be licensed. A group of motel
owners were among the three groups of businesses that filed separate suits challenging the ordinance.
The motel owners asserted that the city violated the due process clause by failing to produce adequate
support for its supposition that renting room for fewer than ten (10) hours resulted in increased crime
and other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental of
motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first
contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined
with a study which the city considered, was adequate to support the citys determination that motels
permitting room rentals for fewer than ten (10 ) hours should be included within the licensing scheme.
As regards the second point, the Court held that limiting motel room rentals to ten (10) hours will have
no discernible effect on personal bonds as those bonds that are formed from the use of a motel room
for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions
of the nation by cultivating and transmitting shared ideals and beliefs.
 The ordinance challenged in the above-cited case merely regulated the targeted businesses. It
imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,[96] it
needs pointing out, is also different from this case in that what was involved therein was a measure
which regulated the mode in which motels may conduct business in order to put an end to practices
which could encourage vice and immorality. Necessarily, there was no valid objection on due process or
equal protection grounds as the ordinance did not prohibit motels. The Ordinance in this case however
is not a regulatory measure but is an exercise of an assumed power to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of
property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it
cannot, even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be
treated differently, so as to give undue favor to some and unjustly discriminate against others.[98] The
guarantee means that no person or class of persons shall be denied the same protection of laws which is
enjoyed by other persons or other classes in like circumstances.[99] The equal protection of the laws is a
pledge of the protection of equal laws.[100] It limits governmental discrimination. The equal protection
clause extends to artificial persons but only insofar as their property is concerned.[101]
The Court has explained the scope of the equal protection clause in this wise:

What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: The ideal
situation is for the laws benefits to be available to all, that none be placed outside the sphere of its
coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene
and impartial uniformity, which is of the very essence of the idea of law. There is recognition, however,
in the opinion that what in fact exists cannot approximate the ideal. Nor is the law susceptible to the
reproach that it does not take into account the realities of the situation. The constitutional guarantee
then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the
general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such circumstances invoke the equal
protection clause only if they can show that the governmental act assailed, far from being inspired by
the attainment of the common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. Classification is thus not ruled out, it being sufficient to
quote from the Tuason decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be given to every person
under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast
on some in the group equally binding on the rest.[102]

Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating the equal
protection clause.[103] The classification must, as an indispensable requisite, not be arbitrary. To be valid,
it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts view, there are no substantial distinctions between motels, inns, pension houses,
hotels, lodging houses or other similar establishments. By definition, all are commercial establishments
providing lodging and usually meals and other services for the public. No reason exists for prohibiting
motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights
conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a
just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the
Ermita-Malate area but not outside of this area. A noxious establishment does not become any less
noxious if located outside the area.
The standard where women are used as tools for entertainment is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive to women.
Both men and women have an equal propensity to engage in prostitution. It is not any less grave a sin
when men engage in it. And why would the assumption that there is an ongoing immoral activity apply
only when women are employed and be inapposite when men are in harness? This discrimination based
on gender violates equal protection as it is not substantially related to important government
objectives.[105] Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency
with prevailing laws.

C. The Ordinance is repugnant

to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local government
units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), which
provides that:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

...
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to
promote the general welfare and for said purpose shall:

...

(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides
and transports . . . .

While its power to regulate the establishment, operation and maintenance of any entertainment or
amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under
Section 458 (a) 4 (vii) of the Code, which reads as follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

...

(4) Regulate activities relative to the use of land, buildings and structures within the city in order to
promote the general welfare and for said purpose shall:

...

(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance
halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such
other events or activities for amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit
certain forms of amusement or entertainment in order to protect the social and moral welfare of the
community.

Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council to legislate relative
thereto is to regulate them to promote the general welfare. The Code still withholds from cities the
power to suppress and prohibit altogether the establishment, operation and maintenance of such
establishments. It is well to recall the rulings of the Court in Kwong Sing v. City of Manila[106] that:

The word regulate, as used in subsection (l), section 2444 of the Administrative Code, means and
includes the power to control, to govern, and to restrain; but regulate should not be construed as
synonymous with suppress or prohibit. Consequently, under the power to regulate laundries, the
municipal authorities could make proper police regulations as to the mode in which the employment or
business shall be exercised.[107]
 And in People v. Esguerra,[108] wherein the Court nullified an ordinance of the Municipality of
Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality
is empowered only to regulate the same and not prohibit. The Court therein declared that:

(A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is impliedly withheld.[109]

These doctrines still hold contrary to petitioners assertion[110] that they were modified by the Code
vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public dance
halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in the
first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend such other events or
activities for amusement or entertainment, particularly those which tend to disturb the community or
annoy the inhabitants and to prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community are stated in the second and third clauses, respectively
of the same Section. The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the
Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which indicates that the
clauses in which these powers are set forth are independent of each other albeit closely related to
justify being put together in a single enumeration or paragraph.[111] These powers, therefore, should not
be confused, commingled or consolidated as to create a conglomerated and unified power of regulation,
suppression and prohibition.[112]
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement (Section
458 (a) 4 (vii)). This enumeration therefore cannot be included as among other events or activities for
amusement or entertainment, particularly those which tend to disturb the community or annoy the
inhabitants or certain forms of amusement or entertainment which the City Council may suspend,
suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those which
are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the
nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out
of the terms used in granting said powers must be construed against the City Council.[113] Moreover, it is
a general rule in statutory construction that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others.Expressio unius est exclusio alterium. This maxim is
based upon the rules of logic and the natural workings of human mind. It is particularly applicable in the
construction of such statutes as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction.[114]
The argument that the City Council is empowered to enact the Ordinance by virtue of the general
welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without
merit. On the first point, the ruling of the Court in People v. Esguerra,[115] is instructive. It held that:

The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the
Revised Administrative Code, refers to matters not covered by the other provisions of the same Code,
and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold
that, under the general power granted by section 2238, a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g), would be to make the latter superfluous
and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving away
and dispensing of intoxicating liquors.

On the second point, it suffices to say that the Code being a later expression of the legislative will
must necessarily prevail and override the earlier law, the Revised Charter of Manila.Legis posteriores
priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between
two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later
prevails, since it is the latest expression of legislative will.[116] If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter, which cannot be removed by any fair
and reasonable method of interpretation, it is the latest expression of the legislative will which must
prevail and override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted law contains provisions
contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been
divided into two general classes: those which occur where an act is so inconsistent or irreconcilable with
an existing prior act that only one of the two can remain in force and those which occur when an act
covers the whole subject of an earlier act and is intended to be a substitute therefor. The validity of such
a repeal is sustained on the ground that the latest expression of the legislative will should prevail.[118]
In addition, Section 534(f) of the Code states that 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.
Thus, submitting to petitioners interpretation that the Revised Charter of Manila empowers the City
Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the
Code as it is at variance with the latters provisions granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. It can not be said that motels are injurious to
the rights of property, health or comfort of the community. It is a legitimate business. If it be a
nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per
se a nuisance warranting its summary abatement without judicial intervention.[119]
Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

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

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

...

If it were the intention of Congress to confer upon the City Council the power to prohibit the
establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms
by adding them to the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and expand
the City Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort
to overreach its prohibitory powers. It is evident that these establishments may only be regulated in
their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments themselves. That
these establishments are recognized legitimate enterprises can be gleaned from another Section of the
Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or
operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the contractors defined in paragraph (h) thereof. The same Section also defined amusement as a
pleasurable diversion and entertainment, synonymous to relaxation, avocation, pastime or fun; and
amusement places to include theaters, cinemas, concert halls, circuses and other places of amusement
where one seeks admission to entertain oneself by seeing or viewing the show or performances. Thus, it
can be inferred that the Code considers these establishments as legitimate enterprises and activities. It
is well to recall the maxim reddendo singula singulis which means that words in different parts of a
statute must be referred to their appropriate connection, giving to each in its place, its proper force and
effect, and, if possible, rendering none of them useless or superfluous, even if strict grammatical
construction demands otherwise. Likewise, where words under consideration appear in different
sections or are widely dispersed throughout an act the same principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D.
499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area
into a commercial area. The decree allowed the establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline
service station, light industry with any machinery or funeral establishment. The rule is that for an
ordinance to be valid and to have force and effect, it must not only be within the powers of the council
to enact but the same must not be in conflict with or repugnant to the general law.[121] As succinctly
illustrated in Solicitor General v. Metropolitan Manila Authority:[122]

The requirement that the enactment must not violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the
national legislature (except only that the power to create their own sources of revenue and to levy taxes
is conferred by the Constitution itself). They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local government units cannot contravene but
must obey at all times the will of their principal. In the case before us, the enactment in question, which
are merely local in origin cannot prevail against the decree, which has the force and effect of a
statute.[123]
 Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the
rule, it has already been held that although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity
or unreasonableness appears on the face of the ordinance itself or is established by proper evidence.
The exercise of police power by the local government is valid unless it contravenes the fundamental law
of the land, or an act of the legislature, or unless it is against public policy or is unreasonable,
oppressive, partial, discriminating or in derogation of a common right.[124]

Conclusion

All considered, the Ordinance invades fundamental personal and property rights and impairs
personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory
and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to
enact the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
legislation of such character deserves the full endorsement of the judiciary we reiterate our support for
it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the City Council, cannot prohibit the
operation of the enumerated establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due process and equal protection of
laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring
the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.

White Light Corp v City of Manila

G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

DECISION
Tinga, J.:

With another city ordinance of Manila also principally involving the tourist district as subject, the
Court is confronted anew with the incessant clash between government power and individual liberty
in tandem with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the
operation of motels and inns, among other establishments, within the Ermita-Malate area. The
petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments
from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated
stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty,
due process and equal protection of law. The same parameters apply to the present petition.

This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of
the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila
City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of Manila" (the Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The
Ordinance is reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect
the best interest, health and welfare, and the morality of its constituents in general and the youth in
particular.

SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room
rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a
day or any other term that may be concocted by owners or managers of said establishments but
would mean the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance
shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable: Provided, further, That in case of
subsequent conviction for the same offense, the business license of the guilty party shall
automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to
this measure or any portion hereof are hereby deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint
for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order
( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared invalid
and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate,
Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and
Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit
attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business
interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components
of the Anito Group of Companies which owns and operates several hotels and motels in Metro
Manila.9

On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the
Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On
the same date, MTDC moved to withdraw as plaintiff.11

On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City
filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police
power.14

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from
the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered
a decision declaring the Ordinance null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby
declared null and void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and
jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment, as well as the right to
operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance
sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the
RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the
legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected
through an inter-province ban on the transport of carabaos and carabeef.

The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was
docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated
the petition as a petition forcertiorari and referred the petition to the Court of Appeals.21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power
pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other
local government units, the power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses and other similar establishments, including
tourist guides and transports.22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section
18(kk) of the Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort,
convenience and general welfare of the city and its inhabitants, and such others as be necessary to
carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties
for the violation of ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment for a single offense.23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy
and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable
and oppressive interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.24First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied
since it aims to curb immoral activities. There is a lawful method since the establishments are still
allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor
of Manila, liberty is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners’ standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights.

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to
and harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the
Constitution.27The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.31

For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote
that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided
three important criteria are satisfied: the litigant must have suffered an ‘injury-in-fact,’ thus giving him
or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a
close relation to the third party; and there must exist some hindrance to the third party's ability to
protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are
likewise injured by the Ordinance. They rely on the patronage of their customers for their continued
viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in our nation such as the American Civil
Liberties Union in the United States may also be construed as a hindrance for customers to bring
suit.34

American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme
Court held that physicians had standing to challenge a reproductive health statute that would
penalize them as accessories as well as to plead the constitutional protections available to their
patients. The Court held that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who have this kind of confidential relation to
them."36

An even more analogous example may be found in Craig v. Boren,37 wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection
claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under
the age of 21 and to females under the age of 18. The United States High Court explained that the
vendors had standing "by acting as advocates of the rights of third parties who seek access to their
market or function."38
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government actionare in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners
claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can
see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.

III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc.,
v. Hon. City Mayor of Manila.40Ermita-Malate concerned the City ordinance requiring patrons to fill up
a prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance
was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient lodging
establishments. This could be described as the middle case, wherein there is no wholesale ban on
motels and hotels but the services offered by these establishments have been severely restricted. At
its core, this is another case about the extent to which the State can intrude into and regulate the
lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.41

The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions
and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police
power as conferred on local government units by the Local Government Code through such
implements as the general welfare clause.

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient
and flexible response as the conditions warrant.42 Police power is based upon the concept of
necessity of the State and its corresponding right to protect itself and its people.43 Police power has
been used as justification for numerous and varied actions by the State. These range from the
regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of
police power is best demonstrated by the fact that in its hundred or so years of presence in our
nation’s legal system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement. Those means must align with
the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of
Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches
of government as they exercise their political functions. But when we are compelled to nullify
executive or legislative actions, yet another form of caution emerges. If the Court were animated by
the same passing fancies or turbulent emotions that motivate many political decisions, judicial
integrity is compromised by any perception that the judiciary is merely the third political branch of
government. We derive our respect and good standing in the annals of history by acting as judicious
and neutral arbiters of the rule of law, and there is no surer way to that end than through the
development of rigorous and sophisticated legal standards through which the courts analyze the
most fundamental and far-reaching constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of
the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property
of individuals. The due process guaranty serves as a protection against arbitrary regulation or
seizure. Even corporations and partnerships are protected by the guaranty insofar as their property
is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property.49 Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the
form of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government
has sufficient justification for depriving a person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due process has not been
predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.
C.

The general test of the validity of an ordinance on substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a "discrete and insular" minority
or infringement of a "fundamental right."52 Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v.
Reed.56 While the test may have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest.58 Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered.59 Applying strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as expansion from its
earlier applications to equal protection.61 The United States Supreme Court has expanded the scope
of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate
travel.64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only
on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard – the rational basis test. Yet as earlier
stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their
patrons – those persons who would be deprived of availing short time access or wash-up rates to
the lodging establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial since
they seem shorn of political consequence. Concededly, these are not the sort of cherished rights
that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does
not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms – which the people
reflexively exercise any day without the impairing awareness of their constitutional consequence –
that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated
as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what
may or what may not be done; but rather an atmosphere of freedom where the people do not feel
labored under a Big Brother presence as they interact with each other, their society and nature, in a
manner innately understood by them as inherent, without doing harm or injury to others.

D.
The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right
of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare."[65] In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of
"liberty." It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth
and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments "have gained notoriety
as venue of ‘prostitution, adultery and fornications’ in Manila since they ‘provide the necessary
atmosphere for clandestine entry, presence and exit and thus became the ‘ideal haven for
prostitutes and thrill-seekers.’"68 Whether or not this depiction of a mise-en-scene of vice is accurate,
it cannot be denied that legitimate sexual behavior among willing married or consenting single adults
which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our
holding therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations
are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There
are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in
their homes. In transit passengers who wish to wash up and rest between trips have a legitimate
purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with purposes other than having sex or using
illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the
means must be reasonably necessary for the accomplishment of the purpose and not unduly
oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment
of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is affected.73 However, this is not in any way meant to
take it away from the vastness of State police power whose exercise enjoys the presumption of
validity.74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates,
this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between
places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions.
Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain
reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and subject them without exception to the unjustified
prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict our capital city – the Pearl of the Orient – as a
modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams
of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem
confronted by the modern metropolis wherever in the world. The solution to such perceived decay is
not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police work would be more effective in
easing the situation. So would the strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit
activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele
by charging their customers a portion of the rent for motel rooms and even apartments.

IV.
We reiterate that individual rights may be adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned
the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is sworn
to protect.77 The notion that the promotion of public morality is a function of the State is as old as
Aristotle.78 The advancement of moral relativism as a school of philosophy does not de-legitimize the
role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It
is conceivable that a society with relatively little shared morality among its citizens could be
functional so long as the pursuit of sharply variant moral perspectives yields an adequate
accommodation of different interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on age-
old moral traditions, and as long as there are widely accepted distinctions between right and wrong,
they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-
wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to
the fullest. Our democracy is distinguished from non-free societies not with any more extensive
elaboration on our part of what is moral and immoral, but from our recognition that the individual
liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-
minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of
the rule of law, by reason of their expression of consent to do so when they take the oath of office,
and because they are entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains an indispensable complement to governance,

that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And
while the tension may often be left to the courts to relieve, it is possible for the government to avoid
the constitutional conflict by employing more judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and
the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774
is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.

Rimando v Naguilian Emission Testing Center

G.R. No. 198860 July 23, 2012

ABRAHAM RIMANDO, Petitioner,
vs.
NAGUILIAN EMISSION TESTING CENTER, INC., represented by its President, ROSEMARIE
LLARENAS and HON. COURT OF APPEALS, Respondents.

RESOLUTION

REYES, J.:

Before us is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to annul
and set aside Decision2 dated March 30, 2011 of the Court of Appeals (CA) in CA-G.R. SP NO.
112152.

The Facts

The present controversy stemmed from a petition for mandamus and damages filed before Branch
67 of the Regional Trial Court (RTC) of Bauang, La Union, by Naguilian Emission Testing Center,
Inc., represented by its President, Rosemarie Llarenas (respondent) against Abraham P. Rimando
(petitioner), who, at the time material to the case, was the sitting mayor of the Municipality of
Naguilian, La Union.

The petition prayed for the issuance of a writ of mandamus to compel the petitioner to issue a
business permit in favor of the respondent.

In support of its plea, the respondent claimed that its business is being conducted on a parcel of land
which formerly belonged to the national government but later on certified by the Department of
Environment and Natural Resources (DENR) as an alienable and disposable land of the public
domain. The respondent had operated its business of emission testing on the land from 2005 to
2007. On January 18, 2008, the respondent filed an application for the renewal of its business permit
and paid the corresponding fees therefor.

The petitioner, however, refused to issue a business permit unless and until the respondent
executes a contract of lease with the Municipality of Naguilian. The respondent was amenable to
signing such contract subject to some proposed revisions, which, however, were not acceptable to
the petitioner. The parties did not reach a common ground hence, the petition for mandamus.

The Ruling of the RTC

On May 26, 2009, the RTC denied the petition3 for lack of merit based on the ratiocinations that: (a)
the Municipality of Naguilian is the declared owner of the subject parcel of land by virtue of Tax
Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of
Naguilian, the municipality has the right to require the petitioner to sign a contract of lease because
its business operation is being conducted on a real property owned by the municipality; and (c) a
mayor’s duty to issue business permits is discretionary in nature which may not be enforced by a
mandamus writ. The decretal portion of the decision reads:

WHEREFORE, premises considered, the petition is DENIED for lack of merit.

SO ORDERED.4

The Ruling of the CA

Unwaivering, the respondent appealed to the CA. In its Decision5 dated March 30, 2011, the CA held
that the appeal was dismissible on the ground of mootness considering that the period for which the
business period was being sought had already lapsed. As such, any ruling on the matter would bring
no practical relief. Nonetheless, the CA proceeded to resolve the issues involved in the appeal for
academic purposes.

The CA disagreed with the RTC and found that the factual milieu of the case justifies the issuance of
a writ of mandamus. The CA reasoned that the tax declaration in the name of the municipality was
insufficient basis to require the execution of a contract of lease as a condition sine qua non for the
renewal of a business permit. The CA further observed that Sangguniang Bayan Resolution No.
2007-81, upon which the municipality anchored its imposition of rental fees, was void because it
failed to comply with the requirements of the Local Government Code and its Implementing Rules
and Regulations.

The CA held that the petitioner may not be held liable for damages since his action or inaction, for
that matter, was done in the performance of official duties that are legally protected by the
presumption of good faith. The CA likewise stressed that the civil action filed against the petitioner
had already become moot and academic upon the expiration of his term as the mayor of Naguilian,
La Union.

Despite its incessant declarations on the mootness of the case, the CA disposed of the appeal in this
wise:

WHEREFORE, the Decision dated 26 May 2009 of the Regional Trial Court, First Judicial Region,
Bauang, La Union, Branch 67, in Special Civil Action Case No. 72-BG, is hereby REVERSED and
SET ASIDE.

SO ORDERED.6

The petitioner moved for reconsideration7 questioning the pronouncement of the CA that
Sangguniang Bayan Resolution No. 2007-81 was void and arguing that a petition for mandamus is
not the proper vehicle to determine the issue on the ownership of the subject land. The motion was
denied in the CA Resolution8 dated September 30, 2011.

The petitioner is now before this Court reiterating the arguments raised in his motion for
reconsideration.

Our Ruling

We agree with the CA that the petition for mandamus has already become moot and academic
owing to the expiration of the period intended to be covered by the business permit.

An issue or a case becomes moot and academic when it ceases to present a justiciable controversy
so that a determination thereof would be without practical use and value9 or in the nature of things,
cannot be enforced.10In such cases, there is no actual substantial relief to which the applicant would
be entitled to and which would be negated by the dismissal of the petition.11 As a rule, courts decline
jurisdiction over such case, or dismiss it on ground of mootness.12

The objective of the petition for mandamus to compel the petitioner to grant a business permit in
favor of respondent corporation for the period 2008 to 2009 has already been superseded by the
passage of time and the expiration of the petitioner’s term as mayor. Verily then, the issue as to
whether or not the petitioner, in his capacity as mayor, may be compelled by a writ of mandamus to
release the respondent’s business permit ceased to present a justiciable controversy such that any
ruling thereon would serve no practical value. Should the writ be issued, the petitioner can no longer
abide thereby; also, the effectivity date of the business permit no longer subsists.

While the CA is not precluded from proceeding to resolve the otherwise moot appeal of the
respondent, we find that the decretal portion of its decision was erroneously couched.

The CA’s conclusions on the issue of ownership over the subject land and the invalidity of
Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by convincing
evidence, can no longer be practically utilized in favor of the petitioner. Thus, the overriding and
decisive factor in the final disposition of the appeal was its mootness and the CA should have
dismissed the same along with the petition for mandamus that spawned it.

More importantly, a mayor cannot be compelled by mandamus to issue a business permit since the
exercise of the same is a delegated police power hence, discretionary in nature. This was the
pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor13 where a determination was
made on the nature of the power of a mayor to grant business permits under the Local Government
Code,14 viz:

Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local
Government Code of 1991, which provides, thus:

SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.

(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the
municipal mayor shall:

xxxx

3) Initiate and maximize the generation of resources and revenues, and apply the same to
the implementation of development plans, program objectives and priorities as provided for
under Section 18 of this Code, particularly those resources and revenues programmed for
agro-industrial development and country-wide growth and progress, and relative thereto,
shall:

xxxx

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued, pursuant to law or
ordinance.

As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to
Section 16 of the Local Government Code of 1991, which declares:

SEC. 16. General Welfare. – Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

Section 16, known as the general welfare clause, encapsulates the delegated police power to local
governments. Local government units exercise police power through their respective legislative
1âwphi1

bodies. Evidently, the Local Government Code of 1991 is unequivocal that the municipal mayor has
the power to issue licenses and permits and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. x x x

xxxx

Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent
mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power
of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the
question of whether the power is validly exercised, the matter is within the province of a writ of
certiorari, but certainly, not of mandamus.15 (Citations omitted)

Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent is
incompetent to compel the exercise of a mayor’s discretionary duty to issue business permits.

WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of Appeals in
CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009 of the Regional
Trial Court of Bauang, La Union is REINSTATED.

SO ORDERED.

Fernando v St Scholastica’s College

G.R. No. 161107 March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City,
JOSEPHINE C. EVANGELIST A, in her capacity as Chief, Permit Division, Office of the City
Engineer, and ALFONSO ESPIRITU, in his capacity as City Engineer of Marikina
City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-MARIKINA,
INC., Respondents.

DECISION

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court, which
seeks to set aside the December 1, 2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
75691.
The Facts

Respondents St. Scholastica’s College (SSC) and St. Scholastica’s Academy-Marikina, Inc. (SSA-
Marikina) are educational institutions organized under the laws of the Republic of the Philippines,
with principal offices and business addresses at Leon Guinto Street, Malate, Manila, and at West
Drive, Marikina Heights, Marikina City, respectively.2

Respondent SSC is the owner of four (4) parcels of land measuring a total of 56,306.80 square
meters, located in Marikina Heights and covered by Transfer Certificate Title (TCT) No. 91537.
Located within the property are SSA-Marikina, the residence of the sisters of the Benedictine Order,
the formation house of the novices, and the retirement house for the elderly sisters. The property is
enclosed by a tall concrete perimeter fence built some thirty (30) years ago. Abutting the fence along
the West Drive are buildings, facilities, and other improvements.3

The petitioners are the officials of the City Government of Marikina. On September 30, 1994, the
Sangguniang Panlungsod of Marikina City enacted Ordinance No. 192,4 entitled "Regulating the
Construction of Fences and Walls in the Municipality of Marikina." In 1995 and 1998, Ordinance Nos.
2175 and 2006 were enacted to amend Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:

ORDINANCE No. 192

Series of 1994

ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN THE

MUNICIPALITY OF MARIKINA

WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the Local
Government Code of 1991 empowers the Sangguniang Bayan as the local legislative body of the
municipality to "x x x Prescribe reasonable limits and restraints on the use of property within the
jurisdiction of the municipality, x x x";

WHEREAS the effort of the municipality to accelerate its economic and physical development,
coupled with urbanization and modernization, makes imperative the adoption of an ordinance which
shall embody up-to-date and modern technical design in the construction of fences of residential,
commercial and industrial buildings;

WHEREAS, Presidential Decree No. 1096, otherwise known as the National Building Code of the
Philippines, does not adequately provide technical guidelines for the construction of fences, in terms
of design, construction, and criteria;

WHEREAS, the adoption of such technical standards shall provide more efficient and effective
enforcement of laws on public safety and security;

WHEREAS, it has occurred in not just a few occasions that high fences or walls did not actually
discourage but, in fact, even protected burglars, robbers, and other lawless elements from the view
of outsiders once they have gained ingress into these walls, hence, fences not necessarily providing
security, but becomes itself a "security problem";

WHEREAS, to discourage, suppress or prevent the concealment of prohibited or unlawful acts

earlier enumerated, and as guardian of the people of Marikina, the municipal government seeks to
enact and implement rules and ordinances to protect and promote the health, safety and morals of
its constituents;

WHEREAS, consistent too, with the "Clean and Green Program" of the government, lowering of
fences and walls shall encourage people to plant more trees and ornamental plants in their yards,
and when visible, such trees and ornamental plants are expected to create an aura of a clean, green
and beautiful environment for Marikeños;

WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks to "beautify" the
façade of their residences but, however, become hazards and obstructions to pedestrians;

WHEREAS, high and solid walls as fences are considered "un-neighborly" preventing community
members to easily communicate and socialize and deemed to create "boxed-in" mentality among the
populace;

WHEREAS, to gather as wide-range of opinions and comments on this proposal, and as a

requirement of the Local Government Code of 1991 (R.A. 7160), the Sangguniang Bayan of
Marikina invited presidents or officers of homeowners associations, and commercial and industrial
establishments in Marikina to two public hearings held on July 28, 1994 and August 25, 1994;

WHEREAS, the rationale and mechanics of the proposed ordinance were fully presented to the
attendees and no vehement objection was presented to the municipal government;

NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN OF MARIKINA IN

SESSION DULY ASSEMBLED:

Section 1. Coverage: This Ordinance regulates the construction of all fences, walls and gates on lots
classified or used for residential, commercial, industrial, or special purposes.

Section 2. Definition of Terms:

a. Front Yard – refers to the area of the lot fronting a street, alley or public thoroughfare.

b. Back Yard – the part of the lot at the rear of the structure constructed therein.

c. Open fence – type of fence which allows a view of "thru-see" of the inner yard and the
improvements therein. (Examples: wrought iron, wooden lattice, cyclone wire)

d. Front gate – refers to the gate which serves as a passage of persons or vehicles fronting a
street, alley, or public thoroughfare.

Section 3. The standard height of fences or walls allowed under this ordinance are as follows:

(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be of an open fence type, at least eighty percent (80%) see-
thru; and

(2) Fences on the side and back yard – shall be in accordance with the provisions of P.D.
1096 otherwise known as the National Building Code.

Section 4. No fence of any kind shall be allowed in areas specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five (5) meter parking area allowance
located between the front monument line and the building line of commercial and industrial
establishments and educational and religious institutions.7

Section 6. Exemption.

(1) The Ordinance does not cover perimeter walls of residential subdivisions.

(2) When public safety or public welfare requires, the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher than as prescribed herein and shall issue a
special permit or exemption.

Section 7. Transitory Provision. Real property owners whose existing fences and walls do not
conform to the specifications herein are allowed adequate period of time from the passage of this
Ordinance within which to conform, as follows:

(1) Residential houses – eight (8) years

(2) Commercial establishments – five (5) years

(3) Industrial establishments – three (3) years

(4) Educational institutions – five (5) years8 (public and privately owned)

Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance shall be
demolished by the municipal government at the expense of the owner of the lot or structure.

Section 9. The Municipal Engineering Office is tasked to strictly implement this ordinance, including
the issuance of the necessary implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace period herein provided.

Section 10. Repealing Clause. All existing Ordinances and Resolutions, Rules and Regulations
inconsistent with the foregoing provisions are hereby repealed, amended or modified.

Section 11. Separability Clause. If for any reason or reasons, local executive orders, rules and
regulations or parts thereof in conflict with this Ordinance are hereby repealed and/or modified
accordingly.

Section 12. Effectivity. This ordinance takes effect after publication.

APPROVED: September 30, 1994

(Emphases supplied)

On April 2, 2000, the City Government of Marikina sent a letter to the respondents ordering them to
demolish and replace the fence of their Marikina property to make it 80% see-thru, and, at the same
time, to move it back about six (6) meters to provide parking space for vehicles to park.9 On April 26,
2000, the respondents requested for an extension of time to comply with the directive.10 In response,
the petitioners, through then City Mayor Bayani F. Fernando, insisted on the enforcement of the
subject ordinance.
Not in conformity, the respondents filed a petition for prohibition with an application for a writ of
preliminary injunction and temporary restraining order before the Regional Trial Court, Marikina,
Branch 273 (RTC), docketed as SCA Case No. 2000-381-MK.11

The respondents argued that the petitioners were acting in excess of jurisdiction in enforcing
Ordinance No. 192, asserting that such contravenes Section 1, Article III of the 1987 Constitution.
That demolishing their fence and constructing it six (6) meters back would result in the loss of at
least 1,808.34 square meters, worth aboutP9,041,700.00, along West Drive, and at least 1,954.02
square meters, worth roughly P9,770,100.00, along East Drive. It would also result in the destruction
of the garbage house, covered walk, electric house, storage house, comfort rooms, guards’ room,
guards’ post, waiting area for visitors, waiting area for students, Blessed Virgin Shrine, P.E. area,
and the multi-purpose hall, resulting in the permanent loss of their beneficial use. The respondents,
thus, asserted that the implementation of the ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the petitioners could only appropriate
a portion of their property through eminent domain. They also pointed out that the goal of the
provisions to deter lawless elements and criminality did not exist as the solid concrete walls of the
school had served as sufficient protection for many years.12

The petitioners, on the other hand, countered that the ordinance was a valid exercise of police
power, by virtue of which, they could restrain property rights for the protection of public safety,
health, morals, or the promotion of public convenience and general prosperity.13

On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the petitioners from
implementing the demolition of the fence at SSC’s Marikina property.14

Ruling of the RTC

On the merits, the RTC rendered a Decision,15 dated October 2, 2002, granting the petition and
ordering the issuance of a writ of prohibition commanding the petitioners to permanently desist from
enforcing or implementing Ordinance No. 192 on the respondents’ property.

The RTC agreed with the respondents that the order of the petitioners to demolish the fence at the
SSC property in Marikina and to move it back six (6) meters would amount to an appropriation of
property which could only be done through the exercise of eminent domain. It held that the
petitioners could not take the respondents’ property under the guise of police power to evade the
payment of just compensation.

It did not give weight to the petitioners’ contention that the parking space was for the benefit of the
students and patrons of SSA-Marikina, considering that the respondents were already providing for
sufficient parking in compliance with the standards under Rule XIX of the National Building Code.

It further found that the 80% see-thru fence requirement could run counter to the respondents’ right
to privacy, considering that the property also served as a residence of the Benedictine sisters, who
were entitled to some sense of privacy in their affairs. It also found that the respondents were able to
prove that the danger to security had no basis in their case. Moreover, it held that the purpose of
beautification could not be used to justify the exercise of police power.

It also observed that Section 7 of Ordinance No. 192, as amended, provided for retroactive
application. It held, however, that such retroactive effect should not impair the respondents’ vested
substantive rights over the perimeter walls, the six-meter strips of land along the walls, and the
building, structures, facilities, and improvements, which would be destroyed by the demolition of the
walls and the seizure of the strips of land.
The RTC also found untenable the petitioners’ argument that Ordinance No. 192 was a remedial or
curative statute intended to correct the defects of buildings and structures, which were brought about
by the absence or insufficiency of laws. It ruled that the assailed ordinance was neither remedial nor
curative in nature, considering that at the time the respondents’ perimeter wall was built, the same
was valid and legal, and the ordinance did not refer to any previous legislation that it sought to
correct.

The RTC noted that the petitioners could still take action to expropriate the subject property through
eminent domain.

The RTC, thus, disposed:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing or implementing Ordinance No. 192, Series of
1994, as amended, on petitioners’ property in question located at Marikina Heights, Marikina, Metro
Manila.

No pronouncement as to costs.

SO ORDERED.16

Ruling of the CA

In its December 1, 2003 Decision, the CA dismissed the petitioners’ appeal and affirmed the RTC
decision.

The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify the exercise of
police power, as it did not only seek to regulate, but also involved the taking of the respondents’
property without due process of law. The respondents were bound to lose an unquantifiable sense of
security, the beneficial use of their structures, and a total of 3,762.36 square meters of property. It,
thus, ruled that the assailed ordinance could not be upheld as valid as it clearly invaded the personal
and property rights of the respondents and "[f]or being unreasonable, and undue restraint of trade."17

It noted that although the petitioners complied with procedural due process in enacting Ordinance
No. 192, they failed to comply with substantive due process. Hence, the failure of the respondents to
attend the public hearings in order to raise objections did not amount to a waiver of their right to
question the validity of the ordinance.

The CA also shot down the argument that the five-meter setback provision for parking was a legal
easement, the use and ownership of which would remain with, and inure to, the benefit of the
respondents for whom the easement was primarily intended. It found that the real intent of the
setback provision was to make the parking space free for use by the public, considering that such
would cease to be for the exclusive use of the school and its students as it would be situated outside
school premises and beyond the school administration’s control.

In affirming the RTC ruling that the ordinance was not a curative statute, the CA found that the
petitioner failed to point out any irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction in the Code should be properly
undertaken by the Congress and not by the City Council of Marikina through an ordinance.

The CA, thus, disposed:

WHEREFORE, all foregoing premises considered, the instant appeal is DENIED. The October 2,
1âwphi1

2002 Decision and the January 13, 2003 Order of the Regional Trial Court (RTC) of Marikina City,
Branch 273, granting petitioners-appellees’ petition for Prohibition in SCA Case No. 2000-381-MK
are hereby AFFIRMED.

SO ORDERED.18

Aggrieved by the decision of the CA, the petitioners are now before this Court presenting the
following

ASSIGNMENT OF ERRORS

1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DECLARING

THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS NOT A VALID EXERCISE OF
POLICE POWER;

2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING

THAT THE AFOREMENTIONED ORDINANCE IS AN EXERCISE OF THE CITY OF THE
POWER OF EMINENT DOMAIN;

3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DECLARING

THAT THE CITY VIOLATED THE DUE PROCESS CLAUSE IN IMPLEMENTING
ORDINANCE NO. 192, SERIES OF 1994; AND

4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING

THAT THE ABOVE-MENTIONED ORDINANCE CANNOT BE GIVEN RETROACTIVE
APPLICATION.19

In this case, the petitioners admit that Section 5 of the assailed ordinance, pertaining to the five-
meter setback requirement is, as held by the lower courts, invalid.20 Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning Ordinance No. 303, series of 2000.
They also contend that Section 3, relating to the 80% see-thru fence requirement, must be complied
with, as it remains to be valid.

Ruling of the Court

The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance No. 192 are valid
exercises of police power by the City Government of Marikina.

"Police power is the plenary power vested in the legislature to make statutes and ordinances to
promote the health, morals, peace, education, good order or safety and general welfare of the
people."21 The State, through the legislature, has delegated the exercise of police power to local
government units, as agencies of the State. This delegation of police power is embodied in Section
1622 of the Local Government Code of 1991 (R.A. No. 7160), known as the General Welfare
Clause,23 which has two branches. "The first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon the municipal
council by law. The second, known as the police power proper, authorizes the municipality to enact
ordinances as may be necessary and proper for the health and safety, prosperity, morals, peace,
good order, comfort, and convenience of the municipality and its inhabitants, and for the protection
of their property."24
White Light Corporation v. City of Manila,25 discusses the test of a valid ordinance:

The test of a valid ordinance is well established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the

Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with
public policy; and (6) must not be unreasonable.26

Ordinance No. 192 was passed by the City Council of Marikina in the apparent exercise of its police
power. To successfully invoke the exercise of police power as the rationale for the enactment of an
ordinance and to free it from the imputation of constitutional infirmity, two tests have been used by
the Court – the rational relationship test and the strict scrutiny test:

We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered. Applying strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.27

Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series of 1994 must
be struck down for not being reasonably necessary to accomplish the City’s purpose. More
importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites as discussed in
Social Justice Society (SJS) v. Atienza, Jr.:28

As with the State, local governments may be considered as having properly exercised their police
power only if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise and (2) the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful subject and lawful method.29

Lacking a concurrence of these two requisites, the police power measure shall be struck down as an
arbitrary intrusion into private rights and a violation of the due process clause.30

Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:

Section 3. The standard height of fences of walls allowed under this ordinance are as follows:

(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in excess of
one (1) meter shall be an open fence type, at least eighty percent (80%) see-thru;

xxx xxx xxx

Section 5. In no case shall walls and fences be built within the five (5) meter parking area allowance
located between the front monument line and the building line of commercial and industrial
establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring them to (1) demolish their
existing concrete wall, (2) build a fence (in excess of one meter) which must be 80% see-thru, and
(3) build the said fence six meters back in order to provide a parking area.

Setback Requirement

The Court first turns its attention to Section 5 which requires the five-meter setback of the fence to
provide for a parking area. The petitioners initially argued that the ownership of the parking area to
be created would remain with the respondents as it would primarily be for the use of its students and
faculty, and that its use by the public on non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in fact, invalid for being repugnant to the
Constitution.31

The Court agrees with the latter position.

The Court joins the CA in finding that the real intent of the setback requirement was to make the
parking space free for use by the public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the general public. Section 9 of Article III
of the 1987 Constitution, a provision on eminent domain, provides that private property shall not be
taken for public use without just compensation.

The petitioners cannot justify the setback by arguing that the ownership of the property will continue
to remain with the respondents. It is a settled rule that neither the acquisition of title nor the total
destruction of value is essential to taking. In fact, it is usually in cases where the title remains with
the private owner that inquiry should be made to determine whether the impairment of a property is
merely regulated or amounts to a compensable taking.32 The Court is of the view that the
implementation of the setback requirement would be tantamount to a taking of a total of 3,762.36
square meters of the respondents’ private property for public use without just compensation, in
contravention to the Constitution.

Anent the objectives of prevention of concealment of unlawful acts and "un-neighborliness," it is

obvious that providing for a parking area has no logical connection to, and is not reasonably
necessary for, the accomplishment of these goals.

Regarding the beautification purpose of the setback requirement, it has long been settled that the
State may not, under the guise of police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic appearance of the community.33 The
Court, thus, finds Section 5 to be unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for aesthetic purposes. Accordingly, Section
5 of Ordinance No. 192 is invalid.

The petitioners, however, argue that the invalidity of Section 5 was properly cured by Zoning
Ordinance No. 303,34 Series of 2000, which classified the respondents’ property to be within an
institutional zone, under which a five-meter setback has been required.

The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to the case at
hand.

The Court notes with displeasure that this argument was only raised for the first time on appeal in
this Court in the petitioners’ Reply. Considering that Ordinance No. 303 was enacted on December
20, 2000, the petitioners could very well have raised it in their defense before the RTC in 2002. The
settled rule in this jurisdiction is that a party cannot change the legal theory of this case under which
the controversy was heard and decided in the trial court. It should be the same theory under which
the review on appeal is conducted. Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal. This will be offensive to the basic
rules of fair play, justice, and due process.35

Furthermore, the two ordinances have completely different purposes and subjects. Ordinance No.
192 aims to regulate the construction of fences, while Ordinance No. 303 is a zoning ordinance
which classifies the city into specific land uses. In fact, the five-meter setback required by Ordinance
No. 303 does not even appear to be for the purpose of providing a parking area.

By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section 5 of Ordinance
No. 192.

In any case, the clear subject of the petition for prohibition filed by the respondents is Ordinance No.
192 and, as such, the precise issue to be determined is whether the petitioners can be prohibited
from enforcing the said ordinance, and no other, against the respondents.

80% See-Thru Fence Requirement

The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid, Section 3.1 limiting
the height of fences to one meter and requiring fences in excess of one meter to be at least 80%
see-thru, should remain valid and enforceable against the respondents.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners must show the reasonable
relation between the purpose of the police power measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily invaded.36

The principal purpose of Section 3.1 is "to discourage, suppress or prevent the concealment of
prohibited or unlawful acts." The ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the petitioners, however, is not
reasonably necessary for the accomplishment of this purpose and is unduly oppressive to private
rights. The petitioners have not adequately shown, and it does not appear obvious to this Court, that
an 80% see-thru fence would provide better protection and a higher level of security, or serve as a
more satisfactory criminal deterrent, than a tall solid concrete wall. It may even be argued that such
exposed premises could entice and tempt would-be criminals to the property, and that a see-thru
fence would be easier to bypass and breach. It also appears that the respondents’ concrete wall has
served as more than sufficient protection over the last 40 years. `

As to the beautification purpose of the assailed ordinance, as previously discussed, the State may
not, under the guise of police power, infringe on private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court cannot perceive how a see-thru fence will foster
"neighborliness" between members of a community.

Compelling the respondents to construct their fence in accordance with the assailed ordinance is,
thus, a clear encroachment on their right to property, which necessarily includes their right to decide
how best to protect their property.
It also appears that requiring the exposure of their property via a see-thru fence is violative of their
right to privacy, considering that the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a fundamental right guaranteed by the
Constitution that must be protected from intrusion or constraint. The right to privacy is essentially the
right to be let alone,37 as governmental powers should stop short of certain intrusions into the
personal life of its citizens.38 It is inherent in the concept of liberty, enshrined in the Bill of Rights
(Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution.39

The enforcement of Section 3.1 would, therefore, result in an undue interference with the
respondents’ rights to property and privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid
and cannot be enforced against the respondents.

No Retroactivity

Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including the regulation of
educational institutions which was unintentionally omitted, and giving said educational institutions
five (5) years from the passage of Ordinance No. 192 (and not Ordinance No. 217) to conform to its
provisions.40 The petitioners argued that the amendment could be retroactively applied because the
assailed ordinance is a curative statute which is retroactive in nature.

Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced against the
respondents, it is no longer necessary to rule on the issue of retroactivity. The Court shall,
nevertheless, pass upon the issue for the sake of clarity.

"Curative statutes are enacted to cure defects in a prior law or to validate legal proceedings which
would otherwise be void for want of conformity with certain legal requirements. They are intended to
supply defects, abridge superfluities and curb certain evils. They are intended to enable persons to
carry into effect that which they have designed or intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity in their own action. They make
valid that which, before the enactment of the statute was invalid. Their purpose is to give validity to
acts done that would have been invalid under existing laws, as if existing laws have been complied
with. Curative statutes, therefore, by their very essence, are retroactive."41

The petitioners argue that Ordinance No. 192 is a curative statute as it aims to correct or cure a
defect in the National Building Code, namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an insufficiency in the law. In aiming to cure
this insufficiency, the petitioners attempt to add lacking provisions to the National Building Code.
This is not what is contemplated by curative statutes, which intend to correct irregularities or
invalidity in the law. The petitioners fail to point out any irregular or invalid provision. As such, the
assailed ordinance cannot qualify as curative and retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building Code with respect to
parking provisions in relation to the issue of the respondents. Paragraph 1.16.1, Rule XIX of the
Rules and Regulations of the said code requires an educational institution to provide one parking
slot for every ten classrooms. As found by the lower courts, the respondents provide a total of 76
parking slots for their 80 classrooms and, thus, had more than sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which may be applied
retroactively.

Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot be enforced
against the respondents. Nonetheless, "the general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the valid portion, if susceptible to being
separated from the invalid, may stand and be enforced."42 Thus, the other sections of the assailed
ordinance remain valid and enforceable.

Conclusion

Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were acting in excess
of their jurisdiction in enforcing Ordinance No. 192 against the respondents. The CA was correct in
affirming the decision of the RTC in issuing the writ of prohibition. The petitioners must permanently
desist from enforcing Sections 3.1 and 5 of the assailed ordinance on the respondents' property in
Marikina City.

WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the Regional Trial Court in
SCA Case No. 2000-381-MK is AFFIRMED but MODIFIED to read as follows:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing or implementing Sections 3.1 and 5 of Ordinance
No. 192, Series of 1994, as amended, on the petitioners' property in question located in Marikina
Heights, Marikina, Metro Manila.

No pronouncement as to costs.

SO ORDERED.

Legaspi v City of Cebu

ALENTINO L. LEGASPI, Petitioner, v. CITY OF CEBU, T.C. (TITO) SAYSON AND RICARDO
HAPITAN, Respondents.

[G.R. No. 159692]

BIENVENIDO P. JABAN, SR., AND BIENVENIDO DOUGLAS LUKE BRADBURY JABAN, Petitioners,v. COURT
OF APPEALS, CITY OF CEBU, CITY MAYOR ALVIN GARCIA, SANGGUNIANG PANLUNSOD OF CITY OF
CEBU, HON. RENATO V. OSMEÑA, AS PRESIDING OFFICER OF THE SANGGUNIANG PANLUNSOD, AND
CITOM CHAIRMAN ALAN GAVIOLA, AS CITOM CHIEF, CITOM TRAFFIC ENFORCER E. A. ROMERO, AND
LITO GILBUENA, Respondents.

DECISION

BERSAMIN, J.:

The goal of the decentralization of powers to the local government units (LGUs) is to ensure the
enjoyment by each of the territorial and political subdivisions of the State of a genuine and meaningful
local autonomy. To attain the goal, the National Legislature has devolved the three great inherent
powers of the State to the LGUs. Each political subdivision is thereby vested with such powers subject to
constitutional and statutory limitations.

In particular, the Local Government Code (LGC) has expressly empowered the LGUs to enact and adopt
ordinances to regulate vehicular traffic and to prohibit illegal parking within their jurisdictions. Now
challenged before the Court are the constitutionality and validity of one such ordinance on the ground
that the ordinance constituted a contravention of the guaranty of due process under the Constitution by
authorizing the immobilization of offending vehicles through the clamping of tires. The challenge
originated in the Regional Trial Court (RTC) at the instance of the petitioners – vehicle owners who had
borne the brunt of the implementation of the ordinance – with the RTC declaring the ordinance
unconstitutional, but it has now reached the Court as a consolidated appeal taken in due course by the
petitioners after the Court of Appeals (CA) reversed the judgment of the RTC.

Antecedents

On January 27, 1997 the Sangguniang Panlungsod of the City of Cebu enacted Ordinance No. 1664 to
authorize the traffic enforcers of Cebu City to immobilize any motor vehicle violating the parking
restrictions and prohibitions defined in Ordinance No. 801 (Traffic Code of Cebu City).1 The pertinent
provisions of Ordinance No. 1664 read:chanRoblesvirtualLawlibrary

Section 1. POLICY – It is the policy of the government of the City of Cebu to immobilize any motor
vehicle violating any provision of any City Ordinance on Parking Prohibitions or Restrictions, more
particularly Ordinance No. 801, otherwise known as the Traffic Code of Cebu City, as amended, in order
to have a smooth flow of vehicular traffic in all the streets in the City of Cebu at all times.

Section 2. IMMOBILIZATION OF VEHICLES – Any vehicle found violating any provision of any existing
ordinance of the City of Cebu which prohibits, regulates or restricts the parking of vehicles shall be
immobilized by clamping any tire of the said violating vehicle with the use of a denver boot vehicle
immobilizer or any other special gadget designed to immobilize motor vehicles. For this particular
purpose, any traffic enforcer of the City (regular PNP Personnel or Cebu City Traffic Law Enforcement
Personnel) is hereby authorized to immobilize any violating vehicle as hereinabove provided.

Section 3. PENALTIES – Any motor vehicle, owner or driver violating any ordinance on parking
prohibitions, regulations and/or restrictions, as may be provided under Ordinance No. 801, as amended,
or any other existing ordinance, shall be penalized in accordance with the penalties imposed in the
ordinance so violated, provided that the vehicle immobilizer may not be removed or released without its
owner or driver paying first to the City Treasurer of Cebu City through the Traffic Violations Bureau (TVB)
all the accumulated penalties for all prior traffic law violations that remain unpaid or unsettled, plus the
administrative penalty of Five Hundred Pesos (P500.00) for the immobilization of the said vehicle, and
receipts of such payments presented to the concerned personnel of the bureau responsible for the
release of the immobilized vehicle, unless otherwise ordered released by any of the following
officers:chanRoblesvirtualLawlibrary

a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and Penology
c) Asst. City Fiscal Felipe Belciña
3.1 Any person who tampers or tries to release an immobilized or clamped motor vehicle by destroying
the denver boot vehicle immobilizer or other such special gadgets, shall be liable for its loss or
destruction and shall be prosecuted for such loss or destruction under pain or penalty under the
Revised Penal Code and any other existing ordinance of the City of Cebu for the criminal act, in addition
to his/her civil liabilities under the Civil Code of the Philippines; Provided that any such act may not be
compromised nor settled amicably extrajudicially.

3.2 Any immobilized vehicle which is unattended and constitute an obstruction to the free flow of traffic
or a hazard thereof shall be towed to the city government impounding area for safekeeping and may be
released only after the provision of Section 3 hereof shall have been fully complied with.

3.3 Any person who violates any provision of this ordinance shall, upon conviction, be penalized with
imprisonment of not less than one (1) month nor more than six (6) months or of a fine of not less than
Two Thousand Pesos (P2,000.00) nor more than Five Thousand Pesos (P5,000.00), or both such
imprisonment and fine at the discretion of the court.2ChanRoblesVirtualawlibrary

On July 29, 1997, Atty. Bienvenido Jaban (Jaban, Sr.) and his son Atty. Bienvenido Douglas Luke Bradbury
Jaban (Jaban, Jr.) brought suit in the RTC in Cebu City against the City of Cebu, then represented by Hon.
Alvin Garcia, its City Mayor, the Sangguniang Panlungsod of Cebu City and its Presiding Officer, Hon.
Renato V. Osmeña, and the chairman and operatives or officers of the City Traffic Operations
Management (CITOM), seeking the declaration of Ordinance No. 1644 as unconstitutional for being in
violation of due process and for being contrary to law, and damages.3Their complaint alleged that on
June 23, 1997, Jaban Sr. had properly parked his car in a paying parking area on Manalili Street, Cebu
City to get certain records and documents from his office;4 that upon his return after less than 10
minutes, he had found his car being immobilized by a steel clamp, and a notice being posted on the car
to the effect that it would be a criminal offense to break the clamp;5 that he had been infuriated by the
immobilization of his car because he had been thereby rendered unable to meet an important client on
that day; that his car was impounded for three days, and was informed at the office of the CITOM that
he had first to pay P4,200.00 as a fine to the City Treasurer of Cebu City for the release of his car;6 that
the fine was imposed without any court hearing and without due process of law, for he was not even
told why his car had been immobilized; that he had undergone a similar incident of clamping of his car
on the early morning of November 20, 1997 while his car was parked properly in a parking lot in front of
the San Nicolas Pasil Market in Cebu City without violating any traffic regulation or causing any
obstruction; that he was compelled to pay P1,500.00 (itemized as P500.00 for the clamping and
P1,000.00 for the violation) without any court hearing and final judgment; that on May 19, 1997, Jaban,
Jr. parked his car in a very secluded place where there was no sign prohibiting parking; that his car was
immobilized by CITOM operative Lito Gilbuena; and that he was compelled to pay the total sum of
P1,400.00 for the release of his car without a court hearing and a final judgment rendered by a court of
justice.7cralawred

On August 11, 1997, Valentino Legaspi (Legaspi) likewise sued in the RTC the City of Cebu, T.C. Sayson,
Ricardo Hapitan and John Does to demand the delivery of personal property, declaration of nullity of
the Traffic Code of Cebu City, and damages.8 He averred that on the morning of July 29, 1997, he had left
his car occupying a portion of the sidewalk and the street outside the gate of his house to make way for
the vehicle of the anay exterminator who had asked to be allowed to unload his materials and
equipment from the front of the residence inasmuch as his daughter’s car had been parked in the
carport, with the assurance that the unloading would not take too long;9 that while waiting for
the anay exterminator to finish unloading, the phone in his office inside the house had rung, impelling
him to go into the house to answer the call; that after a short while, his son–in–law informed him that
unknown persons had clamped the front wheel of his car;10 that he rushed outside and found a traffic
citation stating that his car had been clamped by CITOM representatives with a warning that the
unauthorized removal of the clamp would subject the remover to criminal charges;11 and that in the late
afternoon a group headed by Ricardo Hapitan towed the car even if it was not obstructing the flow of
traffic.12

In separate answers for the City of Cebu and its co–defendants,13 the City Attorney of Cebu presented
similar defenses, essentially stating that the traffic enforcers had only upheld the law by clamping the
vehicles of the plaintiffs;14 and that Ordinance No. 1664 enjoyed the presumption of constitutionality
and validity.15

The cases were consolidated before Branch 58 of the RTC, which, after trial, rendered on January 22,
1999 its decision declaring Ordinance No. 1664 as null and void upon the following
ratiocination:chanRoblesvirtualLawlibrary

In clear and simple phrase, the essence of due process was expressed by Daniel Webster as a “law which
hears before it condemns”. In another case[s], “procedural due process is that which hears before it
condemns, which proceeds upon inquiry and renders judgment only after trial.” It contemplate(s) notice
and opportunity to be heard before judgment is rendered affecting ones (sic) person or property.” In
both procedural and substantive due process, a hearing is always a pre–requisite, hence, the taking or
deprivation of one’s life, liberty or property must be done upon and with observance of the “due
process” clause of the Constitution and the non–observance or violation thereof is, perforce,
unconstitutional.

Under Ordinance No. 1664, when a vehicle is parked in a prohibited, restrycted (sic) or regulated area in
the street or along the street, the vehicle is immobilized by clamping any tire of said vehicle with the use
of a denver boot vehicle immobilizer or any other special gadget which immobilized the motor vehicle.
The violating vehicle is immobilized, thus, depriving its owner of the use thereof at the sole
determination of any traffic enforcer or regular PNP personnel or Cebu City Traffic Law Enforcement
Personnel. The vehicle immobilizer cannot be removed or released without the owner or driver paying
first to the City Treasurer of Cebu through the Traffic Violations Bureau all the accumulated penalties of
all unpaid or unsettled traffic law violations, plus the administrative penalty of P500.00 and, further, the
immobilized vehicle shall be released only upon presentation of the receipt of said payments and upon
release order by the Chairman, CITOM, or Chairman, Committee on Police, Fire and Penology, or Asst.
City Fiscal Felipe Belcina. It should be stressed that the owner of the immobilized vehicle shall have to
undergo all these ordeals at the mercy of the Traffic Law Enforcer who, as the Ordinance in question
mandates, is the arresting officer, prosecutor, Judge and collector. Otherwise stated, the owner of the
immobilized motor vehicle is deprived of his right to the use of his/her vehicle and penalized without a
hearing by a person who is not legally or duly vested with such rights, power or authority. The Ordinance
in question is penal in nature, and it has been held;
xxx

WHEREFORE, premised (sic) considered, judgment is hereby rendered declaring Ordinance No. 1664
unconstitutional and directing the defendant City of Cebu to pay the plaintiff Valentino Legaspi the sum
of P110,000.00 representing the value of his car, and to all the plaintiffs, Valentino L. Legaspi,
Bienvenido P. Jaban and Bienvenido Douglas Luke Bradbury Jaban, the sum of P100,000.00 each or
P300,000.00 all as nominal damages and another P100,000.00 each or P300,000.00 all as temperate or
moderate damages. With costs against defendant City of Cebu.

SO ORDERED.16 (citations omitted)chanroblesvirtualawlibrary

The City of Cebu and its co–defendants appealed to the CA, assigning the following errors to the RTC,
namely: (a) the RTC erred in declaring that Ordinance No. 1664 was unconstitutional; (b)
granting,arguendo, that Ordinance No. 1664 was unconstitutional, the RTC gravely erred in holding that
any violation prior to its declaration as being unconstitutional was irrelevant; (c) granting, arguendo,
that Ordinance No. 1664 was unconstitutional, the RTC gravely erred in awarding damages to the
plaintiffs; (d) granting, arguendo, that the plaintiffs were entitled to damages, the damages awarded
were excessive and contrary to law; and (e) the decision of the RTC was void, because the Office of the
Solicitor General (OSG) had not been notified of the proceedings.

On June 16, 2003, the CA promulgated its assailed decision,17 overturning the RTC and declaring
Ordinance No. 1664 valid, to wit:chanRoblesvirtualLawlibrary

The principal thrust of this appeal is the constitutionality of Ordinance 1664. Defendants–appellants
contend that the passage of Ordinance 1664 is in accordance with the police powers exercised by the
City of Cebu through the Sangguniang Panlungsod and granted by RA 7160, otherwise known as the
Local Government Code. A thematic analysis of the law on municipal corporations confirms this view. As
in previous legislation, the Local Government Code delegates police powers to the local governments in
two ways. Firstly, it enumerates the subjects on which the Sangguniang Panlungsod may exercise these
powers. Thus, with respect to the use of public streets, Section 458 of the Code
states:chanRoblesvirtualLawlibrary

Section 458 (a) The sangguniang panlungsod, as the legislative branch of the city, x x x shall x x x

(5) (v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, park and other public places and
approve the construction, improvement, repair and maintenance of the same; establish bus and vehicle
stops and terminals or regulate the use of the same by privately owned vehicles which serve the public;
regulate garages and the operation of conveyances for hire; designate stands to be occupied by public
vehicles when not in use; regulate the putting up of signs, signposts, awnings and awning posts on the
streets; and provide for the lighting, cleaning and sprinkling of streets and public places;

(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon and, when
necessary in the interest of public welfare, authorize the removal of encroachments and illegal
constructions in public places.
It then makes a general grant of the police power. The scope of the legislative authority of the local
government is set out in Section 16, to wit:chanRoblesvirtualLawlibrary

Section 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.

This provision contains what is traditionally known as the general welfare clause. As expounded in
United States vs. Salaveria, 39 Phil 102, 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. The second branch of the clause is much more independent of the specific
functions of the council, and authorizes such ordinances as shall seem necessary and proper to provide
for health, safety, prosperity and convenience of the municipality and its inhabitants.

In a vital and critical way, the general welfare clause complements the more specific powers granted a
local government. It serves as a catch–all provision that ensures that the local government will be
equipped to meet any local contingency that bears upon the welfare of its constituents but has not been
actually anticipated. So varied and protean are the activities that affect the legitimate interests of the
local inhabitants that it is well–nigh impossible to say beforehand what may or may not be done
specifically through law. To ensure that a local government can react positively to the people’s needs
and expectations, the general welfare clause has been devised and interpreted to allow the local
legislative council to enact such measures as the occasion requires.

Founded on clear authority and tradition, Ordinance 1664 may be deemed a legitimate exercise of the
police powers of the Sangguniang Panlungsod of the City of Cebu. This local law authorizes traffic
enforcers to immobilize and tow for safekeeping vehicles on the streets that are illegally parked and to
release them upon payment of the announced penalties. As explained in the preamble, it has become
necessary to resort to these measures because of the traffic congestion caused by illegal parking and the
inability of existing penalties to curb it. The ordinance is designed to improve traffic conditions in the
City of Cebu and thus shows a real and substantial relation to the welfare, comfort and convenience of
the people of Cebu. The only restrictions to an ordinance passed under the general welfare clause, as
declared in Salaveria, is that the regulation must be reasonable, consonant with the general powers and
purposes of the corporation, consistent with national laws and policies, and not unreasonable or
discriminatory. The measure in question undoubtedly comes within these parameters.

Upon the denial of their respective motions for reconsideration on August 4, 2003, the Jabans and
Legaspi came to the Court via separate petitions for review on certiorari. The appeals were consolidated.

Issues

Based on the submissions of the parties, the following issues are decisive of the challenge, to
wit:chanRoblesvirtualLawlibrary
 1. Whether Ordinance No. 1664 was enacted within the ambit of the legislative powers of the City
of Cebu; and

2. Whether Ordinance No. 1664 complied with the requirements for validity and constitutionality,
particularly the limitations set by the Constitution and the relevant statutes.

Ruling

The petitions for review have no merit.

A.

Tests for a valid ordinance

In City of Manila v. Laguio, Jr.,18 the Court restates the tests of a valid ordinance
thusly:chanRoblesvirtualLawlibrary

The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance
to be valid, it must not only be within the corporate powers of the local government unit to enact and
must be passed according to the procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be
unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.19ChanRoblesVirtualawlibrary

As jurisprudence indicates, the tests are divided into the formal (i.e., whether the ordinance was
enacted within the corporate powers of the LGU, and whether it was passed in accordance with the
procedure prescribed by law), and the substantive (i.e., involving inherent merit, like the conformity of
the ordinance with the limitations under the Constitution and the statutes, as well as with the
requirements of fairness and reason, and its consistency with public policy).

B.

Compliance of Ordinance No. 1664 with the formal requirements

Was the enactment of Ordinance No. 1664 within the corporate powers of the LGU of the City of Cebu?

The answer is in the affirmative. Indeed, with no issues being hereby raised against the formalities
attendant to the enactment of Ordinance No. 1664, we presume its full compliance with the test in that
regard. Congress enacted the LGC as the implementing law for the delegation to the various LGUs of the
State’s great powers, namely: the police power, the power of eminent domain, and the power of
taxation. The LGC was fashioned to delineate the specific parameters and limitations to be complied
with by each LGU in the exercise of these delegated powers with the view of making each LGU a fully
functioning subdivision of the State subject to the constitutional and statutory limitations.
In particular, police power is regarded as “the most essential, insistent and the least limitable of powers,
extending as it does ‘to all the great public needs.’”20 It is unquestionably “the power vested in the
legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the commonwealth, and of the subject of the
same.”21 According to Cooley: “[The police power] embraces the whole system of internal regulation by
which the state seeks not only to preserve the public order and to prevent offences against itself, but
also to establish for the intercourse of citizens with citizens, those rules of good manners and good
neighborhood which are calculated to prevent the conflict of rights and to insure to each the
uninterrupted enjoyment of his own, so far as it is reasonably consistent with the right enjoyment of
rights by others.”22

In point is the exercise by the LGU of the City of Cebu of delegated police power. In Metropolitan Manila
Development Authority v. Bel–Air Village Association, Inc.,23 the Court cogently
observed:chanRoblesvirtualLawlibrary

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised
by any group or body of individuals not possessing legislative power. The National Legislature, however,
may delegate this power to the President and administrative boards as well as the lawmaking bodies
of municipal corporations or local government units. Once delegated, the agents can exercise only
such legislative powers as are conferred on them by the national lawmaking body. (emphasis
supplied)chanroblesvirtualawlibrary

The CA opined, and correctly so, that vesting cities like the City of Cebu with the legislative power to
enact traffic rules and regulations was expressly done through Section 458 of the LGC, and also generally
by virtue of the General Welfare Clause embodied in Section 16 of the LGC.24

Section 458 of the LGC relevantly states:chanRoblesvirtualLawlibrary

Section 458. Powers, Duties, Functions and Composition. – (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

xxx

(5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services and
facilities as provided for under Section 17 of this Code, and in addition to said services and facilities,
shall:

xxx

(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other public places and
approve the construction, improvement repair and maintenance of the same; establish bus and
vehicle stops and terminals or regulate the use of the same by privately–owned vehicles which serve
the public; regulate garages and operation of conveyances for hire; designate stands to be occupied
by public vehicles when not in use; regulate the putting up of signs, signposts, awnings and awning
posts on the streets; and provide for the lighting, cleaning and sprinkling of streets and public places;

(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon and, when
necessary in the interest of public welfare, authorize the removal of encroachments and illegal
constructions in public places; (emphasis supplied)chanroblesvirtualawlibrary

The foregoing delegation reflected the desire of Congress to leave to the cities themselves the task of
confronting the problem of traffic congestions associated with development and progress because they
were directly familiar with the situations in their respective jurisdictions. Indeed, the LGUs would be in
the best position to craft their traffic codes because of their familiarity with the conditions peculiar to
their communities. With the broad latitude in this regard allowed to the LGUs of the cities, their traffic
regulations must be held valid and effective unless they infringed the constitutional limitations and
statutory safeguards.

C.

Compliance of Ordinance No. 1664with the substantive requirements

The first substantive requirement for a valid ordinance is the adherence to the constitutional guaranty
of due process of law. The guaranty is embedded in Article III, Section 1 of the Constitution, which
ordains:chanRoblesvirtualLawlibrary

Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall
any person be denied the equal protection of the laws.

The guaranty of due process of law is a constitutional safeguard against any arbitrariness on the part of
the Government, whether committed by the Legislature, the Executive, or the Judiciary. It is a protection
essential to every inhabitant of the country, for, as a commentator on Constitutional Law has vividly
written:25

x x x. If the law itself unreasonably deprives a person of his life, liberty, or property, he is denied the
protection of due process. If the enjoyment of his rights is conditioned on an unreasonable requirement,
due process is likewise violated. Whatsoever be the source of such rights, be it the Constitution itself or
merely a statute, its unjustified withholding would also be a violation of due process. Any government
act that militates against the ordinary norms of justice or fair play is considered an infraction of the
great guaranty of due process; and this is true whether the denial involves violation merely of the
procedure prescribed by the law or affects the very validity of the law itself.

In City of Manila v. Laguio, Jr.,26 the Court expounded on the aspects of the guaranty of due process of
law as a limitation on the acts of government, viz:chanRoblesvirtualLawlibrary

This clause has been interpreted as imposing two separate limits on government, usually called
“procedural due process” and “substantive due process.”

Procedural due process, as the phrase implies, refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are
concerned with that kind of notice and what form of hearing the government must provide when it
takes a particular action.

Substantive due process, as that phrase connotes, asks whether the government has an adequate
reason for taking away a person’s life, liberty, or property. In other words, substantive due process looks
to whether there is sufficient justification for the government’s action. Case law in the United States
(U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used.
For example, if a law is in an area where only rational basis review is applied, substantive due process is
met so long as the law is rationally related to a legitimate government purpose. But if it is an area where
strict scrutiny is used, such as for protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is necessary to achieve a compelling
government purpose.

The police power granted to local government units must always be exercised with utmost observance
of the rights of the people to due process and equal protection of the law. Such power cannot be
exercised whimsically, arbitrarily or despotically as its exercise is subject to a qualification, limitation or
restriction demanded by the respect and regard due to the prescription of the fundamental law,
particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely
affected only to the extent that may fairly be required by the legitimate demands of public interest or
public welfare. Due process requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property.27ChanRoblesVirtualawlibrary

The Jabans contend that Ordinance No. 1664, by leaving the confiscation and immobilization of the
motor vehicles to the traffic enforcers or the regular personnel of the Philippine National Police (PNP)
instead of to officials exercising judicial authority, was violative of the constitutional guaranty of due
process; that such confiscation and immobilization should only be after a hearing on the merits by
courts of law; and that the immobilization and the clamping of the cars and motor vehicles by the police
or traffic enforcers could be subject to abuse.

On his part, Legaspi likewise contends that Ordinance No. 1664 violated the constitutional guaranty of
due process for being arbitrary and oppressive; and that its provisions conferring upon the traffic
enforcers the absolute discretion to be the enforcers, prosecutors, judges and collectors all at the same
time were vague and ambiguous.28 He reminds that the grant of police powers for the general welfare
under the LGC was not unlimited but subject to constitutional limitations;29 and that these consolidated
cases should not be resolved differently from the resolution of a third case assailing the validity of
Ordinance No. 1664 (Astillero case), in which the decision of the same RTC declaring Ordinance No. 1664
as unconstitutional had attained finality following the denial of due course to the appeal of the City of
Cebu and its co–defendants.

Judged according to the foregoing enunciation of the guaranty of due process of law, the contentions of
the petitioners cannot be sustained. Even under strict scrutiny review, Ordinance No. 1664 met the
substantive tests of validity and constitutionality by its conformity with the limitations under the
Constitution and the statutes, as well as with the requirements of fairness and reason, and its
consistency with public policy.
To us, the terms encroachment and obstacles used in Section 458 of the LGC, supra, were broad enough
to include illegally parked vehicles or whatever else obstructed the streets, alleys and sidewalks, which
were precisely the subject of Ordinance No. 1664 in avowedly aiming to ensure “a smooth flow of
vehicular traffic in all the streets in the City of Cebu at all times” (Section 1). This aim was borne out by
its Whereas Clauses, viz:chanRoblesvirtualLawlibrary

WHEREAS, the City of Cebu enacted the Traffic Code (Ordinance No. 801) as amended, provided for
Parking Restrictions and Parking Prohibitions in the streets of Cebu City;

WHEREAS, despite the restrictions and prohibitions of parking on certain streets of Cebu City,
violations continued unabated due, among others, to the very low penalties imposed under the Traffic
Code of Cebu City;

WHEREAS, City Ordinance 1642 was enacted in order to address the traffic congestions caused by
illegal parkings in the streets of Cebu City;

WHEREAS, there is a need to amend City Ordinance No.1642 in order to fully address and solve the
problem of illegal parking and other violations of the Traffic Code of Cebu City;30 (emphasis
supplied)chanroblesvirtualawlibrary

Considering that traffic congestions were already retarding the growth and progress in the population
and economic centers of the country, the plain objective of Ordinance No. 1664 was to serve the public
interest and advance the general welfare in the City of Cebu. Its adoption was, therefore, in order to
fulfill the compelling government purpose of immediately addressing the burgeoning traffic congestions
caused by illegally parked vehicles obstructing the streets of the City of Cebu.

Legaspi’s attack against the provisions of Ordinance No. 1664 for being vague and ambiguous cannot
stand scrutiny. As can be readily seen, its text was forthright and unambiguous in all respects. There
could be no confusion on the meaning and coverage of the ordinance. But should there be any
vagueness and ambiguity in the provisions, which the OSG does not concede,31 there was nothing that a
proper application of the basic rules of statutory construction could not justly rectify.

The petitioners further assert that drivers or vehicle owners affected by Ordinance No. 1664 like
themselves were not accorded the opportunity to protest the clamping, towing, and impounding of the
vehicles, or even to be heard and to explain their side prior to the immobilization of their vehicles; and
that the ordinance was oppressive and arbitrary for that reason.

The adverse assertions against Ordinance No. 1664 are unwarranted.

Firstly, Ordinance No. 1664 was far from oppressive and arbitrary. Any driver or vehicle owner whose
vehicle was immobilized by clamping could protest such action of a traffic enforcer or PNP personnel
enforcing the ordinance. Section 3 of Ordinance No. 1664, supra, textually afforded an administrative
escape in the form of permitting the release of the immobilized vehicle upon a protest directly made to
the Chairman of CITOM; or to the Chairman of the Committee on Police, Fire and Penology of the City of
Cebu; or to Asst. City Prosecutor Felipe Belciña – officials named in the ordinance itself. The release
could be ordered by any of such officials even without the payment of the stipulated fine. That none of
the petitioners, albeit lawyers all, resorted to such recourse did not diminish the fairness and
reasonableness of the escape clause written in the ordinance. Secondly, the immobilization of a vehicle
by clamping pursuant to the ordinance was not necessary if the driver or vehicle owner was around at
the time of the apprehension for illegal parking or obstruction. In that situation, the enforcer would
simply either require the driver to move the vehicle or issue a traffic citation should the latter persist in
his violation. The clamping would happen only to prevent the transgressor from using the vehicle itself
to escape the due sanctions. And, lastly, the towing away of the immobilized vehicle was not equivalent
to a summary impounding, but designed to prevent the immobilized vehicle from obstructing traffic in
the vicinity of the apprehension and thereby ensure the smooth flow of traffic. The owner of the towed
vehicle would not be deprived of his property.

In fine, the circumstances set forth herein indicate that Ordinance No. 1664 complied with the elements
of fairness and reasonableness.

Did Ordinance No. 1664 meet the requirements of procedural due process?

Notice and hearing are the essential requirements of procedural due process. Yet, there are many
instances under our laws in which the absence of one or both of such requirements is not necessarily a
denial or deprivation of due process. Among the instances are the cancellation of the passport of a
person being sought for the commission of a crime, the preventive suspension of a civil servant facing
administrative charges, the distraint of properties to answer for tax delinquencies, the padlocking of
restaurants found to be unsanitary or of theaters showing obscene movies, and the abatement of
nuisance per se.32 Add to them the arrest of a person in flagrante delicto.33

The clamping of the petitioners’ vehicles pursuant to Ordinance No. 1664 (and of the vehicles of others
similarly situated) was of the same character as the aforecited established exceptions dispensing with
notice and hearing. As already said, the immobilization of illegally parked vehicles by clamping the tires
was necessary because the transgressors were not around at the time of apprehension. Under such
circumstance, notice and hearing would be superfluous. Nor should the lack of a trial–type hearing prior
to the clamping constitute a breach of procedural due process, for giving the transgressors the chance to
reverse the apprehensions through a timely protest could equally satisfy the need for a hearing. In other
words, the prior intervention of a court of law was not indispensable to ensure a compliance with the
guaranty of due process.

To reiterate, the clamping of the illegally parked vehicles was a fair and reasonable way to enforce the
ordinance against its transgressors; otherwise, the transgressors would evade liability by simply driving
away.

Finally, Legaspi’s position, that the final decision of the RTC rendered in the Astillero case declaring
Ordinance No. 1664 unconstitutional bound the City of Cebu, thereby precluding these consolidated
appeals from being decided differently, is utterly untenable. For one, Legaspi undeservedly extends too
much importance to an irrelevant decision of the RTC – irrelevant, because the connection between that
case to these cases was not at all shown. For another, he ignores that it should be the RTC that had
improperly acted for so deciding the Astillero case despite the appeals in these cases being already
pending in the CA. Being the same court in the three cases, the RTC should have anticipated that in the
regular course of proceedings, the outcome of the appeal in these cases then pending before the CA
would ultimately be elevated to and determined by no less than the Court itself. Such anticipation
should have made it refrain from declaring Ordinance No. 1664 unconstitutional, for a lower court like
itself, appreciating its position in the “interrelation and operation of the integrated judicial system of the
nation,” should have exercised a “becoming modesty” on the issue of the constitutionality of the same
ordinance that the Constitution required the majority vote of the Members of the Court sitting en banc
to determine.34 Such “becoming modesty” also forewarned that any declaration of unconstitutionality
by an inferior court was binding only on the parties, but that a declaration of unconstitutionality by the
Court would be a precedent binding on all.35

WHEREFORE, the Court DENIES the petitions for review on certiorari for their lack of merit;AFFIRMS the
decision promulgated on June 16, 2003 by the Court of Appeals; and ORDERS the petitioners to pay the
costs of suit.

SO ORDERED.

Social Justice Society v Atienza

G.R. No. 156052 March 7, 2007

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO, and BONIFACIO S.

TUMBOKON,Petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, Respondent.

DECISION

CORONA, J.:

In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T.
Cabigao and Bonifacio S. Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the
City of Manila, to enforce Ordinance No. 8027.

The antecedents are as follows.

On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No.
8027.2 Respondent mayor approved the ordinance on November 28, 2001.3 It became effective on
December 28, 2001, after its publication.4

Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a
principle described as the power inherent in a government to enact laws, within constitutional limits, to
promote the order, safety, health, morals and general welfare of the society.5 This is evident from
Sections 1 and 3 thereof which state:
SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and
general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of
[those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata
St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in
the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L.
Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St.,
Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer
permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of
effectivity of this Ordinance within which to cease and desist from the operation of businesses which are
hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed
the owners and operators of businesses disallowed under Section 1 to cease and desist from operating
their businesses within six months from the date of effectivity of the ordinance. Among the businesses
situated in the area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines),
Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation.

However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a
memorandum of understanding (MOU)6 with the oil companies in which they agreed that "the scaling
down of the Pandacan Terminals [was] the most viable and practicable option." Under the MOU, the oil
companies agreed to perform the following:

Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this
MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others,
the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG
spheres and the commencing of works for the creation of safety buffer and green zones surrounding the
Pandacan Terminals. xxx

Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall
establish joint operations and management, including the operation of common, integrated and/or
shared facilities, consistent with international and domestic technical, safety, environmental and
economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in
the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate
agreement covering the commercial and operational terms and conditions of the joint operations, shall
be entered into by the OIL COMPANIES.

Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein,
which shall be taken from the properties of the OIL COMPANIES and not from the surrounding
communities, shall be the sole responsibility of the OIL COMPANIES.

The City of Manila and the DOE, on the other hand, committed to do the following:

Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the
view of implementing the spirit and intent thereof.
Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable
the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited
area resulting from the joint operations and the scale down program.

Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the
provisions of this MOU.

Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green
zones and shall exert all efforts at preventing future occupation or encroachment into these areas by
illegal settlers and other unauthorized parties.

The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution,
the Sangguniandeclared that the MOU was effective only for a period of six months starting July 25,
2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 139 extending the
validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special business
permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the
ordinance.10

Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor
Atienza be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals
of the oil companies.11

The issues raised by petitioners are as follows:

1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the
removal of the Pandacan Terminals, and

2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No.
8027.12

Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local
Government Code (RA 7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan
Terminals of the oil companies. Instead, he has allowed them to stay.

Respondent’s defense is that Ordinance No. 8027 has been superseded by the MOU and the
resolutions.14However, he also confusingly argues that the ordinance and MOU are not inconsistent with
each other and that the latter has not amended the former. He insists that the ordinance remains valid
and in full force and effect and that the MOU did not in any way prevent him from enforcing and
implementing it. He maintains that the MOU should be considered as a mere guideline for its full
implementation.15

Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary
writ that is employed to compel the performance, when refused, of a ministerial duty that is already
imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary
course of law. The petitioner should have a well-defined, clear and certain legal right to the
performance of the act and it must be the clear and imperative duty of respondent to do the act
required to be done.17
Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable
or over which a substantial doubt exists. The principal function of the writ of mandamus is to command
and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to
secure a legal right but to implement that which is already established. Unless the right to the relief
sought is unclouded, mandamus will not issue.18

To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance,
petitioner SJS states that it is a political party registered with the Commission on Elections and has its
offices in Manila. It claims to have many members who are residents of Manila. The other petitioners,
Cabigao and Tumbokon, are allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding
concerns a public right and its object is to compel a public duty, the people who are interested in the
execution of the laws are regarded as the real parties in interest and they need not show any specific
interest.19 Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the
city’s ordinances. Respondent never questioned the right of petitioners to institute this proceeding.

On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to
"enforce all laws and ordinances relative to the governance of the city.">20 One of these is Ordinance
No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it
has not been repealed by theSanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty to do
so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might

seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances

imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of

the law and are bound to obey it.23

The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian have made the

respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether

the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it

binding on the City of Manila expressly gave it full force and effectonly until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from

enforcing Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin

Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will

surely occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance

No. 8027.

SO ORDERED.
Social Justice Society Officers v Lim

G.R. No. 187836, November 25, 2014

SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY, SAMSON S. ALCANTARA, AND VLADIMIR
ALARIQUE T. CABIGAO, Petitioners, v. ALFREDO S. LIM, IN HIS CAPACITY AS MAYOR OF THE CITY
OF MANILA, Respondent.

G.R. NO. 187916

JOSE L. ATIENZA, JR., BIENVINIDO M. ABANTE, MA. LOURDES M. ISIP-GARCIA, RAFAEL P.

BORROMEO JOCELYN DAWIS-ASUNCION, MINORS MARIAN REGINA B. TARAN, MACAILA RICCI B.
TARAN, RICHARD KENNETH B. TARAN, REPRESENTED AND JOINED BY THEIR PARENTS RICHARD
AND MARITES TARAN, MINORS CZARINA ALYSANDRA C. RAMOS, CEZARAH ADRIANNA C. RAMOS,
AND CRISTEN AIDAN C. RAMOS REPRESENTED AND JOINED BY THEIR MOTHER DONNA C.
RAMOS, MINORS JAZMIN SYLLITA T. VILA AND ANTONIO T. CRUZ IV, REPRESENTED AND JOINED
BY THEIR MOTHER MAUREEN C. TOLENTINO, Petitioners,v. MAYOR ALFREDO S. LIM, VICE MAYOR
FRANCISCO DOMAGOSO, COUNCILORS ARLENE W. KOA, MOISES T. LIM, JESUS FAJARDO
LOUISITO N. CHUA, VICTORIANO A. MELENDEZ, JOHN MARVIN C. NIETO, ROLANDO M.
VALERIANO, RAYMUNDO R. YUPANGCO, EDWARD VP MACEDA, RODERICK D. VALBUENA,
JOSEFINA M. SISCAR, SALVADOR PHILLIP H. LACUNA, LUCIANO M. VELOSO, CARLO V. LOPEZ,
ERNESTO F. RIVERA,1 DANILO VICTOR H. LACUNA, JR., ERNESTO G. ISIP, HONEY H. LACUNA-
PANGAN, ERNESTO M. DIONISO, JR. AND ERICK IAN O. NIEVA, Respondents.

CHEVRON PHILIPPINES INC., PETRON CORPORATION AND PILIPINAS SHELL PETROLEUM

CORPORATION, Intervenors.

DECISION

PEREZ, J.:

Challenged in these consolidated petitions2 is the validity of Ordinance No. 81873 entitled “AN ORDINANCE
AMENDING ORDINANCE NO. 8119, OTHERWISE KNOWN AS ‘THE MANILA COMPREHENSIVE LAND USE PLAN
AND ZONING ORDINANCE OF 2006,’ BY CREATING A MEDIUM INDUSTRIAL ZONE (1-2) AND HEAVY
INDUSTRIAL ZONE (1-3), AND PROVIDING FOR ITS ENFORCEMENT” enacted by the Sangguniang
Panlungsod of Manila (Sangguniang Panlungsod) on 14 May 2009.

The creation of a medium industrial zone (1-2) and heavy industrial zone (1-3) effectively lifted the
prohibition against owners and operators of businesses, including herein intervenors Chevron Philippines,
Inc. (Chevron), Pilipinas Shell Petroleum Corporation (Shell), and Petron Corporation (Petron), collectively
referred to as the oil companies, from operating in the designated commercial zone – an industrial zone
prior to the enactment of Ordinance No. 80274 entitled “AN ORDINANCE RECLASSIFYING THE LAND USE OF
THAT PORTION OF LAND BOUNDED BY THE PASIG RIVER IN THE NORTH, PNR RAILROAD TRACK IN THE
EAST, BEATA ST. IN THE SOUTH, PALUMPONG ST. IN THE SOUTHWEST AND ESTERO DE PANDACAN IN THE
WEST, PNR RAILROAD IN THE NORTHWEST AREA, ESTERO DE PANDACAN IN THE NORTHEAST, PASIG
RIVER IN THE SOUTHEAST AND DR. M. L. CARREON IN THE SOUTHWEST, THE AREA OF PUNTA, STA. ANA
BOUNDED BY THE PASIG RIVER, MARCELINO OBRERO ST., MAYO 28 ST. AND THE F. MANALO STREET
FROM INDUSTRIAL II TO COMMERCIAL I,” and Ordinance No. 81195 entitled “AN ORDINANCE ADOPTING
THE MANILA COMPREHENSIVE LAND USE PLAN AND ZONING REGULATIONS OF 2006 AND PROVIDING FOR
THE ADMINISTRATION, ENFORCEMENT AND AMENDMENT THERETO.” ChanRoblesVi rtualawl ib rary

The Parties

Petitioners allege the parties’ respective capacity to sue and be sued, viz:
Suing capacity aside from being
Residence in
Petitioners residents of Manila/other
Manila
personal circumstances
G.R. No. 187836
 Manila taxpayer;
SJS Officer Not mentioned in the One of the petitioners in SJS v.
Samson S. petition; holding Atienza(G.R. No. 156052);*
Alcantara office in Ermita, Pesident of ABAKADA GURO PARTY
(Alcantara) Manila LIST with members who are
residents of the City of Manila
SJS Officer
Vladimir Alarique One of the petitioners in SJS v.
Pandacan
T. Cabigao Atienza(G.R. No. 156052)
(Cabigao)
* The allegation is inaccurate. SJS Officer Alcantara is actually one of the counsels for petitioner SJS in G.R.
No. 156052. The petitioners in that case are the SJS itself, Cabigao and Bonifacio S. Tumbokon (Tumbokon).

G.R. No. 187916

Former Mayor of Manila;

Former Mayor Jose L. Atienza, Jr. (Mayor
Atienza)
Bienvinido M. Abante
Ma. Lourdes M. Isip-Garcia
Rafael P. Borromeo
Jocelyn Dawis-Asuncion
Minors Marian Regina B. Taran, Macalia
Ricci B. Taran, Richard Kenneth B. Taran,
represented and joined by their parents
Richard and Marites Taran
Minors Czarina Alysandra C. Ramos,
Cezarah Adrianna C. Ramos, and Cristen
Aidan C. Ramos represented and joined by
their mother Donna c. Ramos
Minors Jasmin Syllita T. Vila and Antonio
T. Cruz IV, represented and joined by their Sta. Citizens, real estate
mother Maureen C. Tolentino
Respondents Sued in their capacity as
Secretary of Department
San of Environment and
Andres Natural Resources (DENR)
Citizen and
Sta. taxpayer;member of the
Ana House of Representatives
San Incumbent City Councilor
Miguel of the City of Manila
Incumbent City Councilor
Paco of the City of Manila
Sta. Incumbent City Councilor
Mesa of the City of Manila
Citizens, real estate
Paco owners and taxpayers
Citizens, real estate
Tondo owners and taxpayers
Ana owners and taxpayers

G.R. Nos. 187836 and 187916

 Incumbent Mayor of Manila at the
Former Mayor Alfredo S. Lim (Mayor
time of the filing of the present
Lim)
petitions
Respondents Sued in their capacity as

G.R. No. 187916

Vice-Mayor Francisco Domagoso Vice-Mayor and Presiding Officer of

(Vice-Mayor Domagoso) the City Council of Manila
Principal author of City Ordinance No.
Arlene Woo Koa
8187
Moises T. Lim, Jesus Fajardo, Louisito
N. Chua, Victoriano A. Melendez, John
Marvin Nieto, Rolando M. Valeriano,
Raymondo R. Yupangco, Edward VP
Maceda, Roderick D. Valbuena, Personal and official capacities as
Josefina M. Siscar, Phillip H. Lacuna, councilors who voted and approved
Luciano M. Veloso, Carlo V. Lopez, City Ordinance No. 8187
Ernesto F. Rivera, Danilo Victor H.
6

Lacuna, Jr., Ernesto G. Isip, Honey H.

Lacuna-Pangan, Ernesto M. Dionisio,
Jr., Erick Ian O. Nieva
The following intervenors, all of which are corporations organized under Philippine laws, intervened:7
Intervenors Nature of Business

Chevron Philippines, importing, distributing and marketing of petroleum

Inc. (CHEVRON) products in the Philippines since 1922
Pilipinas Shell
manufacturing, refining, importing, distributing and
Petroleum Corporation
marketing of petroleum products in the Philippines
(SHELL)
Petron Corporation manufacturing, refining, importing, distributing and
(PETRON) marketing of petroleum products in the Philippines
They claim that their rights with respect to the oil depots in Pandacan would be directly affected by the
outcome of these cases. chanrobleslaw

The Antecedents

These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.8 (hereinafter referred
to as G.R. No. 156052), where the Court found: (1) that the ordinance subject thereof – Ordinance No.
8027 – was enacted “to safeguard the rights to life, security and safety of the inhabitants of Manila;”9 (2)
that it had passed the tests of a valid ordinance; and (3) that it is not superseded by Ordinance No.
8119.10 Declaring that it is constitutional and valid,11 the Court accordingly ordered its immediate
enforcement with a specific directive on the relocation and transfer of the Pandacan oil terminals.12 chan roble slaw

Highlighting that the Court has so ruled that the Pandacan oil depots should leave, herein petitioners now
seek the nullification of Ordinance No. 8187, which contains provisions contrary to those embodied in
Ordinance No. 8027. Allegations of violation of the right to health and the right to a healthful and balanced
environment are also included.

For a better perspective of the facts of these cases, we again trace the history of the Pandacan oil terminals,
as well as the intervening events prior to the reclassification of the land use from Industrial II to Commercial
I under Ordinance No. 8027 until the creation of Medium Industrial Zone and Heavy Industrial Zone
pursuant to Ordinance No. 8187.

History of the Pandacan

Oil Terminals

We quote the following from the Resolution of the Court in G.R. No. 156052:
Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig [R]iver. At the
turn of the twentieth century, Pandacan was unofficially designated as the industrial center of Manila. The
area, then largely uninhabited, was ideal for various emerging industries as the nearby river facilitated the
transportation of goods and products. In the 1920s, it was classified as an industrial zone. Among its early
industrial settlers were the oil companies. x x x

On December 8, 1941, the Second World War reached the shores of the Philippine Islands. x x x [I]n their
zealous attempt to fend off the Japanese Imperial Army, the United States Army took control of the
Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the advancing
Japanese Army of a valuable logistics weapon. The U.S. Army burned unused petroleum, causing a
frightening conflagration. Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were set on fire.
The flames spread, enveloping the City in smoke, setting even the rivers ablaze, endangering bridges and all
riverside buildings. … For one week longer, the “open city” blazed—a cloud of smoke by day, a pillar of fire
by night.
The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and service
stations inoperative.

After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The three major
oil companies resumed the operation of their depots. But the district was no longer a sparsely populated
industrial zone; it had evolved into a bustling, hodgepodge community. Today, Pandacan has become a
densely populated area inhabited by about 84,000 people, majority of whom are urban poor who call it
home. Aside from numerous industrial installations, there are also small businesses, churches, restaurants,
schools, daycare centers and residences situated there. Malacañang Palace, the official residence of the
President of the Philippines and the seat of governmental power, is just two kilometers away. There is a
private school near the Petron depot. Along the walls of the Shell facility are shanties of informal settlers.
More than 15,000 students are enrolled in elementary and high schools situated near these facilities. A
university with a student population of about 25,000 is located directly across the depot on the banks of the
Pasig [R]iver.

The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and depot facilities. The
refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas, respectively, are connected to the
Pandacan Terminals through a 114-kilometer underground pipeline system. Petron’s refinery in Limay,
Bataan, on the other hand, also services the depot. The terminals store fuel and other petroleum products
and supply 95% of the fuel requirements of Metro Manila, 50% of Luzon’s consumption and 35%
nationwide. Fuel can also be transported through barges along the Pasig [R]iver or tank trucks via the South
Luzon Expressway.13 (Citations omitted)
Memorandum of Agreement (MOA)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)

On 12 October 2001, the oil companies and the DOE entered into a MOA14 “in light of recent international
developments involving acts of terrorism on civilian and government landmarks,”15“potential new security
risks relating to the Pandacan oil terminals and the impact on the surrounding community which may be
affected,”16 and “to address the perceived risks posed by the proximity of communities, businesses and
offices to the Pandacan oil terminals, consistent with the principle of sustainable development.”17 The
stakeholders acknowledged that “there is a need for a comprehensive study to address the economic, social,
environmental and security concerns with the end in view of formulating a Master Plan to address and
minimize the potential risks and hazards posed by the proximity of communities, businesses and offices to
the Pandacan oil terminals without adversely affecting the security and reliability of supply and distribution
of petroleum products to Metro Manila and the rest of Luzon, and the interests of consumers and users of
such petroleum products in those areas.”18 chanrob leslaw

The enactment of Ordinance No. 8027

against the continued stay of the oil depots

The MOA, however, was short-lived.

On 20 November 2001, during the incumbency of former Mayor Jose L. Atienza, Jr. (Mayor Atienza) – now
one of the petitioners in G.R. No. 187916 – the Sangguniang Panlungsod enacted Ordinance No.
802719 reclassifying the use of the land in Pandacan, Sta. Ana, and its adjoining areas from Industrial II to
Commercial I.

The owners and operators of the businesses thus affected by the reclassification were given six months from
the date of effectivity of the Ordinance within which to stop the operation of their businesses.

Nevertheless, the oil companies were granted an extension of until 30 April 2003 within which to comply
with the Ordinance pursuant to the following: cha nro blesvi rt uallawli bra ry

(1) Memorandum of Understanding (MOU)20 dated 26 June 2002 between the City of Manila and the
Department of Energy (DOE), on the one hand, and the oil companies, on the other, where the parties
agreed that “the scaling down of the Pandacan Terminals [was] the most viable and practicable
option”21 and committed to adopt specific measures22 consistent with the said objective;

(2) Resolution No. 97 dated 25 July 200223 of the Sangguniang Panlungsod, which ratified the 26 June 2002
MOU but limited the extension of the period within which to comply to six months from 25 July 2002; and

(3) Resolution No. 13 dated 30 January 200324 of the Sanguniang Panlungsod, which extended the validity
of Resolution No. 97 to 30 April 2003, authorized then Mayor Atienza to issue special business permits to the
oil companies, and called for a reassessment of the ordinance.

Social Justice Society v. Atienza (G.R. No. 156052):

The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027

In the interim, an original action for mandamus entitled Social Justice Society v. Atienza, Jr. docketed as
G.R. No. 15605225 was filed on 4 December 2002 by Tumbokon and herein petitioners SJS and Cabigao
against then Mayor Atienza. The petitioners sought to compel former Mayor Atienza to enforce Ordinance
No. 8027 and cause the immediate removal of the terminals of the oil companies.26 chan roble slaw

Issuance by the Regional Trial Court (RTC)

of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies

Unknown to the Court, during the pendency of G.R. No. 156052, and before the expiration of the validity of
Resolution No. 13, the oil companies filed the following actions before the Regional Trial Court of Manila: (1)
an action for the annulment of Ordinance No. 8027 with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction – by Chevron; (2) a petition for prohibition
and mandamus also for the annulment of the Ordinance with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction – by Shell; and (3) a petition assailing the validity of the
Ordinance with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order
(TRO) – by Petron.27 chanrob leslaw

Writs of preliminary prohibitory injunction and preliminary mandatory injunction were issued in favor of
Chevron and Shell on 19 May 2003. Petron, on the other hand, obtained a status quo order on 4 August
2004.28chan robles law

The Enactment of Ordinance No. 8119

defining the Manila land use plan
and zoning regulations

On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled “An Ordinance Adopting the
Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration,
Enforcement and Amendment thereto.”29 chanroble slaw

Pertinent provisions relative to these cases are the following: chan rob lesvi rtual lawlib rary

(a) Article IV, Sec. 730 enumerating the existing zones or districts in the City of Manila;

(b) Article V, Sec. 2331 designating the Pandacan oil depot area as a “Planned Unit Development/Overlay
Zone” (O-PUD); and

(c) the repealing clause, which reads:

SEC. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the provisions of this
Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the effectivity of this
Ordinance shall not be impaired.32
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty
to enforce Ordinance No. 8027 and order
the removal of the Pandacan terminals

On 7 March 2007, the Court granted the petition for mandamus, and directed then respondent Mayor
Atienza to immediately enforce Ordinance No. 8027.33 chanro bleslaw

Confined to the resolution of the following issues raised by the petitioners, to wit:
1. whether respondent [Mayor Atienza] has the mandatory legal duty to enforce Ordinance No. 8027 and
order the removal of the Pandacan Terminals, and

2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No.
8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon respondent the duty, as city mayor, to “enforce all laws
and ordinances relative to the governance of the city.” One of these is Ordinance No. 8027. As the chief
executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by
the Sanggunian or annulled by the courts. He has no other choice. It is his ministerial duty to do so. x x x

xxxx

The question now is whether the MOU entered into by respondent with the oil companies and the
subsequent resolutions passed by the Sanggunian have made the respondent’s duty to enforce Ordinance
No. 8027 doubtful, unclear or uncertain. x x x

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No.
8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force
and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent
from enforcing Ordinance No. 8027.

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the
horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York
City. The objective of the ordinance is to protect the residents of Manila from the catastrophic
devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. No
reason exists why such a protective measure should be delayed.35 (Emphasis supplied; citations
omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional

The oil companies and the Republic of the Philippines, represented by the DOE, filed their motions for leave
to intervene and for reconsideration of the 7 March 2007 Decision. During the oral arguments, the parties
submitted to the power of the Court to rule on the constitutionality and validity of the assailed Ordinance
despite the pendency of the cases in the RTC.36 chanrobleslaw
On 13 February 2008, the Court granted the motions for leave to intervene of the oil companies and the
Republic of the Philippines but denied their respective motions for reconsideration. The dispositive portion of
the Resolution reads:
WHEREFORE, x x x

We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In
coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby ordered
to oversee the relocation and transfer of the Pandacan Terminals out of its present site.37
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119

The Court also ruled that Ordinance No. 8027 was not impliedly repealed by Ordinance No. 8119. On this
score, the Court ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable conflict between the two ordinances.
There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the Pandacan area from
Industrial II to Commercial I. Ordinance No. 8119, Section 23, designated it as a “Planned Unit
Development/Overlay Zone (O-PUD).” In its Annex “C” which defined the zone boundaries, the Pandacan
area was shown to be within the “High Density Residential/Mixed Use Zone (R-3/MXD).” x x x [B]oth
ordinances actually have a common objective, i.e., to shift the zoning classification from industrial to
commercial (Ordinance No. 8027) or mixed residential commercial (Ordinance No. 8119)

xxxx

Ordinance No. 8027 is a special law since it deals specifically with a certain area described therein (the
Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law as it covers the
entire city of Manila.
cralawre d

xxxx

x x x The repealing clause of Ordinance No. 8119 cannot be taken to indicate the legislative intent to repeal
all prior inconsistent laws on the subject matter, including Ordinance No. 8027, a special enactment, since
the aforequoted minutes (an official record of the discussions in the Sanggunian) actually indicated the clear
intent to preserve the provisions of Ordinance No. 8027.38
Filing of a draft Resolution amending
Ordinance No. 8027 effectively allowing
the oil depots to stay in the Pandacan area;
Manifestation and Motion to forestall
the passing of the new Ordinance
filed in G.R. No. 156052

On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the Sangguniang Panlungsod a draft
resolution entitled “An Ordinance Amending Ordinance No. 8119 Otherwise Known as ‘The Manila
Comprehensive Land Use Plan and Zoning Ordinance of 2006’ by Creating a Medium Industrial Zone (1-2)
and Heavy Industrial Zone (1-3) and Providing for its Enforcement.”39 Initially numbered as Draft Ordinance
No. 7177, this was later renumbered as Ordinance No. 8187, the assailed Ordinance in these instant
petitions.

Considering that the provisions thereof run contrary to Ordinance No. 8027, the petitioners in G.R. No.
156052 filed a “Manifestation and Motion to: a) Stop the City Council of Manila from further hearing the
amending ordinance to Ordinance No. 8027; [and] b) Transfer the monitoring of the enforcement of the
Resolution of the Honorable Court on this case dated 13 February 2008 from Branch 39, Manila Regional
Trial Court to the Supreme Court.”40 chanrobles law

28 April 2009 Resolution in G.R. No. 156052;

Second Motion for Reconsideration
denied with finality; succeeding motions
likewise denied or otherwise noted
without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the Court denied with finality the
second motion for reconsideration dated 27 February 2008 of the oil companies.41 It further ruled that no
further pleadings shall be entertained in the case.42 chanro bles law

Succeeding motions were thus denied and/or noted without action. And, after the “Very Urgent Motion to
Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 and to Cite Him for Contempt if
He Would Do So” filed on 19 May 2009 was denied on 2 June 2009 for being moot,43 all pleadings pertaining
to the earlier motion against the drafting of an ordinance to amend Ordinance No. 8027 were noted without
action.44
chanrob leslaw

The Enactment of Ordinance No. 8187

allowing the continued stay of the oil depots

On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim (Mayor Lim), who succeeded Mayor
Atienza, the Sangguniang Panlungsod enacted Ordinance No. 8187.45 chanro bles law

The new Ordinance repealed, amended, rescinded or otherwise modified Ordinance No. 8027, Section 23 of
Ordinance No. 8119, and all other Ordinances or provisions inconsistent therewith46 thereby allowing, once
again, the operation of “Pollutive/Non-Hazardous and Pollutive/Hazardous manufacturing and processing
establishments” and “Highly Pollutive/Non-Hazardous[,] Pollutive/Hazardous[,] Highly Pollutive/Extremely
Hazardous[,] Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and
Pollutive/Extremely Hazardous manufacturing and processing establishments” within the newly created
Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) in the Pandacan area.

Thus, where the Industrial Zone under Ordinance No. 8119 was limited to Light Industrial Zone (I-1),
Ordinance No. 8187 appended to the list a Medium Industrial Zone (I-2) and a Heavy Industrial Zone (I-3),
where petroleum refineries and oil depots are now among those expressly allowed.

Hence these petitions. cha nrob leslaw

The Petitions

G.R. No. 187836

To support their petition for prohibition against the enforcement of Ordinance No. 8187, the petitioner Social
Justice Society (SJS) officers allege that:chanroblesv irt uallawl ibra ry

1. The enactment of the assailed Ordinance is not a valid exercise of police power because the measures
provided therein do not promote the general welfare of the people within the contemplation of the following
provisions of law:
a) Article III, Section 18 (kk)47 of Republic Act No. 409 otherwise known as
the “Revised Charter of the City of Manila,” which provides that the
Municipal Board shall have the legislative power to enact all ordinances it
may deem necessary and proper;
b) Section 1648 of Republic Act No. 7160 known as the Local Government
Code, which defines the scope of the general welfare clause;
2. The conditions at the time the Court declared Ordinance No. 8027 constitutional in G.R. No. 156052 exist
to this date;

3. Despite the finality of the Decision in G.R. No. 156052, and notwithstanding that the conditions and
circumstances warranting the validity of the Ordinance remain the same, the Manila City Council passed a
contrary Ordinance, thereby refusing to recognize that “judicial decisions applying or interpreting the laws or
the Constitution form part of the legal system of the Philippines;”49 and

4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of the Constitution of the Philippines on
the duty of the State “to protect and promote the right to health of the people”50 and “protect and advance
the right of the people to a balanced and healthful ecology.”51 chanrob leslaw

Petitioners pray that Ordinance No. 8187 of the City of Manila be declared null and void, and that
respondent, and all persons acting under him, be prohibited from enforcing the same.
G.R. No. 187916

The petition for Prohibition, Mandamus and Certiorari with Prayer for Temporary Restraining Order and/or
Injunction against the enforcement of Ordinance No. 8187 of former Secretary of Department of
Environment and Natural Resources and then Mayor Atienza, together with other residents and taxpayers of
the City of Manila, also alleges violation of the right to health of the people and the right to a healthful and
balanced environment under Sections 15 and 16 of the Constitution.

Petitioners likewise claim that the Ordinance is in violation of the following health and environment-related
municipal laws, and international conventions and treaties to which the Philippines is a state party: chanrob lesvi rtual lawlib rary

1. Municipal Laws –

(a) Sections 4,52 12,53 1954 and 3055 of Republic Act No. 8749 otherwise known as the Philippine Clean Air
Act;

(b) Environment Code (Presidential Decree No. 1152);

(c) Toxic and Hazardous Wastes Law (Republic Act No. 6969); and

(d) Civil Code provisions on nuisance and human relations;

2. International Conventions and Treaties to which the Philippines is a state party –

a. Section 1 of the Universal Declaration of Human Rights, which states that “[e]veryone has the right to
life, liberty and security of person;”

b. Articles 6,56 2457 and 2758 of the Convention on the Rights of the Child, summarized by the petitioners in
the following manner:
1. the human right to safe and healthy environment[;]

2. human right to the highest attainable standard of health[;]

3. the human right to ecologically sustainable development[;]

4. the human right to an adequate standard of living, including access to safe food and water[;]

5. the human right of the child to live in an environment appropriate for physical and mental development[;
and]

6. the human right to full and equal participation for all persons in environmental decision-making and
development planning, and in shaping decisions and policies affecting one’s community, at the local,
national and international levels.59
Petitioners likewise posit that the title of Ordinance No. 8187 purports to amend or repeal Ordinance No.
8119 when it actually intends to repeal Ordinance No. 8027. According to them, Ordinance No. 8027 was
never mentioned in the title and the body of the new ordinance in violation of Section 26, Article VI of the
1987 Constitution, which provides that every bill passed by Congress shall embrace only one subject which
shall be expressed in the title thereof.

Also pointed out by the petitioners is a specific procedure outlined in Ordinance No. 8119 that should be
observed when amending the zoning ordinance. This is provided for under Section 81 thereof, which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed amendments to the Zoning Ordinance as
reviewed and evaluated by the City Planning and Development Office (CPDO) shall be submitted to the City
Council for approval of the majority of theSangguniang Panlungsod members. The amendments shall be
acceptable and eventually approved: PROVIDED, That there is sufficient evidence and justification for such
proposal; PROVIDED FURTHER, That such proposal is consistent with the development goals, planning
objectives, and strategies of the Manila Comprehensive Land Use Plan. Said amendments shall take effect
immediately upon approval or after thirty (30) days from application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be referred to the Court [E]n Banc, and setting (sic) the case for
oral argument;

2. upon the filing of [the] petition, a temporary restraining order be issued enjoining the respondents from
publishing and posting Manila City Ordinance No. 8187 and/or posting of Manila City Ordinance No. 8187;
and/or taking any steps to implementing (sic) and/or enforce the same and after due hearing, the
temporary restraining order be converted to a permanent injunction;

3. x x x Manila City Ordinance 8187 [be declared] as null and void for being repugnant to the Constitution
and existing municipal laws and international covenants;

4. x x x the respondents [be ordered] to refrain from enforcing and/or implementing Manila City Ordinance
No. 8187;

5. x x x respondent City Mayor Alfredo S. Lim [be enjoined] from issuing any permits (business or
otherwise) to all industries whose allowable uses are anchored under the provisions of Manila Ordinance No.
8187; and

6. x x x respondent Mayor of Manila Alfredo S. Lim [be ordered] to comply with the Order of the Honorable
Court in G.R. 156052 dated February 13, 2008.60
The Respondents’ Position
on the Consolidated Petitions

Respondent former Mayor Lim

In his Memorandum,61 former Mayor Lim, through the City Legal Officer, attacks the petitioners’ lack of legal
standing to sue. He likewise points out that the petitioners failed to observe the principle of hierarchy of
courts.

Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds on the following arguments: cha nrob lesvi rtua llawlib ra ry

On the procedural issues, he contends that: (1) it is the function of the Sangguniang Panlungsod to enact
zoning ordinances, for which reason, it may proceed to amend or repeal Ordinance No. 8119 without prior
referral to the Manila Zoning Board of Adjustment and Appeals (MZBAA) as prescribed under Section 80
(Procedure for Re-Zoning) and the City Planning and Development Office (CPDO) pursuant to Section 81
(Amendments to the Zoning Ordinance) of Ordinance No. 8119, especially when the action actually
originated from the Sangguniang Panlungsod itself; (2) the Sangguniang Panlungsod may, in the later
ordinance, expressly repeal all or part of the zoning ordinance sought to be modified; and (3) the provision
repealing Section 23 of Ordinance No. 8119 is not violative of Section 26, Article VI of the 1987 Constitution,
which requires that every bill must embrace only one subject and that such shall be expressed in the title.

On the substantive issues, he posits that the petitions are based on unfounded fears; that the assailed
ordinance is a valid exercise of police power; that it is consistent with the general welfare clause and public
policy, and is not unreasonable; that it does not run contrary to the Constitution, municipal laws, and
international conventions; and that the petitioners failed to overcome the presumption of validity of the
assailed ordinance.

Respondents Vice-Mayor Domagoso

and the City Councilors who voted
in favor of the assailed ordinance

On 14 September 2012, after the Court gave the respondents several chances to submit their
Memorandum,62 they, through the Secretary of the Sangguniang Panlungsod, prayed that the Court
dispense with the filing thereof.

In their Comment,63 however, respondents offered a position essentially similar to those proffered by former
Mayor Lim. chanrobleslaw

The Intervenors’ Position

on the Consolidated Petitions

On the other hand, the oil companies sought the outright dismissal of the petitions based on alleged
procedural infirmities, among others, incomplete requisites of judicial review, violation of the principle of
hierarchy of courts, improper remedy, submission of a defective verification and certification against forum
shopping, and forum shopping.

As to the substantive issues, they maintain, among others, that the assailed ordinance is constitutional and
valid; that the Sangguniang Panlalawigan is in the best position to determine the needs of its constituents;
that it is a valid exercise of legislative power; that it does not violate health and environment-related
provisions of the Constitution, laws, and international conventions and treaties to which the Philippines is a
party; that the oil depots are not likely targets of terrorists; that the scaling down of the operations in
Pandacan pursuant to the MOU has been followed; and that the people are safe in view of the safety
measures installed in the Pandacan terminals.

Incidentally, in its Manifestation dated 30 November 2010,64 Petron informed the Court that it will “cease
[the] operation of its petroleum product storage facilities”65 in the Pandacan oil terminal not later than
January 2016 on account of the following:
2.01 Environmental issues, many of which are unfounded, continually crop up and tarnish the Company’s
image.

2.02. The location of its Pandacan terminal is continually threatened, and made uncertain preventing long-
term planning, by the changing local government composition. Indeed, the relevant zoning ordinances have
been amended three (3) times, and their validity subjected to litigation.66
Intervening Events

On 28 August 2012, while the Court was awaiting the submission of the Memorandum of respondents Vice-
Mayor Domagoso and the councilors who voted in favor of the assailed Ordinance, theSangguniang
Panlungsod, which composition had already substantially changed, enacted Ordinance No. 828367 entitled
“AN ORDINANCE AMENDING SECTION 2 OF ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE
PETROLEUM REFINERIES AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO HIGH
INTENSITY COMMERCIAL/MIXED USE ZONE (C3/MXD).

The new ordinance essentially amended the assailed ordinance to exclude the area where petroleum
refineries and oil depots are located from the Industrial Zone.

Ordinance No. 8283 thus permits the operation of the industries operating within the Industrial Zone.
However, the oil companies, whose oil depots are located in the High Intensity Commercial/Mixed Use Zone
(C3/MXD), are given until the end of January 2016 within which to relocate their terminals.

Former Mayor Lim, who was then the incumbent mayor, did not support the amendment. Maintaining that
the removal of the oil depots was prejudicial to public welfare, and, on account of the pending cases in the
Supreme Court, he vetoed Ordinance No. 8283 on 11 September 2012.68 c hanrobles law

On 28 November 2012, former Mayor Lim filed a Manifestation informing this Court that theSangguniang
Panlungsod voted to override the veto, and that he, in turn, returned it again with his veto. He likewise
directed the Sangguniang Panlungsod to append his written reasons for his veto of the Ordinance, so that
the same will be forwarded to the President for his consideration in the event that his veto is overridden
again.69
chanrob leslaw

On 11 December 2012, Shell also filed a similar Manifestation.70 chanrob leslaw

Meanwhile, three days after former Mayor Lim vetoed the new ordinance, Atty. Luch R. Gempis, Jr. (Atty.
Gempis), Secretary of the Sangguniang Panlungsod, writing on behalf of respondents Vice-Mayor Domagoso
and the City Councilors of Manila who voted in favor of the assailed Ordinance, finally complied with this
Court’s Resolution dated 17 July 2012 reiterating its earlier directives71 to submit the said respondents’
Memorandum.

In his Compliance/Explanation with Urgent Manifestation72 dated 13 September 2012, Atty. Gempis
explained that it was not his intention to show disrespect to this Court or to delay or prejudice the
disposition of the cases.

According to him, he signed the Comment prepared by respondents Vice-Mayor and the City Councilors only
to attest that the pleading was personally signed by the respondents. He clarified that he was not
designated as the legal counsel of the respondents as, in fact, he was of the impression that, pursuant to
Section 481(b)(3) of the Local Government Code,73 it is the City Legal Officer who is authorized to represent
the local government unit or any official thereof in a litigation. It was for the same reason that he thought
that the filing of a Memorandum may already be dispensed with when the City Legal Officer filed its own on
8 February 2010. He further explained that the Ordinance subject of these cases was passed during the
7th Council (2007-2010); that the composition of the 8th Council (2010-2013) had already changed after the
2010 elections; and that steps were already taken to amend the ordinance again. Hence, he was in a
dilemma as to the position of theSangguniang Panlungsod at the time he received the Court’s Resolution of
31 May 2011.

Atty. Gempis, thus, prayed that the Court dispense with the filing of the required memorandum in view of
the passing of Ordinance No. 8283. chanrob leslaw

Issue

The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No. 156052 declaring
Ordinance No. 8027 constitutional and valid after finding that the presence of the oil terminals in Pandacan
is a threat to the life and security of the people of Manila. From thence, the petitioners enumerated
constitutional provisions, municipal laws and international treaties and conventions on health and
environment protection allegedly violated by the enactment of the assailed Ordinance to support their
position.

The resolution of the present controversy is, thus, confined to the determination of whether or not the
enactment of the assailed Ordinance allowing the continued stay of the oil companies in the depots is,
indeed, invalid and unconstitutional. chanrob leslaw

Our Ruling

We see no reason why Ordinance No. 8187 should not be stricken down insofar as the presence of the oil
depots in Pandacan is concerned. chan robles law

We first rule on the procedural issues raised by the respondents and the oil companies.

At the outset, let it be emphasized that the Court, in G.R. No. 156052, has already pronounced that the
matter of whether or not the oil depots should remain in the Pandacan area is of transcendental importance
to the residents of Manila.74 chanro bleslaw

We may, thus, brush aside procedural infirmities, if any, as we had in the past, and take cognizance of the
cases75 if only to determine if the acts complained of are no longer within the bounds of the Constitution and
the laws in place.76
chan robles law

Put otherwise, there can be no valid objection to this Court’s discretion to waive one or some procedural
requirements if only to remove any impediment to address and resolve the serious constitutional
question77 raised in these petitions of transcendental importance, the same having far-reaching implications
insofar as the safety and general welfare of the residents of Manila, and even its neighboring communities,
are concerned.

Proper Remedy

Respondents and intervenors argue that the petitions should be outrightly dismissed for failure on the part
of the petitioners to properly apply related provisions of the Constitution, the Rules of Court, and/or the
Rules of Procedure for Environmental Cases relative to the appropriate remedy available to them.

To begin with, questioned is the applicability of Rule 6578 of the Rules of Court to assail the validity and
constitutionality of the Ordinance.

… there is no appeal, or any plain,

speedy, and adequate remedy
in the ordinary course of law…

Rule 65 specifically requires that the remedy may be availed of only when “there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law.”79 chanrobleslaw

Shell argues that the petitioners should have sought recourse before the first and second level courts under
the Rules of Procedure for Environmental Cases,80 which govern “the enforcement or violations of
environmental and other related laws, rules and regulations.”81 Petron additionally submits that the most
adequate remedy available to petitioners is to have the assailed ordinance repealed by the Sangguniang
Panlungsod. In the alternative, a local referendum may be had. And, assuming that there were laws
violated, the petitioners may file an action for each alleged violation of law against the particular individuals
that transgressed the law.

It would appear, however, that the remedies identified by the intervenors prove to be inadequate to resolve
the present controversies in their entirety owing to the intricacies of the circumstances herein prevailing.

The scope of the Rules of Procedure for Environmental Cases is embodied in Sec. 2, Part I, Rule I thereof. It
states that the Rules shall govern the procedure in civil, criminal and special civil actions before the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial
Courts, and the Regional Trial Courts involving enforcement or violations of environmental and other related
laws, rules and regulations such as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;

xxxx

(r) R.A. No. 8749, Clean Air Act;

xxxx

(y) Provisions in C.A. No. 141, x x x; and other existing laws that relate to the conservation,
development, preservation, protection and utilization of the environment and natural
resources.82 (Emphasis supplied)
Notably, the aforesaid Rules are limited in scope. While, indeed, there are allegations of violations of
environmental laws in the petitions, these only serve as collateral attacks that would support the other
position of the petitioners – the protection of the right to life, security and safety.

Moreover, it bears emphasis that the promulgation of the said Rules was specifically intended to meet the
following objectives:
SEC. 3. Objectives.—The objectives of these Rules are: chan roblesv irtua llawli bra ry

(a) To protect and advance the constitutional right of the people to a

balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the
enforcement of environmental rights and duties recognized under the
Constitution, existing laws, rules and regulations, and international
agreements;
(c) To introduce and adopt innovations and best practices ensuring the
effective enforcement of remedies and redress for violation of
environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and
judgments in environmental cases.83
Surely, the instant petitions are not within the contemplation of these Rules.

Relative to the position of Petron, it failed to consider that these petitions are already a sequel to G.R. No.
156052, and that there are some issues herein raised that the remedies available at the level of
the Sangguniang Panlungsod could not address. Neither could the filing of an individual action for each law
violated be harmonized with the essence of a “plain, speedy, and adequate” remedy.

From another perspective, Shell finds fault with the petitioners’ direct recourse to this Court when, pursuant
to Section 5, Article VIII of the Constitution, the Supreme Court exercises only appellate jurisdiction over
cases involving the constitutionality or validity of an ordinance.84 Thus:
Section 5. The Supreme Court shall have the following powers: cha nrob lesvi rtua llawlib ra ry

xxxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in: chanro blesvi rt uallawl ibra ry

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. (Emphasis supplied)
To further support its position, it cites the case of Liga ng mga Barangay National v. City Mayor of
Manila,85 where the petitioners sought the nullification of the mayor’s executive order and the council’s
ordinance concerning certain functions of the petitioners that are vested in them by law. There, the Court
held:
Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration
by this Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus,
partakes of the nature of a petition for declaratory relief over which this Court has only appellate, not
original, jurisdiction.86 Section 5, Article VIII of the Constitution provides: x x x

As such, this petition must necessary fail, as this Court does not have original jurisdiction over a petition for
declaratory relief even if only questions of law are involved.87
Assuming that a petition for declaratory relief is the proper remedy, and that the petitions should have been
filed with the Regional Trial Court, we have, time and again, resolved to treat such a petition as one for
prohibition, provided that the case has far-reaching implications and transcendental issues that need to be
resolved,88 as in these present petitions.

On a related issue, we initially found convincing the argument that the petitions should have been filed with
the Regional Trial Court, it having concurrent jurisdiction with this Court over a special civil action for
prohibition, and original jurisdiction over petitions for declaratory relief.

However, as we have repeatedly said, the petitions at bar are of transcendental importance warranting a
relaxation of the doctrine of hierarchy of courts.89 In the case of Jaworski v. PAGCOR,90the Court
ratiocinated:
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. x x x This is in accordance
with the well-entrenched principle that rules of procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
…persons aggrieved thereby…

As to who may file a petition for certiorari, prohibition or mandamus, Petron posits that petitioners are not
among the “persons aggrieved” contemplated under Sections 1 to 3 of Rule 65 of the Rules of Court.

Chevron argues that petitioners, whether as “citizens,” taxpayers,” or legislators,” lack the legal standing to
assail the validity and constitutionality of Ordinance No. 8187. It further claims that petitioners failed to
show that they have suffered any injury and/or threatened injury as a result of the act complained of.91 chan robles law

Shell also points out that the petitions cannot be considered taxpayers’ suit, for then, there should be a
claim that public funds were illegally disbursed and that petitioners have sufficient interest concerning the
prevention of illegal expenditure of public money.92 In G.R. No. 187916, Shell maintains that the petitioners
failed to show their personal interest in the case and/or to establish that they may represent the general
sentiments of the constituents of the City of Manila so as to be treated as a class suit. Even the minors, it
argues, are not numerous and representative enough for the petition to be treated as a class suit. As to the
city councilors who joined the petitioners in assailing the validity of Ordinance No. 8187, Shell posits that
they cannot invoke the ruling in Prof. David v. Pres. Macapagal-Arroyo,93 where the Court held that
legislators may question the constitutionality of a statute, if and when it infringes upon their prerogatives as
legislators, because of the absence of the allegation that the assailed ordinance indeed infringes upon their
prerogatives.
Former Mayor Lim submitted a similar position supported by a number of cases on the concept oflocus
standi,94 the direct injury test,95 an outline of the stringent requirements of legal standing when suing as a
citizen,96 as a taxpayer,97 as a legislator and in cases where class suits are filed in behalf of all citizens.98 cha nrob leslaw

Their arguments are misplaced.

In G.R. No. 156052, we ruled that the petitioners in that case have a legal right to seek the enforcement of
Ordinance No. 8027 because the subject of the petition concerns a public right, and they, as residents of
Manila, have a direct interest in the implementation of the ordinances of the city. Thus:
To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance,
petitioner SJS states that it is a political party registered with the Commission on Elections and has its
offices in Manila. It claims to have many members who are residents of Manila. The other petitioners,
Cabigao and Tumbokon, are allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when amandamus proceeding
concerns a public right and its object is to compel a public duty, the people who are interested in the
execution of the laws are regarded as the real parties in interest and they need not show any specific
interest. Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the city’s
ordinances.99x x x (Citations omitted)

No different are herein petitioners who seek to prohibit the enforcement of the assailed ordinance, and who
deal with the same subject matter that concerns a public right. Necessarily, the people who are interested in
the nullification of such an ordinance are themselves the real parties in interest, for which reason, they are
no longer required to show any specific interest therein. Moreover, it is worth mentioning that SJS, now
represented by SJS Officer Alcantara, has been recognized by the Court in G.R. No. 156052 to have legal
standing to sue in connection with the same subject matter herein considered. The rest of the petitioners
are residents of Manila. Hence, all of them have a direct interest in the prohibition proceedings against the
enforcement of the assailed ordinance.

In the case of Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS,
INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM),100 involving a petition
for certiorari and prohibition to permanently enjoin PSALM from selling the Angat Hydro-Electric Power Plant
(AHEPP) to Korea Water Resources Corporation (K-Water), the Court ruled: chanRoble svi rtual Lawli bra ry

“Legal standing” or locus standi has been defined as a personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged, alleging more than a generalized grievance. x x x This Court, however, has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental
significance to the people, as when the issues raised are of paramount importance to the public. Thus,
when the proceeding involves the assertion of a public right, the mere fact that the petitioner is a
citizen satisfies the requirement of personal interest.

There can be no doubt that the matter of ensuring adequate water supply for domestic use is one of
paramount importance to the public. That the continued availability of potable water in Metro Manila might
be compromised if PSALM proceeds with the privatization of the hydroelectric power plant in the Angat Dam
Complex confers upon petitioners such personal stake in the resolution of legal issues in a petition to stop its
implementation.101 (Emphasis supplied; citations omitted)

In like manner, the preservation of the life, security and safety of the people is indisputably a right of
utmost importance to the public. Certainly, the petitioners, as residents of Manila, have the required
personal interest to seek relief from this Court to protect such right.

… in excess of its or his jurisdiction,

or with grave abuse of discretion
amounting to lack or excess of jurisdiction…

Petron takes issue with the alleged failure of the petitioners to establish the facts with certainty that would
show that the acts of the respondents fall within the parameters of the grave abuse of discretion clause
settled by jurisprudence, to wit:chanRob lesvi rtua lLawl ibra ry

x x x “[G]rave abuse of discretion” means such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross
as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act
all in contemplation of law.102

It is pointless to discuss the matter at length in these instant cases of transcendental importance in view of
the Court’s pronouncement, in Magallona v. Ermita.103 There it held that the writs of certiorariand prohibition
are proper remedies to test the constitutionality of statutes, notwithstanding the following defects: cha nRoblesvi rtua lLaw lib rary

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of
the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial
powers on the part of respondents and resulting prejudice on the part of petitioners.

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as
proper remedial vehicles to test the constitutionality of statutes, and indeed, of acts of other branches
of government. Issues of constitutional import x x x carry such relevance in the life of this nation
that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the
issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute
sought to be reviewed here is one such law.104 (Emphasis supplied; citations omitted)

Requisites of judicial review

For a valid exercise of the power of judicial review, the following requisites shall concur: (1) the existence of
a legal controversy; (2) legal standing to sue of the party raising the constitutional question; (3) a plea that
judicial review be exercised at the earliest opportunity; and (4) the constitutional question is the lis mota of
the case.105chanrob leslaw

Only the first two requisites are put in issue in these cases.

On the matter of the existence of a legal controversy, we reject the contention that the petitions consist of
bare allegations based on speculations, surmises, conjectures and hypothetical grounds.

The Court declared Ordinance No. 8027 valid and constitutional and ordered its implementation. With the
passing of the new ordinance containing the contrary provisions, it cannot be any clearer that here lies an
actual case or controversy for judicial review. The allegation on this, alone, is sufficient for the purpose.

The second requisite has already been exhaustively discussed.

Proof of identification required in the notarization

of the verification and certification against forum
shopping in G.R. No. 187916

At the bottom of the Verification and Certification against Forum Shopping of the petition in G.R. No. 187916
is the statement of the notary public to the effect that the affiant, in his presence and after presenting “an
integrally competent proof of identification with signature and photograph,”106 signed the document under
oath.

Citing Sec. 163 of the Local Government Code,107 which provides that an individual acknowledging any
document before a notary public shall present his Community Tax Certificate (CTC), Chevron posits that the
petitioner’s failure to present his CTC rendered the petition fatally defective warranting the outright
dismissal of the petition.

We disagree.
The verification and certification against forum shopping are governed specifically by Sections 4 and 5, Rule
7 of the Rules of Court.

Section 4 provides that a pleading, when required to be verified, shall be treated as an unsigned pleading if
it lacks a proper verification while Section 5 requires that the certification to be executed by the plaintiff or
principal party be under oath.

These sections, in turn, should be read together with Sections 6 and 12, Rule 2 of the 2004 Rules on
Notarial Practice.

Section 6108 of the latter Rules, specifically, likewise provides that any competent evidence of identity
specified under Section 12 thereof may now be presented before the notary public, to wit: chanRob lesvi rtua lLawl ibra ry

SEC. 12. Competent Evidence of Identity. - The phrase “competent evidence of identity” refers to the
identification of an individual based on:chan roblesv irtuallawl ib rary

(a) at least one current identification document issued by an official agency

bearing the photograph and signature of the individual, such as but not
limited to passport, driver’s license, Professional Regulations Commission
ID, National Bureau of Investigation clearance, police clearance, postal
ID, voter’s ID, Barangay certification, Government Service and
Insurance System (GSIS) e-card, Social Security System (SSS) card,
Philhealth card, senior citizen card, Overseas Workers Welfare
Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of
registration/immigrant certificate of registration, government office ID,
certification from the National Council for the Welfare of Disable Persons
(NCWDP), Department of Social Welfare and Development (DSWD)
certification; or
(b) x x x.109

Forum shopping

Shell contends that the petitioners in G.R. No. 187836 violated the rule against forum shopping allegedly
because all the elements thereof are present in relation to G.R. No. 156052, to wit: chanroblesv irt uallawl ibra ry

1. “identity of parties, or at least such parties who represent the same interests in both actions” –

According to Shell, the interest of petitioner SJS in G.R. No. 156052 and the officers of SJS in G.R. No.
187836 are clearly the same. Moreover, both actions implead the incumbent mayor of the City of Manila as
respondent. Both then respondent Mayor Atienza in G.R. No. 156052 and respondent former Mayor Lim in
G.R. No. 187836 are sued in their capacity as Manila mayor.

2. “identity of rights asserted and relief prayed for, the relief being founded on the same fact(s)” –

Shell contends that, in both actions, petitioners assert the same rights to health and to a balanced and
healthful ecology relative to the fate of the Pandacan terminal, and seek essentially the same reliefs, that is,
the removal of the oil depots from the present site.

3. “the identity of the two preceding particulars is such that any judgment rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the other” –

Relative to the filing of the Manifestation and Motion to: a) Stop the City Council of Manila from further
hearing the amending ordinance to Ordinance No. 8027 x x x (Manifestation and Motion) and Very Urgent
Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 [now Ordinance No.
8187] and to Cite Him for Contempt if He Would Do So (Urgent Motion) both in G.R. No. 156052, Shell
points out the possibility that the Court would have rendered conflicting rulings “on cases involving the same
facts, parties, issues and reliefs prayed for.”110 chan roble slaw

We are not persuaded.

In Spouses Cruz v. Spouses Caraos,111 the Court expounded on the nature of forum shopping. Thus: chanRoblesvi rtua lLawl ibra ry

Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one
forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special
civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on
the same cause on the supposition that one or the other court would make a favorable disposition. The
established rule is that for forum shopping to exist, both actions must involve the same transactions, same
essential facts and circumstances and must raise identical causes of actions, subject matter, and issues. x x
x112 (Citations omitted)

It bears to stress that the present petitions were initially filed, not to secure a judgment adverse to the first
decision, but, precisely, to enforce the earlier ruling to relocate the oil depots from the Pandacan area.

As to the matter of the denial of the petitioners’ Manifestation and Urgent Motion in G.R. No. 156052, which
were both incidental to the enforcement of the decision favorable to them brought about by the intervening
events after the judgment had become final and executory, and which involve the same Ordinance assailed
in these petitions, we so hold that the filing of the instant petitions is not barred byres judicata.

In the same case of Spouses Cruz v. Spouses Caraos involving the re-filing of a complaint, which had been
earlier dismissed without qualification that the dismissal was with prejudice, and which had not been decided
on the merits, the Court declared that such re-filing did not amount to forum shopping. It ratiocinated: chanRoblesvi rtua lLawl ibra ry

It is not controverted that the allegations of the respective complaints in both Civil Case No. 95-1387 and
Civil Case No. 96-0225 are similarly worded, and are identical in all relevant details, including typographical
errors, except for the additional allegations in support of respondents’ prayer for the issuance of preliminary
injunction in Civil Case No. 95-1387. It is similarly not disputed that both actions involve the same
transactions; same essential facts and circumstances; and raise identical causes of actions, subject matter,
and issues. cralawred

xxxx

x x x The dismissal of Civil Case No. 95-1387 was without prejudice. Indeed, the Order dated 20 November
1995, dismissing Civil Case No. 95-1387 was an unqualified dismissal. More significantly, its dismissal was
not based on grounds under paragraphs (f), (h), and (i) of Section 1 of Rule 16 of the Rules of Court, which
dismissal shall bar the refiling of the same action or claim as crystallized in Section 5 of Rule 16 thereof,
thus:chanRoblesvi rt ualLaw lib rary

SEC. 5. Effect of dismissal. – Subject to the right of appeal, an order granting a motion to dismiss based on
paragraphs (f), (h), and (i) of section 1 hereof shall bar the refiling of the same action or claim.

From the foregoing, it is clear that dismissals under paragraphs (f), (h), and (i) of Section 1 of Rule 16 of
the Rules of Court constitute res judicata, to wit: chanRoblesv irt ual Lawlib rary
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

xxxx

(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or
otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of
frauds.

Res judicata or bar by prior judgment is a doctrine which holds that a matter that has been adjudicated by a
court of competent jurisdiction must be deemed to have been finally and conclusively settled if it arises in
any subsequent litigation between the same parties and for the same cause. Res judicata exists when the
following elements are present: (a) the former judgment must be final; (b) the court which rendered
judgment had jurisdiction over the parties and the subject matter; (3) it must be a judgment on the
merits; and (d) and there must be, between the first and second actions, identity of parties, subject
matter, and cause of action.113 (Emphasis supplied; citations omitted)

Here, it should be noted that this Court denied the said Manifestation and Urgent Motion, and refused to act
on the succeeding pleadings, for being moot.114 Clearly, the merits of the motion were not considered by the
Court. The following disquisition of the Court in Spouses Cruz v. Spouses Caraos is further enlightening: chanRob lesvi rtua lLawl ibra ry

The judgment of dismissal in Civil Case No. 95-1387 does not constitute res judicata to sufficiently bar the
refiling thereof in Civil Case No. 96-0225. As earlier underscored, the dismissal was one without prejudice.
Verily, it was not a judgment on the merits. It bears reiterating that a judgment on the merits is one
rendered after a determination of which party is right, as distinguished from a judgment
rendered upon some preliminary or formal or merely technical point. The dismissal of the case
without prejudice indicates the absence of a decision on the merits and leaves the parties free to litigate the
matter in a subsequent action as though the dismissed action had not been commenced.115 (Emphasis
supplied; citations omitted)

Considering that there is definitely no forum shopping in the instant cases, we need not discuss in detail the
elements of forum shopping. chanrob leslaw

II

The Local Government Code of 1991 expressly provides that the Sangguniang Panlungsod is vested with the
power to “reclassify land within the jurisdiction of the city”116 subject to the pertinent provisions of the Code.
It is also settled that an ordinance may be modified or repealed by another ordinance.117 These have been
properly applied in G.R. No. 156052, where the Court upheld the position of the Sangguniang Panlungsod to
reclassify the land subject of the Ordinance,118 and declared that the mayor has the duty to enforce
Ordinance No. 8027, provided that it has not been repealed by the Sangguniang Panlungsod or otherwise
annulled by the courts.119 In the same case, the Court also used the principle that the Sanguniang
Panlungsod is in the best position to determine the needs of its constituents120 – that the removal of the oil
depots from the Pandacan area is necessary “to protect the residents of Manila from catastrophic
devastation in case of a terrorist attack on the Pandacan Terminals.”121 chanrob leslaw

Do all these principles equally apply to the cases at bar involving the same subject matter to justify the
contrary provisions of the assailed Ordinance?

We answer in the negative.

We summarize the position of the Sangguniang Panlungsod on the matter subject of these petitions. In
2001, the Sanggunian found the relocation of the Pandacan oil depots necessary. Hence, the enactment of
Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already changed, Ordinance No. 8187 was passed in
favor of the retention of the oil depots. In 2012, again when some of the previous members were no longer
re-elected, but with the Vice-Mayor still holding the same seat, and pending the resolution of these
petitions, Ordinance No. 8283 was enacted to give the oil depots until the end of January 2016 within which
to transfer to another site. Former Mayor Lim stood his ground and vetoed the last ordinance.

In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was enacted to alleviate
the economic condition of its constituents.122 chanrob leslaw

Expressing the same position, former Mayor Lim even went to the extent of detailing the steps123 he took
prior to the signing of the Ordinance, if only to show his honest intention to make the right decision.

The fact remains, however, that notwithstanding that the conditions with respect to the operations of the oil
depots existing prior to the enactment of Ordinance No. 8027 do not substantially differ to this day, as
would later be discussed, the position of the Sangguniang Panlungsod on the matter has thrice changed,
largely depending on the new composition of the council and/or political affiliations. The foregoing, thus,
shows that its determination of the “general welfare” of the city does not after all gear towards the
protection of the people in its true sense and meaning, but is, one way or another, dependent on the
personal preference of the members who sit in the council as to which particular sector among its
constituents it wishes to favor.

Now that the City of Manila, through the mayor and the city councilors, has changed its view on the matter,
favoring the city’s economic-related benefits, through the continued stay of the oil terminals, over the
protection of the very lives and safety of its constituents, it is imperative for this Court to make a final
determination on the basis of the facts on the table as to which specific right of the inhabitants of Manila
should prevail. For, in this present controversy, history reveals that there is truly no such thing as “the will
of Manila” insofar as the general welfare of the people is concerned.

If in sacrilege, in free translation of Angara124 by Justice Laurel, we say when the judiciary mediates we do
not in reality nullify or invalidate an act of the Manila Sangguniang Panlungsod, but only asserts the solemn
and sacred obligation assigned to the Court by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. chanrobles law

III

The measures taken by the intervenors to lend support to their position that Manila is now safe despite the
presence of the oil terminals remain ineffective. These have not completely removed the threat to the lives
of the inhabitants of Manila.

In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was declared as a guarantee for
the protection of the constitutional right to life of the residents of Manila. There, the Court said that the
enactment of the said ordinance was a valid exercise of police power with the concurrence of the two
requisites: a lawful subject – “to safeguard the rights to life, security and safety of all the inhabitants of
Manila;”125 and a lawful method – the enactment of Ordinance No. 8027 reclassifying the land use from
industrial to commercial, which effectively ends the continued stay of the oil depots in Pandacan.126 chanrobles law

In the present petitions, the respondents and the oil companies plead that the Pandacan Terminal has never
been one of the targets of terrorist attacks;127 that the petitions were based on unfounded fears and mere
conjectures;128 and that the possibility that it would be picked by the terrorists is nil given the security
measures installed thereat.129chan roble slaw

The intervenors went on to identify the measures taken to ensure the safety of the people even with the
presence of the Pandacan Terminals. Thus: chanrob lesvi rtual lawlib rary

1. Chevron claims that it, together with Shell and Petron, continues to enhance the safety and security
features of the terminals. They likewise adopt fire and product spill prevention measures in accordance with
the local standards set by the Bureau of Fire Protection, among others, and with the international standards
of the American Petroleum Industry (“API”) and the National Fire Prevention and Safety Association
(“NFPSA”); that since 1914, the oil depots had not experienced “any incident beyond the ordinary risks
and expectations”130 of the residents of Manila; and that it received a passing grade on the safety
measures they installed in the facilities from the representatives of the City of Manila who conducted an
ocular inspection on 22 May 2009; and

2. Referring to the old MOU entered into between the City of Manila and the DOE, on the one hand, and the
oil companies, on the other, where the parties thereto conceded and acknowledged that the scale-down
option for the Pandacan Terminal operations is the best alternative to the relocation of the terminals, Shell
enumerates the steps taken to scale down its operations.

As to the number of main fuel tanks, the entire Pandacan Terminal has already decommissioned twenty-
eight out of sixty-four tanks. Speaking for Shell alone, its LPG Spheres, which it claims is the only product
that may cause explosion, was part of those decommissioned, thereby allegedly removing the danger of
explosion. Safety buffer zones and linear/green parks were likewise created to separate the terminal from
the nearest residential area. Shell’s portion of the oil depot is likewise allegedly equipped with the latest
technology to ensure air-quality control and water-quality control, and to prevent and cope with possible oil
spills with a crisis management plan in place in the event that an oil spill occurs. Finally, Shell claims that
the recommendations of EQE International in its Quantitative Risk Assessment (QRA) study, which it says is
one of the leading independent risk assessment providers in the world and largest risk management
consultancy, were sufficiently complied with; and that, on its own initiative, it adopted additional measures
for the purpose, for which reason, “the individual risk level resulting from any incident occurring from the
Pandacan Terminal, per the QRA study, is twenty (20) times lower compared to the individual risk level
of an average working or domestic environment.”131 chan robles law

We are not persuaded.

The issue of whether or not the Pandacan Terminal is not a likely target of terrorist attacks has already been
passed upon in G. R. No. 156052. Based on the assessment of the Committee on Housing, Resettlement and
Urban Development of the City of Manila and the then position of theSangguniang Panlungsod,132 the Court
was convinced that the threat of terrorism is imminent. It remains so convinced.

Even assuming that the respondents and intervenors were correct, the very nature of the depots where
millions of liters of highly flammable and highly volatile products, regardless of whether or not the
composition may cause explosions, has no place in a densely populated area. Surely, any untoward incident
in the oil depots, be it related to terrorism of whatever origin or otherwise, would definitely cause not only
destruction to properties within and among the neighboring communities but certainly mass deaths and
injuries.

With regard to the scaling down of the operations in the Pandacan Terminals, which the oil companies
continue to insist to have been validated and recognized by the MOU, the Court, in G.R. No. 156052, has
already put this issue to rest. It specifically declared that even assuming that the terms of the MOU and
Ordinance No. 8027 were inconsistent, the resolutions ratifying the MOU gave it full force and effect only
until 30 April 2003.133
chan roble slaw

The steps taken by the oil companies, therefore, remain insufficient to convince the Court that the dangers
posed by the presence of the terminals in a thickly populated area have already beencompletely removed.

For, given that the threat sought to be prevented may strike at one point or another, no matter how remote
it is as perceived by one or some, we cannot allow the right to life to be dependent on the unlikelihood of an
event. Statistics and theories of probability have no place in situations where the very life of not just an
individual but of residents of big neighborhoods is at stake. chanro bleslaw

IV

It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we saw in and made
us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187, compels the affirmance of our
Decision in G.R. No. 156052.

In striking down the contrary provisions of the assailed Ordinance relative to the continued stay of the oil
depots, we follow the same line of reasoning used in G.R. No. 156052, to wit: chanRoblesvi rtua lLawl ibra ry

Ordinance No. 8027 was enacted “for the purpose of promoting sound urban planning, ensuring health,
public safety and general welfare” of the residents of Manila. TheSanggunian was impelled to take measures
to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan
Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from
industrial to commercial.

The following facts were found by the Committee on Housing, Resettlement and Urban Development of the
City of Manila which recommended the approval of the ordinance:

(1) the depot facilities contained 313.5 million liters of highly flammable and
highly volatile products which include petroleum gas, liquefied petroleum
gas, aviation fuel, diesel, gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacañang Palace;
and
(4) in case of an explosion or conflagration in the depot, the fire could
spread to the neighboring communities.

The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of
Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a representation of
western interests which means that it is a terrorist target. As long as it (sic) there is such a target in their
midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to
dissipate the threat. According to respondent: chanRoble svi rtual Lawli bra ry

Such a public need became apparent after the 9/11 incident which showed that what was perceived to be
impossible to happen, to the most powerful country in the world at that, is actually possible. The destruction
of property and the loss of thousands of lives on that fateful day became the impetus for a public need. In
the aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it became imperative for
governments to take measures to combat their effects.

xxxx

Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without a
doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the
inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the
relocation of the terminals. Their power to chart and control their own destiny and preserve their lives and
safety should not be curtailed by the intervenors’ warnings of doomsday scenarios and threats of economic
disorder if the ordinance is enforced.134
The same best interest of the public guides the present decision. The Pandacan oil depot remains a terrorist
target even if the contents have been lessened. In the absence of any convincing reason to persuade this
Court that the life, security and safety of the inhabitants of Manila are no longer put at risk by the presence
of the oil depots, we hold that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and
unconstitutional.

There is, therefore, no need to resolve the rest of the issues.

Neither is it necessary to discuss at length the test of police power against the assailed ordinance. Suffice it
to state that the objective adopted by the Sangguniang Panlungsod to promote the constituents’ general
welfare in terms of economic benefits cannot override the very basic rights to life, security and safety of the
people.

In. G.R. No. 156052, the Court explained: c hanRoblesv irt ual Lawlib rary

Essentially, the oil companies are fighting for their right to property. They allege that they stand to lose
billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally protected rights,
the right to life enjoys precedence over the right to property. The reason is obvious: life is irreplaceable,
property is not. When the state or LGU’s exercise of police power clashes with a few individuals’ right to
property, the former should prevail.135

We thus conclude with the very final words in G.R. No. 156052: chanRob lesvi rtua lLawl ibra ry

On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000 liters of
diesel exploded in the middle of the street a short distance from the exit gate of the Pandacan Terminals,
causing death, extensive damage and a frightening conflagration in the vicinity of the incident. Need we say
anthing about what will happen if it is the estimated 162 to 211 million liters [or whatever is left of the 26
tanks] of petroleum products in the terminal complex will blow up?136

As in the prequel case, we note that as early as October 2001, the oil companies signed a MOA with the DOE
obliging themselves to: cha nRoblesv irt ual Lawlib rary

... undertake a comprehensive and comparative study ... [which] shall include the preparation of a Master
Plan, whose aim is to determine the scope and timing of the feasible location of the Pandacan oil terminals
and all associated facilities and infrastructure including government support essential for the relocation such
as the necessary transportation infrastructure, land and right of way acquisition, resettlement of displaced
residents and environmental and social acceptability which shall be based on mutual benefit of the Parties
and the public.

such that:chanRoblesvirt ual Lawlib rary

Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they cannot
feign unreadiness considering that they had years to prepare for this eventuality.137

On the matter of the details of the relocation, the Court gave the oil companies the following time frames for
compliance: chanRob lesvi rtua lLawl ibra ry

To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors Chevron
Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within a non-extendible
period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the comprehensive plan
and relocation schedule which have allegedly been prepared. The presiding judge of Manila RTC, Branch 39
will monitor the strict enforcement of this resolution.138
The periods were given in the Decision in G.R. No. 156052 which became final on 23 April 2009. Five years
have passed, since then. The years of non-compliance may be excused by the swing of local legislative
leads. We now stay the sway and begin a final count.

A comprehensive and well-coordinated plan within a specific time-frame shall, therefore, be observed in the
relocation of the Pandacan Terminals. The oil companies shall be given a fresh non-extendible period of
forty-five (45) days from notice within which to submit to the Regional Trial Court, Branch 39, Manila an
updated comprehensive plan and relocation schedule. The relocation, in turn, shall be completed not later
than six months from the date of their submission.

Finally, let it be underscored that after the last Manifestation filed by Shell informing this Court that
respondent former Mayor Lim vetoed Ordinance No. 8283 for the second time, and was anticipating its
referral to the President for the latter’s consideration, nothing was heard from any of the parties until the
present petitions as to the status of the approval or disapproval of the said ordinance. As it is, the fate of
the Pandacan Terminals remains dependent on this final disposition of these cases. chanrobles law

VI

On the matter of the failure of Atty. Gempis to immediately comply with the directives of this Court to file
the Memorandum for the Vice-Mayor and the city councilors who voted in favor of the assailed Ordinance,
the records do not bear proof that he received a copy of any of the resolutions pertaining to the filing of the
Memorandum.

A narration of the events from his end would show, however, that he was aware of the directive issued in
2009 when he stated that “when the City Legal Officer filed its Memorandum dated 8 February 2010, [he]
thought the filing of a Memorandum for the other respondent city officials could be dispensed with.”139 There
was also a categorical admission that he received the later Resolution of 31 May 2011 but that he could not
prepare a Memorandum defending the position of respondents vice-mayor and the city councilors who voted
in favor of Ordinance No. 8187 in view of the on-going drafting of Ordinance No. 8283, which would change
the position of the Sanggunian, if subsequently approved.

The reasons he submitted are not impressed with merit.

That he was not officially designated as the counsel for the vice-mayor and the city councilors is beside the
point. As an officer of the court, he cannot feign ignorance of the fact that “a resolution of this Court is not a
mere request but an order which should be complied with promptly and completely.”140 As early as 2009, he
should have immediately responded and filed a Manifestation and therein set forth his reasons why he
cannot represent the vice-mayor and the city councilors. And, even assuming that the 31 May 2011
Resolution was the first directive he personally received, he had no valid excuse for disregarding the same.
Worse, the Court had to issue a show cause order before he finally heeded.

Atty. Gempis should “strive harder to live up to his duties of observing and maintaining the respect due to
the courts, respect for law and for legal processes and of upholding the integrity and dignity of the legal
profession in order to perform his responsibilities as a lawyer effectively.”141 ch anro bleslaw

In Sibulo v. Ilagan,142 which involves a lawyer’s repeated failure to comply with the directives of the Court,
the penalty recommended by the Integrated Bar of the Philippines was reduced from suspension to
reprimand and a warning. The Court ratiocinated: chanRoblesvi rtua lLawl ibra ry

Considering, however, that respondent was absolved of the administrative charge against him and is being
taken to task for his intransigence and lack of respect, the Court finds that the penalty of suspension would
not be warranted under the circumstances. cralawred

xxxx

To the Court’s mind, a reprimand and a warning are sufficient sanctions for respondent’s disrespectful
actuations directed against the Court and the IBP. The imposition of these sanctions in the present case
would be more consistent with the avowed purpose of disciplinary case, which is “not so much to punish the
individual attorney as to protect the dispensation of justice by sheltering the judiciary and the public from
the misconduct or inefficiency of officers of the court.”143

We consider the participation of Atty. Gempis in this case and opt to be lenient even as we reiterate the
objective of protecting the dispensation of justice. We deem it sufficient to remind Atty. Gempis to be more
mindful of his duty as a lawyer towards the Court.

WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby

declaredUNCONSTITUTIONAL and INVALID with respect to the continued stay of the Pandacan Oil
Terminals.

The incumbent mayor of the City of Manila is hereby ordered to CEASE and DESIST from enforcing
Ordinance No. 8187. In coordination with the appropriate government agencies and the parties herein
involved, he is further ordered to oversee the relocation and transfer of the oil terminals out of the Pandacan
area.

As likewise required in G.R. No. 156052, the intervenors Chevron Philippines, Inc., Pilipinas Shell Petroleum
Corporation, and Petron Corporation shall, within a non-extendible period of forty-five (45) days, submit to
the Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation schedule, which
relocation shall be completed not later than six (6) months from the date the required documents are
submitted. The presiding judge of Branch 39 shall monitor the strict enforcement of this Decision.

For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr., Secretary of theSangguniang
Panlungsod, is REMINDED of his duties towards the Court and WARNED that a repetition of an act similar
to that here committed shall be dealt with more severely.

SO ORDERED. cr