Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-42571-72 July 25, 1983
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA
CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO
BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO
ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA
ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA
DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL,petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO
MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE,
BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.

FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid of
power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that their
rights to due process and equal protection of the laws were violated as the licenses previously given to
them was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall
be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2.
Definitions of Terms (a) 'Night Club' shall include any place or establishment selling to the public
food or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall include any place
or establishment where dancing is permitted to the public and where professional hostesses or hospitality
girls and professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls' shall include
any woman employed by any of the establishments herein defined to entertain guests and customers at
their table or to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of
the establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by
the persons she dances with. (e) 'Operator' shall include the owner, manager, administrator or any person
who operates and is responsible for the operation of any night club, cabaret or dance hall. Section 3.
Prohibition in the Issuance and Renewal of Licenses, Permits. Being the principal cause in the

decadence of morality and because of their other adverse effects on this community as explained above,
no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to operate
within the jurisdiction of the municipality and no license/permit shall be issued to any professional
hostess, hospitality girls and professional dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and
Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which
are now in operation including permits issued to professional hostesses, hospitality girls and professional
dancers are hereby revoked upon the expiration of the thirty-day period given them as provided in Section
8 hereof and thenceforth, the operation of these establishments within the jurisdiction of the municipality
shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions of this
Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding
P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person
charged with the management and/or operation thereof shall be liable for the penalty provided herein.
Section 6. Separability Clause. If, for any reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section 7.
Repealing Clause. All ordinance, resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby repealed. Section 8. Effectivity. This
Ordinance shall take effect immediately upon its approval; provided, however, that operators of night
clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and
professional dancers are given a period of thirty days from the approval hereof within which to wind up
their businesses and comply with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court
of First Instance of Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the
law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3.
That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to
license and regulate tourist-oriented businesses including night clubs, has been transferred to the
Department of Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice Paras
of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The answers
were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by law not only
to regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section
2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not
violative of petitioners' right to due process and the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree No. 189, as amended, did not deprive
Municipal Councils of their jurisdiction to regulate or prohibit night clubs." 7There was the admission of the
following facts as having been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case No.
4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres III,
since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner
Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3.
That the night clubs are well-lighted and have no partitions, the tables being near each other; 4. That the
petitioners owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral
acts and to go out with customers; 5. That these hospitality girls are made to go through periodic medical

check-ups and not one of them is suffering from any venereal disease and that those who fail to submit to
a medical check-up or those who are found to be infected with venereal disease are not allowed to work;
6. That the crime rate there is better than in other parts of Bocaue or in other towns of Bulacan." 8 Then
came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84
and dismissing the cases. Hence this petition for certiorari by way of appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is
set forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the
Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual
titillation and fearful of what the awesome future holds for it, had no alternative except to order thru
its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night
clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the current legal and social revolution,
hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore
issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper appellate
tribunals for any contemplated redress." 9 This Court is, however, unable to agree with such a
conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to justify
the enactment of the assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General power of
council to enact ordinances and make regulations. - The municipal council shall enact such
ordinances and make such regulations, not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein." 10 It is practically a reproduction of the former Section 39 of
Municipal Code. 11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for
the Court in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the
fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right.
Where the power to legislate upon a given subject, and the mode of its exercise and the details of such
legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of
the power, or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative Code
provision was applied, it was stated by this Court: "The general welfare clause has two branches: One
branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon
the municipal council by law. With this class we are not here directly concerned. The second branch of the
clause is much more independent of the specific functions of the council which are enumerated by law. It
authorizes such ordinances as shall seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein.' It is a general rule that
ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable,
consonant with the general powersand purposes of the corporation, and not inconsistent with the laws or
policy of the State." 15 If night clubs were merely then regulated and not prohibited, certainly the assailed
ordinance would pass the test of validity. In the two leading cases above set forth, this Court had stressed

reasonableness, consonant with the general powers and purposes of municipal corporations, as well as
consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a
lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a
field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be
achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under the guise of police regulation." 16 It
is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or
property rights, personal in the case of those individuals desirous of patronizing those night clubs and
property in terms of the investments made and salaries to be earned by those therein employed.

2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally
enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION
OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL
JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city board or council of
each chartered city shall have the power to regulate by ordinance the establishment, maintenance and
operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys,
billiard pools, and other similar places of amusement within its territorial jurisdiction: ... " 19 Then on May
21, 1954, the first section was amended to include not merely "the power to regulate, but likewise
"Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is to
be admitted that as thus amended, if only the above portion of the Act were considered, a municipal
council may go as far as to prohibit the operation of night clubs. If that were all, then the appealed
decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It
was not changed one whit. The exact wording was followed. The power granted remains that
of regulation, notprohibition. There is thus support for the view advanced by petitioners that to construe
Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall embrace only one subject which shall
be expressed in the title thereof. " 21 Since there is no dispute as the title limits the power to regulating, not
prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the
operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power
"to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of the
Administrative Code, such competence extending to all "the great public needs, 23 to quote from Holmes,
and to interdict any calling, occupation, or enterprise. In accordance with the well-settled principle of
constitutional construction that between two possible interpretations by one of which it will be free from
constitutional infirmity and by the other tainted by such grave defect, the former is to be preferred. A
construction that would save rather than one that would affix the seal of doom certainly commends itself.
We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recentlyenacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative Code
provision, is set forth in the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as may
be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be
necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and
order, improve public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..." 26 There are in addition provisions

that may have a bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses,
except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing and regulatory power of the Ministry
of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the
municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or massage
parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses
and other forms of entertainment; ..." 27It is clear that municipal corporations cannot prohibit the operation
of night clubs. They may be regulated, but not prevented from carrying on their business. It would be,
therefore, an exercise in futility if the decision under review were sustained. All that petitioners would have
to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because no
such businesses could legally open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of
an affirmance, would amount to no more than a temporary termination of their business. During such
time, their employees would undergo a period of deprivation. Certainly, if such an undesirable outcome
can be avoided, it should be. The law should not be susceptible to the reproach that it displays less than
sympathetic concern for the plight of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is to be avoided. If it were not thus,
then the element of arbitrariness enters the picture. That is to pay less, very much less, than full
deference to the due process clause with its mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal
forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from
the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to
measures that can be characterized as falling within that aspect of the police power. Reference is
made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory
measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not
prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an
end to practices which could encourage vice and immorality. This is an entirely different case. What was
involved is a measure not embraced within the regulatory power but an exercise of an assumed power to
prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators
Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear
that there is no need to satisfy such a requirement if a statute were void on its face. That it certainly is if
the power to enact such ordinance is at the most dubious and under the present Local Government Code
non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15,
1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of
Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is
hereby made permanent. No costs.

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

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of

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

I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is
less immoral than if performed by someone else, who would be well-intentioned in his
dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I

The Courts commitment to the protection of morals is secondary to its

fealty to the fundamental law of the land. It is foremost a guardian of the
Constitution but not the conscience of individuals. And if it need be, the Court
will not hesitate to make the hammer fall, and heavily in the words of Justice
Laurel, and uphold the constitutional guarantees when faced with laws that,
though not lacking in zeal to promote morality, nevertheless fail to pass the
test of constitutionality.
The pivotal issue in this Petition under Rule 45 (then Rule 42) of the
Revised Rules on Civil Procedure seeking the reversal of the Decision in Civil
Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18
(lower court), is the validity of Ordinance No. 7783 (the Ordinance) of the City
of Manila.
[1]

[2]

[3]

[4]

The antecedents are as follows:

Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and
lodging houses. It built and opened Victoria Court in Malate which was
licensed as a motel although duly accredited with the Department of Tourism
as a hotel. On 28 June 1993, MTDC filed a Petition for Declaratory Relief
with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining
Order (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza,
and the members of the City Council of Manila (City Council). MTDC prayed
that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional.
[5]

[6]

[7]

[8]

Enacted by the City Council on 9 March 1993 and approved by petitioner

City Mayor on 30 March 1993, the said Ordinance is entitled
[9]

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF

BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE
AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR
OTHER PURPOSES.
[10]

The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and engage in, any

business providing certain forms of amusement, entertainment, services and

facilities where women are used as tools in entertainment and which tend to
disturb the community, annoy the inhabitants, and adversely affect the social and
moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the
said officials are prohibited from issuing permits, temporary or otherwise, or
from granting licenses and accepting payments for the operation of business
enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from
the date of approval of this ordinance within which to wind up business
operations or to transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area,such
as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but
also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the
like.
11. Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service
station, light industry with any machinery, or funeral establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General Manager, or
person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in
case of subsequent violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments, motels
and inns such as MTDCs Victoria Court considering that these were not
establishments for amusement or entertainment and they were not
services or facilities for entertainment, nor did they use women as tools for
entertainment, and neither did they disturb the community, annoy the
inhabitants or adversely affect the social and moral welfare of the
community.
[11]

MTDC further advanced that the Ordinance was invalid and

unconstitutional for the following reasons: (1) The City Council has no power
to prohibit the operation of motels as Section 458 (a) 4 (iv) of the Local
Government Code of 1991 (the Code) grants to the City Council only the
power to regulate the establishment, operation and maintenance of hotels,
motels, inns, pension houses, lodging houses and other similar
establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 499 which specifically declared portions of the ErmitaMalate area as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police power as the
compulsory closure of the motel business has no reasonable relation to the
legitimate
municipal
interests
sought
to
be
protected;
(4)
The Ordinance constitutes an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDCs constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiffs property rights; (b) the
City Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially destroy it; and (6)
TheOrdinance constitutes a denial of equal protection under the law as no
[12]

[13]

reasonable basis exists for prohibiting the operation of motels and inns, but
not pension houses, hotels, lodging houses or other similar establishments,
and for prohibiting said business in the Ermita-Malate area but not outside of
this area.
[14]

In their Answer dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the
community as provided for in Section 458 (a) 4 (vii) of the Local Government
Code, which reads, thus:
[15]

[16]

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit
certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community.
Citing Kwong Sing v. City of Manila, petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to
control, to govern and to restrain places of exhibition and amusement.
[17]

[18]

Petitioners likewise asserted that the Ordinance was enacted by the City
Council of Manila to protect the social and moral welfare of the community in
conjunction with its police power as found in Article III, Section 18(kk) of
Republic Act No. 409, otherwise known as the Revised Charter of the City of
Manila (Revised Charter of Manila) which reads, thus:
[19]

[20]

ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. The Municipal Board shall have the
following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion of
the morality, peace, good order, comfort, convenience, and general welfare of
the city and its inhabitants, and such others as may be necessary to carry into
effect and discharge the powers and duties conferred by this chapter; and to
fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both such fine and
imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of
validity; hence, private respondent had the burden to prove its illegality or
unconstitutionality.
[21]

Petitioners also maintained that there was no inconsistency between P.D.

499 and the Ordinance as the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to remain a commercial zone.
The Ordinance, the petitioners likewise claimed, cannot be assailed as ex
post facto as it was prospective in operation. The Ordinance also did not
infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the
Ermita-Malate area and other places in the City of Manila.
[22]

[23]

[24]

On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge

Laguio) issued an ex-parte temporary restraining order against the
enforcement of the Ordinance. And on 16 July 1993, again in an intrepid
gesture, he granted the writ of preliminary injunction prayed for by MTDC.
[25]

[26]

After trial, on 25 November 1994, Judge Laguio rendered the

assailed Decision, enjoining the petitioners from implementing the Ordinance.
The dispositive portion of said Decisionreads:
[27]

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series

of 1993, of the City of Manila null and void, and making permanent the writ of

preliminary injunction that had been issued by this Court against the defendant. No
costs.
SO ORDERED.

[28]

Petitioners filed with the lower court a Notice of Appeal on 12 December

1994, manifesting that they are elevating the case to this Court under then
Rule 42 on pure questions of law.
[29]

[30]

On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It erred in
concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding
that the questioned Ordinance contravenes P.D. 499 which allows operators
of all kinds of commercial establishments, except those specified therein; and
(3) It erred in declaring the Ordinance void and unconstitutional.
[31]

[32]

In the Petition and in its Memorandum, petitioners in essence repeat the

assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary
power of the State and the general welfare clause exercised by local
government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of
Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D.
499; and that it enjoys the presumption of validity.
[33]

[34]

[35]

In its Memorandum dated 27 May 1996, private respondent maintains

that the Ordinance is ultra vires and that it is void for being repugnant to the
general law. It reiterates that the questioned Ordinance is not a valid exercise
of police power; that it is violative of due process, confiscatory and amounts to
an arbitrary interference with its lawful business; that it is violative of the equal
protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide
and control his actions.
[36]

This is an opportune time to express the Courts deep sentiment and

tenderness for the Ermita-Malate area being its home for several decades. A
long-time resident, the Court witnessed the areas many turn of events. It
relished its glory days and endured its days of infamy. Much as the Court
harks back to the resplendent era of the Old Manila and yearns to restore its
lost grandeur, it believes that the Ordinance is not the fitting means to that
end. The Court is of the opinion, and so holds, that the lower court did not err
in declaring theOrdinance, as it did, ultra vires and therefore null and void.

The Ordinance is so replete with constitutional infirmities that almost every

sentence thereof violates a constitutional provision. The prohibitions and
sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from attempts at
rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and must be passed
according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution
or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable.
[37]

Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws. The Ordinance must satisfy two
requirements: it must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the Constitution. The
requirement that the enactment must not violate existing law gives stress to
the precept that local government units are able to legislate only by virtue of
their derivative legislative power, a delegation of legislative power from the
national legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter.
[38]

[39]

This relationship between the national legislature and the local

government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. The national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it.
[40]

The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power in
order to effectively accomplish and carry out the declared objects of their
creation. This delegated police power is found in Section 16 of the Code,
known as the general welfare clause, viz:
[41]

SECTION 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their

respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city
council. The Code empowers the legislative bodies to enact ordinances,
approve resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the
Code and in the proper exercise of the corporate powers of the province/city/
municipality provided under the Code. The inquiry in this Petition is
concerned with the validity of the exercise of such delegated power.
[42]

The Ordinance contravenes

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

The relevant constitutional provisions are the following:

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

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

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

Sec. 9. Private property shall not be taken for public use without just compensation.
A. The Ordinance infringes
the Due Process Clause

[47]

The constitutional safeguard of due process is embodied in the fiat (N)o

person shall be deprived of life, liberty or property without due process of
law. . . .
[48]

There is no controlling and precise definition of due process. It furnishes

though a standard to which governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. This
standard is aptly described as a responsiveness to the supremacy of reason,
obedience to the dictates of justice, and as such it is a limitation upon the
exercise of the police power.
[49]

[50]

The purpose of the guaranty is to prevent governmental encroachment

against the life, liberty and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the government, unrestrained by
the established principles of private rights and distributive justice; to protect
property from confiscation by legislative enactments, from seizure, forfeiture,
and destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law.
[51]

The guaranty serves as a protection against arbitrary regulation, and

private corporations and partnerships are persons within the scope of the
guaranty insofar as their property is concerned.
[52]

This clause has been interpreted as imposing two separate limits on

government, usually called procedural due process and substantive due
process.
Procedural due process, as the phrase implies, refers to the procedures
that the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what kind
of notice and what form of hearing the government must provide when it takes
a particular action.
[53]

Substantive due process, as that phrase connotes, asks whether the

government has an adequate reason for taking away a persons life, liberty, or
property. In other words, substantive due process looks to whether there is a
sufficient justification for the governments action. Case law in the United
States (U.S.) tells us that whether there is such a justification depends very
much on the level of scrutiny used. For example, if a law is in an area where
only rational basis review is applied, substantive due process is met so long
as the law is rationally related to a legitimate government purpose. But if it is
an area where strict scrutiny is used, such as for protecting fundamental
rights, then the government will meet substantive due process only if it can
[54]

[55]

prove that the law is necessary to achieve a compelling government purpose.

[56]

The police power granted to local government units must always be

exercised with utmost observance of the rights of the people to due process
and equal protection of the law. Such power cannot be exercised whimsically,
arbitrarily or despotically as its exercise is subject to a qualification, limitation
or restriction demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill of Rights.
Individual rights, it bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public interest
or public welfare. Due process requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty and property.
[57]

[58]

[59]

Requisites for the valid exercise

of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of constitutional
infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with
private rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
It must be evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. A reasonable relation must
exist between the purposes of the police measure and the means employed
for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded.
[60]

[61]

Lacking a concurrence of these two requisites, the police measure shall be

struck down as an arbitrary intrusion into private rights a violation of the
due process clause.
[62]

The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate area which
are allegedly operated under the deceptive veneer of legitimate, licensed and
tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges,
hotels and motels. Petitioners insist that even the Court in the case of ErmitaMalate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila had already taken judicial notice of the alarming increase in the rate
of prostitution, adultery and fornication in Manila traceable in great part to
existence of motels, which provide a necessary atmosphere for clandestine
[63]

entry, presence and exit and thus become the ideal haven for prostitutes and
thrill-seekers.
[64]

The object of the Ordinance was, accordingly, the promotion and

protection of the social and moral values of the community. Granting for the
sake of argument that the objectives of theOrdinance are within the scope of
the City Councils police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to
make all reasonable regulations looking to the promotion of the moral and
social values of the community. However, the worthy aim of fostering public
morals and the eradication of the communitys social ills can be achieved
through means less restrictive of private rights; it can be attained by
reasonable restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into businesses allowed
under the Ordinance have no reasonable relation to the accomplishment of its
purposes. Otherwise stated, the prohibition of the enumerated establishments
will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of
ill-repute and establishments of the like which the City Council may lawfully
prohibit, it is baseless and insupportable to bring within that classification
sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns. This is not
warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral
welfare of the community.
[65]

That these are used as arenas to consummate illicit sexual affairs and as
venues to further the illegal prostitution is of no moment. We lay stress on the
acrid truth that sexual immorality, being a human frailty, may take place in the
most innocent of places that it may even take place in the substitute
establishments enumerated under Section 3 of the Ordinance. If the flawed
logic of the Ordinance were to be followed, in the remote instance that an
immoral sexual act transpires in a church cloister or a court chamber, we
would behold the spectacle of the City of Manila ordering the closure of the
church or court concerned. Every house, building, park, curb, street or even
vehicles for that matter will not be exempt from the prohibition. Simply
because there are no pure places where there are impure men. Indeed,

even the Scripture and the Tradition of Christians churches continually recall
the presence and universality of sin in mans history.
[66]

The problem, it needs to be pointed out, is not the establishment, which by

its nature cannot be said to be injurious to the health or comfort of the
community and which in itself is amoral, but the deplorable human activity that
may occur within its premises. While a motel may be used as a venue for
immoral sexual activity, it cannot for that reason alone be punished. It cannot
be classified as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were allowed,
then the Ermita-Malate area would not only be purged of its supposed social
ills, it would be extinguished of its soul as well as every human activity,
reprehensible or not, in its every nook and cranny would be laid bare to the
estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core
issues of morality. Try as the Ordinance may to shape morality, it should not
foster the illusion that it can make a moral man out of it because immorality is
not a thing, a building or establishment; it is in the hearts of men. The City
Council instead should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which are
covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and
property in terms of the investments made and the salaries to be paid to those
therein employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations
such as daily inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its authority to suspend
or revoke their licenses for these violations; and it may even impose
increased license fees. In other words, there are other means to reasonably
accomplish the desired end.
[67]

Means employed are

constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3

thereof, owners and/or operators of the enumerated establishments are given

three (3) months from the date of approval of the Ordinancewithin which to
wind up business operations or to transfer to any place outside the ErmitaMalate area or convert said businesses to other kinds of business allowable
within the area. Further, it states in Section 4 that in cases of subsequent
violations of the provisions of the Ordinance, the premises of the erring
establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on
the constitutional guarantees of a persons fundamental right to liberty and
property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm
to include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare. In
accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his livelihood
by any lawful calling; and to pursue any avocation are all deemed embraced
in the concept of liberty.
[68]

[69]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought
to clarify the meaning of liberty. It said:
[70]

While the Court has not attempted to define with exactness the liberty. . . guaranteed
[by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from
bodily restraint but also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognizedas essential to the orderly
pursuit of happiness by free men. In a Constitution for a free people, there can be no
doubt that the meaning of liberty must be broad indeed.
In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. In explaining
the respect the Constitution demands for the autonomy of the person in
making these choices, the U.S. Supreme Court explained:

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

Persons desirous to own, operate and patronize the enumerated

establishments under Section 1 of the Ordinance may seek autonomy for
these purposes.
Motel patrons who are single and unmarried may invoke this right to
autonomy to consummate their bonds in intimate sexual conduct within the
motels premises be it stressed that their consensual sexual behavior does
not contravene any fundamental state policy as contained in the Constitution.
Adults have a right to choose to forge such relationships with others in the
confines of their own private lives and still retain their dignity as free persons.
The liberty protected by the Constitution allows persons the right to make this
choice. Their right to liberty under the due process clause gives them the full
right to engage in their conduct without intervention of the government, as
long as they do not run afoul of the law. Liberty should be the rule and
restraint the exception.
[72]

[73]

Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository
of freedom. The right to be let alone is the beginning of all freedom it is the
most comprehensive of rights and the right most valued by civilized men.
[74]

The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:
[75]

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

interest. Morfe accorded recognition to the right to privacy independently of its

identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions into
the personal life of the citizen.
[76]

There is a great temptation to have an extended discussion on these civil

liberties but the Court chooses to exercise restraint and restrict itself to the
issues presented when it should. The previous pronouncements of the Court
are not to be interpreted as a license for adults to engage in criminal conduct.
The reprehensibility of such conduct is not diminished. The Court only
reaffirms and guarantees their right to make this choice. Should they be
prosecuted for their illegal conduct, they should suffer the consequences of
the choice they have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its property.
The Ordinance in Section 1 thereof forbids the running of the enumerated
businesses in the Ermita-Malate area and in Section 3 instructs its
owners/operators to wind up business operations or to transfer outside the
area or convert said businesses into allowed businesses. An ordinance which
permanently restricts the use of property that it can not be used for any
reasonable purpose goes beyond regulation and must be recognized as a
taking of the property without just compensation. It is intrusive and violative
of the private property rights of individuals.
[77]

[78]

The Constitution expressly provides in Article III, Section 9, that private

property shall not be taken for public use without just compensation. The
provision is the most important protection of property rights in the Constitution.
This is a restriction on the general power of the government to take property.
The constitutional provision is about ensuring that the government does not
confiscate the property of some to give it to others. In part too, it is about loss
spreading. If the government takes away a persons property to benefit
society, then society should pay. The principal purpose of the guarantee is to
bar the Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole.
[79]

There are two different types of taking that can be identified. A

possessory taking occurs when the government confiscates or physically
occupies property. A regulatory taking occurs when the governments
regulation leaves no reasonable economically viable use of the property.
[80]

In the landmark case of Pennsylvania Coal v. Mahon, it was held that a

taking also could be found if government regulation of the use of property
went too far. When regulation reaches a certain magnitude, in most if not in
all cases there must be an exercise of eminent domain and compensation to
support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.
[81]

[82]

No formula or rule can be devised to answer the questions of what is too

far and when regulation becomes a taking. In Mahon, Justice Holmes
recognized that it was a question of degree and therefore cannot be disposed
of by general propositions. On many other occasions as well, the U.S.
Supreme Court has said that the issue of when regulation constitutes a taking
is a matter of considering the facts in each case. The Court asks whether
justice and fairness require that the economic loss caused by public action
must be compensated by the government and thus borne by the public as a
whole, or whether the loss should remain concentrated on those few persons
subject to the public action.
[83]

What is crucial in judicial consideration of regulatory takings is that

government regulation is a taking if it leaves no reasonable economically
viable use of property in a manner that interferes with reasonable
expectations for use. A regulation that permanently denies all economically
beneficial or productive use of land is, from the owners point of view,
equivalent to a taking unless principles of nuisance or property law that
existed when the owner acquired the land make the use prohibitable. When
the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.
[84]

[85]

[86]

A regulation which denies all economically beneficial or productive use of

land will require compensation under the takings clause. Where a regulation
places limitations on land that fall short of eliminating all economically
beneficial use, a taking nonetheless may have occurred, depending on a
complex of factors including the regulations economic effect on the
landowner, the extent to which the regulation interferes with reasonable
investment-backed expectations and the character of government action.
These inquiries are informed by the purpose of the takings clause which is to
prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole.
[87]

A restriction on use of property may also constitute a taking if not

reasonably necessary to the effectuation of a substantial public purpose or if it

has an unduly harsh impact on the distinct investment-backed expectations of

the owner.
[88]

The Ordinance gives the owners and operators of the prohibited

establishments three (3) months from its approval within which to wind up
business operations or to transfer to any place outside of the Ermita-Malate
area or convert said businesses to other kinds of business allowable within
the area. The directive to wind up business operations amounts to a closure
of the establishment, a permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to accommodate
an allowed business, the structure which housed the previous business will
be left empty and gathering dust. Suppose he transfers it to another area, he
will likewise leave the entire establishment idle. Consideration must be given
to the substantial amount of money invested to build the edifices which the
owner reasonably expects to be returned within a period of time. It is apparent
that the Ordinance leaves no reasonable economically viable use of property
in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the
Ermita-Malate area or to convert into allowed businesses are confiscatory as
well. The penalty of permanent closure in cases of subsequent violations
found in Section 4 of the Ordinance is also equivalent to a taking of private
property.
The second option instructs the owners to abandon their property and
build another one outside the Ermita-Malate area. In every sense, it qualifies
as a taking without just compensation with an additional burden imposed on
the owner to build another establishment solely from his coffers. The proffered
solution does not put an end to the problem, it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The conversion
into allowed enterprises is just as ridiculous. How may the respondent convert
a motel into a restaurant or a coffee shop, art gallery or music lounge without
essentially destroying its property? This is a taking of private property without
due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or
transfer his business, otherwise it will be closed permanently after a
subsequent violation should be borne by the public as this end benefits them
as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of police power,
which limits a wholesome property to a use which can not reasonably be

made of it constitutes the taking of such property without just compensation.

Private property which is not noxious nor intended for noxious purposes may
not, by zoning, be destroyed without compensation. Such principle finds no
support in the principles of justice as we know them. The police powers of
local government units which have always received broad and liberal
interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and
eminent domain. It needs restating that the property taken in the exercise of
police power is destroyed because it is noxious or intended for a noxious
purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore wholesome. If it be of
public benefit that a wholesome property remain unused or relegated to a
particular purpose, then certainly the public should bear the cost of
reasonable compensation for the condemnation of private property for public
use.
[89]

[90]

Further, the Ordinance fails to set up any standard to guide or limit the
petitioners actions. It in no way controls or guides the discretion vested in
them. It provides no definition of the establishments covered by it and it fails to
set forth the conditions when the establishments come within its ambit of
prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this, which make
possible abuses in its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested, are
unreasonable and invalid. The Ordinance should have established a rule by
which its impartial enforcement could be secured.
[91]

Ordinances placing restrictions upon the lawful use of property must, in

order to be valid and constitutional, specify the rules and conditions to be
observed and conduct to avoid; and must not admit of the exercise, or of an
opportunity for the exercise, of unbridled discretion by the law enforcers in
carrying out its provisions.
[92]

Thus, in Coates v. City of Cincinnati, as cited in People v. Nazario,

the U.S. Supreme Court struck down an ordinance that had made it illegal for
three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by. The ordinance was
nullified as it imposed no standard at all because one may never know in
advance what annoys some people but does not annoy others.
[93]

[94]

Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and

adversely affect the social and moral welfare of the community. The cited
case supports the nullification of the Ordinance for lack of comprehensible
standards to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a lack
of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable
regulation which is a far cry from the ill-considered Ordinance enacted by the
City Council.
In FW/PBS, INC. v. Dallas, the city of Dallas adopted a comprehensive
ordinance regulating sexually oriented businesses, which are defined to
include adult arcades, bookstores, video stores, cabarets, motels, and
theaters as well as escort agencies, nude model studio and sexual encounter
centers. Among other things, the ordinance required that such businesses be
licensed. A group of motel owners were among the three groups of
businesses that filed separate suits challenging the ordinance. The motel
owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer than
ten (10) hours resulted in increased crime and other secondary effects. They
likewise argued than the ten (10)-hour limitation on the rental of motel rooms
placed an unconstitutional burden on the right to freedom of association.
Anent the first contention, the U.S. Supreme Court held that the
reasonableness of the legislative judgment combined with a study which the
city considered, was adequate to support the citys determination that motels
permitting room rentals for fewer than ten (10 ) hours should be included
within the licensing scheme. As regards the second point, the Court held that
limiting motel room rentals to ten (10) hours will have no discernible effect on
personal bonds as those bonds that are formed from the use of a motel room
for fewer than ten (10) hours are not those that have played a critical role in
the culture and traditions of the nation by cultivating and transmitting shared
ideals and beliefs.
[95]

The ordinance challenged in the above-cited case merely regulated the

targeted businesses. It imposed reasonable restrictions; hence, its validity
was upheld.

The case of Ermita Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila, it needs pointing out, is also different from this case in
that what was involved therein was a measure which regulated the mode in
which motels may conduct business in order to put an end to practices which
could encourage vice and immorality. Necessarily, there was no valid
objection on due process or equal protection grounds as the ordinance did not
prohibit motels. The Ordinance in this case however is not a regulatory
measure but is an exercise of an assumed power to prohibit.
[96]

[97]

The foregoing premises show that the Ordinance is an unwarranted and

unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise
of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated differently, so
as to give undue favor to some and unjustly discriminate against others. The
guarantee means that no person or class of persons shall be denied the same
protection of laws which is enjoyed by other persons or other classes in like
circumstances. The equal protection of the laws is a pledge of the protection
of equal laws. It limits governmental discrimination. The equal protection
clause extends to artificial persons but only insofar as their property is
concerned.
[98]

[99]

[100]

[101]

The Court has explained the scope of the equal protection clause in this
wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: The ideal situation is for the laws benefits to be available to all, that
none be placed outside the sphere of its coverage. Only thus could chance and favor
be excluded and the affairs of men governed by that serene and impartial uniformity,
which is of the very essence of the idea of law. There is recognition, however, in the
opinion that what in fact exists cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the realities of the
situation. The constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the general welfare be
promoted, which is the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such circumstances invoke
the equal protection clause only if they can show that the governmental act assailed,

far from being inspired by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no support in reason.
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities
imposed. Favoritism and undue preference cannot be allowed. For the principle is that
equal protection and security shall be given to every person under circumstances
which, if not identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest.
[102]

Legislative bodies are allowed to classify the subjects of legislation. If the

classification is reasonable, the law may operate only on some and not all of
the people without violating the equal protection clause. The classification
must, as an indispensable requisite, not be arbitrary. To be valid, it must
conform to the following requirements:
[103]

1) It must be based on substantial distinctions.

2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]

In the Courts view, there are no substantial distinctions between motels,

inns, pension houses, hotels, lodging houses or other similar establishments.
By definition, all are commercial establishments providing lodging and usually
meals and other services for the public. No reason exists for prohibiting
motels and inns but not pension houses, hotels, lodging houses or other
similar establishments. The classification in the instant case is invalid as
similar subjects are not similarly treated, both as to rights conferred and
obligations imposed. It is arbitrary as it does not rest on substantial
distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this area. A
noxious establishment does not become any less noxious if located outside
the area.
The standard where women are used as tools for entertainment is also
discriminatory as prostitution one of the hinted ills the Ordinance aims to
banish is not a profession exclusive to women. Both men and women have
an equal propensity to engage in prostitution. It is not any less grave a sin
when men engage in it. And why would the assumption that there is an

ongoing immoral activity apply only when women are employed and be
inapposite when men are in harness? This discrimination based on gender
violates equal protection as it is not substantially related to important
government objectives. Thus, the discrimination is invalid.
[105]

Failing the test of constitutionality, the Ordinance likewise failed to pass

the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar establishments
is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance
of any entertainment or amusement facilities, and to prohibit certain forms of
amusement or entertainment is provided under Section 458 (a) 4 (vii) of the
Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants

pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments, the
only power of the City Council to legislate relative thereto is to regulate them
to promote the general welfare. The Code still withholds from cities the power
to suppress and prohibit altogether the establishment, operation and
maintenance of such establishments. It is well to recall the rulings of the Court
in Kwong Sing v. City of Manila that:
[106]

The word regulate, as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
regulate should not be construed as synonymous with suppress or prohibit.
Consequently, under the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the employment or business
shall be exercised.
[107]

And in People v. Esguerra, wherein the Court nullified an ordinance of

the Municipality of Tacloban which prohibited the selling, giving and
dispensing of liquor ratiocinating that the municipality is empowered only to
regulate the same and not prohibit. The Court therein declared that:
[108]

(A)s a general rule when a municipal corporation is specifically given authority or

power to regulate or to license and regulate the liquor traffic, power to prohibit is
impliedly withheld.
[109]

These doctrines still hold contrary to petitioners assertion that they were
modified by the Code vesting upon City Councils prohibitory powers.
[110]

Similarly, the City Council exercises regulatory powers over public dancing
schools, public dance halls, sauna baths, massage parlors, and other places
for entertainment or amusement as found in the first clause of Section 458 (a)
4 (vii). Its powers to regulate, suppress and suspend such other events or
activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants and to prohibit certain forms
of amusement or entertainment in order to protect the social and moral
welfare of the community are stated in the second and third clauses,
respectively of the same Section. The several powers of the City Council as
provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are
separated by semi-colons (;), the use of which indicates that the clauses in
which these powers are set forth are independent of each other albeit closely
related to justify being put together in a single enumeration or paragraph.
These powers, therefore, should not be confused, commingled or
consolidated as to create a conglomerated and unified power of regulation,
suppression and prohibition.
[111]

[112]

The Congress unequivocably specified the establishments and forms of

amusement or entertainment subject to regulation among which are
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other
similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration
therefore cannot be included as among other events or activities for
amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants or certain forms of amusement or
entertainment which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly
granted to it and those which are necessarily implied or incidental to the
exercise thereof. By reason of its limited powers and the nature thereof, said
powers are to be construed strictissimi juris and any doubt or ambiguity
arising out of the terms used in granting said powers must be construed
against the City Council. Moreover, it is a general rule in statutory
construction that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others. Expressio unius est exclusio
alterium. This maxim is based upon the rules of logic and the natural workings
of human mind. It is particularly applicable in the construction of such statutes
as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction.
[113]

[114]

The argument that the City Council is empowered to enact

the Ordinance by virtue of the general welfare clause of the Code and of Art.
3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On
the first point, the ruling of the Court in People v. Esguerra, is instructive. It
held that:
[115]

The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by the
other provisions of the same Code, and therefore it can not be applied to intoxicating
liquors, for the power to regulate the selling, giving away and dispensing thereof is
granted specifically by section 2242 (g) to municipal councils. To hold that, under the
general power granted by section 2238, a municipal council may enact the ordinance
in question, notwithstanding the provision of section 2242 (g), would be to make the
latter superfluous and nugatory, because the power to prohibit, includes the power to
regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and override the
earlier law, the Revised Charter of Manila.Legis posteriores priores contrarias
abrogant, or later statute repeals prior ones which are repugnant thereto. As
between two laws on the same subject matter, which are irreconcilably
inconsistent, that which is passed later prevails, since it is the latest
expression of legislative will. If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter, which cannot
be removed by any fair and reasonable method of interpretation, it is the latest
expression of the legislative will which must prevail and override the earlier.
[116]

[117]

Implied repeals are those which take place when a subsequently enacted
law contains provisions contrary to those of an existing law but no provisions
expressly repealing them. Such repeals have been divided into two general
classes: those which occur where an act is so inconsistent or irreconcilable
with an existing prior act that only one of the two can remain in force and
those which occur when an act covers the whole subject of an earlier act and
is intended to be a substitute therefor. The validity of such a repeal is
sustained on the ground that the latest expression of the legislative will should
prevail.
[118]

In addition, Section 534(f) of the Code states that All general and special
laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby repealed or modified
accordingly. Thus, submitting to petitioners interpretation that the Revised

Charter of Manila empowers the City Council to prohibit motels, that portion of
the Charter stating such must be considered repealed by the Code as it is at
variance with the latters provisions granting the City Council mere regulatory
powers.
It is well to point out that petitioners also cannot seek cover under the
general welfare clause authorizing the abatement of nuisances without judicial
proceedings. That tenet applies to a nuisance per se, or one which affects the
immediate safety of persons and property and may be summarily abated
under the undefined law of necessity. It can not be said that motels are
injurious to the rights of property, health or comfort of the community. It is a
legitimate business. If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose. A motel is not per se a nuisance
warranting its summary abatement without judicial intervention.
[119]

Notably, the City Council was conferred powers to prevent and prohibit
certain activities and establishments in another section of the Code which is
reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties
for habitual drunkenness in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of
houses of ill repute, gambling and other
prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and morals
of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the
power to prohibit the establishments enumerated in Section 1 of

the Ordinance, it would have so declared in uncertain terms by adding them to

the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with houses
of ill-repute and expand the City Councils powers in the second and third
clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its
prohibitory powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are recognized
legitimate enterprises can be gleaned from another Section of the Code.
Section 131 under the Title on Local Government Taxation expressly
mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the contractors
defined in paragraph (h) thereof. The same Section also defined
amusement as a pleasurable diversion and entertainment, synonymous to
relaxation, avocation, pastime or fun; and amusement places to include
theaters, cinemas, concert halls, circuses and other places of amusement
where one seeks admission to entertain oneself by seeing or viewing the
show or performances. Thus, it can be inferred that the Code considers these
establishments as legitimate enterprises and activities. It is well to recall the
maxim reddendo singula singulis which means that words in different parts of
a statute must be referred to their appropriate connection, giving to each in its
place, its proper force and effect, and, if possible, rendering none of them
useless or superfluous, even if strict grammatical construction demands
otherwise. Likewise, where words under consideration appear in different
sections or are widely dispersed throughout an act the same principle applies.
[120]

Not only does the Ordinance contravene the Code, it likewise runs counter
to the provisions of P.D. 499. As correctly argued by MTDC, the statute had
already converted the residential Ermita-Malate area into a commercial area.
The decree allowed the establishment and operation of all kinds of
commercial establishments except warehouse or open storage depot, dump
or yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment. The rule is that for an ordinance to be
valid and to have force and effect, it must not only be within the powers of the
council to enact but the same must not be in conflict with or repugnant to the
general law. As succinctly illustrated in Solicitor General v. Metropolitan
Manila Authority:
[121]

[122]

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

legislative power from the national legislature (except only that the power to create
their own sources of revenue and to levy taxes is conferred by the Constitution itself).
They are mere agents vested with what is called the power of subordinate legislation.
As delegates of the Congress, the local government units cannot contravene but must
obey at all times the will of their principal. In the case before us, the enactment in
question, which are merely local in origin cannot prevail against the decree, which has
the force and effect of a statute.
[123]

Petitioners contend that the Ordinance enjoys the presumption of validity.

While this may be the rule, it has already been held that although the
presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of the land, or
an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a
common right.
[124]

Conclusion
All considered, the Ordinance invades fundamental personal and property
rights and impairs personal privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in
its operation; it is not sufficiently detailed and explicit that abuses may attend
the enforcement of its sanctions. And not to be forgotten, the City Council
under the Code had no power to enact the Ordinance and is therefore ultra
vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of
motives and shares the concern of the public for the cleansing of the ErmitaMalate area of its social sins. Police power legislation of such character
deserves the full endorsement of the judiciary we reiterate our support for it.
But inspite of its virtuous aims, the enactment of the Ordinance has no
statutory or constitutional authority to stand on. Local legislative bodies, in this
case, the City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or conversion
without infringing the constitutional guarantees of due process and equal
protection of laws not even under the guise of police power.

WHEREFORE, the Petition is hereby DENIED and the decision of the

Regional Trial Court declaring the Ordinance void is AFFIRMED. Costs
against petitioners.
SO ORDERED.
G.R. No. L-33169 July 30, 1982
GLICERIO JAVELLANA, petitioner,
vs.
HON. CESAR KINTANAR, Judge of the Court of First Instance of Negros Occidental, CITY OF
BAGO, CITY COUNCIL, CITY MAYOR, and CITY TREASURER, all of the City of
Bago, respondents.
G.R. No. L-33212 July 30, 1982
GLICERIO JAVELLANA, petitioner, JUANITO NOVILLAS, ET AL., petitioners-intervenors,
vs.
HON. CESAR KINTANAR, Judge of the Court of First Instance of Negros Occidental, CITY OF
BAGO, CITY COUNCIL, CITY MAYOR, and CITY TREASURER, all of the City of
Bago, respondents.
San Juan, Africa, Gonzales & San Agustin Law Offices for petitioner.
Feliciano E. Escaran, Rolando N. Medalla, Fernando C. Divinagracia and Yulo & Associates for
respondents.

ABAD SANTOS, J.:

These are appeals from a decision of the Court of First Instance of Negros Occidental dated January
12, 1971, which dismissed a petition that sought a declaration of nullity of Ordinances Nos. 142, 145
and 150, Series of 1968, of the City of B ago, and to enjoin their enforcement.
Glicerio Javellana is the owner of a market (building and lot) in Crossing Bago, Bago City, which
consists of store spaces and of permanent and movable stalls all leased to vendors. Serving the
general population of the City of Bago and of the adjoining municipalities, for more than twenty
years, said market had been operating under a Mayor's permit of the City of Bago up to the second
quarter of 1968 when the Treasurer of that city refused to accept the payment of Javellana for a
municipal license for the third quarter on the ground that Ordinance No. 150 had been enacted
prohibiting the establishment, maintenance or operation of a public market in the City of Bago by any
person, entity, association or corporation other than the city government of Bago. This prompted
Javellana, as owner of said market, to file the petition aforementioned.
Juanito Novillas and other store owners, stall holders and fish vendors in Javellana's market joined
in the petition by means of a complaint in intervention.

The appeal of Javellana is docketed as G.R. No. L-33169 while that of Novillas, et al. is docketed as
G.R. No. L-33212.
The ordinances which are the subject of the petition and the present appeal were enacted by the
Municipal Board of Bago City in 1968 and insofar as relevant are couched in the following language:
Ordinance No. 142.
SECTION 1. Section 1 of Ordinance No. 10, Series of 1954, as amended by
Resolution No. 39, Series of 1955, and adopted by Ordinance No. 4, Series of 1966,
is hereby amended to read as follows:
Section 1. No person or persons, except peddlers thereof who have paid the
corresponding inspection and other market fee, shall sell or offer for sale, fish, meat
and other foodstuffs which are perishable in nature, outside of the public markets
within the City Proper of the City of Bago and its barrios.
SECTION 2. This ordinance shall take effect upon its approval.
Ordinance No. 145.
SECTION 1. Section 3, Paragraph C of City Ordinance No. 134, Series of 1968, is
hereby amended to read as follows:
Section 3. ...
C Inspection and Inspection Fees:
I All fish, seafoods and other foodstuffs which are perishable in nature to be sold
or offered for sale within the jurisdiction of the City of Bago shag first be submitted for
inspection of the City Health Officer of the City and/or his duly authorized
representatives before the same shall be sold or offered for sale to the public; and
such inspection shall be made in the city-owned public market within the City Proper
of the City of Bago and the corresponding inspection fee of PO.20 is hereby imposed
on every case of fresh fish thus inspected payable by the fish wholesalers, dealers or
'commissionists' concerned.
SECTION 2. This Ordinance shall take effect upon its approval.
Ordinance No. 150.
Section 1. It shall be unlawful for any person, entity, association or corporation
other than the City Government of Bago to establish, maintain or operate a public
market or markets within the city limits or territorial jurisdiction of the City of Bago.

Section 2. Any person found guilty of violation of the provisions of this ordinance
shall be punished by a fine of not more than Two Hundred Pesos (P200.00) or
imprisonment of not more than six (6) months, or both such fine and imprisonment in
the discretion of the Court. In case the offender is a juridical person, the president,
manager, chief or head of the entity, association or corporation shall be liable.
Section 3. This Ordinance shall take effect upon its approval.
The appellants claim that the ordinances are unreasonable and Bago City has no power to enact
them.
It is obvious that the key ordinance is No. 150 for if the appellants do not succeed in assailing it, their
assault on the other ordinances becomes moot and academic. Stated differently, the principal
concern of the appellants is the continued operation of Javellana's market and if it is adjudged that
the operation be discontinued they should have no further interest in the other ordinances. However,
it would not be amiss for Us to state that We do not hesitate and see no need for an extended
discussion in holding that Ordinances Nos. 142 and 145 are manifestly valid; No. 142 because it is a
regulatory and revenue ordinance; No. 145 because it is promotive of general welfare and both are
authorized by Section 15 of R.A. No. 4382, otherwise known as the Charter of Bago, which spells
out in detail the general powers and duties of the Municipal Board of Bago City. And as the lower
court said:
The enactment of these ordinances by the City Council of the City of Bago is clearly
authorized under Section 15 of the said City Charter, as follows:
(a) Paragraph (n) which authorizes said Board 'to regulate and fix the
amount of the license fees for peddlers, and the keeping,
preservation and sale of meat, poultry, fish, game, butter, cheese,
lard, vegetables, bread, and other provisions;
(b) Paragraph (cc) which authorizes said Board 'to provide for the
establishment, maintenance and regulation, and to fix the fees for the
use of public markets;
(c) Paragraph (jj) which authorizes said Board 'to regulate any other
business or occupation, not specifically mentioned in the preceding
paragraphs, and to impose a license fee upon all persons engaged in
the same or who enjoy privileges in the city; and
(d) Paragraph (mm) the general welfare clause, which authorizes
said Board 'to enact an 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 Charter.

Coming now to Ordinance No. 150, there is no question that it was enacted pursuant to Section 15,
paragraph (cc) of the Charter of Bago which empowers the Municipal Board "... to prohibit the
establishment or operation within the city limits of public markets by any person, entity, association,
or corporation other than the city."
The appellants claim that Javellana's market is not covered by the charter provision nor by the
ordinance because it is not a public market. They assert that Javellana's market is a private market
because Javellana "owns the land and the building on which the market is being maintained and
operated." In other words, to the appellants whether or not a market is "'public" depends on who
owns it. It thus appears that the resolution of the appeals hinges on the meaning of the term "public
market." The appellants claim that a public market is one that is not owned privately; whereas the
appellees say that it is one that serves the general public. Viewed in this light, the validity of
Ordinance No. 150, whether on the basis of its reasonableness or on the power of the City of Bago
to enact it, is not in issue; what has to be resolved is only its application to the appellants.
We agree with trial court that the test of a "public market" is its dedication to the service of the
general public and -not its ownership. Thus this Court has had occasion to state:
Petitioners allege that the Aranque Market Extension is not a public market within the
meaning of all laws, ordinances, orders and regulations governing public markets
because said market stands on private property and its building was erected with
private funds. This contention is not well taken. A market is a public market when it is
dedicated to the service of the general public and is operated under government
control and supervision as a public utility, whether it be owned by the government or
any instrumentality thereof or by any private individual. (Vda. de Salgado vs. De la
Fuente, 87 Phil. 343, 345 [1950].)
Also, a scrutiny of the charter provision win readily show that by public market is meant one that is
intended to serve the public in general. This is the only conclusion which can be drawn when it used
the word "Public" to modify the word 1 "market" for if the meaning sought to be conveyed is the
ownership thereof then the phrase "by any, person, entity, association, or corporation other than the
city" win serve no useful purpose.
That Javellana's market is a public market is indubitable. According to the decision of the lower
court, "the petitioner himself so declared when he testified that his market is engaged in servicing the
public, not only in Bago City, but also those coming from other municipalities; that he is renting stalls
in his market to the public; that there are around 60 permanent stalls and 50 movable stalls being
leased by him; and that his market services about 3,000 people."
We hold that Javellana's market fans within the scope of Ordinance No. 150 and the trial court
committed no error in so holding and in dismissing the petition as well as the complaint in
intervention.
WHEREFORE, the appeals are dismissed for lack of merit. No special pronouncement as to costs.
SO ORDERED.

[G.R. No. L-24153. February 14, 1983.]

TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA RAMIREZ and
LOURDES LOMIBAO, as component members of the STA. CRUZ BARBERSHOP ASSOCIATION, in
their own behalf and in representation of the other owners of barbershops in the City of
Manila, Petitioners-Appellants, v. HON. ANTONIO J. VILLEGAS, City Mayor of Manila, HON.
HERMINIO A. ASTORGA, Vice-Mayor and Presiding Officer of the Municipal Board in relation to
Republic Act 4065, THE MUNICIPAL BOARD OF THE CITY OF MANILA and EDUARDO QUINTOS SR.,
Chief of Police of the City of Manila, Respondents-Appellees.
Joaquin P. Yuseco, Jr. for Petitioners-Appellants.
Leonardo L. Arguelles for Respondent-Appellant.

SYLLABUS

CONSTITUTIONAL LAW: POLICE POWER OF THE STATE; CONSTITUTIONALITY OF ORDINANCES BASED ON

THE GENERAL WELFARE CLAUSE SUSTAINED BY THE COURTS; ATTACK AGAINST THE VALIDITY OF
ORDINANCE 4964 CANNOT SUCCEED. The objectives behind the enactment of Ordinance 4964 are:" (1)
To be able to impose payment of the license fee for engaging in the business of massage clinic under
Ordinance No. 3659 as amended by Ordinance 4767, an entirely different measure than the ordinance
regulating the business of barbershops and, (2) in order to forestall possible immorality which might grow
out of the construction of separate rooms for massage of customers." This Court has been most liberal in
sustaining ordinances based on the general welfare clause. As far back as U.S. v. Salaveria, 39 Phil. 102, a
1918 decision, this Court through Justice Malcolm made clear the significance and scope of such a clause,
which "delegates in statutory form the police power to a municipality. This clause has been given wide
application by municipal authorities and has in its relation to the particular circumstances of the case been
liberally construed by the courts. Such, it is well to recall, is the progressive view of the Philippine
Jurisprudence." As it was then, so it has continued to be. There is no showing, therefore, of the
unconstitutionality of such ordinance.

DECISION

FERNANDO, J.:

This is an appeal from an order of the lower court dismissing a suit for declaratory relief challenging the
constitutionality based on Ordinance No. 4964 of the City of Manila, the contention being that it amounts to
a deprivation of property of petitioners-appellants of their means of livelihood without due process of law.
The assailed ordinance is worded thus: "It shall be prohibited for any operator of any barber shop to conduct
the business of massaging customers or other persons in any adjacent room or rooms of said barber shop,
or in any room or rooms within the same building where the barber shop is located as long as the operator
of the barber shop and the rooms where massaging is conducted is the same person." 1 As noted in the
appealed order, petitioners-appellants admitted that criminal cases for the violation of this ordinance had
been previously filed and decided. The lower court, therefore, held that a petition for declaratory relief did
not lie, its availability being dependent on there being as yet no case involving such issue having been filed.
2
Even if such were not the case, the attack against the validity cannot succeed. As pointed out in the brief of
respondents-appellees, it is a police power measure. The objectives behind its enactment are:" (1) To be
able to impose payment of the license fee for engaging in the business of massage clinic under Ordinance
No. 3659 as amended by Ordinance 4767, an entirely different measure than the ordinance regulating the
business of barbershops and, (2) in order to forestall possible immorality which might grow out of the
construction of separate rooms for massage of customers." 3 This Court has been most liberal in sustaining
ordinances based on the general welfare clause. As far back as U.S. v. Salaveria, 4 a 1918 decision, this
Court through Justice Malcolm made clear the significance and scope of such a clause, which "delegates in
statutory form the police power to a municipality. As above stated, this clause has been given wide

application by municipal authorities and has in its relation to the particular circumstances of the case been
liberally construed by the courts. Such, it is well to recall, is the progressive view of Philippine
jurisprudence." 5 As it was then, so it has continued to be. 6 There is no showing, therefore, of the
unconstitutionality of such ordinance.
cralawnad

WHEREFORE, the appealed order of the lower court is affirmed. No costs.

[G.R. No. 138810. September 29, 2004]

BATANGAS CATV, INC., petitioner, vs. THE COURT OF APPEALS, THE

BATANGAS
CITY
SANGGUNIANG
PANLUNGSOD
and
BATANGAS CITY MAYOR, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:

In the late 1940s, John Walson, an appliance dealer in Pennsylvania,

suffered a decline in the sale of television (tv) sets because of poor reception
of signals in his community. Troubled, he built an antenna on top of a nearby
mountain. Using coaxial cable lines, he distributed the tv signals from the
antenna to the homes of his customers. Walsons innovative idea improved
his sales and at the same time gave birth to a new telecommunication system
-- the Community Antenna Television (CATV) or Cable Television.
[1]

This technological breakthrough found its way in our shores and, like in its
country of origin, it spawned legal controversies, especially in the field of
regulation. The case at bar is just another occasion to clarify a shady area.
Here, we are tasked to resolve the inquiry -- may a local government unit
(LGU) regulate the subscriber rates charged by CATV operators within its
territorial jurisdiction?
This is a petition for review on certiorari filed by Batangas CATV, Inc.
(petitioner herein) against the Sangguniang Panlungsod and the Mayor of
Batangas City (respondents herein) assailing the Court of Appeals (1)
Decision dated February 12, 1999 and (2) Resolution dated May 26, 1999,
in CA-G.R. CV No. 52361. The Appellate Court reversed and set aside the
Judgment dated October 29, 1995 of the Regional Trial Court (RTC), Branch
7, Batangas City in Civil Case No. 4254, holding that neither of the
[2]

[3]

[4]

[5]

[6]

respondents has the power to fix the subscriber rates of CATV operators, such
being outside the scope of the LGUs power.
The antecedent facts are as follows:
On July 28, 1986, respondent Sangguniang Panlungsod enacted
Resolution No. 210 granting petitioner a permit to construct, install, and
operate a CATV system in Batangas City. Section 8 of the Resolution
provides that petitioner is authorized to charge its subscribers the maximum
rates specified therein, provided, however, that any increase of rates shall be
subject to the approval of the Sangguniang Panlungsod.
[7]

[8]

Sometime in November 1993, petitioner increased its subscriber rates

from P88.00 to P180.00 per month. As a result, respondent Mayor wrote
petitioner a letter threatening to cancel its permit unless it secures the
approval of respondent Sangguniang Panlungsod, pursuant to Resolution No.
210.
[9]

Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for
injunction docketed as Civil Case No. 4254.
It alleged that
respondent Sangguniang Panlungsod has no authority to regulate the
subscriber rates charged by CATV operators because under Executive Order
No. 205, the National Telecommunications Commission (NTC) has the sole
authority to regulate the CATV operation in the Philippines.
On October 29, 1995, the trial court decided in favor of petitioner, thus:
WHEREFORE, as prayed for, the defendants, their representatives, agents,
deputies or other persons acting on their behalf or under their instructions, are hereby
enjoined from canceling plaintiffs permit to operate a Cable Antenna Television
(CATV) system in the City of Batangas or its environs or in any manner, from
interfering with the authority and power of the National Telecommunications
Commission to grant franchises to operate CATV systems to qualified applicants,
and the right of plaintiff in fixing its service rates which needs no prior approval
of theSangguniang Panlungsod of Batangas City.
The counterclaim of the plaintiff is hereby dismissed. No pronouncement as to costs.

IT IS SO ORDERED.

[10]

The trial court held that the enactment of Resolution No. 210 by
respondent violates the States deregulation policy as set forth by then NTC
Commissioner Jose Luis A. Alcuaz in his Memorandum dated August 25,
1989. Also, it pointed out that the sole agency of the government which can
regulate CATV operation is the NTC, and that the LGUs cannot exercise
regulatory power over it without appropriate legislation.
Unsatisfied, respondents elevated the case to the Court of Appeals,
docketed as CA-G.R. CV No. 52361.
On February 12, 1999, the Appellate Court reversed and set aside the trial
courts Decision, ratiocinating as follows:
Although the Certificate of Authority to operate a Cable Antenna Television
(CATV) System is granted by the National Telecommunications Commission
pursuant to Executive Order No. 205, this does not preclude the Sangguniang
Panlungsod from regulating the operation of the CATV in their locality under the
powers vested upon it by Batas Pambansa Bilang 337, otherwise known as the
Local Government Code of 1983. Section 177 (now Section 457 paragraph 3 (ii)
of Republic Act 7160) provides:
Section 177. Powers and Duties The Sangguniang Panlungsod shall:
a) Enact such ordinances as may be necessary to carry into effect and discharge the
responsibilities conferred upon it by law, and such as shall be necessary and proper to
provide for health and safety, comfort and convenience, maintain peace and order,
improve the morals, and promote the prosperity and general welfare of the community
and the inhabitants thereof, and the protection of property therein;
xxx
d) Regulate, fix the license fee for, and tax any business or profession being
carried on and exercised within the territorial jurisdiction of the city, 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 infringement on the taxing and regulatory

powers of the city government;
Under cover of the General Welfare Clause as provided in this section, Local
Government Units can perform just about any power that will benefit their
constituencies. Thus, local government units can exercise powers that
are: (1) expressly granted; (2) necessarily implied from the power that is expressly
granted; (3) necessary, appropriate or incidental for its efficient and effective
governance; and (4)essential to the promotion of the general welfare of their
inhabitants. (Pimentel, The Local Government Code of 1991, p. 46)
Verily, the regulation of businesses in the locality is expressly provided in the
Local Government Code. The fixing of service rates is lawful under the General
Welfare Clause.
Resolution No. 210 granting appellee a permit to construct, install and operate a
community antenna television (CATV) system in Batangas City as quoted earlier in
this decision, authorized the grantee to impose charges which cannot be increased
except upon approval of the Sangguniang Bayan. It further provided that in case of
violation by the grantee of the terms and conditions/requirements specifically
provided therein, the City shall have the right to withdraw the franchise.
Appellee increased the service rates from EIGHTY EIGHT PESOS (P88.00) to ONE
HUNDRED EIGHTY PESOS (P180.00) (Records, p. 25) without the approval of
appellant. Such act breached Resolution No. 210 which gives appellant the right
to withdraw the permit granted to appellee.
[11]

Petitioner filed a motion for reconsideration but was denied.

[12]

Hence, the instant petition for review on certiorari anchored on the

following assignments of error:
I

THE COURT OF APPEALS ERRED IN HOLDING THAT THE GENERAL

WELFARE CLAUSE OF THE LOCAL GOVERNMENT CODE
AUTHORIZES RESPONDENT SANGGUNIANG PANLUNGSOD TO
EXERCISE THE REGULATORY FUNCTION SOLELY LODGED WITH THE

NATIONAL TELECOMMUNICATIONS COMMISSION UNDER

EXECUTIVE ORDER NO. 205, INCLUDING THE AUTHORITY TO FIX
AND/OR APPROVE THE SERVICE RATES OF CATV OPERATORS; AND
II

THE COURT OF APPEALS ERRED IN REVERSING THE DECISION

APPEALED FROM AND DISMISSING PETITIONERS COMPLAINT.

[13]

Petitioner contends that while Republic Act No. 7160, the Local
Government Code of 1991, extends to the LGUs the general power to perform
any act that will benefit their constituents, nonetheless, it does not authorize
them to regulate the CATV operation. Pursuant to E.O. No. 205, only the NTC
has the authority to regulate the CATV operation, including the fixing of
subscriber rates.
Respondents counter that the Appellate Court did not commit any
reversible error in rendering the assailed Decision. First, Resolution No. 210
was enacted pursuant to Section 177(c) and (d) of Batas Pambansa
Bilang 337, the Local Government Code of 1983, which authorizes LGUs to
regulate businesses. The term businesses necessarily includes the CATV
industry. And second, Resolution No. 210 is in the nature of a contract
between petitioner and respondents, it being a grant to the former of a
franchise to operate a CATV system. To hold that E.O. No. 205 amended its
terms would violate the constitutional prohibition against impairment of
contracts.
[14]

The petition is impressed with merit.

Earlier, we posed the question -- may a local government unit (LGU)
regulate the subscriber rates charged by CATV operators within its territorial
jurisdiction? A review of pertinent laws and jurisprudence yields a negative
answer.
President Ferdinand E. Marcos was the first one to place the CATV
industry under the regulatory power of the national government. On June 11,
1978, he issued Presidential Decree (P.D.) No. 1512 establishing a
monopoly of the industry by granting Sining Makulay, Inc., an exclusive
[15]

[16]

franchise to operate CATV system in any place within the Philippines.

Accordingly, it terminated all franchises, permits or certificates for the
operation of CATV system previously granted by local governments or
by any instrumentality or agency of the national government. Likewise,
it prescribed the subscriber rates to be charged by Sining Makulay, Inc. to its
customers.
[17]

[18]

On July 21, 1979, President Marcos issued Letter of Instruction (LOI)

No. 894 vesting upon the Chairman of the Board of Communications direct
supervision over the operations ofSining Makulay, Inc. Three days after, he
issued E.O. No. 546 integrating the Board of Communications and the
Telecommunications Control Bureau to form a single entity to be known as
the National Telecommunications Commission. Two of its assigned
functions are:
[19]

[20]

[21]

a. Issue Certificate of Public Convenience for the operation of communications

utilities and services, radio communications systems, wire or wireless telephone or
telegraph systems, radio andtelevision broadcasting system and other similar
public utilities;
b. Establish, prescribe and regulate areas of operation of particular operators of
public service communications; and determine and prescribe charges or rates
pertinent to the operation of such public utility facilities and services except in
cases where charges or rates are established by international bodies or associations of
which the Philippines is a participating member or by bodies recognized by the
Philippine Government as the proper arbiter of such charges or rates;
Although Sining Makulay Inc.s exclusive franchise had a life term of 25
years, it was cut short by the advent of the 1986 Revolution. Upon President
Corazon C. Aquinos assumption of power, she issued E.O. No. 205 opening
the CATV industry to all citizens of the Philippines. It mandated the NTC to
grant Certificates of Authority to CATV operators and to issue the
necessary implementing rules and regulations.
[22]

On September 9, 1997, President Fidel V. Ramos issued E.O. No.

436 prescribing policy guidelines to govern CATV operation in the
[23]

Philippines. Cast in more definitive terms, it restated the NTCs regulatory

powers over CATV operations, thus:
SECTION 2. The regulation and supervision of the cable television industry in
the Philippines shall remain vested solely with the National Telecommunications
Commission (NTC).
SECTION 3. Only persons, associations, partnerships, corporations or
cooperatives, granted a Provisional Authority or Certificate of Authority by the
Commission may install, operate and maintain a cable television system or render
cable television service within a service area.
Clearly, it has been more than two decades now since our national
government, through the NTC, assumed regulatory power over the CATV
industry. Changes in the political arena did not alter the trend. Instead,
subsequent presidential issuances further reinforced the NTCs power.
Significantly, President Marcos and President Aquino, in the exercise of their
legislative power, issued P.D. No. 1512, E.O. No. 546 and E.O. No. 205.
Hence, they have the force and effect of statutes or laws passed by Congress.
That the regulatory power stays with the NTC is also clear from President
Ramos E.O. No. 436 mandating that the regulation and supervision of the
CATV industry shall remain vested solely in the NTC. Blacks Law Dictionary
defines sole as without another or others. The logical conclusion,
therefore, is that in light of the above laws and E.O. No. 436, the NTC
exercises regulatory power over CATV operators to the exclusion of
other bodies.
[24]

[25]

But, lest we be misunderstood, nothing herein should be interpreted as to

strip LGUs of their general power to prescribe regulations under the general
welfare clause of the Local Government Code. It must be emphasized that
when E.O. No. 436 decrees that the regulatory power shall be vested
solely in the NTC, it pertains to the regulatory power over those matters
which are peculiarly within the NTCs competence, such as,
the: (1) determination
of
rates, (2) issuance
of
certificates
of
authority, (3) establishment of areas of operation, (4)examination and
assessment of the legal, technical and financial qualifications of applicant
operators, (5) granting of permits for the use of frequencies, (6) regulation of

ownership and operation, (7) adjudication of issues arising from its functions,
and (8) other similar matters. Within these areas, the NTC reigns supreme
as it possesses the exclusive power to regulate -- a power comprising varied
acts, such as to fix, establish, or control; to adjust by rule, method or
established mode; to direct by rule or restriction; or to subject to governing
principles or laws.
[26]

[27]

Coincidentally, respondents justify their exercise of regulatory power over

petitioners CATV operation under the general welfare clause of the Local
Government Code of 1983. The Court of Appeals sustained their stance.
There is no dispute that respondent Sangguniang Panlungsod, like other
local legislative bodies, has been empowered to enact ordinances and
approve resolutions under the general welfare clause of B.P. Blg. 337, the
Local Government Code of 1983. That it continues to posses such power is
clear under the new law, R.A. No. 7160 (the Local Government Code of
1991). Section 16 thereof provides:
SECTION 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance,
and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among others, 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 same Code specifically mandates:
SECTION 458.
Powers, Duties, Functions and
Compensation. (a) The Sangguniang Panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this

Code and in the proper exercise of the corporate powers of the city as provided for
under Section 22 of this Code, x x x:
The general welfare clause is the delegation in statutory form of the
police power of the State to LGUs. Through this, LGUs may prescribe
regulations to protect the lives, health, and property of their constituents and
maintain peace and order within their respective territorial jurisdictions.
Accordingly, we have upheld enactments providing, for instance, the
regulation of gambling, the occupation of rig drivers, the installation and
operation of pinball machines, the maintenance and operation of cockpits,
the exhumation and transfer of corpses from public burial grounds, and the
operation of hotels, motels, and lodging houses as valid exercises by local
legislatures of the police power under the general welfare clause.
[28]

[29]

[30]

[31]

[32]

[33]

[34]

Like any other enterprise, CATV operation maybe regulated by LGUs

under the general welfare clause. This is primarily because the CATV system
commits the indiscretion of crossing public properties. (It uses public
properties in order to reach subscribers.) The physical realities of
constructing CATV system the use of public streets, rights of ways, the
founding of structures, and the parceling of large regions allow an
LGU a certain degree of regulation over CATV operators. This is the
same regulation that it exercises over all private enterprises within its territory.
[35]

But, while we recognize the LGUs power under the general welfare
clause, we cannot sustain Resolution No. 210. We are convinced that
respondents strayed from the well recognized limits of its power. The flaws in
Resolution No. 210 are: (1) it violates the mandate of existing laws and (2) it
violates the States deregulation policy over the CATV industry.
I.

Resolution No. 210 is an enactment of an LGU acting only as agent of the

national legislature. Necessarily, its act must reflect and conform to the will of
its principal. To test its validity, we must apply the particular requisites of a
valid ordinance as laid down by the accepted principles governing municipal
corporations.
[36]

Speaking for the Court in the leading case of United States vs. Abendan,
Justice Moreland said: An ordinance enacted by virtue of the general
welfare clause 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. In De la Cruz vs. Paraz, we laid the general
rule that ordinances passed by virtue of the implied power found in the
general welfare clause must be reasonable, consonant with the general
powers and purposes of the corporation, and not inconsistent with the laws
or policy of the State.
[37]

[38]

The apparent defect in Resolution No. 210 is that it contravenes E.O. No.
205 and E.O. No. 436 insofar as it permits respondent Sangguniang
Panlungsod to usurp a power exclusively vested in the NTC, i.e., the power to
fix the subscriber rates charged by CATV operators. As earlier discussed, the
fixing of subscriber rates is definitely one of the matters within the NTCs
exclusive domain.
In this regard, it is appropriate to stress that where the state legislature
has made provision for the regulation of conduct, it has manifested its
intention that the subject matter shall be fully covered by the statute, and that
a municipality, under its general powers, cannot regulate the same conduct.
In Keller vs. State, it was held that: Where there is no express power in
the charter of a municipality authorizing it to adopt ordinances
regulating certain matters which are specifically covered by a general
statute, a municipal ordinance, insofar as it attempts to regulate the
subject which is completely covered by a general statute of the
legislature, may be rendered invalid. x x x Where the subject is of
statewide concern, and the legislature has appropriated the field and
declared the rule, its declaration is binding throughout the State. A
reason advanced for this view is that such ordinances are in excess of the
powers granted to the municipal corporation.
[39]

[40]

[41]

Since E.O. No. 205, a general law, mandates that the regulation of CATV
operations shall be exercised by the NTC, an LGU cannot enact an ordinance
or approve a resolution in violation of the said law.

It is a fundamental principle that municipal ordinances are inferior in status

and subordinate to the laws of the state. An ordinance in conflict with a state
law of general character and statewide application is universally held to be
invalid. The principle is frequently expressed in the declaration that municipal
authorities, under a general grant of power, cannot adopt ordinances which
infringe the spirit of a state law or repugnant to the general policy of the state.
In every power to pass ordinances given to a municipality, there is an
implied restriction that the ordinances shall be consistent with the general law.
In the language of Justice Isagani Cruz (ret.), this Court, in Magtajas vs.
Pryce Properties Corp., Inc., ruled that:
[42]

[43]

[44]

[45]

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.
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, 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.
Respondents have an ingenious retort against the above disquisition.
Their theory is that the regulatory power of the LGUs is granted by R.A. No.
7160 (the Local Government Code of 1991), a handiwork of the national
lawmaking authority. They contend that R.A. No. 7160 repealed E.O. No. 205
(issued by President Aquino). Respondents argument espouses a bad
precedent. To say that LGUs exercise the same regulatory power over
matters which are peculiarly within the NTCs competence is to promote a
scenario of LGUs and the NTC locked in constant clash over the appropriate
regulatory measure on the same subject matter. LGUs must recognize that
technical matters concerning CATV operation are within the exclusive
regulatory power of the NTC.
At any rate, we find no basis to conclude that R.A. No. 7160 repealed E.O.
No. 205, either expressly or impliedly. It is noteworthy that R.A. No. 7160
repealing clause, which painstakingly mentions the specific laws or the parts
thereof which are repealed, does not include E.O. No. 205, thus:
SECTION 534.
Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise
known as the Local Government Code." Executive Order No. 112 (1987), and
Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the
Special Education Fund; Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree
Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of
no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locallyfunded 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; Section 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.
Neither is there an indication that E.O. No. 205 was impliedly repealed by
R.A. No. 7160. It is a settled rule that implied repeals are not lightly presumed
in the absence of a clear and unmistakable showing of such intentions.
In Mecano vs. Commission on Audit, we ruled:
[46]

Repeal by implication proceeds on the premise that where a statute of later date
clearly reveals an intention on the part of the legislature to abrogate a prior act on the
subject, that intention must be given effect. Hence, before there can be a repeal, there
must be a clear showing on the part of the lawmaker that the intent in enacting the
new law was to abrogate the old one. The intention to repeal must be clear and
manifest; otherwise, at least, as a general rule, the later act is to be construed as a
continuation of, and not a substitute for, the first act and will continue so far as the
two acts are the same from the time of the first enactment.
As previously stated, E.O. No. 436 (issued by President Ramos) vests
upon the NTC the power to regulate the CATV operation in this country. So
also Memorandum Circular No. 8-9-95, the Implementing Rules and
Regulations of R.A. No. 7925 (the Public Telecommunications Policy Act of
the Philippines). This shows that the NTCs regulatory power over CATV
operation is continuously recognized.
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 coordinate branches of the
government. On the assumption of a conflict between E.O. No. 205 and R.A.
No. 7160, the proper action is not to uphold one and annul the other but to
give effect to both by harmonizing them if possible. This recourse finds
application here. Thus, we hold that the NTC, under E.O. No. 205, has
exclusive jurisdiction over matters affecting CATV operation, including
specifically the fixing of subscriber rates, but nothing herein precludes LGUs
from exercising its general power, under R.A. No. 7160, to prescribe
regulations to promote the health, morals, peace, education, good order or
safety and general welfare of their constituents. In effect, both laws become
equally effective and mutually complementary.
[47]

The grant of regulatory power to the NTC is easily understandable. CATV

system is not a mere local concern. The complexities that characterize this
new technology demand that it be regulated by a specialized agency. This is
particularly true in the area of rate-fixing. Rate fixing involves a series of
technical operations. Consequently, on the hands of the regulatory body lies
the ample discretion in the choice of such rational processes as might be
appropriate to the solution of its highly complicated and technical problems.
Considering that the CATV industry is so technical a field, we believe that the
NTC, a specialized agency, is in a better position than the LGU, to regulate it.
Notably, in United States vs. Southwestern Cable Co., the US Supreme Court
affirmed the Federal Communications Commissions (FCCs) jurisdiction over
CATV operation. The Court held that the FCCs authority over cable systems
assures the preservation of the local broadcast service and an equitable
distribution of broadcast services among the various regions of the country.
[48]

[49]

II.

Resolution No. 210 violated the States deregulation policy.

Deregulation is the reduction of government regulation of business to
permit freer markets and competition. Oftentimes, the State, through its
regulatory agencies, carries out a policy of deregulation to attain certain
objectives or to address certain problems. In the field of telecommunications,
it is recognized that many areas in the Philippines are still unserved or
[50]

underserved. Thus, to encourage private sectors to venture in this field and

be partners of the government in stimulating the growth and development of
telecommunications, the State promoted the policy of deregulation.
In the United States, the country where CATV originated, the Congress
observed, when it adopted the Telecommunications Act of 1996, that there
was a need to provide a pro-competitive, deregulatory national policy
framework designed to accelerate rapidly private sector deployment of
advanced telecommunications and information technologies and services to
all Americans by opening all telecommunications markets to competition. The
FCC has adopted regulations to implement the requirements of the 1996 Act
and the intent of the Congress.
Our country follows the same policy. The fifth Whereas Clause of E.O. No.
436 states:
WHEREAS, professionalism and self-regulation among existing operators, through a
nationally recognized cable television operators association, have enhanced the
growth of the cable television industry and must therefore be maintained along
with minimal reasonable government regulations;
This policy reaffirms the NTCs mandate set forth in the Memorandum
dated August 25, 1989 of Commissioner Jose Luis A. Alcuaz, to wit:
In line with the purpose and objective of MC 4-08-88, Cable Television System or
Community Antenna Television (CATV) is made part of the broadcast media to
promote the orderly growth of the Cable Television Industry it being in its developing
stage. Being part of the Broadcast Media, the service rates of CATV are likewise
considered deregulated in accordance with MC 06-2-81 dated 25 February 1981,
the implementing guidelines for the authorization and operation of Radio and
Television Broadcasting stations/systems.
Further, the Commission will issue Provisional Authority to existing CATV operators
to authorize their operations for a period of ninety (90) days until such time that the
Commission can issue the regular Certificate of Authority.

When the State declared a policy of deregulation, the LGUs are bound to
follow. To rule otherwise is to render the States policy ineffective. Being
mere creatures of the State, LGUs cannot defeat national policies through
enactments of contrary measures. Verily, in the case at bar, petitioner may
increase its subscriber rates without respondents approval.
At this juncture, it bears emphasizing that municipal corporations are
bodies politic and corporate, created not only as local units of local selfgovernment, but as governmental agencies of the state. The legislature, by
establishing a municipal corporation, does not divest the State of any of its
sovereignty; absolve itself from its right and duty to administer the public
affairs of the entire state; or divest itself of any power over the inhabitants of
the district which it possesses before the charter was granted.
[51]

[52]

Respondents likewise argue that E.O. No. 205 violates the constitutional
prohibition against impairment of contracts, Resolution No. 210 of Batangas
City Sangguniang Panlungsodbeing a grant of franchise to petitioner.
We are not convinced.
There is no law specifically authorizing the LGUs to grant franchises to
operate CATV system. Whatever authority the LGUs had before, the same
had been withdrawn when President Marcos issued P.D. No.
1512 terminating all franchises, permits or certificates for the operation
of CATV system previously granted by local governments. Today,
pursuant to Section 3 of E.O. No. 436, only persons, associations,
partnerships, corporations or cooperatives granted a Provisional
Authority or Certificate of Authority by the NTC may install, operate and
maintain a cable television system or render cable television service
within a service area. It is clear that in the absence of constitutional or
legislative authorization, municipalities have no power to grant franchises.
Consequently, the protection of the constitutional provision as to impairment
of the obligation of a contract does not extend to privileges, franchises and
grants given by a municipality in excess of its powers, or ultra vires.
[53]

[54]

One last word. The devolution of powers to the LGUs, pursuant to the
Constitutional mandate of ensuring their autonomy, has bred jurisdictional

tension between said LGUs and the State. LGUs must be reminded that they
merely form part of the whole. Thus, when the Drafters of the 1987
Constitution enunciated the policy of ensuring the autonomy of local
governments, it was never their intention to create an imperium in
imperio and install an intra-sovereign political subdivision independent of a
single sovereign state.
[55]

WHEREFORE, the petition is GRANTED. The assailed Decision of the

Court of Appeals dated February 12, 1999 as well as its Resolution dated May
26, 1999 in CA-G.R. CV No. 52461, are hereby REVERSED. The RTC
Decision in Civil Case No. 4254 is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-27247 April 20, 1983
IN THE MATTER OF THE PETITION FOR DECLARATORY JUDGMENT REGARDING THE
VALIDITY OF ORDINANCE NO. 386 OF THE CITY OF BAGUIO, BAGUIO CITIZENS ACTION
INC., and JUNIOR CHAMBER OF BAGUIO CITY, INC., petitioners-appellants,
vs.
THE CITY COUNCIL AND CITY MAYOR OF THE CITY OF BAGUIO, respondents-appellees.

DE CASTRO, J:
In this petition for declaratory relief originally filed in the Court of First Instance of Baguio, Branch II,
what is involved is the validity of Ordinance 386 passed by the City Council of Baguio City which
took effect on February 23, 1967, quoted together with the explanatory note, as follows:
ORDINANCE 386
AN ORDINANCE CONSIDERING ALL SQUATTERS OF PUBLIC LAND, OTHER
THAN THOSE EARMARKED FOR PUBLIC USE IN THE CITY OF BAGUIO WHO
ARE DULY REGISTERED AS SUCH AT THE TIME OF THE PROMULGATION OF
THIS ORDINANCE AS BONAFIDE OCCUPANTS OF THEIR RESPECTIVE LOTS
AND WHICH SHALL HEREAFTER BE EMBRACED AS A CITY GOVERNMENT
HOUSING PROJECT AND PROVIDING FOR OTHER PURPOSES.

Upon strong recommendation of the Vice-Mayor and Presiding Officer, on Motion of

all the Councilors, seconded by the same, be it ordained by the City Council
assembled:
Section l.All public lands within Baguio townsite which are occupied by squatters
who are duly registered as such at the time of the promulgation of this Ordinance
such public lands not designated by city and national authorities for public use, shall
be considered as embraced and comprising a City Government Housing Project;
PROVIDED, HOWEVER, That areas covered by Executive Orders or Presidential
Proclamations but the city had made official representation for the lifting of such
orders or proclamation shall be deemed to be part of the Baguio Townsite for the
purposes of this ordinance;
Section 2.Building permits shall have been deemed issued to all squatters as
contemplated by this Ordinance, giving such squatters five years from the approval
of this Ordinance to satisfactorily comply with city building specifications and
payment of the corresponding city building permit fees;
Section 3.All cases pending in court against squatters be dropped without
prejudice to the full prosecution of all subsequent violations in relation to the
provisions of existing city ordinances and/or resolutions;
Section 4.All squatters be given all the necessary and needed protection of the
City Government against the stringent provisions of the Public Land Act, particularly
on public bidding, in that the lots occupied by said squatters be awarded to them by
direct sale through Presidential Proclamation;
Section 5.The City Government shall not be interested in making financial profit out
of the project and that the appraisal and evaluation of the said lots shall be made at
minimum cost per square meters, the total cost of the lots made payable within the
period of ten years;
Section 6.The minimum lot area requirements shall be disregarded in cases where
it could not be implemented due to existing congestion of houses, and that, if
necessary, areas applied for under this ordinance shall be reduced to that which is
practical under the circumstances; PROVIDED, HOWEVER, That squatters in
congested areas shall be given preference in the transfer to resettlement areas or
government housing projects earmarked as such under the provisions of this
ordinance, if and when it becomes necessary to ease congestion or when their lots
shall be traversed by the laying of roads or are needed for public use;
Section 7.The amount of P20,000.00 or so much as is necessary, for the lot survey
of each squatter's lot be appropriated, such survey of which shall be conducted by
licensed private surveyors through public biddings; PROVIDED, That, said expenses
for survey shall be included in the overall cost of each lot;

Section 8.The three-man control committed for the Quirino-Magsaysay housing

project which was previously created under City Ordinance No. 344, shall exercise
administration and supervision of the city government housing projects created under
this Ordinance shall, furthermore, be entrusted with the duty of: (1) Consolidating a
list of all city squatters who shall be benefitted in contemplation and under the
provisions of this Ordinance; (2) To assist and help the squatters in the preparation of
all the necessary and required paper work and relative items in connection with their
application over their respective lots; (3) To seek and locate other areas within the
Baguio Townsite conveniently situated and which will be earmarked as subsequently
housing projects of the city for landless bonafide city residents; and (4) To carry out
and implement the provisions of this Ordinance without the least possible delay.
EXPLANATORY NOTE
This ordinance is primarily designed to extend a helping hand to the numerous
landless city residents and the called 'Squatters' within the Baguio Townsite in their
desire to acquire residential lots which they may rightly call their own.
The reported people who have violated the City's building ordinances were not so
guarded by any criminal perversity, but where given to it more by circumstances of
necessity and that they are, therefore, entitled to a more human treatment, more of
understanding and more of pity rather than be herded before the courts, likened to
hardened criminals and deliberate violators of our laws and ordinances.
PRESENT AND VOTING:
Hon. Norberto de Guzman Vice Mayor Presiding Officer Hon. Gaudencio Floresca
Councilor Hon. Jose S. Florendo Councilor Hon. Francisco G. Mayo
Councilor Hon. Braulio D. Yaranon Councilor Hon. Sinforoso Fagonil
Councilor
The petition for declaratory relief filed with the Court of First Instance of Baguio, Branch II, prays for
a judgment declaring the Ordinance as invalid and illegal ab initio. The respondents-appellees, the
City Council and the City Mayor, filed motions to dismiss the petition which were denied.
Nonetheless, in the decision thereafter rendered, the petition was dismissed on the grounds that: 1)
another court, the Court of First Instance of Baguio, Branch I, had declared the Ordinance valid in a
criminal case filed against the squatters for illegal construction, and the Branch II of the same court
cannot, in a declaratory proceeding, review and determine the validity of said judgment pursuant to
the policy of judicial respect and stability; 2) those who come within the protection of the ordinance
have not been made parties to the suit in accordance with Section 2 of Rule 64 and it has been held
that the non-joinder of such parties is a jurisdictional defect; and 3) the court is clothed with
discretion to refuse to make any declaration where the declaration is not necessary and proper at
the time under all circumstances, e.g. where the declaration would be of no practical help in ending
the controversy or would not stabilize the disputed legal relation, citing Section 5 of Rule 64; ICJS
1033-1034; 16 AM. JUR 287-289; Hoskyns vs. National City Bank of New York, 85 Phil. 201.

Hence, the instant appeal which was perfected in accordance with the provisions of Rule 42, before
the approval of Republic Act No. 5440 on September 9, 1968.
1. The case before the Court of First Instance of Baguio, Branch 1, dealt with the criminal liability of
the accused for constructing their houses without obtaining building permits, contrary to Section 47
in relation to Section 52 of the Revised Ordinances of Baguio, which act the said court considered as
pardoned by Section 2 of Ordinance 386. The court in said case upheld the power of the Municipal
Council to legalize the acts punished by the aforesaid provisions of the Revised Ordinances of
Baguio, stating that the Municipal Council is the policy determining body of Baguio City and therefore
it can amend, repeal, alter or modify its own laws as it did when it enacted Ordinance 386. In
deciding the case, the first branch of the court a quo did not declare the whole Ordinance valid. This
is clear when it stated that "had the issue been the legalization of illegal occupation of public land,
covered by Republic Act No. 947, ... the Ordinance in question should have been ultra vires and
unconstitutional." 1 Said court merely confined itself to Sections 2 and 3 of Ordinance 386. It did not
make any definite pronouncement whether or not the City Council has the power to legalize the illegal
occupation of public land which is the issue in the instant case. It is noteworthy that the court, in passing
upon the validity of the aforesaid sections, was apparently guided by the rule that where part of a statute
is void as repugnant to the organic law, while another part is valid, the valid portion, if separable from the
invalid may stand and be enforced. Contrary to what was said in the decision under review, the second
branch of the court a quo was not called upon to determine the validity of the judgment of the first branch.
2. The non-inclusion of the squatters mentioned in the Ordinance in question as party defendants in
this case cannot defeat the jurisdiction of the Court of First Instance of Baguio. There is nothing in
Section 2 of Rule 64 of the Rules of Court which says that the non-joinder of persons who have or
claim any interest which would be affected by the declaration is a jurisdictional defect. Said section
merely states that "All persons shall be made parties who have or claim any interest which would be
affected by the declaration; and no declaration shall, except or otherwise provided in these rules,
prejudice the rights of persons not parties to the action." This section contemplates a situation where
there are other persons who would be affected by the declaration, but were not impleaded as
necessary parties, in which case the declaration shall not prejudice them. If at all, the case may be
dismissed not on the ground of lack of jurisdiction but for the reason stated in Section 5 of the same
Rule stating that "the Court may refuse to exercise the power to declare rights and to construe
instruments in any case where a decision would not terminate the uncertainty or controversy which
gave rise to the action, or any case where the declaration or construction is not necessary and
proper at the time under all circumstances."
It must be noted that the reason for the law requiring the joinder of all necessary parties is that
failure to do so would deprive the declaration of the final and pacifying function the action for
declaratory relief is calculated to subserve, as they would not be bound by the declaration and may
raise the Identical issue. 2 In the case at bar, although it is true that any declaration by the court would
affect the squatters, the latter are not necessary parties because the question involved is the power of the
Municipal Council to enact the Ordinances in question. Whether or not they are impleaded, any
determination of the controversy would be binding upon the squatters.
A different situation obtains in the case of Degala v. Reyes 3 cited in the decision under review. The
Degala case involves the validity of the trust created in the will of the testator. In the said case, the Roman
Catholic Church which was a necessary party, being the one which would be most vitally affected by the

declaration of the nullity of the will was not brought in as party. The Court therefore, refused to make any
declaratory judgment on ground of jurisdictional defect, for there can be no final judgment that could be
rendered and the Roman Catholic not being bound by such judgment might raise the Identical issue,
making therefore the declaration a mere exercise in futility.

This is not true in the instant case. A declaration on the nullity of the ordinance, would give the
squatters no right which they are entitled to protect. The party most interested to sustain and defend
the legality of the Ordinance is the body that passed it, the City Council, and together with the City
Mayor, is already a party in these proceedings.
3. The Ordinance in question is a patent nullity. It considered all squatters of public land in the City of
Baguio as bona-fide occupants of their respective lots. As we have stated in City of Manila v.
Garcia, 4 et al.:
Squatting is unlawful and no amount of acquiescence on the part of the city officials
will elevate it into a lawful act. In principle, a compound of illegal entry and official
permit to stay is obnoxious to our concept of proper official norm of conduct.
Because, such permit does not serve social justice; it fosters moral decadence. It
does not promote public welfare; it abets disrespect for the law. It has its roots in
vice; so it is an infected bargain. Official approval of squatting should not, therefore,
be permitted to obtain in this country where there is an orderly form of government.
In the same case, squatting was characterized as a widespread vice and a blight Thus:
Since the last global war, squatting on another's property in this country has become
a widespread vice. It was and is a blight Squatter's areas pose problems of health,
sanitation. They are breeding places for crime. They constitute proof that respect for
the law and the rights of others, even those of the government are being flouted.
Knowingly, squatters have embarked on the pernicious act of occupying property
whenever and wherever convenient to their interests without as much as leave, and
even against the will, of the owner. They are emboldened seemingly because of their
belief that they could violate the law with impunity. The pugnaciousness of some of
them has tied up the hands of legitimate owners. The latter are thus prevented from
recovering possession by peaceful means. Government lands have not been spared
by them. They know, of course, that instrusion into property, government or private, is
wrong. But, then the wheels of justice grind slow, mainly because of lawyers who, by
means, fair or foul, are quite often successful in procuring delay of the day of
reckoning. Rampancy of forcible entry into government lands particularly, is abetted
by the apathy of some public officials to enforce the government's rights. Obstinacy
of these squatters is difficult to explain unless it is spawned by official tolerance, if not
outright encouragement or protection. Said squatters have become insensible to the
difference between right and wrong. To them, violation of law means nothing. With
the result that squatters still exists, much to the detriment of public interest. It is high
time that, in this aspect, sanity and the rule of law be restored. It is in this
environment that we look into the validity of the permits granted defendants herein.

In the above cited case, the land occupied by the squatters belongs to the City of Manila. In the
instant case, the land occupied by the squatters are portions of water sheds, reservations, scattered
portions of the public domain within the Baguio townsite. Certainly, there is more reason then to void
the actions taken by the City of Baguio through the questioned ordinance.
Being unquestionably a public land, no disposition thereof could be made by the City of Baguio
without prior legislative authority. It is the fundamental principle that the state possesses plenary
power in law to determine who shall be favored recipients of public domain, as well as under what
terms such privilege may be granted not excluding the placing of obstacles in the way of exercising
what otherwise would be ordinary acts of ownership. And the law has laid in the Director of Lands
the power of exclusive control, administrations, disposition and alienation of public land that includes
the survey, classification, lease, sale or any other form of concessions or disposition and
management of the lands of public domains. 5
Nor could the enactment of Ordinance 386 be justified by stating that "this Ordinance is primarily
designed to extend a helping hand to the numerous landless city residents and the so called
squatters within the Baguio townsite in their desire to acquire residential lots which they may rightly
call their own and that the reported people who have violated the City's building ordinances were not
so guided by any criminal perversity, but were given to it more by circumstances of necessity and
that they are, therefore, entitled to a more human treatment, more understanding and more of pity
rather than be herded before the courts, likened to hardened criminals and deliberate violators of our
laws and ordinances." 6
Our pronouncement in Astudillo vs. Board of Directors of PHHC 7 is relevant to this case. Thus
In carrying out its social re-adjustment policies, the government could not simply lay
aside moral standards, and aim to favor usurpers, squatters, and intruders, unmindful
of the lawful and unlawful origin and character of their occupancy. Such a policy
would perpetuate conflicts instead of attaining their just solution. (Bernardo vs.
Bernardo, 96 Phil. 202, 206.)
Indeed, the government has enunciated a militant policy against squatters. Thus,
Letter of Instruction No. 19 dated October 2, 1972 orders city and district engineers
'to remove all illegal constructions including buildings ... and those built without
permits on public or private property' and providing for the relocation of squatters (68
O.G. 7962. See Letter of Instruction No. 19-A). As noted by Justice Sanchez, since
the last global war, squatting on another's property in this country has become a
widespread vice. (City of Manila vs.. Garcia, L-26053, Feb. 21, 1967, 19 SCRA 413,
418).
WHEREFORE, in view of the foregoing, Ordinance 386 is hereby rendered nullified and without
force and effect.
SO ORDERED.

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

LEONARDO TAN, ROBERT UY and LAMBERTO TE, petitioners,

vs. SOCORRO Y. PEREA, respondent.
DECISION
TINGA, J.:

The resolution of the present petition effectively settles the question of how
many cockpits may be allowed to operate in a city or municipality.
There are two competing values of high order that come to fore in this
casethe traditional power of the national government to enact police power
measures, on one hand, and the vague principle of local autonomy now
enshrined in the Constitution on the other. The facts are simple, but may be
best appreciated taking into account the legal milieu which frames them.
In 1974, Presidential Decree (P.D.) No. 449, otherwise known as the
Cockfighting Law of 1974, was enacted. Section 5(b) of the Decree provided
for limits on the number of cockpits that may be established in cities and
municipalities in the following manner:
Section 5. Cockpits and Cockfighting in General.
(b) Establishment of Cockpits. Only one cockpit shall be allowed in each city or
municipality, except that in cities or municipalities with a population of over one
hundred thousand, two cockpits may be established, maintained and operated.
With the enactment of the Local Government Code of 1991, the municipal
sangguniang bayan were empowered, [a]ny law to the contrary
notwithstanding, to authorize and license the establishment, operation and
maintenance of cockpits, and regulate cockfighting and commercial breeding
of gamecocks.
[1]

[2]

In 1993, the Sangguniang Bayan of the municipality of Daanbantayan,

Cebu Province, enacted Municipal Ordinance No. 6 (Ordinance No. 6),
Series of 1993, which served as the Revised Omnibus Ordinance prescribing
and promulgating the rules and regulations governing cockpit operations in
[3]

Daanbantayan. Section 5 thereof, relative to the number of cockpits allowed

in the municipality, stated:
[4]

Section 5. There shall be allowed to operate in the Municipality of Daanbantayan,

Province of Cebu, not more than its equal number of cockpits based upon the
population provided for in PD 449, provided however, that this specific section can be
amended for purposes of establishing additional cockpits, if the Municipal population
so warrants.
[5]

Shortly thereafter, the Sangguniang Bayan passed an amendatory

ordinance, Municipal Ordinance No. 7 (Ordinance No. 7), Series of 1993,
which amended the aforequoted Section 5 to now read as follows:
Section 5. Establishment of Cockpit. There shall be allowed to operate in the
Municipality of Daanbantayan, Province of Cebu, not more than three (3) cockpits.

[6]

On 8 November 1995, petitioner Leonardo Tan (Tan) applied with the

Municipal Gamefowl Commission for the issuance of a permit/license to
establish and operate a cockpit in Sitio Combado, Bagay, in Daanbantayan. At
the time of his application, there was already another cockpit in operation in
Daanbantayan, operated by respondent Socorro Y. Perea (Perea), who was
the duly franchised and licensed cockpit operator in the municipality since the
1970s. Pereas franchise, per records, was valid until 2002.
[7]

The Municipal Gamefowl Commission favorably recommended to the

mayor of Daanbantayan, petitioner Lamberto Te (Te), that a permit be issued
to Tan. On 20 January 1996, Te issued a mayors permit allowing Tan to
establish/operate/conduct the business of a cockpit in Combado, Bagay,
Daanbantayan, Cebu for the period from 20 January 1996 to 31 December
1996.
[8]

This act of the mayor served as cause for Perea to file a Complaint for
damages with a prayer for injunction against Tan, Te, and Roberto Uy, the
latter allegedly an agent of Tan. Perea alleged that there was no lawful basis
for the establishment of a second cockpit. She claimed that Tan conducted his
cockpit fights not in Combado, but in Malingin, at a site less than five
kilometers away from her own cockpit. She insisted that the unlawful
[9]

operation of Tans cockpit has caused injury to her own legitimate business,
and demanded damages of at least Ten Thousand Pesos (P10,000.00) per
month as actual damages, One Hundred Fifty Thousand Pesos (P150,000.00)
as moral damages, and Fifty Thousand Pesos (P50,000.00) as exemplary
damages. Perea also prayed that the permit issued by Te in favor of Tan be
declared as null and void, and that a permanent writ of injunction be issued
against Te and Tan preventing Tan from conducting cockfights within the
municipality and Te from issuing any authority for Tan to pursue such activity.
[10]

The case was heard by the Regional Trial Court (RTC), Branch 61 of
Bogo, Cebu, which initially granted a writ of preliminary injunction. During
trial, herein petitioners asserted that under the Local Government Code of
1991, the sangguniang bayan of each municipality now had the power and
authority to grant franchises and enact ordinances authorizing the
establishment, licensing, operation and maintenance of cockpits. By virtue of
such authority, the Sangguniang Bayan of Daanbantayan promulgated
Ordinance Nos. 6 and 7. On the other hand, Perea claimed that the
amendment authorizing the operation of not more than three (3) cockpits in
Daanbantayan violated Section 5(b) of the Cockfighting Law of 1974, which
allowed for only one cockpit in a municipality with a population as
Daanbantayan.
[11]

[12]

[13]

[14]

In a Decision dated 10 March 1997, the RTC dismissed the complaint. The
court observed that Section 5 of Ordinance No. 6, prior to its amendment, was
by specific provision, an implementation of the Cockfighting Law. Yet
according to the RTC, questions could be raised as to the efficacy of the
subsequent amendment under Ordinance No. 7, since under the old Section
5, an amendment allowing additional cockpits could be had only if the
municipal population so warrants. While the RTC seemed to doubt whether
this condition had actually been fulfilled, it nonetheless declared that since the
case was only for damages, the [RTC] cannot grant more relief than that
prayed for. It ruled that there was no evidence, testimonial or documentary,
to show that plaintiff had actually suffered damages. Neither was there
evidence that Te, by issuing the permit to Tan, had acted in bad faith, since
such issuance was pursuant to municipal ordinances that nonetheless
remained in force. Finally, the RTC noted that the assailed permit had
[15]

[16]

[17]

[18]

expired on 31 December 1996, and there was no showing that it had been
renewed.
[19]

Perea filed a Motion for Reconsideration which was denied in

an Order dated 24 February 1998. In this Order, the RTC categorically stated
that Ordinance Nos. 6 and 7 were valid and legal for all intents and
purpose[s]. The RTC also noted that the Sangguniang Bayan had also
promulgated Resolution No. 78-96, conferring on Tan a franchise to operate a
cockpit for a period of ten (10) years from February 1996 to 2006. This
Resolution was likewise affirmed as valid by the RTC. The RTC noted that
while the ordinances seemed to be in conflict with the Cockfighting Law, any
doubt in interpretation should be resolved in favor of the grant of more power
to the local government unit, following the principles of devolution under the
Local Government Code.
[20]

[21]

[22]

The Decision and Order of the RTC were assailed by Perea on an appeal
with the Court of Appeals which on 21 May 2001, rendered the Decision now
assailed. The perspective from which the Court of Appeals viewed the issue
was markedly different from that adopted by the RTC. Its analysis of the Local
Government Code, particularly Section 447(a)(3)(V), was that the provision
vesting unto the sangguniang bayan the power to authorize and license the
establishment of cockpits did not do away with the Cockfighting Law, as these
two laws are not necessarily inconsistent with each other. What the provision
of the Local Government Code did, according to the Court of Appeals, was to
transfer to the sangguniang bayan powers that were previously conferred on
the Municipal Gamefowl Commission.
[23]

[24]

Given these premises, the appellate court declared as follows:

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

As to the question of damages, the Court of Appeals agreed with the

findings of the RTC that Perea was not entitled to damages. Thus, it affirmed

the previous ruling denying the claim for damages. However, the Court of
Appeals modified the RTCs Decision in that it now ordered that Tan be
enjoined from operating a cockpit and conducting any cockfights within
Daanbantayan.
[26]

Thus, the present Petition for Review on Certiorari.

Petitioners present two legal questions for determination: whether the
Local Government Code has rendered inoperative the Cockfighting Law; and
whether the validity of a municipal ordinance may be determined in an action
for damages which does not even contain a prayer to declare the ordinance
invalid. As the denial of the prayer for damages by the lower court is not put
in issue before this Court, it shall not be passed upon on review.
[27]

The first question raised is particularly interesting, and any definitive

resolution on that point would have obvious ramifications not only to
Daanbantayan, but all other municipalities and cities. However, we must first
determine the proper scope of judicial inquiry that we could engage in, given
the nature of the initiatory complaint and the rulings rendered thereupon, the
exact point raised in the second question.
Petitioners claim that the Court of Appeals, in declaring Ordinance No. 7
as invalid, embarked on an unwarranted collateral attack on the validity of a
municipal ordinance. Pereas complaint, which was for damages with
preliminary injunction, did not pray for the nullity of Ordinance No. 7. The
Municipality of Daanbantayan as a local government unit was not made a
party to the case, nor did any legal counsel on its behalf enter any
appearance. Neither was the Office of the Solicitor General given any notice
of the case.
[28]

[29]

These concerns are not trivial. Yet, we must point out that the Court of
Appeals did not expressly nullify Ordinance No. 7, or any ordinance for that
matter. What the appellate court did was to say that Ordinance No. 7 should
therefore be held invalid for being in violation of the Cockfighting Law. In
the next breath though, the Court of Appeals backtracked, saying that this
issue appears to have been mooted by the expiration of the Mayors Permit
granted to Tan.
[30]

[31]

[32]

But our curiosity is aroused by the dispositive portion of the

assailed Decision, wherein the Court of Appeals enjoined Tan from operating
a cockpit and conducting any cockfights within Daanbantayan. Absent the
invalidity of Ordinance No. 7, there would be no basis for this injunction. After
all, any future operation of a cockpit by Tan in Daanbantayan, assuming all
other requisites are complied with, would be validly authorized should
Ordinance No. 7 subsist.
[33]

So it seems, for all intents and purposes, that the Court of Appeals did
deem Ordinance No. 7 a nullity. Through such resort, did the appellate court in
effect allow a collateral attack on the validity of an ordinance through an action
for damages, as the petitioners argue?
The initiatory Complaint filed by Perea deserves close scrutiny.
Immediately, it can be seen that it is not only an action for damages, but also
one for injunction. An action for injunction will require judicial determination
whether there exists a right in esse which is to be protected, and if there is an
act constituting a violation of such right against which injunction is sought. At
the same time, the mere fact of injury alone does not give rise to a right to
recover damages. To warrant the recovery of damages, there must be both a
right of action for a legal wrong inflicted by the defendant, and damage
resulting to the plaintiff therefrom. In other words, in order that the law will give
redress for an act causing damage, there must be damnum et injuria that act
must be not only hurtful, but wrongful.
[34]

Indubitably, the determination of whether injunction or damages avail in

this case requires the ascertainment of whether a second cockpit may be
legally allowed in Daanbantayan. If this is permissible, Perea would not be
entitled either to injunctive relief or damages.
Moreover,
an
examination
of
the
specific
allegations
in
the Complaint reveals that Perea therein puts into question the legal basis
for allowing Tan to operate another cockpit in Daanbantayan. She asserted
that there is no lawful basis for the establishment of a second cockpit
considering the small population of [Daanbantayan], a claim which alludes
to Section 5(b) of the Cockfighting Law which prohibits the establishment of a
second cockpit in municipalities of less than ten thousand (10,000) in
[35]

population. Perea likewise assails the validity of the permit issued to Tan and
prays for its annulment, and also seeks that Te be enjoined from issuing any
special permit not only to Tan, but also to any other person outside of a duly
licensed cockpit in Daanbantayan, Cebu.
[36]

It would have been preferable had Perea expressly sought the annulment
of Ordinance No. 7. Yet it is apparent from her Complaint that she sufficiently
alleges that there is no legal basis for the establishment of a second cockpit.
More importantly, the petitioners themselves raised the valid effect of
Ordinance No. 7 at the heart of their defense against the complaint, as
adverted to in their Answer. The averment in the Answer that Ordinance No.
7 is valid can be considered as an affirmative defense, as it is the allegation of
a new matter which, while hypothetically admitting the material allegations in
the complaint, would nevertheless bar recovery. Clearly then, the validity of
Ordinance No. 7 became a justiciable matter for the RTC, and indeed Perea
squarely raised the argument during trial that said ordinance violated the
Cockfighting Law.
[37]

[38]

[39]

Moreover, the assailed rulings of the RTC, its Decision and

subsequent Order denying Pereas Motion for Reconsideration, both discuss
the validity of Ordinance No. 7. In the Decision, the RTC evaded making a
categorical ruling on the ordinances validity because the case was only for
damages, [thus the RTC could] not grant more relief than that prayed for. This
reasoning is unjustified, considering that Perea also prayed for an injunction,
as well as for the annulment of Tans permit. The resolution of these two
questions could very well hinge on the validity of Ordinance No. 7.
Still, in the Order denying Pereas Motion for Reconsideration, the RTC
felt less inhibited and promptly declared as valid not only Ordinance No. 7, but
also Resolution No. 78-96 of the Sangguniang Bayan dated 23 February
1996, which conferred on Tan a franchise to operate a cockpit from 1996 to
2006. In the Order, the RTC ruled that while Ordinance No. 7 was in
apparent conflict with the Cockfighting Law, the ordinance was justified under
Section 447(a)(3)(v) of the Local Government Code.
[40]

This express affirmation of the validity of Ordinance No. 7 by the RTC was
the first assigned error in Pereas appeal to the Court of Appeals. In
[41]

their Appellees Brief before the appellate court, the petitioners likewise
argued that Ordinance No. 7 was valid and that the Cockfighting Law was
repealed by the Local Government Code. On the basis of these arguments,
the Court of Appeals rendered its assailed Decision, including its ruling that
the Section 5(b) of the Cockfighting Law remains in effect notwithstanding the
enactment of the Local Government Code.
[42]

Indubitably, the question on the validity of Ordinance No. 7 in view of the

continuing efficacy of Section 5(b) of the Cockfighting Law is one that has
been fully litigated in the courts below. We are comfortable with reviewing that
question in the case at bar and make dispositions proceeding from that key
legal question. This is militated by the realization that in order to resolve the
question whether injunction should be imposed against the petitioners, there
must be first a determination whether Tan may be allowed to operate a second
cockpit in Daanbantayan. Thus, the conflict between Section 5(b) of the
Cockfighting Law and Ordinance No. 7 now ripens for adjudication.
In arguing that Section 5(b) of the Cockfighting Law has been repealed,
petitioners cite the following provisions of Section 447(a)(3)(v) of the Local
Government Code:
Section 447. Powers, Duties, Functions and Compensation. (a) The sangguniang
bayan, as the legislative body of the municipality, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the municipality as provided for under Section 22 of this Code,
and shall:
....
(3) Subject to the provisions of Book II of this Code, grant franchises, enact
ordinances authorizing the issuance of permits or licenses, or enact ordinances levying
taxes, fees and charges upon such conditions and for such purposes intended to
promote the general welfare of the inhabitants of the municipality, and pursuant to this
legislative authority shall:
....

(v) Any law to the contrary notwithstanding, authorize and license

the establishment, operation, and maintenance of cockpits, and
regulate cockfighting and commercial breeding of
gamecocks; Provided, that existing rights should not be prejudiced;
For the petitioners, Section 447(a)(3)(v) sufficiently repeals Section 5(b) of
the Cockfighting Law, vesting as it does on LGUs the power and authority to
issue franchises and regulate the operation and establishment of cockpits in
their respective municipalities, any law to the contrary notwithstanding.
However, while the Local Government Code expressly repealed several
laws, the Cockfighting Law was not among them. Section 534(f) of the Local
Government Code declares that all general and special laws or decrees
inconsistent with the Code are hereby repealed or modified accordingly, but
such clause is not an express repealing clause because it fails to identify or
designate the acts that are intended to be repealed. It is a cardinal rule in
statutory construction that implied repeals are disfavored and will not be so
declared unless the intent of the legislators is manifest.
As laws are
presumed to be passed with deliberation and with knowledge of all existing
ones on the subject, it is logical to conclude that in passing a statute it is not
intended to interfere with or abrogate a former law relating to the same subject
matter, unless the repugnancy between the two is not only irreconcilable but
also clear and convincing as a result of the language used, or unless the latter
Act fully embraces the subject matter of the earlier.
[43]

[44]

[45]

Is the one-cockpit-per-municipality rule under the Cockfighting Law clearly

and convincingly irreconcilable with Section 447(a)(3)(v) of the Local
Government Code? The clear import of Section 447(a)(3)(v) is that it is the
sangguniang bayan which is empowered to authorize and license the
establishment, operation and maintenance of cockpits, and regulate
cockfighting and commercial breeding of gamecocks, notwithstanding any law
to the contrary. The necessity of the qualifying phrase any law to the contrary
notwithstanding can be discerned by examining the history of laws pertaining
to the authorization of cockpit operation in this country.
Cockfighting, or sabong in the local parlance, has a long and storied
tradition in our culture and was prevalent even during the Spanish occupation.

When the newly-arrived Americans proceeded to organize a governmental

structure in the Philippines, they recognized cockfighting as an activity that
needed to be regulated, and it was deemed that it was the local municipal
council that was best suited to oversee such regulation. Hence, under Section
40 of Act No. 82, the general act for the organization of municipal
governments promulgated in 1901, the municipal council was empowered to
license, tax or close cockpits. This power of the municipal council to authorize
or license cockpits was repeatedly recognized even after the establishment of
the present Republic in 1946. Such authority granted unto the municipal
councils to license the operation of cockpits was generally unqualified by
restrictions. The Revised Administrative Code did impose restrictions on
what days cockfights could be held.
[46]

[47]

[48]

However, in the 1970s, the desire for stricter licensing requirements of

cockpits started to see legislative fruit. The Cockfighting Law of 1974 enacted
several of these restrictions. Apart from the one-cockpit-per-municipality rule,
other restrictions were imposed, such as the limitation of ownership of
cockpits to Filipino citizens. More importantly, under Section 6 of the
Cockfighting Law, it was the city or municipal mayor who was authorized to
issue licenses for the operation and maintenance of cockpits, subject to the
approval of the Chief of Constabulary or his authorized representatives.
Thus, the sole discretion to authorize the operation of cockpits was removed
from the local government unit since the approval of the Chief of Constabulary
was now required.
[49]

[50]

P.D. No. 1802 reestablished the Philippine Gamefowl Commission and

imposed further structure in the regulation of cockfighting. Under Section 4
thereof, city and municipal mayors with the concurrence of their respective
sangguniang panglunsod or sangguniang bayan, were given the authority to
license and regulate cockfighting, under the supervision of the City Mayor or
the Provincial Governor. However, Section 4 of P.D. No. 1802 was
subsequently amended, removing the supervision exercised by the mayor or
governor and substituting in their stead the Philippine Gamefowl Commission.
The amended provision ordained:
[51]

Sec. 4. City and Municipal Mayors with the concurrence of their respective
Sanggunians shall have the authority to license and regulate regular cockfighting

pursuant to the rules and regulations promulgated by the Commission and subject to
its review and supervision.
The Court, on a few occasions prior to the enactment of the Local
Government Code in 1991, had opportunity to expound on Section 4 as
amended. A discussion of these cases will provide a better understanding of
the qualifier any law to the contrary notwithstanding provided in Section
447(a)(3)(v).
In Philippine Gamefowl Commission v. Intermediate Appellate Court, the
Court, through Justice Cruz, asserted that the conferment of the power to
license and regulate municipal cockpits in municipal authorities is in line with
the policy of local autonomy embodied in the Constitution. The Court
affirmed the annulment of a resolution of the Philippine Gamefowl
Commission which ordered the revocation of a permit issued by a municipal
mayor for the operation of a cockpit and the issuance of a new permit to a
different applicant. According to the Court, the Philippine Gamefowl
Commission did not possess the power to issue cockpit licenses, as this was
vested by Section 4 of P.D. No. 1802, as amended, to the municipal mayor
with the concurrence of the sanggunian. It emphasized that the Philippine
Gamefowl Commission only had review and supervision powers, as
distinguished from control, over ordinary cockpits. The Court also noted that
the regulation of cockpits was vested in municipal officials, subject only to the
guidelines laid down by the Philippine Gamefowl Commission. The Court
conceded that [if] at all, the power to review includes the power to
disapprove; but it does not carry the authority to substitute ones own
preferences for that chosen by the subordinate in the exercise of its sound
discretion.
[52]

[53]

[54]

[55]

The twin pronouncements that it is the municipal authorities who are

empowered to issue cockpit licenses and that the powers of the Philippine
Gamefowl Commission were limited to review and supervision were affirmed
in Deang v. Intermediate Appellate Court, Municipality of Malolos v.
Libangang Malolos Inc. and Adlawan v. Intermediate Appellate Court. But
notably in Cootauco v. Court of Appeals, the Court especially noted
that Philippine Gamefowl Commission did indicate that the Commissions
power of review includes the power to disapprove. Interestingly, Justice
[56]

[57]

[58]

[59]

[60]

Cruz, the writer of Philippine Gamefowl Commission, qualified his

concurrence in Cootauco subject to the reservations made in [Philippine
Gamefowl Commission] regarding the review powers of the PGC over cockpit
licenses issued by city and municipal mayors.
[61]

These cases reiterate what has been the traditional prerogative of

municipal officials to control the issuances of licenses for the operation of
cockpits. Nevertheless, the newly-introduced role of the Philippine Gamefowl
Commission vis--vis the operation of cockpits had caused some degree of
controversy, as shown by the cases above cited.
Then, the Local Government Code of 1991 was enacted. There is no more
forceful authority on this landmark legislation than Senator Aquilino Pimentel,
Jr., its principal author. In his annotations to the Local Government Code, he
makes the following remarks relating to Section 447(a)(3)(v):
12. Licensing power. In connection with the power to grant licenses lodged with it,
the Sangguniang Bayan may now regulate not only businesses but also occupations,
professions or callings that do not require government examinations within its
jurisdiction. It may also authorize and license the establishment, operation and
maintenance of cockpits, regulate cockfighting, and the commercial breeding of
gamecocks. Existing rights however, may not be prejudiced. The power to license
cockpits and permits for cockfighting has been removed completely from the
Gamefowl Commission.
Thus, that part of the ruling of the Supreme Court in the case of Municipality of
Malolos v. Libangang Malolos, Inc. et al., which held that the regulation of
cockpits is vested in the municipal councils guidelines laid down by the
Philippine Gamefowl Commission is no longer controlling. Under [Section
447(a)(3)(v)], the power of the Sanggunian concerned is no longer subject to the
supervision of the Gamefowl Commission.
[62]

The above observations may be faulted somewhat in the sense that they
fail to acknowledge the Courts consistent position that the licensing power
over cockpits belongs exclusively to the municipal authorities and not the
Philippine Gamefowl Commission. Yet these views of Senator Pimentel
evince the apparent confusion regarding the role of the Philippine Gamefowl

Commission as indicated in the cases previously cited, and accordingly bring

the phrase Section 447(a)(3)(v) used in any law to the contrary
notwithstanding into its proper light. The qualifier serves notice, in case it was
still doubtful, that it is the sanggunian bayan concerned alone which has the
power to authorize and license the establishment, operation and maintenance
of cockpits, and regulate cockfighting and commercial breeding of gamecocks
within its territorial jurisdiction.
Given the historical perspective, it becomes evident why the legislature
found the need to use the phrase any law to the contrary notwithstanding in
Section 447(a)(3)(v). However, does the phrase similarly allow the
Sangguniang Bayan to authorize more cockpits than allowed under Section
5(d) of the Cockfighting Law? Certainly, applying the test of implied repeal,
these two provisions can stand together. While the sanggunian retains the
power to authorize and license the establishment, operation, and maintenance
of cockpits, its discretion is limited in that it cannot authorize more than one
cockpit per city or municipality, unless such cities or municipalities have a
population of over one hundred thousand, in which case two cockpits may be
established. Considering that Section 447(a)(3)(v) speaks essentially of the
identity of the wielder of the power of control and supervision over cockpit
operation, it is not inconsistent with previous enactments that impose
restrictions on how such power may be exercised. In short, there is no
dichotomy between affirming the power and subjecting it to limitations at the
same time.
Perhaps more essential than the fact that the two controverted provisions
are not inconsistent when put together, the Court recognizes that Section 5(d)
of the Cockfighting Law arises from a valid exercise of police power by the
national government. Of course, local governments are similarly empowered
under Section 16 of the Local Government Code. The national government
ought to be attuned to the sensitivities of devolution and strive to be sparing in
usurping the prerogatives of local governments to regulate the general welfare
of their constituents.
We do not doubt, however, the ability of the national government to
implement police power measures that affect the subjects of municipal
government, especially if the subject of regulation is a condition of universal

character irrespective of territorial jurisdictions. Cockfighting is one such

condition. It is a traditionally regulated activity, due to the attendant gambling
involved or maybe even the fact that it essentially consists of two birds killing
each other for public amusement. Laws have been enacted restricting the
days when cockfights could be held, and legislation has even been emphatic
that cockfights could not be held on holidays celebrating national honor such
as Independence Day and Rizal Day.
[63]

[64]

[65]

[66]

The Whereas clauses of the Cockfighting Law emphasize that cockfighting

should neither be exploited as an object of commercialism or business
enterprise, nor made a tool of uncontrolled gambling, but more as a vehicle for
the preservation and perpetuation of native Filipino heritage and thereby
enhance our national identity. The obvious thrust of our laws designating
when cockfights could be held is to limit cockfighting and imposing the onecockpit-per-municipality rule is in line with that aim. Cockfighting is a valid
matter of police power regulation, as it is a form of gambling essentially
antagonistic to the aims of enhancing national productivity and self-reliance.
Limitation on the number of cockpits in a given municipality is a reasonably
necessary means for the accomplishment of the purpose of controlling
cockfighting, for clearly more cockpits equals more cockfights.
[67]

[68]

If we construe Section 447(a)(3)(v) as vesting an unlimited discretion to

the sanggunian to control all aspects of cockpits and cockfighting in their
respective jurisdiction, this could lead to the prospect of daily cockfights in
municipalities, a certain distraction in the daily routine of life in a municipality.
This certainly goes against the grain of the legislation earlier discussed. If the
arguments of the petitioners were adopted, the national government would be
effectively barred from imposing any future regulatory enactments pertaining
to cockpits and cockfighting unless it were to repeal Section 447(a)(3)(v).
A municipal ordinance must not contravene the Constitution or any statute,
otherwise it is void. Ordinance No. 7 unmistakably contravenes the
Cockfighting Law in allowing three cockpits in Daanbantayan. Thus, no rights
can be asserted by the petitioners arising from the Ordinance. We find the
grant of injunction as ordered by the appellate court to be well-taken.
[69]

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.

RUPERTO LUCERO, JR., PABLO

G.R. No. 132834
LUCERO and ANTONIO TENORIO,
Petitioners,
Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA and
GARCIA, JJ.

- versus -

CITY GOVERNMENT OF PASIG,

as represented by the Market
Administrator,
Respondent.

Promulgated:
November 24, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CORONA, J.:

In this petition for review on certiorari, petitioners seek the review and
reversal of the Court of Appeals (CA) decision [1] and resolution[2] in CA-G.R. SP.
No. 42131.
Petitioners were granted lease contracts to occupy and operate stalls [3] in the
public market of Pasig by virtue of Municipal Ordinance No. 25, series of 1983.
Sometime in 1993, the municipal government of Pasig renovated the market
facilities

and constructed annex buildings

to the old public

market.

The Sangguniang Bayan ofPasig then enacted Municipal Ordinance No. 56, series

of 1993, entitled An Ordinance Prescribing the Rules and Regulations in

Occupying and Using Market Stalls and Providing Penalties for Violations
Thereof. The ordinance took effect 30 days after its enactment on October 20,
1993.
Pursuant to the new ordinance, municipal officials urged all stall occupants
to fill up and submit the necessary application forms. The application form
contained the terms and conditions for the occupation and operation of the stalls. If
approved, the application would serve as the lease contract.
Petitioners, however, refused to apply for a new lease on their market stalls.
They were given a deadline to comply with the new ordinance but petitioners were
adamant.
On November 14, 1995, the city government of Pasig[4] filed a complaint
for ejectment against petitioners in the Metropolitan Trial Court (MTC), Branch
68, Pasig City. The case was docketed as Civil Case No. 5043.
In its complaint, the city government alleged that petitioners failed to pay
the required P10,000 performance bond and their rental fees since January 1994 as
required by the municipal ordinance.
In their answer, petitioners claimed that they had faithfully complied with
their obligations as set forth in their 1983 lease contracts. They alleged that it was
the city government which refused to accept their rental payments from January
1994 onwards because of petitioners failure to submit new applications to lease
their market stalls. They did not pay the performance bond because, as previous
stall occupants, they were not required to do so. With due notice to the city

treasurer, petitioners deposited their payments in a bank when their offer to pay
was not acted upon.
Finding the ejectment suit to be without merit, the MTC ruled in favor of
petitioners and dismissed the complaint.[5]

Dissatisfied with the lower courts decision, the city government appealed to
the Regional Trial Court (RTC), Branch 162, Pasig City.[6] The RTC reversed the
MTC decision and decided in favor of the city government.
WHEREFORE, PREMISES CONSIDERED, this Court hereby
renders judgment in this case in favor of [the City Government of Pasig]
and against [petitioners] by:
(1)

Reversing, amending and/or modifying the decision of the trial

court dated March 29, 1996 subject of this appeal, and entering a
new judgment directing the herein [petitioners] and all persons
claiming right under them to vacate the Market Stalls Nos. 28 and
29, Commercial Section, and Stall [Nos.] 456 and 457, Grocery
Section, and to restore possession thereof to [the city
government];

(2)

Ordering the [petitioners] to pay the rent for the use and
occupancy of the subject stalls, as follows:
(a)

Ruperto Lucero the amount of P49,980.00

representing arrearages for the whole year of
[January 1994 up to September 1995]; and the
further sum in the same amount representing rents
for the inclusive period of [October 1995 up to and
until September 1996];

(b)

Pablo Lucero the amount of P20,050.00

representing arrearages from [February 1995 up to
September 1995]; and the further sum in the same

amount representing rents for the duration of

October 1995 to September 1996;
(c)

(3)

Antonio Tenorio
the
amount
of P38,587.50 representing arrearages from January
1994 to September 1995; and the further sum in the
same amount representing rents for the inclusive
period [of] October 1995 to September 1996.

Ordering [petitioners] to pay jointly and severally the amount

of P15,000.00 for and as attorneys fees.
With costs against [petitioners].
SO ORDERED.[7]

Petitioners appealed the RTC decision to the CA. The appeal was, however,
dismissed for lack of merit.[8] Their motion for reconsideration was similarly
denied;[9] hence, this petition.
Petitioners mainly assail the non-renewal of their lease contracts on stalls in
the public market when they did not comply with the requirements of Municipal
Ordinance No. 56, series of 1993.[10] They claim to have a vested right to the
possession, use and enjoyment of the market stalls based on their 1983 lease
contracts. This, they assert, could not be impaired by the enactment of Municipal
Ordinance No. 56 in 1993.
The only issue for our resolution is: can petitioners claim a vested right to
the market stalls they were occupying by virtue of their lease contracts under
Municipal Ordinance No. 25, series of 1983? They cannot.
A right is vested when the right to enjoyment has become the property of
some particular person or persons as a present interest.[11] It is unalterable,

absolute, complete and unconditional.[12] This right is perfect in itself; it is not

dependent upon a contingency.[13] The concept of vested right expresses a
present fixed interest which in right reason and natural justice is protected against
arbitrary state action.[14] It includes not only legal and equitable title to the
enforcement of a demand but also exemptions from new obligations created after
the right has become vested.[15]
Contrary to petitioners contention that they were no longer covered by the
1993 ordinance requiring payment of a performance bond and submission of new
application forms, their 1983 lease contracts did not grant them irrefutable rights to
the market stalls. They were mere grantees of a privilege to occupy and operate
such booths.
What petitioners had was a license to occupy and operate particular stalls
over a period of time. Their possession and use of these facilities could not be
characterized as fixed and absolute. Indeed, petitioners did not have any vested
right to the stalls.
It was within the ambit of the Sanggunians authority in the exercise of
police power to regulate the enjoyment of the privilege to lease the market
stalls. The enactment of the Municipal Ordinance No. 56, series of 1993 repealing
Municipal Ordinance No. 25, series of 1983 (the basis of petitioners lease) was
a valid exercise of such governmental authority to

regulate the possession and use of the public market and its facilities.[16]

The lease (and occupation) of a stall in a public market is not a right but a
purely statutory privilege governed by laws and ordinances. [17] The operation of a
market stall by virtue of a license is always subject to the police power of the city
government.[18] An application for this privilege may be granted or refused for
reasons of public policy and sound public administration. [19] The city government,
through its market administrator, is not duty-bound to grant lease privileges to any
applicant, least of all those who refuse to obey the new ordinance prescribing the
rules and regulations for the market stalls.
Moreover, a public market is one dedicated to the service of the general
public and operated under government control and supervision as a public utility.
[20]

Hence, the operation of a public market and its facilities is imbued with public

interest. Petitioners 1983 lease contracts contained an implied reservation of the

police power as a postulate of the existing legal order.[21] This power could be
exercised any time to change the provisions of the contracts or even abrogate them
entirely, for the protection of the general welfare. [22] Such an act did not violate the
non-impairment clause which is anyway subject to and limited by the paramount
police power.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioners.
SO ORDERED.
[G.R. No. 148339. February 23, 2005]

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

LINER, INC., respondent.

DECISION
CARPIO MORALES, J.:

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

Ordinance No. 1631

[2]

AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL,

INC., A FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND
MAINTAIN A COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE CITY
OF LUCENA
xxx
SECTION 1. There is hereby granted to the Lucena Grand Central Terminal, Inc., its
successors or assigns, hereinafter referred to as the grantee, a franchise to construct,
finance, establish, operate, and maintain a common bus-jeepney terminal facility in
the City of Lucena.
SECTION 2. This franchise shall continue for a period of twenty-five years, counted
from the approval of this Ordinance, and renewable at the option of the grantee for
another period of twenty-five (25) years upon such expiration.
xxx
SECTION 4. Responsibilities and Obligations of the City Government of Lucena.
During the existence of the franchise, the City Government of Lucena shall have the
following responsibilities and obligations:
xxx

(c) It shall not grant any third party any privilege and/or concession to operate a bus,
mini-bus and/or jeepney terminal.
xxx
Ordinance No. 1778

[3]

AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY

OF LUCENA OF ALL BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER
JEEPNEYS AND FOR THIS PURPOSE, AMENDING ORDINACE NO. 1420,
SERIES OF 1993, AND ORDINANCE NO. 1557, SERIES OF 1995
xxx
SECTION 1. The entrance to the City of Lucena of all buses, mini-buses and out-oftown passenger jeepneys is hereby regulated as follows:
(a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited
from entering the city and are hereby directed to proceed to the common terminal,
for picking-up and/or dropping of their passengers.
(b) All temporary terminals in the City of Lucena are hereby declared
inoperable starting from the effectivity of this ordinance.
xxx
SECTION 3. a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby
amended to read as follows:
Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local
government units going to Lucena City are directed to proceed to the Common
Terminal located at Diversion Road, Brgy. Ilayang Dupay, to unload and load
passengers.
xxx
c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall utilize the facilities of the Lucena
Grand Central Terminal at Diversion Road, Brgy. Ilayang Dupay, this City, and no
other terminals shall be situated inside or within the City of Lucena;
d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall avail of the facilities of the Lucena
Grand Central Terminal which is hereby designated as the officially sanctioned
common terminal for the City of Lucena;
e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as
follows:
The Lucena Grand Central Terminal is the permanent common terminal as this i
s the entity which was given the exclusive franchise by the Sangguniang Panglun
gsod under Ordinance No. 1631;(Emphasis and underscoring supplied)
These ordinances, by granting an exclusive franchise for twenty five years,
renewable for another twenty five years, to one entity for the construction and
operation of one common bus and jeepney terminal facility in Lucena City, to
be located outside the city proper, were professedly aimed towards alleviating
the traffic congestion alleged to have been caused by the existence of various
bus and jeepney terminals within the city, as the Explanatory Note-Whereas
Clause adopting Ordinance No. 1778 states:
WHEREAS, in line with the worsening traffic condition of the City of Lucena, and
with the purpose of easing and regulating the flow of the same, it is imperative that
the Buses, Mini-Buses and out-of-town jeepneys be prohibited from maintaining
terminals within the City, but instead directing to proceed to the Lucena Grand Central
Terminal for purposes of picking-up and/or dropping off their passengers;
[4]

Respondent, who had maintained a terminal within the city, was one of
those affected by the ordinances.

Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as

the grantee of the exclusive franchise for the operation of the common
terminal, was allowed to intervene in the petition before the trial court.
[5]

In the hearing conducted on November 25, 1998, all the parties agreed to
dispense with the presentation of evidence and to submit the case for
resolution solely on the basis of the pleadings filed.
[6]

By Order of March 31, 1999, Branch 54 of the Lucena RTC rendered

judgment, the dispositive portion of which reads:
[7]

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

follows:
1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of
the police power of the City Government of Lucena insofar as the grant of franchise to
the Lucena Grand Central Terminal, Inc., to construct, finance, establish, operate and
maintain common bus-jeepney terminal facility in the City of Lucena;
2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the
effect that the City Government shall not grant any third party any privilege and/or
concession to operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra
vires because it contravenes the provisions of Republic Act No. 7160, otherwise
known as The Local Government Code;
3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra
vires act of the City Government of Lucena arising from an invalid, oppressive and
unreasonable exercise of the police power, more specifically, declaring illegal
[sections 1(b), 3(c) and 3(e)];
4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the
respondents public officials, the City Mayor and the Sangguniang Panglungsod of
Lucena, to cease and desist from implementing Ordinance No. 1778 insofar as
said ordinance prohibits or curtails petitioner from maintaining and operating its
own bus terminal subject to the conditions provided for in Ordinance No. 1557, Sec.
3, which authorizes the construction of terminal outside the poblacion of Lucena City;
and likewise, insofar as said ordinance directs and compels the petitioner to use
the Lucena Grand Central Terminal Inc., and furthermore, insofar as it declares

that no other terminals shall be situated, constructed, maintained or established

inside or within the City of Lucena; and furthermore,
5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc.,
dated October 19, 1998, is hereby DENIED for lack of merit.
SO ORDERED. (Emphasis and underscoring supplied)

[8]

Petitioners Motion for Reconsideration of the trial courts order having

been denied by Order of August 6, 1999, it elevated it via petition for review
under Rule 45 before this Court. This Court, by Resolution of November 24,
1999, referred the petition to the Court of Appeals with which it has
concurrent jurisdiction, no special and important reason having been cited for
it to take cognizance thereof in the first instance.
[9]

[10]

[11]

[12]

By Decision of December 15, 2000, the appellate court dismissed the

petition and affirmed the challenged orders of the trial court. Its motion for
reconsideration having been denied by the appellate court by Resolution
dated June 5, 2001, petitioner once again comes to this Court via petition for
review, this time assailing the Decision and Resolution of the Court of
Appeals.
[13]

[14]

[15]

[16]

Decision on the petition hinges on two issues, to wit: (1) whether the trial
court has jurisdiction over the case, it not having furnished the Office of the
Solicitor General copy of the orders it issued therein, and (2) whether the City
of Lucena properly exercised its police power when it enacted the subject
ordinances.
Petitioner argues that since the trial court failed to serve a copy of its
assailed orders upon the Office of the Solicitor General, it never acquired
jurisdiction over the case, it citingSection 22, Rule 3 of the Rules which
provides:
SEC. 22. Notice to the Solicitor General.In any action involving the validity of any
treaty, law, ordinance, executive order, presidential decree, rules or regulations, the
court in its discretion, may require the appearance of the Solicitor General who may

be heard in person or through representative duly designated by him. (Emphasis and

underscoring supplied)
Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which
respectively provide:
SEC. 3. Notice on Solicitor General. In any action which involves the validity of a
statute, executive order or regulation, or any other governmental regulation,
the Solicitor General shall be notified by the party assailing the same and shall be
entitled to be heard upon such question.
SEC. 4. Local government ordinances. In any action involving the validity of a
local government ordinance, the corresponding prosecutor or attorney of the local
government unit involved shall be similarly notified and entitled to be heard. If such
ordinance is alleged to be unconstitutional, the Solicitor General shall also be
notified and entitled to be heard. (Emphasis and underscoring supplied)
Nowhere, however, is it stated in the above-quoted rules that failure to
notify the Solicitor General about the action is a jurisdictional defect.
In fact, Rule 3, Section 22 gives the courts in any action involving the
validity of any ordinance, inter alia, discretion to notify the Solicitor General.
Section 4 of Rule 63, which more specifically deals with cases assailing
the constitutionality, not just the validity, of a local government ordinance,
directs that the Solicitor General shallalso be notified and entitled to be
heard. Who will notify him, Sec. 3 of the same rule provides it is the party
which is assailing the local governments ordinance.
More importantly, however, this Court finds that no procedural defect, fatal
or otherwise, attended the disposition of the case. For respondent actually
served a copy of its petition upon the Office of the Solicitor General
on October 1, 1998, two days after it was filed. The Solicitor General has
issued a Certification to that effect. There was thus compliance with abovequoted rules.
[17]

Respecting the issue of whether police power was properly exercised

when the subject ordinances were enacted: As with the State, the local

government may be considered as having properly exercised its police power

only if the following requisites are met: (1) the interests of the public generally,
as distinguished from those of a particular class, require the interference of
the State, and (2) the means employed are reasonably necessary for the
attainment of the object sought to be accomplished and not unduly oppressive
upon individuals. Otherwise stated, there must be a concurrence of a lawful
subject and lawful method.
[18]

That traffic congestion is a public, not merely a private, concern, cannot be

gainsaid. In Calalang v. Williams which involved a statute authorizing the
Director of Public Works to promulgate rules and regulations to regulate and
control traffic on national roads, this Court held:
[19]

In enacting said law, therefore, the National Assembly was prompted by

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

The questioned ordinances having been enacted with the objective of

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

[22]

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

cannot go behind the expressed and proclaimed purposes of PD No. 771, which are
reasonable and even laudable. (Underscoring supplied)
[23]

This leaves for determination the issue of whether the means employed by
the Lucena Sangguniang Panlungsod to attain its professed objective were
reasonably necessary and not unduly oppressive upon individuals.
With the aim of localizing the source of traffic congestion in the city to a
single location, the subject ordinances prohibit the operation of all bus and
jeepney terminals within Lucena, including those already existing, and allow
the operation of only one common terminal located outside the city proper, the
franchise for which was granted to petitioner. The common carriers plying
routes to and from Lucena City are thus compelled to close down their
existing terminals and use the facilities of petitioner.
[24]

In De la Cruz v. Paras, this Court declared unconstitutional an ordinance

characterized by overbreadth. In that case, the Municipality of Bocaue,
Bulacan prohibited the operation of all night clubs, cabarets and dance halls
within its jurisdiction for the protection of public morals. Held the Court:
[25]

It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue coul
d qualify under the term reasonable. The objective of fostering public morals, a worth
y and desirable end can be attainedby a measure that does not encompass too wide a fi
eld. Certainly the ordinance on its face is characterized by overbreadth. The purpose
sought to be achieved could have been attained by reasonablerestrictions rather than b
y an absolute prohibition. The admonition in Salaveria should be heeded: The
Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. It is
clear that in the guise of a police regulation, there was in this instance a clear invasion
of personal or property rights, personal in the case of those individuals desirous of
patronizing those night clubs and property in terms of the investments made and
salaries to be earned by those therein employed. (Underscoring supplied)
[26]

In Lupangco v. Court of Appeals, this Court, in declaring unconstitutional

the resolution subject thereof, advanced a similar consideration. That case
involved a resolution issued by the Professional Regulation Commission
which prohibited examinees from attending review classes and receiving
[27]

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

As in De la Cruz and Lupangco, the ordinances assailed herein are

characterized by overbreadth. They go beyond what is reasonably necessary
to solve the traffic problem. Additionally, since the compulsory use of the
terminal operated by petitioner would subject the users thereof to fees, rentals
and charges, such measure is unduly oppressive, as correctly found by the
appellate court. What should have been done was to determine exactly
where the problem lies and then to stop it right there.
[29]

[30]

[31]

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

A due deference to the rights of the individual thus requires a more careful
formulation of solutions to societal problems.
From the memorandum filed before this Court by petitioner, it is gathered
that the Sangguniang Panlungsod had identified the cause of traffic
congestion to be the indiscriminate loading and unloading of passengers by
[33]

buses on the streets of the city proper, hence, the conclusion that the
terminals contributed to the proliferation of buses obstructing traffic on the city
streets.
Bus terminals per se do not, however, impede or help impede the flow of
traffic. How the outright proscription against the existence of all terminals,
apart from that franchised to petitioner, can be considered as reasonably
necessary to solve the traffic problem, this Court has not been enlightened. If
terminals lack adequate space such that bus drivers are compelled to load
and unload passengers on the streets instead of inside the terminals, then
reasonable specifications for the size of terminals could be instituted, with
permits to operate the same denied those which are unable to meet the
specifications.
In the subject ordinances, however, the scope of the proscription against
the maintenance of terminals is so broad that even entities which might be
able to provide facilities better than the franchised terminal are barred from
operating at all.
Petitioner argues, however, that other solutions for the traffic problem have
already been tried but proven ineffective. But the grant of an exclusive
franchise to petitioner has not been shown to be the only solution to the
problem.
While the Sangguniang Panlungsod, via Ordinance No. 1557, previously
directed bus owners and operators to put up their terminals outside the
poblacion of Lucena City, petitioner informs that said ordinance only resulted
in the relocation of terminals to other well-populated barangays, thereby giving
rise to traffic congestion in those areas. Assuming that information to be true,
the Sangguniang Panlungsod was not without remedy. It could have defined,
among other considerations, in a more precise manner, the area of relocation
to avoid such consequences.
[34]

[35]

As for petitioners argument that the challenged ordinances were enacted

pursuant to the power of the Sangguniang Panlungsod to [r]egulate traffic on
all streets and bridges; prohibitencroachments or obstacles thereon and,
when necessary in the interest of public welfare, authorize the removal of

encroachments and illegal constructions in public places: Absent any

showing, nay allegation, that the terminals are encroaching upon public roads,
they are not obstacles. The buses which indiscriminately load and unload
passengers on the city streets are. The power then of the Sangguniang
Panlungsod to prohibit encroachments and obstacles does not extend to
terminals.
[36]

Neither are terminals public nuisances as petitioner argues. For their

operation is a legitimate business which, by itself, cannot be said to be
injurious to the rights of property, health, or comfort of the community.
But even assuming that terminals are nuisances due to their alleged
indirect effects upon the flow of traffic, at most they are nuisance per
accidens, not per se.
Unless a thing is nuisance per se, however, it may not be abated via an
ordinance, without judicial proceedings, as was done in the case at bar.
In Estate of Gregoria Francisco v. Court of Appeals, this Court held:
[37]

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

In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellantmunicipality similarly argued that the terminal involved therein is a nuisance
that may be abated by the Municipal Council via an ordinance, this Court held:
Suffice it to say that in the abatement of nuisances the provisions of the Civil
Code (Articles 694-707) must be observed and followed. This appellant failed
to do.
[39]

As for petitioners claim that the challenged ordinances have actually been
proven effective in easing traffic congestion: Whether an ordinance is effective
is an issue different from whether it is reasonably necessary. It is
its reasonableness, not
its effectiveness, which
bears upon
its
constitutionality. If the constitutionality of a law were measured by its
effectiveness, then even tyrannical laws may be justified whenever they
happen to be effective.
The Court is not unaware of the resolutions of various barangays in
Lucena City supporting the establishment of a common terminal, and similar
expressions of support from the private sector, copies of which were
submitted to this Court by petitioner. The weight of popular opinion, however,
must be balanced with that of an individuals rights.
There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of one even as against
the rest of the nation who would deny him that right.
[40]

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

AC Enterprises, Inc. vs. Frabelle Properties Corp.

G.R. No. 166744. November 2, 2006.

SCRA Citation: 506 SCRA 625

DOCTRINE: Private and public nuisance; definition The term nuisance is so comprehensive
that it has been applied to almost all ways which have interfered with the rights of the citizens, either
in person, property, the enjoyment of property, or his comfort; A private nuisance is one which violates
only private rights and produces damage to but one or a few persons while a nuisance is public when it
interferes with the exercise of public right by directly encroaching on public property or by causing a
common injury, an unreasonable interference with the right common to the general public. In this
case, the noise generated by an airconditioning system is considered a private nuisance.
Noise emanating from air-con units not nuisance per se Noise becomes actionable only when
it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the
maker to the needs of the listener; Injury to a particular person in a peculiar position or of especially
sensitive characteristics will not render the noise an actionable nuisance. Whether or not the noise is a
nuisance is an issue to be resolved by the courts.

Test to determine noise as a nuisance The test is whether rights of property, of health or of
comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss [i.e.
Actual Physical Discomfort]which goes beyond the reasonable limit imposed upon him by the
condition of living, or of holding property, in a particular locality in fact devoted to uses which involve
the emission of noise although ordinary care is taken to confine it within reasonable bounds; or in the
vicinity of property of another owner who, though creating a noise, is acting with reasonable regard for
the rights of those affected by it.
Action to abate private nuisance; incapable of pecuniary estiation an action to abate private
nuisance, even wehere the plaintiff asks for damages is one incapable of pecuniary estimation
FACTS: AC enterprises (Petitioner) is a corporation owns a 10-storey building in Makati City. Frabelle
(Respondent) is a condominium corporation who's condominium development is located behind
petitioner. Respondent complained of the 'unbearable noise emanating from the blower of the airconditioning units of petitioner.
ISSUES:
(1) Is it a nuisance as to be resolved only by the courts in the due course of proceedings or a
nuisance per se?
(2) Is an action for abatement of a private nuisance, more specifically noise generated by the blower of
an air-conditioning system, even if the plaintiff prays for damages, one incapable of pecuniary
estimation?
(3) What is the determining factor when noise alone is the cause of complaint?
HELD:
(1) It is a nuisance to be resolved only by the courts in the due course of proceedings; the noise is not
a nuisance per se. Noise becomes actionable only whenn it passes the limits of reasonable adjustment
to the conditions of the locality and of the needs of the maker to the needs of the listener. Injury to a
particular person in a peculiar position or of especially sensitive characteristics will not render the
house an actionable nuisance in the conditions, of present living, noise seems inseparable from the
conduct of many necessary occupations.
(2) Yes, the action is one incapable of pecuniary estimation because the basic issue is something other
than the right to recover a sum of money.

(3) The determining factor is not its intensity or volume; it is that the noise is of such character as to
produce actual physical discomfort and annoyance to a person of ordinary sensibilities rendering
adjacent property less comfortable and valuable.

SECOND DIVISION
G.R. No. 148408

July 14, 2006

CONCEPCION PARAYNO, petitioner,

vs.
JOSE JOVELLANOS and the MUNICIPALITY OF CALASIAO, PANGASINAN, * respondents.
DECISION
CORONA, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court questioning the
resolution of the Court of Appeals (CA) which dismissed the petition for certiorari, mandamus and
prohibition, with prayer for issuance of a preliminary and mandatory injunction, filed by petitioner
Concepcion Parayno against respondents Jose Jovellanos and the Municipality of Calasiao,
Pangasinan.
Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some
residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality for the closure or
transfer of the station to another location. The matter was referred to the Municipal Engineer, Chief
of Police, Municipal Health Officer and the Bureau of Fire Protection for investigation. Upon their
advise, the Sangguniang Bayan recommended to the Mayor the closure or transfer of location of
petitioner's gasoline station. In Resolution No. 50, it declared:
a) xxx the existing gasoline station is a blatant violation and disregard of existing law to wit:
The Official Zoning Code of Calasiao, Art. 6, Section 44,1 the nearest school building
which is San Miguel Elementary School and church, the distances are less than 100
meters. No neighbors were called as witnesses when actual measurements were
done by HLURB Staff, Baguio City dated 22 June 1989.
b) The gasoline station remains in thickly populated area with commercial/residential
buildings, houses closed (sic) to each other which still endangers the lives and safety of the
people in case of fire. Moreover, additional selling and storing of several LPG tanks in the
station (sic).
c) The residents of our barangay always complain of the irritating smell of gasoline most of
the time especially during gas filling which tend to expose residents especially children to
frequent colds, asthma, cough and the like nowadays.
d) xxx the gasoline station violated Building and Fire Safety Codes because the station has
2nd floor storey building used for business rental offices, with iron grilled windows, no
firewalls. It also endangers the lives of people upstairs.
e) It hampers the flow of traffic, the gasoline station is too small and narrow, the entrance
and exit are closed to the street property lines. It couldn't cope situation (sic) on traffic
because the place is a congested area.2
Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence, she filed a
special civil action for prohibition and mandamus with the Regional Trial Court (RTC) of Dagupan
City, Branch 44 against respondents. The case, docketed as SP Civil Case No. 99-03010-D, was
raffled to the sala of Judge Crispin Laron.
Petitioner claimed that her gasoline station was not covered by Section 44 of the Official Zoning
Code since it was not a "gasoline service station" but a "gasoline filling station" governed by Section
21 thereof. She added that the decision of the Housing and Land Use Regulatory Board
(HLURB),3 in a previous case filed by the same respondent Jovellanos against her predecessor

(Dennis Parayno), barred the grounds invoked by respondent municipality in Resolution No. 50. In
the HLURB case, respondent Jovellanos opposed the establishment of the gas station on the
grounds that: (1) it was within the 100-meter prohibited radius under Section 44 and (2) it posed a
pernicious effect on the health and safety of the people in Calasiao.
After the hearing on the propriety of issuing a writ of preliminary prohibitory and mandatory
injunction, the trial court ruled:
There is no basis for the court to issue a writ of preliminary prohibitory and mandatory
injunction. Albeit,Section 44 of the Official Zoning Code of respondent municipality
does not mention a gasoline filling station, [but] following the principle of ejusdem
generis, a gasoline filling station falls within the ambit of Section 44.
The gasoline filling station of the petitioner is located under the establishment belonging to
the petitioner and is very near several buildings occupied by several persons. Justice
dictates that the same should not be allowed to continue operating its business on
that particular place. Further, the gasoline filling station endangers the lives and
safety of people because once there is fire, the establishment and houses nearby will
be razed to the ground.4(emphasis supplied)
Petitioner moved for reconsideration of the decision but it was denied by the trial court.
Petitioner elevated the case to the CA via a petition for certiorari, prohibition and mandamus,5 with a
prayer for injunctive relief. She ascribed grave abuse of discretion, amounting to lack or excess of
jurisdiction, on the part of Judge Laron who dismissed her case.
After the CA dismissed the petition, petitioner filed a motion for reconsideration but the same was
denied. Hence, this appeal.
Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply to her case; (2)
the closure/transfer of her gasoline filling station by respondent municipality was an invalid exercise
of the latter's police powers and (3) it was the principle of res judicata that applied in this case.6
We find merit in the petition.
The Principle of Ejusdem Generis
We hold that the zoning ordinance of respondent municipality made a clear distinction between
"gasoline service station" and "gasoline filling station." The pertinent provisions read:
xxx

xxx

xxx

Section 21. Filling Station. A retail station servicing automobiles and other motor vehicles
with gasoline and oil only.7
xxx

xxx

xxx

Section 42. Service Station. A building and its premises where gasoline oil, grease,
batteries, tires and car accessories may be supplied and dispensed at retail and where, in
addition, the following services may be rendered and sales and no other.
a. Sale and servicing of spark plugs, batteries, and distributor parts;
b. Tire servicing and repair, but not recapping or regrooving;
c. Replacement of mufflers and tail pipes, water hose, fan belts, brake fluids, light
bulbs, fuses, floor mats, seat covers, windshield wipers and wiper blades, grease
retainers, wheel, bearing, mirrors and the like;
d. Radiator cleaning and flushing;
e. Washing and polishing, and sale of automobile washing and polishing materials;
f. Grease and lubricating;
g. Emergency wiring repairs;
h. Minor servicing of carburators;
i. Adjusting and repairing brakes;
j. Minor motor adjustments not involving removal of the head or crankcase, or raising
the motor.8
xxx

xxx

xxx

It is evident from the foregoing that the ordinance intended these two terms to be separate and
distinct from each other. Even respondent municipality's counsel admitted this dissimilarity during the
hearing on the application for the issuance of a writ of preliminary prohibitory and mandatory
injunction. Counsel in fact admitted:
1. That there exist[ed] an official zoning code of Calasiao, Pangasinan which [was] not yet
amended;
2. That under Article III of said official zoning code there [were] certain distinctions
made by said municipality about the designation of the gasoline filling station and that
of the gasoline service station as appearing in Article III, Nos. 21 and 42,
[respectively];
3. That the business of the petitioner [was] one of a gasoline filling station as defined
in Article III, Section 21 of the zoning code and not as a service station as differently
defined under Article 42 of the said official zoning code;

4. That under Section 44 of the official zoning code of Calasiao, the term filling station
as clearly defined under Article III, Section 21, [did] not appear in the wordings
thereof;9(emphasis supplied)
The foregoing were judicial admissions which were conclusive on the municipality, the party making
them.10Respondent municipality thus could not find solace in the legal maxim of ejusdem
generis11 which means "of the same kind, class or nature." Under this maxim, where general words
follow the enumeration of particular classes of persons or things, the general words will apply only to
persons or things of the same general nature or class as those enumerated. 12 Instead, what applied
in this case was the legal maxim expressio unius est exclusio alteriuswhich means that the express
mention of one thing implies the exclusion of others.13 Hence, because of the distinct and definite
meanings alluded to the two terms by the zoning ordinance, respondents could not insist that
"gasoline service station" under Section 44 necessarily included "gasoline filling station" under
Section 21. Indeed, the activities undertaken in a "gas service station" did not automatically embrace
those in a "gas filling station."
The Exercise of Police Powers
Respondent municipality invalidly used its police powers in ordering the closure/transfer of
petitioner's gasoline station. While it had, under RA 7160,14 the power to take actions and enact
measures to promote the health and general welfare of its constituents, it should have given due
deference to the law and the rights of petitioner.
A local government is considered to have properly exercised its police powers only when the
following requisites are met: (1) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State and (2) the means employed are reasonably
necessary for the attainment of the object sought to be accomplished and not unduly
oppressive.15 The first requirement refers to the equal protection clause and the second, to the due
process clause of the Constitution.16
Respondent municipality failed to comply with the due process clause when it passed Resolution No.
50. While it maintained that the gasoline filling station of petitioner was less than 100 meters from
the nearest public school and church, the records do not show that it even attempted to measure the
distance, notwithstanding that such distance was crucial in determining whether there was an actual
violation of Section 44. The different local offices that respondent municipality tapped to conduct an
investigation never conducted such measurement either.
Moreover, petitioner's business could not be considered a nuisance which respondent municipality
could summarily abate in the guise of exercising its police powers. The abatement of a nuisance
without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a
nuisance per se or one affecting the immediate safety of persons and property,17 hence, it cannot be
closed down or transferred summarily to another location.
As a rule, this Court does not pass upon evidence submitted by the parties in the lower courts. 18 We
deem it necessary, however, to recall the findings of the HLURB which petitioner submitted as

evidence during the proceedings before the trial court, if only to underscore petitioner's compliance
with the requirements of law before she put up her gasoline station.
Another factor that should not be left unnoticed is the diligence exercised by [petitioner] in
complying with the requirements of the several laws prior to the actual implementation of the
project as can be attested by the fact that [petitioner] has secured the necessary building
permit and approval of [her] application for authority to relocate as per the letter of the
Energy Regulatory Board xxx.19
On the alleged hazardous effects of the gasoline station to the lives and properties of the people of
Calasiao, we again note:
Relative to the allegations that the project (gasoline station) is hazardous to life and property,
the Board takes cognizance of the respondent's contention that the project "is not a fire
hazard since petroleum products shall be safely stored in underground tanks and that the
installation and construction of the underground tanks shall be in accordance with the Caltex
Engineering Procedures which is true to all gasoline stations in the country. xxx
Hence, the Board is inclined to believe that the project being hazardous to life and
property is more perceived than factual. For, after all, even the Fire Station Commander,
after studying the plans and specifications of the subject proposed construction,
recommended on 20 January 1989, "to build such buildings after conform (sic) all the
requirements of PP 1185." It is further alleged by the complainants that the proposed
location is "in the heart of the thickly populated residential area of Calasiao." Again,
findings of the [HLURB] staff negate the allegations as the same is within a
designated Business/Commercial Zone per the Zoning Ordinance. xxx20 (emphasis
supplied)
The findings of fact of the HLURB are binding as they are already final and conclusive vis--vis the
evidence submitted by respondents.
The Principle of Res Judicata
Petitioner points out that the HLURB decision in the previous case filed against her predecessor
(Dennis Parayno) by respondent Jovellanos had effectively barred the issues in Resolution No. 50
based on the principle of res judicata. We agree.
Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent
jurisdiction is conclusive of the rights of the parties or their privies in all later suits on all points and
matters determined in the former suit.21 For res judicata to apply, the following elements must be
present: (1) the judgment or order must be final; (2) the judgment must be on the merits; (3) it must
have been rendered by a court having jurisdiction over the subject matter and the parties and (4)
there must be, between the first and second actions, identity of parties, of subject matter and of
cause of action.22

Respondent municipality does not contest the first, second and third requisites. However, it claims
that it was not a party to the HLURB case but only its co-respondent Jovellanos, hence, the fourth
requisite was not met. The argument is untenable.
The absolute identity of parties is not required for the principle of res judicata to apply.23 A shared
identity of interests is sufficient to invoke the application of this principle. 24 The proscription may not
be evaded by the mere expedient of including an additional party.25 Res judicata may lie as long as
there is a community of interests between a party in the first case and a party in the second case
although the latter may not have been impleaded in the first.26
In the assailed resolution of respondent municipality, it raised the same grounds invoked by its corespondent in the HLURB: (1) that the resolution aimed to close down or transfer the gasoline station
to another location due to the alleged violation of Section 44 of the zoning ordinance and (2) that the
hazards of said gasoline station threatened the health and safety of the public. The HLURB had
already settled these concerns and its adjudication had long attained finality. It is to the interest of
the public that there should be an end to litigation by the parties over a subject matter already fully
and fairly adjudged. Furthermore, an individual should not be vexed twice for the same cause. 27
WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court of the Appeals
isREVERSED and SET ASIDE. Respondent Municipality of Calasiao is hereby directed to cease
and desist from enforcing Resolution No. 50 against petitioner insofar as it seeks to close down or
transfer her gasoline station to another location.
No costs.
SO ORDERED.