G.R. No.

97764 August 10, 1992

LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, petitioner, 

vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OF
PARAÑAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE, respondents.

Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.

Manuel de Guia for Municipality of Parañaque.

MEDIALDEA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court of Makati, Branch 62,
which granted the writ of preliminary injunction applied for by respondents Municipality of Parañaque and Palanyag Kilusang Bayan for Service
(Palanyag for brevity) against petitioner herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan,
Lt. Garcia Extension and Opena Streets located at Baclaran, Parañaque, Metro Manila and the establishment of a flea market thereon. The said ordinance
was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or
municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions.

On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent municipality subject to
the following conditions:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose the
establishment of the flea market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both
sides of the road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall be clearly designated;

4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by
the Public Estate Authority.

On June 20, 1990, the municipal council of Parañaque issued a resolution authorizing Parañaque Mayor Walfrido N. Ferrer to enter into contract with
any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas.

On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter shall
operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the municipal
government of Parañaque. Consequently, market stalls were put up by respondent Palanyag on the said streets.

On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and
confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag.

On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to discontinue the flea
market; otherwise, the market stalls shall be dismantled.

Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus with
damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of preliminary
injunction.

On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16, 1990 pending
the hearing on the motion for writ of preliminary injunction.

On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of Parañaque and enjoining
petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag.

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Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to lack or excess of
jurisdiction on the part of the trial judge in issuing the assailed order.

The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Parañaque authorizing the lease
and use of public streets or thoroughfares as sites for flea markets is valid.

The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public properties; that as such,
they cannot be subject to private appropriation or private contract by any person, even by the respondent Municipality of Parañaque. Petitioner submits
that a property already dedicated to public use cannot be used for another public purpose and that absent a clear showing that the Municipality of
Parañaque has been granted by the legislature specific authority to convert a property already in public use to another public use, respondent
municipality is, therefore, bereft of any authority to close municipal roads for the establishment of a flea market. Petitioner also submits that assuming
that the respondent municipality is authorized to close streets, it failed to comply with the conditions set forth by the Metropolitan Manila Authority for
the approval of the ordinance providing for the establishment of flea markets on public streets. Lastly, petitioner contends that by allowing the
municipal streets to be used by market vendors the municipal council of respondent municipality violated its duty under the Local Government Code to
promote the general welfare of the residents of the municipality.

In upholding the legality of the disputed ordinance, the trial court ruled:

. . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government units, the
Municipality of Parañaque as such, is empowered under that law to close its roads, streets or alley subject to limitations stated
therein (i.e., that it is in accordance with existing laws and the provisions of this code).

xxx xxx xxx

The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an encroachment of power
legally vested to the municipality, precisely because when the municipality enacted the ordinance in question — the authority of the
respondent as Police Superintendent ceases to be operative on the ground that the streets covered by the ordinance ceases to be a
public thoroughfare. (pp. 33-34, Rollo)

We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on the public
streets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 337, otherwise
known as Local Government Code, in connection with established principles embodied in the Civil Code an property and settled jurisprudence on the
matter.

The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to what
consists of property for public use, Article 424 of Civil Code states:

Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares,
fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities.

All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions
of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and are therefore
considered public properties of respondent municipality. Properties of the local government which are devoted to public service are deemed public and
are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence,
local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by
Congress. One such example of this authority given by Congress to the local governments is the power to close roads as provided in Section 10, Chapter
II of the Local Government Code, which states:

Sec. 10. Closure of roads. — A local government unit may likewise, through its head acting pursuant to a resolution of its
sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road,
street, alley, park or square. No such way or place or any part of thereof shall be close without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use  may be used or conveyed for any purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed. (Emphasis ours).

However, the aforestated legal provision which gives authority to local government units to close roads and other similar public places should be read
and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting such authority of the
province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic principle that properties of
public dominion devoted to public use and made available to the public in general are outside the commerce of man and cannot be disposed of or leased
by the local government unit to private persons. Aside from the requirement of due process which should be complied with before closing a road, street
or park, the closure should be for the sole purpose of withdrawing the road or other public property from public use when circumstances show that
such property is no longer intended or necessary for public use or public service. When it is already withdrawn from public use, the property then
becomes patrimonial property of the local government unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-
40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality can "use or convey them for any purpose for which other real

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property belonging to the local unit concerned might be lawfully used or conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg.
337, known as Local Government Code. In one case, the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street,
Mabolo, Cebu City as an abandoned road, the same not being included in the City Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through public bidding. We held therein that the City of Cebu is empowered to close a city
street and to vacate or withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be the object of an
ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily used for vehicular
traffic are still considered public property devoted to public use. In such case, the local government has no power to use it for another purpose or to
dispose of or lease it to private persons. This limitation on the authority of the local government over public properties has been discussed and settled
by this Court en banc in "Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No. 93654, May 6, 1992." This Court
ruled:

There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public
streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside the commerce
of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease or others contract
(Villanueva, et al. v. Castañeda and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v.
Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860).

As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government,
contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law.
The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail
over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent
city officials are under legal obligation to protect.

The Executive Order issued by acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders
who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use.
Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were
intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

Even assuming,  in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validly
implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent municipality of the
conditions imposed by the former for the approval of the ordinance, to wit:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not oppose the
establishment of the flea market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both
sides of the road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall be clearly designated;

4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by
the Public Estate Authority. (p. 38, Rollo)

Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of the ordinance.
The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of the residents do not oppose
the establishment of a flea market on said streets are unsupported by any evidence that will show that this first condition has been met. Likewise, the
designation by respondents of a time schedule during which the flea market shall operate is absent.

Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of
vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and
Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the other observations of the Solicitor General when he
said:

. . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using the roads for a
more direct access to the fire area, have to maneuver and look for other streets which are not occupied by stalls and vendors thereby
losing valuable time which could, otherwise, have been spent in saving properties and lives.

Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their patients to the
hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine the tragedy of losing a life just
because of a few seconds delay brought about by the inaccessibility of the streets leading to the hospital.

The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is disrupted and
school children have to get off at a distance still far from their schools and walk, rain or shine.

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 Indeed one can only imagine the garbage and litter left by vendors on the streets at the end of the day. Needless to say, these cause
further pollution, sickness and deterioration of health of the residents therein. (pp. 21-22, Rollo)

Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to focus its attention
solely on the argument that the use of public spaces for the establishment of a flea market is well within the powers granted by law to a local
government which should not be interfered with by the courts.

Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws such as our
Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the
community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safety and convenience,
maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective, the local government should
refrain from acting towards that which might prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls in public
roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city streets and restore
them to their specific public purpose.

The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws applicable during its
time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already been repealed by
Republic Act No. 7160 known as Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d) of the new Code provides that rights
and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other source of prestation involving a local
government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which granted the writ of
preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of market stalls along
J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE.

SO ORDERED.

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

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

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

GANCAYCO, J.:

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

ORDINANCE--640

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

xxx xxx xxx

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

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

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

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

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

Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and Dalisay Theaters, the Crown Theater, and the Diamond
Theater, respectively. Aggrieved by the effect of Ordinance No. 640, they filed a complaint before the Court of First Instance of Agusan del Norte and
Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the subject ordinance be declared unconstitutional and,
therefore, void and unenforceable. 1

Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court a quo enjoining the respondent City of Butuan
and its officials from enforcing Ordinance No. 640. 3 On July 29, 1969, respondents filed their answer sustaining the validity of the ordinance. 4

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

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

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

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

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

4. SO ORDERED. 7

Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in a resolution of the said court dated November
10, 1973.9

Hence, this petition.

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

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

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

This is the first time this Court is confronted with the question of direct interference by the local government with the operation of theaters,
cinematographs and the like to the extent of fixing the prices of admission to these places. Previous decisions of this Court involved the power to impose
license fees upon businesses of this nature as a corollary to the power of the local government to regulate them. Ordinances which required

5
moviehouses or theaters to increase the price of their admission tickets supposedly to cover the license fees have been held to be invalid for these
impositions were considered as not merely license fees but taxes for purposes of revenue and not regulation which the cities have no power to
exact, 10 unless expressly granted by its charter. 11

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

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

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

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

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

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

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

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

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

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

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

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

We agree with petitioners that the ordinance is not justified by any necessity for the public interest. The police power legislation must be firmly
grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. 22 The evident purpose of the ordinance is to
help ease the burden of cost on the part of parents who have to shell out the same amount of money for the admission of their children, as they would

6
for themselves, A reduction in the price of admission would mean corresponding savings for the parents; however, the petitioners are the ones made to
bear the cost of these savings. The ordinance does not only make the petitioners suffer the loss of earnings but it likewise penalizes them for failure to
comply with it. Furthermore, as petitioners point out, there will be difficulty in its implementation because as already experienced by petitioners since
the effectivity of the ordinance, children over 12 years of age tried to pass off their age as below 12 years in order to avail of the benefit of the ordinance.
The ordinance does not provide a safeguard against this undesirable practice and as such, the respondent City of Butuan now suggests that birth
certificates be exhibited by movie house patrons to prove the age of children. This is, however, not at all practicable. We can see that the ordinance is
clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreover, there is no discernible relation between the ordinance and the
promotion of public health, safety, morals and the general welfare.

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

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

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

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

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

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

In Collister vs. Hayman, 26 it was held:

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

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

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

7
 The interest of the public in theaters and other places of entertainment may be more nearly, and with better reason, assimilated to
the like interest in provision stores and markets and in the rental of houses and apartments for residence purposes; although in
importance it fails below such an interest in the proportion that food and shelter are of more moment than amusement or
instruction. As we have shown there is no legislative power to fix the prices of provisions or clothing, or the rental charges for
houses and apartments, in the absence of some controlling emergency; and we are unable to perceive any dissimilarities of such
quality or degree as to justify a different rule in respect of amusements and entertainment ...

We are in consonance with the foregoing observations and conclusions of American courts. In this jurisdiction, legislation had been passed controlling
the prices of goods commodities and drugs during periods of emergency, 28limiting the net profits of public utility 29 as well as regulating rentals of
residential apartments for a limited period, 30as a matter of national policy in the interest of public health and safety, economic security and the general
welfare of the people. And these laws cannot be impugned as unconstitutional for being violative of the due process clause.

However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense could these businesses be considered public utilities.
The State has not found it appropriate as a national policy to interfere with the admission prices to these performances. This does not mean however,
that theaters and exhibitions are not affected with public interest even to a certain degree. Motion pictures have been considered important both as a
medium for the communication of Ideas and expression of the artistic impulse. Their effects on the perceptions by our people of issues and public
officials or public figures as well as the prevailing cultural traits are considerable. 31People of all ages flock to movie houses, games and other public
exhibitions for recreation and relaxation. The government realizing their importance has seen it fit to enact censorship laws to regulate the movie
industry. 32 Their aesthetic entertainment and even educational values cannot be underestimated. Even police measures regulating the operation of these
businesses have been upheld in order to safeguard public health and safety.

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

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

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

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

SO ORDERED.

G.R. No. 73155 July 11, 1986

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

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of Negros to be known as the Province of Negros
del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and
municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents Commission on
Elections from conducting the plebiscite which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law
provides:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the
province to be known as the Province of Negros del Norte.

8
 SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the south and the territorial limits of the northern portion to the Island of Negros on the west, north
and east, comprising a territory of 4,019.95 square kilometers more or less.

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

SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred
and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province.

SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses for which shall be
charged to local funds.

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the Local Government
Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that—

See. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected.

Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the creation of a provincial unit and
these requisites are:

SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square
kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry
of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and
income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section.
The territory need not be contiguous if it comprises two or more islands.

The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of
trust funds, transfers and nonrecurring income. (Rollo, p. 6)

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

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

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

... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing official proclamation of
the results of the plebiscite held on January 3, 1986.

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

And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from ordering the release
of any local funds to answer for expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo pp. 9-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official proclamation of the results
of the aforestated plebiscite.

9
During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27, 1985 and filed with the Court
on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986.

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

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

1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element
of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain
Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more
persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who are not from the
barangays to be separated, should be excluded in the plebiscite.

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

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

Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also maintain that the requisites
under the Local Government Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly complied with, Respondents
discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code for a new province to
be created has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about
2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this
regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of
Negros del Norte comprise an area of 4,019.95 square kilometers, more or less.

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

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor was required to disburse any
public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial
Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by
this Court to desist from ordering the release of any public funds on account of such plebiscite should not longer deserve further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new Province of Negros del
Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following:

10
 SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the South and the natural boundaries of the northern portion of the Island of Negros on the West,
North and East,  containing an area of 285,656 hectares more or less. (Emphasis supplied).

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of the new Province of Negros
del Norte were defined therein and its boundaries then stated to be as follows:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the
Province of Negros Occidental and constituted into a new province to be known as the Province of Negros del Norte.

SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the south and the territorial limits of the northern portion of the Island of Negros on the West, North
and East, comprising a territory of 4,019.95 square kilometers more or less.

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the Province of Negros
Occidental, dated July 16, 1985, it was therein certified as follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros Occidental have the land area as indicated hereunder based
on the Special Report No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National Census and
Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6
7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto.................................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is not available, it is an
uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of the new province, was derived from the City of
San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth the land area of the town of
Murcia, Negros Occidental. It is significant to note the uncontroverted submission of petitioners that the total land area of the entire municipality of
Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the
portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2
square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers, representing the total land area of the Cities of Silay,
San Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately
an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of
the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the draft legislation,
Parliamentary Bill No. 3644, reads:

SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of
this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite,
the President shall appoint the first officials of the new province.

However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the
requisite plebiscite "shall be conducted in the proposed new province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by
the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be
held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries
of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate
in the questioned plebiscite.

11
Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been
held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation
of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this
Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such
wrong. For this Court to yield to the respondents' urging that, as there has been fait accompli then this Court should passively accept and accede to the
prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief.
Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the
law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge,
divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future
challenges to their acts if they manage to bring about a fait accompli.

In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant province of Negros del
Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the
mandate of our fundamental law, done by whatever branch of our government. This Court gives notice that it will not look with favor upon those who
may be hereafter inclined to ram through all sorts of legislative measures and then implement the same with indecent haste, even if such acts would
violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the ground that
what is already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty and right to
correct and rectify the wrong brought to its attention.

On the merits of the case.

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

SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected.

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

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

We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom in enacting the law may
not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of
the Constitution which is a proper subject of judicial inquiry.

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

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

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

12
The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent
when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to
form a new one, all the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly
expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We
hereunder quote:

2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is
to be divided such as in the case at bar or an of the people of two or more municipalities if there be a merger. I see no ambiguity in
the Constitutional provision.

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

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

The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant
multifarious complicated problems. In the earlier case, what was involved was a division of a barangay which is the smallest political unit in the Local
Government Code. Understandably, few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest political
unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square
kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the
consequent effects cf the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the
proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the
better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to
in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein.

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

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

In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They must
have entertained apprehensions that by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In
anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted statute a self-serving
phrase that the new province constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and
far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent
province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the
long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners'
assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills
which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political
subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with
the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution
anticipates, a substantial alteration of boundary.

As contended by petitioners,—

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

13
 It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the
Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of
its boundary are affected. Rather, the contrary is true.

It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere discretion that this Court may
exercise, nevertheless, it is the petitioners' case that deserve to be favored.

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

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued, directing the respondent
Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire province of Negros Occidental as
now existing shall participate and that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a patent
nullity.

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

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

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant fact that this created
province does not even satisfy the area requirement prescribed in Section 197 of the Local Government Code, as earlier discussed.

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

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more
islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects
that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control.

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

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

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

14
Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and passing of Parliamentary
Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply
demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis
supplied).

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

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

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the
appointment of the officials thereof are also declared null and void.

SO ORDERED.

G.R. No. 103328 October 19, 1992

HON. ROY A. PADILLA, JR., In his capacity as Governor of the Province of Camarines Norte, petitioner, 
vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

ROMERO, J.:

Pursuant to Republic Act No. 7155, the Commission on Elections promulgated on November 13, 1991, Resolution No. 2312 which reads as follows:

WHEREAS, Republic Act No. 7155 approved on September 6, 1991 creates the Municipality of Tulay-Na-Lupa in the Province of
Camarines Norte to be composed of Barangays Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan,
Matanlang, Pag-Asa, Maot, and Calabasa, all in the Municipality of Labo, same province.
WHEREAS under Section 10, Article X of the 1987 Constitution 1 the creation of a municipality shall be subject to approval by a
majority of votes cast in a plebiscite in the political units directly affected, and pursuant to Section 134 of the Local Government
Code (Batas Pambansa Blg. 337) 2 said plebiscite shall be conducted by the Commission on Elections;
WHEREAS, Section 6 of said Republic Act No. 7155 provides that the expenses in holding the plebiscite shall be take out of the
Contingent Fund under the current fiscal year appropriations;
NOW, THEREFORE, BE IT RESOLVED, as the Commission hereby resolves, to promulgated (sic) the following guidelines to govern
the conduct of said plebiscite:
1. The plebiscite shall be held on December 15, 1991, in the areas or units affected, namely the barangays
comprising he proposed Municipality of Tulay-Na-Lupa and the remaining areas of the mother Municipality of
Labor, Camarines Norte (Tan vs. COMELEC, G.R. No. 73155, July 11, 1986).

x x x           x x x          x x x

In the plebiscite held on December 15, 1991 throughout the Municipality of Labo, only 2,890 votes favored its creation while 3,439 voters voted against
the creation of the Municipality of Tulay-Na-Lupa. Consequently, the day after the political exercise, the Plebiscite Board of Canvassers declared the
rejection and disapproval of the independent Municipality of Tulay-Na-Lupa by a majority of votes. 3

Thus, in this special civil action of certiorari, petitioner as Governor of Camarines Norte, seeks to set aside the plebiscite conducted on December 15, 1991
throughout the Municipality of Labo and prays that a new plebiscite be undertaken as provided by RA 7155. It is the contention of petitioner that the
plebiscite was a complete failure and that the results obtained were invalid and illegal because the plebiscite, as mandated by COMELEC Resolution No.
2312 should have been conducted only in the political unit or units affected, i.e. the 12 barangays comprising the new Municipality of Tulay-Na-Lupa
namely Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa. Petitioner stresses that
the plebiscite should not have included the remaining area of the mother unit of the Municipality of Labo, Camarines Norte. 4

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

15
Accordingly, the issue in this case is whether or not respondent COMELEC committed grave abuse of discretion in promulgating Resolution No. 2312
and, consequently, whether or not the plebiscite conducted in the areas comprising the proposed Municipality of Tulay-Na-Lupa and the remaining
areas of the mother Municipality of Labo is valid.

We rule that respondent COMELEC did not commit grave abuse in promulgating Resolution No. 2312 and that the plebiscite, which rejected the
creation of the proposed Municipality of Tulay-Na-Lupa, is valid.

Petitioner's contention that our ruling in Tan vs. COMELEC has been superseded with the ratification of the 1987 Constitution, thus reinstating our
earlier ruling in Paredes vs.  COMELEC is untenable. Petitioner opines that since Tan vs.  COMELEC was based on Section 3 of Article XI of the 1973
Constitution our ruling in said case is no longer applicable under Section 10 of Article X of the 1987 Constitution, 8 especially since the latter provision
deleted the words "unit or."

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

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

Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no objection on the part of the two Gentlemen from the
floor?

Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the plebiscite to be conducted, it must involve all
the units affected.  If it is the creation of a barangay plebiscite because it is affected. It would mean a loss of a territory.9 (Emphasis supplied)

It stands to reason that when the law states that the plebiscite shall be conducted "in the political units directly affected," it means that residents of the
political entity who would be economically dislocated by the separation of a portion thereof have a right to vote in said plebiscite. Evidently, what is
contemplated by the phase "political units directly affected," is the plurality of political units which would participate in the plebiscite. 10 Logically,
those to be included in such political areas are the inhabitants of the 12 barangays of the proposed Municipality of Tulay-Na-Lupa as well as those living
in the parent Municipality of Labo, Camarines Norte. Thus, we conclude that respondent COMELEC did not commit grave abuse of discretion in
promulgating Resolution No. 2312.

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

G.R. No. L-29159 November 24, 1972

CELESTINO TATEL, ET AL., plaintiffs-appellees, vs. THE MUNICIPALITY OF VIRAC, ET AL., Defendants-Appellants.

G.R. No. L-29159 November 24, 1972

GULF FIBERS CORPORATION, ET AL., plaintiffs-appellees, vs. THE MUNICIPALITY OF VIRAC, ET AL., Defendants-Appellants.

Juanito M. Romano for plaintiffs-appellees.

Rey A. Tejada for defendants-appellants.

CONCEPCION, C.J.:

These two (2) cases were jointly tried before and decided by the Court of First Instance of Catanduanes, owing to the identical issues raised therein,
namely, the validity of two ordinances of the Municipality of Virac, the herein defendant-appellant.chanroblesvirtualawlibrarychanrobles virtual law
library

In Case No. L-29159 - Civil Case No. 581 of the Court of First Instance of Catanduanes - Celestino Tatel, et al., question the legality of Ordinance No. 6,
series of 1965, of said municipality, reading as follows: chanrobles virtual law library

ORDINANCE NO. 6

16
AN ORDINANCE IMPOSING MUNICIPAL LICENSE TAXES FOR THE EXERCISE OF ALL BUSINESS, OCCUPATIONS AND PRIVILEGES WITHIN
THE MUNICIPALITY OF VIRAC AND FOR OTHER PURPOSES.chanroblesvirtualawlibrarychanrobles virtual law library

Be it ordained by the Municipal Council assembled in session; Thatchanrobles virtual law library

SECTION 1 - Purpose and Scope - The purpose of this ordinance is to raise revenue in the Municipality of Virac, Catanduanes by imposing municipal
license taxes on all persons engaged in any business, occupation or in the exercise of privilege.chanroblesvirtualawlibrarychanrobles virtual law library

SECTION 2 - License Tax - A municipal license tax shall be imposed upon persons engaged in businesses, occupations or privileges as hereinafter
provided.chanroblesvirtualawlibrarychanrobles virtual law library

SECTION 3 - Amount of taxes on business - Municipal license taxes on business shall be collected as follows:

(a) Merchants, Sari-Sari Store Owners, Wholesale or Retail Dealers of general merchandise, pharmaceutical products, rice and corn, except gasoline, etc.
as provided under Republic Act 1435 - chanrobles virtual law library

With Capital investment or purchases for the previous year, whichever is higher, amounting to -

Not 
Exceedingchanrobles virtual law library

P1000 - - P20.00 per annum

1001 - 2000 - 40.00 per annum
2001 - 3000 - 60.00 per annum 
3001 - 4000 - 80.00 per annum
4001 - 5000 - 100.00 per annum
5001 - 6000 - 120.00 per annum
6001 - 7000 - 140.00 per annum
7001 - 8000 - 160.00 per annum
8001 - 9000 - 180.00 per annum
9001 - 10,000 - 200.00 per annum
10,001 - 11,000 - 220.00 per annum 
11,001 - 15,000 - 240.00 per annum chanrobles virtual law library

For every P1,000 in excess of P15,000 (sic) chanrobles virtual law library

Payable quarterly or before the 20th day of the month, January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library

(b) Merchants (buyers and sellers) of Abaca and Copra;chanrobles virtual law library

With Capital Investment or purchases for the previous year, whichever is higher, amounting to - chanrobles virtual law library

Not 
Exceeding chanrobles virtual law library

P1000 - - P20.00 per annum

1001 - 2000 - 40.00 per annum
2001 - 3000 - 60.00 per annum 
3001 - 4000 - 80.00 per annum
4001 - 5000 - 100.00 per annum
5001 - 6000 - 120.00 per annum
6001 - 7000 - 140.00 per annum
7001 - 8000 - 160.00 per annum
8001 - 9000 - 180.00 per annum
9001 - 10,000 - 200.00 per annum
10,001 - 11,000 - 220.00 per annum 
11,001 - 15,000 - 240.00 per annum chanrobles virtual law library

For every P1,000 in excess of P10,000 (sic)

Payable quarterly on or before the 20th of the month, January, April, July and October of the year with a penalty of 20% for late payment.

(c) Proprietors or Operators of bakery and other food products:chanrobles virtual law library
17
With Capital Investment or purchases for the previous year, whichever is higher, amounting to -chanrobles virtual law library

Not 
Exceeding P5000 - - P200.00 per annum 
5001 - 10,001 - 240.00 per annum 
10,001 - 15,000 - 300.00 per annum 
15,001 - 20,000 - 360.00 per annum chanrobles virtual law library

For every P1,000 in excess of P20,00 - P10.00 per annum

Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with penalty of 20% for late payment.

(d) Proprietors or Operators or manufacturers of hollow-blocks or similar products;

With machinery - P100.00 per annum 

Without machinery - 50.00 per annum

Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with a penalty of 20% for late payment.

(e) Operator of Lumber Yard:

Class A - Lumber yard without machinery for deposit of more than 200 sq. m. P400.00 per annum.chanroblesvirtualawlibrarychanrobles virtual law
library

Class B - 1501 - 2000 sq. m P350.00 per annum 

Class C - 1001 - 1500 sq. m P300.00 per annum 
Class D - 501 - 1000 sq. m P250.00 per annum 
Class E - Less than 500 sq. m P200.00 per annum 
Class F - Without a yard but 
with space to keep already 
sawed lumber and with 
office to accept orders 
for lumber P100.00 per annum

Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with a penalty of 20%, for late payment.

(f) Lumber yard with machinery shall pay in addition to the fees prescribed above -chanrobles virtual law library

Over

200 H. P. P300.00 per annum 

151 - 200 HP 250.00 per annum 
101 - 150 HP 200.00 per annum 
51 - 100 HP 150.00 per annum 
26 - 50 HP 100.00 per annum 
- 25 HP below 50.00 per annum chanrobles virtual law library

Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with a penalty of 20% for late payment.

(g) Merchants, wholesale or retail dealers of lumber materials with capital investment or purchases for the previous year, whichever is higher -

Not
Exceeding. P1000 - - 40.00 per annum 
1001 - 2000 - 80.00 per annum 
2001 - 3000 - 120.00 per annum 
3001 - 4000 - 160.00 per annum 
4001 - 5000 - 200.00 per annum 
5001 - 6000 - 240.00 per annum 
6001 - 7000 - 280.00 per annum 
7001 - 8000 - 320.00 per annum 
8001 - 9000 - 360.00 per annum 
9001 - 10,000 - 400.00 per annum

For every P1,000 in excess of P10,000 - P10.00 p.a.

18
Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with penalty of 20% for late payment.

(h) Proprietors or Operators of furniture, windows and doors -chanrobles virtual law library

Sash Factory -

With machinery - P80.00 per annum 

Without machinery - P40.00 per annum.

Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library

(1) Merchants, whole-sale or retail dealers of rattan and nipa shingles with a capital investment or purchases for the previous year, whichever is higher -

Not
Exceeding P500 P20.00 per annum 
501-1000 40.00 per annum 
1001-2000 60.00 per annum 
2001-3000 80.00 per annum 
3001-4000 100.00 per annum 
4001-5000 120.00 per annum 
5001-6000 140.00 per annum 
6001-7000 160.00 per annum 
7001-8000 180.00 per annum 
8001-9000 200.00 per annum
9001-10,000 220.00 per annum

For every P1000 in excess of P10,000 - P10.00 p. a.

Payable quarterly on or before the 20th day of the month, January, April, July and October of the year with a penalty of 20% for late payment.

PROVIDED FURTHER, that the proprietors or operators mentioned under a, b, c, g and in under Sec. 3 of this ordinance are required to submit a
statement of their purchases from January to June, 1965 on or before July 10, 1965 and to submit their monthly purchases on or before the 10th day of the
subsequent months which should be under oath in a prescribed form from the Office of the Municipal Treasurer, where the report shall be submitted.

SECTION 4 - Violation of any of the provisions of this Ordinance shall be punished by a fine of P200.00 or imprisonment of six months or both penalties
at the discretion of the Court.chanroblesvirtualawlibrarychanrobles virtual law library

SECTION 5 - All ordinances the provisions of which are inconsistent with the provisions of this ordinance are hereby
repealed.chanroblesvirtualawlibrarychanrobles virtual law library

SECTION 6 - This ordinance shall take effect immediately upon approval.chanroblesvirtualawlibrarychanrobles virtual law library

Approved unanimously, June 28, 1965.

In Case No. L-29160 - Civil Case No. 588 of the Court of First Instance of Catanduanes Gulf Fibers Corporation, et al., impugn the validity of Ordinance
No. 5, series of 1966, of the same municipality, which is of the following tenor: chanrobles virtual law library

ORDINANCE NO. 5
AN ORDINANCE AMENDING SECTION 3(A) OF THE AMENDED ORDINANCE NO. 12 SERIES OF 1965 IMPOSING MUNICIPAL LICENSE TAXES
FOR THE EXERCISE OF ALL BUSINESS, OCCUPATIONS AND PRIVILEGES WITHIN THE MUNICIPALITY OF VIRAC AND FOR OTHER
PURPOSES.chanroblesvirtualawlibrarychanrobles virtual law library
Be it ordained by the Municipal Council assembled in session; That -chanrobles virtual law library
SECTION 1 - Amending Section 3(a) of amended ordinance No. 12 series 1965 to read as follows:chanrobles virtual law library
SECTION 3 (a) of amended ordinance No. 12 series 1965 as further amended.chanroblesvirtualawlibrarychanrobles virtual law library
Amount of Taxes on business - Municipal license taxes on business shall be collected as follows: chanrobles virtual law library
(a) Merchant, Sari-Sari store owners, wholesale or retail dealers of merchandise, pharmaceutical products, rice and corn, abaca, copra, operators of
bakery and other food products. Merchants or wholesale or retail dealers of lumber materials, rattan and nipa shingles, wholesale and retail dealers of
liquor or fermented liquor, wholesale and retail dealer of tobacco.chanroblesvirtualawlibrarychanrobles virtual law library
With capital investment or purchases for the previous year, whichever is higher, amounting to -chanrobles virtual law library
(a) Not exceeding:
P1000.00 P20.00 per annum 
1001.00-2000.00 40.00 per annum 
2001.00-3000.00 60.00 per annum 
3001.00-4000.00 80.00 per annum 
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4001.00-5000.00 100.00 per annum 
5001.00-6000.00 120.00 per annum 
6001.00-7000.00 140.00 per annum 
8001.00-9000.00 180.00 per annum 
7001.00-8000.00 160.00 per annum 
9001.00-10,000.00 220.00 per annum
and there shall be collected:
P9.00 p.a. in excess of P10,000 for every P1,000 or fraction thereof up to P300,000.00; chanrobles virtual law library
P8.00 p.a. in excess of P300,000 for every P1,000 or fraction thereof up to P500,000.00; chanrobles virtual law library
P7.00 p.a. in excess of P500,000 for every P1,000 or fraction thereof, which amount shall not exceed the total of P6,000.00 per annum on the business.
Provided, further that these shall be the basis of the licenses effective October 1, 1966 based on the investment or purchases last calendar year whichever
is higher and the licenses for the succeeding years shall be based from the investment or purchases for the previous year whichever is higher.
Payable quarterly on or before the 20th day of the month of January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library
(b) Proprietors or Operators or Manufacturers of Hollowblock or similar products:
With Machinery ............................................... P100.00 per annum 
Without Machinery ......................................... 50.00 per annum
Payable quarterly on or before the 20th day of the month of January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library
(c) Operator of Lumber Yard:
Class A - Lumber yard without 
machinery for deposit of more 
than 2000 sq. m. P400.00 per annum
Class B - 1501-2000 sq. m 350.00 per annum
Class C - 1001-1500 sq. m. 300.00 per annum
Class D - 501-1000 sq. m. 250.00 per annum 
Class E - Less than 500 sq. m. 200.00 per annum
Class F - Without a yard but 
with a space to keep already 
sawed lumber and with office 
to accept order for lumber P100.00 per annum
Payable quarterly on or before the 20th day of the month of January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library
(d) Lumber yard with machinery shall pay in addition to the fees prescribed above -chanrobles virtual law library
Over 200 H.P. P300.00 per annum 
151-200 H.P. 250.00 per annum 
101-150 H.P 200.00 per annum 
51-100 H.P. 150.00 per annum 
26 - 50 H.P. 100.00 per annum 
Below - 25 H.P. 50.00 per annum chanrobles virtual law library
Payable quarterly on or before the 20th day of the month of January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library
(e) Proprietors or Operators of furniture, windows and doors -chanrobles virtual law library
Sash Factory - With Machinery P80.00 p. a.
Without Machinery 40.00 p. a.chanroblesvirtualawlibrarychanrobles virtual law library
Payable quarterly on or before the 20th day of the month of January, April, July and October of the year with a penalty of 20% for late
payment.chanroblesvirtualawlibrarychanrobles virtual law library
SECTION 2 - Provided further that proprietors or operators under (a) Section 1 hereof shall submit their monthly purchases under oath on or before the
10th day of the following month to the Municipal Treasurer in a prescribed form from the Office of the Municipal Treasurer which purchases or capital
invested for the whole year whichever is higher shall be the basis of amount to be collected as provided under (a) of Section I of this
ordinance.chanroblesvirtualawlibrarychanrobles virtual law library
SECTION 3 - Violation of any of the provisions of this Ordinance shall suffer a fine of not less than P50.00 nor more than P200.00 or imprisonment of not
less than 30 days nor more than 6 months or both fine and imprisonment at the discretion of the court.chanroblesvirtualawlibrarychanrobles virtual law
library
SECTION 4 - Should any section or part of this ordinance be declared unconstitutional, such declaration shall not invalidate the other provisions
thereof.chanroblesvirtualawlibrarychanrobles virtual law library
SECTION 5 - All ordinances the provisions of which are inconsistent with the provisions of this ordinance are hereby
repealed.chanroblesvirtualawlibrarychanrobles virtual law library
SECTION 6 - This amendment shall take effect immediately upon its approval.chanroblesvirtualawlibrarychanrobles virtual law library
Approved, September 30, 1966.

Both ordinances were assailed upon the ground that they partake of the nature of a tax on imports or exports and a tax on purchases, as well as double
taxation; that they effect an increase in taxes by more than 50% "without the requisite approval of the Secretary of Finance that the taxes imposed are
unjust, excessive and confiscatory; and that the imposition thereof is ultra vires. Shortly after the filing of the complaints in Case No. 588 of the lower
court - L-29160 of this Court - the trial court, on motion of the plaintiffs, ordered the issuance of a writ of preliminary injunction restraining the
defendants from enforcing Ordinance No. 5, series of 1966, pending the resolution of said case on the merits.chanroblesvirtualawlibrarychanrobles
virtual law library

In due course, thereafter, said court rendered a decision, the dispositive part of which We quote:

20
WHEREFORE, in view of the foregoing considerations, the Court hereby finds Sections 3(a), 3(b) and 3(i) of Ordinance No. 6, Series of 1965 under
question in Civil Case No. 581 and Section 1 of Ordinance No. 5, Series of 1966 under question in Civil Case No. 588, null and void, as contrary to the
provisions of subsection 3 of section 4 of Commonwealth Act No. 472 and section 2 of Republic Act No. 2264. Unless purged of their infirmity, the
provisions are unenforceable.chanroblesvirtualawlibrarychanrobles virtual law library

In Civil Case No. 581, the defendants are hereby ordered to reimburse to the plaintiffs the taxes paid by them under protest, as follows:

(1) Celestino Tatel ............................................. P3,659.50 

(2) Juan Molina ................................................. 3,330.00 
(3) Ang Kee Hian .............................................. 3,432.00 
(4) Ang Ban Giok .............................................. 5,464.00 
(5) Tio Son Kuan .............................................. 834.00 
(6) Bennie Co. ................................................... 1,604.00

In Civil Case No. 588, the defendants are ordered to reimburse the taxes paid by the plaintiffs also under protest, as follows:

(1) Gulf Fibers Corporation .............................. P2,845.00 

(2) Juan Molina .................................................. 3,142.50 
(3) Celestino Tatel ............................................. 3,000.00 
(4) Ang Ban Giok ............................................... 2,952.00 
(5) Ang Kee Hian ............................................... 2,346.00 
(6) Bennie Co. ..................................................... 1,201.00 
(7) Liu Lim ........................................................... 435.00

with interest at the legal rate from the time of the filing of the complaint up to final judgment.

The preliminary injunction is hereby made permanent.chanroblesvirtualawlibrarychanrobles virtual law library

With costs against the defendants.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Hence, this appeal by the Municipality of Virac.chanroblesvirtualawlibrarychanrobles virtual law library

The decision appealed from declared said ordinances illegal upon the ground that they provide for an increase in taxes by more than 50% without the
approval of the Secretary of Finance and that they impose taxes on articles subject to specific tax, as well as over forest
products.chanroblesvirtualawlibrarychanrobles virtual law library

We are unable to share this view. To begin with, the provision of Commonwealth Act No. 472 requiring the prior approval  of the Secretary of Finance,
when an ordinance increases by more than 50% municipal taxes prescribed in previous ordinances, has been impliedly repealed by Republic Act No.
2264, which vests in municipal, city and municipal district councils ample discretion to impose taxes and even municipal license taxes, and, instead of
demanding said prior approval of the Secretary of Finance to ordinances increasing taxes by more than 50% of the previous rates, vests in said official no
more than the authority to suspend the effectivity of any ordinance, within 120 days after its passage, when, in his opinion, the taxes imposed are "unjust,
excessive, oppressive or confiscatory." chanrobles virtual law library

Moreover, the ordinances in question do not tax specific goods. They impose license taxes, or regulate and tax those engaging in the businesses or
occupations, or exercising the privileges, therein enumerated. They categorize said businesses, occupations or privileges on the basis of the nature
thereof - such as "merchants, sari-sari store owners, wholesale and retail dealers of general merchandise," manufacturers of 
hollow-blocks or similar products, lumber yards, etc. - or of the products they handle - such as pharmaceutical products, rice and corn, abaca and copra,
furniture, rattan and nipa shingles, liquor or tobacco. Some of these categories are sub-classified, depending upon whether the business or occupation
being taxed is undertaken with or without machineries, or whether the lumber yard is merely for deposit, or without a "yard" properly, "but with space
to keep already sawed lumber and with office to accept orders for lumber."chanrobles virtual law library

Secondly, the license tax prescribed in each category is graduated, the amount thereof being dependent upon the "capital investment or purchases for
the previous year, whichever is higher."chanrobles virtual law library

The power to impose such license taxes is explicitly authorized in Section 2 of Rep. Act No. 2264, which provides that:

SEC. 2. Taxation. - Any provision of law to the contrary notwithstanding, all chartered cities, municipalities and municipal districts shall have authority
to impose municipal license taxes or fees upon persons engaged in any occupation or business or exercising privileges in chartered cities, municipalities
or municipal districts by requiring them to secure licenses at rates fixed by the municipal board or city council of the city, the municipal council of the
municipality, or the municipal district council of the municipal district; to collect fees and charges for service rendered by the city, municipality or
municipal district; to regulate and impose reasonable fees for services rendered in connection with any business, profession or occupation being
conducted within the city, municipality or municipal district and otherwise to levy for public purposes, just and uniform taxes, licenses or fees: Provided,
That municipalities and municipal districts shall, in no case, impose any percentage tax on sales or other taxes in any form based thereon nor impose
21
taxes on articles subject to specific tax, except gasoline, under the provisions of the National Internal Revenue Code: Provided, however, That no city,
municipality or municipal district may levy or impose any of the following: chanrobles virtual law library

(a) Residence tax; chanrobles virtual law library

(b) Documentary stamp tax; chanrobles virtual law library

(c) Taxes on the business of persons engaged in the printing and publication of any newspaper, magazine, review or bulletin appearing at regular
intervals and having fixed prices for subscription and sale, and which is not published primarily for the purpose of publishing
advertisements; chanrobles virtual law library

(d) Taxes on persons operating waterworks, irrigation and other public utilities except electric light, heat and power; chanrobles virtual law library

(e) Taxes on forest products and forest concessions; chanrobles virtual law library

(f) Taxes on estates, inheritances, gifts, legacies, and other acquisitions mortis causa; chanrobles virtual law library

(g) Taxes on income of any kind whatsoever; chanrobles virtual law library

(h) Taxes or fees for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof; chanrobles virtual
law library

(i) Customs duties registration, wharfage on wharves owned by the national government, tonnage and all other kinds of customs fees, charges and
dues; chanrobles virtual law library

(j) Taxes of any kind on banks, insurance companies, and persons paying franchise tax;chanrobles virtual law library

(k) Taxes on premiums paid by owners of property who obtain insurance directly with foreign insurance companies; andchanrobles virtual law library

(l) Taxes, fees or levies, of any kind, which in effect impose a burden on exports of Philippine finished, manufactured or processed products and
products of Philippine cottage industries.chanroblesvirtualawlibrarychanrobles virtual law library

A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any ordinance within one hundred and twenty days after its passage, if, in his
opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, and when the said secretary exercises this authority the
effectivity of such ordinance shall be suspended.chanroblesvirtualawlibrarychanrobles virtual law library

In such event the municipal board or city council in the case of cities and the municipal council or municipal district, council in the case of municipalities
and municipal districts may appeal the decision of the Secretary of Finance to the court during the pendency of which case the tax levied shall be
considered as paid under protest.

It should be noted that, under the penultimate paragraph of the foregoing section, the power of the Secretary of Finance is limited
to suspendingordinances imposing taxes that he considers "unjust, excessive, oppressive or confiscatory," and that the only qualification of that power is
that it be exercised within 120 days after the passage of the ordinance. What is more, his action may be  appealed  to the courts of justice, unlike the power
of approval or disapproval given to said officials under Section 4 of Com. Act No. 472, reading:

SEC. 4. The approval of the Secretary of Finance shall be secured:chanrobles virtual law library

(1) Whenever the rates of municipal license taxes fixed or imposed by ordinance of the municipal council or municipal district council by virtue of the
provisions of this Act exceed the rates of fixed internal revenue privilege taxes regularly imposed by the National Government upon the same
businesses or occupation, except on hotels, restaurants, cafes, refreshment parlors, race tracks, and retail dealers in vino liquors and fermented liquors,
and any tax or fee on livery stables, garages, and other places or establishments where public vehicles and other conveyances are kept for
hire;chanrobles virtual law library

(2) Whenever the rate of fixed municipal license taxes on businesses not excepted in this Act or otherwise covered by the preceding paragraph and
subject to the fixed annual tax imposed in section one hundred eighty-two of the National Internal Revenue Law, is in excess of fifty pesos per annum;
andchanrobles virtual law library

(3) Whenever the municipal license tax on any business, occupation, or privilege the rate of which is not limited above is increased by more than
fifty  per centum.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxx

22
Considering that the purpose of Rep. Act No. 2264 is to grant more autonomy to our local governments, 1and that the object of section 2 thereof is
identical to that of Com. Act No. 472, We are satisfied that the provisions of the latter - relied upon by 
plaintiffs-appellees herein and applied by the lower court - have been repealed by the Local Autonomy Act (Rep. Act No. 2264). And this is borne out by
the statements made on the floor of the House of Representatives, during the consideration of the Bill which later became R.A. No. 2264. Thus:

MR. YANCHA: But is not the gentleman aware of the fact that the taxes being imposed under this proposed measure are practically the same taxes that
are now being imposed by the municipal council? chanrobles virtual law library

MR. ZOSA: Now, gentleman from Samar, they are not. Under Commonwealth Act 472, these are not the same taxes. The power of the municipality to
tax under the present law is limited, but this bill removes the limitation, so that under this amendment of the Committee  the power to tax has become very
broad.chanroblesvirtualawlibrarychanrobles virtual law library

MR. YANCHA: If the gentleman from Cebu reads section 3, he will find that there is a limitation to the taxing power of the Municipal Council being
proposed in the amendment.chanroblesvirtualawlibrarychanrobles virtual law library

MR. ZOSA: Yes, but if the gentleman reads Commonwealth Act 472, together with that amendment, he will realize that the power of taxation given
under this amendment has become very broad.chanroblesvirtualawlibrarychanrobles virtual law library

MR YANCHA: Precisely, because the purpose of this law is to give more local autonomy if he will not increase their finances, and the only way to increase the
finances of municipalities is to broaden a little bit their power of taxation so that they will not be burdening the national government by asking certain
things that they cannot do themselves. 2chanrobles virtual law library

Further confirmation of Our view on this point is supplied by Provincial Circulation No. 24, of the Secretary of Finance - the officer principally charged
with the duty to enforce tax measures, and whose views thereon, although mainly persuasive, carry much weight - dated March 31, 1960, in which,
referring to the effect of said R.A. No. 2264 upon his power of approval (or disapproval) under C.A. No. 472, said official said:

In lieu of the power of approval of the rates of municipal taxes in certain instances granted the Secretary of Finance under Sec. 4 of Commonwealth Act
No. 472, said official is now authorized to suspend the effectivity of any ordinance within one hundred and twenty days after its passage, if, in his
opinion, the tax or fees therein levied or imposed is unjust, excessive, oppressive or confiscatory.

Neither is there any merit in the theory that the contested ordinances impose taxes on specific goods, or on forest products, which are excluded by
section 2 of R.A. No. 2264 from the general power of taxation therein granted, inasmuch as the rate of taxation imposed in said ordinances is dependent
upon the "capital investment or purchases for the previous year" - which, likewise, reflects the "capital Investment" - "whichever is higher." It is Our
considered view that the nature of the business or occupation taxed, and the amount invested therein, which is, also, reflected in the "purchases" - not
the "sales" - made "for the previous year" are reasonable grounds for the classification made in said ordinances and the graduated taxes imposed
therein.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the decision appealed from should be, as it is hereby reversed, with costs against plaintiffs-appellees herein. It is so ordered.

G.R. No. 102782 December 11, 1991

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

CRUZ, J.:

In Metropolitan Traffic Command, West Traffic District vs. Hon. Arsenio M. Gonong, G.R. No. 91023, promulgated on July 13, 1990, 1 the Court held that the
confiscation of the license plates of motor vehicles for traffic violations was not among the sanctions that could be imposed by the Metro Manila
Commission under PD 1605 and was permitted only under the conditions laid dowm by LOI 43 in the case of stalled vehicles obstructing the public
streets. It was there also observed that even the confiscation of driver's licenses for traffic violations was not directly prescribed by the decree nor was it
allowed by the decree to be imposed by the Commission. No motion for reconsideration of that decision was submitted. The judgment became final and
executory on August 6, 1990, and it was duly entered in the Book of Entries of Judgments on July 13, 1990.

Subsequently, the following developments transpired:

In a letter dated October 17, 1990, Rodolfo A. Malapira complained to the Court that when he was stopped for an alleged traffic violation, his driver's
license was confiscated by Traffic Enforcer Angel de los Reyes in Quezon City.

On December 18,1990, the Caloocan-Manila Drivers and Operators Association sent a letter to the Court asking who should enforce the decision in the
above-mentioned case, whether they could seek damages for confiscation of their driver's licenses, and where they should file their complaints.

23
Another letter was received by the Court on February 14, 1991, from Stephen L. Monsanto, complaining against the confiscation of his driver's license by
Traffic Enforcer A.D. Martinez for an alleged traffic violation in Mandaluyong.

This was followed by a letter-complaint filed on March 7, 1991, from Dan R. Calderon, a lawyer, also for confiscation of his driver's license by Pat. R.J.
Tano-an of the Makati Police Force.

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

Required to submit a Comment on the complaint against him, Allan D. Martinez invoked Ordinance No. 7, Series of 1988, of Mandaluyong, authorizing
the confiscation of driver's licenses and the removal of license plates of motor vehicles for traffic violations.

For his part, A.V. Emmanuel said he confiscated Trieste's driver's license pursuant to a memorandum dated February 27, 1991, from the District
Commander of the Western Traffic District of the Philippine National Police, authorizing such sanction under certain conditions.

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

Pat. R.J. Tano-an, on the other hand, argued that the Gonong decision prohibited only the removal of license plates and not the confiscation of driver's
licenses.

On May 24, 1990, the Metropolitan Manila Authority issued Ordinance No. 11, Series of 1991, authorizing itself "to detach the license plate/tow and
impound attended/ unattended/ abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila."

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

The attention ofthe Court has been called to the enactment by the Metropolitan Manila Authority of Ordinance No. 11, Series of 1991,
providing inter alia that:

Section 2. Authority to Detach Plate/Tow and Impound. The Metropolitan Manila Authority, thru the Traffic Operatiom Center, is
authorized to detach the license plate/tow and impound attended/unattended/abandoned motor vehicles illegally parked or
obstructing the flow of traffic in Metro Manila.

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

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

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

1. Formulation of policies on the delivery of basic services requiring coordination or consolidation for the Authority; and

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

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

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

24
On October 24, 1991, the Office of the Solicitor General submitted a motion for the early resolution of the questioned sanctions, to remove once and for
all the uncertainty of their vahdity. A similar motion was filed by the Metropolitan Manila Authority, which reiterated its contention that the incidents
in question should be dismissed because there was no actual case or controversy before the Court.

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

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

Given these considerations, the Court feels it must address the problem squarely presented to it and decide it as categorically rather than dismiss the
complaints on the basis of the technical objection raised and thus, through its inaction, allow them to fester.

The step we now take is not without legal authority or judicial precedent. Unquestionably, the Court has the power to suspend procedural rules in the
exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning "pleading, practice and procedure in all
courts." 2 In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because
of a rigid and formalistic adherence to such rules.

The Court has taken this step in a number of such cases, notably Araneta vs. Dinglasan, 3 where Justice Tuason justified the deviation on the ground that
"the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure."

We have made similar rulings in other cases, thus:

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

Three of the cases were consolidated for argument and the other two were argued separately on other dates. Inasmuch as all of them present
the same fundamental question which, in our view, is decisive, they will be disposed of jointly. For the same reason we will pass up the
objection to the personality or sufficiency of interest of the petitioners in case G.R. No. L-3054 and case G.R. No. L-3056 and the question
whether prohibition lies in cases G.R. Nos. L-2044 and L2756. No practical benefit can be gained from a discussion of these procedural matters,
since the decision in the cases wherein the petitioners'cause of action or the propriety of the procedure followed is not in dispute, will be
controlling authority on the others. Above all, the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821 cited in Araneta vs.
Dinglasan, 84 Phil. 368.)

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

It is stressed that this action is not intended to disparage procedural rules, which the Court has recognized often enough as necessary to the orderly
administration of justice. If we are relaxing them in this particular case, it is because of the failure of the proper parties to file the appropriate proceeding
against the acts complained of, and the necessity of resolving, in the interest of the public, the important substantive issues raised.

Now to the merits.

The Metro Manila Authority sustains Ordinance No. 11, Series of 1991, under the specific authority conferred upon it by EO 392, while Ordinance No. 7,
Series of 1988, is justified on the basis of the General Welfare Clause embodied in the Local Government Code. 4 It is not disputed that both measures
were enacted to promote the comfort and convenience of the public and to alleviate the worsening traffic problems in Metropolitan Manila due in large
part to violations of traffic rules.

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

25
Under the first requirement, the statute must leave the legislature complete in all its terms and provisions such that all the delegate will have to do when the statute reaches it is to implement it. What only can be delegated is not the discretion to determine what the

law shall be but the discretion to determine how the law shall be enforced. This has been done in the case at bar.

As a second requirement, the enforcement may be effected only in accordance with a sufficient standard, the function of which is to map out the boundaries of the delegate's authority and thus "prevent the delegation from running riot." This requirement has also

been met. It is settled that the "convenience and welfare" of the public, particularly the motorists and passengers in the case at bar, is an acceptable sufficient standard to delimit the delegate's authority. 6

But the problem before us is not the validity of the delegation of legislative power. The question we must resolve is the validity of the exercise of such delegated power.The measures in question are enactments of local governments acting only as agents of the national

legislature. Necessarily, the acts of these agents must reflect and conform to the will of their principal. To test the validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid down by the accepted principles

governing municipal corporations.

According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit but may regulate trade; 5) must not be unreasonable; and

6) must be general and consistent with public policy. 7

A careful study of the Gonong decision will show that the measures under consideration do not pass the first criterion because they do not conform to existing law. The pertinent law is PD 1605. PD 1605 does not allow either the removal of license plates or the

confiscation of driver's licenses for traffic violations committed in Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila Commission (and now the Metropolitan Manila Authority) to impose such

sanctions:

Section 1. The Metropolitan Manila Commission shall have the power to impose fines and otherwise discipline drivers and operators of motor vehicles for violations of traffic laws, ordinances, rules and regulations in Metropolitan Manila in such

amounts and under such penalties as are herein prescribed. For this purpose, the powers of the Land Transportation Commission and the Board of Transportation under existing laws over such violations and punishment thereof are hereby transferred to the Metropolitan

Manila Commission. When the proper penalty to be imposed is suspension or revocation of driver's license or certificate of public convenience, the Metropolitan Manila Commission or its representatives shall suspend or revoke such license or certificate. The suspended or

revoked driver's license or the report of suspension or revocation of the certificate of public convenience shall be sent to the Land Transportation Commission or the Board of Transportation, as the case may be, for their records update.

x x x           x x x          x x x

Section 3.` Violations of traffic laws, ordinances, rules and regulations, committed within a twelve-month period, reckoned from the date of birth of the licensee, shall subject the violator to graduated fines as follows: P10.00 for the first offense, P20.00 for the and

offense, P50.00 for the third offense, a one-year suspension of driver's license for the fourth offense, and a revocation of the driver's license for the fifth offense: Provided, That the Metropolitan Manila Commission may impose higher penalties as it may deem proper for

violations of its ordinances prohibiting or regulating the use of certain public roads, streets and thoroughfares in Metropolitan Manila.

x x x           x x x          x x x

Section 5. In case of traffic violations,  the driver's license shall not be confiscated but the erring driver shall be immediately issued a traffic citation ticket prescribed by the Metropolitan Manila Commission which shall state the violation committed, the amount of fine

imposed for the violation and an advice that he can make payment to the city or municipal treasurer where the violation was committed or to the Philippine National Bank or Philippine Veterans Bank or their branches within seven days from the date of issuance of

the citation ticket.

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

case with the competent traffic court, city or municipal court.

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

x x x           x x x          x x x

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

In fact, the above provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission was allowed to "impose fines and otherwise discipline" traffic violators only "in such amounts and under such penalties as are herein prescribed," that is,

by the decree itself. Nowhere is the removal of license plates directly imposed by the decree or at least allowed by it to be imposed by the Commission. Notably, Section 5 thereof expressly provides that "in case of traffic violations, the driver's license shall not be

confiscated." These restrictions are applicable to the Metropolitan Manila Authority and all other local political subdivisions comprising Metropolitan Manila, including the Municipality of Mandaluyong.

The requirement that the municipal enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create

their own sources of revenue and to levy taxes is conferred by the Constitution itself). 8
 They are mere agents vested with what is called the power of subordinate legislation. As delegates of
the Congress, the local government unit cannot contravene but must obey at all times the will of their principal. In the case before us, the enactments in
question, which are merely local in origin, cannot prevail against the decree, which has the force and effect of a statute.

The self-serving language of Section 2 of the challenged ordinance is worth noting. Curiously, it is the measure itself, which was enacted by the
Metropolitan Manila Authority, that authorizes the Metropolitan Manila Authority to impose the questioned sanction.

In Villacorta vs, Bemardo, 9 the Court nullified an ordinance enacted by the Municipal Board of Dagupan City for being violative of the Land Registration
Act. The decision held in part:

In declaring the said ordinance null and void, the court a quo declared:

From the above-recited requirements, there is no showing that would justify the enactment of the questioned ordinance. Section 1 of
said ordinance clearly conflicts with Section 44 of Act 496, because the latter law does not require subdivision plans to be submitted
to the City Engineer before the same is submitted for approval to and verification by the General Land Registration Office or by the
Director of Lands as provided for in Section 58 of said Act. Section 2 of the same ordinance also contravenes the provisions of
Section 44 of Act 496, the latter being silent on a service fee of P0.03 per square meter of every lot subject of such subdivision
application; Section 3 of the ordinance in question also conflicts with Section 44 of Act 496, because the latter law does not mention
of a certification to be made by the City Engineer before the Register of Deeds allows registration of the subdivision plan; and the
last section of said ordinance impose a penalty for its violation, which Section 44 of Act 496 does not impose. In other words,
Ordinance 22 of the City of Dagupan imposes upon a subdivision owner additional conditions.

26
 x x x           x x x          x x x

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

We affirm.

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

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

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

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

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

WHEREFORE, judgment is hereby rendered:

(1) declaring Ordinance No.11, Seriesof l991,of theMetropolitan Manila Authority and Ordinance No. 7, Series of 1988 of the Municipality of
Mandaluyong, NULL and VOID; and

(2) enjoining all law enforcement authorities in Metropolitan Manila from removing the license plates of motor vehicles (except when authorized under
LOI 43) and confiscating driver licenses for traffic violations within the said area.

SO ORDERED.

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners, 

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

CRUZ, J.:

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

The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City.
To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and
equipped the same, and prepared to inaugurate its casino there during the Christmas season.

The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353
reading as follows:

27
 ORDINANCE NO. 3353

AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT
TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE
OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:

Sec. 1. — That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit
shall be issued to any person, partnership or corporation for the operation of casino within the city limits.

Sec. 2. — That it shall be a violation of existing business permit by any persons, partnership or corporation to use its business
establishment or portion thereof, or allow the use thereof by others for casino operation and other gambling activities.

Sec. 3. — PENALTIES. — Any violation of such existing business permit as defined in the preceding section shall suffer the
following penalties, to wit:

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

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

c) Permanent revocation of the business permit and imprisonment of One (1) year, for the
third and subsequent offenses.

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

Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:

ORDINANCE NO. 3375-93

AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR.

WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295;

WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the
establishment of CASINO;

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

WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under
Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body
shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulate or prohibit
such activity pertaining to amusement or entertainment in order to protect social and moral welfare of the community;

NOW THEREFORE,

BE IT ORDAINED by the City Council in session duly assembled that:

Sec. 1. — The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.

Sec. 2. — Any violation of this Ordinance shall be subject to the following penalties:

a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation,
conduct, maintenance of gambling CASINO in the City and closure thereof;

28
 b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the
discretion of the court against the manager, supervisor, and/or any person responsible in the establishment, conduct and
maintenance of gambling CASINO.

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

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

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

1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to
prohibit the establishment and operation of a PAGCOR gambling casino within the City's territorial limits.

2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) — (v) of R.A. 7160 could only
mean "illegal gambling."

3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.

4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point.

5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality
concerned and inconsistent with the laws or policy of the State.

6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in
disposing of the issues presented in this present case.

PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the
territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the
decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government, next only to the BIR and
the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government
Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows:

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

In addition, Section 458 of the said Code specifically declares that:

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

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

x x x           x x x          x x x

(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, gamblingand other prohibited games of chance, fraudulent devices and ways to
obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of
obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city;

This section also authorizes the local government units to regulate properties and businesses within their territorial limits in the interest of the general
welfare. 5

29
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games
of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power
conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously
argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit
them within its territory pursuant to the authority entrusted to it by the Local Government Code.

It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the
Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the local government units the
power to prevent or suppress gambling and other social problems, the Local Government Code has recognized the competence of such communities to
determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State.

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

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

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

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

Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of this Code, the following rules shall apply:

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

xxx xxx xxx

(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units  in accelerating
economic development and upgrading the quality of life for the people in the community; . . . (Emphasis supplied.)

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

This is the opportune time to stress an important point.

The morality of gambling is not a justiciable issue. Gambling is not illegal  per se. While it is generally considered inimical to the interests of the people,
there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to
deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or
it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited  jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to
review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political
departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but may be
resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive.
Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and
not to the courts of justice.

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

The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must conform to the following
substantive requirements:

30
 1) It must not contravene the constitution or any statute.

2) It must not be unfair or oppressive.

3) It must not be partial or discriminatory.

4) It must not prohibit but may regulate trade.

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

6) It must not be unreasonable.

We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others,
"gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted
by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The
language of the section is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the
same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited
games of chance," the word should be read as referring to only illegal gambling which, like the other  prohibited games of chance, must be prevented or
suppressed.

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

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

It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modifiedpro tanto," they are actually arguing
that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate
casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary
but mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no
choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR
will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory
duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will
no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos.

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

Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No.
112 (1987), and Executive Order No. 319 (1988) are hereby repealed.

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

(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act.
No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.

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

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

31
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention.
In Lichauco & Co. v. Apostol, 10 this Court explained:

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

There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out, PAGCOR is mentioned as the
source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of
victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR
revenues are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in
fact been improved as it were to make the entity more responsive to the fiscal problems of the government.

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

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

In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are
valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed
in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general.

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

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

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

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

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

Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it
was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the

32
operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary
to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void.

WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with costs against the petitioners.
It is so ordered.

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

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

CRUZ, J.:

This is a petition for certiorari against a decision of the Court of First Instance of Pangasinan annulling an ordinance adopted by the municipal board of
Dagupan City.

The ordinance reads in full as follows:

ORDINANCE 22

AN ORDINANCE REGULATING SUBDIVISION PLANS OVER PARCELS OF LAND IN THE CITY OF DAGUPAN.

Be it ordained by the Municipal Board of Dagupan City in session assembled:

Section 1. Every proposed subdivision plan over any lot in the City of Dagupan, shalt before the same is submitted for approval
and/or verification by the Bureau of Lands and/or the Land Registration Commission, be previously submitted to the City
Engineer of the City who shall see to it that no encroachment is made on any portion of the public domain, that the zoning
ordinance and all other pertinent rules and regulations are observed.

Section 2. As service fee thereof, an amount equivalent to P0.30 per square meter of every lot resulting or win result from such
subdivision shall be charged by the City Engineer's Office.

Section 3. It shall be unlawful for the Register of Deeds of Dagupan City to allow the registration of a subdivision plan unless there
is prior written certification issued by the City Engineer that such plan has already been submitted to his office and that the same is
in order.

Section 4. Any violation of this ordinance shall be punished by a fine not exceeding two hundred (P200.00) pesos or imprisonment
not exceeding six (6) months or both in the discretion of the judge.

Section 5. This ordinance shall take effect immediately upon approval.

In declaring the said ordinance null and void, the court a quo declared:

From the above-recited requirements, there is no showing that would justify the enactment of the questioned ordinance. Section 1 of
said ordinance clearly conflicts with Section 44 of Act 496, because the latter law does not require subdivision plans to be submitted
to the City Engineer before the same is submitted for approval to and verification by the General Land Registration Office or by the
Director of Lands as provided for in Section 58 of said Act. Section 2 of the same ordinance also contravenes the provisions of
Section 44 of Act 496, the latter being silent on a service fee of PO.03 per square meter of every lot subject of such subdivision
application; Section 3 of the ordinance in question also conflicts with Section 44 of Act 496, because the latter law does not mention
of a certification to be made by the City Engineer before the Register of Deeds allows registration of the subdivision plan; and the
last section of said ordinance imposes a penalty for its violation, which Section 44 of Act 496 does not impose. In other words,
Ordinance 22 of the City of Dagupan imposes upon a subdivision owner additional conditions.

xxx xxx xxx

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

We affirm.

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

So many excesses are attempted in the name of the police power that it is time, we feel, for a brief admonition.

Regulation is a fact of life in any well-ordered community. As society becomes more and more complex, the police power becomes correspondingly
ubiquitous. This has to be so for the individual must subordinate his interests to the common good, on the time honored justification of Salus populi est
suprema lex.

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

It is necessary to stress that unless the creeping interference of the government in essentially private matters is moderated, it is likely to destroy that
prized and peculiar virtue of the free society: individualism.

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

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

Let it always be remembered that in the truly democratic state, protecting the rights of the individual is as important as, if not more so than, protecting
the rights of the public.

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

WHEREFORE, the decision of the lower court annulling the challenged ordinance is AFFIRMED, without any pronouncement as to costs.

SO ORDERED.

G.R. No. 92389 September 11, 1991

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

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

PARAS, J.:

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

The pertinent facts are:

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

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

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

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

34
Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected allowance in audit. Based on its preliminary findings,
respondent COA disapproved Resolution No. 60 and disallowed in audit the disbursement of finds for the implementation thereof. (Rollo, Annex "D", P.
44)

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

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

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

2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5, 1989, has already appropriated the amount of
P400,000.00 to implement the Id resolution, and the only function of COA on the matter is to allow the financial assistance in question.

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

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

Here, we see no perceptible connection or relation between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the
alleged public safety, general welfare, etc. of the inhabitants of Makati.

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

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

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

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

Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a municipal
corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of
the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal
corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are
reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as
empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people. (62 C.J.S., p. 277). The so-called inferred
police powers of such corporations are as much delegated powers as are those conferred in express terms, the inference of their delegation growing out
of the fact of the creation of the municipal corporation and the additional fact that the corporation can only fully accomplish the objects of its creation by
exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore, municipal corporations, as governmental agencies, must have such
measures of the power as are necessary to enable them to perform their governmental functions. The power is a continuing one, founded on public
necessity. (62 C.J.S. p. 273) Thus, not only does the State effectuate its purposes through the exercise of the police power but the municipality does also.
(U.S. v. Salaveria, 39 Phil. 102).

Municipal governments exercise this power under the general welfare clause: pursuant thereto they are clothed with authority to "enact such ordinances
and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary
and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and
general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." (Sections 91, 149, 177 and 208, BP 337).
And under Section 7 of BP 337, "every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order
in the local government unit, and preserve the comfort and convenience of the inhabitants therein."

Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the
people. It is the most essential, insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. It is elastic

35
and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security of social order, the life and
health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of
property, and it has been said to be the very foundation on which our social system rests. (16 C.J.S., P. 896) However, it is not confined within narrow
circumstances of precedents resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang, et al. vs. IAC, supra).

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

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

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

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

COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the limitation that the expenditure covered thereby should
be for a public purpose, ... should be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of only
a few individuals as in the present case." (Rollo, Annex "G", p. 51).

COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of
persons. As correctly pointed out by the Office of the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to
provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general welfare (Section 5, Ibid) social justice (Section 10, Ibid) as
well as human dignity and respect for human rights. (Section 11, Ibid." (Comment, p. 12)

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

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

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

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

SO ORDERED.

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

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

FERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is whether or not a municipal corporation, 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

36
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." 7 There was the
admission of the following facts as having been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously
issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato
Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3. That the night
clubs are well-lighted and have no partitions, the tables being near each other; 4. That the petitioners owners/operators of these clubs do not allow the
hospitality girls therein to engage in immoral acts and to go out with customers; 5. That these hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any venereal disease and that those who fail to submit to a medical check-up or those who are found to
be infected with venereal disease are not allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns of
Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84 and dismissing the cases. Hence
this petition for certiorari by way of appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set forth in the opening paragraph thus: "Those who
lust cannot last. This in essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual titillation and
fearful of what the awesome future holds for it, had no alternative except to order thru its legislative machinery, and even at the risk of partial economic
dislocation, the closure of its night clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good government, and
cognizant of the categorical imperatives of the current legal and social revolution, hereby [upholds] in the name of police power the validity and
constitutionality of Ordinance No. 84, 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
37
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: ... " 19Then on May 21, 1954, the first section was amended to include not merely "the power to
regulate, but likewise "Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is to be admitted that as thus
amended, if only the above portion of the Act were considered, a municipal council may go as far as to prohibit the operation of night clubs. If that were
all, then the appealed decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It was not changed one
whit. The exact wording was followed. The power granted remains that of regulation, not prohibition. There is thus support for the view advanced by
petitioners that to construe Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question.
The Constitution mandates: "Every bill shall embrace only one subject which shall be expressed in the title thereof. " 21 Since there is no dispute as the
title limits the power to regulating, not prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the
operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power "to provide for the health and safety, promote
the prosperity, improve the morals, 22 in the language of the Administrative Code, such competence extending to all "the great public needs, 23 to quote
from Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the well-settled principle of constitutional construction that
between two possible interpretations by one of which it will be free from constitutional infirmity and by the other tainted by such grave defect, the
former is to be preferred. A construction that would save rather than one that would affix the seal of doom certainly commends itself. We have done so
before We do so again. 24

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

38
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. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners, 

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

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance
No. 6118, S-64, of the Quezon City Council null and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF
PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES
FOR THE VIOLATION THEREOF" provides:

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

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

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

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64
would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief,
prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent
alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.

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

A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.

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

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

The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the property in this case because it
refers to "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The respondent points out that if an
owner is deprived of his property outright under the State's police power, the property is generally not taken for public use but is urgently and
summarily destroyed in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to prevent
the spread of a conflagration.

39
We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We quote with approval the lower
court's ruling which declared null and void Section 9 of the questioned city ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?

An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify the ordinance in
question except the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon
City to tax, fix the license fee, and regulate such other business, trades, and occupation as may be established or practised in the
City.' (Subsections 'C', Sec. 12, R.A. 537).

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

'prohibit the burial of the dead within the center of population of the city and provide for their burial in such
proper place and in such manner as the council may determine, subject to the provisions of the general law
regulating burial grounds and cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec.
12, Rep. Act No. 537).

There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police
power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry into
effect and discharge the powers and duties conferred by this act and such as it shall deem necessary and proper
to provide for the health and safety, promote, the prosperity, improve the morals, peace, good order, comfort
and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce
obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of
subsection (jj) of this section.

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

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

Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and
property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and
enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in
order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in
consequence thereof (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most
insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs.
Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104).
The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As
it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being
coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most
essential insistent and illimitable Especially it is so under the modern democratic framework where the demands of society and
nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless,
just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight.
Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or
scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs.
Hernandez, L-7995, May 31, 1957).

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

It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in
the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with

40
 the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of
protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article,
such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an
outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever challenges the validity of duly
enacted legislation whether national or local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
presumption in favor of validity and, more so, where the ma corporation asserts that the ordinance was enacted to promote the common good and
general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the then
Associate Justice and now Chief Justice Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption of validity that attaches to a
statute or ordinance. As was expressed categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The action of
the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar
with the necessities of their particular ... municipality and with all the facts and lances which surround the subject and necessitate
action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-
being of the people. ... The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of Health supra :

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

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

There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of
deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking
without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of
Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial
in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa
Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as
prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct
public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets,
parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome
environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express
provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to
cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary
licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly
acknowledged by the private respondent when it accepted the permits to commence operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.

SO ORDERED.

41
G.R. No. L-24670 December 14, 1979

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

vs.
FEATI BANK AND TRUST CO., defendant-appellee.

SANTOS, J.:

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

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

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

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

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

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

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

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

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

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

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

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

42
The trial court upheld the defendant-appellee and dismissed the complaint, holding that the subject restrictions were subordinate to Municipal
Resolution No. 27, supra. It predicated its conclusion on the exercise of police power of the said municipality, and stressed that private interest should
"bow down to general interest and welfare. " In short, it upheld the classification by the Municipal Council of the area along Epifanio de los Santos
Avenue as a commercial and industrial zone, and held that the same rendered "ineffective and unenforceable" the restrictions in question as against
defendant-appellee.14 The trial court decision further emphasized that it "assumes said resolution to be valid, considering that there is no issue raised by
either of the parties as to whether the same is null and void. 15

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above decision, 16 which motion was opposed by defendant-appellee on
March 17, 1965.17 It averred, among others, in the motion for reconsideration that defendant- appellee "was duty bound to comply with the conditions of
the contract of sale in its favor, which conditions were duly annotated in the Transfer Certificates of Title issued in her (Emma Chavez) favor." It also
invited the trial court's attention to its claim that the Municipal Council had (no) power to nullify the contractual obligations assumed by the defendant
corporation." 18

The trial court denied the motion for reconsideration in its order of March 26, 1965. 19

On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the complaint and from the order of March 26, 1965 denying
the motion for reconsideration, its record on appeal, and a cash appeal bond." 20On April 14, the appeal was given due course 21 and the records of the
case were elevated directly to this Court, since only questions of law are raised. 22

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

I. When it sustained the view that Resolution No. 27, series of 1960 of the Municipal Council of Mandaluyong, Rizal declaring Lots
Nos. 5 and 6, among others, as part of the commercial and industrial zone, is valid because it did so in the exercise of its police
power; and

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

The defendant-appellee submitted its counter-assignment of errors. In this connection, We already had occasion to hold in Relativo v. Castro  24 that "(I)t is
not incumbent on the appellee, who occupies a purely defensive position, and is seeking no affirmative relief, to make assignments of error, "

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

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

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

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

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

43
2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee – referring to the
restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee – it should be
stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate
exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general
welfare of the people. 35 Invariably described as "the most essential, insistent, and illimitable of powers" 36 and "in a sense, the greatest and most
powerful attribute of government, 37 the exercise of the power may be judicially inquired into and corrected only if it is capricious, 'whimsical, unjust or
unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. 38 As this Court held through
Justice Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao, et al. 39 police power "is elastic and must be responsive to various social
conditions; it is not, confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic
way of life." We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al., 40 when We declared: "We do not see why public
welfare when clashing with the individual right to property should not be made to prevail through the state's exercise of its police power.

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

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

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

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

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

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

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

Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General49 that laws and reservation of essential attributes of sovereign power are
read into contracts agreed upon by the parties. Thus —

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

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

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

44
In the first place, the views set forth in American decisions and authorities are not per se controlling in the Philippines, the laws of which must
necessarily be construed in accordance with the intention of its own lawmakers and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. 53 and Burgess, et al v. Magarian, et al.,  55 two Of the cases cited by plaintiff-appellant, lend support to the
conclusion reached by the trial court, i.e. that the municipal resolution supersedes/supervenes over the contractual undertaking between the
parties. Dolan v. Brown, states that "Equity will not, as a rule, enforce a restriction upon the use of property by injunction where the property has so changed
in character and environment as to make it unfit or unprofitable for use should the restriction be enforced,  but will, in such a case, leave the complainant to
whatever remedy he may have at law. 56 (Emphasis supplied.) Hence, the remedy of injunction in Dolan vs. Brown was denied on the specific holding
that "A grantor may lawfully insert in his deed conditions or restrictions which are not against public policy and do not materially impair the beneficial
enjoyment of the estate. 57 Applying the principle just stated to the present controversy, We can say that since it is now unprofitable, nay a hazard to the
health and comfort, to use Lots Nos. 5 and 6 for strictly residential purposes, defendants- appellees should be permitted, on the strength of the
resolution promulgated under the police power of the municipality, to use the same for commercial purposes. In Burgess v. Magarian  et al. it was, held
that "restrictive covenants running with the land are binding on all subsequent purchasers ... " However, Section 23 of the zoning ordinance involved
therein contained a proviso expressly declaring that the ordinance was not intended "to interfere with or abrogate or annul any easements, covenants or
other agreement between parties." 58 In the case at bar, no such proviso is found in the subject resolution.

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

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

SO ORDERED.

G.R. Nos. L-60549, 60553 to 60555 October 26, 1983

HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona) ANASTACIO C. CABILAO, HEIRS OF CIPRIANO CABILAO (represented by
Jose Cabilao) MODESTA CABILAO, HEIRS OF ROMAN CABUENAS (represented by Alberto Cabuenas), AGRIPINO GABISAY and
PRUDENCIA MABINI, ANTONIO LABRADOR and LUCIA GABISAY, GERONIMO MABINI and MARCELINA SABAL, INOCENCIO MABINI
and ARSENIA REYES, PATRICIO MABINI and GREGORIA BORRES, ANICETO GADAPAN and MAXIMA GABISAY, BARTOLOME MAGNO
and CALINECA E. MAGNO, ALBERTO CABUENAS, NARCISO CABUENAS and VICTORIA CABUENAS, EUTIQUIOSENO, HEIRS OF
ESPERIDION CABUENAS (represented by Alberto Cabuenas), MAXIMINA NAVARO, SULPICIO NAVARO, EDUARDO NAVARO,
MARTINIANO ROMA (in representation of Arcadio Mabini, deceased), MARTIN SENO, FAUSTO ARDA, MAXIMA CABILAO, ESTRELLA
SENO, EDUVEGIS S. CABILAO, ROSARIO CABILAO, MINORS DANILO, SOCORRO, JOSEFINA and MARITES, all surnamed Cabilao, JUAN
BORRES (represented by Francisca Borres), RAMON JABADAN, JESUS ALIPAR and LEONILA KABAHAR, ANTONIO LABRADOR, HEIRS OF
NICASIO GABISAY (represented by Arsenio Gabisay), PACIFICO LABRADOR, DEMETRIO LABRADOR and FRUCTOSA TABURA,
VENANCIO DEL MAR, MARINO DEL MAR, HEIRS OF TEODORA ARCILLO (represented by Brigida Arcillo) DIONISIA GABUNADA, HEIRS
OF BUENAVENTURA FRANCISCO (represented by Felicidad Sadaya Francisco), HEIRS OF VICTORIA C. CABUENAS (represented by Alberto
Cabuenas) HEIRS OF CIPRIANO GABUNADA (represented by Claudio Gabunada), petitioners, 
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of Branch I, COURT OF FIRST instance OF CEBU, and the PHILIPPINE TOURISM
AUTHORITY, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari with preliminary injunction challenging the constitutionality of Presidential Decree No. 564, the Revised Charter of the
Philippine Tourism Authority, and Proclamation No. 2052 declaring the barangays of Sibugay, Malubog, Babag and Sirao including the proposed
Lusaran Dam in the City of Cebu and in the municipalities of Argao and Dalaguete in the province of Cebu as tourist zones. The petitioners ask that we
restrain respondent Court of First Instance of Cebu and the Philippine Tourism Authority (PTA) from enforcing and implementing the writs of
possession issued in four (4) expropriation cases filed by PTA against the petitioners: Civil Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the
Court of First Instance of Cebu (Branch 1).

The Philippine Tourism Authority filed four (4) Complaints with the Court of First Instance of Cebu City for the expropriation of some 282 hectares of
rolling land situated in barangays Malubog and Babag, Cebu City, under PTA's express authority "to acquire by purchase, by negotiation or by
condemnation proceedings any private land within and without the tourist zones" for the purposes indicated in Section 5, paragraph B(2), of its Revised
Charter (PD 564), more specifically, for the development into integrated resort complexes of selected and well-defined geographic areas with potential
tourism value. As uniformly alleged in the complaints, the purposes of the expropriation are:

xxx xxx xxx

V
Plaintiff, in line with the policy of the government to promote tourism and development of tourism projects will construct in
Barangays Malubog, Busay and Babag, all of Cebu City, a sports complex (basketball courts, tennis courts, volleyball courts, track
and field, baseball and softball diamonds, and swimming pools), clubhouse, gold course, children's playground and a nature area
for picnics and horseback riding for the use of the public.
The development plan, covering approximately 1,000 hectares, includes the establishment of an electric power grid in the area by
the National Power Corporation, thus assuring the supply of electricity therein for the benefit of the whole community. Deep wells

45
 will also be constructed to generate water supply within the area. Likewise, a complex sewerage and drainage system will be
devised and constructed to protect the tourists and nearby residents from the dangers of pollution.
Complimentary and support facilities for the project will be constructed, including public rest houses, lockers, dressing rooms,
coffee shops, shopping malls, etc. Said facilities will create and offer employment opportunities to residents of the community and
further generate income for the whole of Cebu City.
Plaintiff needs the property above described which is directly covered by the proposed golf court.

xxx xxx xxx

The defendants in Civil Cases Nos. R-20701 and R-21608 filed their respective Opposition with Motion to Dismiss and/or Reconsideration. The
defendants in Civil Case No. R-19562 filed a manifestation adopting the answer of defendants in Civil Case No. R-19864. The defendants, now
petitioners, had a common allegation in that the taking is allegedly not impressed with public use under the Constitution.

In their motions to dismiss, the petitioners alleged, in addition to the issue of public use, that there is no specific constitutional provision authorizing the
taking of private property for tourism purposes; that assuming that PTA has such power, the intended use cannot be paramount to the determination of
the land as a land reform area; that limiting the amount of compensation by Legislative fiat is constitutionally repugnant; and that since the land is
under the land reform program, it is the Court of Agrarian Relations and not the Court of First Instance that has jurisdiction over the expropriation
cases.

The Philippine Tourism Authority having deposited with The Philippine National Bank, Cebu City Branch, an amount equivalent to 10% of the value of
the properties pursuant to Presidential Decree No. 1533. the lower court issued separate orders authorizing PTA to take immediate possession of the
premises and directing the issuance of writs of possession.

On May 25, 1982, petitioners filed this petition questioning the orders of the respondent Judge, The respondents have correctly restated the grounds in
the petition as follows:

xxx xxx xxx

A. The complaints for expropriation lack basis because the Constitution does not provide for the expropriation of private property
for tourism or other related purposes;

B. The writs of possession or orders authorizing PTA to take immediate possession is premature because the "public use" character
of the taking has not been previously demonstrated;

C. The taking is not for public use in contemplation of eminent domain law;

D. The properties in question have been previously declared a land reform area; consequently, the implementation of the social
justice pro- ,vision of the Constitution on agrarian reform is paramount to the right of the State to expropriate for the purposes
intended;

E. Proclamation No. 2052 declaring certain barangays in Cebu City, which include the lands subject of expropriation as within a
tourist zone, is unconstitutional for it impairs the obligation of contracts; "F. Since the properties are within a land reform area, it is
the Court of Agrarian Relations, not the lower court, that has jurisdiction pursuant to Pres. Decree No. 946;

F. The forcible ejectment of defendants from the premises constitutes a criminal act under Pres. Decree No. 583;

In their memorandum, the petitioners have summarized the issues as follows:

I. Enforcement of the Writ of Possession is Premature:

II. Presidential Decree 564 Amending Presidential Decree l89 is Constitutionally Repugnant:

III. The Condemnation is not for Public Use, Therefore, Unconstitutional:

IV. The Expropriation for Tourism Purposes of Lands Covered by the Land Reform Program Violates the Constitution:

V. Presidential Proclamation 2052 is Unconstitutional:

VI. Presidential Decree No 1533 is Unconstitutional:

VII. The Court of First Instance has no Jurisdiction:

46
 VIII. The Filing of the Present Petition is not Premature.

The issues raised by the petitioners revolve around the proposition that the actions to expropriate their properties are constitutionally infirm because
nowhere in the Constitution can a provision be found which allows the taking of private property for the promotion of tourism.

The petitioners' arguments in their pleadings in support of the above proposition are subsumed under the following headings:

1. Non-compliance with the "public use" requirement under the eminent domain provision of the Bill of Rights.

2. Disregard of the land reform nature of the property being expropriated.

3. Impairment of the obligation of contracts.

There are three provisions of the Constitution which directly provide for the exercise of the power of eminent domain. Section 2, Article IV states that
private property shall not be taken for public use without just compensation. Section 6, Article XIV allows the State, in the interest of national welfare or
defense and upon payment of just compensation to transfer to public ownership, utilities and other private enterprises to be operated by the
government. Section 13, Article XIV states that the Batasang Pambansa may authorize upon payment of just compensation the expropriation of private
lands to be subdivided into small lots and conveyed at cost to deserving citizens.

While not directly mentioning the expropriation of private properties upon payment of just compensation, the provisions on social justice and agrarian
reforms which allow the exercise of police power together with the power of eminent domain in the implementation of constitutional objectives are even
more far-reaching insofar as taking of private property is concerned.

Section 6, Article II provides:

Sec. 6. The State shall promote social justice to ensure the dignity, welfare, and security of all the people. Towards its end, the State
shall regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse property
ownership and profits.

xxx xxx xxx

Section 12, Article XIV provides:

See. 12. The State shall formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage
of the soil and achieving the goals enunciated in this Constitution.

The equitable diffusion of property ownership in the promotion of social justice implies the exercise, whenever necessary, of the power to expropriate
private property. Likewise there can be no meaningful agrarian reform program unless the power to expropriate is utilized.

We cite all the above provisions on the power to expropriate because of the petitioners' insistence on a restrictive view of the eminent domain provision.
The thrust of all constitutional provisions on expropriation is in the opposite direction.

As early as 1919, this Court in Visayan Refining Co. v. Samus (40 Phil. 550) categorized the restrictive view as wholly erroneous and based on a
misconception of fundamentals.

The petitioners look for the word "tourism" in the Constitution. Understandably the search would be in vain. The policy objectives of the framers can be
expressed only in general terms such as social justice, local autonomy, conservation and development of the national patrimony, public interest, and
general welfare, among others. The programs to achieve these objectives vary from time to time and according to place, To freeze specific programs like
Tourism into express constitutional provisions would make the Constitution more prolix than a bulky code and require of the framers a prescience
beyond Delphic proportions. The particular mention in the Constitution of agrarian reform and the transfer of utilities and other private enterprises to
public ownership merely underscores the magnitude of the problems sought to be remedied by these programs. They do not preclude nor limit the
exercise of the power of eminent domain for such purposes like tourism and other development programs.

In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized that the power of eminent domain is inseparable from sovereignty
being essential to the existence of the State and inherent in government even in its most primitive forms. The only purpose of the provision in the Bill of
Rights is to provide some form of restraint on the sovereign power. It is not a grant of authority -

The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty
and exists in a sovereign state without any recognition of it in the constitution. The provision found in most of the state
constitutions relating to the taking of property for the public use do not by implication grant the power to the government of the
state, but limit a power which would otherwise be without limit.

The constitutional restraints are public use and just compensation.

47
Do the purposes of the taking in this case constitute "public use"?

The petitioners ask us to adopt a strict construction and declare that "public use" means literally use by the public and that "public use" is not
synonymous with "public interest", "public benefit", or "public welfare" and much less "public convenience. "

The petitioners face two major obstacles. First, their contention which is rather sweeping in its call for a retreat from the public welfare orientation is
unduly restrictive and outmoded. Second, no less than the lawmaker has made a policy determination that the power of eminent domain may be
exercised in the promotion and development of Philippine tourism.

The restrictive view of public use may be appropriate for a nation which circumscribes the scope of government activities and public concerns and
which possesses big and correctly located public lands that obviate the need to take private property for public purposes. Neither circumstance applies
to the Philippines. We have never been a laissez faire State, And the necessities which impel the exertion of sovereign power are all too often found in
areas of scarce public land or limited government resources.

Certain aspects of parliamentary government were introduced by the 1973 amendments to the Constitution with further modifications in the 1976 and
1981 amendments. Insofar as the executive and legislative departments are concerned, the traditional concept of checks and balances in a presidential
form was considerably modified to remove some roadblocks in the expeditious implementation of national policies. There was no such change for the
judiciary. We remain as a checking and balancing department even as all strive to maintain respect for constitutional boundaries. At the same time, the
philosophy of coordination in the pursuit of developmental goals implicit in the amendments also constrains in the judiciary to defer to legislative
discretion iii the judicial review of programs for economic development and social progress unless a clear case of constitutional infirmity is established.
We cannot stop the legitimate exercise of power on an invocation of grounds better left interred in a bygone age and time.* As we review the efforts of
the political departments to bring about self-sufficiency, if not eventual abundance, we continue to maintain the liberal approach because the primary
responsibility and the discretion belong to them.

There can be no doubt that expropriation for such traditions' purposes as the construction of roads, bridges, ports, waterworks, schools, electric and
telecommunications systems, hydroelectric power plants, markets and slaughterhouses, parks, hospitals, government office buildings, and flood control
or irrigation systems is valid. However, the concept of public use is not limited to traditional purposes. Here as elsewhere the Idea that "public use" is
strictly limited to clear cases of "use by the public" has been discarded.

In the United States, the rule was enunciated in Berman v. Parker  (348 U.S. 25; 99 L. ed. 27) as follows:

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and
inclusive. See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424, 96 L ed 469, 472, 72 S Ct 405. The values it represents are spiritual
as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should
be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the
Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to
reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that stands in the way.

Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the
power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L ed 808,
810, 14 S Ct 891; United States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427.

In an earlier American case, where a village was isolated from the rest of North Carolina because of the flooding of the reservoir of a dam thus making
the provision of police, school, and health services unjustifiably expensive, the government decided to expropriate the private properties in the village
and the entire area was made part of an adjoining national park. The district court and the appellate court ruled against the expropriation or excess
condemnation. The Court of Appeals applied the "use by the public" test and stated that the only land needed for public use was the area directly
flooded by the reservoir. The village may have been cut off by the dam but to also condemn it was excess condemnation not valid under the "Public use"
requirement. The U.S. Supreme Court in United States ex rel TVA v. Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It stated:

The Circuit Court of Appeals, without expressly relying on a compelling rule of construction that would give the restrictive scope to
the T.V.A. Act given it by the district court, also interpreted the statute narrowly. It first analyzed the facts by segregating the total
problem into distinct parts, and thus came to the conclusion that T.V.A.'s purpose in condemning the land in question was only one
to reduce its liability arising from the destruction of the highway. The Court held that use of the lands for that purpose is a "private"
and not a "public use" or, at best, a "public use" not authorized by the statute. we are unable to agree with the reasoning and
conclusion of the Circuit Court of Appeals.

We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the
taking may do so to the still extent of its statutory authority, United States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576,
580, 16 S Ct 427. ...

xxx xxx xxx

... But whatever may be the scope of the judicial power to determine what is a "public use" in Fourteenth Amendment controversies,
this Court has said that when Congress has spoken on this subject "Its decision is entitled to deference until it is shown to involve an

48
 impossibility." Old Dominion Land Co. v. United States, 269, US 55, 66, 70 L ed 162, 46 S Ct 39. Any departure from this judicial
restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the
basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields. See Case v.
Bowles decided February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438. New York v. United States, 326 US 572 ante 326, 66 S Ct
310). We hold that the T.V.A. took the tracts here involved for a public purpose, if, as we think is the case, Congress authorized the
Authority to acquire, hold, and use the lands to carry out the purposes of the T.V.A. Act.

In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the statutory and judicial trend as follows:

The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not any more. As long as the purpose of the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least two cases, to remove any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the
exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever
may be beneficially employed for the general welfare satisfies the requirement of public use. (Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)

The petitioners' contention that the promotion of tourism is not "public use" because private concessioners would be allowed to maintain various
facilities such as restaurants, hotels, stores, etc. inside the tourist complex is impressed with even less merit. Private bus firms, taxicab fleets, roadside
restaurants, and other private businesses using public streets end highways do not diminish in the least bit the public character of expropriations for
roads and streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. Airports
and piers catering exclusively to private airlines and shipping companies are still for public use. The expropriation of private land for slum clearance
and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and
service companies, and other private concerns.

The petitioners have also failed to overcome the deference that is appropriately accorded to formulations of national policy expressed in legislation. The
rule in Berman u. Parker (supra) of deference to legislative policy even if such policy might mean taking from one private person and conferring on
another private person applies as well as in the Philippines.

... Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here
one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project
a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and
Congress alone to determine, once the public purpose has been established. Selb Luxton v. North River Bridge Co. (US) supra; cf.
Highland v. Russel Car & Snow Plow Co. 279 US 253, 73 L ed 688, 49 S Ct 314. The public end may be as well or better served
through an agency of private enterprise than through a department of government-or so the Congress might conclude. We cannot
say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we
have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to
repurchase their properties for redevelopment in harmony with the over-all plan. That, too, is a legitimate means which Congress
and its agencies may adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348 US 33, 34)

An examination of the language in the 1919 cases of City of Manila v. Chinese Community of Manila (40 Phil, 349) and Visayan Refining Co. vs. Camus, earlier
cited, shows that from the very start of constitutional government in our country judicial deference to legislative policy has been clear and manifest in
eminent domain proceedings.

The expressions of national policy are found in the revised charter of the Philippine Tourism Authority, Presidential Decree No. 564:

WHEREAS, it is the avowed aim of the government to promote Philippine tourism and work for its accelerated and balanced
growth as well as for economy and expediency in the development of the tourism plant of the country;

xxx xxx xxx

SECTION 1. Declaration of Policy. - It is hereby declared to be the policy of the State to promote, encourage, and develop Philippine
tourism as an instrument in accelerating the development of the country, of strengthening the country's foreign exchange reserve
position, and of protecting Philippine culture, history, traditions and natural beauty, internationally as well as domestically.

The power of eminent domain is expressly provided for under Section 5 B(2) as follows:

xxx xxx xxx

2. Acquisition of Private Lands, Power of Eminent Domain. — To  acquire by purchase, by negotiation or by condemnation proceedings
any private land within and without the tourist zones for any of the following reasons: (a) consolidation of lands for tourist zone
development purposes, (b) prevention of land speculation in areas declared as tourist zones, (c) acquisition of right of way to the
zones, (d) protection of water shed areas and natural assets with tourism value, and (e) for any other purpose expressly authorized
under this Decree and accordingly, to exercise the power of eminent domain under its own name, which shall proceed in the

49
 manner prescribed by law and/or the Rules of Court on condemnation proceedings. The Authority may use any mode of payment
which it may deem expedient and acceptable to the land owners: Provided, That in case bonds are used as payment, the conditions
and restrictions set forth in Chapter III, Section 8 to 13 inclusively, of this Decree shall apply.

xxx xxx xxx

The petitioners rely on the Land Reform Program of the government in raising their second argument. According to them, assuming that PTA has the
right to expropriate, the properties subject of expropriation may not be taken for the purposes intended since they are within the coverage of "operation
land transfer" under the land reform program. Petitioners claim that certificates of land transfer (CLT'S) and emancipation patents have already been
issued to them thereby making the lands expropriated within the coverage of the land reform area under Presidential Decree No. 2; that the agrarian
reform program occupies a higher level in the order of priorities than other State policies like those relating to the health and physical well- being of the
people; and that property already taken for public use may not be taken for another public use.

We have considered the above arguments with scrupulous and thorough circumspection. For indeed any claim of rights under the social justice and
land reform provisions of the Constitution deserves the most serious consideration. The Petitioners, however, have failed to show that the area being
developed is indeed a land reform area and that the affected persons have emancipation patents and certificates of land transfer.

The records show that the area being developed into a tourism complex consists of more than 808 hectares, almost all of which is not affected by the
land reform program. The portion being expropriated is 282 hectares of hilly and unproductive land where even subsistence farming of crops other than
rice and corn can hardly survive. And of the 282 disputed hectares, only 8,970 square meters-less than one hectare-is affected by Operation Land
Transfer. Of the 40 defendants, only two have emancipation patents for the less than one hectare of land affected. And this 8,970 square meters parcel of
land is not even within the sports complex proper but forms part of the 32 hectares resettlement area where the petitioners and others similarly situated
would be provided with proper housing, subsidiary employment, community centers, schools, and essential services like water and electricity-which
are non-existent in the expropriated lands. We see no need under the facts of this petition to rule on whether one public purpose is superior or inferior to
another purpose or engage in a balancing of competing public interests. The petitioners have also failed to overcome the showing that the taking of the
8,970 square meters covered by Operation Land Transfer forms a necessary part of an inseparable transaction involving the development of the 808
hectares tourism complex. And certainly, the human settlement needs of the many beneficiaries of the 32 hectares resettlement area should prevail over
the property rights of two of their compatriots.

The invocation of the contracts clause has no merit. The non-impairment clause has never been a barrier to the exercise of police power and likewise
eminent domain. As stated in Manigault v. Springs (199 U.S. 473) "parties by entering into contracts may not stop the legislature from enacting laws
intended for the public good."

The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544) which involved the expropriation of land for a public plaza. The Court stated:

xxx xxx xxx

... What is claimed is that there must be a showing of necessity for such condemnation and that it was not done in this case in
support of such a view, reliance is placed on City of Manila v. Arenano Law Colleges. (85 Phil. 663 [1950]) That doctrine itself is
based on the earlier case of City of Manila v. Chinese Community of Manila, (50 Phil. 349) also, like Camus, a 1919 decision. As
could be discerned, however, in the Arellano Law Colleges decision. it was the antiquarian view of Blackstone with its sanctification
of the right to one's estate on which such an observation was based. As did appear in his Commentaries: "So great is the regard of
the law for private property that it will not, authorize the least violation of it, even for the public good, unless there exists a very
great necessity thereof." Even the most , cursory glance at such well-nigh absolutist concept of property would show its obsolete
character at least for Philippine constitutional law. It cannot survive the test of the 1935 Constitution with its mandates on social
justice and protection to labor. (Article II, Section 5 of the 1935 Constitution reads: "The promotion of social justice to unsure the
well-being and economic security of all the people should be the concern of the State." Article XI, Section 6 of the same Constitution
provides: "The State shall afford protection to labor, especially to working women and minors, and shall regulate the relation
between landowner and tenant, and between labor and capital in industry and in agriculture. The State may provide for
compulsory arbitration.") What is more, the present Constitution pays even less heed to the claims of property and rightly so. After
stating that the State shall promote social justice, it continues: "Towards this end, the State shall regulate the acquisition, ownership,
use, enjoyment, and disposition of private property, and equitably diffuse property ownership and profits." (That is the second
sentence of Article II, Section 6 of the Constitution) If there is any need for explicit confirmation of what was set forth in Presidential
Decree No. 42, the above provision supplies it. Moreover, that is merely to accord to what of late has been the consistent course of
decisions of this Court whenever property rights are pressed unduly. (Cf. Alalayan v. National Power Corporation, L-24396, July 29,
1968, 24 SCRA 172; Agricultural Credit and Cooperative Financing Administration v. Confederation of Unions, L-21484, Nov. 29,
1969, 30 SCRA 649; Edu v. Ericta, L-32096, Oct. 24, 1970, 35 SCRA 481; Phil. Virginia Tobacco Administration v. Court of Industrial
Relations, L-32052, July 25, 1975, 65 SCRA 416) The statement therefore, that there could be discerned a constitutional objection to a
lower court applying a Presidential Decree, when it leaves no doubt that a grantee of the power of eminent domain need not prove
the necessity for the expropriation, carries its own refutation.

xxx xxx xxx

The issue of prematurity is also raised by the petitioners. They claim that since the necessity for the taking has not been previously established, the
issuance of the orders authorizing the PTA to take immediate possession of the premises, as well as the corresponding writs of possession was
premature.

50
Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the government, its agency or instrumentality, as plaintiff in an
expropriation proceedings is authorized to take immediate possession, control and disposition of the property and the improvements, with power of
demolition, notwithstanding the pendency of the issues before the court, upon deposit with the Philippine National Bank of an amount equivalent to
10% of the value of the property expropriated. The issue of immediate possession has been settled in Arce v. Genato (supra). In answer to the issue:

... whether the order of respondent Judge in an expropriation case allowing the other respondent, ... to take immediate possession of
the parcel of land sought to be condemned for the beautification of its public plaza, without a prior hearing to determine the
necessity for the exercise of the power of eminent domain, is vitiated by jurisdictional defect, ...

this Court held that:

... It is not disputed that in issuing such order, respondent Judge relied on Presidential Decree No. 42 issued on the 9th of
November, 1972. (Presidential Decree No. 42 is entitled "Authorizing the Plaintiff in Eminent Domain Proceedings to Take
Possession of the Property involved Upon Depositing the Assessed Value for Purposes of Taxation.") The question as thus posed
does not occasion any difficulty as to the answer to be given. This petition for certiorari must fail, there being no showing that
compliance with the Presidential Decree, which under the Transitory Provisions is deemed a part of the law of the land, (According
to Article XVII, Section 3 par. (2) of the Constitution: "All proclamations, orders, decrees, instructions and acts promulgated, issued,
or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even
after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent
proclamations. orders, decrees instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly") would be characterized as either an act in excess of jurisdiction or a grave abuse of
discretion. So we rule.

Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449-50, June 9, 1980), this Court held:

... condemnation or expropriation proceedings is in the nature of one that is quasi-in-rem wherein the fact that the owner of the
property is made a party is not essentially indispensable insofar was least as it conncerns is the immediate taking of possession of
the property and the preliminary determination of its value, including the amount to be deposited.

In their last argument, the petitioners claim that a consequence of the expropriation proceedings would be their forcible ejectment. They contend that
such forcible ejectment is a criminal act under Presidential Decree No. 583. This contention is not valid. Presidential Decree No. 583 prohibits the taking
cognizance or implementation of orders designed to obstruct the land reform program. It refers to the harassment of tenant- farmers who try to enforce
emancipation rights. It has nothing to do with the expropriation by the State of lands needed for public purposes. As a matter of fact, the expropriated
area does not appear in the master lists of the Ministry of Agrarian Reforms as a teranted area. The petitioners' bare allegations have not been supported
with particulars pointing to specific parcels which are subject of tenancy contracts. The petitioners may be owner-tillers or may have some form of
possessory or ownership rights but there has been no showing of their being tenants on the disputed lands.

The petitioners have failed to overcome the burden of anyone trying to strike down a statute or decree whose avowed purpose is the legislative
perception is the public good. A statute has in its favor the presumption of validity. All reasonable doubts should be resolved in favor of the
constitutionality of a law. The courts will not set aside a law as violative of the Constitution except in a clear case (People v. Vera, 65 Phil. 56). And in the
absence of factual findings or evidence to rebut the presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor of Manila, 20
SCRA 849; Morfe v. Mutuc, 22 SCRA 424).

The public respondents have stressed that the development of the 808 hectares includes plans that would give the petitioners and other displaced
persons productive employment, higher incomes, decent housing, water and electric facilities, and better living standards. Our dismissing this petition
is, in part, predicated on those assurances. The right of the PTA to proceed with the expropriation of the 282 hectares already Identified as fit for the
establishment of a resort complex to promote tourism is, therefore, sustained.

WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of merit.

SO ORDERED.

G.R. No. L-29993 October 23, 1978

LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS MACARANAS, MAXIMO
MANANGAN, FIDEL MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all Members of the Municipal Council of Malasiqui in 1959,
Malasiqui, Pangasinan, petitioners, 
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA, REMEDIOS and
ROBERTO, all surnamed FONTANILLA, and THE HONORABLE COURT OF APPEALS, respondents.

G.R. No. L-30183 October 23, 1978

51
MUNICIPALITY OF MALASIQUI, petitioner, 
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA, REMEDIOS and
ROBERTO, all surnamed FONTANILLA, and the Honorable COURT OF APPEALS, respondents.

MUÑOZ PALMA, J.:

These Petitions for review present the issue of whether or not the celebration of a town fiesta authorized by a municipal council under Sec. 2282 of the
Municipal Law as embodied in the Revised Administrative Code is a governmental or a corporate or proprietary function of the municipality.

A resolution of that issue will lead to another, viz the civil liability for damages of the Municipality of Malasiqui, and the members of the Municipal
Council of Malasiqui, province of Pangasinan, for a death which occurred during the celebration of the town fiesta on January 22, 1959, and which was
attributed to the negligence of the municipality and its council members.

The following facts are not in dispute:

On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159 whereby "it resolved to manage the 1959 Malasiqui
town fiesta celebration on January 21, 22, and 23, 1959." Resolution No. 182 was also passed creating the "1959 Malasiqui 'Town Fiesta Executive
Committee" which in turn organized a sub-committee on entertainment and stage, with Jose Macaraeg as Chairman. the council appropriated the
amount of P100.00 for the construction of 2 stages, one for the "zarzuela" and another for the cancionan Jose Macaraeg supervised the construction of the
stage and as constructed the stage for the "zarzuela" was "5-½ meters by 8 meters in size, had a wooden floor high at the rear and was supported by 24
bamboo posts — 4 in a row in front, 4 in the rear and 5 on each side — with bamboo braces." 1

The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui employees of the Manila Railroad Company in Caloocan,
Rizal. The troupe arrived in the evening of January 22 for the performance and one of the members of the group was Vicente Fontanilla. The program
started at about 10:15 o'clock that evening with some speeches, and many persons went up the stage. The "zarzuela" then began but before the dramatic
part of the play was reached, the stage collapsed and Vicente Fontanilla who was at the rear of the stage was pinned underneath. Fontanilia was taken to
tile San Carlos General Hospital where he died in the afternoon of the following day.

The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on September 11, 1959 to recover damages. Named party-
defendants were the Municipality of Malasiqui, the Municipal Council of Malasiqui and all the individual members of the Municipal Council in 1959.

Answering the complaint defendant municipality invoked inter alia the principal defense that as a legally and duly organized public corporation it
performs sovereign functions and the holding of a town fiesta was an exercise of its governmental functions from which no liability can arise to answer
for the negligence of any of its agents.

The defendant councilors inturn maintained that they merely acted as agents of the municipality in carrying out the municipal ordinance providing for
the management of the town fiesta celebration and as such they are likewise not liable for damages as the undertaking was not one for profit;
furthermore, they had exercised due care and diligence in implementing the municipal ordinance. 2

After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not the defendants exercised due diligence 'm the
construction of the stage. From his findings he arrived at the conclusion that the Executive Committee appointed by the municipal council had exercised
due diligence and care like a good father of the family in selecting a competent man to construct a stage strong enough for the occasion and that if it
collapsed that was due to forces beyond the control of the committee on entertainment, consequently, the defendants were not liable for damages for the
death of Vicente Fontanilla. The complaint was accordingly dismissed in a decision dated July 10, 1962. 3

The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31, 1968, the Court of Appeals through its Fourth Division
composed at the time of Justices Salvador V. Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the trial court's decision and ordered all the
defendants-appellees to pay jointly and severally the heirs of Vicente Fontanilla the sums of P12,000.00 by way of moral and actual damages: P1200.00
its attorney's fees; and the costs. 4

The case is now before Us on various assignments of errors all of which center on the proposition stated at the sentence of this Opinion and which We
repeat:

Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or public function or is it or a private or proprietary
character?

1. Under Philippine laws municipalities are political bodies corporate and as such ag endowed with the faculties of municipal corporations to be
exercised by and through their respective municipal governments in conformity with law, and in their proper corporate name, they may inter alia sue
and be sued, and contract and be contracted with. 5

The powers of a municipality are twofold in character public, governmental or political on the one hand, and corporate, private, or proprietary on the
other. Governmental powers are those exercised by the corporation in administering the powers of the state and promoting the public welfare and they
include the legislative, judicial public, and political Municipal powers on the other hand are exercised for the special benefit and advantage of the
community and include those which are ministerial private and corporate. 6
52
As to when a certain activity is governmental and when proprietary or private, that is generally a difficult matter to determine. The evolution of the
municipal law in American Jurisprudence, for instance, has shown that; none of the tests which have evolved and are stated in textbooks have set down
a conclusive principle or rule, so that each case will have to be determined on the basis of attending circumstances.

In McQuillin on Municipal Corporations, the rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large
insofar as it is its agent in government, and private (so-called) insofar as it is to promote local necessities and conveniences for its own community. 7

Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court of Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are two fold. In one they exercise the right springing from
sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental Their officers
and agents in such capacity, though elected or appointed by the are nevertheless public functionaries performing a public service,
and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private. proprietary
or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the
performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and not for the state or
sovereign power. (112 N. E 994-995)

In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through Justice Grant T. Trent, relying mainly on American Jurisprudence
classified certain activities of the municipality as governmental, e.g.: regulations against fire, disease, preservation of public peace, maintenance of
municipal prisons, establishment of schools, post-offices, etc. while the following are corporate or proprietary in character, viz: municipal waterwork,
slaughter houses, markets, stables, bathing establishments, wharves, ferries, and fisheries. 8 Maintenance of parks, golf courses, cemeteries and airports
among others, are also recognized as municipal or city activities of a proprietary character. 9

2. This distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an
injury to third persons.

If the injury is caused in the course of the performance of a governmental function or duty no recovery, as a rule, can be. had from the municipality
unless there is an existing statute on the matter,10 nor from its officers, so long as they performed their duties honestly and in good faith or that they did
not act wantonly and maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte, et al., 1958, a truck driver employed by the provincial government of
Ilocos Norte ran over Proceto Palafox in the course of his work at the construction of a road. The Supreme Court in affirming the trial court's dismissal of
the complaint for damages held that the province could not be made liable because its employee was in the performance of a governmental function —
the construction and maintenance of roads — and however tragic and deplorable it may be, the death of Palafox imposed on the province no duty to
pay monetary consideration. 12

With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons ex contract  13 or ex delicto. 14

Municipal corporations are subject to be sued upon contracts and in tort. ...

xxx xxx xxx

The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of its agent or
servant in the course or fine of his employment, by which another, who is free from contributory fault, is injured. Municipal
corporations under the conditions herein stated, fall within the operation of this rule of law, and are liable, accordingly, to civil
actions for damages when the requisite elements of liability co-exist. ... (Dillon on Municipal Corporations, 5th ed. Sec. 1610,1647,
cited in Mendoza v. de Leon, supra. 514)

3. Coming to the cam before Us, and applying the general tests given above, We hold that the ho of the town fiesta in 1959 by the municipality of
Malsiqui Pangasinan was an exercise of a private or proprietary function of the municipality.

Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:

Section 2282. Celebration of fiesta. — fiesta may be held in each municipality not oftener than once a year upon a date fixed by the
municipal council A fiesta s not be held upon any other date than that lawfully fixed therefor, except when, for weighty reasons,
such as typhoons, foundations, earthquakes, epidemics, or other public ties, the fiesta cannot be hold in the date fixed in which case
it may be held at a later date in the same year, by resolution of the council.

This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it does not impose upon it a duty to observe one. Holding a
fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and
not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed was not to secure
profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source
of income for the nonetheless it is private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public
service.

As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the
53
undertaking may be, is that it is governmental in essence, otherwise. the function becomes private or proprietary in character. Easily, no overnmental or
public policy of the state is involved in the celebration of a town fiesta. 15

4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable for damages for the death of Vicente Fontanilia if
that was at- tributable to the negligence of the municipality's officers, employees, or agents.

Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. . .

Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not only for one's own acts or omission, but also for
those of persons for whom one is responsible. . .

On this point, the Court of Appeals found and held that there was negligence.

The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now petitioners), that a member of the "extravaganza
troupe removed two principal braces located on the front portion of the stage and u them to hang the screen or "telon", and that when many people
went up the stage the latter collapsed. This testimony was not believed however by respondent appellate court, and rightly so. According to said
defendants, those two braces were "mother" or "principal" braces located semi-diagonally from the front ends of the stage to the front posts of the ticket
booth located at the rear of the stage and were fastened with a bamboo twine. 16 That being the case, it becomes incredible that any person in his right
mind would remove those principal braces and leave the front portion of the stage practically unsuported Moreover, if that did happen, there was
indeed negligence as there was lack of suspension over the use of the stage to prevent such an occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo braces denied having done go. The Court of
Appeals said "Amor by himself alone could not have removed the two braces which must be about ten meters long and fastened them on top of the
stags for the curtain. The stage was only five and a half meters wide. Surely, it, would be impractical and unwieldy to use a ten meter bamboo pole,
much more two poles for the stage curtain. 17

The appellate court also found that the stage was not strong enough considering that only P100.00 was appropriate for the construction of two stages
and while the floor of the "zarzuela" stage was of wooden planks, the Post and braces used were of bamboo material We likewise observe that although
the stage was described by the Petitioners as being supported by "24" posts, nevertheless there were only 4 in front, 4 at the rear, and 5 on each side.
Where were the rest?

The Court of Appeals thus concluded

The court a quo itself attributed the collapse of the stage to the great number of onlookers who mounted the stage. The municipality
and/or its agents had the necessary means within its command to prevent such an occurrence. Having filed to take the necessary
steps to maintain the safety of the stage for the use of the participants in the stage presentation prepared in connection with the
celebration of the town fiesta, particularly, in preventing non participants or spectators from mounting and accumulating on the
stage which was not constructed to meet the additional weight- the defendant-appellees were negligent and are liable for the death
of Vicente Fontanilla . (pp. 30-31, rollo, L-29993)

The findings of the respondent appellate court that the facts as presented to it establish negligence as a matter of law and that the Municipality failed to
exercise the due diligence of a good father of the family, will not disturbed by Us in the absence of a clear showing of an abuse of discretion or a gross
misapprehension of facts." 18

Liability rests on negligence which is "the want of such care as a person of ordinary prudence would exercise under the circumstances of the case." 19

Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during the town fiesta was a "donation" offered by an
association of Malasiqui employees of the Manila Railroad Co. in Caloocan, and that when the Municipality of Malasiqui accepted the donation of
services and constructed precisely a "zarzuela stage" for the purpose, the participants in the stage show had the right to expect that the Municipality
through its "Committee on entertainment and stage" would build or put up a stage or platform strong enough to sustain the weight or burden of the
performance and take the necessary measures to insure the personal safety of the participants. 20 We agree.

Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which was an action against the city for injuries sustained
from a fall when plaintiff was descending the steps of the city auditorium. The city was conducting a "Know your City Week" and one of the features
was the showing of a motion picture in the city auditorium to which the general public was invited and plaintiff Sanders was one of those who
attended. In sustaining the award for Damages in favor of plaintiff, the District Court of Appeal, Second district, California, held inter alia that the
"Know your City Week" was a "proprietary activity" and not a "governmental one" of the city, that defendant owed to plaintiff, an invitee the duty of
exercising ordinary care for her safety, and plaintiff was entitled to assume that she would not be exposed to a danger (which in this case consisted of
lack of sufficient illumination of the premises) that would come to her through a violation of defendant duty. 21

We can say that the deceased Vicente Fontanilla was similarly situated as Sander The Municipality of Malasiqui resolved to celebrate the town fiesta in
January of 1959; it created a committee in charge of the entertainment and stage; an association of Malasiqui residents responded to the call for the
festivities and volunteered to present a stage show; Vicente Fontanilla was one of the participants who like Sanders had the right to expect that he
would be exposed to danger on that occasion.

54
Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was Jose Macaraeg who constructed the stage. The
municipality acting through its municipal council appointed Macaraeg as chairman of the sub-committee on entertainment and in charge of the
construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the Municipality. Under the doctrine of respondent superior mentioned
earlier, petitioner is responsible or liable for the negligence of its agent acting within his assigned tasks. 22

... when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is, whether they are the servants or
agents of the corporation. If the corporation appoints or elects them, can control them in the discharge of their duties, can continue or remove the can
hold them responsible for the manner in which they discharge their trust, and if those duties relate to the exercise of corporate powers, and are for the
benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the maxim of respondent superior
applies." ... (Dillon on Municipal Corporations, 5th Ed., Vol IV, p. 2879)

5. The remaining question to be resolved centers on the liability of the municipal councilors who enacted the ordinance and created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarity liable with the municipality for damages under Article 27 of the Civil Code which
provides that d any person suffering ing material or moral loss because a public servant or employee refuses or neglects, without just cause to perform
his official duty may file an action for damages and other relief at the latter. 23

In their Petition for review the municipal councilors allege that the Court of Appeals erred in ruling that the holding of a town fiesta is not a
governmental function and that there was negligence on their part for not maintaining and supervising the safe use of the stage, in applying Article 27
of the Civil Code against them and in not holding Jose Macaraeg liable for the collapse of the stage and the consequent death of Vicente Fontanilla. 24

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code against the for this particular article covers a case of
nonfeasance or non-performance by a public officer of his official duty; it does not apply to a case of negligence or misfeasance in carrying out an official
duty.

If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned, it is because of a plain error committed by
respondent court which however is not invoked in petitioners' brief.

In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred Ruiz Castro, held that the Supreme Court is vested with ample
authority to review matters not assigned as errors in an appeal if it finds that their consideration and resolution are indispensable or necessary in
arriving at a just decision in a given case, and that tills is author under Sec. 7, Rule 51 of the Rules of Court. 25 We believe that this pronouncement can
well be applied in the instant case.

The Court of Appeals in its decision now under review held that the celebration of a town fiesta by the Municipality of Malasiqui was not a
governmental function. We upheld that ruling. The legal consequence thereof is that the Municipality stands on the same footing as an ordinary private
corporation with the municipal council acting as its board of directors. It is an elementary principle that a corporation has a personality, separate and
distinct from its officers, directors, or persons composing it 26 and the latter are not as a rule co-responsible in an action for damages for tort or
negligence culpa aquilla committed by the corporation's employees or agents unless there is a showing of bad faith or gross or wanton negligence on
their part. 27

xxx xxx xxx

The ordinary doctrine is that a director, merely by reason of his office, is not personally Stable for the torts of his corporation; he
Must be shown to have personally voted for or otherwise participated in them ... Fletcher Encyclopedia Corporations, Vol 3A Chapt
11, p. 207)

Officers of a corporation 'are not held liable for the negligence of the corporation merely because of their official relation to it, but
because of some wrongful or negligent act by such officer amounting to a breach of duty which resulted in an injury ... To make an
officer of a corporation liable for the negligence of the corporation there must have been upon his part such a breach of duty as
contributed to, or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act. ... (pp. 207-208, Ibid.)

xxx xxx xxx

Directors who merely employ one to give a fireworks Ambition on the corporate are not personally liable for the negligent acts of
the exhibitor. (p. 211, Ibid.)

On these people We absolve Use municipal councilors from any liability for the death of Vicente Fontanilla. The records do not show that said
petitioners directly participated in the defective construction of the "zarzuela" stage or that they personally permitted spectators to go up the platform.

6. One last point We have to resolve is on the award of attorney's fees by respondent court. Petitioner-municipality assails the award.

Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may be granted when the court deems it just and equitable. In
this case of Vicente Fontanilla, although respondent appellate court failed to state the grounds for awarding attorney's fees, the records show however
that attempts were made by plaintiffs, now private respondents, to secure an extrajudicial compensation from the municipality: that the latter gave

55
prorases and assurances of assistance but failed to comply; and it was only eight month after the incident that the bereaved family of Vicente Fontanilla
was compelled to seek relief from the courts to ventilate what was believed to be a just cause. 28

We hold, therefore, that there is no error committed in the grant of attorney's fees which after all is a matter of judicial discretion. The amount of
P1,200.00 is fair and reasonable.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the Municipality of Malasiqui is concerned (L-30183), and
We absolve the municipal councilors from liability and SET ASIDE the judgment against them (L-9993).

Without pronouncement as to costs.

SO ORDERED

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
REYES, Petitioner, vs. HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, Respondents.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1otherwise known as the "Bases Conversion and Development Act of 1992," under which
respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority
(SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent useless
and unnecessary expenditures of public funds by way of salaries and other operational expenses attached to the office . . . ." 2Paragraph (d) reads -

(d) Chairman administrator  - The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be
determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio  chairman of the Board and who shall serve as the
chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian
Employees Association in U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the
following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible
for appointment or designation in any capacity to any public officer or position during his tenure," 3because the City Mayor of Olongapo City is an elective
official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other
officers of the Government whose appointments are not otherwise provided  for by law, and those whom he may be authorized by law to appoint", 4since
it was Congress through the questioned  proviso and not the President who appointed the Mayor to the subject posts; 5and, (c) Sec. 261, par. (g), of the
Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. - During the period of forty-five days before a regular election and thirty days before a special election, (1) any
head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position,
except upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to be filled is
essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment
shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be
null and void. (2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or
employee, including those in government-owned or controlled corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the
prohibited 45-day period prior to the 11 May 1992 Elections.chanroblesvirtualawlibrarychanrobles virtual law library

The principal question is whether the  proviso  in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the
constitutional proscription against appointment or designation of elective officials to other government posts.chanroblesvirtualawlibrarychanrobles
virtual law library

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his
tenure.chanroblesvirtualawlibrarychanrobles virtual law library

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

56
The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-
time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public
officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft
League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6". . . . should be allowed to attend to his duties and
responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ."chanrobles virtual law library

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will work for his
appointment in an executive position in government, and thus neglect his constituents . . . ."  7chanrobles virtual law library

In the case before us, the subject  proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts
(as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that theproviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an
elective official may be most beneficial to the higher interest of the body politic is of no moment.chanroblesvirtualawlibrarychanrobles virtual law
library

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or
by the primary functions of his office. 8But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par.
(d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the
issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.chanroblesvirtualawlibrarychanrobles virtual law library

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the
clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. 
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive  official when allowed by law or by the
primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective  official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the
economic and planning agency; 9the Vice-President, who may be appointed Member of the Cabinet; 10and, a member of Congress who may be
designated ex officio member of the Judicial and Bar Council. 11chanrobles virtual law library

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely
sought by the drafters of the Constitution as shown in their deliberation, thus -

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective
officials, because in the case of appointive officials, there may be a law that will allow them to hold other
positions.chanroblesvirtualawlibrarychanrobles virtual law library

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should allow
them to hold some other positions. 12chanrobles virtual law library

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are
governed by the first paragraph.chanroblesvirtualawlibrarychanrobles virtual law library

It is further argued that the SBMA posts are merely ex officio  to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil
Liberties Union v. Executive Secretary, 13where we stated that the prohibition against the holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided  in Sec. 13, Art. VII, of the Constitution, does not
comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as
provided by law, without receiving any additional compensation therefor.chanroblesvirtualawlibrarychanrobles virtual law library

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio  or automatically
attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to
make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject
positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14chanrobles virtual law
library

Even in the Senate deliberations, the Senators were fully aware that subject  proviso  may contravene Sec. 7, first par., Art. IX-B, but they nevertheless
passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec.
7, first par., had they considered the SBMA posts as ex officio.chanroblesvirtualawlibrarychanrobles virtual law library

Cognizant of the complication that may arise from the way the subject proviso  was stated, Senator Rene Saguisag remarked that "if the Conference
Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative choice." 15The Senator took a view that the
constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of
Olongapo City instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that
Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio.chanroblesvirtualawlibrarychanrobles virtual
law library

57
The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the constitutionality of the
challenged  proviso since it is not put in issue in the present case. In the same vein, the argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation 16would be useless, is non
sequitur since Sec. 8 does not affect the constitutionality of the subjectproviso. In any case, the Vice-President for example, an elective official who may be
appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by
law.chanroblesvirtualawlibrarychanrobles virtual law library

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the
power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the
Mayor of Olongapo City.chanroblesvirtualawlibrarychanrobles virtual law library

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of
some office or trust," 17or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function
and discharge the duties of the same. 18In his treatise, Philippine Political 
Law, 19Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to
exercise the functions of a given office."chanrobles virtual law library

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., 20"the choice  of a
person to fill an office constitutes the essence of his appointment," 21and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 22In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court  23we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing
power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a
ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the
appointing power.chanroblesvirtualawlibrarychanrobles virtual law library

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President
to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power
of appointment. 24chanrobles virtual law library

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the
effectivity of R.A. 7227, the  proviso  nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since
only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed
power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of
appointment.chanroblesvirtualawlibrarychanrobles virtual law library

While it may be viewed that the  proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the
Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative act, the  proviso limiting his choice to one is
certainly an encroachment on his prerogative.chanroblesvirtualawlibrarychanrobles virtual law library

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first
from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.chanroblesvirtualawlibrarychanrobles virtual
law library

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.chanroblesvirtualawlibrarychanrobles virtual
law library

MR. DAVIDE. Yes, we should allow that prerogative.chanroblesvirtualawlibrarychanrobles virtual law library

MR. FOZ. Resign from his position to accept an executive position.chanroblesvirtualawlibrarychanrobles virtual law library

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited from being
appointed within the term for which he was elected, we may be depriving the government of the needed expertise of an individual. 25chanrobles virtual
law library

58
Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public
office.chanroblesvirtualawlibrarychanrobles virtual law library

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts,
he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to
another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of
losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of
office. ". . . . The effect is quite different where it is expressly  provided  by law that a person holding one office shall be ineligible to another. Such a
provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445,
218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton,
63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26"Where the constitution, or
statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. - State ex
rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27chanrobles virtual law library

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA;
hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto  officer, "one whose acts, though not those
of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where
the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a
want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect
being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep.,
323)." 28chanrobles virtual law library

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by
respondent Gordon pursuant to his appointment may be retained by him.chanroblesvirtualawlibrarychanrobles virtual law library

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questioned  proviso  as well as the
appointment of said respondent made pursuant thereto need no longer be discussed.chanroblesvirtualawlibrarychanrobles virtual law library

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of S.B. 1648, precursor of
R.A. 7227, when he articulated -

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this Authority that we are creating; (much) as I,
myself, would like to because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific,
burdensome and heavy responsibility, we cannot do it because of the constitutional prohibition which is very clear. It says: "No elective official shall be
appointed or designated to another position in any capacity." 29chanrobles virtual law library

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the
waves." 30One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or personalities . . . . Such a
Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-advised agitation for change." 31chanrobles
virtual law library

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations from the effectivity of
this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional;
consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and
VOID.chanroblesvirtualawlibrarychanrobles virtual law library

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive Officer may be
retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto  of SBMA are hereby
UPHELD.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

59