1

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU

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

Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D.

Asis for petitioners.

The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:P

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

2

Be it ordained by the Municipal Board of the City of Butuan in

session assembled, that:

SECTION 1It 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 2Any 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 3This 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
3

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

4

(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.
5

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
6

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
7

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
8

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
9

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
10

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
11

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
12

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
13

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

Grio-Aquino, JJ., concur.
14

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD,

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

Gamboa & Hofilea Law Office for petitioners.

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An

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

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and

the municipalities of Calatrava, Taboso, Escalante, Sagay,
15

Manapla, Victorias, E.R. Magalona; and Salvador Benedicto,

all in the northern portion of the Island of Negros, are hereby
separated from the province to be known as the Province of
Negros del Norte.

SEC. 2. The boundaries of the new province shall be the

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

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

the City of Cadiz.

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

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

SEC. 5. The Commission on Elections shall conduct and

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

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp.

23-24)

Petitioners contend that Batas Pambansa Blg. 885 is

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

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

divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in
the local government code, and subject to the approval by a
majority of the votes in a plebiscite in the unit or units affected.
16

Section 197 of the Local Government Code enumerates the

conditions which must exist to provide the legal basis for the
creation of a provincial unit and these requisites are:

SEC. 197. Requisites for Creation. A province may be created

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

The average estimated annual income shall include the

income alloted for both the general and infrastructural funds,
exclusive of trust funds, transfers and nonrecurring income.
(Rollo, p. 6)

Due to the constraints brought about by the supervening

Christmas holidays during which the Court was in recess and
unable to timely consider the petition, a supplemental pleading
was filed by petitioners on January 4, 1986, averring therein
that the plebiscite sought to be restrained by them was held on
January 3, 1986 as scheduled but that there are still serious
issues raised in the instant case affecting the legality,
constitutionality and validity of such exercise which should
properly be passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the

territory of Negros del Nrte, namely: the Cities of Silay, Cadiz,
and San Carlos, and the municipalities of Calatrava, Taboso,
Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don
Salvador Benedicto. Because of the exclusions of the voters
from the rest of the province of Negros Occidental, petitioners
found need to change the prayer of their petition "to the end
that the constitutional issues which they have raised in the
action will be ventilated and given final resolution.'"At the same
time, they asked that the effects of the plebiscite which they
sought to stop be suspended until the Supreme Court shall
17

have rendered its decision on the very fundamental and

far-reaching questions that petitioners have brought out.

Acknowledging in their supplemental petition that supervening

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

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

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

Finding that the exclusion and non-participation of the voters of

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

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

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

Petitioners further prayed that the respondent COMELEC hold

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

During the pendency of this case, a motion that he be allowed

to appear as amicus curiae in this case (dated December 27,
1985 and filed with the Court on January 2, 1986) was
submitted by former Senator Ambrosio Padilla. Said motion
was granted in Our resolution of January 2, 1986.
18

Acting on the petition, as well as on the supplemental petition

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

Respondents argue that the remaining cities and municipalities

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

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

the Court is allowed considerable leeway. There is indeed an
element of ambiguity in the use of the expression 'unit or units
affected'. It is plausible to assert as petitioners do that when
certain Barangays are separated from a parent municipality to
form a new one, all the voters therein are affected. It is much
more persuasive, however, to contend as respondents do that
19

the acceptable construction is for those voters, who are not

from the barangays to be separated, should be excluded in the
plebiscite.

2. For one thing, it is in accordance with the settled doctrine

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

3. ... Adherence to such philosophy compels the conclusion

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

Respondents submit that said ruling in the aforecited case

applies equally with force in the case at bar. Respondents also
maintain that the requisites under the Local Government Code
(P.D. 337) for the creation of the new province of Negros del
Norte have all been duly complied with, Respondents discredit
petitioners' allegations that the requisite area of 3,500 square
kilometers as so prescribed in the Local Government Code for
a new province to be created has not been satisfied.
Petitioners insist that the area which would comprise the new
20

province of Negros del Norte, would only be about 2,856.56

square kilometers and which evidently would be lesser than
the minimum area prescribed by the governing statute.
Respondents, in this regard, point out and stress that Section 2
of Batas Pambansa Blg. 885 creating said new province plainly
declares that the territorial boundaries of Negros del Norte
comprise an area of 4,019.95 square kilometers, more or less.

As a final argument, respondents insist that instant petition has

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

In resolving this case, it will be useful to note and emphasize

the facts which appear to be agreed to by the parties herein or
stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer

of the Province of Negros Occidental has not disbursed, nor
was required to disburse any public funds in connection with
the plebiscite held on January 3, 1986 as so disclosed in the
Comment to the Petition filed by the respondent Provincial
Treasurer of Negros Occidental dated January 20, 1986 (Rollo,
pp. 36-37). Thus, the prayer of the petitioners that said
Provincial Treasurer be directed by this Court to desist from
ordering the release of any public funds on account of such
plebiscite should not longer deserve further consideration.
21

Secondly, in Parliamentary Bill No. 3644 which led to the

enactment of Batas Pambansa Blg. 885 and the creation of the
new Province of Negros del Norte, it expressly declared in Sec.
2 of the aforementioned Parliamentary Bill, the following:

SEC. 2. The boundaries of the new province shall be the

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

However, when said Parliamentary Bill No. 3644 was very

quickly enacted into Batas Pambansa Blg. 885, the boundaries
of the new Province of Negros del Norte were defined therein
and its boundaries then stated to be as follows:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and

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

SEC. 1. The boundaries of the new province shall be the

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

Equally accepted by the parties is the fact that under the

certification issued by Provincial Treasurer Julian L. Ramirez of
the Province of Negros Occidental, dated July 16, 1985, it was
therein certified as follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of

Negros Occidental have the land area as indicated hereunder
22

based on the Special Report No. 3, Philippines 1980,

Population, Land Area and Density: 1970, 1975 and 1980 by
the National Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

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

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

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

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

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

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

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

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

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

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

11. Don Salvador Benedicto.................................... (not

available)

This certification is issued upon the request of Dr. Patricio Y.

Tan for whatever purpose it may serve him.

(SGD.) JULIAN L. RAMIREZ

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

Although in the above certification it is stated that the land area

of the relatively new municipality of Don Salvador Benedicto is
not available, it is an uncontradicted fact that the area
comprising Don Salvador municipality, one of the component
units of the new province, was derived from the City of San
23

Carlos and from the Municipality of Calatrava, Negros

Occidental, and added thereto was a portion of about
one-fourth the land area of the town of Murcia, Negros
Occidental. It is significant to note the uncontroverted
submission of petitioners that the total land area of the entire
municipality of Murcia, Negros Occidental is only 322.9 square
kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land
area of Murcia that was added to the portions derived from the
land area of Calatrava, Negros Occidental and San Carlos City
(Negros Occidental) would constitute, therefore, only 80.2
square kilometers. This area of 80.2 square kilometers if then
added to 2,685.2 square kilometers, representing the total land
area of the Cities of Silay, San Carlos and Cadiz and the
Municipalities of E.R. Magalona, Victorias, Manapla, Sagay,
Escalante, Taboso and Calatrava, will result in approximately
an area of only 2,765.4 square kilometers using as basis the
Special Report, Philippines 1980, Population, Land Area and
Density: 1970, 1975 and 1980 of the National Census and
Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect

to the allegations of petitioners that the original provision in the
draft legislation, Parliamentary Bill No. 3644, reads:

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

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

However, when Batas Pambansa Blg. 885 was enacted, there

was a significant change in the above provision. The statute,
as modified, provides that the requisite plebiscite "shall be
conducted in the proposed new province which are the areas
affected."

It is this legislative determination limiting the plebiscite

exclusively to the cities and towns which would comprise the
new province that is assailed by the petitioners as violative of
the provisions of our Constitution. Petitioners submit that Sec.
24

3, ART XI thereof, contemplates a plebiscite that would be held

in the unit or units affected by the creation of the new province
as a result of the consequent division of and substantial
alteration of the boundaries of the existing province. In this
instance, the voters in the remaining areas of the province of
Negros Occidental should have been allowed to participate in
the questioned plebiscite.

Considering that the legality of the plebiscite itself is

challenged for non-compliance with constitutional requisites,
the fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us
cannot truly be viewed as already moot and academic.
Continuation of the existence of this newly proclaimed province
which petitioners strongly profess to have been illegally born,
deserves to be inquired into by this Tribunal so that, if indeed,
illegality attaches to its creation, the commission of that error
should not provide the very excuse for perpetuation of such
wrong. For this Court to yield to the respondents' urging that,
as there has been fait accompli then this Court should
passively accept and accede to the prevailing situation is an
unacceptable suggestion. Dismissal of the instant petition, as
respondents so propose is a proposition fraught with mischief.
Respondents' submission will create a dangerous precedent.
Should this Court decline now to perform its duty of interpreting
and indicating what the law is and should be, this might tempt
again those who strut about in the corridors of power to
recklessly and with ulterior motives, create, merge, divide
and/or alter the boundaries of political subdivisions, either
brazenly or stealthily, confident that this Court will abstain from
entertaining future challenges to their acts if they manage to
bring about a fait accompli.

In the light of the facts and circumstances alluded to by

petitioners as attending to the unusually rapid creation of the
instant province of Negros del Norte after a swiftly scheduled
plebiscite, this Tribunal has the duty to repudiate and
discourage the commission of acts which run counter to the
mandate of our fundamental law, done by whatever branch of
our government. This Court gives notice that it will not look with
25

favor upon those who may be hereafter inclined to ram through

all sorts of legislative measures and then implement the same
with indecent haste, even if such acts would violate the
Constitution and the prevailing statutes of our land. It is illogical
to ask that this Tribunal be blind and deaf to protests on the
ground that what is already done is done. To such untenable
argument the reply would be that, be this so, the Court,
nevertheless, still has the duty and right to correct and rectify
the wrong brought to its attention.

On the merits of the case.

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

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

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

It can be plainly seen that the aforecited constitutional

provision makes it imperative that there be first obtained "the
approval of a majority of votes in the plebiscite in the unit or
units affected" whenever a province is created, divided or
merged and there is substantial alteration of the boundaries. It
is thus inescapable to conclude that the boundaries of the
existing province of Negros Occidental would necessarily be
substantially altered by the division of its existing boundaries in
order that there can be created the proposed new province of
Negros del Norte. Plain and simple logic will demonstrate than
that two political units would be affected. The first would be the
parent province of Negros Occidental because its boundaries
would be substantially altered. The other affected entity would
be composed of those in the area subtracted from the mother
26

province to constitute the proposed province of Negros del

Norte.

We find no way to reconcile the holding of a plebiscite that

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

We find no merit in the submission of the respondents that the

petition should be dismissed because the motive and wisdom
in enacting the law may not be challenged by petitioners. The
principal point raised by the petitioners is not the wisdom and
motive in enacting the law but the infringement of the
Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the

enactment of B.P. Blg. 885 to say the least, are most
enlightening and provoking but are factual issues the Court
cannot properly pass upon in this case. Mention by petitioners
of the unexplained changes or differences in the proposed
Parliamentary Bill No. 3644 and the enacted Batas Pambansa
Blg. 885; the swift and surreptitious manner of passage and
approval of said law; the abrupt scheduling of the plebiscite;
the reference to news articles regarding the questionable
conduct of the said plebiscite held on January 3, 1986; all
serve as interesting reading but are not the decisive matters
which should be reckoned in the resolution of this case.
27

What the Court considers the only significant submissions

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

This Court is not unmindful of this solitary case alluded to by

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

The ruling in the aforestated case of Paredes vs. The

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

It is relevant and most proper to mention that in the aforecited

case ofParedes vs. Executive Secretary, invoked by
respondents, We find very lucidly expressed the strong
dissenting view of Justice Vicente Abad Santos, a
distinguished member of this Court, as he therein voiced his
opinion, which We hereunder quote:

2. ... when the Constitution speaks of "the unit or units

affected" it means all of the people of the municipality if the
municipality is to be divided such as in the case at bar or an of
28

the people of two or more municipalities if there be a merger. I

see no ambiguity in the Constitutional provision.

This dissenting opinion of Justice Vicente Abad Santos is

the forerunner of the ruling which We now consider
applicable to the case at bar, In the analogous case of Emilio C.
Lopez, Jr., versus the Honorable Commission on Elections,
L-56022, May 31, 1985, 136 SCRA 633, this dissent was
reiterated by Justice Abad Santos as he therein assailed as
suffering from a constitutional infirmity a referendum which did
not include all the people of Bulacan and Rizal, when such
referendum was intended to ascertain if the people of said
provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful
guideline in the instant case.

Opportunity to re-examine the views formerly held in said

cases is now afforded the present Court. The reasons in the
mentioned cases invoked by respondents herein were formerly
considered acceptable because of the views then taken that
local autonomy would be better promoted However, even this
consideration no longer retains persuasive value.

The environmental facts in the case before Us readily disclose

that the subject matter under consideration is of greater
magnitude with concomitant multifarious complicated problems.
In the earlier case, what was involved was a division of a
barangay which is the smallest political unit in the Local
Government Code. Understandably, few and lesser problems
are involved. In the case at bar, creation of a new province
relates to the largest political unit contemplated in Section 3,
Art. XI of the Constitution. To form the new province of Negros
del Norte no less than three cities and eight municipalities will
be subtracted from the parent province of Negros Occidental.
This will result in the removal of approximately 2,768.4 square
kilometers from the land area of an existing province whose
boundaries will be consequently substantially altered. It
becomes easy to realize that the consequent effects cf the
division of the parent province necessarily will affect all the
people living in the separate areas of Negros Occidental and
the proposed province of Negros del Norte. The economy of
29

the parent province as well as that of the new province will be

inevitably affected, either for the better or for the worse.
Whatever be the case, either or both of these political groups
will be affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution which
must be included in the plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a

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

We fail to find any legal basis for the unexplained change

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

In the mind of the Court, the change made by those

responsible for the enactment of Batas Pambansa Blg. 885
betrays their own misgivings. They must have entertained
apprehensions that by holding the plebiscite only in the areas
of the new proposed province, this tactic will be tainted with
illegality. In anticipation of a possible strong challenge to the
legality of such a plebiscite there was, therefore, deliberately
30

added in the enacted statute a self-serving phrase that the new

province constitutes the area affected. Such additional
statement serves no useful purpose for the same is misleading,
erroneous and far from truth. The remaining portion of the
parent province is as much an area affected. The substantial
alteration of the boundaries of the parent province, not to
mention the other adverse economic effects it might suffer,
eloquently argue the points raised by the petitioners.

Petitioners have averred without contradiction that after the

creation of Negros del Norte, the province of Negros
Occidental would be deprived of the long established Cities of
Silay, Cadiz, and San Carlos, as well as the municipality of
Victorias. No controversion has been made regarding
petitioners' assertion that the areas of the Province of Negros
Occidental will be diminished by about 285,656 hectares and it
will lose seven of the fifteen sugar mills which contribute to the
economy of the whole province. In the language of petitioners,
"to create Negros del Norte, the existing territory and political
subdivision known as Negros Occidental has to be partitioned
and dismembered. What was involved was no 'birth' but
"amputation." We agree with the petitioners that in the case of
Negros what was involved was a division, a separation; and
consequently, as Sec. 3 of Article XI of the Constitution
anticipates, a substantial alteration of boundary.

As contended by petitioners,

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

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

It would thus be inaccurate to state that where an existing

political unit is divided or its boundary substantially altered, as
the Constitution provides, only some and not all the voters in
the whole unit which suffers dismemberment or substantial
31

alteration of its boundary are affected. Rather, the contrary is

true.

It is also Our considered view that even hypothetically

assuming that the merits of this case can depend on the mere
discretion that this Court may exercise, nevertheless, it is the
petitioners' case that deserve to be favored.

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

In their supplemental petition, dated January 4, 1986, it is

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

The Court is prepared to declare the said plebiscite held on

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

Whatever claim it has to validity and whatever recognition has

been gained by the new province of Negros del Norte because
32

of the appointment of the officials thereof, must now be erased.

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

The final nail that puts to rest whatever pretension there is to

the legality of the province of Negros del Norte is the significant
fact that this created province does not even satisfy the area
requirement prescribed in Section 197 of the Local
Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to

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

The last sentence of the first paragraph of Section 197 is most

revealing. As so stated therein the "territory need not be
33

contiguous if it comprises two or more islands." The use of the

word territory in this particular provision of the Local
Government Code and in the very last sentence thereof,
clearly reflects that "territory" as therein used, has reference
only to the mass of land area and excludes the waters over
which the political unit exercises control.

Said sentence states that the "territory need not be

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

The distinction between "territory" and "land area" which

respondents make is an artificial or strained construction of the
disputed provision whereby the words of the statute are
arrested from their plain and obvious meaning and made to
bear an entirely different meaning to justify an absurd or unjust
result. The plain meaning in the language in a statute is the
safest guide to follow in construing the statute. A construction
based on a forced or artificial meaning of its words and out of
harmony of the statutory scheme is not to be favored
(Helvering vs. Hutchings, 85 L. Ed., p. 909).
34

It would be rather preposterous to maintain that a province with

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

Allegations have been made that the enactment of the

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

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

Petitioners herein deserve and should receive the gratitude of

the people of the Province of Negros Occidental and even by
our Nation. Commendable is the patriotism displayed by them
in daring to institute this case in order to preserve the
continued existence of their historic province. They were
inspired undoubtedly by their faithful commitment to our
Constitution which they wish to be respected and obeyed.
Despite the setbacks and the hardships which petitioners aver
confronted them, they valiantly and unfalteringly pursued a
worthy cause. A happy destiny for our Nation is assured as
long as among our people there would be exemplary citizens
such as the petitioners herein.
35

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared

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

SO ORDERED.

Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz

and Paras, JJ., concur.

Melencio-Herrera, J., concurs in the result

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 103328 October 19, 1992

HON. ROY A. PADILLA, JR., In his capacity as Governor of

the Province of Camarines Norte, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

ROMERO, J.:

Pursuant to Republic Act No. 7155, the Commission on

Elections promulgated on November 13, 1991, Resolution No.
2312 which reads as follows:

WHEREAS, Republic Act No. 7155 approved on September 6,

1991 creates the Municipality of Tulay-Na-Lupa in the Province
36

of Camarines Norte to be composed of Barangays

Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit,
Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa, all in
the Municipality of Labo, same province.

WHEREAS under Section 10, Article X of the 1987

Constitution 1 the creation of a municipality shall be subject to
approval by a majority of votes cast in a plebiscite in the
political units directly affected, and pursuant to Section 134 of
the Local Government Code (Batas Pambansa Blg.
337) 2 said plebiscite shall be conducted by the Commission
on Elections;

WHEREAS, Section 6 of said Republic Act No. 7155 provides

that the expenses in holding the plebiscite shall be take out of
the Contingent Fund under the current fiscal year
appropriations;

NOW, THEREFORE, BE IT RESOLVED, as the Commission

hereby resolves, to promulgated (sic) the following guidelines
to govern the conduct of said plebiscite:

1. The plebiscite shall be held on December 15, 1991, in the

areas or units affected, namely the barangays comprising he
proposed Municipality of Tulay-Na-Lupa and the remaining
areas of the mother Municipality of Labor, Camarines Norte
(Tan vs. COMELEC, G.R. No. 73155, July 11, 1986).

xxx xxx xxx

In the plebiscite held on December 15, 1991 throughout the

Municipality of Labo, only 2,890 votes favored its creation
while 3,439 voters voted against the creation of the
Municipality of Tulay-Na-Lupa. Consequently, the day after the
political exercise, the Plebiscite Board of Canvassers declared
the rejection and disapproval of the independent Municipality
of Tulay-Na-Lupa by a majority of votes. 3

Thus, in this special civil action of certiorari, petitioner as

Governor of Camarines Norte, seeks to set aside the plebiscite
conducted on December 15, 1991 throughout the Municipality
37

of Labo and prays that a new plebiscite be undertaken as

provided by RA 7155. It is the contention of petitioner that the
plebiscite was a complete failure and that the results obtained
were invalid and illegal because the plebiscite, as mandated by
COMELEC Resolution No. 2312 should have been conducted
only in the political unit or units affected,i.e. the 12 barangays
comprising the new Municipality of Tulay-Na-Lupa namely
Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit,
Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa.
Petitioner stresses that the plebiscite should not have included
the remaining area of the mother unit of the Municipality of
Labo, Camarines Norte. 4

In support of his stand, petitioner argues that with the approval

and ratification of the 1987 Constitution, particularly Article X,
Section 10, the ruling set forth in Tan v. COMELEC 5 relied
upon by respondent COMELEC is now passe, thus reinstating
the case of Paredes v. Executive Secretary 6 which held that
where a local unit is to be segregated from a parent unit, only
the voters of the unit to be segrated should be included in the
plebiscite. 7

Accordingly, the issue in this case is whether or not respondent

COMELEC committed grave abuse of discretion in
promulgating Resolution No. 2312 and, consequently, whether
or not the plebiscite conducted in the areas comprising the
proposed Municipality of Tulay-Na-Lupa and the remaining
areas of the mother Municipality of Labo is valid.

We rule that respondent COMELEC did not commit grave

abuse in promulgating Resolution No. 2312 and that the
plebiscite, which rejected the creation of the proposed
Municipality of Tulay-Na-Lupa, is valid.

Petitioner's contention that our ruling in Tan

vs. COMELEC has been superseded with the ratification of the
1987 Constitution, thus reinstating our earlier ruling in Paredes
vs. COMELEC is untenable. Petitioner opines that since Tan
vs. COMELEC was based on Section 3 of Article XI of the
1973 Constitution our ruling in said case is no longer
applicable under Section 10 of Article X of the 1987
38

Constitution, 8 especially since the latter provision deleted the

words "unit or."

We do not agree. The deletion of the phrase "unit or" in Section

10, Article X of the 1987 Constitution from its precursor,
Section 3 of Article XI of the 1973 Constitution not affected our
ruling in Tan vs. Comelec as explained by then CONCOM
Commissioner, now my distinguished colleague, Associate
Justice Hilario Davide, during the debates in the 1986
Constitutional Commission, to wit:

Mr. Maambong: While we have already approved the deletion

of "unit or," I would like to inform the Committee that under the
formulation in the present Local Government Code, the words
used are actually "political unit or units." However, I do not
know the implication of the use of these words. Maybe there
will be no substantial difference, but I just want to inform the
Committee about this.

Mr. Nolledo: Can we not adhere to the original "unit or units"?

Will there be no objection on the part of the two Gentlemen
from the floor?

Mr. Davide: I would object. I precisely asked for the deletion of

the words "unit or" because in the plebiscite to be conducted, it
must involve all the units affected. If it is the creation of a
barangay plebiscite because it is affected. It would mean a
loss of a territory.9 (Emphasis supplied)

It stands to reason that when the law states that the plebiscite
shall be conducted "in the political units directly affected," it
means that residents of the political entity who would be
economically dislocated by the separation of a portion thereof
have a right to vote in said plebiscite. Evidently, what is
contemplated by the phase "political units directly affected," is
the plurality of political units which would participate in the
plebiscite. 10 Logically, those to be included in such political
areas are the inhabitants of the 12 barangays of the proposed
Municipality of Tulay-Na-Lupa as well as those living in the
parent Municipality of Labo, Camarines Norte. Thus, we
39

conclude that respondent COMELEC did not commit grave

abuse of discretion in promulgating Resolution No. 2312.

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Gutierrez Jr., Cruz, Feliciano, Bidin,

Grio-Aquino, Medialdea and Regalado, Davide, Jr., Nocon,
Bellosillo, Melo and Campos, Jr., JJ., concur.

Padilla, J., is on leave.

Footnotes

1 Article X Sec. 10 of the 1987 Constitution provides: "No

province, city, municipality, or barangay may be created,
divided, merged, abolished or its boundary substantially
altered, except in accordance with the criteria established in
the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units
directly affected."

2 Sec. 134 of Batas Pambansa 337 provides : "Manner of

Creation A Municipality may be altered or modified and its
boundaries defined, altered or modified only by an Act of the
Batasang Pambansa, subject to the approval by a majority of
the votes cast in a plebiscite to be held in the unit or units
affected. Except as may otherwise be provided in said Acts the
plebiscite shall be conducted by the Commission on Elections,
within one hundred twenty days from the date of its effectivity."

3 Annex C, Rollo p. 15.

4 Rollo, pp. 3-4.

5 G.R. No. 73155, July 11, 1986, 142 SCRA 727.

6 G.R. No. 55628, March 2, 1984, 128 SCRA 6.

40

7 Rollo, p. 36.

8 "No province, city, municipality or barrio may be created,

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

9 Volume 3, Record of the Constitutional Commission, p. 486.

10 Tan v. COMELEC, supra at Footnote No. 4.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 40243 March 11, 1992

CELESTINO TATEL, petitioner,

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

NOCON, J.:
41

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
42

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
43

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 providedby 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
44

and convenience of the municipality and the inhabitants

thereof, and for the protection of property therein. 4

For an ordinance to be valid, it must not only be within the

corporate powers of the municipality to enact but must also be
passed according to the procedure prescribed by law, and
must be in consonance with certain well established and basic
principles of a substantive nature. These principles require that
a municipal ordinance (1) must not contravene the Constitution
or any statute (2) must not be unfair or oppressive (3) must not
be partial or discriminatory (4) must not prohibit but may
regulate trade (5) must be general and consistent with public
policy, and (6) must not be unreasonable. 5 Ordinance No. 13,
Series of 1952, meets these criteria.

As to the petitioner's second assignment of error, the trial court

did not give the ordinance in question a meaning other than
what it says. Ordinance No. 13 passed by the Municipal
Council of Virac on December 29, 1952, 6 reads:

AN ORDINANCE STRICTLY PROHIBITING THE

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

Section 1 provides:

It is strictly prohibited to construct warehouses in any form to

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

Section 2 provides: 7

Owners of warehouses in any form, are hereby given advice to

remove their said warehouses this ordinance by the Municipal
Council, provided however, that if those warehouses now in
45

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.
46

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 wasprovided 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.
47

As to petitioner's contention of want of jurisdiction by the lower

court we find no merit in the same. The case is a simple civil
suit for abatement of a nuisance, the original jurisdiction of
which falls under the then Court of First Instance.

WHEREFORE, for lack of merit, the petition is hereby

DISMISSED. Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 102782 December 11, 1991

THE SOLICITOR GENERAL, RODOLFO A. MALAPIRA,

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

CRUZ, J.:

In Metropolitan Traffic Command, West Traffic District vs. Hon.

Arsenio M. Gonong, G.R. No. 91023, promulgated on July 13,
1990, 1 the Court held that the confiscation of the license
plates of motor vehicles for traffic violations was not among the
sanctions that could be imposed by the Metro Manila
Commission under PD 1605 and was permitted only under the
conditions laid dowm by LOI 43 in the case of stalled vehicles
48

obstructing the public streets. It was there also observed that

even the confiscation of driver's licenses for traffic violations
was not directly prescribed by the decree nor was it allowed by
the decree to be imposed by the Commission. No motion for
reconsideration of that decision was submitted. The judgment
became final and executory on August 6, 1990, and it was duly
entered in the Book of Entries of Judgments on July 13, 1990.

Subsequently, the following developments transpired:

In a letter dated October 17, 1990, Rodolfo A. Malapira

complained to the Court that when he was stopped for an
alleged traffic violation, his driver's license was confiscated by
Traffic Enforcer Angel de los Reyes in Quezon City.

On December 18,1990, the Caloocan-Manila Drivers and

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

Another letter was received by the Court on February 14, 1991,

from Stephen L. Monsanto, complaining against the
confiscation of his driver's license by Traffic Enforcer A.D.
Martinez for an alleged traffic violation in Mandaluyong.

This was followed by a letter-complaint filed on March 7, 1991,

from Dan R. Calderon, a lawyer, also for confiscation of his
driver's license by Pat. R.J. Tano-an of the Makati Police
Force.

Still another complaint was received by the Court dated April

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

Required to submit a Comment on the complaint against him,

Allan D. Martinez invoked Ordinance No. 7, Series of 1988, of
49

Mandaluyong, authorizing the confiscation of driver's licenses

and the removal of license plates of motor vehicles for traffic
violations.

For his part, A.V. Emmanuel said he confiscated Trieste's

driver's license pursuant to a memorandum dated February 27,
1991, from the District Commander of the Western Traffic
District of the Philippine National Police, authorizing such
sanction under certain conditions.

Director General Cesar P. Nazareno of the Philippine National

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

Pat. R.J. Tano-an, on the other hand, argued that

the Gonong decision prohibited only the removal of license
plates and not the confiscation of driver's licenses.

On May 24, 1990, the Metropolitan Manila Authority issued

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

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

The attention ofthe Court has been called to the enactment by

the Metropolitan Manila Authority of Ordinance No. 11, Series
of 1991, providing inter alia that:

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

Metropolitan Manila Authority, thru the Traffic Operatiom
Center, is authorized to detach the license plate/tow and
impound attended/unattended/abandoned motor vehicles
illegally parked or obstructing the flow of traffic in Metro Manila.
50

The provision appears to be in conflict with the decision of the

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

To clarify these matters for the proper guidance of

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

In its Comment, the Metropolitan Manila Authority defended

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

1. Formulation of policies on the delivery of basic services

requiring coordination or consolidation for the Authority; and

2. Promulgation of resolutions and other issuances of

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

The Authority argued that there was no conflict between the

decision and the ordinance because the latter was meant to
supplement and not supplant the latter. It stressed that the
decision itself said that the confiscation of license plates was
invalid in the absence of a valid law or ordinance, which was
why Ordinance No. 11 was enacted. The Authority also
pointed out that the ordinance could not be attacked
collaterally but only in a direct action challenging its validity.
51

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

On October 24, 1991, the Office of the Solicitor General

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

The Metropolitan Manila Authority is correct in invoking the

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

The Solicitor General notes that the practices complained of

have created a great deal of confusion among motorists about
the state of the law on the questioned sanctions. More
importantly, he maintains that these sanctions are illegal, being
violative of law and theGonong decision, and should therefore
be stopped. We also note the disturbing report that one
policeman who confiscated a driver's license dismissed
the Gonong decision as "wrong" and said the police would not
stop their "habit" unless they received orders "from the top."
Regrettably, not one of the complainants has filed a formal
challenge to the ordinances, including Monsanto and Trieste,
who are lawyers and could have been more assertive of their
rights.

Given these considerations, the Court feels it must address the

problem squarely presented to it and decide it as categorically
52

rather than dismiss the complaints on the basis of the technical

objection raised and thus, through its inaction, allow them to
fester.

The step we now take is not without legal authority or judicial

precedent. Unquestionably, the Court has the power to
suspend procedural rules in the exercise of its inherent power,
as expressly recognized in the Constitution, to promulgate
rules concerning "pleading, practice and procedure in all
courts." 2 In proper cases, procedural rules may be relaxed or
suspended in the interest of substantial justice, which
otherwise may be miscarried because of a rigid and formalistic
adherence to such rules.

The Court has taken this step in a number of such cases,

notably Araneta vs. Dinglasan, 3where Justice Tuason justified
the deviation on the ground that "the transcendental
importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must,
technicalities of procedure."

We have made similar rulings in other cases, thus:

Be it remembered that rules of procedure are but mere tools

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

Three of the cases were consolidated for argument and the

other two were argued separately on other dates. Inasmuch as
all of them present the same fundamental question which, in
our view, is decisive, they will be disposed of jointly. For the
same reason we will pass up the objection to the personality or
53

sufficiency of interest of the petitioners in case G.R. No.

L-3054 and case G.R. No. L-3056 and the question whether
prohibition lies in cases G.R. Nos. L-2044 and L2756. No
practical benefit can be gained from a discussion of these
procedural matters, since the decision in the cases wherein the
petitioners'cause of action or the propriety of the procedure
followed is not in dispute, will be controlling authority on the
others. Above all, the transcendental importance to the public
of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of
procedure. (Avelino vs. Cuenco, G.R. No. L-2821 cited in
Araneta vs. Dinglasan, 84 Phil. 368.)

Accordingly, the Court will consider the motion to resolve filed

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

It is stressed that this action is not intended to disparage

procedural rules, which the Court has recognized often enough
as necessary to the orderly administration of justice. If we are
relaxing them in this particular case, it is because of the failure
of the proper parties to file the appropriate proceeding against
the acts complained of, and the necessity of resolving, in the
interest of the public, the important substantive issues raised.

Now to the merits.

The Metro Manila Authority sustains Ordinance No. 11, Series

of 1991, under the specific authority conferred upon it by EO
392, while Ordinance No. 7, Series of 1988, is justified on the
basis of the General Welfare Clause embodied in the Local
Government Code. 4 It is not disputed that both measures
54

were enacted to promote the comfort and convenience of the

public and to alleviate the worsening traffic problems in
Metropolitan Manila due in large part to violations of traffic
rules.

The Court holds that there is a valid delegation of legislative

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

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

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

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

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

According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or
any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not
55

prohibit but may regulate trade; 5) must not be unreasonable; and 6) must be general and
consistent with public policy. 7

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

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

xxx xxx xxx

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

xxx xxx xxx

Section 5. In case of traffic violations, the driver's license shall not be confiscated but the erring
driver shall be immediately issued a traffic citation ticket prescribed by the Metropolitan Manila
Commission which shall state the violation committed, the amount of fine imposed for the violation
and an advice that he can make payment to the city or municipal treasurer where the violation was
56

committed or to the Philippine National Bank or Philippine Veterans Bank or their branches within
seven days from the date of issuance of the citation ticket.

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

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

xxx xxx xxx

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

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

The requirement that the municipal enactment must not violate existing law explains itself. Local
political subdivisions are able to legislate only by virtue of a valid delegation of legislative power
from the national legislature (except only that the power to create their own sources of revenue and
to levy taxes is conferred by the Constitution itself). 8
They are mere agents
vested with what is called the power of subordinate legislation.
As delegates of the Congress, the local government unit
cannot contravene but must obey at all times the will of their
principal. In the case before us, the enactments in question,
which are merely local in origin, cannot prevail against the
decree, which has the force and effect of a statute.

The self-serving language of Section 2 of the challenged

ordinance is worth noting. Curiously, it is the measure itself,
57

which was enacted by the Metropolitan Manila Authority, that

authorizes the Metropolitan Manila Authority to impose the
questioned sanction.

In Villacorta vs, Bemardo, 9 the Court nullified an ordinance

enacted by the Municipal Board of Dagupan City for being
violative of the Land Registration Act. The decision held in part:

In declaring the said ordinance null and void, the court a

quo declared:

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

would justify the enactment of the questioned ordinance.
Section 1 of said ordinance clearly conflicts with Section 44 of
Act 496, because the latter law does not require subdivision
plans to be submitted to the City Engineer before the same is
submitted for approval to and verification by the General Land
Registration Office or by the Director of Lands as provided for
in Section 58 of said Act. Section 2 of the same ordinance also
contravenes the provisions of Section 44 of Act 496, the latter
being silent on a service fee of P0.03 per square meter of
every lot subject of such subdivision application; Section 3 of
the ordinance in question also conflicts with Section 44 of Act
496, because the latter law does not mention of a certification
to be made by the City Engineer before the Register of Deeds
allows registration of the subdivision plan; and the last section
of said ordinance impose a penalty for its violation, which
Section 44 of Act 496 does not impose. In other words,
Ordinance 22 of the City of Dagupan imposes upon a
subdivision owner additional conditions.

xxx xxx xxx

The Court takes note of the laudable purpose of the ordinance

in bringing to a halt the surreptitious registration of lands
belonging to the government. But as already intimated above,
the powers of the board in enacting such a laudable ordinance
cannot be held valid when it shall impede the exercise of rights
granted in a general law and/or make a general law
subordinated to a local ordinance.
58

We affirm.

To sustain the ordinance would be to open the floodgates to

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

The measures in question do not merely add to the

requirement of PD 1605 but, worse, impose sanctions the
decree does not allow and in fact actually prohibits. In so doing,
the ordinances disregard and violate and in effect partially
repeal the law.

We here emphasize the ruling in the Gonong case that PD

1605 applies only to the Metropolitan Manila area. It is an
exception to the general authority conferred by R.A. No. 413
on the Commissioner of Land Transportation to punish
violations of traffic rules elsewhere in the country with the
sanction therein prescribed, including those here questioned.

The Court agrees that the challenged ordinances were

enacted with the best of motives and shares the concern of the
rest of the public for the effective reduction of traffic problems
in Metropolitan Manila through the imposition and enforcement
of more deterrent penalties upon traffic violators. At the same
time, it must also reiterate the public misgivings over the
abuses that may attend the enforcement of such sanction in
eluding the illicit practices described in detail in
the Gonong decision. At any rate, the fact is that there is no
statutory authority for and indeed there is a statutory
prohibition against the imposition of such penalties in the
Metropolitan Manila area. Hence, regardless of their merits,
they cannot be impose by the challenged enactments by virtue
only of the delegated legislative powers.
59

It is for Congress to determine, in the exercise of its own

discretion, whether or not to impose such sanctions, either
directly through a statute or by simply delegating authority to
this effect to the local governments in Metropolitan Manila.
Without such action, PD 1605 remains effective and continues
prohibit the confiscation of license plates of motor vehicles
(except under the conditions prescribed in LOI 43) and of
driver licenses as well for traffic violations in Metropolitan
Manila.

WHEREFORE, judgment is hereby rendered:

(1) declaring Ordinance No.11, Seriesof l991,of

theMetropolitan Manila Authority and Ordinance No. 7, Series
of 1988 of the Municipality of Mandaluyong, NULL and VOID;
and

(2) enjoining all law enforcement authorities in Metropolitan

Manila from removing the license plates of motor vehicles
(except when authorized under LOI 43) and confiscating driver
licenses for traffic violations within the said area.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras,

Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr. and Romero, JJ., concur.
Nocon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 92389 September 11, 1991

60

HON. JEJOMAR C. BINAY and the MUNICIPALITY OF

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

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

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

PARAS, J.:

The only pivotal issue before Us is whether or not Resolution

No. 60, re-enacted under Resolution No. 243, of the
Municipality of Makati is a valid exercise of police power under
the general welfare clause.

The pertinent facts are:

On September 27, 1988, petitioner Municipality, through its

Council, approved Resolution No. 60 which reads:

A RESOLUTION TO CONFIRM AND/OR RATIFY THE

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

Qualified beneficiaries, under the Burial Assistance Program,

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

Metro Manila Commission approved Resolution No. 60.

Thereafter, the municipal secretary certified a disbursement
fired of four hundred thousand pesos (P400,000.00) for the
61

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).
62

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
63

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."
64

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
65

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,
66

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, Grio-Aquino, Medialdea, Regalado and Davide,
Jr., JJ., concur.
Gutierrez, Jr. and Feliciano, JJ., are on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

67

SALVADOR VILLACORTA as City Engineer of Dagupan

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

Victor T. Llamas, Jr. for respondents.

CRUZ, J.:

This is a petition for certiorari against a decision of the Court of

First Instance of Pangasinan annulling an ordinance adopted
by the municipal board of Dagupan City.

The ordinance reads in full as follows:

ORDINANCE 22

AN ORDINANCE REGULATING SUBDIVISION PLANS

OVER PARCELS OF LAND IN THE CITY OF DAGUPAN.

Be it ordained by the Municipal Board of Dagupan City in

session assembled:

Section 1. Every proposed subdivision plan over any lot in the

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

Section 2. As service fee thereof, an amount equivalent to

P0.30 per square meter of every lot resulting or win result from
such subdivision shall be charged by the City Engineer's
Office.
68

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

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

Section 4. Any violation of this ordinance shall be punished by

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

Section 5. This ordinance shall take effect immediately upon

approval.

In declaring the said ordinance null and void, the court a

quo declared:

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

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

xxx xxx xxx

The Court takes note of the laudable purpose of the ordinance

in bringing to a halt the surreptitious registration of lands
69

belonging to the government. But as already intimidated above,

the powers of the board in enacting such a laudable ordinance
cannot be held valid when it shall impede the exercise of rights
granted in a general law and/or make a general law
subordinated to a local ordinance.

We affirm.

To sustain the ordinance would be to open the floodgates to

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

So many excesses are attempted in the name of the police

power that it is time, we feel, for a brief admonition.

Regulation is a fact of life in any well-ordered community. As

society becomes more and more complex, the police power
becomes correspondingly ubiquitous. This has to be so for the
individual must subordinate his interests to the common good,
on the time honored justification of Salus populi est suprema
lex.

In this prolix age, practically everything a person does and

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

It is necessary to stress that unless the creeping interference

of the government in essentially private matters is moderated,
it is likely to destroy that prized and peculiar virtue of the free
society: individualism.
70

Every member of society, while paying proper deference to the

general welfare, must not be deprived of the right to be left
alone or, in the Idiom of the day, "to do his thing." As long as
he does not prejudice others, his freedom as an individual
must not be unduly curtailed.

We therefore urge that proper care attend the exercise of the

police power lest it deteriorate into an unreasonable intrusion
into the purely private affairs of the individual. The so-called
"general welfare" is too amorphous and convenient an excuse
for official arbitrariness.

Let it always be remembered that in the truly democratic state,

protecting the rights of the individual is as important as, if not
more so than, protecting the rights of the public.

This advice is especially addressed to the local governments

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

WHEREFORE, the decision of the lower court annulling the

challenged ordinance is AFFIRMED, without any
pronouncement as to costs.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera and Paras, JJ.,

concur

Republic of the Philippines

SUPREME COURT
Manila
71

EN BANC

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

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

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

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is

whether or not a municipal corporation, Bocaue, Bulacan,
represented by respondents, 1 can, prohibit the exercise of a
lawful trade, the operation of night clubs, and the pursuit of a
lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with
nullity, the municipality being devoid of power to prohibit a
lawful business, occupation or calling, petitioners at the same
time alleging that their rights to due process and equal
protection of the laws were violated as the licenses previously
given to them was in effect withdrawn without judicial hearing. 2
72

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
73

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
74

No. 84 is not violative of petitioners' right to due process and

the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree No.
189, as amended, did not deprive Municipal Councils of their
jurisdiction to regulate or prohibit night clubs." 7 There was the
admission of the following facts as having been established: "l.
That petitioners Vicente de la Cruz, et al. in Civil Case No.
4755-M had been previously issued licenses by the Municipal
Mayor of Bocaue-petitioner Jose Torres III, since 1958;
petitioner Vicente de la Cruz, since 1960; petitioner Renato
Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972;
2. That petitioners had invested large sums of money in their
businesses; 3. That the night clubs are well-lighted and have
no partitions, the tables being near each other; 4. That the
petitioners owners/operators of these clubs do not allow the
hospitality girls therein to engage in immoral acts and to go out
with customers; 5. That these hospitality girls are made to go
through periodic medical check-ups and not one of them is
suffering from any venereal disease and that those who fail to
submit to a medical check-up or those who are found to be
infected with venereal disease are not allowed to work; 6. That
the crime rate there is better than in other parts of Bocaue or in
other towns of Bulacan." 8 Then came on January 15, 1976 the
decision upholding the constitutionality and validity of
Ordinance No. 84 and dismissing the cases. Hence this
petition for certiorari by way of appeal.

In an exhaustive as well as scholarly opinion, the lower court

dismissed the petitions. Its rationale is set forth in the opening
paragraph thus: "Those who lust cannot last. This in essence
is why the Municipality of Bocaue, Province of Bulacan,
stigmatized as it has been by innuendos of sexual titillation and
fearful of what the awesome future holds for it, had no
alternative except to order thru its legislative machinery, and
even at the risk of partial economic dislocation, the closure of
its night clubs and/or cabarets. This in essence is also why this
Court, obedient to the mandates of good government, and
cognizant of the categorical imperatives of the current legal
and social revolution, hereby [upholds] in the name of police
power the validity and constitutionality of Ordinance No. 84,
75

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
76

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
77

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, not prohibition. There is thus
support for the view advanced by petitioners that to construe
Republic Act No. 938 as allowing the prohibition of the
operation of night clubs would give rise to a constitutional
question. The Constitution mandates: "Every bill shall embrace
only one subject which shall be expressed in the title thereof.
" 21 Since there is no dispute as the title limits the power to
regulating, not prohibiting, it would result in the statute being
invalid if, as was done by the Municipality of Bocaue, the
operation of a night club was prohibited. There is a wide gap
between the exercise of a regulatory power "to provide for the
health and safety, promote the prosperity, improve the
morals, 22 in the language of the Administrative Code, such
competence extending to all "the great public needs, 23 to
quote from Holmes, and to interdict any calling, occupation, or
enterprise. In accordance with the well-settled principle of
constitutional construction that between two possible
interpretations by one of which it will be free from constitutional
infirmity and by the other tainted by such grave defect, the
former is to be preferred. A construction that would save rather
78

than one that would affix the seal of doom certainly commends
itself. We have done so before We do so again. 24

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

a specific provision of the recently-enacted Local Government
Code. 25 The general welfare clause, a reiteration of the
Administrative Code provision, is set forth in the first paragraph
of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such
ordinances and issue such regulations as may be necessary to
carry out and discharge the responsibilities conferred upon it
by law, and such as shall be necessary and proper to provide
for the health, safety, comfort and convenience, maintain
peace and order, improve public morals, promote the
prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property
therein; ..." 26 There are in addition provisions that may have a
bearing on the question now before this Court. Thus
the sangguniang bayanshall "(rr) Regulate cafes, restaurants,
beer-houses, hotels, motels, inns, pension houses and lodging
houses, except travel agencies, tourist guides, tourist
transports, hotels, resorts, de luxe restaurants, and tourist inns
of international standards which shall remain under the
licensing and regulatory power of the Ministry of Tourism which
shall exercise such authority without infringing on the taxing or
regulatory powers of the municipality; (ss) Regulate public
dancing schools, public dance halls, and sauna baths or
massage parlors; (tt) Regulate the establishment and
operation of billiard pools, theatrical performances, circuses
and other forms of entertainment; ..." 27 It is clear that
municipal corporations cannot prohibit the operation of night
clubs. They may be regulated, but not prevented from carrying
on their business. It would be, therefore, an exercise in futility if
the decision under review were sustained. All that petitioners
would have to do is to apply once more for licenses to operate
night clubs. A refusal to grant licenses, because no such
businesses could legally open, would be subject to judicial
correction. That is to comply with the legislative will to allow the
operation and continued existence of night clubs subject to
appropriate regulations. In the meanwhile, to compel
79

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.
80

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 dissen

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

CITY GOVERNMENT OF QUEZON CITY and CITY

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

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the

decision of the Court of First Instance of Rizal, Branch XVIII
81

declaring Section 9 of Ordinance No. 6118, S-64, of the

Quezon City Council null and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE

REGULATING THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY
OR BURIAL GROUND WITHIN THE JURISDICTION OF
QUEZON CITY AND PROVIDING PENALTIES FOR THE
VIOLATION THEREOF" provides:

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

For several years, the aforequoted section of the Ordinance

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

RESOLVED by the council of Quezon assembled, to request,

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

Pursuant to this petition, the Quezon City Engineer notified

respondent Himlayang Pilipino, Inc. in writing that Section 9 of
Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court

of First Instance of Rizal Branch XVIII at Quezon City, a
petition for declaratory relief, prohibition and mandamus with
preliminary injunction (Sp. Proc. No. Q-16002) seeking to
annul Section 9 of the Ordinance in question The respondent
alleged that the same is contrary to the Constitution, the
82

Quezon City Charter, the Local Autonomy Act, and the

Revised Administrative Code.

There being no issue of fact and the questions raised being

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

A motion for reconsideration having been denied, the City

Government and City Council filed the instant petition.

Petitioners argue that the taking of the respondent's property is

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

On the other hand, respondent Himlayang Pilipino, Inc.

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

The respondent also stresses that the general welfare clause

is not available as a source of power for the taking of the
property in this case because it refers to "the power of
promoting the public welfare by restraining and regulating the
use of liberty and property." The respondent points out that if
an owner is deprived of his property outright under the State's
police power, the property is generally not taken for public use
but is urgently and summarily destroyed in order to promote
83

the general welfare. The respondent cites the case of a

nuisance per se or the destruction of a house to prevent the
spread of a conflagration.

We find the stand of the private respondent as well as the

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

The issue is: Is Section 9 of the ordinance in question a valid

exercise of the police power?

An examination of the Charter of Quezon City (Rep. Act No.

537), does not reveal any provision that would justify the
ordinance in question except the provision granting police
power to the City. Section 9 cannot be justified under the
power granted to Quezon City to tax, fix the license fee,
and regulate such other business, trades, and occupation as
may be established or practised in the City.' (Subsections 'C',
Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit

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

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

the city and provide for their burial in such proper place and in
such manner as the council may determine, subject to the
provisions of the general law regulating burial grounds and
84

cemeteries and governing funerals and disposal of the dead.'

(Sub-sec. (t), Sec. 12, Rep. Act No. 537).

There is nothing in the above provision which authorizes

confiscation or as euphemistically termed by the respondents,
'donation'

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

ordinance in question is a valid exercise of police power. The
police power of Quezon City is defined in sub-section 00, Sec.
12, Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not

repugnant to law as may be necessary to carry into effect and
discharge the powers and duties conferred by this act and
such as it shall deem necessary and proper to provide for the
health and safety, promote, the prosperity, improve the morals,
peace, good order, comfort and convenience of the city and
the inhabitants thereof, and for the protection of property
therein; and enforce obedience thereto with such lawful fines
or penalties as the City Council may prescribe under the
provisions of subsection (jj) of this section.

We start the discussion with a restatement of certain basic

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

On the other hand, there are three inherent powers of

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

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

the public welfare by restraining and regulating the use of
liberty and property' (Quoted in Political Law by Tanada and
Carreon, V-11, p. 50). It is usually exerted in order to merely
regulate the use and enjoyment of property of the owner. If he
is deprived of his property outright, it is not taken for public use
85

but rather to destroy in order to promote the general welfare. In

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

The police power being the most active power of the

government and the due process clause being the broadest
station on governmental power, the conflict between this power
of government and the due process clause of the Constitution
is oftentimes inevitable.

It will be seen from the foregoing authorities that police power

is usually exercised in the form of mere regulation or restriction
in the use of liberty or property for the promotion of the general
welfare. It does not involve the taking or confiscation of
property with the exception of a few cases where there is a
necessity to confiscate private property in order to destroy it for
86

the purpose of protecting the peace and order and of

promoting the general welfare as for instance, the confiscation
of an illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118,

Series of 1964 of Quezon City is not a mere police regulation
but an outright confiscation. It deprives a person of his private
property without due process of law, nay, even without
compensation.

In sustaining the decision of the respondent court, we are not

unmindful of the heavy burden shouldered by whoever
challenges the validity of duly enacted legislation whether
national or local As early as 1913, this Court ruled in Case v.
Board of Health (24 PhiL 250) that the courts resolve every
presumption in favor of validity and, more so, where the ma
corporation asserts that the ordinance was enacted to promote
the common good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel

Operators Association Inc. v. City Mayor of Manila (20 SCRA
849) the Court speaking through the then Associate Justice
and now Chief Justice Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of

any evidence to offset the presumption of validity that attaches
to a statute or ordinance. As was expressed categorically by
Justice Malcolm 'The presumption is all in favor of validity. ...
The action of the elected representatives of the people cannot
be lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular ...
municipality and with all the facts and lances which surround
the subject and necessitate action. The local legislative body,
by enacting the ordinance, has in effect given notice that the
regulations are essential to the well-being of the people. ... The
Judiciary should not lightly set aside legislative action when
there is not a clear invasion of personal or property rights
under the guise of police regulation. (U.S. v. Salaveria (1918],
39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in
87

the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil.

369.)

We have likewise considered the principles earlier stated in

Case v. Board of Healthsupra :

... Under the provisions of municipal charters which are known

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

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

There is no reasonable relation between the setting aside of at

least six (6) percent of the total area of an private cemeteries
for charity burial grounds of deceased paupers and the
promotion of health, morals, good order, safety, or the general
welfare of the people. The ordinance is actually a taking
without compensation of a certain area from a private
cemetery to benefit paupers who are charges of the municipal
88

corporation. Instead of building or maintaining a public

cemetery for this purpose, the city passes the burden to private
cemeteries.

The expropriation without compensation of a portion of private

cemeteries is not covered by Section 12(t) of Republic Act 537,
the Revised Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the center of
population of the city and to provide for their burial in a proper
place subject to the provisions of general law regulating burial
grounds and cemeteries. When the Local Government Code,
Batas Pambansa Blg. 337 provides in Section 177 (q) that a
Sangguniang panlungsod may "provide for the burial of the
dead in such place and in such manner as prescribed by law or
ordinance" it simply authorizes the city to provide its own city
owned land or to buy or expropriate private properties to
construct public cemeteries. This has been the law and
practise in the past. It continues to the present. Expropriation,
however, requires payment of just compensation. The
questioned ordinance is different from laws and regulations
requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the
land they sell to buyers of subdivision lots. The necessities of
public safety, health, and convenience are very clear from said
requirements which are intended to insure the development of
communities with salubrious and wholesome environments.
The beneficiaries of the regulation, in turn, are made to pay by
the subdivision developer when individual lots are sold to
home-owners.

As a matter of fact, the petitioners rely solely on the general

welfare clause or on implied powers of the municipal
corporation, not on any express provision of law as statutory
basis of their exercise of power. The clause has always
received broad and liberal interpretation but we cannot stretch
it to cover this particular taking. Moreover, the questioned
ordinance was passed after Himlayang Pilipino, Inc. had
incorporated. received necessary licenses and permits and
commenced operating. The sequestration of six percent of the
cemetery cannot even be considered as having been impliedly
89

acknowledged by the private respondent when it accepted the

permits to commence operations.

WHEREFORE, the petition for review is hereby DISMISSED.

The decision of the respondent court is affirmed.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

ORTIGAS & CO., LIMITED

PARTNERSHIP, plaintiff-appellant,
vs.
FEATI BANK AND TRUST CO., defendant-appellee.

Ramirez & Ortigas for appellant.

Taada, 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.
90

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,
91

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
92

zoning regulations, defendant-appellee having filed building

and planning permit applications with the Municipality of
Mandaluyong, and it had accordingly obtained building and
planning permits to proceed with the construction.12

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

In deciding the said case, the trial court considered, as the

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

The trial court upheld the defendant-appellee and dismissed

the complaint, holding that the subject restrictions were
subordinate to Municipal Resolution No. 27, supra. It
predicated its conclusion on the exercise of police power of the
said municipality, and stressed that private interest should
"bow down to general interest and welfare. " In short, it upheld
the classification by the Municipal Council of the area along
Epifanio de los Santos Avenue as a commercial and industrial
zone, and held that the same rendered "ineffective and
unenforceable" the restrictions in question as against
defendant-appellee.14 The trial court decision further
emphasized that it "assumes said resolution to be valid,
considering that there is no issue raised by either of the parties
as to whether the same is null and void. 15
93

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 course21 and the records of the case
were elevated directly to this Court, since only questions of law
are raised. 22

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

I. When it sustained the view that Resolution No. 27, series of

1960 of the Municipal Council of Mandaluyong, Rizal declaring
Lots Nos. 5 and 6, among others, as part of the commercial
and industrial zone, is valid because it did so in the exercise of
its police power; and

II. When it failed to consider whether or not the Municipal

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

The defendant-appellee submitted its counter-assignment of

errors. In this connection, We already had occasion to hold
in Relativo v. Castro 24 that "(I)t is not incumbent on the
94

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.
95

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
96

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. 38As this Court held through Justice Jose P.
Bengzon in Philippine Long Distance Company vs. City of
Davao, et al. 39 police power "is elastic and must be responsive
to various social conditions; it is not, confined within narrow
circumscriptions of precedents resting on past conditions; it
must follow the legal progress of a democratic way of life." We
were even more emphatic in Vda. de Genuino vs. The Court of
Agrarian Relations, et al., 40 when We declared: "We do not
see why public welfare when clashing with the individual right
to property should not be made to prevail through the state's
exercise of its police power.

Resolution No. 27, s-1960 declaring the western part of

highway 54, now E. de los Santos Avenue (EDSA, for short)
from Shaw Boulevard to the Pasig River as an industrial and
commercial zone, was obviously passed by the Municipal
Council of Mandaluyong, Rizal in the exercise of police power
to safeguard or promote the health, safety, peace, good order
and general welfare of the people in the locality, Judicial notice
may be taken of the conditions prevailing in the area,
especially where lots Nos. 5 and 6 are located. The lots
themselves not only front the highway; industrial and
commercial complexes have flourished about the place. EDSA,
a main traffic artery which runs through several cities and
municipalities in the Metro Manila area, supports an endless
stream of traffic and the resulting activity, noise and pollution
are hardly conducive to the health, safety or welfare of the
residents in its route. Having been expressly granted the
power to adopt zoning and subdivision ordinances or
regulations, the municipality of Mandaluyong, through its
Municipal 'council, was reasonably, if not perfectly, justified
under the circumstances, in passing the subject resolution.
97

The scope of police power keeps expanding as civilization

advances, stressed this Court, speaking thru Justice Laurel in
the leading case of Calalang v. Williams et al., 41 Thus-

As was said in the case of Dobbins v. Los Angeles (195 US

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

Thus, the state, in order to promote the general welfare, may

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

The need for reconciling the non-impairment clause of the

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

Nor is the concept of the general welfare static. Needs that

were narrow or parochial a century ago may be interwoven in
our day with the well-being of the nation What is critical or
urgent changes with the times. 46
98

The motives behind the passage of the questioned resolution

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

Furthermore, We restated in Philippine American Life Ins. Co.

v. Auditor General49 that laws and reservation of essential
attributes of sovereign power are read into contracts agreed
upon by the parties. Thus

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

Again, We held in Liberation Steamship Co., Inc. v. Court of

Industrial Relations, 50 through Justice J.B.L. Reyes, that ... the
law forms part of, and is read into, every contract, unless
clearly excluded therefrom in those cases where such
exclusion is allowed." The decision inMaritime 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.
99

In the first place, the views set forth in American decisions and
authorities are not per secontrolling 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 inDolan 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
aproviso 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
100

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.

Separate Opinions

BARREDO, J., concurring:

I hold it is a matter of public knowledge that the place in

question is commercial. It would be worse if the same were to
be left as residential and all around are already commercial.

FERNANDO, C.J., concurring:

The exhaustive and lucid opinion of the Court penned by

Justice Guillermo S. Santos commends itself for approval. I
feel no hesitancy, therefore, in yielding concurrence, The
observation, however, in the dissent of Justice Vicente Abad
Santos relative to restrictive covenants calls, to my mind, for
further reflection as to the respect to which they are entitled
whenever police power legislation, whether on the national or
local level, is assailed. Before doing so, however, it may not be
amiss to consider further the effect of such all-embracing
attribute on existing contracts.
101

1. Reference was made in the opinion of the Court

to Philippine American Life Insurance Company v. Auditor
General. 1 The ponente in that case was Justice Sanchez. A
concurrence came from me. It contained this qualification: "It
cannot be said, without rendering nugatory the constitutional
guarantee of non-impairment, and for that matter both the
equal protection and due process clauses which equally serve
to protect property rights, that at the mere invocation of the
police power, the objection on non-impairment grounds
automatically loses force. Here, as in other cases where
governmental authority may trench upon property rights, the
process of balancing, adjustment or harmonization is called
for. 2After referring to three leading United States Supreme
Court decisions, Home Building and Loan Association v.
Blaisdell, 3 Nebbia v. New York, 4 and Norman v. Baltimore
and Ohio Railroad Co., 5 I stated: "All of the above decisions
reflect the view that an enactment of a police power measure
does not per se call for the overruling of objections based on
either due process or non-impairment based on either due
process or non-impairment grounds. There must be that
balancing, or adjustment, or harmonization of the conflicting
claims posed by an exercise of state regulatory power on the
one hand and assertion of rights to property, whether of natural
or of juridical persons, on the other. 'That is the only way by
which the constitutional guarantees may serve the high ends
that call for their inclusion in the Constitution and thus
effectively preclude ally abusive exercise of governmental
authority." 6Nor did my concurrence stop there: "In the opinion
of the Blaisdell case, penned by the then Chief Justice Hughes,
there was this understandable stress on balancing or
harmonizing, which is called for in litigations of this character:
'The policy of protecting contracts against impairment
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. This principle of harmonizing the constitutional
prohibition with the necessary residuum of state power has
had progressive recognition in the decisions of this Court.' Also
to the same effect: 'Undoubtedly, whatever is reserved of state
power must be consistent with the fair intent of the
102

constitutional limitation of that power. The reserve power

cannot be construed so as to destroy the limitation, nor is the
limitation to be construed to destroy the reserved power in its
essential aspects. 'They must be construed in harmony with
each other. This principle precludes a construction which
would permit the State to adopt as its policy the repudiation of
debts or the destruction of contracts or the denial of means to
enforce them. But it does not follow that conditions may not
arise in which a temporary restraint of enforcement may be
consistent with the spirit and purpose of the constitutional
provision and thus be found to be within the range of the
reserved power of the State to protect the vital interests of the
community.' Further on, Chief Justice Hughes likewise stated:
'It is manifest from this review of our decisions that there has
been a growing appreciation of public needs and of the
necessity of finding ground for a rational compromise between
individual rights and public welfare. " 7 This is the concluding
paragraph of my concurrence in the Philippine American Life
Insurance Co. case: "If emphasis be therefore laid, as this
concurring opinion does, on the pressing and inescapable
need for such an approach whenever a possible collision
between state authority and an assertion of constitutional right
to property may exist, it is not to depart from what sound
constitutional orthodoxy dictates. It is rather to abide by what is
compels. In litigations of this character then, perhaps much
more so than in other disputes, where there is a reliance on a
constitutional provision, the judiciary cannot escape what
Holmes fitly referred to as the sovereign prerogative of choice,
the exercise of which might possibly be impugned if there be
no attempt, however slight, at such an effort of adjusting or
reconciling the respective claims of state regulatory power and
constitutionally protected rights." 8

I adhere to such a view. This is not to say that there is a

departure therefrom in the able and scholarly opinion of Justice
Santos. It is merely to stress what to my mind is a fundamental
postulate of our Constitution. The only point I would wish to
add is that in the process of such balancing and adjustment,
the present Constitution, the Philippine American Life
Insurance Co. decision having been promulgated under the
103

1935 Charter, leaves no doubt that the claim to property rights

based on the non-impairment clause has a lesser weight. For
as explicitly provided by our present fundamental law: "The
State shall promote social Justice to ensure the dignity, welfare,
and security of all the people. Towards this end, the

State shall regulate the acquisition, ownership, use, enjoyment,

and disposition of private property, and equitably diffuse
property ownership and profits. 9

2. Now as to restrictive convenants, accurately included by

Hart and Sacks under the category of "private directive
arrangements. " 10 Through them people are enable to agree
on how to order their affairs. They could be utilized to govern
their affairs. They could be utilized to govern their future
conduct. It is a well-known fact that the common law relies to a
great extent on such private directive arrangements to attain a
desirable social condition. More specifically, such covenants
are an important means of ordering one aspect of property
relationships. Through them, there could be delimitation of land
use rights. It is quite understandable why the law should
ordinarily accord them deference, It does so, it has been said,
both on grounds of morality and utility. Nonetheless, there are
limits to the literal enforcement of their terms. To the extent
that they ignore technological or economic progress, they are
not automatically entitled to judicial protection. Clearly, they
must "speak from one point of time to another." 11 The parties,
like all mortal, do not have the power of predicting the future
with unfailing certainty. In cases therefore where societal
welfare calls for police power legislation, the parties adversely
affected should realize that arrangements dealing with
property rights are not impressed with sanctity. That approach,
in my view, was the guiding principle of the opinion of the Court.
f fence my full and entire concurrence.

ABAD SANTOS, J:, dissenting:

Although Resolution No. 27, series of 1960, of the Municipal

Council of Mandaluyong, Rizal, is valid until otherwise declared,
I do not believe that its enactment was by virtue of the police
power of that municipality. I do not here dispute the concept of
104

police power as stated inPrimicias vs. Fugoso, 80 Phil. 77

(1948) for as a matter of fact I accept it. And I agree also that it
is elastic and must be responsive to various social conditions,
etc. as ruled in PLDT vs. City of Davao, L-23080, Oct. 26, 1965,
15 SCRA 244. But Resolution No. 27, cannot be described as
promotive of the health, morals, peace, education, good order
or safety and general welfare of the people of Mandaluyong.
On the contrary, its effect is the opposite. For the serenity,
peace and quite of a residential section would by the resolution
be replaced by the chaos, turmoil and frenzy of commerce and
industry. Where there would be no industrial and noise
pollution these bane of so-called progress would now pervade
and suffocate the environment to the detriment of the ecology.
To characterize the ordinance as an exercise of police power
would be retrogressive. It will set back all the efforts of the
Ministry of Human Settlements to improve the quality of life
especially in Metro Manila. It will make Metro Manila, not the
city of man as envisioned by its Governor but a city of
commerce and industry.

Considering, therefore, that Resolution No, 2-1 was not

enacted in the legitimate exercise of police power, it cannot
impair the restrictive covenants which go with the lands that
were sold by the plaintiff-appellant. I vote for the reversal of the
appealed decision.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
105

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN

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

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

R.R. Torralba & Associates for private respondent.

CRUZ, J.:

There was instant opposition when PAGCOR announced the

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

The trouble arose when in 1992, flush with its tremendous

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

The reaction of the Sangguniang Panlungsod of Cagayan de

Oro City was swift and hostile. On December 7, 1992, it
enacted Ordinance No. 3353 reading as follows:

ORDINANCE NO. 3353

AN ORDINANCE PROHIBITING THE ISSUANCE OF

BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE
106

USING AND ALLOWING TO BE USED ITS PREMISES OR

PORTION THEREOF FOR THE OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City

of Cagayan de Oro, in session assembled that:

Sec. 1. That pursuant to the policy of the city banning the

operation of casino within its territorial jurisdiction, no business
permit shall be issued to any person, partnership or
corporation for the operation of casino within the city limits.

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

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

Sec. 3. PENALTIES. Any violation of such existing

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

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

b) Suspension of the business permit for Six (6) months for the
second offense, and a fine of P3,000.00/day

c) Permanent revocation of the business permit and

imprisonment of One (1) year, for the third and subsequent
offenses.

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

Nor was this all. On January 4, 1993, it adopted a sterner

Ordinance No. 3375-93 reading as follows:

ORDINANCE NO. 3375-93

AN ORDINANCE PROHIBITING THE OPERATION OF

CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.
107

WHEREAS, the City Council established a policy as early as

1990 against CASINO under its Resolution No. 2295;

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

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

WHEREAS, subsequently, thereafter, it likewise passed

Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any
establishment for the using and allowing to be used its
premises or portion thereof for the operation of CASINO;

WHEREAS, under Art. 3, section 458, No. (4), sub paragraph

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

NOW THEREFORE,

BE IT ORDAINED by the City Council in session duly

assembled that:

Sec. 1. The operation of gambling CASINO in the City of

Cagayan de Oro is hereby prohibited.

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

the following penalties:

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

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

b) Imprisonment of not less than six (6) months nor more than
one (1) year or a fine in the amount of P5,000.00 or both at the
discretion of the court against the manager, supervisor, and/or
108

any person responsible in the establishment, conduct and

maintenance of gambling CASINO.

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

Pryce assailed the ordinances before the Court of Appeals,

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

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

1. Under existing laws, the Sangguniang Panlungsod of the

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

2. The phrase "gambling and other prohibited games of

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

3. The questioned Ordinances in effect annul P.D. 1869 and

are therefore invalid on that point.

4. The questioned Ordinances are discriminatory to casino and

partial to cockfighting and are therefore invalid on that point.

5. The questioned Ordinances are not reasonable, not

consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws or
policy of the State.

6. It had no option but to follow the ruling in the case of Basco,

et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA
53 in disposing of the issues presented in this present case.
109

PAGCOR is a corporation created directly by P.D. 1869 to help

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

Cagayan de Oro City, like other local political subdivisions, is

empowered to enact ordinances for the purposes indicated in
the Local Government Code. It is expressly vested with the
police power under what is known as the General Welfare
Clause now embodied in Section 16 as follows:

Sec. 16. General Welfare. Every local government unit

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

In addition, Section 458 of the said Code specifically declares

that:

Sec. 458. Powers, Duties, Functions and Compensation.

(a) The Sangguniang Panlungsod, as the legislative body of
the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
110

(1) Approve ordinances and pass resolutions necessary for an

efficient and effective city government, and in this connection,
shall:

xxx xxx xxx

(v) Enact ordinances intended to prevent, suppress and

impose appropriate penalties for habitual drunkenness in
public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill
repute, 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;

This section also authorizes the local government units to

regulate properties and businesses within their territorial limits
in the interest of the general welfare. 5

The petitioners argue that by virtue of these provisions, the

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

It is submitted that this interpretation is consonant with the

policy of local autonomy as mandated in Article II, Section 25,
and Article X of the Constitution, as well as various other
provisions therein seeking to strengthen the character of the
nation. In giving the local government units the power to
prevent or suppress gambling and other social problems, the
111

Local Government Code has recognized the competence of

such communities to determine and adopt the measures best
expected to promote the general welfare of their inhabitants in
line with the policies of the State.

The petitioners also stress that when the Code expressly

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

The adoption of the Local Government Code, it is pointed out,

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

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

It is also maintained that assuming there is doubt regarding the

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

Sec. 5. Rules of Interpretation. In the interpretation of the

provisions of this Code, the following rules shall apply:
112

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

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

xxx xxx xxx

(c) The general welfare provisions in this Code shall be

liberally interpreted to give more powers to local government
units in accelerating economic development and upgrading the
quality of life for the people in the community; . . . (Emphasis
supplied.)

Finally, the petitioners also attack gambling as intrinsically

harmful and cite various provisions of the Constitution and
several decisions of this Court expressive of the general and
official disapprobation of the vice. They invoke the State
policies on the family and the proper upbringing of the youth
and, as might be expected, call attention to the old case of U.S.
v. Salaveria,7 which sustained a municipal ordinance
prohibiting the playing of panguingue. The petitioners decry
the immorality of gambling. They also impugn the wisdom of
P.D. 1869 (which they describe as "a martial law instrument")
in creating PAGCOR and authorizing it to operate casinos "on
land and sea within the territorial jurisdiction of the Philippines."

This is the opportune time to stress an important point.

The morality of gambling is not a justiciable issue. Gambling is

not illegal per se. While it is generally considered inimical to
the interests of the people, there is nothing in the Constitution
categorically proscribing or penalizing gambling or, for that
matter, even mentioning it at all. It is left to Congress to deal
with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or
allow it without limitation or it may prohibit some forms of
gambling and allow others for whatever reasons it may
consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries,
113

cockfighting and horse-racing. In making such choices,

Congress has consulted its own wisdom, which this Court has
no authority to review, much less reverse. Well has it been said
that courts do not sit to resolve the merits of conflicting
theories. 8 That is the prerogative of the political departments.
It is settled that questions regarding the wisdom, morality, or
practicibility of statutes are not addressed to the judiciary but
may be resolved only by the legislative and executive
departments, to which the function belongs in our scheme of
government. That function is exclusive. Whichever way these
branches decide, they are answerable only to their own
conscience and the constituents who will ultimately judge their
acts, and not to the courts of justice.

The only question we can and shall resolve in this petition is

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

The tests of a valid ordinance are well established. A long line

of decisions 9 has held that to be valid, an ordinance must
conform to the following substantive requirements:

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

2) It must not be unfair or oppressive.

3) It must not be partial or discriminatory.

4) It must not prohibit but may regulate trade.

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

6) It must not be unreasonable.

We begin by observing that under Sec. 458 of the Local

Government Code, local government units are authorized to
prevent or suppress, among others, "gambling
and other prohibited games of chance." Obviously, this
provision excludes games of chance which are not prohibited
114

but are in fact permitted by law. The petitioners are less than
accurate in claiming that the Code could have excluded such
games of chance but did not. In fact it does. The language of
the section is clear and unmistakable. Under the rule
of noscitur a sociis, a word or phrase should be interpreted in
relation to, or given the same meaning of, words with which it is
associated. Accordingly, we conclude that since the word
"gambling" is associated with "and other prohibited games of
chance," the word should be read as referring to only illegal
gambling which, like the other prohibited games of chance,
must be prevented or suppressed.

We could stop here as this interpretation should settle the

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

The apparent flaw in the ordinances in question is that they

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

It seems to us that the petitioners are playing with words. While

insisting that the decree has only been "modified pro tanto,"
they are actually arguing that it is already dead, repealed and
useless for all intents and purposes because the Code has
shorn PAGCOR of all power to centralize and regulate casinos.
Strictly speaking, its operations may now be not only prohibited
115

by the local government unit; in fact, the prohibition is not only

discretionary butmandated by Section 458 of the Code if the
word "shall" as used therein is to be given its accepted
meaning. Local government units have now no choice but to
prevent and suppress gambling, which in the petitioners' view
includes both legal and illegal gambling. Under this
construction, PAGCOR will have no more games of chance to
regulate or centralize as they must all be prohibited by the local
government units pursuant to the mandatory duty imposed
upon them by the Code. In this situation, PAGCOR cannot
continue to exist except only as a toothless tiger or a white
elephant and will no longer be able to exercise its powers as a
prime source of government revenue through the operation of
casinos.

It is noteworthy that the petitioners have cited only Par. (f) of

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

Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337,

otherwise known as the "Local Government Code," Executive
Order No. 112 (1987), and Executive Order No. 319 (1988) are
hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances
related to or concerning the barangay are hereby repealed.

(c) The provisions of Sections 2, 3, and 4 of Republic Act No.

1939 regarding hospital fund; Section 3, a (3) and b (2) of
Republic Act. No. 5447 regarding the Special Education Fund;
Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as
amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos.
381, 436, 464, 477, 526, 632, 752, and 1136 are hereby
repealed and rendered of no force and effect.
116

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

it governs locally-funded projects.

(e) The following provisions are hereby repealed or amended

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

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

Furthermore, it is a familiar rule that implied repeals are not

lightly presumed in the absence of a clear and unmistakable
showing of such intention. In Lichauco & Co. v. Apostol, 10 this
Court explained:

The cases relating to the subject of repeal by implication all

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

There is no sufficient indication of an implied repeal of P.D.

1869. On the contrary, as the private respondent points out,
PAGCOR is mentioned as the source of funding in two later
enactments of Congress, to wit, R.A. 7309, creating a Board of
Claims under the Department of Justice for the benefit of
victims of unjust punishment or detention or of violent crimes,
and R.A. 7648, providing for measures for the solution of the
power crisis. PAGCOR revenues are tapped by these two
117

statutes. This would show that the PAGCOR charter has not
been repealed by the Local Government Code but has in fact
been improved as it were to make the entity more responsive
to the fiscal problems of the government.

It is a canon of legal hermeneutics that instead of pitting one

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

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

In light of all the above considerations, we see no way of

arriving at the conclusion urged on us by the petitioners that
the ordinances in question are valid. On the contrary, we find
that the ordinances violate P.D. 1869, which has the character
and force of a statute, as well as the public policy expressed in
118

the decree allowing the playing of certain games of chance

despite the prohibition of gambling in general.

The rationale of the requirement that the ordinances should not

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

Municipal corporations owe their origin to, and derive their

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

This basic relationship between the national legislature and the

local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we
here confirm that Congress retains control of the local
government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still
includes the power to destroy. The power to grant still includes
the power to withhold or recall. True, there are certain notable
innovations in the Constitution, like the direct conferment on
the local government units of the power to tax, 12 which cannot
now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it.
119

The Court understands and admires the concern of the

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

We hold that the power of PAGCOR to centralize and regulate

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

Casino gambling is authorized by P.D. 1869. This decree has

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

WHEREFORE, the petition is DENIED and the challenged

decision of the respondent Court of Appeals is AFFIRMED,
with costs against the petitioners. It is so ordered.
120

Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo,

Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the majority holding that the city ordinances in

question cannot modify much less repeal PAGCOR's general
authority to establish and maintain gambling casinos anywhere
in the Philippines under Presidential Decree No. 1869.

In Basco v. Philippine Amusement and Gaming

Corporation (PAGCOR), 197 SCRA 52, I stated in a separate
opinion that:

. . . I agree with the decision insofar as it holds that the

prohibition, control, and regulation of the entire activity known
as gambling properly pertain to "state policy". It is, therefore,
the political departments of government, namely, the
legislative and the executive that should decide on what
government should do in the entire area of gambling, and
assume full responsibility to the people for such policy."
(Emphasis supplied)

However, despite the legality of the opening and operation of a

casino in Cagayan de Oro City by respondent PAGCOR, I wish
to reiterate my view that gambling in any form runs counter to
the government's own efforts to re-establish and resurrect the
Filipino moral character which is generally perceived to be in a
state of continuing erosion.
121

It is in the light of this alarming perspective that I call upon

government to carefully weigh the advantages and
disadvantages of setting up more gambling facilities in the
country.

That the PAGCOR contributes greatly to the coffers of the

government is not enough reason for setting up more gambling
casinos because, undoubtedly, this will not help improve, but
will cause a further deterioration in the Filipino moral character.

It is worth remembering in this regard that, 1) what is legal is

not always moral and 2) the ends do not always justify the
means.

As in Basco, I can easily visualize prostitution at par

with gambling. And yet, legalization of the former will not
render it any less reprehensible even if substantial revenue for
the government can be realized from it. The same is true of
gambling.

In the present case, it is my considered view that the national

government (through PAGCOR) should re-examine and
re-evaluate its decision of imposing the gambling casino on the
residents of Cagayan de Oro City; for it is abundantly clear that
public opinion in the city is very much against it, and again the
question must be seriously deliberated: will the prospects of
revenue to be realized from the casino outweigh the further
destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring:

While I concur in part with the majority, I wish, however, to

express my views on certain aspects of this case.

I.

It must at once be noted that private respondent Pryce

Properties Corporation (PRYCE) directly filed with the Court of
Appeals its so-called petition for prohibition, thereby invoking
the said court's original jurisdiction to issue writs of
122

prohibition under Section 9(1) of B.P. Blg. 129. As I see it,

however, the principal cause of action therein is one for
declaratory relief: to declare null and unconstitutional
for, inter alia, having been enacted without or in excess of
jurisdiction, for impairing the obligation of contracts, and for
being inconsistent with public policy the challenged
ordinances enacted by the Sangguniang Panglungsod of the
City of Cagayan de Oro. The intervention therein of public
respondent Philippine Amusement and Gaming Corporation
(PAGCOR) further underscores the "declaratory relief" nature
of the action. PAGCOR assails the ordinances for being
contrary to the non-impairment and equal protection clauses of
the Constitution, violative of the Local Government Code, and
against the State's national policy declared in P.D. No. 1869.
Accordingly, the Court of Appeals does not have jurisdiction
over the nature of the action. Even assuming arguendo that
the case is one for prohibition, then, under this Court's
established policy relative to the hierarchy of courts, the
petition should have been filed with the Regional Trial Court of
Cagayan de Oro City. I find no special or compelling reason
why it was not filed with the said court. I do not wish to
entertain the thought that PRYCE doubted a favorable verdict
therefrom, in which case the filing of the petition with the Court
of Appeals may have been impelled by tactical considerations.
A dismissal of the petition by the Court of Appeals would have
been in order pursuant to our decisions in People vs.
Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs.
Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court
stated:

A last word. This court's original jurisdiction to issue writs

of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is
shared by this Court with Regional Trial Courts (formerly
Courts of First Instance), which may issue the writ, enforceable
in any part of their respective regions. It is also shared by this
court, and by the Regional Trial Court, with the Court of
Appeals (formerly, Intermediate Appellate Court), although
prior to the effectivity of Batas Pambansa Bilang 129 on
August 14, 1981, the latter's competence to issue the
123

extraordinary writs was restricted by those "in aid of its

appellate jurisdiction." This concurrence of jurisdiction is not,
however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative of
the revenue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation
of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of
the Court's docket. Indeed, the removal of the restriction of the
jurisdiction of the Court of Appeals in this regard, supra
resulting from the deletion of the qualifying phrase, "in aid of its
appellate jurisdiction" was evidently intended precisely to
relieve this Court pro tanto of the burden of dealing with
applications for extraordinary writs which, but for the expansion
of the Appellate Court's corresponding jurisdiction, would have
had to be filed with it. (citations omitted)

And in Vasquez, this Court said:

One final observation. We discern in the proceedings in this

case a propensity on the part of petitioner, and, for that matter,
the same may be said of a number of litigants who initiate
recourses before us, to disregard the hierarchy of courts in our
judicial system by seeking relief directly from this Court despite
the fact that the same is available in the lower courts in the
exercise of their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice must be
stopped, not only because of the imposition upon the previous
124

time of this Court but also because of the inevitable and

resultant delay, intended or otherwise, in the adjudication of
the case which often has to be remanded or referred to the
lower court as the proper forum under the rules of procedure,
or as better equipped to resolve the issues since this Court is
not a trier of facts. We, therefore, reiterate the judicial policy
that this Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts or
where exceptional and compelling circumstances justify
availment of a remedy within and calling for the exercise of our
primary jurisdiction.

II.

The challenged ordinances are (a) Ordinance No. 3353

entitled, "An Ordinance Prohibiting the Issuance of Business
Permit and Canceling Existing Business Permit To Any
Establishment for the Using and Allowing to be Used Its
Premises or Portion Thereof for the Operation of Casino," and
(b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting
the Operation of Casino and Providing Penalty for Violation
Therefor." They were enacted to implement Resolution No.
2295 entitled, "Resolution Declaring As a Matter of Policy to
Prohibit and/or Not to Allow the Establishment of the Gambling
Casino in the City of Cagayan de Oro," which was promulgated
on 19 November 1990 nearly two years before PRYCE and
PAGCOR entered into a contract of lease under which the
latter leased a portion of the former's Pryce Plaza Hotel for the
operation of a gambling casino which resolution was
vigorously reiterated in Resolution No. 2673 of 19 October
1992.

The challenged ordinances were enacted pursuant to the

Sangguniang Panglungsod's express powers conferred by
Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and
(4)-(i), (iv), and (vii), Local Government Code, and pursuant to
its implied power under Section 16 thereof (the general welfare
clause) which reads:

Sec. 16. General Welfare. Every local government unit shall

exercise the powers expressly granted, those necessarily
125

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.

The issue that necessarily arises is whether in granting local

governments (such as the City of Cagayan de Oro) the above
powers and functions, the Local Government Code has, pro
tanto, repealed P.D. No. 1869 insofar as PAGCOR's general
authority to establish and maintain gambling casinos anywhere
in the Philippines is concerned.

I join the majority in holding that the ordinances cannot repeal

P.D. No. 1869.

III.

The nullification by the Court of Appeals of the challenged

ordinances as unconstitutionalprimarily because it is in
contravention to P.D. No. 1869 is unwarranted. A
contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if
they be conceded as offending P.D. No. 1869. They can be
reconciled, which is not impossible to do. So reconciled, the
ordinances should be construed as not applying to PAGCOR.

IV.

From the pleadings, it is obvious that the government and the

people of Cagayan de Oro City are, for obvious reasons,
strongly against the opening of the gambling casino in their city.
Gambling, even if legalized, would be inimical to the general
126

welfare of the inhabitants of the City, or of any place for that

matter. The PAGCOR, as a government-owned corporation,
must consider the valid concerns of the people of the City of
Cagayan de Oro and should not impose its will upon them in
an arbitrary, if not despotic, manner.