Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF
QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First
Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO,
INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.
GUTIERREZ, JR., J.:
This is a petition for review which seeks the reversal of the decision of the
Court of First Instance of Rizal, Branch XVIII 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.
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 validity of municipal ordinance as announced in the
exist independently of the Constitution as leading Salaveria decision in Ebona v. Daet, [1950]85
necessary attributes of sovereignty. Phil. 369.)

Police power is defined by Freund as 'the power of We have likewise considered the principles earlier
promoting the public welfare by restraining and stated in Case v. Board of Health supra :
regulating the use of liberty and property' (Quoted in
Political Law by Tanada and Carreon, V-11, p. 50). It is
... Under the provisions of municipal charters which are
usually exerted in order to merely regulate the use and
known as the general welfare clauses, a city, by virtue
enjoyment of property of the owner. If he is deprived of
of its police power, may adopt ordinances to the peace,
his property outright, it is not taken for public use but
safety, health, morals and the best and highest
rather to destroy in order to promote the general
interests of the municipality. It is a well-settled principle,
welfare. In police power, the owner does not recover
growing out of the nature of well-ordered and society,
from the government for injury sustained in
that every holder of property, however absolute and
consequence thereof (12 C.J. 623). It has been said
may be his title, holds it under the implied liability that
that police power is the most essential of government
his use of it shall not be injurious to the equal
powers, at times the most insistent, and always one of
enjoyment of others having an equal right to the
the least limitable of the powers of government (Ruby
enjoyment of their property, nor injurious to the rights of
vs. Provincial Board, 39 PhiL 660; Ichong vs.
the community. An property in the state is held subject
Hernandez, 1,7995, May 31, 1957). This power
to its general regulations, which are necessary to the
embraces the whole system of public regulation (U.S.
common good and general welfare. Rights of property,
vs. Linsuya Fan, 10 PhiL 104). The Supreme Court
like all other social and conventional rights, are subject
has said that police power is so far-reaching in scope
to such reasonable limitations in their enjoyment as
that it has almost become impossible to limit its sweep.
shall prevent them from being injurious, and to such
As it derives its existence from the very existence of
reasonable restraints and regulations, established by
the state itself, it does not need to be expressed or
law, as the legislature, under the governing and
defined in its scope. Being coextensive with self-
controlling power vested in them by the constitution,
preservation and survival itself, it is the most positive
may think necessary and expedient. The state, under
and active of all governmental processes, the most
the police power, is possessed with plenary power to
essential insistent and illimitable Especially it is so
deal with all matters relating to the general health,
under the modern democratic framework where the
morals, and safety of the people, so long as it does not
demands of society and nations have multiplied to
contravene any positive inhibition of the organic law
almost unimaginable proportions. The field and scope
and providing that such power is not exercised in such
of police power have become almost boundless, just as
a manner as to justify the interference of the courts to
the fields of public interest and public welfare have
prevent positive wrong and oppression.
become almost all embracing and have transcended
human foresight. Since the Courts cannot foresee the
needs and demands of public interest and welfare, they but find them not applicable to the facts of this case.
cannot delimit beforehand the extent or scope of the
police power by which and through which the state
There is no reasonable relation between the setting aside of at least six (6)
seeks to attain or achieve public interest and welfare.
percent of the total area of an private cemeteries for charity burial grounds
(Ichong vs. Hernandez, L-7995, May 31, 1957).
of deceased paupers and the promotion of health, morals, good order,
safety, or the general welfare of the people. The ordinance is actually a
The police power being the most active power of taking without compensation of a certain area from a private cemetery to
the government and the due process clause being benefit paupers who are charges of the municipal corporation. Instead of
the broadest station on governmental power, the building or maintaining a public cemetery for this purpose, the city passes
conflict between this power of government and the due the burden to private cemeteries.
process clause of the Constitution is oftentimes
inevitable.
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
It will be seen from the foregoing authorities that police Quezon City which empowers the city council to prohibit the burial of the
power is usually exercised in the form of mere dead within the center of population of the city and to provide for their burial
regulation or restriction in the use of liberty or property in a proper place subject to the provisions of general law regulating burial
for the promotion of the general welfare. It does not grounds and cemeteries. When the Local Government Code, Batas
involve the taking or confiscation of property with the Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang
exception of a few cases where there is a necessity to panlungsod may "provide for the burial of the dead in such place and in
confiscate private property in order to destroy it for the such manner as prescribed by law or ordinance" it simply authorizes the city
purpose of protecting the peace and order and of to provide its own city owned land or to buy or expropriate private properties
promoting the general welfare as for instance, the to construct public cemeteries. This has been the law and practise in the
confiscation of an illegally possessed article, such as past. It continues to the present. Expropriation, however, requires payment
opium and firearms. 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
It seems to the court that Section 9 of Ordinance No.
to buyers of subdivision lots. The necessities of public safety, health, and
6118, Series of 1964 of Quezon City is not a mere
convenience are very clear from said requirements which are intended to
police regulation but an outright confiscation. It
insure the development of communities with salubrious and wholesome
deprives a person of his private property without
environments. The beneficiaries of the regulation, in turn, are made to pay
due process of law, nay, even without
by the subdivision developer when individual lots are sold to home-owners.
compensation.

As a matter of fact, the petitioners rely solely on the general welfare clause
In sustaining the decision of the respondent court, we are not unmindful of
or on implied powers of the municipal corporation, not on any express
the heavy burden shouldered by whoever challenges the validity of duly
provision of law as statutory basis of their exercise of power. The clause
enacted legislation whether national or local As early as 1913, this Court
has always received broad and liberal interpretation but we cannot stretch it
ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
to cover this particular taking. Moreover, the questioned ordinance was
presumption in favor of validity and, more so, where the ma corporation
passed after Himlayang Pilipino, Inc. had incorporated. received necessary
asserts that the ordinance was enacted to promote the common good and
licenses and permits and commenced operating. The sequestration of six
general welfare.
percent of the cemetery cannot even be considered as having been
impliedly acknowledged by the private respondent when it accepted the
In the leading case of Ermita-Malate Hotel and Motel Operators Association permits to commence operations.
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
WHEREFORE, the petition for review is hereby DISMISSED. The decision
of the respondent court is affirmed.
Primarily what calls for a reversal of such a decision is
the a of any evidence to offset the presumption of
SO ORDERED.
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 Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova,
the elected representatives of the people cannot be JJ., concur.
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
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 95770 December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents,
MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG,
represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL
OYAO, represented by their parents MR. & MRS. ELIEZER OYAO,
JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR.
& MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA,
represented by their parents MR. & MRS. FAUSTO OSTIA, IRVIN
SEQUINO & RENAN SEQUINO, represented by their parents MR. &
MRS. LYDIO SEQUINO, NAPTHALE TUNACAO represented by his
parents MR. & MRS. MANUEL TUNACAO PRECILA PINO represented
by her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA
ALFAR, represented by their parents MR. & MRS. HERMINIGILDO
ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented
by their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR,
represented by their parents MR. & MRS. GENEROSO ALFAR,
MARTINO VILLAR, represented by their parents MR. & MRS. GENARO
VILLAR, PERGEBRIEL GUINITA & CHAREN GUINITA, represented by
their parents MR. & MRS. CESAR GUINITA, ALVIN DOOP represented
by his parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE
represented by her parents MR. & MRS. RENE LAUDE, LEOREMINDA
MONARES represented by her parents MR. & MRS. FLORENCIO
MONARES, MERCY MONTECILLO, represented by her parents MR. &
MRS. MANUEL MONTECILLO, ROBERTO TANGAHA, represented by
his parent ILUMINADA TANGAHA, EVELYN MARIA & FLORA
TANGAHA represented by their parents MR. & MRS. ALBERTO
TANGAHA, MAXIMO EBRALINAG represented by his parents MR. &
MRS. PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON &
JONATHAN CUMON, represented by their father RAFAEL CUMON,
EVIE LUMAKANG and JUAN LUMAKANG, represented by their parents
MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR SARSOZO,
& IGNA MARIE SARSOZO represented by their parents MR. & MRS.
VIRGILIO SARSOZO, MICHAEL JOSEPH & HENRY JOSEPH,
represented by parent ANNIE JOSEPH, EMERSON TABLASON &
MASTERLOU TABLASON, represented by their parents EMERLITO
TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR.
MANUEL F. BIONGCOG, Cebu District Supervisor, respondents.
G.R. No. 95887 December 29, 1995
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO,
REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD ALSADO
represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA
ALSADO, REU ALSADO and LILIBETH ALSADO, represented by their
parents MR. & MRS. ROLANDO ALSADO, SUZETTE NAPOLES,
represented by her parents ISMAILITO NAPOLES and OPHELIA
NAPOLES, JESICA CARMELOTES, represented by her parents MR. &
MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by
her parents MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO,
represented by her parents MR. & MRS. JOEL ALSADO, RAQUEL
DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. &
MRS. LEONARDO DEMOTOR, JURELL VILLA and MELONY VILLA,
represented by their parents MR. & MRS. JOVENIANO VILLA, JONELL
HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE
MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY,
JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their
parents FELIPE ANTIOLA and ANECITA ANTIOLA, MARIA
CONCEPCION CABUYAO, represented by her parents WENIFREDO
CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented
by her parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON
PALATULON, SALMERO PALATULON and ROSALINA PALATULON,
represented by their parents MARTILLANO PALATULON and
CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and
ANTONIO A. SANGUTAN, respondents.
R E SO L U T I O N
KAPUNAN, J.:
The State moves for a reconsideration of our decision dated March 1, 1993
granting private respondents' petition for certiorari and prohibition and
annulling the expulsion orders issued by the public respondents therein on
the ground that the said decision created an exemption in favor of the
members of the religious sect, the Jehovah's Witnesses, in violation of the
"Establishment Clause" of the Constitution. The Solicitor General, on behalf
of the public respondent, furthermore contends that:
The accommodation by this Honorable Court to a
demand for special treatment in favor of a minority sect
even on the basis of a claim of religious freedom may
be criticized as granting preference to the religious
beliefs of said sect in violation of the "non-
establishment guarantee" provision of the Constitution.
Surely, the decision of the Court constitutes a special
favor which immunizes religious believers such as
Jehovah's Witnesses to the law and the DECS rules
and regulations by interposing the claim that the
conduct required by law and the rules and regulation
(sic) are violative of their religious beliefs. The decision
therefore is susceptible to the very criticism that the
grant of exemption is a violation of the "non-
establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific
religious minority poses a risk of collision course with
the "equal protection of the laws" clause in respect of
the non-exempt, and, in public schools, a collision
course with the "non-establishment guarantee."
Additionally the public respondent insists that this Court adopt a "neutral
stance" by reverting to its holding in Gerona declaring the flag as being
devoid of any religious significance. He stresses that the issue here is not
curtailment of religious belief but regulation of the exercise of religious
belief. Finally, he maintains that the State's interests in the case at bench
are constitutional and legal obligations to implement the law and the
constitutional mandate to inculcate in the youth patriotism and nationalism
and to encourage their involvement in public and civic affairs, referring to
the test devised by the United States Supreme Court in U.S. vs. O'Brien.1
II
All the petitioners in the original case 2 were minor school children, and
members of the sect, Jehovah's Witnesses (assisted by their parents) who
were expelled from their classes by various public school authorities in
Cebu for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and
by Department Order No. 8, dated July 21, 1955 issued by the Department
of Education. Aimed primarily at private educational institutions which did
not observe the flag ceremony exercises, Republic Act No. 1265 penalizes
all educational institutions for failure or refusal to observe the flag ceremony
with public censure on first offense and cancellation of the recognition or
permit on second offense.
The implementing regulations issued by the Department of Education
thereafter detailed the manner of observance of the same. Immediately
pursuant to these orders, school officials in Masbate expelled children
belonging to the sect of the Jehovah's Witnesses from school for failing or
refusing to comply with the flag ceremony requirement. Sustaining these
expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of
Education3 held that:
The flag is not an image but a symbol of the Republic
of the Philippines, an emblem of national sovereignty,
of national unity and cohesion and of freedom and
liberty which it and the Constitution guarantee and
protect. Considering the complete separation of church
and state in our system of government, the flag is
utterly devoid of any religious significance. Saluting the
flag consequently does not involve any religious
ceremony. . . .
After all, the determination of whether a certain ritual is
or is not a religious ceremony must rest with the courts.
It cannot be left to a religious group or sect, much less
to a follower of said group or sect; otherwise, there
would be confusion and misunderstanding for there
might be as many interpretations and meanings to be
given to a certain ritual or ceremony as there are
religious groups or sects or followers.
Upholding religious freedom as a fundamental right deserving the "highest
priority and amplest protection among human rights," this Court,
in Ebralinag vs. Division Superintendent of Schools of Cebu4 re-examined
our over two decades-old decision in Gerona and reversed expulsion orders
made by the public respondents therein as violative of both the free
exercise of religion clause and the right of citizens to education under the
1987 Constitution.5
From our decision of March 1, 1993, the public respondents filed a motion
for reconsideration on grounds hereinabove stated. After a careful study of
the grounds adduced in the government's Motion For Reconsideration of
our original decision, however, we find no cogent reason to disturb our
earlier ruling.
The religious convictions and beliefs of the members of the religious sect,
the Jehovah's Witnesses are widely known and are equally widely
disseminated in numerous books, magazines, brochures and leaflets
distributed by their members in their house to house distribution efforts and
in many public places. Their refusal to render obeisance to any form or
symbol which smacks of idolatry is based on their sincere belief in the
biblical injunction found in Exodus 20:4,5, against worshipping forms or
idols other than God himself. The basic assumption in their universal refusal
to salute the flags of the countries in which they are found is that such a
salute constitutes an act of religious devotion forbidden by God's law. This
assumption, while "bizarre" to others is firmly anchored in several biblical
passages.6
And yet, while members of Jehovah's Witnesses, on the basis of religious
convictions, refuse to perform an act (or acts) which they consider
proscribed by the Bible, they contend that such refusal should not be taken
to indicate disrespect for the symbols of the country or evidence that they
are wanting in patriotism and nationalism. They point out that as citizens,
they have an excellent record as law abiding members of society even if
they do not demonstrate their refusal to conform to the assailed orders by
overt acts of conformity. On the contrary, they aver that they show their
respect through less demonstrative methods manifesting their allegiance,
by their simple obedience to the country's laws, 7 by not engaging in
antigovernment activities of any kind, 8 and by paying their taxes and dues to
society as self-sufficient members of the community. 9 While they refuse to
salute the flag, they are willing to stand quietly and peacefully at attention,
hands on their side, in order not to disrupt the ceremony or disturb those
who believe differently. 10
The religious beliefs, practices and convictions of the members of the sect
as a minority are bound to be seen by others as odd and different and at
divergence with the complex requirements of contemporary societies,
particularly those societies which require certain practices as manifestations
of loyalty and patriotic behavior. Against those who believe that coerced
loyalty and unity are mere shadows of patriotism, the tendency to exact "a
hydraulic insistence on conformity to majoritarian standards," 11 is seductive
to the bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes as the
responsibility "to inculcate in the minds of the youth the values of patriotism
and nationalism and to encourage their involvement in public and civic
affairs." The teaching of these values ranks at the very apex of education's
"high responsibility" of shaping up the minds of the youth in those principles
which would mold them into responsible and productive members of our
society. However, the government's interest in molding the young into
patriotic and civic spirited citizens is "not totally free from a balancing
process"12 when it intrudes into other fundamental rights such as those
specifically protected by the Free Exercise Clause, the constitutional right to
education and the unassailable interest of parents to guide the religious
upbringing of their children in accordance with the dictates of their
conscience and their sincere religious beliefs. 13 Recognizing these values,
Justice Carolina Grino-Aquino, the writer of the original opinion,
underscored that a generation of Filipinos which cuts its teeth on the Bill of
Rights would find abhorrent the idea that one may be compelled, on pain of
expulsion, to salute the flag sing the national anthem and recite the patriotic
pledge during a flag ceremony. 14 "This coercion of conscience has no place
in a free society".15
The State's contentions are therefore, unacceptable, for no less
fundamental than the right to take part is the right to stand apart. 16 In the
context of the instant case, the freedom of religion enshrined in the
Constitution should be seen as the rule, not the exception. To view the
constitutional guarantee in the manner suggested by the petitioners would
be to denigrate the status of a preferred freedom and to relegate it to the
level of an abstract principle devoid of any substance and meaning in the
lives of those for whom the protection is addressed. As to the contention
that the exemption accorded by our decision benefits a privileged few, it is
enough to re-emphasize that "the constitutional protection of religious
freedom terminated disabilities, it did not create new privileges. It gave
religious equality, not civil immunity." 17 The essence of the free exercise
clause is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma. 18 Moreover, the suggestion
implicit in the State's pleadings to the effect that the flag ceremony
requirement would be equally and evenly applied to all citizens regardless
of sect or religion and does not thereby discriminate against any particular
sect or denomination escapes the fact that "[a] regulation, neutral on its
face, may in its application, nonetheless offend the constitutional
requirement for governmental neutrality if it unduly burdens the free
exercise of religion."19
III
The ostensible interest shown by petitioners in preserving the flag as the
symbol of the nation appears to be integrally related to petitioner's
disagreement with the message conveyed by the refusal of members of the
Jehovah's Witness sect to salute the flag or participate actively in flag
ceremonies on religious grounds. 20 Where the governmental interest clearly
appears to be unrelated to the suppression of an idea, a religious doctrine
or practice or an expression or form of expression, this Court will not find it
difficult to sustain a regulation. However, regulations involving this area are
generally held against the most exacting standards, and the zone of
protection accorded by the Constitution cannot be violated, except upon a
showing of a clear and present danger of a substantive evil which the state
has a right to protect. 21 Stated differently, in the case of a regulation which
appears to abridge a right to which the fundamental law accords high
significance it is the regulation, not the act (or refusal to act), which is the
exception and which requires the court's strictest scrutiny. In the case at
bench, the government has not shown that refusal to do the acts of
conformity exacted by the assailed orders, which respondents point out
attained legislative cachet in the Administrative Code of 1987, would pose a
clear and present danger of a danger so serious and imminent, that it would
prompt legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court
held that the "State's asserted interest in preserving the fag as a symbol of
nationhood and national unity was an interest related to the suppression of
free expression . . . because the State's concern with protecting the flag's
symbolic meaning is implicated only when a person's treatment of the flag
communicates some message. 22 While the very concept of ordered liberty
precludes this Court from allowing every individual to subjectively define his
own standards on matters of conformity in which society, as a whole has
important interests, the records of the case and the long history of flag
salute cases abundantly supports the religious quality of the claims
adduced by the members of the sect Jehovah's Witnesses. Their treatment
of flag as a religious symbol is well-founded and well-documented and is
based on grounds religious principle. The message conveyed by their
refusal to participate in the flag ceremony is religious, shared by the entire
community of Jehovah's Witnesses and is intimately related to their
theocratic beliefs and convictions. The subsequent expulsion of members of
the sect on the basis of the regulations assailed in the original petitions was
therefore clearly directed against religious practice. It is obvious that the
assailed orders and memoranda would gravely endanger the free exercise
of the religious beliefs of the members of the sect and their minor children.
Furthermore, the view that the flag is not a religious but a neutral, secular
symbol expresses a majoritarian view intended to stifle the expression of
the belief that an act of saluting the flag might sometimes be — to some
individuals — so offensive as to be worth their giving up another
constitutional right — the right to education. Individuals or groups of
individuals get from a symbol the meaning they put to it. 23 Compelling
members of a religious sect to believe otherwise on the pain of denying
minor children the right to an education is a futile and unconscionable
detour towards instilling virtues of loyalty and patriotism which are best
instilled and communicated by painstaking and non-coercive methods.
Coerced loyalties, after all, only serve to inspire the opposite. The methods
utilized to impose them breed resentment and dissent. Those who attempt
to coerce uniformity of sentiment soon find out that the only path towards
achieving unity is by way of suppressing dissent. 24 In the end, such attempts
only find the "unanimity of the graveyard."25
To the extent to which members of the Jehovah's Witnesses sect
assiduously pursue their belief in the flag's religious symbolic meaning, the
State cannot, without thereby transgressing constitutionally protected
boundaries, impose the contrary view on the pretext of sustaining a policy
designed to foster the supposedly far-reaching goal of instilling patriotism
among the youth. While conceding to the idea — adverted to by the
Solicitor General — that certain methods of religious expression may be
prohibited26 to serve legitimate societal purposes, refusal to participate in
the flag ceremony hardly constitutes a form of religious expression so
offensive and noxious as to prompt legitimate State intervention. It is worth
repeating that the absence of a demonstrable danger of a kind which the
State is empowered to protect militates against the extreme disciplinary
methods undertaken by school authorities in trying to enforce regulations
designed to compel attendance in flag ceremonies. Refusal of the children
to participate in the flag salute ceremony would not interfere with or deny
the rights of other school children to do so. It bears repeating that their
absence from the ceremony hardly constitutes a danger so grave and
imminent as to warrant the state's intervention.
Finally, the respondents' insistence on the validity of the actions taken by
the government on the basis of their averment that "a government
regulation of expressive conduct is sufficiently justified if it is within the
constitutional power of the government (and) furthers an important and
substantial government interest"27 misses the whole point of the test
devised by the United States Supreme Court in O'Brien, cited by
respondent, because the Court therein was emphatic in stating that "the
government interest (should be) unrelated to the suppression of free
expression." We have already stated that the interest in regulation in the
case at bench was clearly related to the suppression of an expression
directly connected with the freedom of religion and that respondents have
not shown to our satisfaction that the restriction was prompted by a
compelling interest in public order which the state has a right to protect.
Moreover, if we were to refer (as respondents did by referring to the test
in O'Brien) to the standards devised by the US Supreme Court in
determining the validity or extent of restrictive regulations impinging on the
freedoms of the mind, then the O'Brien standard is hardly appropriate
because the standard devised in O'Brien only applies if the State's
regulation is not related to communicative conduct. If a relationship exists, a
more demanding standard is applied. 28
The responsibility of inculcating the values of patriotism, nationalism, good
citizenship, and moral uprightness is a responsibility shared by the State
with parents and other societal institutions such as religious sects and
denominations. The manner in which such values are demonstrated in a
plural society occurs in ways so variable that government cannot make
claims to the exclusivity of its methods of inculcating patriotism so all-
encompassing in scope as to leave no room for appropriate parental or
religious influences. Provided that those influences do not pose a clear and
present danger of a substantive evil to society and its institutions,
expressions of diverse beliefs, no matter how upsetting they may seem to
the majority, are the price we pay for the freedoms we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Francisco and Hermosisima, Jr., JJ., concur.
Panganiban, J., took no part.
Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs.
The Division Superintendent of Schools of Cebu), 1 March 1993, 219
SCRA 276.
Separate Opinions

MENDOZA, J., concurring:
The value of the national flag as a symbol of national unity is not in question
in this case. The issue rather is whether it is permissible to compel children
in the Nation's schools to salute the flag as a means of promoting
nationhood considering that their refusal to do so is grounded on a religious
belief.
Compulsory flag salute lies in a continuum, at one end of which is the
obligation to pay taxes and, at the other, a compulsion to bow down before
a graven image. Members of a religious sect cannot refuse to pay
taxes,1 render military service,2 submit to vaccination3 or give their children
elementary school education4 on the ground of conscience. But public
school children may not be compelled to attend religious instruction 5 or
recite prayers or join in bible reading before the opening of classes in such
schools.6
In determining the validity of compulsory flag salute, we must determine
which of these polar principles exerts a greater pull. The imposition of taxes
is justified because, unless support for the government can be exacted, the
existence of the State itself may well be endangered. The compulsory
vaccination of children is justified because unless the State can compel
compliance with vaccination program there is danger that a disease will
spread. But unlike the refusal to pay taxes or to submit to compulsory
vaccination, the refusal to salute the flag threatens no such dire
consequences to the life or health of the State. Consequently, there is no
compelling reason for resorting to compulsion or coercion to achieve the
purpose for which flag salute is instituted.
Indeed schools are not like army camps where the value of discipline
justifies requiring a salute to the flag. Schools are places where diversity
and spontaneity are valued as much as personal discipline is. They are
places for the nurturing of ideals and values, not through compulsion or
coercion but through persuasion, because thought control is a negation of
the very values which the educational system seeks to promote. Persuasion
and not persecution is the means for winning the allegiance of free men.
That is why the Constitution provides that the development of moral
character and the cultivation of civic spirit are to be pursued through
education that includes a study of the Constitution, an appreciation of the
role of national heroes in historical development, teaching the rights and
duties of citizenship and, at the option of parents and guardians, religious
instruction to be taught by instructors designated by religious authorities of
the religion to which they belong. It is noteworthy that while the Constitution
provides for the national flag, 7 it does not give the State the power to
compel a salute to the flag.
On the other hand, compelling flag salute cannot be likened to compelling
members of a religious sect to bow down before a graven image. The flag is
not an image but a secular symbol. To regard it otherwise because a
religious minority regards it so would be to put in question many regulations
that the State may constitutionally enact or measures which it may adopt to
promote civic virtues which the Constitution itself enjoins the State to
promote.8
It trivializes great principles to assimilate compulsory flag salute to a form of
command to worship strange idols not only because the flag is not a
religious symbol but also because the salute required involves nothing more
than standing at attention or placing one's right hand over the right breast
as the National Anthem is played and of raising the right hand as the
following pledge is recited:
Ako'y nanunumpang magtatapat sa watawat ng
Pilipinas at sa Republikang kanyang kinakatawan —
isang bansang nasa kalinga ng Dios buo at hindi
mahahati, na may kalayaan at katarungan para sa
lahat.
(I pledge allegiance to the flag and to the nation for
which it
stands — one nation under God indivisible, with liberty
and justice for all.)
In sum compulsory flag salute violates the Constitution not because the aim
of the exercise is doubtful but because the means employed for
accomplishing it is not permitted. Legitimate ends cannot be pursued by
methods which violate fundamental freedoms when the ends may be
achieved by rational ones.
For this reason I join in holding that compulsory flag salute is
unconstitutional.
Separate Opinions
MENDOZA, J., concurring:
The value of the national flag as a symbol of national unity is not in question
in this case. The issue rather is whether it is permissible to compel children
in the Nation's schools to salute the flag as a means of promoting
nationhood considering that their refusal to do so is grounded on a religious
belief.
Compulsory flag salute lies in a continuum, at one end of which is the
obligation to pay taxes and, at the other, a compulsion to bow down before
a graven image. Members of a religious sect cannot refuse to pay
taxes,1 render military service,2 submit to vaccination3 or give their children
elementary school education4 on the ground of conscience. But public
school children may not be compelled to attend religious instruction 5 or
recite prayers or join in bible reading before the opening of classes in such
schools.6
In determining the validity of compulsory flag salute, we must determine
which of these polar principles exerts a greater pull. The imposition of taxes
is justified because, unless support for the government can be exacted, the
existence of the State itself may well be endangered. The compulsory
vaccination of children is justified because unless the State can compel
compliance with vaccination program there is danger that a disease will
spread. But unlike the refusal to pay taxes or to submit to compulsory
vaccination, the refusal to salute the flag threatens no such dire
consequences to the life or health of the State. Consequently, there is no
compelling reason for resorting to compulsion or coercion to achieve the
purpose for which flag salute is instituted.
Indeed schools are not like army camps where the value of discipline
justifies requiring a salute to the flag. Schools are places where diversity
and spontaneity are valued as much as personal discipline is. They are
places for the nurturing of ideals and values, not through compulsion or
coercion but through persuasion, because thought control is a negation of
the very values which the educational system seeks to promote. Persuasion
and not persecution is the means for winning the allegiance of free men.
That is why the Constitution provides that the development of moral
character and the cultivation of civic spirit are to be pursued through
education that includes a study of the Constitution, an appreciation of the
role of national heroes in historical development, teaching the rights and
duties of citizenship and, at the option of parents and guardians, religious
instruction to be taught by instructors designated by religious authorities of
the religion to which they belong. It is noteworthy that while the Constitution
provides for the national flag, 7 it does not give the State the power to
compel a salute to the flag.
On the other hand, compelling flag salute cannot be likened to compelling
members of a religious sect to bow down before a graven image. The flag is
not an image but a secular symbol. To regard it otherwise because a
religious minority regards it so would be to put in question many regulations
that the State may constitutionally enact or measures which it may adopt to
promote civic virtues which the Constitution itself enjoins the State to
promote.8
It trivializes great principles to assimilate compulsory flag salute to a form of
command to worship strange idols not only because the flag is not a
religious symbol but also because the salute required involves nothing more
than standing at attention or placing one's right hand over the right breast
as the National Anthem is played and of raising the right hand as the
following pledge is recited:
Ako'y nanunumpang magtatapat sa watawat ng
Pilipinas at sa Republikang kanyang kinakatawan —
isang bansang nasa kalinga ng Dios buo at hindi
mahahati, na may kalayaan at katarungan para sa
lahat.
(I pledge allegiance to the flag and to the nation for
which it
stands — one nation under God indivisible, with liberty
and justice for all.)
In sum compulsory flag salute violates the Constitution not because the aim
of the exercise is doubtful but because the means employed for
accomplishing it is not permitted. Legitimate ends cannot be pursued by
methods which violate fundamental freedoms when the ends may be
achieved by rational ones.
For this reason I join in holding that compulsory flag salute is
unconstitutional.
Footnotes
1 "To this end," the motion states, "a
government regulation of expressive religious
conduct which debases the constitutional
mandate for citizenship training is justifiable.
As succinctly outlined in one U.S. case:
A government regulation of expressive
conduct is sufficiently justified if it is within
the Constitutional power of this government;
it furthers an important or substantial
governmental interest; if the governmental
interest is unrelated to the suppression of
free expression and if the incidental
restriction on alleged First Amendment
freedom is greater than is essential to the
furtherance of that interest. (United States v.
O'Brien, 391 U.S. 367)"
2 G.R. No. 95770, and G.R. No. 95887
March 1, 1993. 219 SCRA 256 (1993).
3 106 Phil. 2 (1959).
4 Supra, note 2.
5 Id., at 272-273 (1993).
6 See, for e.g. Daniel 3: 1-30.
7 Rollo, p. 8.
8 Id.
9 Id.
10 Rollo, p. 10.
11 State of Wisconsin v. Yoder 40 LW 4476
(1972).
12 Id.
13 Id., See also, Pierce v. Society of Sisters
268 U.S. 510, 534 (1925).
14 Ebralinag, supra, at 270.
15 Id., at 275, Cruz J. (Concurring).
16 L. TRIBE, GOD SAVE THIS
HONORABLE COURT: HOW THE CHOICE
OF SUPREME COURT JUSTICES SHAPES
OUR HISTORY, 31 (1985).
17 See supra note 15, citing Justice
Frankfurter.
18 Id.
19 Sherbert v. Verner, 374 U.S. 398 (1963).
20 For instance, the Motion
Reconsideration characterizes the practices
and observations of the sect
"bizarre," Rollo, p. 229, "seditious" Id., p. 240
and "anti-social" Id. (emphasis supplied). In
making these points, the Motion makes this
tongue-in-cheek observation. "Because of
their religious conviction that they" are not
part of this world, and being allegedly
concerned "about the adverse effect that the
world's influence can have on our children",
the Jehovah's Witnesses ask that their
children . . . be exempted from participating
in almost all school activities and social
function (sic) which, as they pointed out
below are contrary to Bible (sic)
principles. Id. The statement, "not part of this
world" was deliberately taken out of context.
Here is what the paragraph from the sect's
manual says:
As one might expect, this view of
the future also had a significant
effect on the first Christians. It
caused them to be a distinctive
people, separate from the world.
As the historian E.G. Hardy noted
in his book Christianity and the
Roman Government: "The
Christians were strangers and
pilgrims in the world around them;
their citizenship was in heaven; the
kingdom to which they looked
was not part of this world. The
consequent want of interest in
public affairs came thus from the
outset to be a noticeable feature in
Christianity. Annex "B", p. 7.
21 West Virginia v. Barnette 319 US 624, at
339 (1942).
22 U.S. v. Eichman 496 US 310, 313; 110 L
ed 2d 287 (1990).
23 Supra, note 4.
24 Id., at 640.
25 Id., at 641. "Recognizing that the right to
differ is the centerpiece of our First
Amendment . . . a government cannot
mandate by fiat a feeling of unity in its
citizens. Therefore, that very same
government cannot carve out a symbol of
unity and prescribe a set of approved
messages to be associated with that symbol
when it cannot mandate the status or feeling
the symbol purports to represent." See,
Texas v. Johnson, 491 US 397 at 400
(1989).
26 Raising the "Children of God" caper, the
Solicitor General's brief states:
How about the Children of God, also known
as Future Visions of Family which engages in
free love and sex sharing among its
members by way of obedience to the biblical
injunction "to love your neighbor and love
yourself" as interpreted by its founder, Moses
David Berg, through his writings entitled "The
Law of Love" and "Growing in Faith." Despite
the crusades of Cardinal Sin and the Aquino
government, this self-styled sex cult has gain
(sic) foothold and spread in numbers in this
country, offering free sex, cutely termed as
"flirty fishing to win people for the Lord." Will
this Honorable Court also recognize and
allow their communal free love and sex
orgies to continue unabated as part of their
religious belief and protected by their
constitutional right of freedom of religion,
thereby sideswiping the present
Government's program to prevent the spread
of venereal diseases and the dreaded AIDS
through the use of condoms?" Rollo, p. 245.
27 Supra, note 1.
28 Referring to the test devised in O'Brien
the U.S. Supreme Court in Texas v.
Johnson, supra, held: We must first
determine whether Johnson's burning of the
flag constituted expressive conduct
permitting him to invoke the First Amendment
in challenging his conviction. If his conduct
was expressive, we next decide whether the
for State's regulation is related to the
suppression of free expression. If the state's
as regulation is not related to expression, then
the less stringent standard we announced in
United States vs. O'Brien for regulations of
noncommunicative conduct controls. If it is
then we are outside O'Brien's test, and we
must ask whether this interest justifies
Johnson's conviction under a more
demanding standard. Id., at 403.
MENDOZA, J., concurring:
1 United States v. Lee, 455 U.S. 25 (1982).
2 Gillette v. United States, 401 U.S. 437
(1971); Hamilton v. Regents of the University
of California, 293 U.S. 245
(1934). Cf. People v. Lagman and People v.
Sosa, 66 Phil. 13 (1938).
3 Jacobson v. Massachusetts, 197 U.S. 11
(1904); People v. Abad Lopez, 62 Phil. 835
(1936); Lorenzo v. Director, 50 Phil. 595
(1927).
4 Wisonsin v. Yoder, 406 U.S. 205 (1972).
PHIL. CONST., Art. XIV, §2(2) provides that
"elementary education is compulsory for all
children of school age."
5 Art. XIV, §3 (3) only provides "for optional
religious instruction on public elementary and
high education is compulsory for all children
of school age."
6 Engel v. Vitale, 307 U.S. 421 (1962);
Abington School Dist. v. Schempp, 374 U.S.
203 (1963); cf. Wallace v. Jaffree, 472 U.S.
38 (1985).
7 CONST., Art. XVI, §1.
8 See Art. II, §13; Art. XIV, §3(2).

SECOND DIVISION
G.R. No. 144681             June 21, 2004
PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN
HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO
PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE
GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R.
POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO
II, petitioners,
vs.
ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S.
NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA
and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO,
MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D.
SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR,
ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T.
MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN
C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN,
ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO,
EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO,
VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J.
PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO,
MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO,
FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO,
GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO,
FEDERICO L. CASTILLO, MELITA J. CAÑEDO, SAMUEL B. BANGOY,
BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D.
FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO,
CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H.
CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L.
CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA,
DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE,
HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA,
NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI,
CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A.
SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and
YOLANDA P. UNICA, respondents.
DECISION
TINGA, J.:
This petition for review under Rule 45 of the 1997 Rules of Civil Procedure
seeks to nullify the Decision,1 dated May 16, 2000, of the Court of Appeals
in CA-G.R. SP No. 37283. The appellate court affirmed the judgment 2 dated
December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch
52, in Civil Case No. 93-66530. The trial court allowed the respondents to
take their physician’s oath and to register as duly licensed physicians.
Equally challenged is the Resolution3 promulgated on August 25, 2000 of
the Court of Appeals, denying petitioners’ Motion for Reconsideration.
The facts of this case are as follows:
The respondents are all graduates of the Fatima College of
Medicine, Valenzuela City, Metro Manila. They passed the
Physician Licensure Examination conducted in February 1993 by
the Board of Medicine (Board). Petitioner Professional Regulation
Commission (PRC) then released their names as successful
examinees in the medical licensure examination.
Shortly thereafter, the Board observed that the grades of the
seventy-nine successful examinees from Fatima College in the
two most difficult subjects in the medical licensure exam,
Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OB-
Gyne), were unusually and exceptionally high. Eleven Fatima
examinees scored 100% in Bio-Chem and ten got 100% in OB-
Gyne, another eleven got 99% in Bio-Chem, and twenty-one
scored 99% in OB-Gyne. The Board also observed that many of
those who passed from Fatima got marks of 95% or better in both
subjects, and no one got a mark lower than 90%. A comparison
of the performances of the candidates from other schools was
made. The Board observed that strangely, the unusually high
ratings were true only for Fatima College examinees. It was a
record-breaking phenomenon in the history of the Physician
Licensure Examination.
On June 7, 1993, the Board issued Resolution No. 19, withholding the
registration as physicians of all the examinees from the Fatima College of
Medicine.4 The PRC asked the National Bureau of Investigation (NBI) to
investigate whether any anomaly or irregularity marred the February 1993
Physician Licensure Examination.
Prior to the NBI investigation, the Board requested Fr. Bienvenido F.
Nebres, S.J., an expert mathematician and authority in statistics, and later
president of the Ateneo de Manila University, to conduct a statistical
analysis of the results in Bio-Chem and Ob-Gyne of the said examination.
On June 10, 1993, Fr. Nebres submitted his report. He reported that a
comparison of the scores in Bio-Chem and Ob-Gyne, of the Fatima College
examinees with those of examinees from De La Salle University and
Perpetual Help College of Medicine showed that the scores of Fatima
College examinees were not only incredibly high but unusually clustered
close to each other. He concluded that there must be some unusual reason
creating the clustering of scores in the two subjects. It must be a cause
"strong enough to eliminate the normal variations that one should expect
from the examinees [of Fatima College] in terms of talent, effort, energy,
etc."5
For its part, the NBI found that "the questionable passing rate of Fatima
examinees in the [1993] Physician Examination leads to the conclusion that
the Fatima examinees gained early access to the test questions."6
On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses,
Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and
Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity)
filed a special civil action for mandamus, with prayer for preliminary
mandatory injunction docketed as Civil Case No. 93-66530 with the
Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted
by the other respondents as intervenors.
Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993,
charging respondents with "immorality, dishonest conduct, fraud, and
deceit" in connection with the Bio-Chem and Ob-Gyne examinations. It
recommended that the test results of the Fatima examinees be nullified.
The case was docketed as Adm. Case No. 1687 by the PRC.
On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530
granting the preliminary mandatory injunction sought by the respondents. It
ordered the petitioners to administer the physician’s oath to Arlene V. De
Guzman et al., and enter their names in the rolls of the PRC.
The petitioners then filed a special civil action for certiorari with the Court of
Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP
No. 31701.
On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701,
with the dispositive portion of the Decision ordaining as follows:
WHEREFORE, this petition is GRANTED. Accordingly, the writ of
preliminary mandatory injunction issued by the lower court
against petitioners is hereby nullified and set aside.
SO ORDERED.7
Arlene V. de Guzman, et al., then elevated the foregoing Decision to this
Court in G.R. No. 112315. In our Resolution dated May 23, 1994, we
denied the petition for failure to show reversible error on the part of the
appellate court.
Meanwhile, on November 22, 1993, during the pendency of the instant
petition, the pre-trial conference in Civil Case No. 93-66530 was held. Then,
the parties, agreed to reduce the testimonies of their respective witnesses
to sworn questions-and-answers. This was without prejudice to cross-
examination by the opposing counsel.
On December 13, 1993, petitioners’ counsel failed to appear at the trial in
the mistaken belief that the trial was set for December 15. The trial court
then ruled that petitioners waived their right to cross-examine the witnesses.
On January 27, 1994, counsel for petitioners filed a Manifestation and
Motion stating the reasons for her non-appearance and praying that the
cross-examination of the witnesses for the opposing parties be reset. The
trial court denied the motion for lack of notice to adverse counsel. It also
denied the Motion for Reconsideration that followed on the ground that
adverse counsel was notified less than three (3) days prior to the hearing.
Meanwhile, to prevent the PRC and the Board from proceeding with Adm.
Case No. 1687, the respondents herein moved for the issuance of a
restraining order, which the lower court granted in its Order dated April 4,
1994.
The petitioners then filed with this Court a petition for certiorari docketed as
G.R. No. 115704, to annul the Orders of the trial court dated November 13,
1993, February 28, 1994, and April 4, 1994. We referred the petition to the
Court of Appeals where it was docketed as CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as
follows:
WHEREFORE, the present petition for certiorari with prayer for
temporary restraining order/preliminary injunction is GRANTED
and the Orders of December 13, 1993, February 7, 1994,
February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch
52, and all further proceedings taken by it in Special Civil Action
No. 93-66530 are hereby DECLARED NULL and VOID. The said
RTC-Manila is ordered to allow petitioners’ counsel to cross-
examine the respondents’ witnesses, to allow petitioners to
 present their evidence in due course of trial, and thereafter to
decide the case on the merits on the basis of the evidence of the
parties. Costs against respondents.
IT IS SO ORDERED.8
The trial was then set and notices were sent to the parties.
A day before the first hearing, on September 22, 1994, the petitioners filed
an Urgent Ex-Parte Manifestation and Motion praying for the partial
reconsideration of the appellate court’s decision in CA-G.R. SP No. 34506,
and for the outright dismissal of Civil Case No. 93-66530. The petitioners
asked for the suspension of the proceedings.
In its Order dated September 23, 1994, the trial court granted the aforesaid
motion, cancelled the scheduled hearing dates, and reset the proceedings
to October 21 and 28, 1994.
Meanwhile, on October 25, 1994, the Court of Appeals denied the partial
motion for reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed
with the Supreme Court a petition for review docketed as G.R. No. 117817,
entitled Professional Regulation Commission, et al. v. Court of Appeals, et
al.
On November 11, 1994, counsel for the petitioners failed to appear at the
trial of Civil Case No. 93-66530. Upon motion of the respondents herein, the
trial court ruled that herein petitioners waived their right to cross-examine
the herein respondents. Trial was reset to November 28, 1994.
On November 25, 1994, petitioners’ counsel moved for the inhibition of the
trial court judge for alleged partiality. On November 28, 1994, the day
the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the
trial court denied the Motion to Inhibit and declared Civil Case No. 93-
66530 deemed submitted for decision.
On December 19, 1994, the trial court handed down its judgment in Civil
Case No. 93-66530, the fallo of which reads:
WHEREFORE, judgment is rendered ordering the respondents to
allow the petitioners and intervenors (except those with asterisks
and footnotes in pages 1 & 2 of this decision) [sic], 9 to take the
physician’s oath and to register them as physicians.
It should be made clear that this decision is without prejudice to
any administrative disciplinary action which may be taken against
any of the petitioners for such causes and in the manner provided
by law and consistent with the requirements of the Constitution as
any other professionals.
No costs.
SO ORDERED.10
As a result of these developments, petitioners filed with this Court a petition
for review on certiorari docketed as G.R. No. 118437, entitled Professional
Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1)
G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of
the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be
nullified for its failure to decree the dismissal of Civil Case No. 93-66530,
and in the alternative, to set aside the decision of the trial court in Civil Case
No. 93-66530, order the trial court judge to inhibit himself, and Civil Case
No. 93-66530 be re-raffled to another branch.
On December 26, 1994, the petitioners herein filed their Notice of
Appeal11 in Civil Case No. 93-66530, thereby elevating the case to the Court
of Appeals, where it was docketed as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with
G.R. No. 117817.
On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:
WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for
being moot. The petition in G.R. No. 118437 is likewise
DISMISSED on the ground that there is a pending appeal before
the Court of Appeals. Assistant Solicitor General Amparo M.
Cabotaje-Tang is advised to be more circumspect in her dealings
with the courts as a repetition of the same or similar acts will be
dealt with accordingly.
SO ORDERED.12
While CA-G.R. SP No. 37283 was awaiting disposition by the appellate
court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93-
66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat,
Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando
T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R.
Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-
Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa,
Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino,
Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria
Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma,
Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P.
Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro,
manifested that they were no longer interested in proceeding with the case
and moved for its dismissal. A similar manifestation and motion was later
filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma
G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica,
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil
R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D.
Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas,
Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E.
Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its
decision in CA-G.R. SP No. 37283 would not apply to them.
On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283,
with the following fallo, to wit:
WHEREFORE, finding no reversible error in the decision
appealed from, We hereby AFFIRM the same and DISMISS the
instant appeal.
No pronouncement as to costs.
SO ORDERED.13
In sustaining the trial court’s decision, the appellate court ratiocinated that
the respondents complied with all the statutory requirements for admission
into the licensure examination for physicians in February 1993. They all
passed the said examination. Having fulfilled the requirements of Republic
Act No. 2382,14 they should be allowed to take their oaths as physicians and
be registered in the rolls of the PRC.
Hence, this petition raising the following issues:
I
WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE
OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE
LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT
IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS’
DECISION DECLARING THAT IF EVER THERE IS SOME
DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE
ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT
AUTOMATICALLY GRANTED TO THE SUCCESSFUL
EXAMINEES.
II
WHETHER OR NOT THE PETITION FOR MANDAMUS COULD
PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE
CASE NO. 1687, WHICH WAS PRECISELY LODGED TO
DETERMINE THE MORAL FITNESS OF RESPONDENTS TO
BECOME DOCTORS.15
To our mind, the only issue is: Did the Court of Appeals commit a reversible
error of law in sustaining the judgment of the trial court that respondents are
entitled to a writ of mandamus?
The petitioners submit that a writ of mandamus will not lie in this case. They
point out that for a writ of mandamus to issue, the applicant must have a
well-defined, clear and certain legal right to the thing demanded and it is the
duty of the respondent to perform the act required. Thus, mandamus may
be availed of only when the duty sought to be performed is a ministerial and
not a discretionary one. The petitioners argue that the appellate court’s
decision in CA-G.R. SP No. 37283 upholding the decision of the trial court
in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R.
SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the
issuance of a license to engage in the practice of medicine becomes
discretionary on the PRC if there exists some doubt that the successful
examinee has not fully met the requirements of the law. The petitioners
stress that this Court’s Resolution dated May 24, 1994 in G.R. No. 112315
held that there was no showing "that the Court of Appeals had committed
any reversible error in rendering the questioned judgment" in CA-G.R. SP
No. 31701. The petitioners point out that our Resolution in G.R. No. 112315
has long become final and executory.
Respondents counter that having passed the 1993 licensure examinations
for physicians, the petitioners have the obligation to administer to them the
oath as physicians and to issue their certificates of registration as
physicians pursuant to Section 2016 of Rep. Act No. 2382. The Court of
Appeals in CA-G.R. SP No. 37283, found that respondents complied with all
the requirements of Rep. Act No. 2382. Furthermore, respondents were
admitted by the Medical Board to the licensure examinations and had
passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the
petitioners had the obligation to administer their oaths as physicians and
register them.
Mandamus is a command issuing from a court of competent jurisdiction, in
the name of the state or the sovereign, directed to some inferior court,
tribunal, or board, or to some corporation or person requiring the
performance of a particular duty therein specified, which duty results from
the official station of the party to whom the writ is directed, or from operation
of law.17 Section 3 of Rule 6518 of the 1997 Rules of Civil Procedure outlines
two situations when a writ of mandamus may issue, when any tribunal,
corporation, board, officer or person unlawfully (1) neglects the performance
of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station; or (2) excludes another from the use and enjoyment
of a right or office to which the other is entitled.
We shall discuss the issues successively.
1. On The Existence of a Duty of the Board of Medicine To Issue
Certificates of Registration as Physicians under Rep. Act No. 2382.
For mandamus to prosper, there must be a showing that the officer, board,
or official concerned, has a clear legal duty, not involving
discretion.19 Moreover, there must be statutory authority for the performance
of the act,20 and the performance of the duty has been refused. 21 Thus, it
must be pertinently asked now: Did petitioners have the duty to administer
the Hippocratic Oath and register respondents as physicians under the
Medical Act of 1959?
As found by the Court of Appeals, on which we agree on the basis of the
records:
It bears emphasizing herein that petitioner-appellees and
intervenor-appellees have fully complied with all the statutory
requirements for admission into the licensure examinations for
physicians conducted and administered by the respondent-
appellants on February 12, 14, 20 and 21, 1993. Stress, too, must
be made of the fact that all of them successfully passed the same
examinations.22
The crucial query now is whether the Court of Appeals erred in concluding
that petitioners should allow the respondents to take their oaths as
physicians and register them, steps which would enable respondents to
practice the medical profession23 pursuant to Section 20 of the Medical Act
of 1959?
The appellate court relied on a single provision, Section 20 of Rep. Act No.
2382, in concluding that the petitioners had the ministerial obligation to
administer the Hippocratic Oath to respondents and register them as
physicians. But it is a basic rule in statutory construction that each part of a
statute should be construed in connection with every other part to produce a
harmonious whole, not confining construction to only one section. 24 The
intent or meaning of the statute should be ascertained from the statute
taken as a whole, not from an isolated part of the provision. Accordingly,
Section 20, of Rep. Act No. 2382, as amended should be read in
conjunction with the other provisions of the Act. Thus, to determine whether
the petitioners had the ministerial obligation to administer the Hippocratic
Oath to respondents and register them as physicians, recourse must be had
to the entirety of the Medical Act of 1959.
A careful reading of Section 20 of the Medical Act of 1959 discloses that the
law uses the word "shall" with respect to the issuance of certificates of
registration. Thus, the petitioners "shall sign and issue certificates of
registration to those who have satisfactorily complied with the requirements
of the Board." In statutory construction the term "shall" is a word of
command. It is given imperative meaning. Thus, when an examinee
satisfies the requirements for the grant of his physician’s license, the Board
is obliged to administer to him his oath and register him as a physician,
pursuant to Section 20 and par. (1) of Section 2225 of the Medical Act of
1959.
However, the surrounding circumstances in this case call for serious inquiry
concerning the satisfactory compliance with the Board requirements by the
respondents. The unusually high scores in the two most difficult subjects
was phenomenal, according to Fr. Nebres, the consultant of PRC on the
matter, and raised grave doubts about the integrity, if not validity, of the
tests. These doubts have to be appropriately resolved.
Under the second paragraph of Section 22, the Board is vested with the
power to conduct administrative investigations and "disapprove applications
for examination or registration," pursuant to the objectives of Rep. Act No.
2382 as outlined in Section 126 thereof. In this case, after the investigation,
the Board filed before the PRC, Adm. Case No. 1687 against the
respondents to ascertain their moral and mental fitness to practice
medicine, as required by Section 9 27 of Rep. Act No. 2382. In
its Decision dated July 1, 1997, the Board ruled:
WHEREFORE, the BOARD hereby CANCELS the respondents[’]
examination papers in the Physician Licensure Examinations
given in February 1993 and further DEBARS them from taking
any licensure examination for a period of ONE (1) YEAR from the
date of the promulgation of this DECISION. They may, if they so
desire, apply for the scheduled examinations for physicians after
the lapse of the period imposed by the BOARD.
SO ORDERED.28
Until the moral and mental fitness of the respondents could be ascertained,
according to petitioners, the Board has discretion to hold in abeyance the
administration of the Hippocratic Oath and the issuance of the certificates to
them. The writ of mandamus does not lie to compel performance of an act
which is not duly authorized.
The respondents nevertheless argue that under Section 20, the Board shall
not issue a certificate of registration only in the following instances: (1) to
any candidate who has been convicted by a court of competent jurisdiction
of any criminal offense involving moral turpitude; (2) or has been found
guilty of immoral or dishonorable conduct after the investigation by the
Board; or (3) has been declared to be of unsound mind. They aver that
none of these circumstances are present in their case.
Petitioners reject respondents’ argument. We are informed that in Board
Resolution No. 26, 29 dated July 21, 1993, the Board resolved to file charges
against the examinees from Fatima College of Medicine for "immorality,
dishonesty, fraud, and deceit in the Obstetrics-Gynecology and
Biochemistry examinations." It likewise sought to cancel the examination
results obtained by the examinees from the Fatima College.
Section 830 of Rep. Act No. 2382 prescribes, among others, that a person
who aspires to practice medicine in the Philippines, must have "satisfactorily
passed the corresponding Board Examination." Section 22, in turn, provides
that the oath may only be administered "to physicians who qualified in the
examinations." The operative word here is "satisfactorily," defined as
"sufficient to meet a condition or obligation" or "capable of dispelling doubt
or ignorance."31 Gleaned from Board Resolution No. 26, the licensing
authority apparently did not find that the respondents "satisfactorily passed"
the licensure examinations. The Board instead sought to nullify the
examination results obtained by the respondents.
2. On the Right Of The Respondents To Be Registered As Physicians
The function of mandamus is not to establish a right but to enforce one that
has been established by law. If no legal right has been violated, there can
be no application of a legal remedy, and the writ of mandamus is a legal
remedy for a legal right.32 There must be a well-defined, clear and certain
legal right to the thing demanded. 33 It is long established rule that a license
to practice medicine is a privilege or franchise granted by the government. 34
It is true that this Court has upheld the constitutional right 35 of every citizen
to select a profession or course of study subject to a fair, reasonable, and
equitable admission and academic requirements. 36 But like all rights and
freedoms guaranteed by the Charter, their exercise may be so regulated
pursuant to the police power of the State to safeguard health, morals,
peace, education, order, safety, and general welfare of the people. 37 Thus,
persons who desire to engage in the learned professions requiring scientific
or technical knowledge may be required to take an examination as a
prerequisite to engaging in their chosen careers. This regulation takes
particular pertinence in the field of medicine, to protect the public from the
potentially deadly effects of incompetence and ignorance among those who
would practice medicine. In a previous case, it may be recalled, this Court
has ordered the Board of Medical Examiners to annul both its resolution
and certificate authorizing a Spanish subject, with the degree of Licentiate
in Medicine and Surgery from the University of Barcelona, Spain, to practice
medicine in the Philippines, without first passing the examination required
by the Philippine Medical Act.38 In another case worth noting, we upheld the
power of the State to upgrade the selection of applicants into medical
schools through admission tests.39
It must be stressed, nevertheless, that the power to regulate the exercise of
a profession or pursuit of an occupation cannot be exercised by the State or
its agents in an arbitrary, despotic, or oppressive manner. A political body
that regulates the exercise of a particular privilege has the authority to both
forbid and grant such privilege in accordance with certain conditions. Such
conditions may not, however, require giving up ones constitutional rights as
a condition to acquiring the license.40 Under the view that the legislature
cannot validly bestow an arbitrary power to grant or refuse a license on a
public agency or officer, courts will generally strike down license legislation
that vests in public officials discretion to grant or refuse a license to carry on
some ordinarily lawful business, profession, or activity without prescribing
definite rules and conditions for the guidance of said officials in the exercise
of their power.41
In the present case, the aforementioned guidelines are provided for in Rep.
Act No. 2382, as amended, which prescribes the requirements for
admission to the practice of medicine, the qualifications of candidates for
the board examinations, the scope and conduct of the examinations, the
grounds for denying the issuance of a physician’s license, or revoking a
license that has been issued. Verily, to be granted the privilege to practice
medicine, the applicant must show that he possesses all the qualifications
and none of the disqualifications. Furthermore, it must appear that he has
fully complied with all the conditions and requirements imposed by the law
and the licensing authority. Should doubt taint or mar the compliance as
being less than satisfactory, then the privilege will not issue. For said
privilege is distinguishable from a matter of right, which may be demanded if
denied. Thus, without a definite showing that the aforesaid requirements
and conditions have been satisfactorily met, the courts may not grant the
writ of mandamus to secure said privilege without thwarting the legislative
will.
3. On the Ripeness of the Petition for Mandamus
Lastly, the petitioners herein contend that the Court of Appeals should have
dismissed the petition for mandamus below for being premature. They
argue that the administrative remedies had not been exhausted. The
records show that this is not the first time that petitioners have sought the
dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No.
115704, which petition we referred to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-
G.R. SP No. 34506, the appellate court denied the motion to dismiss on the
ground that the prayers for the nullification of the order of the trial court and
the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R.
No. 118437, the petitioners sought to nullify the decision of the Court of
Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal
of Civil Case No. 93-66530. In our consolidated decision, dated July 9,
1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice
Bellosillo opined that:
Indeed, the issue as to whether the Court of Appeals erred in not
ordering the dismissal of Civil Case No. 93-66530 sought to be
 resolved in the instant petition has been rendered meaningless by
an event taking place prior to the filing of this petition and denial
thereof should follow as a logical consequence. 42 There is no
longer any justiciable controversy so that any declaration thereon
would be of no practical use or value. 43 It should be recalled that
in its decision of 19 December 1994 the trial court granted the writ
of mandamus prayed for by private respondents, which decision
was received by petitioners on 20 December 1994. Three (3)
days after, or on 23 December 1994, petitioners filed the instant
petition. By then, the remedy available to them was to appeal the
decision to the Court of Appeals, which they in fact did, by filing a
notice of appeal on 26 December 1994.44
The petitioners have shown no cogent reason for us to reverse the
aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion
of administrative remedies in the instant case advance their cause any.
Section 2645 of the Medical Act of 1959 provides for the administrative and
judicial remedies that respondents herein can avail to question Resolution
No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable
judgment to the PRC; (b) should the PRC ruling still be unfavorable, to
elevate the matter on appeal to the Office of the President; and (c) should
they still be unsatisfied, to ask for a review of the case or to bring the case
to court via a special civil action of certiorari. Thus, as a rule, mandamus will
not lie when administrative remedies are still available. 46 However, the
doctrine of exhaustion of administrative remedies does not apply where, as
in this case, a pure question of law is raised. 47 On this issue, no reversible
error may, thus, be laid at the door of the appellate court in CA-G.R. SP No.
37283, when it refused to dismiss Civil Case No. 93-66530.
As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F.
Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-
Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-
Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn
S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-
Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B.
Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M.
Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E.
Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose
Ramoncito P. Navarro manifested to the Court of Appeals during the
pendency of CA-G.R. SP No. 37283, that they were no longer interested in
proceeding with the case and moved for its dismissal insofar as they were
concerned. A similar manifestation and motion were later filed by
intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G.
Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica,
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil
R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D.
Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas,
Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E.
Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and
motions, the appellate court in CA-G.R. SP No. 37283 decreed that its
ruling would not apply to them. Thus, inasmuch as the instant case is a
petition for review of the appellate court’s ruling in CA-G.R. SP No. 37283, a
decision which is inapplicable to the aforementioned respondents will
similarly not apply to them.
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B.
Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda,
Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H.
Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall
not apply pursuant to the Orders of the trial court in Civil Case No. 93-
66530, dropping their names from the suit.
Consequently, this Decision is binding only on the remaining respondents,
namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino,
Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez,
Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana
and Merly D. Sta. Ana, as well as the petitioners.
WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the
assailed decision dated May 16, 2000, of the Court of Appeals, in CA-G.R.
SP No. 37283, which affirmed the judgment dated December 19, 1994, of
the Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530,
ordering petitioners to administer the physician’s oath to herein respondents
as well as the resolution dated August 25, 2000, of the appellate court,
denying the petitioners’ motion for reconsideration, are REVERSED and
SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-
66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is
NULLIFIED AND SET ASIDE.
SO ORDERED.
Puno, Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.
Footnotes
 Rollo, pp. 44-67. Penned by Associate Justice Cancio C.
1 Paige, 213 P. 2d 441; State ex rel. Sharp v. Cross, 211 P. 2d
Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and
Renato C. Dacudao concurring.
2
 CA Rollo, pp. 140-175.
 Supra, note 1 at 408. Penned by Associate Justice Cancio C.
3
Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and
Renato C. Dacudao, concurring.
4
 Id. at 69.
5
 Id. at 96.
6
 Id. at 92.
7
 Id. at 175. Penned by Associate Justice Alfredo L. Benipayo and
concurred in by Presiding Justice Santiago M. Kapunan (later a
member of the Supreme Court and now retired) and Associate
Justice Ma. Alicia Austria-Martinez (now a member of the Second
Division of the Supreme Court).
8
 Rollo, pp. 199-200. Penned by Associate Justice Jaime M.
Lantin, with Associate Justices Angelina S. Gutierrez (now a
member of the Supreme Court), and Conchita Carpio Morales
(likewise a present member of the Supreme Court) concurring.
9
 Of the intervenors in Civil Case No. 93-66530, Achilles Peralta
and Evelyn Ramos were dropped as parties per Order of the trial
court dated August 24, 1993. The case was dismissed as to Sally
Bunagan, Reogelio Ancheta, Oscar Padua, Evelyn Grajo,
Valentino Arboleda, Carlos Bernardo, Jr., Mario Cuaresma,
Violeta Felipe, and Percival Pangilinan as per Order dated
November 25, 1994. Corazon Cruz and Samuel Bangoy were
deemed by the trial court no longer entitled to the avails of the
suit for seeking extrajudicial relief from the Board of Medicine, as
per its Order dated November 25, 1994. See CA Rollo, pp. 140-
141.
10
 CA Rollo, pp. 174-175.
11
 Id. at 205.
 G.R. Nos. 117817 and 118437, 9 July 1998, 292 SCRA 155,
12
167. Penned by Associate Justice Josue N. Bellosillo, with
Associate Justices Hilario G. Davide, Jr., Jose C. Vitug, Artemio
V. Panganiban, and Leonardo A. Quisumbing concurring.
13
 Rollo, p. 67.
14
 The Medical Act of 1959.
15
 Rollo, pp. 28-29.
16
 SEC. 20. Issuance of Certificates of Registration, grounds for
refusal of [the] same. – The Commissioner of Civil Service (now
Professional Regulation Commission) the chairman, the members
and the Secretary of the Board of Medical Examiners (now
Medical Board) shall sign and issue certificates of registration to
those who have satisfactorily complied with the requirements of
the Board. They shall not issue a certificate of registration to any
candidate who has been convicted by a court of competent
jurisdiction of any criminal offense involving moral turpitude, or
has been found guilty of immoral or dishonorable conduct after
the investigation by the Board of Medical Examiners (now
Medical Board), or has been declared to be of unsound mind. (As
amended by Rep. Act No. 4224, which took effect June 19,
1965).
 See United States v. Boutwell, 17 Wall (US) 604, 21 L. Ed 721;
17
Laizure v. Baker, 11 P. 2d 560; State ex rel Lyons v. McDowell,
57 A. 2d 94; Rader v. Burton, 122 N.E. 2d 856; Board of
Managers v. City of Wilmington, 70 S.E. 2d 833.
18
 SEC. 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful
acts of the respondent.
The petition shall also contain a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.
 See Potter v. Anderson, 392 P. 2d 650; State ex rel Jester v.
19
760; St. George v. Hanson, et al., 78 S.E. 2d 885; State ex rel
Vander v. Board of County Com’rs. et al., 135 N.E. 2d 701.
 See State ex rel Jester v. Paige, supra; Pedroso v. De Walt, et
20
al., 340 S.W. 2d 566.
  See State Board of Barber Examiners v. Walker, 192 P. 2d
21
 Lemi v. Valencia, No. L-20768, 29 November 1968, 26 SCRA
33

723; State ex rel Sharp v. Cross, supra; State ex rel Hacharedi v. 203, 210; Ocampo v. Subido, No. L-28344, 27 August 1976, 72
Baxter, 74 N.E. 2d 242, 332 US 827, 92 L. Ed 402, 68 S. Ct 209. SCRA 443, 452-453.

22
 Rollo, p. 58.  See Morse v. State Board of Medical Examiners, 122 S.W.
34

446, 448 (1909).

23
 Id. at 59.
 Const. Art. XIV, Sec. 5 (3).
35

 Sotto v. Sotto, No. 17768, 1 September 1922, 43 Phil. 688,

24

694. See also Araneta v. Concepcion and Araneta, No. L-9667,  Reyes v. Court of Appeals, G.R. Nos. 94961 and 96491, 25
36

31 July 1956, 99 Phil. 709, 712. February 1991, 194 SCRA 402, 409-410.

25
 SEC. 22. Administrative investigations. – In addition to the  Primicias v. Fugoso, No. L-1800, 27 January 1948, 80 Phil. 71,
37

functions provided for in the preceding sections, the Board of 75.

Medical Examiners (now Medical Board) shall perform the
following duties: (1) to administer oath to physicians who qualified
 Philippine Medical Association v. Board of Medical Examiners,
38
in the examinations (stress supplied); (2) to study the conditions
No. L-25135, 21 September 1968, 25 SCRA 29.
affecting the practice of medicine in all parts of the Philippines; (3)
to exercise the powers conferred upon it by this article with the
view of maintaining the ethical and professional standards of the  Tablarin v. Judge Angelina S. Gutierrez, No. L-78164, 31 July
39

medical profession; (4) to subpoena or subpoena duces tecum 1987, 152 SCRA 730, 743.
witnesses for all purposes required in the discharge of its duties;
and (5) to promulgate, with the approval of the Commissioner of
 See Manchester Press Club v. State Liquor Commission, 200
40
Civil Service (now Professional Regulation Commission), such
A. 407, 116 ALR 1093.
rules and regulations as it may deem necessary for the
performance of its duties in harmony with the provisions of this
Act and necessary for the proper practice of medicine in the  See Yick Wo v. Hopkins, 118 US 356, 30 L.Ed. 220, 6 S. Ct.
41

Philippines. 1064; City Council of Montgomery v. West, 42 So. 1000; In Re

Porterfield, 168 P. 2d 706, 167 ALR 675; Anderson v. City of
Wellington, 19 P. 719; State v. Harris, 6 S.E. 2d 854.
Administrative investigations shall be conducted by at
least two members of the Medical Board with one legal
officer sitting during the investigation, otherwise the  Citing Bautista v. Board of Energy, G.R. No. 75016, 13 January
42

proceedings shall be considered void. The existing 1989, 169 SCRA 167.
rules of evidence shall be observed during all
administrative investigations. The Board may
disapprove applications for examination or registration,  Citing Gancho-on v. Secretary of Labor and Employment, G.R.
43

reprimand erring physicians, or suspend or revoke No. 108033, 14 April 1997, 271 SCRA 204, 208.
registration certificates, if the respondents are found
guilty after due investigation. (As amended by Rep. Act  Rollo, pp. 340-341.
44

No. 4224, effective June 19, 1965.)

26
 SEC. 1. Objectives. – This Act provides for and shall govern (a)
the standardization and regulation of medical education; (b) the
examination for registration of physicians; and (c) the supervision,
control, and regulation of the practice of medicine in the
Philippines.
 SEC. 9. Candidates for board examinations. – Candidates for
27
Board examinations shall have the following qualifications:
45
 SEC. 26. Appeal from judgment. – The decision of the Board of
Medical Examiners (now Medical Board) shall automatically
become final thirty days after the date of its promulgation unless
the respondent, during the same period, has appealed to the
Commissioner of the Civil Service (now Professional Regulation
Commission) and later to the Office of the President of the
Philippines. If the final decision is not satisfactory, the respondent
may ask for a review of the case, or may file in court a petition for
certiorari.

(1) He shall be a citizen of the Philippines or a citizen of  Ang Tuan Kai & Co. v. Import Control Commission, No. L-4427,
46

any foreign country who has submitted competent and
conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his
country’s existing laws permit citizens of the Philippines
21 April 1952, 91 Phil. 143, 145; Peralta v. Salcedo, etc., No. L-
10771, 30 April 1957, 101 Phil. 452, 454.
 See Madrigal v. Lecaroz, G.R. No. 46218, 23 October 1990,
47

to practice medicine under the same rules and 191 SCRA 20, 26.
regulations governing citizens thereof;

(2) He shall be of good moral character;

(3) He shall be of sound mind;

(4) He shall not have been convicted by a court of

competent jurisdiction of any offense involving moral
turpitude;

(5) He shall be a holder of the Degree of Doctor of

Medicine or its equivalent conferred by a college of
medicine duly recognized by the Government; and

(6) He must have completed a calendar year of

technical training known as internship the nature of
which shall be prescribed by the Board of Medical
Education undertaken in hospitals and health centers
approved by the Board. (As amended by Rep. Act No.
5946, approved June 21, 1969).

28
 Rollo, p. 419.

29
 Id. at 99.

30
 SEC. 8. Prerequisite to the practice of medicine. – No person
shall engage in the practice of medicine in the Philippines unless
he is at least twenty-one years of age, has satisfactorily passed
the corresponding Board Examination, and is a holder of a valid
Certificate of Registration duly issued to him by the Board of
Medical Examiners (now Medical Board).

31
 Webster’s New International Dictionary 2017 (1993 ed.).

 See Fosdick v. Terry, 117 So. 2d 397, 398; Puritan Coal Corp.

32

v. Davis, 42 S.E. 2d 807, 813.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 156052             March 7, 2007
SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO,
and BONIFACIO S. TUMBOKON, Petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of
Manila, Respondent.
DECISION
CORONA, J.:
In this original petition for mandamus,1 petitioners Social Justice Society
(SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon seek to
compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to
enforce Ordinance No. 8027.
The antecedents are as follows.
On November 20, 2001, the Sangguniang Panlungsod of Manila enacted
Ordinance No. 8027.2 Respondent mayor approved the ordinance on
November 28, 2001.3 It became effective on December 28, 2001, after its
publication.4
Ordinance No. 8027 was enacted pursuant to the police power delegated to
local government units, a principle described as the power inherent in a
government to enact laws, within constitutional limits, to promote the order,
safety, health, morals and general welfare of the society. 5 This is evident
from Sections 1 and 3 thereof which state:
SECTION 1. For the purpose of promoting sound urban planning and
ensuring health, public safety, and general welfare of the residents of
Pandacan and Sta. Ana as well as its adjoining areas, the land use of
[those] portions of land bounded by the Pasig River in the north, PNR
Railroad Track in the east, Beata St. in the south, Palumpong St. in the
southwest, and Estero de Pancacan in the west[,] PNR Railroad in the
northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the
southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta.
Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F.
Manalo Street, are hereby reclassified from Industrial II to Commercial I.
The City of Manila and the DOE, on the other hand, committed to do the
following:
Section 1. - The City Mayor shall endorse to the City Council this MOU for
its appropriate action with the view of implementing the spirit and intent
thereof.
Section 2. - The City Mayor and the DOE shall, consistent with the spirit
and intent of this MOU, enable the OIL COMPANIES to continuously
operate in compliance with legal requirements, within the limited area
resulting from the joint operations and the scale down program.
Section 3. - The DOE and the City Mayor shall monitor the OIL
COMPANIES’ compliance with the provisions of this MOU.
Section 4. - The CITY OF MANILA and the national government shall
protect the safety buffer and green zones and shall exert all efforts at
preventing future occupation or encroachment into these areas by illegal
settlers and other unauthorized parties.
The Sangguniang Panlungsod ratified the MOU in Resolution No. 97. 7 In
the same resolution, the Sanggunian declared that the MOU was effective
only for a period of six months starting July 25, 2002. 8 Thereafter, on
January 30, 2003, the Sanggunian adopted Resolution No. 139 extending
the validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor
Atienza to issue special business permits to the oil companies. Resolution
No. 13, s. 2003 also called for a reassessment of the ordinance.10
Meanwhile, petitioners filed this original action for mandamus on December
4, 2002 praying that Mayor Atienza be compelled to enforce Ordinance No.
8027 and order the immediate removal of the terminals of the oil
companies.11
The issues raised by petitioners are as follows:
1. whether respondent has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan
Terminals, and
2. whether the June 26, 2002 MOU and the resolutions ratifying it
can amend or repeal Ordinance No. 8027. 12
Petitioners contend that respondent has the mandatory legal duty, under
Section 455 (b) (2) of the Local Government Code (RA 7160), 13 to enforce
Ordinance No. 8027 and order the removal of the Pandacan Terminals of
the oil companies. Instead, he has allowed them to stay.

xxx xxx xxx Respondent’s defense is that Ordinance No. 8027 has been superseded by
the MOU and the resolutions. 14 However, he also confusingly argues that
the ordinance and MOU are not inconsistent with each other and that the
SEC. 3. Owners or operators of industries and other businesses, the
latter has not amended the former. He insists that the ordinance remains
operation of which are no longer permitted under Section 1 hereof, are
valid and in full force and effect and that the MOU did not in any way
hereby given a period of six (6) months from the date of effectivity of this
prevent him from enforcing and implementing it. He maintains that the MOU
Ordinance within which to cease and desist from the operation of
should be considered as a mere guideline for its full implementation. 15
businesses which are hereby in consequence, disallowed.

Under Rule 65, Section 316 of the Rules of Court, a petition

Ordinance No. 8027 reclassified the area described therein from industrial
for mandamus may be filed when any tribunal, corporation, board, officer or
to commercial and directed the owners and operators of businesses
person unlawfully neglects the performance of an act which the law
disallowed under Section 1 to cease and desist from operating their
specifically enjoins as a duty resulting from an office, trust or
businesses within six months from the date of effectivity of the ordinance.
station. Mandamus is an extraordinary writ that is employed to compel the
Among the businesses situated in the area are the so-called "Pandacan
performance, when refused, of a ministerial duty that is already imposed on
Terminals" of the oil companies Caltex (Philippines), Inc., Petron
the respondent and there is no other plain, speedy and adequate remedy in
Corporation and Pilipinas Shell Petroleum Corporation.
the ordinary course of law. The petitioner should have a well-defined, clear
and certain legal right to the performance of the act and it must be the clear
However, on June 26, 2002, the City of Manila and the Department of and imperative duty of respondent to do the act required to be done. 17
Energy (DOE) entered into a memorandum of understanding (MOU) 6 with
the oil companies in which they agreed that "the scaling down of the
Mandamus will not issue to enforce a right, or to compel compliance with a
Pandacan Terminals [was] the most viable and practicable option." Under
duty, which is questionable or over which a substantial doubt exists. The
the MOU, the oil companies agreed to perform the following:
principal function of the writ of mandamus is to command and to expedite,
not to inquire and to adjudicate; thus, it is neither the office nor the aim of
Section 1. - Consistent with the objectives stated above, the OIL the writ to secure a legal right but to implement that which is already
COMPANIES shall, upon signing of this MOU, undertake a program to established. Unless the right to the relief sought is
scale down the Pandacan Terminals which shall include, among others, the unclouded, mandamus will not issue.18
immediate removal/decommissioning process of TWENTY EIGHT (28)
tanks starting with the LPG spheres and the commencing of works for the
To support the assertion that petitioners have a clear legal right to the
creation of safety buffer and green zones surrounding the Pandacan
enforcement of the ordinance, petitioner SJS states that it is a political party
Terminals. xxx
registered with the Commission on Elections and has its offices in Manila. It
claims to have many members who are residents of Manila. The other
Section 2. – Consistent with the scale-down program mentioned above, the petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.
OIL COMPANIES shall establish joint operations and management,
including the operation of common, integrated and/or shared facilities,
We need not belabor this point. We have ruled in previous cases that when
consistent with international and domestic technical, safety, environmental
a mandamus proceeding concerns a public right and its object is to compel
and economic considerations and standards. Consequently, the joint
a public duty, the people who are interested in the execution of the laws are
operations of the OIL COMPANIES in the Pandacan Terminals shall be
regarded as the real parties in interest and they need not show any specific
limited to the common and integrated areas/facilities. A separate agreement
interest.19 Besides, as residents of Manila, petitioners have a direct interest
covering the commercial and operational terms and conditions of the joint
in the enforcement of the city’s ordinances. Respondent never questioned
operations, shall be entered into by the OIL COMPANIES.
the right of petitioners to institute this proceeding.

Section 3. - The development and maintenance of the safety and green
On the other hand, the Local Government Code imposes upon respondent
buffer zones mentioned therein, which shall be taken from the properties of
the duty, as city mayor, to "enforce all laws and ordinances relative to the
the OIL COMPANIES and not from the surrounding communities, shall be
governance of the city.">20 One of these is Ordinance No. 8027. As the chief
the sole responsibility of the OIL COMPANIES.
executive of the city, he has the duty to enforce Ordinance No. 8027 as long
as it has not been repealed by the Sanggunian or annulled by the
courts.21 He has no other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason
for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to

question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared
unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.23

The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by

the Sanggunian have made the respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also
connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of

the Sanggunian can amend or repeal Ordinance No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions

which ratified it and made it binding on the City of Manila expressly gave it full force and effect  only until April 30, 2003. Thus, at

present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September

11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the
residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan

Terminals. No reason exists why such a protective measure should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed
to immediately enforce Ordinance No. 8027.

SO ORDERED.

RENATO C. CORONA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice
Chairperson

ANGELINA SANDOVAL- (On official leave)

GUTIERREZ ADOLFO S. AZCUNA
Associate Justice Asscociate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATIO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 111097 July 20, 1994
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE
ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE
AMUSEMENT AND GAMING CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a
casino in Cagayan de Oro City. Civic organizations angrily denounced the
project. The religious elements echoed the objection and so did the
women's groups and the youth. Demonstrations were led by the mayor and
the city legislators. The media trumpeted the protest, describing the casino
as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in
several cities, PAGCOR decided to expand its operations to Cagayan de
Oro City. To this end, it leased a portion of a building belonging to Pryce
Properties Corporation, Inc., one of the herein private respondents,
renovated and equipped the same, and prepared to inaugurate its casino
there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was
swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353
reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF
BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR
THE 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
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;
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
of 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, gambli
ng and other
prohibited
games of
chance,
fraudulent
devices and
ways to obtain
money or
property, drug
addiction,
maintenance
of drug dens,
drug pushing,
juvenile
delinquency,
the printing,
distribution or
exhibition of
obscene or
pornographic
materials or
publications,
and such other
activities
inimical to the
welfare and
morals of the
inhabitants of
the city;
This section also authorizes the local government units to regulate
properties and businesses within their territorial limits in the interest of the
general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang
Panlungsod may prohibit the operation of casinos because they involve
games of chance, which are detrimental to the people. Gambling is not
allowed by general law and even by the Constitution itself. The legislative
power conferred upon local government units may be exercised over all
kinds of gambling and not only over "illegal gambling" as the respondents
erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has the
authority to prohibit them within its territory pursuant to the authority
entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local
autonomy as mandated in Article II, Section 25, and Article X of the
Constitution, as well as various other provisions therein seeking to
strengthen the character of the nation. In giving the local government units
the power to prevent or suppress gambling and other social problems, the
Local Government Code has recognized the competence of such
communities to determine and adopt the measures best expected to
promote the general welfare of their inhabitants in line with the policies of
the State.
The petitioners also stress that when the Code expressly authorized the
local government units to prevent and suppress gambling and other
prohibited games of chance, like craps, baccarat, blackjack and roulette, it
meant all forms of gambling without distinction. Ubi lex non distinguit, nec
nos distinguere debemos. 6 Otherwise, it would have expressly excluded
from the scope of their power casinos and other forms of gambling
authorized by special law, as it could have easily done. The fact that it did
not do so simply means that the local government units are permitted to
prohibit all kinds of gambling within their territories, including the operation
of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect
of modifying the charter of the PAGCOR. The Code is not only a later
enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the PAGCOR
under the decree are expressly discontinued by the Code insofar as they do
not conform to its philosophy and provisions, pursuant to Par. (f) of its
repealing clause reading as follows:
(f) All general and special laws, acts, city charters,
decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof
which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the
Local Government Code on P.D. 1869, the doubt must be resolved in favor
of the petitioners, in accordance with the direction in the Code calling for its
liberal interpretation in favor of the local government units. Section 5 of the
Code specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation
of the provisions of this Code, the following rules shall
apply:
(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:
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 "modified pro tanto," they are actually
arguing that it is already dead, repealed and useless for all intents and
purposes because the Code has shorn PAGCOR of all power to centralize
and regulate casinos. Strictly speaking, its operations may now be not only
prohibited 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.
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
operation of a casino and Ordinance No. 3375-93 prohibiting the operation
of casinos. For all their praiseworthy motives, these ordinances are contrary
to P.D. 1869 and the public policy announced therein and are
therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the
respondent Court of Appeals is AFFIRMED, with costs against the
petitioners. It is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo,
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
 
Separate Opinions
PADILLA, J., concurring:
I concur with the majority holding that the city ordinances in question cannot
modify much less repeal PAGCOR's general authority to establish and
maintain gambling casinos anywhere in the Philippines under Presidential
Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR),
197 SCRA 52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It
is, therefore, the political departments of government,
namely, the legislative and the executive that should
decide on what government should do in the entire
area of gambling, and assume full responsibility to
the people for such policy." (Emphasis supplied)
However, despite the legality of the opening and operation of a casino in
Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view
that gambling in any form runs counter to the government's own efforts to
re-establish and resurrect the Filipino moral character which is generally
perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to
carefully weigh the advantages and disadvantages of setting up more
gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is
not enough reason for setting up more gambling casinos because,
undoubtedly, this will not help improve, but will cause a further deterioration
in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always
moral and 2) the ends do not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And
yet, legalization of the former will not render it any less reprehensible even if
substantial revenue for the government can be realized from it. The same is
true of gambling.
In the present case, it is my considered view that the national government
(through PAGCOR) should re-examine and re-evaluate its decision
of imposing the gambling casino on the residents of Cagayan de Oro City;
for it is abundantly clear that public opinion in the city is very much against
it, and again the question must be seriously deliberated: will the prospects
of revenue to be realized from the casino outweigh the further destruction of
the Filipino sense of values?
 
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my
views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties
Corporation (PRYCE) directly filed with the Court of Appeals its so-called
petition for prohibition, thereby invoking the said court's original jurisdiction
to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,
however, the principal cause of action therein is one for declaratory relief: to
declare null and unconstitutional — for, inter alia, having been enacted
without or in excess of jurisdiction, for impairing the obligation of contracts,
and for being inconsistent with public policy — the challenged ordinances
enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro.
The intervention therein of public respondent Philippine Amusement and
Gaming Corporation (PAGCOR) further underscores the "declaratory relief"
nature of the action. PAGCOR assails the ordinances for being contrary to
the non-impairment and equal protection clauses of the Constitution,
violative of the Local Government Code, and against the State's national
policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does
not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this
Court's established policy relative to the hierarchy of courts, the petition
should have been filed with the Regional Trial Court of Cagayan de Oro
City. I find no special or compelling reason why it was not filed with the said
court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the
Court of Appeals may have been impelled by tactical considerations. A
dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989])
and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma,
this Court stated:
A last word. This court's original jurisdiction to issue
writs of certiorari (as well as
prohibition, mandamus, quo warranto, habeas
corpus and injunction) is not exclusive. It is shared by
this Court with Regional Trial Courts (formerly Courts of
First Instance), which may issue the writ, enforceable in
any part of their respective regions. It is also shared by
this court, and by the Regional Trial Court, with the
Court of Appeals (formerly, Intermediate Appellate
Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was
restricted by those "in aid of its appellate jurisdiction."
This concurrence of jurisdiction is not, however, to be
taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is
determinative of the revenue of appeals, and should
also serve as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there
are special and important reasons therefor, clearly and
specifically set out in the petition. This is established
policy. It is a policy that is necessary to prevent
inordinate demands upon the Court's time and attention
which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of
the restriction of the jurisdiction of the Court of Appeals
in this regard, supra — resulting from the deletion of
the qualifying phrase, "in aid of its appellate jurisdiction"
— was evidently intended precisely to relieve this
Court pro tanto of the burden of dealing with
applications for extraordinary writs which, but for the
expansion of the Appellate Court's corresponding
jurisdiction, would have had to be filed with it. (citations
omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in
this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of
litigants who initiate recourses before us, to disregard
the hierarchy of courts in our judicial system by seeking
relief directly from this Court despite the fact that the
same is available in the lower courts in the exercise of
their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice
must be stopped, not only because of the imposition
upon the previous time of this Court but also because
of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often
has to be remanded or referred to the lower court as
the proper forum under the rules of procedure, or as
better equipped to resolve the issues since this Court is
not a trier of facts. We, therefore, reiterate the judicial
policy that this Court will not entertain direct resort to it
unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and
calling for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An
Ordinance Prohibiting the Issuance of Business Permit and Canceling
Existing Business Permit To Any Establishment for the Using and Allowing
to be Used Its Premises or Portion Thereof for the Operation of Casino,"
and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
Operation of Casino and Providing Penalty for Violation Therefor." They
were enacted to implement Resolution No. 2295 entitled, "Resolution
Declaring As a Matter of Policy to Prohibit and/or Not to Allow the
Establishment of the Gambling Casino in the City of Cagayan de Oro,"
which was promulgated on 19 November 1990 — nearly two years before
PRYCE and PAGCOR entered into a contract of lease under which the
latter leased a portion of the former's Pryce Plaza Hotel for the operation of
a gambling casino — which resolution was vigorously reiterated in
Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang
Panglungsod's express powers conferred by Section 458, paragraph (a),
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government
Code, and pursuant to its implied power under Section 16 thereof (the
general welfare clause) which reads:
Sec. 16. General Welfare. — Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a
balanced ecology, encourage and support the
development of appropriate and self-reliant scientific
and technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the comfort
and convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments
(such as the City of Cagayan de Oro) the above powers and functions, the
Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as
PAGCOR's general authority to establish and maintain gambling casinos
anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No.
1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional primarily because it is in contravention to P.D. No. 1869
is unwarranted. A contravention of a law is not necessarily a contravention
of the constitution. In any case, the ordinances can still stand even if they
be conceded as offending P.D. No. 1869. They can be reconciled, which is
not impossible to do. So reconciled, the ordinances should be construed as
not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of
Cagayan de Oro City are, for obvious reasons, strongly against the opening
of the gambling casino in their city. Gambling, even if legalized, would be
inimical to the general welfare of the inhabitants of the City, or of any place
for that matter. The PAGCOR, as a government-owned corporation, must
consider the valid concerns of the people of the City of Cagayan de Oro and
should not impose its will upon them in an arbitrary, if not despotic, manner.
# Separate Opinions
PADILLA, J., concurring:
I concur with the majority holding that the city ordinances in question cannot
modify much less repeal PAGCOR's general authority to establish and
maintain gambling casinos anywhere in the Philippines under Presidential
Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation
(PAGCOR), 197 SCRA 52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It
is, therefore, the political departments of government,
namely, the legislative and the executive that should
decide on what government should do in the entire
area of gambling, and assume full responsibility to the
people for such policy. (emphasis supplied)
However, despite the legality of the opening and operation of a casino in
Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view
that gambling in any form runs counter to the government's own efforts to
re-establish and resurrect the Filipino moral character which is generally
perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to
carefully weigh the advantages and disadvantages of setting up more
gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is
not enough reason for setting up more gambling casinos because,
undoubtedly, this will not help improve, but will cause a further deterioration
in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always
moral and 2) the ends do not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And
yet, legalization of the former will not render it any less reprehensible even if
substantial revenue for the government can be realized from it. The same is
true of gambling.
In the present case, it is my considered view that the national government
(through PAGCOR) should re-examine and re-evaluate its decision
of imposing the gambling casino on the residents of Cagayan de Oro City;
for it is abundantly clear that public opinion in the city is very much against
it, and again the question must be seriously deliberated: will the prospects
of revenue to be realized from the casino outweigh the further destruction of
the Filipino sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my
views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties
Corporation (PRYCE) directly filed with the Court of Appeals its so-called
petition for prohibition, thereby invoking the said court's original jurisdiction
to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,
however, the principal cause of action therein is one for declaratory relief: to
declare null and unconstitutional — for, inter alia, having been enacted
without or in excess of jurisdiction, for impairing the obligation of contracts,
and for being inconsistent with public policy — the challenged ordinances
enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro.
The intervention therein of public respondent Philippine Amusement and
Gaming Corporation (PAGCOR) further underscores the "declaratory relief"
nature of the action. PAGCOR assails the ordinances for being contrary to
the non-impairment and equal protection clauses of the Constitution,
violative of the Local Government Code, and against the State's national
policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does
not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this
Court's established policy relative to the hierarchy of courts, the petition
should have been filed with the Regional Trial Court of Cagayan de Oro
City. I find no special or compelling reason why it was not filed with the said
court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the
Court of Appeals may have been impelled by tactical considerations. A
dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989])
and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma,
this Court stated:
A last word. This court's original jurisdiction to issue
writs of certiorari (as well as
prohibition, mandamus, quo warranto, habeas
corpus and injunction) is not exclusive. It is shared by
this Court with Regional Trial Courts (formerly Courts of
First Instance), which may issue the writ, enforceable in
any part of their respective regions. It is also shared by
this court, and by the Regional Trial Court, with the
Court of Appeals (formerly, Intermediate Appellate
Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was
restricted by those "in aid of its appellate jurisdiction."
This concurrence of jurisdiction is not, however, to be
taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is
determinative of the revenue of appeals, and should
also serve as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there
are special and important reasons therefor, clearly and
specifically set out in the petition. This is established
policy. It is a policy that is necessary to prevent
inordinate demands upon the Court's time and attention
which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of
the restriction of the jurisdiction of the Court of Appeals
in this regard, supra — resulting from the deletion of
the qualifying phrase, "in aid of its appellate jurisdiction"
— was evidently intended precisely to relieve this
Court pro tanto of the burden of dealing with
applications for extraordinary writs which, but for the
expansion of the Appellate Court's corresponding
jurisdiction, would have had to be filed with it. (citations
omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in
this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of
litigants who initiate recourses before us, to disregard
the hierarchy of courts in our judicial system by seeking
relief directly from this Court despite the fact that the
same is available in the lower courts in the exercise of
their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice
must be stopped, not only because of the imposition
upon the previous time of this Court but also because
of the inevitable and resultant delay, intended or
otherwise, in the adjudication of the case which often
has to be remanded or referred to the lower court as
the proper forum under the rules of procedure, or as
better equipped to resolve the issues since this Court is
not a trier of facts. We, therefore, reiterate the judicial
policy that this Court will not entertain direct resort to it
unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and
calling for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An
Ordinance Prohibiting the Issuance of Business Permit and Canceling
Existing Business Permit To Any Establishment for the Using and Allowing
to be Used Its Premises or Portion Thereof for the Operation of Casino,"
and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
Operation of Casino and Providing Penalty for Violation Therefor." They
were enacted to implement Resolution No. 2295 entitled, "Resolution
Declaring As a Matter of Policy to Prohibit and/or Not to Allow the
Establishment of the Gambling Casino in the City of Cagayan de Oro,"
which was promulgated on 19 November 1990 — nearly two years before
PRYCE and PAGCOR entered into a contract of lease under which the
latter leased a portion of the former's Pryce Plaza Hotel for the operation of
a gambling casino — which resolution was vigorously reiterated in
Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang
Panglungsod's express powers conferred by Section 458, paragraph (a),
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government
Code, and pursuant to its implied power under Section 16 thereof (the
general welfare clause) which reads:
Sec. 16. General Welfare. — Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a
balanced ecology, encourage and support the
development of appropriate and self-reliant scientific
and technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the comfort
and convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments
(such as the City of Cagayan de Oro) the above powers and functions, the
Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as
PAGCOR's general authority to establish and maintain gambling casinos
anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No.
1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional primarily because it is in contravention to P.D. No. 1869
is unwarranted. A contravention of a law is not necessarily a contravention
of the constitution. In any case, the ordinances can still stand even if they
be conceded as offending P.D. No. 1869. They can be reconciled, which is
not impossible to do. So reconciled, the ordinances should be construed as
not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of
Cagayan de Oro City are, for obvious reasons, strongly against the opening
of the gambling casino in their city. Gambling, even if legalized, would be
inimical to the general welfare of the inhabitants of the City, or of any place
for that matter. The PAGCOR, as a government-owned corporation, must
consider the valid concerns of the people of the City of Cagayan de Oro and
should not impose its will upon them in an arbitrary, if not despotic, manner.
#Footnotes
1 Rollo, pp. 64-94.
2 Ibid., pp. 53-62.
3 Pryce was dropped as private respondent in the
resolution of the Court dated June 13, 1994.
4 197 SCRA 53.
5 Sec. 458, [2(vi-xv)]; [3(ii-vii)]; [4(i-ix)], Local
Government Code, 1991.

6 Where the law does not distinguish, neither ought we

to distinguish.

7 39 Phil. 102.

8 Garcia v. Executive Secretary, 204 SCRA 516,

quoting Cooley, Constitutional Limitations, 8th ed., 379-
380.

9 Tatel v. Municipality of Virac, 207 SCRA 157; Solicitor

General v. Metropolitan Manila Authority, 204 SCRA
837; De la Cruz v. Paras, 123 SCRA 569; U.S. v.
Abandan, 24 Phil. 165.

10 44 Phil. 138.

11 Clinton v. Ceder Rapids, etc. Railroad Co., 24 Iowa

455.

12 Art. X, Sec. 5, Constitution.

13 Planiol, Droit Civil, Vol. 2, No. 2210.

14 Ibid.

15 77 Phil. 88.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78742 July 14, 1989
ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INC.,
JUANITO D. GOMEZ, GERARDO B. ALARCIO, FELIPE A. GUICO, JR.,
BERNARDO M. ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T.
GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA, REYNALDO G.
ESTRADA, FELISA C. BAUTISTA, ESMENIA J. CABE, TEODORO B.
MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA,
FELICISIMA C. ARRESTO, CONSUELO M. MORALES, BENJAMIN R.
SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S. FERRER, petitioners,
vs.
HONORABLE SECRETARY OF AGRARIAN REFORM, respondent.
G.R. No. 79310 July 14, 1989
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS,
DENNIS JEREZA, HERMINIGILDO GUSTILO, PAULINO D. TOLENTINO
and PLANTERS' COMMITTEE, INC., Victorias Mill District, Victorias,
Negros Occidental, petitioners,
vs.
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN
REFORM COUNCIL, respondents.
G.R. No. 79744 July 14, 1989
INOCENTES PABICO, petitioner,
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF
AGRARIAN REFORM, HON. JOKER ARROYO, EXECUTIVE
SECRETARY OF THE OFFICE OF THE PRESIDENT, and Messrs.
SALVADOR TALENTO, JAIME ABOGADO, CONRADO AVANCENA and
ROBERTO TAAY, respondents.
G.R. No. 79777 July 14, 1989
NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners,
vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and LAND
BANK OF THE PHILIPPINES, respondents.
CRUZ, J.:
In ancient mythology, Antaeus was a terrible giant who blocked and
challenged Hercules for his life on his way to Mycenae after performing his
eleventh labor. The two wrestled mightily and Hercules flung his adversary
to the ground thinking him dead, but Antaeus rose even stronger to resume
their struggle. This happened several times to Hercules' increasing
amazement. Finally, as they continued grappling, it dawned on Hercules
that Antaeus was the son of Gaea and could never die as long as any part
of his body was touching his Mother Earth. Thus forewarned, Hercules then
held Antaeus up in the air, beyond the reach of the sustaining soil, and
crushed him to death.
Mother Earth. The sustaining soil. The giver of life, without whose
invigorating touch even the powerful Antaeus weakened and died.
The cases before us are not as fanciful as the foregoing tale. But they also
tell of the elemental forces of life and death, of men and women who, like
Antaeus need the sustaining strength of the precious earth to stay alive.
"Land for the Landless" is a slogan that underscores the acute imbalance in
the distribution of this precious resource among our people. But it is more
than a slogan. Through the brooding centuries, it has become a battle-cry
dramatizing the increasingly urgent demand of the dispossessed among us
for a plot of earth as their place in the sun.
Recognizing this need, the Constitution in 1935 mandated the policy of
social justice to "insure the well-being and economic security of all the
people," 1 especially the less privileged. In 1973, the new Constitution
affirmed this goal adding specifically that "the State shall regulate the
acquisition, ownership, use, enjoyment and disposition of private property
and equitably diffuse property ownership and profits." 2 Significantly, there
was also the specific injunction to "formulate and implement an agrarian
reform program aimed at emancipating the tenant from the bondage of the
soil." 3
The Constitution of 1987 was not to be outdone. Besides echoing these
sentiments, it also adopted one whole and separate Article XIII on Social
Justice and Human Rights, containing grandiose but undoubtedly sincere
provisions for the uplift of the common people. These include a call in the
following words for the adoption by the State of an agrarian reform program:
SEC. 4. The State shall, by law, undertake an agrarian
reform program founded on the right of farmers and
regular farmworkers, who are landless, to own directly
or collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and
undertake the just distribution of all agricultural lands,
subject to such priorities and reasonable retention limits
as the Congress may prescribe, taking into account
ecological, developmental, or equity considerations and
subject to the payment of just compensation. In
determining retention limits, the State shall respect the
right of small landowners. The State shall further
provide incentives for voluntary land-sharing.
Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land
Reform Code, had already been enacted by the Congress of the Philippines
on August 8, 1963, in line with the above-stated principles. This was
substantially superseded almost a decade later by P.D. No. 27, which was
promulgated on October 21, 1972, along with martial law, to provide for the
compulsory acquisition of private lands for distribution among tenant-
farmers and to specify maximum retention limits for landowners.
The people power revolution of 1986 did not change and indeed even
energized the thrust for agrarian reform. Thus, on July 17, 1987, President
Corazon C. Aquino issued E.O. No. 228, declaring full land ownership in
favor of the beneficiaries of P.D. No. 27 and providing for the valuation of
still unvalued lands covered by the decree as well as the manner of their
payment. This was followed on July 22, 1987 by Presidential Proclamation
No. 131, instituting a comprehensive agrarian reform program (CARP), and
E.O. No. 229, providing the mechanics for its implementation.
Subsequently, with its formal organization, the revived Congress of the
Philippines took over legislative power from the President and started its
own deliberations, including extensive public hearings, on the improvement
of the interests of farmers. The result, after almost a year of spirited debate,
was the enactment of R.A. No. 6657, otherwise known as the
Comprehensive Agrarian Reform Law of 1988, which President Aquino
signed on June 10, 1988. This law, while considerably changing the earlier
mentioned enactments, nevertheless gives them suppletory effect insofar
as they are not inconsistent with its provisions. 4
The above-captioned cases have been consolidated because they involve
common legal questions, including serious challenges to the
constitutionality of the several measures mentioned above. They will be the
subject of one common discussion and resolution, The different
antecedents of each case will require separate treatment, however, and will
first be explained hereunder.
G.R. No. 79777
Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O.
Nos. 228 and 229, and R.A. No. 6657.
The subjects of this petition are a 9-hectare riceland worked by four tenants
and owned by petitioner Nicolas Manaay and his wife and a 5-hectare
riceland worked by four tenants and owned by petitioner Augustin Hermano,
Jr. The tenants were declared full owners of these lands by E.O. No. 228 as
qualified farmers under P.D. No. 27.
The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on
grounds inter alia of separation of powers, due process, equal protection
and the constitutional limitation that no private property shall be taken for
public use without just compensation.
They contend that President Aquino usurped legislative power when she
promulgated E.O. No. 228. The said measure is invalid also for violation of
Article XIII, Section 4, of the Constitution, for failure to provide for retention
limits for small landowners. Moreover, it does not conform to Article VI,
Section 25(4) and the other requisites of a valid appropriation.
In connection with the determination of just compensation, the petitioners
argue that the same may be made only by a court of justice and not by the
President of the Philippines. They invoke the recent cases of EPZA v.
Dulay  5 and Manotok v. National Food Authority. 6 Moreover, the just
compensation contemplated by the Bill of Rights is payable in money or in
cash and not in the form of bonds or other things of value.
In considering the rentals as advance payment on the land, the executive
order also deprives the petitioners of their property rights as protected by
due process. The equal protection clause is also violated because the order
places the burden of solving the agrarian problems on the owners only of
agricultural lands. No similar obligation is imposed on the owners of other
properties.
The petitioners also maintain that in declaring the beneficiaries under P.D.
No. 27 to be the owners of the lands occupied by them, E.O. No. 228
ignored judicial prerogatives and so violated due process. Worse, the
measure would not solve the agrarian problem because even the small
farmers are deprived of their lands and the retention rights guaranteed by
the Constitution.
In his Comment, the Solicitor General stresses that P.D. No. 27 has already
been upheld in the earlier cases of Chavez v. Zobel,  7 Gonzales v.
Estrella,  8 and Association of Rice and Corn Producers of the Philippines,
Inc. v. The National Land Reform Council.  9 The determination of just
compensation by the executive authorities conformably to the formula
prescribed under the questioned order is at best initial or preliminary only. It
does not foreclose judicial intervention whenever sought or warranted. At
any rate, the challenge to the order is premature because no valuation of
their property has as yet been made by the Department of Agrarian Reform.
The petitioners are also not proper parties because the lands owned by
them do not exceed the maximum retention limit of 7 hectares.
Replying, the petitioners insist they are proper parties because P.D. No. 27
does not provide for retention limits on tenanted lands and that in any event
their petition is a class suit brought in behalf of landowners with
landholdings below 24 hectares. They maintain that the determination of
just compensation by the administrative authorities is a final ascertainment.
As for the cases invoked by the public respondent, the constitutionality of
P.D. No. 27 was merely assumed in Chavez, while what was decided
in Gonzales was the validity of the imposition of martial law.
In the amended petition dated November 22, 1588, it is contended that P.D.
No. 27, E.O. Nos. 228 and 229 (except Sections 20 and 21) have been
impliedly repealed by R.A. No. 6657. Nevertheless, this statute should itself
also be declared unconstitutional because it suffers from substantially the
same infirmities as the earlier measures.
A petition for intervention was filed with leave of court on June 1, 1988 by
Vicente Cruz, owner of a 1. 83- hectare land, who complained that the DAR
was insisting on the implementation of P.D. No. 27 and E.O. No. 228
despite a compromise agreement he had reached with his tenant on the
payment of rentals. In a subsequent motion dated April 10, 1989, he
adopted the allegations in the basic amended petition that the above-
mentioned enactments have been impliedly repealed by R.A. No. 6657.
G.R. No. 79310
The petitioners herein are landowners and sugar planters in the Victorias
Mill District, Victorias, Negros Occidental. Co-petitioner Planters'
Committee, Inc. is an organization composed of 1,400 planter-members.
This petition seeks to prohibit the implementation of Proc. No. 131 and E.O.
No. 229.
The petitioners claim that the power to provide for a Comprehensive
Agrarian Reform Program as decreed by the Constitution belongs to
Congress and not the President. Although they agree that the President
could exercise legislative power until the Congress was convened, she
could do so only to enact emergency measures during the transition period.
At that, even assuming that the interim legislative power of the President
was properly exercised, Proc. No. 131 and E.O. No. 229 would still have to
be annulled for violating the constitutional provisions on just compensation,
due process, and equal protection.
They also argue that under Section 2 of Proc. No. 131 which provides:
Agrarian Reform Fund.-There is hereby created a special fund, to be known
as the Agrarian Reform Fund, an initial amount of FIFTY BILLION PESOS
(P50,000,000,000.00) to cover the estimated cost of the Comprehensive
Agrarian Reform Program from 1987 to 1992 which shall be sourced from
the receipts of the sale of the assets of the Asset Privatization Trust and
Receipts of sale of ill-gotten wealth received through the Presidential
Commission on Good Government and such other sources as government
may deem appropriate. The amounts collected and accruing to this special
fund shall be considered automatically appropriated for the purpose
authorized in this Proclamation the amount appropriated is in futuro, not in
esse. The money needed to cover the cost of the contemplated
expropriation has yet to be raised and cannot be appropriated at this time.
Furthermore, they contend that taking must be simultaneous with payment
of just compensation as it is traditionally understood, i.e., with money and in
full, but no such payment is contemplated in Section 5 of the E.O. No. 229.
On the contrary, Section 6, thereof provides that the Land Bank of the
Philippines "shall compensate the landowner in an amount to be
established by the government, which shall be based on the owner's
declaration of current fair market value as provided in Section 4 hereof, but
subject to certain controls to be defined and promulgated by the
Presidential Agrarian Reform Council." This compensation may not be paid
fully in money but in any of several modes that may consist of part cash and
part bond, with interest, maturing periodically, or direct payment in cash or
bond as may be mutually agreed upon by the beneficiary and the landowner
or as may be prescribed or approved by the PARC.
The petitioners also argue that in the issuance of the two measures, no
effort was made to make a careful study of the sugar planters' situation.
There is no tenancy problem in the sugar areas that can justify the
application of the CARP to them. To the extent that the sugar planters have
been lumped in the same legislation with other farmers, although they are a
separate group with problems exclusively their own, their right to equal
protection has been violated.
A motion for intervention was filed on August 27,1987 by the National
Federation of Sugarcane Planters (NASP) which claims a membership of at
least 20,000 individual sugar planters all over the country. On September
10, 1987, another motion for intervention was filed, this time by Manuel
Barcelona, et al., representing coconut and riceland owners. Both motions
were granted by the Court.
NASP alleges that President Aquino had no authority to fund the Agrarian
Reform Program and that, in any event, the appropriation is invalid because
of uncertainty in the amount appropriated. Section 2 of Proc. No. 131 and
Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of
fifty billion pesos and thus specifies the minimum rather than the maximum
authorized amount. This is not allowed. Furthermore, the stated initial
amount has not been certified to by the National Treasurer as actually
available.
Two additional arguments are made by Barcelona, to wit, the failure to
establish by clear and convincing evidence the necessity for the exercise of
the powers of eminent domain, and the violation of the fundamental right to
own property.
The petitioners also decry the penalty for non-registration of the lands,
which is the expropriation of the said land for an amount equal to the
government assessor's valuation of the land for tax purposes. On the other
hand, if the landowner declares his own valuation he is unjustly required to
immediately pay the corresponding taxes on the land, in violation of the
uniformity rule.
In his consolidated Comment, the Solicitor General first invokes the
presumption of constitutionality in favor of Proc. No. 131 and E.O. No. 229.
He also justifies the necessity for the expropriation as explained in the
"whereas" clauses of the Proclamation and submits that, contrary to the
petitioner's contention, a pilot project to determine the feasibility of CARP
and a general survey on the people's opinion thereon are not indispensable
prerequisites to its promulgation.
On the alleged violation of the equal protection clause, the sugar planters
have failed to show that they belong to a different class and should be
differently treated. The Comment also suggests the possibility of Congress
first distributing public agricultural lands and scheduling the expropriation of
private agricultural lands later. From this viewpoint, the petition for
prohibition would be premature.
The public respondent also points out that the constitutional prohibition is
against the payment of public money without the corresponding
appropriation. There is no rule that only money already in existence can be
the subject of an appropriation law. Finally, the earmarking of fifty billion
pesos as Agrarian Reform Fund, although denominated as an initial
amount, is actually the maximum sum appropriated. The word "initial"
simply means that additional amounts may be appropriated later when
necessary.
On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on
his own behalf, assailing the constitutionality of E.O. No. 229. In addition to
the arguments already raised, Serrano contends that the measure is
unconstitutional because:
(1) Only public lands should be included in the CARP;
(2) E.O. No. 229 embraces more than one subject
which is not expressed in the title;
(3) The power of the President to legislate was
terminated on July 2, 1987; and
(4) The appropriation of a P50 billion special fund from
the National Treasury did not originate from the House
of Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary of Department of Agrarian
Reform, in violation of due process and the requirement for just
compensation, placed his landholding under the coverage of Operation
Land Transfer. Certificates of Land Transfer were subsequently issued to
the private respondents, who then refused payment of lease rentals to him.
On September 3, 1986, the petitioner protested the erroneous inclusion of
his small landholding under Operation Land transfer and asked for the recall
and cancellation of the Certificates of Land Transfer in the name of the
private respondents. He claims that on December 24, 1986, his petition was
denied without hearing. On February 17, 1987, he filed a motion for
reconsideration, which had not been acted upon when E.O. Nos. 228 and
229 were issued. These orders rendered his motion moot and academic
because they directly effected the transfer of his land to the private
respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were invalidly issued by the
President of the Philippines.
(2) The said executive orders are violative of the
constitutional provision that no private property shall be
taken without due process or just compensation.
(3) The petitioner is denied the right of maximum
retention provided for under the 1987 Constitution.
The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly
before Congress convened is anomalous and arbitrary, besides violating
the doctrine of separation of powers. The legislative power granted to the
President under the Transitory Provisions refers only to emergency
measures that may be promulgated in the proper exercise of the police
power.
The petitioner also invokes his rights not to be deprived of his property
without due process of law and to the retention of his small parcels of
riceholding as guaranteed under Article XIII, Section 4 of the Constitution.
He likewise argues that, besides denying him just compensation for his
land, the provisions of E.O. No. 228 declaring that:
Lease rentals paid to the landowner by the farmer-
beneficiary after October 21, 1972 shall be considered
as advance payment for the land.
is an unconstitutional taking of a vested property right. It is also his
contention that the inclusion of even small landowners in the program along
with other landowners with lands consisting of seven hectares or more is
undemocratic.
In his Comment, the Solicitor General submits that the petition is premature
because the motion for reconsideration filed with the Minister of Agrarian
Reform is still unresolved. As for the validity of the issuance of E.O. Nos.
228 and 229, he argues that they were enacted pursuant to Section 6,
Article XVIII of the Transitory Provisions of the 1987 Constitution which
reads:
The incumbent president shall continue to exercise legislative powers until
the first Congress is convened.
On the issue of just compensation, his position is that when P.D. No. 27
was promulgated on October 21. 1972, the tenant-farmer of agricultural
land was deemed the owner of the land he was tilling. The leasehold rentals
paid after that date should therefore be considered amortization payments.
In his Reply to the public respondents, the petitioner maintains that the
motion he filed was resolved on December 14, 1987. An appeal to the
Office of the President would be useless with the promulgation of E.O. Nos.
228 and 229, which in effect sanctioned the validity of the public
respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of retention granted by P.D. No.
27 to owners of rice and corn lands not exceeding seven hectares as long
as they are cultivating or intend to cultivate the same. Their respective lands
do not exceed the statutory limit but are occupied by tenants who are
actually cultivating such lands.
According to P.D. No. 316, which was promulgated in implementation of
P.D. No. 27:
No tenant-farmer in agricultural lands primarily devoted
to rice and corn shall be ejected or removed from his
farmholding until such time as the respective rights of
the tenant- farmers and the landowner shall have been
determined in accordance with the rules and
regulations implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants and so are unable to
enjoy their right of retention because the Department of Agrarian Reform
has so far not issued the implementing rules required under the above-
quoted decree. They therefore ask the Court for a writ of mandamus to
compel the respondent to issue the said rules.
In his Comment, the public respondent argues that P.D. No. 27 has been
amended by LOI 474 removing any right of retention from persons who own
other agricultural lands of more than 7 hectares in aggregate area or lands
used for residential, commercial, industrial or other purposes from which
they derive adequate income for their family. And even assuming that the
petitioners do not fall under its terms, the regulations implementing P.D. No.
27 have already been issued, to wit, the Memorandum dated July 10, 1975
(Interim Guidelines on Retention by Small Landowners, with an
accompanying Retention Guide Table), Memorandum Circular No. 11 dated
April 21, 1978, (Implementation Guidelines of LOI No. 474), Memorandum
Circular No. 18-81 dated December 29,1981 (Clarificatory Guidelines on
Coverage of P.D. No. 27 and Retention by Small Landowners), and DAR
Administrative Order No. 1, series of 1985 (Providing for a Cut-off Date for
Landowners to Apply for Retention and/or to Protest the Coverage of their
Landholdings under Operation Land Transfer pursuant to P.D. No. 27). For
failure to file the corresponding applications for retention under these
measures, the petitioners are now barred from invoking this right.
The public respondent also stresses that the petitioners have prematurely
initiated this case notwithstanding the pendency of their appeal to the
President of the Philippines. Moreover, the issuance of the implementing
rules, assuming this has not yet been done, involves the exercise of
discretion which cannot be controlled through the writ of mandamus. This is
especially true if this function is entrusted, as in this case, to a separate
department of the government.
In their Reply, the petitioners insist that the above-cited measures are not
applicable to them because they do not own more than seven hectares of
agricultural land. Moreover, assuming arguendo that the rules were
intended to cover them also, the said measures are nevertheless not in
force because they have not been published as required by law and the
ruling of this Court in Tanada v. Tuvera.10 As for LOI 474, the same is
ineffective for the additional reason that a mere letter of instruction could not
have repealed the presidential decree.
I
Although holding neither purse nor sword and so regarded as the weakest
of the three departments of the government, the judiciary is nonetheless
vested with the power to annul the acts of either the legislative or the
executive or of both when not conformable to the fundamental law. This is
the reason for what some quarters call the doctrine of judicial supremacy.
Even so, this power is not lightly assumed or readily exercised. The doctrine
of separation of powers imposes upon the courts a proper restraint, born of
the nature of their functions and of their respect for the other departments,
in striking down the acts of the legislative and the executive as
unconstitutional. The policy, indeed, is a blend of courtesy and caution. To
doubt is to sustain. The theory is that before the act was done or the law
was enacted, earnest studies were made by Congress or the President, or
both, to insure that the Constitution would not be breached.
In addition, the Constitution itself lays down stringent conditions for a
declaration of unconstitutionality, requiring therefor the concurrence of a
majority of the members of the Supreme Court who took part in the
deliberations and voted on the issue during their session en banc. 11 And as
established by judge made doctrine, the Court will assume jurisdiction over
a constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be
an actual case or controversy involving a conflict of legal rights susceptible
of judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself. 12
With particular regard to the requirement of proper party as applied in the
cases before us, we hold that the same is satisfied by the petitioners and
intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures
complained of. 13 And even if, strictly speaking, they are not covered by the
definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and resolving
the serious constitutional questions raised.
In the first Emergency Powers Cases, 14 ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders
issued by President Quirino although they were invoking only an indirect
and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled 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 since then applied this exception in many other
cases. 15
The other above-mentioned requisites have also been met in the present
petitions.
In must be stressed that despite the inhibitions pressing upon the Court
when confronted with constitutional issues like the ones now before it, it will
not hesitate to declare a law or act invalid when it is convinced that this
must be done. In arriving at this conclusion, its only criterion will be the
Constitution as God and its conscience give it the light to probe its meaning
and discover its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decision. Blandishment is as
ineffectual as intimidation.
For all the awesome power of the Congress and the Executive, the Court
will not hesitate to "make the hammer fall, and heavily," to use Justice
Laurel's pithy language, where the acts of these departments, or of any
public official, betray the people's will as expressed in the Constitution.
It need only be added, to borrow again the words of Justice Laurel, that —
... when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or
invalidate an act of the Legislature, but only asserts the
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that
is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the
Constitution. 16
The cases before us categorically raise constitutional questions that this
Court must categorically resolve. And so we shall.
II
We proceed first to the examination of the preliminary issues before
resolving the more serious challenges to the constitutionality of the several
measures involved in these petitions.
The promulgation of P.D. No. 27 by President Marcos in the exercise of his
powers under martial law has already been sustained in Gonzales v.
Estrella and we find no reason to modify or reverse it on that issue. As for
the power of President Aquino to promulgate Proc. No. 131 and E.O. Nos.
228 and 229, the same was authorized under Section 6 of the Transitory
Provisions of the 1987 Constitution, quoted above.
The said measures were issued by President Aquino before July 27, 1987,
when the Congress of the Philippines was formally convened and took over
legislative power from her. They are not "midnight" enactments intended to
pre-empt the legislature because E.O. No. 228 was issued on July 17,
1987, and the other measures, i.e., Proc. No. 131 and E.O. No. 229, were
both issued on July 22, 1987. Neither is it correct to say that these
measures ceased to be valid when she lost her legislative power for, like
any statute, they continue to be in force unless modified or repealed by
subsequent law or declared invalid by the courts. A statute does not ipso
facto become inoperative simply because of the dissolution of the
legislature that enacted it. By the same token, President Aquino's loss of
legislative power did not have the effect of invalidating all the measures
enacted by her when and as long as she possessed it.
Significantly, the Congress she is alleged to have undercut has not rejected
but in fact substantially affirmed the challenged measures and has
specifically provided that they shall be suppletory to R.A. No. 6657
whenever not inconsistent with its provisions. 17 Indeed, some portions of
the said measures, like the creation of the P50 billion fund in Section 2 of
Proc. No. 131, and Sections 20 and 21 of E.O. No. 229, have been
incorporated by reference in the CARP Law. 18
That fund, as earlier noted, is itself being questioned on the ground that it
does not conform to the requirements of a valid appropriation as specified in
the Constitution. Clearly, however, Proc. No. 131 is not an appropriation
measure even if it does provide for the creation of said fund, for that is not
its principal purpose. An appropriation law is one the primary and specific
purpose of which is to authorize the release of public funds from the
treasury. 19 The creation of the fund is only incidental to the main objective
of the proclamation, which is agrarian reform.
It should follow that the specific constitutional provisions invoked, to wit,
Section 24 and Section 25(4) of Article VI, are not applicable. With
particular reference to Section 24, this obviously could not have been
complied with for the simple reason that the House of Representatives,
which now has the exclusive power to initiate appropriation measures, had
not yet been convened when the proclamation was issued. The legislative
power was then solely vested in the President of the Philippines, who
embodied, as it were, both houses of Congress.
The argument of some of the petitioners that Proc. No. 131 and E.O. No.
229 should be invalidated because they do not provide for retention limits
as required by Article XIII, Section 4 of the Constitution is no longer tenable.
R.A. No. 6657 does provide for such limits now in Section 6 of the law,
which in fact is one of its most controversial provisions. This section
declares:
Retention Limits. — Except as otherwise provided in
this Act, no person may own or retain, directly or
indirectly, any public or private agricultural land, the
size of which shall vary according to factors governing
a viable family-sized farm, such as commodity
produced, terrain, infrastructure, and soil fertility as
determined by the Presidential Agrarian Reform
Council (PARC) created hereunder, but in no case shall
retention by the landowner exceed five (5) hectares.
Three (3) hectares may be awarded to each child of the
landowner, subject to the following qualifications: (1)
that he is at least fifteen (15) years of age; and (2) that
he is actually tilling the land or directly managing the
farm; Provided, That landowners whose lands have
been covered by Presidential Decree No. 27 shall be
allowed to keep the area originally retained by them
thereunder, further, That original homestead grantees
or direct compulsory heirs who still own the original
homestead at the time of the approval of this Act shall
retain the same areas as long as they continue to
cultivate said homestead.
The argument that E.O. No. 229 violates the constitutional requirement that
a bill shall have only one subject, to be expressed in its title, deserves only
short attention. It is settled that the title of the bill does not have to be a
catalogue of its contents and will suffice if the matters embodied in the text
are relevant to each other and may be inferred from the title. 20
The Court wryly observes that during the past dictatorship, every
presidential issuance, by whatever name it was called, had the force and
effect of law because it came from President Marcos. Such are the ways of
despots. Hence, it is futile to argue, as the petitioners do in G.R. No. 79744,
that LOI 474 could not have repealed P.D. No. 27 because the former was
only a letter of instruction. The important thing is that it was issued by
President Marcos, whose word was law during that time.
But for all their peremptoriness, these issuances from the President Marcos
still had to comply with the requirement for publication as this Court held
in Tanada v. Tuvera. 21 Hence, unless published in the Official Gazette in
accordance with Article 2 of the Civil Code, they could not have any force
and effect if they were among those enactments successfully challenged in
that case. LOI 474 was published, though, in the Official Gazette dated
November 29,1976.)
Finally, there is the contention of the public respondent in G.R. No. 78742
that the writ of mandamus cannot issue to compel the performance of a
discretionary act, especially by a specific department of the government.
That is true as a general proposition but is subject to one important
qualification. Correctly and categorically stated, the rule is that mandamus
will lie to compel the discharge of the discretionary duty itself but not to
control the discretion to be exercised. In other words, mandamus can issue
to require action only but not specific action.
Whenever a duty is imposed upon a public official and
an unnecessary and unreasonable delay in the
exercise of such duty occurs, if it is a clear duty
imposed by law, the courts will intervene by the
extraordinary legal remedy of mandamus to compel
action. If the duty is purely ministerial, the courts will
require specific action. If the duty is purely
discretionary, the courts by mandamus will require
action only. For example, if an inferior court, public
official, or board should, for an unreasonable length of
time, fail to decide a particular question to the great
detriment of all parties concerned, or a court should
refuse to take jurisdiction of a cause when the law
clearly gave it jurisdiction mandamus will issue, in the
first case to require a decision, and in the second to
require that jurisdiction be taken of the cause. 22
And while it is true that as a rule the writ will not be proper as long as there
is still a plain, speedy and adequate remedy available from the
administrative authorities, resort to the courts may still be permitted if the
issue raised is a question of law. 23
III
There are traditional distinctions between the police power and the power of
eminent domain that logically preclude the application of both powers at the
same time on the same subject. In the case of City of Baguio v.
NAWASA, 24 for example, where a law required the transfer of all municipal
waterworks systems to the NAWASA in exchange for its assets of
equivalent value, the Court held that the power being exercised was
eminent domain because the property involved was wholesome and
intended for a public use. Property condemned under the police power is
noxious or intended for a noxious purpose, such as a building on the verge
of collapse, which should be demolished for the public safety, or obscene
materials, which should be destroyed in the interest of public morals. The
confiscation of such property is not compensable, unlike the taking of
property under the power of expropriation, which requires the payment of
just compensation to the owner.
In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes laid down
the limits of the police power in a famous aphorism: "The general rule at
least is that while property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking." The regulation that went "too
far" was a law prohibiting mining which might cause the subsidence of
structures for human habitation constructed on the land surface. This was
resisted by a coal company which had earlier granted a deed to the land
over its mine but reserved all mining rights thereunder, with the grantee
assuming all risks and waiving any damage claim. The Court held the law
could not be sustained without compensating the grantor. Justice Brandeis
filed a lone dissent in which he argued that there was a valid exercise of the
police power. He said:
Every restriction upon the use of property imposed in
the exercise of the police power deprives the owner of
some right theretofore enjoyed, and is, in that sense,
an abridgment by the State of rights in property without
making compensation. But restriction imposed to
protect the public health, safety or morals from dangers
threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The
property so restricted remains in the possession of its
owner. The state does not appropriate it or make any
use of it. The state merely prevents the owner from
making a use which interferes with paramount rights of
the public. Whenever the use prohibited ceases to be
noxious — as it may because of further changes in
local or social conditions — the restriction will have to
be removed and the owner will again be free to enjoy
his property as heretofore.
Recent trends, however, would indicate not a polarization but a mingling of
the police power and the power of eminent domain, with the latter being
used as an implement of the former like the power of taxation. The
employment of the taxing power to achieve a police purpose has long been
accepted. 26 As for the power of expropriation, Prof. John J. Costonis of the
University of Illinois College of Law (referring to the earlier case of Euclid v.
Ambler Realty Co., 272 US 365, which sustained a zoning law under the
police power) makes the following significant remarks:
Euclid, moreover, was decided in an era when judges
located the Police and eminent domain powers on
different planets. Generally speaking, they viewed
eminent domain as encompassing public acquisition of
private property for improvements that would be
available for public use," literally construed. To the
police power, on the other hand, they assigned the less
intrusive task of preventing harmful externalities a point
reflected in the Euclid opinion's reliance on an analogy
to nuisance law to bolster its support of zoning. So long
as suppression of a privately authored harm bore a
plausible relation to some legitimate "public purpose,"
the pertinent measure need have afforded no
compensation whatever. With the progressive growth of
government's involvement in land use, the distance
between the two powers has contracted considerably.
Today government often employs eminent domain
 interchangeably with or as a useful complement to the
police power-- a trend expressly approved in the
Supreme Court's 1954 decision in Berman v. Parker,
which broadened the reach of eminent domain's "public
use" test to match that of the police power's standard of
"public purpose." 27
The Berman case sustained a redevelopment project and the improvement
of blighted areas in the District of Columbia as a proper exercise of the
police power. On the role of eminent domain in the attainment of this
purpose, Justice Douglas declared:
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. 28
In Penn Central Transportation Co. v. New York City,  29 decided by a 6-3
vote in 1978, the U.S Supreme Court sustained the respondent's
Landmarks Preservation Law under which the owners of the Grand Central
Terminal had not been allowed to construct a multi-story office building over
the Terminal, which had been designated a historic landmark. Preservation
of the landmark was held to be a valid objective of the police power. The
problem, however, was that the owners of the Terminal would be deprived
of the right to use the airspace above it although other landowners in the
area could do so over their respective properties. While insisting that there
was here no taking, the Court nonetheless recognized certain
compensatory rights accruing to Grand Central Terminal which it said would
"undoubtedly mitigate" the loss caused by the regulation. This "fair
compensation," as he called it, was explained by Prof. Costonis in this wise:
In return for retaining the Terminal site in its pristine landmark status, Penn
Central was authorized to transfer to neighboring properties the authorized
but unused rights accruing to the site prior to the Terminal's designation as
a landmark — the rights which would have been exhausted by the 59-story
building that the city refused to countenance atop the Terminal. Prevailing
bulk restrictions on neighboring sites were proportionately relaxed,
theoretically enabling Penn Central to recoup its losses at the Terminal site
by constructing or selling to others the right to construct larger, hence more
profitable buildings on the transferee sites. 30
The cases before us present no knotty complication insofar as the question
of compensable taking is concerned. To the extent that the measures under
challenge merely prescribe retention limits for landowners, there is an
exercise of the police power for the regulation of private property in
accordance with the Constitution. But where, to carry out such regulation, it
becomes necessary to deprive such owners of whatever lands they may
own in excess of the maximum area allowed, there is definitely a taking
under the power of eminent domain for which payment of just compensation
is imperative. The taking contemplated is not a mere limitation of the use of
the land. What is required is the surrender of the title to and the physical
possession of the said excess and all beneficial rights accruing to the owner
in favor of the farmer-beneficiary. This is definitely an exercise not of the
police power but of the power of eminent domain.
Whether as an exercise of the police power or of the power of eminent
domain, the several measures before us are challenged as violative of the
due process and equal protection clauses.
The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground
that no retention limits are prescribed has already been discussed and
dismissed. It is noted that although they excited many bitter exchanges
during the deliberation of the CARP Law in Congress, the retention limits
finally agreed upon are, curiously enough, not being questioned in these
petitions. We therefore do not discuss them here. The Court will come to
the other claimed violations of due process in connection with our
examination of the adequacy of just compensation as required under the
power of expropriation.
The argument of the small farmers that they have been denied equal
protection because of the absence of retention limits has also become
academic under Section 6 of R.A. No. 6657. Significantly, they too have not
questioned the area of such limits. There is also the complaint that they
should not be made to share the burden of agrarian reform, an objection
also made by the sugar planters on the ground that they belong to a
particular class with particular interests of their own. However, no evidence
has been submitted to the Court that the requisites of a valid classification
have been violated.
Classification has been defined as the grouping of persons or things similar
to each other in certain particulars and different from each other in these
same particulars. 31 To be valid, it must conform to the following
requirements: (1) it must be based on substantial distinctions; (2) it must be
germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all the members of the
class. 32 The Court finds that all these requisites have been met by the
measures here challenged as arbitrary and discriminatory.
Equal protection simply means that all persons or things similarly situated
must be treated alike both as to the rights conferred and the liabilities
imposed. 33 The petitioners have not shown that they belong to a different
class and entitled to a different treatment. The argument that not only
landowners but also owners of other properties must be made to share the
burden of implementing land reform must be rejected. There is a substantial
distinction between these two classes of owners that is clearly visible
except to those who will not see. There is no need to elaborate on this
matter. In any event, the Congress is allowed a wide leeway in providing for
a valid classification. Its decision is accorded recognition and respect by the
courts of justice except only where its discretion is abused to the detriment
of the Bill of Rights.
It is worth remarking at this juncture that a statute may be sustained under
the police power only if there is a concurrence of the lawful subject and the
lawful method. Put otherwise, the interests of the public generally as
distinguished from those of a particular class require the interference of the
State and, no less important, the means employed are reasonably
necessary for the attainment of the purpose sought to be achieved and not
unduly oppressive upon individuals. 34 As the subject and purpose of
agrarian reform have been laid down by the Constitution itself, we may say
that the first requirement has been satisfied. What remains to be examined
is the validity of the method employed to achieve the constitutional goal.
One of the basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even
the strongest moral conviction or the most urgent public need, subject only
to a few notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a, person invoking a right
guaranteed under Article III of the Constitution is a majority of one even as
against the rest of the nation who would deny him that right.
That right covers the person's life, his liberty and his property under Section
1 of Article III of the Constitution. With regard to his property, the owner
enjoys the added protection of Section 9, which reaffirms the familiar rule
that private property shall not be taken for public use without just
compensation.
This brings us now to the power of eminent domain.
IV
Eminent domain is an inherent power of the State that
enables it to forcibly acquire private lands intended for
public use upon payment of just compensation to the
owner. Obviously, there is no need to expropriate
where the owner is willing to sell under terms also
acceptable to the purchaser, in which case an ordinary
deed of sale may be agreed upon by the parties. 35 It is
only where the owner is unwilling to sell, or cannot
accept the price or other conditions offered by the
vendee, that the power of eminent domain will come
into play to assert the paramount authority of the State
over the interests of the property owner. Private rights
must then yield to the irresistible demands of the public
interest on the time-honored justification, as in the case
of the police power, that the welfare of the people is the
supreme law.
But for all its primacy and urgency, the power of expropriation is by no
means absolute (as indeed no power is absolute). The limitation is found in
the constitutional injunction that "private property shall not be taken for
public use without just compensation" and in the abundant jurisprudence
that has evolved from the interpretation of this principle. Basically, the
requirements for a proper exercise of the power are: (1) public use and (2)
just compensation.
Let us dispose first of the argument raised by the petitioners in G.R. No.
79310 that the State should first distribute public agricultural lands in the
pursuit of agrarian reform instead of immediately disturbing property rights
by forcibly acquiring private agricultural lands. Parenthetically, it is not
correct to say that only public agricultural lands may be covered by the
CARP as the Constitution calls for "the just distribution of all agricultural
lands." In any event, the decision to redistribute private agricultural lands in
the manner prescribed by the CARP was made by the legislative and
executive departments in the exercise of their discretion. We are not
justified in reviewing that discretion in the absence of a clear showing that it
has been abused.
A becoming courtesy admonishes us to respect the decisions of the political
departments when they decide what is known as the political question. As
explained by Chief Justice Concepcion in the case of Tañada v. Cuenco: 36
The term "political question" connotes what it means in
ordinary parlance, namely, a question of policy. It refers
to "those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity;
or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of
the government." It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.
It is true that the concept of the political question has been constricted with
the enlargement of judicial power, which now includes the authority of the
courts "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." 37 Even so, this should not be
construed as a license for us to reverse the other departments simply
because their views may not coincide with ours.
The legislature and the executive have been seen fit, in their wisdom, to
include in the CARP the redistribution of private landholdings (even as the
distribution of public agricultural lands is first provided for, while also
continuing apace under the Public Land Act and other cognate laws). The
Court sees no justification to interpose its authority, which we may assert
only if we believe that the political decision is not unwise, but illegal. We do
not find it to be so.
In U.S. v. Chandler-Dunbar Water Power Company,38 it was held:
Congress having determined, as it did by the Act of
March 3,1909 that the entire St. Mary's river between
the American bank and the international line, as well as
all of the upland north of the present ship canal,
throughout its entire length, was "necessary for the
purpose of navigation of said waters, and the waters
connected therewith," that determination is conclusive
in condemnation proceedings instituted by the United
States under that Act, and there is no room for judicial
review of the judgment of Congress ... .
As earlier observed, the requirement for public use has already been settled
for us by the Constitution itself No less than the 1987 Charter calls for
agrarian reform, which is the reason why private agricultural lands are to be
taken from their owners, subject to the prescribed maximum retention limits.
The purposes specified in P.D. No. 27, Proc. No. 131 and R.A. No. 6657
are only an elaboration of the constitutional injunction that the State adopt
the necessary measures "to encourage and undertake the just distribution
of all agricultural lands to enable farmers who are landless to own directly or
collectively the lands they till." That public use, as pronounced by the
fundamental law itself, must be binding on us.
The second requirement, i.e., the payment of just compensation, needs a
longer and more thoughtful examination.
Just compensation is defined as the full and fair equivalent of the property
taken from its owner by the expropriator. 39 It has been repeatedly stressed
by this Court that the measure is not the taker's gain but the owner's
loss. 40 The word "just" is used to intensify the meaning of the word
"compensation" to convey the idea that the equivalent to be rendered for
the property to be taken shall be real, substantial, full, ample. 41
It bears repeating that the measures challenged in these petitions
contemplate more than a mere regulation of the use of private lands under
the police power. We deal here with an actual taking of private agricultural
lands that has dispossessed the owners of their property and deprived them
of all its beneficial use and enjoyment, to entitle them to the just
compensation mandated by the Constitution.
As held in Republic of the Philippines v. Castellvi, 42 there is compensable
taking when the following conditions concur: (1) the expropriator must enter
a private property; (2) the entry must be for more than a momentary period;
(3) the entry must be under warrant or color of legal authority; (4) the
property must be devoted to public use or otherwise informally appropriated
or injuriously affected; and (5) the utilization of the property for public use
must be in such a way as to oust the owner and deprive him of beneficial
enjoyment of the property. All these requisites are envisioned in the
measures before us.
Where the State itself is the expropriator, it is not necessary for it to make a
deposit upon its taking possession of the condemned property, as "the
compensation is a public charge, the good faith of the public is pledged for
its payment, and all the resources of taxation may be employed in raising
the amount." 43 Nevertheless, Section 16(e) of the CARP Law provides that:
Upon receipt by the landowner of the corresponding
payment or, in case of rejection or no response from
the landowner, upon the deposit with an accessible
bank designated by the DAR of the compensation in
cash or in LBP bonds in accordance with this Act, the
DAR shall take immediate possession of the land and
shall request the proper Register of Deeds to issue a
Transfer Certificate of Title (TCT) in the name of the
Republic of the Philippines. The DAR shall thereafter
proceed with the redistribution of the land to the
qualified beneficiaries.
Objection is raised, however, to the manner of fixing the just compensation,
which it is claimed is entrusted to the administrative authorities in violation
of judicial prerogatives. Specific reference is made to Section 16(d), which
provides that in case of the rejection or disregard by the owner of the offer
of the government to buy his land-
... the DAR shall conduct summary administrative
proceedings to determine the compensation for the
land by requiring the landowner, the LBP and other
interested parties to submit evidence as to the just
compensation for the land, within fifteen (15) days from
the receipt of the notice. After the expiration of the
above period, the matter is deemed submitted for
decision. The DAR shall decide the case within thirty
(30) days after it is submitted for decision.
To be sure, the determination of just compensation is a function addressed
to the courts of justice and may not be usurped by any other branch or
official of the government. EPZA v. Dulay 44 resolved a challenge to several
decrees promulgated by President Marcos providing that the just
compensation for property under expropriation should be either the
assessment of the property by the government or the sworn valuation
thereof by the owner, whichever was lower. In declaring these decrees
unconstitutional, the Court held through Mr. Justice Hugo E. Gutierrez, Jr.:
The method of ascertaining just compensation under
the aforecited decrees constitutes impermissible
encroachment on judicial prerogatives. It tends to
render this Court inutile in a matter which under this
Constitution is reserved to it for final determination.
Thus, although in an expropriation proceeding the court
technically would still have the power to determine the
just compensation for the property, following the
applicable decrees, its task would be relegated to
simply stating the lower value of the property as
declared either by the owner or the assessor. As a
necessary consequence, it would be useless for the
court to appoint commissioners under Rule 67 of the
Rules of Court. Moreover, the need to satisfy the due
process clause in the taking of private property is
seemingly fulfilled since it cannot be said that a judicial
proceeding was not had before the actual taking.
However, the strict application of the decrees during
the proceedings would be nothing short of a mere
formality or charade as the court has only to choose
between the valuation of the owner and that of the
assessor, and its choice is always limited to the lower
of the two. The court cannot exercise its discretion or
independence in determining what is just or fair. Even a
grade school pupil could substitute for the judge insofar
as the determination of constitutional just compensation
is concerned.
xxx
In the present petition, we are once again confronted
with the same question of whether the courts under
P.D. No. 1533, which contains the same provision on
just compensation as its predecessor decrees, still
have the power and authority to determine just
compensation, independent of what is stated by the
decree and to this effect, to appoint commissioners for
such purpose.
This time, we answer in the affirmative.
xxx
It is violative of due process to deny the owner the
opportunity to prove that the valuation in the tax
documents is unfair or wrong. And it is repulsive to the
basic concepts of justice and fairness to allow the
haphazard work of a minor bureaucrat or clerk to
absolutely prevail over the judgment of a court
promulgated only after expert commissioners have
actually viewed the property, after evidence and
arguments pro and con have been presented, and after
all factors and considerations essential to a fair and just
determination have been judiciously evaluated.
A reading of the aforecited Section 16(d) will readily show that it does not
suffer from the arbitrariness that rendered the challenged decrees
constitutionally objectionable. Although the proceedings are described as
summary, the landowner and other interested parties are nevertheless
allowed an opportunity to submit evidence on the real value of the property.
But more importantly, the determination of the just compensation by the
DAR is not by any means final and conclusive upon the landowner or any
other interested party, for Section 16(f) clearly provides:
Any party who disagrees with the decision may bring
the matter to the court of proper jurisdiction for final
determination of just compensation.
The determination made by the DAR is only preliminary unless accepted by
all parties concerned. Otherwise, the courts of justice will still have the right
to review with finality the said determination in the exercise of what is
admittedly a judicial function.
The second and more serious objection to the provisions on just
compensation is not as easily resolved.
This refers to Section 18 of the CARP Law providing in full as follows:
SEC. 18. Valuation and Mode of Compensation. — The
LBP shall compensate the landowner in such amount
as may be agreed upon by the landowner and the DAR
and the LBP, in accordance with the criteria provided
for in Sections 16 and 17, and other pertinent
provisions hereof, or as may be finally determined by
the court, as the just compensation for the land.
The compensation shall be paid in one of the following Such LBP
modes, at the option of the landowner: bonds may be
used by the
landowner, his
(1) Cash payment, under the following terms and
successors-in-
conditions:
interest or his
assigns, up to
(a) For lands the amount of
above fifty (50) their face
hectares, value, for any
insofar as the of the
excess following:
hectarage is
concerned —
(i) Acquisition
Twenty-five
of land or
percent (25%)
other real
cash, the
properties of
balance to be
the
paid in
government,
government
including
financial
assets under
instruments
the Asset
negotiable at
Privatization
any time.
Program and
other assets
(b) For lands foreclosed by
above twenty- government
four (24) financial
hectares and institutions in
up to fifty (50) the same
hectares — province or
Thirty percent region where
(30%) cash, the lands for
the balance to which the
be paid in bonds were
government paid are
financial situated;
instruments
negotiable at
(ii) Acquisition
any time.
of shares of
stock of
(c) For lands government-
twenty-four owned or
(24) hectares controlled
and below — corporations
Thirty-five or shares of
percent (35%) stock owned
cash, the by the
balance to be government in
paid in private
government corporations;
financial
instruments
(iii)
negotiable at
Substitution
any time.
for surety or
bail bonds for
(2) Shares of stock in government-owned or controlled the provisional
corporations, LBP preferred shares, physical assets or release of
other qualified investments in accordance with accused
guidelines set by the PARC; persons, or for
performance
bonds;
(3) Tax credits which can be used against any tax
liability;
(iv) Security
for loans with
(4) LBP bonds, which shall have the following features: any
government
(a) Market financial
interest rates institution,
aligned with provided the
91-day proceeds of
treasury bill the loans shall
rates. Ten be invested in
percent (10%) an economic
of the face enterprise,
value of the preferably in a
bonds shall small and
mature every medium- scale
year from the industry, in the
date of same province
issuance until or region as
the tenth the land for
(10th) year: which the
Provided, That bonds are
should the paid;
landowner
choose to (v) Payment
forego the for various
cash portion, taxes and fees
whether in full to
or in part, he government:
shall be paid Provided, That
correspondingl the use of
y in LBP these bonds
bonds; for these
purposes will
(b) be limited to a
Transferability certain
and percentage of
negotiability. the
 outstanding
balance of the
financial
instruments;
Provided,
further, That
the PARC
shall
determine the
percentages
mentioned
above;
(vi) Payment
for tuition fees
of the
immediate
family of the
original
bondholder in
government
universities,
colleges, trade
schools, and
other
institutions;
(vii) Payment
for fees of the
immediate
family of the
original
bondholder in
government
hospitals; and
(viii) Such
other uses as
the PARC may
from time to
time allow.
The contention of the petitioners in G.R. No. 79777 is that the above
provision is unconstitutional insofar as it requires the owners of the
expropriated properties to accept just compensation therefor in less than
money, which is the only medium of payment allowed. In support of this
contention, they cite jurisprudence holding that:
The fundamental rule in expropriation matters is that
the owner of the property expropriated is entitled to a
just compensation, which should be neither more nor
less, whenever it is possible to make the assessment,
than the money equivalent of said property. Just
compensation has always been understood to be the
just and complete equivalent of the loss which the
owner of the thing expropriated has to suffer by reason
of the expropriation . 45 (Emphasis supplied.)
In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court held:
It is well-settled that just compensation means the
equivalent for the value of the property at the time of its
taking. Anything beyond that is more, and anything
short of that is less, than just compensation. It means a
fair and full equivalent for the loss sustained, which is
the measure of the indemnity, not whatever gain would
accrue to the expropriating entity. The market value of
the land taken is the just compensation to which the
owner of condemned property is entitled, the market
value being that sum of money which a person
desirous, but not compelled to buy, and an owner,
willing, but not compelled to sell, would agree on as a
price to be given and received for such property.
(Emphasis supplied.)
In the United States, where much of our jurisprudence on the subject has
been derived, the weight of authority is also to the effect that just
compensation for property expropriated is payable only in money and not
otherwise. Thus —
The medium of payment of compensation is ready
money or cash. The condemnor cannot compel the
owner to accept anything but money, nor can the owner
compel or require the condemnor to pay him on any
other basis than the value of the property in money at
the time and in the manner prescribed by the
Constitution and the statutes. When the power of
eminent domain is resorted to, there must be a
standard medium of payment, binding upon both
parties, and the law has fixed that standard as money
in cash. 47 (Emphasis supplied.)
Part cash and deferred payments are not and cannot,
in the nature of things, be regarded as a reliable and
constant standard of compensation. 48
"Just compensation" for property taken by
condemnation means a fair equivalent in money, which
must be paid at least within a reasonable time after the
taking, and it is not within the power of the Legislature
to substitute for such payment future obligations,
bonds, or other valuable advantage. 49 (Emphasis
supplied.)
It cannot be denied from these cases that the traditional medium for the
payment of just compensation is money and no other. And so, conformably,
has just compensation been paid in the past solely in that medium.
However, we do not deal here with the traditional excercise of the power of
eminent domain. This is not an ordinary expropriation where only a specific
property of relatively limited area is sought to be taken by the State from its
owner for a specific and perhaps local purpose.
What we deal with here is a revolutionary kind of expropriation.
The expropriation before us affects all private agricultural lands whenever
found and of whatever kind as long as they are in excess of the maximum
retention limits allowed their owners. This kind of expropriation is intended
for the benefit not only of a particular community or of a small segment of
the population but of the entire Filipino nation, from all levels of our society,
from the impoverished farmer to the land-glutted owner. Its purpose does
not cover only the whole territory of this country but goes beyond in time to
the foreseeable future, which it hopes to secure and edify with the vision
and the sacrifice of the present generation of Filipinos. Generations yet to
come are as involved in this program as we are today, although hopefully
only as beneficiaries of a richer and more fulfilling life we will guarantee to
them tomorrow through our thoughtfulness today. And, finally, let it not be
forgotten that it is no less than the Constitution itself that has ordained this
revolution in the farms, calling for "a just distribution" among the farmers of
lands that have heretofore been the prison of their dreams but can now
become the key at least to their deliverance.
Such a program will involve not mere millions of pesos. The cost will be
tremendous. Considering the vast areas of land subject to expropriation
under the laws before us, we estimate that hundreds of billions of pesos will
be needed, far more indeed than the amount of P50 billion initially
appropriated, which is already staggering as it is by our present standards.
Such amount is in fact not even fully available at this time.
We assume that the framers of the Constitution were aware of this difficulty
when they called for agrarian reform as a top priority project of the
government. It is a part of this assumption that when they envisioned the
expropriation that would be needed, they also intended that the just
compensation would have to be paid not in the orthodox way but a less
conventional if more practical method. There can be no doubt that they
were aware of the financial limitations of the government and had no
illusions that there would be enough money to pay in cash and in full for the
lands they wanted to be distributed among the farmers. We may therefore
assume that their intention was to allow such manner of payment as is now
provided for by the CARP Law, particularly the payment of the balance (if
the owner cannot be paid fully with money), or indeed of the entire amount
of the just compensation, with other things of value. We may also suppose
that what they had in mind was a similar scheme of payment as that
prescribed in P.D. No. 27, which was the law in force at the time they
deliberated on the new Charter and with which they presumably agreed in
principle.
The Court has not found in the records of the Constitutional Commission
any categorical agreement among the members regarding the meaning to
be given the concept of just compensation as applied to the comprehensive
agrarian reform program being contemplated. There was the suggestion to
"fine tune" the requirement to suit the demands of the project even as it was
also felt that they should "leave it to Congress" to determine how payment
should be made to the landowner and reimbursement required from the
farmer-beneficiaries. Such innovations as "progressive compensation" and
"State-subsidized compensation" were also proposed. In the end, however,
no special definition of the just compensation for the lands to be
expropriated was reached by the Commission. 50
On the other hand, there is nothing in the records either that militates
against the assumptions we are making of the general sentiments and
intention of the members on the content and manner of the payment to be
made to the landowner in the light of the magnitude of the expenditure and
the limitations of the expropriator.
With these assumptions, the Court hereby declares that the content and
manner of the just compensation provided for in the afore- quoted Section
18 of the CARP Law is not violative of the Constitution. We do not mind
admitting that a certain degree of pragmatism has influenced our decision
on this issue, but after all this Court is not a cloistered institution removed
from the realities and demands of society or oblivious to the need for its
enhancement. The Court is as acutely anxious as the rest of our people to
see the goal of agrarian reform achieved at last after the frustrations and
deprivations of our peasant masses during all these disappointing decades.
We are aware that invalidation of the said section will result in the
nullification of the entire program, killing the farmer's hopes even as they
approach realization and resurrecting the spectre of discontent and dissent
in the restless countryside. That is not in our view the intention of the
Constitution, and that is not what we shall decree today.
Accepting the theory that payment of the just compensation is not always
required to be made fully in money, we find further that the proportion of
cash payment to the other things of value constituting the total payment, as
determined on the basis of the areas of the lands expropriated, is not
unduly oppressive upon the landowner. It is noted that the smaller the land,
the bigger the payment in money, primarily because the small landowner transfer of ownership after full payment of just compensation), shall be
will be needing it more than the big landowners, who can afford a bigger considered as advance payment for the land."
balance in bonds and other things of value. No less importantly, the
government financial instruments making up the balance of the payment are
The CARP Law, for its part, conditions the transfer of possession and
"negotiable at any time." The other modes, which are likewise available to
ownership of the land to the government on receipt by the landowner of the
the landowner at his option, are also not unreasonable because payment is
corresponding payment or the deposit by the DAR of the compensation in
made in shares of stock, LBP bonds, other properties or assets, tax credits,
cash or LBP bonds with an accessible bank. Until then, title also remains
and other things of value equivalent to the amount of just compensation.
with the landowner. 57 No outright change of ownership is contemplated
either.
Admittedly, the compensation contemplated in the law will cause the
landowners, big and small, not a little inconvenience. As already remarked,
Hence, the argument that the assailed measures violate due process by
this cannot be avoided. Nevertheless, it is devoutly hoped that these
arbitrarily transferring title before the land is fully paid for must also be
countrymen of ours, conscious as we know they are of the need for their
rejected.
forebearance and even sacrifice, will not begrudge us their indispensable
share in the attainment of the ideal of agrarian reform. Otherwise, our
pursuit of this elusive goal will be like the quest for the Holy Grail. It is worth stressing at this point that all rights acquired by the tenant-farmer
under P.D. No. 27, as recognized under E.O. No. 228, are retained by him
even now under R.A. No. 6657. This should counter-balance the express
The complaint against the effects of non-registration of the land under E.O.
provision in Section 6 of the said law that "the landowners whose lands
No. 229 does not seem to be viable any more as it appears that Section 4
have been covered by Presidential Decree No. 27 shall be allowed to keep
of the said Order has been superseded by Section 14 of the CARP Law.
the area originally retained by them thereunder, further, That original
This repeats the requisites of registration as embodied in the earlier
homestead grantees or direct compulsory heirs who still own the original
measure but does not provide, as the latter did, that in case of failure or
homestead at the time of the approval of this Act shall retain the same
refusal to register the land, the valuation thereof shall be that given by the
areas as long as they continue to cultivate said homestead."
provincial or city assessor for tax purposes. On the contrary, the CARP Law
says that the just compensation shall be ascertained on the basis of the
factors mentioned in its Section 17 and in the manner provided for in In connection with these retained rights, it does not appear in G.R. No.
Section 16. 78742 that the appeal filed by the petitioners with the Office of the President
has already been resolved. Although we have said that the doctrine of
exhaustion of administrative remedies need not preclude immediate resort
The last major challenge to CARP is that the landowner is divested of his
to judicial action, there are factual issues that have yet to be examined on
property even before actual payment to him in full of just compensation, in
the administrative level, especially the claim that the petitioners are not
contravention of a well- accepted principle of eminent domain.
covered by LOI 474 because they do not own other agricultural lands than
the subjects of their petition.
The recognized rule, indeed, is that title to the property expropriated shall
pass from the owner to the expropriator only upon full payment of the just
Obviously, the Court cannot resolve these issues. In any event, assuming
compensation. Jurisprudence on this settled principle is consistent both
that the petitioners have not yet exercised their retention rights, if any,
here and in other democratic jurisdictions. Thus:
under P.D. No. 27, the Court holds that they are entitled to the new
retention rights provided for by R.A. No. 6657, which in fact are on the
Title to property which is the subject of condemnation proceedings does not whole more liberal than those granted by the decree.
vest the condemnor until the judgment fixing just compensation is entered
and paid, but the condemnor's title relates back to the date on which the
V
petition under the Eminent Domain Act, or the commissioner's report under
the Local Improvement Act, is filed. 51
The CARP Law and the other enactments also involved in these cases
have been the subject of bitter attack from those who point to the
... although the right to appropriate and use land taken for a canal is
shortcomings of these measures and ask that they be scrapped entirely. To
complete at the time of entry, title to the property taken remains in the
be sure, these enactments are less than perfect; indeed, they should be
owner until payment is actually made. 52 (Emphasis supplied.)
continuously re-examined and rehoned, that they may be sharper
instruments for the better protection of the farmer's rights. But we have to
In Kennedy v. Indianapolis, 53 the US Supreme Court cited several cases start somewhere. In the pursuit of agrarian reform, we do not tread on
holding that title to property does not pass to the condemnor until just familiar ground but grope on terrain fraught with pitfalls and expected
compensation had actually been made. In fact, the decisions appear to be difficulties. This is inevitable. The CARP Law is not a tried and tested
uniformly to this effect. As early as 1838, in Rubottom v. McLure, 54 it was project. On the contrary, to use Justice Holmes's words, "it is an
held that "actual payment to the owner of the condemned property was a experiment, as all life is an experiment," and so we learn as we venture
condition precedent to the investment of the title to the property in the State" forward, and, if necessary, by our own mistakes. We cannot expect
albeit "not to the appropriation of it to public use." In Rexford v. perfection although we should strive for it by all means. Meantime, we
Knight, 55 the Court of Appeals of New York said that the construction upon struggle as best we can in freeing the farmer from the iron shackles that
the statutes was that the fee did not vest in the State until the payment of have unconscionably, and for so long, fettered his soul to the soil.
the compensation although the authority to enter upon and appropriate the
land was complete prior to the payment. Kennedy further said that "both on
By the decision we reach today, all major legal obstacles to the
principle and authority the rule is ... that the right to enter on and use the
comprehensive agrarian reform program are removed, to clear the way for
property is complete, as soon as the property is actually appropriated under
the true freedom of the farmer. We may now glimpse the day he will be
the authority of law for a public use, but that the title does not pass from the
released not only from want but also from the exploitation and disdain of the
owner without his consent, until just compensation has been made to him."
past and from his own feelings of inadequacy and helplessness. At last his
servitude will be ended forever. At last the farm on which he toils will be his
Our own Supreme Court has held in Visayan Refining Co. v. Camus and farm. It will be his portion of the Mother Earth that will give him not only the
Paredes,  56 that: staff of life but also the joy of living. And where once it bred for him only
deep despair, now can he see in it the fruition of his hopes for a more
fulfilling future. Now at last can he banish from his small plot of earth his
If the laws which we have exhibited or cited in the
insecurities and dark resentments and "rebuild in it the music and the
preceding discussion are attentively examined it will be
dream."
apparent that the method of expropriation adopted in
this jurisdiction is such as to afford absolute
reassurance that no piece of land can be finally and WHEREFORE, the Court holds as follows:
irrevocably taken from an unwilling owner until
compensation is paid ... . (Emphasis supplied.)
1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O.
Nos. 228 and 229 are SUSTAINED against all the
It is true that P.D. No. 27 expressly ordered the emancipation of tenant- constitutional objections raised in the herein petitions.
farmer as October 21, 1972 and declared that he shall "be deemed the
owner" of a portion of land consisting of a family-sized farm except that "no
2. Title to all expropriated properties shall be
title to the land owned by him was to be actually issued to him unless and
transferred to the State only upon full payment of
until he had become a full-fledged member of a duly recognized farmers'
compensation to their respective owners.
cooperative." It was understood, however, that full payment of the just
compensation also had to be made first, conformably to the constitutional
requirement. 3. All rights previously acquired by the tenant- farmers
under P.D. No. 27 are retained and recognized.
When E.O. No. 228, categorically stated in its Section 1 that:
4. Landowners who were unable to exercise their rights
of retention under P.D. No. 27 shall enjoy the retention
All qualified farmer-beneficiaries are now deemed full
rights granted by R.A. No. 6657 under the conditions
owners as of October 21, 1972 of the land they
therein prescribed.
acquired by virtue of Presidential Decree No. 27.
(Emphasis supplied.)
5. Subject to the above-mentioned rulings all the
petitions are DISMISSED, without pronouncement as to
it was obviously referring to lands already validly acquired under the said
costs.
decree, after proof of full-fledged membership in the farmers' cooperatives
and full payment of just compensation. Hence, it was also perfectly proper
for the Order to also provide in its Section 2 that the "lease rentals paid to SO ORDERED.
the landowner by the farmer- beneficiary after October 21, 1972 (pending
Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, 34 US v. Toribio, 15 Phil. 85; Fable v. City of Manila, 21
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Phil. 486; Case v. Board of Health, 24 Phil. 256.
Regalado, JJ., concur.
35 Noble v. City of Manila, 67 Phil. 1.
 
36 100 Phil. 1101.
Footnotes
37 1987 Constitution, Art. VIII, Sec. 1.
1 Art. 11, Sec. 5.
38 57 L ed. 1063.
2 1973 Constitution, Art. II, Sec. 6.
39 Manila Railroad Co. v. Velasquez, 32 Phil. 286.
3 Ibid., Art. XIV, Sec. 12.
40 Province of Tayabas v. Perez, 66 Phil. 467; J.M.
4 R.A. No. 6657, Sec. 15. Tuazon & Co., Inc. v. Land Tenure Administration, 31
SCRA 413; Municipality of Daet v. Court of Appeals, 93
SCRA 503; Manotok v. National Housing Authority, 150
5 149 SCRA 305.
SCRA 89.

6 150 SCRA 89.

41 City of Manila v. Estrada, 25 Phil. 208.

7 55 SCRA 26.
42 58 SCRA 336.

8 91 SCRA 294.
43 Lewis, Law of Eminent Domain, 3rd Edition, pp.
1166- 1167.
9 113 SCRA 798.
44 149 SCRA 305.
10 136 SCRA 271; 146 SCRA 446.
45 Manila Railroad Co. v. Velasquez, 32 Phil. 286;
11 Art. VIII, Sec. 4(2). Province of Tayabas v. Perez, supra, at note 40.

12 Dumlao v. COMELEC, 95 SCRA 392. 46 31 SCRA 413.

13 Ex Parte Levitt, 303 US 633. 47 Mandl v. City of Phoenix, 18 p 2d 273.

14 Araneta v. Dinglasan, 84 Phil. 368.
15 Pascual v. Secretary of Public Works, 110 Phil. 331;
PHILCONSA v. Gimenez, 15 SCRA 479; Sanidad v.
COMELEC, 73 SCRA 333.
16 Angara v. Electoral Commission, 63 Phil. 139.
17 R.A. No. 6657, Sec. 75.
48 Sacramento Southern R. Co. v. Heilbron 156 Cal.
408,104 pp. 979, 980.
49 City of Waterbury v. Platt Bros. & Co., 56 A 856, 76
Conn, 435 citing Butler v. Ravine Road Sewer Com'rs,
39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co.,
N.Y. 18 Wend. 9 35, 31 Am. Dec. 313; Sanborn v.
Helden, 51 Cal 266; Burlington & C.R. Co. v.
Schweikart, 14 p. 329, 10 Colo, 178; 23 Words and
Phrases, pl. 460.

18 Ibid., Sec. 63. 50 Record of the Constitutional Commission, Vol. 2, pp.

647, 704; Vol. 3, pp. 16-20, 243-247.
19 Bengzon v. Secretary of Justice, 299 US 410.
51 Chicago Park Dist. v. Downey Coal Co., 1 Ill. 2d 54.
20 Alalayan v. NPC, 24 SCRA 172; Sumulong v.
COMELEC, 73 Phil. 288. Tio v. Videogram Regulatory 52 Kennedy v. Indianapolis, 103 US 599, 26 L ed 550.
Board, 151 SCRA 208.
53 Ibid.
21 Supra.
54 4 Blkf., 508.
22 Lamb v. Phipps, 22 Phil. 456.
55 11 NY 314.
23 Malabanan v. Ramento, 129 SCRA 359; Espanol v.
Chairman, Philippine Veterans Administration, 137 56 40 Phil. 550.
SCRA 314.

57 Sec. 16(d).
24 106 Phil. 144.

25 260 US 393.

26 Powell v. Pennsylvania, 127 US 678: Lutz v.

Araneta, 98 Phil. 148; Tio v. Videogram Regulatory
Board, supra.

27 John J. Costonis "The Disparity Issue: A Context for

the Grand Central Terminal Decision," Harvard Law
Review, Vol. 91:40,1977, p. 404.

28 348 US 1954.

29 438 US 104.

30 See note 27.

31 International Harvester Co. v. Missouri, 234 US 199.

32 People v. Cayat, 68 Phil. 12.

33 Ichong v. Hernandez, 101 Phil. 1155.

G.R. No. 118127 - CITY OF MANILA, ET AL. v. HON. PERFECTO
A.S. LAGUIO, JR., ET AL.
EN BANC
[G.R. NO. 118127 : April 12, 2005]
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the
City of Manila, HON. JOSELITO L. ATIENZA, in his capacity
as Vice-Mayor of the City of Manila and Presiding Officer of
the City Council of Manila, HON. ERNESTO A. NIEVA, HON.
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR.,
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL
M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO
C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ,
HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON.
ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO,
HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO,
JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON.
FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON.
ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON.
MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON,
HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M.
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F.
RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of
Manila, Petitioner, v. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and
what is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if
performed by oneself, is less immoral than if performed by
someone else, who would be well-intentioned in his dishonesty.
J. Christopher   Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary
to its fealty to the fundamental law of the land. It is foremost a
guardian of the Constitution but not the conscience of individuals.
And if it need be, the Court will not hesitate to "make the hammer
fall, and heavily" in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not
lacking in zeal to promote morality, nevertheless fail to pass the
test of constitutionality.
The pivotal issue in this Petition 1 under Rule 45 (then Rule 42) of
the Revised Rules on Civil Procedure seeking the reversal of
the Decision2 in Civil Case No. 93-66511 of the Regional Trial
Court (RTC) of Manila, Branch 18 (lower court), 3 is the validity of
Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation
(MTDC) is a corporation engaged in the business of operating
hotels, motels, hostels and lodging houses. 5 It built and opened
Victoria Court in Malate which was licensed as a motel although
duly accredited with the Department of Tourism as a hotel. 6 On 28
June 1993, MTDC filed a Petition for Declaratory Relief with Prayer
for a Writ of Preliminary Injunction and/or Temporary Restraining
Order7 (RTC Petition) with the lower court impleading as
defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim
(Lim), Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council).   MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council 9 on 9 March 1993 and approved by
petitioner City Mayor on 30 March 1993, the said Ordinance is
entitled'
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN
THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR
VIOLATION THEREOF, AND FOR OTHER PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the
contrary notwithstanding, no person, partnership, corporation
or entity shall, in the Ermita-Malate area bounded by Teodoro
M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito
Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract
and engage in, any business providing certain forms of
amusement, entertainment, services and facilities where
women are used as tools in entertainment and which tend
to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the
community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting
in behalf of the said officials are prohibited from issuing
permits, temporary or otherwise, or from granting licenses
and accepting payments for the operation of business
enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged
in, or devoted to, the businesses enumerated in Section 1 hereof
are hereby given three (3) months from the date of approval
of this ordinance within which to wind up business
operations or to transfer to any place outside of the Ermita-
Malate area or convert said businesses to other kinds of
business allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined
activities for wholesome family entertainment that cater to both
local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion
pictures but also of cultural shows, stage and theatrical plays, art
exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity
districts as provided for in the zoning ordinances for Metropolitan
Manila, except new warehouse or open-storage depot, dock or
yard, motor repair shop, gasoline service station, light industry
with any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this
ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND
(P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the
General Manager, or person-in-charge of operation shall be liable
thereof; PROVIDED FURTHER, that in case of subsequent
violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today,
March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis
supplied)ςrαlαωlιbrαrÿ
In the RTC Petition, MTDC argued that the Ordinance erroneously
and improperly included in its enumeration of prohibited
establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement"
or "entertainment" and they were not "services or facilities for
entertainment," nor did they use women as "tools for
entertainment," and neither did they "disturb the community,"
"annoy the inhabitants" or "adversely affect the social and moral
welfare of the community."11
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council
has no power to prohibit the operation of motels as Section 458
(a) 4 (iv)12 of the Local Government Code of 1991 (the Code)
grants to the City Council only the power to regulate the
establishment, operation and maintenance of hotels, motels, inns,
pension houses, lodging houses and other similar establishments;
(2) The Ordinance is void as it is violative of Presidential Decree
(P.D.) No. 49913 which specifically declared portions of the Ermita-
Malate area as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police
power as the compulsory closure of the motel business has no
reasonable relation to the legitimate municipal interests sought to
be protected; (4) The Ordinance constitutes an ex post facto law
by punishing the operation of Victoria Court which was a
legitimate business prior to its enactment; (5)
The Ordinance violates MTDC's constitutional rights in that: (a) it
is confiscatory and constitutes an invasion of plaintiff's property
rights; (b) the City Council has no power to find as a fact that a
particular thing is a nuisance per se nor does it have the power to
extrajudicially destroy it; and (6) The Ordinance constitutes a
denial of equal protection under the law as no reasonable basis
exists for prohibiting the operation of motels and inns, but not
pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-
Malate area but not outside of this area.14
15
In their Answer  dated 23 July 1993, petitioners City of Manila
and Lim maintained that the City Council had the power to
"prohibit certain forms of entertainment in order to protect the
social and moral welfare of the community" as provided for in
Section 458 (a) 4 (vii) of the Local Government Code, 16 which   No. 778[3], Series of 1993, of the City of Manila null and void,
reads,   thus:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of
this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of
any entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other
events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same;
or, prohibit certain forms of amusement or entertainment in order
to protect the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the
power of regulation spoken of in the above-quoted provision
included the power to control, to govern and to restrain places of
exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by
the City Council of Manila to protect the social and moral welfare
of the community in conjunction with its police power as found in
Article III, Section 18(kk) of Republic Act No. 409, 19 otherwise
known as the Revised Charter of the City of Manila (Revised
Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. 'The Municipal Board shall have
the following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper
for the sanitation and safety, the furtherance of the prosperity,
and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants,
and such others as may be necessary to carry into effect and
discharge the powers and duties conferred by this chapter; and to
fix penalties for the violation of ordinances which shall not exceed
two hundred pesos fine or six months' imprisonment, or both such
fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption
of validity; hence, private respondent had the burden to prove its
illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency
between P.D. 499 and the Ordinance as the latter simply
disauthorized certain forms of businesses and allowed the Ermita-
Malate area to remain a commercial zone. 22 The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post
facto as it was prospective in operation. 23 The Ordinance also did
not infringe the equal protection clause and cannot be denounced
as class legislation as there existed substantial and real
differences between the Ermita-Malate area and other places in
the City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr.
(Judge Laguio) issued an ex-parte temporary restraining order
against the enforcement of the Ordinance.25 And on 16 July 1993,
again in an intrepid gesture, he granted the writ of preliminary
injunction prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing
the Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance
and making permanent the writ of preliminary injunction that had
been issued by this Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12
December 1994, manifesting that they are elevating the case to
this Court under then Rule 42 on pure questions of law. 30
On 11 January 1995, petitioners filed the present Petition ,
alleging that the following errors were committed by the lower
court in its ruling: (1) It erred in concluding that the subject
ordinance is ultra vires, or otherwise, unfair, unreasonable and
oppressive exercise of police power; (2) It erred in holding that
the questioned Ordinance contravenes P.D. 49931 which allows
operators of all kinds of commercial establishments, except those
specified therein; and (3) It erred in declaring the Ordinance void
and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence
repeat the assertions they made before the lower court. They
contend that the assailed Ordinance was enacted in the exercise
of the inherent and plenary power of the State and the general
welfare clause exercised by local government units provided for in
Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code. 34 They allege
that the Ordinance is a valid exercise of police power; it does not
contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent
maintains that the Ordinance is ultra vires and that it is void for
being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that
it is violative of due process, confiscatory and amounts to an
arbitrary interference with its lawful business; that it is violative of
the equal protection clause; and that it confers on petitioner City
Mayor or any officer unregulated discretion in the execution of
the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment
and tenderness for the Ermita-Malate area being its home for
several decades. A long-time resident, the Court witnessed the
area's many turn of events. It relished its glory days and endured
its days of infamy. Much as the Court harks back to the
resplendent era of the Old Manila and yearns to restore its lost
grandeur, it believes that the Ordinance is not the fitting means to
that end.   The Court is of the opinion, and so holds, that the
lower court did not err in declaring the Ordinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that
almost every sentence thereof violates a constitutional provision.
The prohibitions and sanctions therein transgress the cardinal
rights of persons enshrined by the Constitution. The Court is
called upon to shelter these rights from attempts at rendering
them worthless.
The tests of a valid ordinance are well established. A long line of
decisions has held that for an ordinance to be valid, it must not
only be within the corporate powers of the local government unit
to enact and must be passed according to the procedure
prescribed by law, it   must also conform to the following
substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive;
(3) must not be partial or discriminatory; (4) must not prohibit
but may regulate trade; (5) must be general and consistent with
public policy; and (6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they
are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of
consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not
violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their
derivative legislative power, a delegation of legislative power from
the national legislature.   The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. 39
This relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in
the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it. 40
The Ordinance was passed by the City Council in the exercise of
its police power, an enactment of the City Council acting as agent
of Congress. Local government units, as agencies of the State, are
endowed with police power in order to effectively accomplish and
carry out the declared objects of their creation. 41 This delegated
police power is found in Section 16 of the Code, known as the
general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-
reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote
full employment among their residents, maintain peace and order,
and preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their
respective legislative bodies; in this case, the sangguniang
panlungsod or the city council. The Code empowers the legislative
bodies to "enact ordinances, approve resolutions and appropriate
funds for the general welfare of the province/city/municipality and
its inhabitants pursuant to Section 16 of the Code and in the
proper exercise of the corporate powers of the province/city/
municipality provided under the Code. 42 The inquiry in this Petition
is concerned with the validity of the exercise of such delegated
power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-
reaching, is subordinate to the constitutional limitations thereon;
and is subject to the limitation that its exercise must be
reasonable and for the public good. 43 In the case at bar, the
enactment of the Ordinance was an invalid exercise of delegated
power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before the law
of women and men.45
SEC. 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the
equal protection of laws.46
Sec. 9. Private property shall not be taken for public use without
just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat
"(N)o person shall be deprived of life, liberty or property without
due process of law. . . ."48
There is no controlling and precise definition of due process.   It
furnishes though a standard to which governmental action should
conform in order that deprivation of life, liberty or property, in
each appropriate case, be valid.   This standard is aptly described
as a responsiveness to the supremacy of reason, obedience to the
dictates of justice,49 and as such it is a limitation upon the
exercise of the police power.50
The purpose of the guaranty is to prevent governmental
encroachment against the life, liberty and property of individuals;
to secure the individual from the arbitrary exercise of the powers
of the government, unrestrained by the established principles of
private rights and distributive justice; to protect property from
confiscation by legislative enactments, from seizure, forfeiture,
and destruction without a trial and conviction by the ordinary
mode of judicial procedure; and to secure to all persons equal and
impartial justice and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation,
and private corporations and partnerships are "persons" within
the scope of the guaranty insofar as their property is concerned. 52
This clause has been interpreted as imposing two separate limits
on government, usually called "procedural due process" and
"substantive due process."
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it deprives a
person of life, liberty, or property. Classic procedural due process
issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular
action.53
Substantive due process, as that phrase connotes, asks whether
the government has an adequate reason for taking away a
person's life, liberty, or property. In other words, substantive due
process looks to whether there is a sufficient justification for the
government's action.54 Case law in the United States (U.S.) tells
us that whether there is such a justification depends very much
on the level of scrutiny used.55 For example, if a law is in an area
where only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a
legitimate government purpose.   But if it is an area where strict
scrutiny is used, such as for protecting fundamental rights, then
the government will meet substantive due process only if it can
prove that the law is necessary to achieve a compelling
government purpose.56
The police power granted to local government units must always
be exercised with utmost observance of the rights of the people to
due process and equal protection of the law. Such power cannot
be exercised whimsically, arbitrarily or despotically 57 as its
exercise is subject to a qualification, limitation or restriction
demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill of
Rights. Individual rights, it bears emphasis, may be adversely
affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. 58 Due
process requires the intrinsic validity of the law in interfering with
the rights of the person to his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the
rationale for the enactment of the Ordinance, and to free it from
the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from
those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for
the accomplishment of the purpose and not unduly oppressive
upon individuals.60 It must be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work.   A reasonable relation must exist between the
purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private
rights62 ï‚¾a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate
area which are allegedly operated under the deceptive veneer of
legitimate, licensed and tax-paying nightclubs, bars, karaoke
bars, girlie houses, cocktail lounges, hotels and motels.  
Petitioners insist that even the Court in the case of Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila63 had already taken judicial notice of the "alarming
increase in the rate of prostitution, adultery and fornication in
Manila traceable in great part to existence of motels, which
provide a necessary atmosphere for clandestine entry, presence
and exit and thus become the ideal haven for prostitutes and
thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community.
Granting for the sake of argument that the objectives of
the Ordinance are within the scope of the City Council's police
powers, the means employed for the accomplishment thereof
were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of
Manila to make all reasonable regulations looking to the
promotion of the moral and social values of the community.
However, the worthy aim of fostering public morals and the
eradication of the community's social ills can be achieved through
means less restrictive of private rights; it can be attained by
reasonable restrictions rather than by an absolute prohibition. The
closing down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable
relation to the accomplishment of its purposes. Otherwise stated,
the prohibition of the enumerated establishments will not per
se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of
prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with
houses of ill-repute and establishments of the like which the City
Council may lawfully prohibit,65 it is baseless and insupportable to
bring within that classification sauna parlors, massage parlors,
karaoke bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not warranted
under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive
to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs
and as venues to further the illegal prostitution is of no moment.
We lay stress on the acrid truth that sexual immorality, being a
human frailty, may take place in the most innocent of places that
it may even take place in the substitute establishments
enumerated under Section 3 of the Ordinance.   If the flawed logic
of the Ordinance were to be followed, in the remote instance that
an immoral sexual act transpires in a church cloister or a court
chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned.   Every
house, building, park, curb, street or even vehicles for that matter
will not be exempt from the prohibition. Simply because there are
no "pure" places where there are impure men. Indeed, even the
Scripture and the Tradition of Christians churches continually
recall the presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment,
which by its nature cannot be said to be injurious to the health or
comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises.
While a motel may be used as a venue for immoral sexual
activity, it cannot for that reason alone be punished. It cannot be
classified as a house of ill-repute or as a nuisance per se on a
mere likelihood or a naked assumption. If that were so and if that
were allowed, then the Ermita-Malate area would not only be
purged of its supposed social ills, it would be extinguished of its
soul as well as every human activity, reprehensible or not, in its
every nook and cranny would be laid bare to the estimation of the
authorities.
The Ordinance seeks to legislate morality but fails to address the
core issues of morality. Try as the Ordinance may to shape
morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead
should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy
which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable
social ills is commendable, they unwittingly punish even the
proprietors and operators of "wholesome," "innocent"
establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the
salaries to be paid to those therein employed. If the City of Manila
so desires to put an end to prostitution, fornication and other
social ills, it can instead impose reasonable regulations such as
daily inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its
authority to suspend or revoke their licenses for these
violations;67 and it may even impose increased license fees. In
other words, there are other means to reasonably accomplish the
desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months
from the date of approval of the Ordinance within which "to wind
up business operations or to transfer to any place outside the
Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area." Further, it states in Section 4
that in cases of subsequent violations of the provisions of the
Ordinance, the "premises of the erring establishment shall be
closed and padlocked permanently."
It is readily apparent that the means employed by
the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and
property.
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare." 68 In
accordance with this case, the rights of the citizen to be free to
use his faculties in all lawful ways; to live and work where he will;
to earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty. 69
The U.S. Supreme Court in the case of Roth v. Board of
Regents,70 sought to clarify the meaning of "liberty."   It said:
While the Court has not attempted to define with exactness the
liberty. . . guaranteed [by the Fifth and Fourteenth Amendments],
the term denotes not merely freedom from bodily restraint but
also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized as essential to the orderly
pursuit of happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of "liberty" must
be broad indeed.
In another case, it also confirmed that liberty protected by the
due process clause includes personal decisions relating to
marriage, procreation, contraception, family relationships, child
rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices,
the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the
Fourteenth Amendment. At the heart of liberty is the right to
define one's own concept of existence, of meaning, of universe,
and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood where they formed
under compulsion of the State.71
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinance may seek
autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right
to autonomy to consummate their bonds in intimate sexual
conduct within the motel's premisesbe it stressed that their
consensual sexual behavior does not contravene any fundamental
state policy as contained in the Constitution. 72   Adults have a
right to choose to forge such relationships with others in the
confines of their own private lives and still retain their dignity as
free persons. The liberty protected by the Constitution allows
persons the right to make this choice.73 Their right to liberty under
the due process clause gives them the full right to engage in their
conduct without intervention of the government, as long as they
do not run afoul of the law. Liberty should be the rule and
restraint the exception.
Liberty in the constitutional sense not only means freedom from
unlawful government restraint; it must include privacy as well, if it
is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights
and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case
of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to unity.
His separateness, his isolation, are indefeasible; indeed, they are
so fundamental that they are the basis on which his civic
obligations are built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself.
If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself
is in any real sense free.
Indeed, the right to privacy as a constitutional right was
recognized in Morfe, the invasion of which should be justified by a
compelling state interest. Morfe accorded recognition to the right
to privacy independently of its identification with liberty; in itself it
is fully deserving of constitutional protection. Governmental
powers should stop short of certain intrusions into the personal
life of the citizen.76
There is a great temptation to have an extended discussion on
these civil liberties but the Court chooses to exercise restraint and
restrict itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a
license for adults to engage in criminal conduct. The
reprehensibility of such conduct is not diminished. The Court only
reaffirms and guarantees their right to make this choice. Should
they be prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is
their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its
property.77 The Ordinance in Section 1 thereof forbids the running
of the enumerated businesses in the Ermita-Malate area and in
Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said
businesses into allowed businesses. An ordinance which
permanently restricts the use of property that it can not be used
for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just
compensation.78 It is intrusive and violative of the private property
rights of individuals.
The Constitution expressly provides in Article III, Section 9, that
"private property shall not be taken for public use without just
compensation." The provision is the most important protection of
property rights in the Constitution. This is a restriction on the
general power of the government to take property. The
constitutional provision is about ensuring that the government
does not confiscate the property of some to give it to others. In
part too, it is about loss spreading. If the government takes away
a person's property to benefit society, then society should pay.
The principal purpose of the guarantee is "to bar the Government
from forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a
whole.79
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs when
the government's regulation leaves no reasonable economically
viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held
that a taking also could be found if government regulation of the
use of property went "too far."   When regulation reaches a
certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act.
While property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what
is too far and when regulation becomes a taking. In Mahon,
Justice Holmes recognized that it was "a question of degree and
therefore cannot be disposed of by general propositions." On
many other occasions as well, the U.S. Supreme Court has said
that the issue of when regulation constitutes a taking is a matter
of considering the facts in each case. The Court asks whether
justice and fairness require that the economic loss caused by
public action must be compensated by the government and thus
borne by the public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public action. 83
What is crucial in judicial consideration of regulatory takings is
that government regulation is a taking if it leaves no reasonable
economically viable use of property in a manner that interferes
with reasonable expectations for use.84 A regulation that
permanently denies all economically beneficial or productive use
of land is, from the owner's point of view, equivalent to a "taking"
unless principles of nuisance or property law that existed when
the owner acquired the land make the use prohibitable. 85 When
the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a
taking.86
A regulation which denies all economically beneficial or productive
use of land will require compensation under the takings clause.
Where a regulation places limitations on land that fall short of
eliminating all economically beneficial use, a taking nonetheless
may have occurred, depending on a complex of factors including
the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-
backed expectations and the character of government action.
These inquiries are informed by the purpose of the takings clause
which is to prevent the government from forcing some people
alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if
not reasonably necessary to the effectuation of a substantial
public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited"
establishments three (3) months from its approval within which to
"wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area." The directive to "wind up
business operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically confiscatory.
Unless the owner converts his establishment to accommodate an
"allowed" business, the structure which housed the previous
business will be left empty and gathering dust. Suppose he
transfers it to another area, he will likewise leave the entire
establishment idle. Consideration must be given to the substantial
amount of money invested to build the edifices which the owner
reasonably expects to be returned within a period of time. It is
apparent that the Ordinance leaves no reasonable economically
viable use of property in a manner that interferes with reasonable
expectations for use.
The second and third options to transfer to any place outside of
the Ermita-Malate area or to convert into allowed
businessesare confiscatory as well. The penalty of permanent
closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property
and build another one outside the Ermita-Malate area.   In every
sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does
not put an end to the "problem," it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may
the respondent convert a motel into a restaurant or a coffee shop,
art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due process
of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that
should be compensated by the government. The burden on the
owner to convert or transfer his business, otherwise it will be
closed permanently after a subsequent violation should be borne
by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a
zoning ordinance. A zoning ordinance, although a valid exercise of
police power, which limits a "wholesome" property to a use which
can not reasonably be made of it constitutes the taking of such
property without just compensation.   Private property which is
not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such principle finds
no support in the principles of justice as we know them.   The
police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to
cover this particular taking.
Distinction should be made between destruction from necessity
and eminent domain.   It needs restating that the property taken
in the exercise of police power is destroyed because it is noxious
or intended for a noxious purpose while the property taken under
the power of eminent domain is intended for a public use or
purpose and is therefore "wholesome." 89 If it be of public benefit
that a "wholesome" property remain unused or relegated to a
particular purpose, then certainly the public should bear the cost
of reasonable compensation for the condemnation of private
property for public use.90
Further, the Ordinance fails to set up any standard to guide or
limit the petitioners' actions. It in no way controls or guides the
discretion vested in them. It provides no definition of the
establishments covered by it and it fails to set forth the conditions
when the establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this,
which make possible abuses in its execution, depending upon no
conditions or qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by which its
validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its
impartial enforcement could be secured. 91
Ordinances placing restrictions upon the lawful use of property
must, in order to be valid and constitutional, specify the rules and
conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of
unbridled discretion by the law enforcers in carrying out its
provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v.
Nazario,94         the U.S. Supreme Court struck down an ordinance
that had made it illegal for "three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying
to persons passing by." The ordinance was nullified as it imposed
no standard at all "because one may never know in advance what
'annoys some people but does not annoy others. '"
Similarly, the Ordinance does not specify the standards to
ascertain which establishments "tend to disturb the community,"
"annoy the inhabitants," and "adversely affect the social and
moral welfare of the community." The cited case supports the
nullification of the Ordinance for lack of comprehensible standards
to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These
lawful establishments may be regulated, but not prevented from
carrying on their business.  This is a sweeping exercise of police
power that is a result of a lack of imagination on the part of the
City Council and which amounts to an interference into personal
and private rights which the Court will not countenance. In this
regard, we take a resolute stand to uphold the constitutional
guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a
reasonable regulation which is a far cry from the ill-
considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a
comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well
as escort agencies, nude model studio and sexual encounter
centers. Among other things, the ordinance required that such
businesses be licensed. A group of motel owners were among the
three groups of businesses that filed separate suits challenging
the ordinance. The motel owners asserted that the city violated
the due process clause by failing to produce adequate support for
its supposition that renting room for fewer than ten (10) hours
resulted in increased crime and other secondary effects. They
likewise argued than the ten (10)-hour limitation on the rental of
motel rooms placed an unconstitutional burden on the right to
freedom of association. Anent the first contention, the U.S.
Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered, was
adequate to support the city's determination that motels
permitting room rentals for fewer than ten (10) hours should be
included within the licensing scheme. As regards the second point,
the Court held that limiting motel room rentals to ten (10) hours
will have no discernible effect on personal bonds as those bonds
that are formed from the use of a motel room for fewer than ten
(10) hours are not those that have played a critical role in the
culture and traditions of the nation by cultivating and transmitting
shared ideals and beliefs.
The ordinance challenged in the above-cited case merely
regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association,
Inc. v. City Mayor of Manila,96 it needs pointing out, is also
different from this case in that what was involved therein was a
measure which regulated the mode in which motels may conduct
business in order to put an end to practices which could
encourage vice and immorality. Necessarily, there was no valid
objection on due process or equal protection grounds as the
ordinance did not prohibit motels. The Ordinance in this case
however is not a regulatory measure but is an exercise of an
assumed power to prohibit.97
The foregoing premises show that the Ordinance is an
unwarranted and unlawful curtailment of property and personal
rights of citizens. For being unreasonable and an undue restraint
of trade, it cannot, even under the guise of exercising police
power, be upheld as valid.
B.   The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should
not be treated differently, so as to give undue favor to some and
unjustly discriminate against others.98 The guarantee means that
no person or class of persons shall be denied the same protection
of laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of
the protection of equal laws." 100 It limits governmental
discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.101
The Court has explained the scope of the equal protection clause
in this wise:
'What does it signify? To quote from J.M. Tuason & Co. v. Land
Tenure Administration: "The ideal situation is for the law's
benefits to be available to all, that none be placed outside the
sphere of its coverage. Only thus could chance and favor be
excluded and the affairs of men governed by that serene and
impartial uniformity, which is of the very essence of the idea of
law." There is recognition, however, in the opinion that what in
fact exists "cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the
realities of the situation. The constitutional guarantee then is not
to be given a meaning that disregards what is, what does in fact
exist. To assure that the general welfare be promoted, which is
the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such
circumstances invoke the equal protection clause only if they can
show that the governmental act assailed, far from being inspired
by the attainment of the common weal was prompted by the spirit
of hostility, or at the very least, discrimination that finds no
support in reason." Classification is thus not ruled out, it being
sufficient to quote from the Tuason decision anew "that the laws
operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue
preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be
looked upon in terms of burden or charges, those that fall within a
class should be treated in the same fashion, whatever restrictions
cast on some in the group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of
legislation. If the classification is reasonable, the law may operate
only on some and not all of the people without violating the equal
protection clause.103 The classification must, as an indispensable
requisite, not be arbitrary. To be valid, it must conform to the
following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between
motels, inns, pension houses, hotels, lodging houses or other
similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and
inns but not pension houses, hotels, lodging houses or other
similar establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both as to
rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation
to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the
business and operation of motels in the Ermita-Malate area but
not outside of this area.   A noxious establishment does not
become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment"
is also discriminatory as prostitutionone of the hinted ills
the Ordinance aims to banishis not a profession exclusive to
women. Both men and women have an equal propensity to
engage in prostitution. It is not any less grave a sin when men
engage in it. And why would the assumption that there is an
ongoing immoral activity apply only when women are employed
and be inapposite when men are in harness? This discrimination
based on gender violates equal protection as it is not substantially
related to important government objectives.105 Thus, the
discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed
to pass the test of consistency with prevailing laws.
C.       The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit,
the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the
establishment, operation, and maintenance of motels, hotels and
other similar establishments is found in Section 458 (a) 4 (iv),
which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of
this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of
cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments,
including tourist guides and transports .   .   .   .
While its power to regulate the establishment, operation and
maintenance of any entertainment or amusement facilities, and to
prohibit certain forms of amusement or entertainment is provided
under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of
this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of
any entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other
events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same;
or, prohibit certain forms of amusement or entertainment in order
to protect the social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar
establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress
and prohibit altogether the establishment, operation and
maintenance of such establishments. It is well to recall the rulings
of the Court in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the
Administrative Code, means and includes the power to control, to
govern, and to restrain; but "regulate" should not be construed as
synonymous with "suppress" or "prohibit." Consequently, under
the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the
employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an
ordinance of the Municipality of Tacloban which prohibited the
selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically
given authority or power to regulate or to license and regulate the
liquor traffic, power to prohibit is impliedly withheld. 109
These doctrines still hold contrary to petitioners' assertion 110 that
they were modified by the Code vesting upon City Councils
prohibitory powers.
Similarly, the City Council exercises regulatory powers over public
dancing schools, public dance halls, sauna baths, massage
parlors, and other places for entertainment or amusement as
found in the first clause of Section 458 (a) 4 (vii). Its powers to
regulate, suppress and suspend "such other events or activities
for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" and to "prohibit
certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community" are stated in the
second and third clauses, respectively of the same Section.  The
several powers of the City Council as provided in Section 458 (a)
4 (vii) of the Code, it is pertinent to emphasize, are separated by
semi-colons (;), the use of which indicates that the clauses in
which these powers are set forth are independent of each other
albeit closely related to justify being put together in a single
enumeration or paragraph.111 These powers, therefore, should not
be confused, commingled or consolidated as to create a
conglomerated and unified power of regulation, suppression and
prohibition.112
The Congress unequivocably specified the establishments and
forms of amusement or entertainment subject to regulation
among which are beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments (Section
458 (a) 4 (iv)), public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore
cannot be included as among "other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" or "certain forms
of amusement or entertainment" which the City Council may
suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are
expressly granted to it and those which are necessarily implied or
incidental to the exercise thereof.   By reason of its limited powers
and the nature thereof, said powers are to be
construed strictissimi juris and any doubt or ambiguity arising out
of the terms used in granting said powers must be construed
against the City Council.113 Moreover, it is a general rule in
statutory construction that the express mention of one person,
thing, or consequence is tantamount to an express exclusion of all
others. Expressio unius est exclusio alterium. This maxim is based
upon the rules of logic and the natural workings of human mind.
It is particularly applicable in the construction of such statutes as
create new rights or remedies, impose penalties or punishments,
or otherwise come under the rule of strict construction.114
The argument that the City Council is empowered to enact
the Ordinance by virtue of the general welfare clause of the Code
and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is
likewise without merit. On the first point, the ruling of the Court
in People v. Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in the general
welfare clause, or section 2238 of the Revised Administrative
Code, refers to matters not covered by the other provisions of the
same Code, and therefore it can not be applied to intoxicating
liquors, for the power to regulate the selling, giving away and
dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted
by section 2238,  a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g), would
be to make the latter superfluous and nugatory, because the
power to prohibit, includes the power to regulate, the selling,
giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and
override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals
prior ones which are repugnant thereto. As between two laws on
the same subject matter, which are irreconcilably inconsistent,
that which is passed later prevails, since it is the latest expression
of legislative will.116 If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will
which must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently
enacted law contains provisions contrary to those of an existing
law but no provisions expressly repealing them. Such repeals
have been divided into two general classes: those which occur
where an act is so inconsistent or irreconcilable with an existing
prior act that only one of the two can remain in force and those
which occur when an act covers the whole subject of an earlier act
and is intended to be a substitute therefor. The validity of such a
repeal is sustained on the ground that the latest expression of the
legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and
special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly." Thus,
submitting to petitioners' interpretation that the Revised Charter
of Manila empowers the City Council to prohibit motels, that
portion of the Charter stating such must be considered repealed
by the Code as it is at variance with the latter's provisions
granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover
under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of
persons and property and may be summarily abated under the
undefined law of necessity. It can not be said that motels are
injurious to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that
purpose. A motel is not per se a nuisance warranting its summary
abatement without judicial intervention.119
Notably, the City Council was conferred powers to prevent and
prohibit certain activities and establishments in another section of
the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of
this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective city government, and in this connection,
shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose  
appropriate penalties for habitual drunkenness in public places,
vagrancy, mendicancy,   prostitution, establishment and
maintenance of         houses of ill repute, gambling and other
prohibited games of chance,   fraudulent devices and ways to
obtain money or property, drug addiction, maintenance of drug
dens, drug pushing, juvenile delinquency, the printing, distribution
or exhibition of obscene or pornographic materials or publications,
and such other activities inimical   to the welfare and morals of
the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council
the power to prohibit the establishments enumerated in Section 1
of the Ordinance, it would have so declared in uncertain terms by
adding them to the list of the matters it may prohibit under the
above-quoted Section. The Ordinance now vainly attempts to
lump these establishments with houses of ill-repute and expand
the City Council's powers in the second and third clauses of
Section 458 (a) 4 (vii) of the Code in an effort to overreach its
prohibitory powers. It is evident that these establishments may
only be regulated in their establishment, operation and
maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are
recognized legitimate enterprises can be gleaned from another
Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or
operators of massage clinics, sauna, Turkish and Swedish baths,
hotels, motels and lodging houses as among the "contractors"
defined in paragraph (h) thereof.   The same Section also defined
"amusement" as a "pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;" and
"amusement places" to include "theaters, cinemas, concert halls,
circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or
performances." Thus, it can be inferred that the Code considers
these establishments as legitimate enterprises and activities. It is
well to recall the maxim reddendo singula singulis which means
that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force
and effect, and, if possible, rendering none of them useless or
superfluous, even if strict grammatical construction demands
otherwise. Likewise, where words under consideration appear in
different sections or are widely dispersed throughout an act the
same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs
counter to the provisions of P.D. 499. As correctly argued by
MTDC, the statute had already converted the residential Ermita-
Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry
with any machinery or funeral establishment. The rule is that for
an ordinance to be valid and to have force and effect, it must not
only be within the powers of the council to enact but the same
must not be in conflict with or repugnant to the general law. 121 As
succinctly illustrated in Solicitor General v. Metropolitan Manila
Authority:122
The requirement that the enactment must not violate existing law
explains itself. Local political subdivisions are able to legislate only
by virtue of a valid delegation of legislative power from the
national legislature (except only that the power to create their
own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the
Congress, the local government units cannot contravene but must
obey at all times the will of their principal. In the case before us,
the enactment in question, which are merely local in origin cannot
prevail against the decree, which has the force and effect of a
statute.123
Petitioners contend that the Ordinance enjoys the presumption of
validity. While this may be the rule, it has already been held that
although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness
appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of
the land, or an act of the legislature, or unless it is against public
policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and
property rights and impairs personal privileges. It is
constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not
sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and
is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best
of motives and shares the concern of the public for the cleansing
of the Ermita-Malate area of its social sins. Police power legislation
of such character deserves the full endorsement of the judiciary
we reiterate our support for it. But inspite of its virtuous aims,
the enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the
City Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due
process and equal protection of laws not even under the guise
of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of
the Regional Trial Court declaring the Ordinance void is
AFFIRMED.   Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., Azcuna, Chico-Nazario and Garcia, JJ.,concur
Panganiban, J., in the result.
Ynares - Santiago, J., concur in the result only.
Endnotes:
1
 Dated 11 January 1995; Rollo, pp. 6-73 with annexes.
2
 Id. at 64-72.
3
 The lower court declared the Ordinance to be null and void.
4
 In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S.
Lim, etc, et al. before RTC, Branch 55 of Manila, docketed as Civil
Case No. 93-66551, Judge Hermogenes R. Liwag declared the
Ordinance void and unconstitutional. The defendants elevated the
case to the Court of Appeals which denied their petition on
procedural grounds in its Decision dated 21 May 2003. It appears
that defendants Hon. Alfredo S. Lim and the City Council of Manila
did not elevate the case before the Court. Entry of Judgment of
the CA Decision was made on 22 April 2003.
5
 Rollo, p. 37.
6
 Id. at. 75; It now calls itself Hotel Victoria.
7
 Id. at 35-47.
8
 Id. at 46.
9
 The principal authors of the Ordinance are: Hons. Bienvenido M.
Abante, Jr.; Humberto B. Basco; Nestor C. Ponce, Jr.; Ernesto A.
Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez; Ma. Paz E.
Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F.
Concepcion, Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A. Melendez;
Ma. Corazon R. Caballes; Bernardito C. Ang; Roberto C. Ocampo;
Rogelio B. dela Paz; Romeo G. Rivera; Alexander S. Ricafort;
Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon; Leonardo
L. Angat; and Jocelyn B. Dawis.
10
 Rollo, p. 8.
11
 RTC Records, pp. 10-11.
12
 Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads,
thus:
      Section 458. Powers, Duties, Functions and Compensation.
(a) The sangguniang panlungsod, as the legislative body of the
city, shall enact ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of
the corporate powers of the city as provided for under Section 22
of this Code, and shall:
       .   .   .
      (4) Regulate activities relative to the use of land, buildings
and structures within the city in order to promote the general
welfare and for said purpose shall:
   . . ..
      (iv) Regulate the establishment, operation and maintenance
of cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments,
including tourist guides and transports; . . .
13
 Presidential Decree No. 499; Dated 28 June 1974; Declaring
Portions of the Ermita-Malate Area as Commercial Zones with
Certain Restrictions. It reads in full:
      WHEREAS, the government is committed to the promotion
and development of tourism in the country, particularly in the City
of Manila which is the hub of commercial and cultural activities in
Manila Metropolitan Area;
      WHEREAS, certain portions of the districts of Ermita and
Malate known as the Tourist Belt are still classified as Class "A"
Residential Zones and Class "B" Residential Zones where hotels
and other business establishments such as curio stores, souvenir
shops, handicraft display centers and the like are not allowed
under the existing zoning plan in the City of Manila;
      WHEREAS, the presence of such establishments in the area
would not only serve as an attraction for tourists but are dollar
earning enterprises as well, which tourist areas all over the world
cannot do without;
      NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me under the
Constitution as Commander-in-Chief of all the Armed Forces of
the Philippines   and pursuant to Proclamation No. 1081, dated
September 21, 1972, and General Order No. 1, dated September
22, 1972, as amended, do hereby order and decree the
classification as a Commercial Zone of that portion of the Ermita-
Malate area bounded by Teodoro M. Kalaw, Sr. Street in the
north; Taft Avenue in the east; Vito Cruz Street in the south and
Roxas Boulevard in the west. PROVIDED, HOWEVER, That no
permit shall be granted for the establishment of any new
warehouse or open storage depot, dump or yard, motor repair
shop, gasoline service station, light industry with any machinery
or funeral establishment in these areas, and PROVIDED,
FURTHER, That for purposes of realty tax assessment on
properties situated therein, lands and buildings used exclusively
for residential purposes by the owners themselves shall remain
assessed as residential properties.
      All laws, ordinances, orders, rules and regulations which are
inconsistent with this Decree are hereby repealed or modified
accordingly.
      This Decree shall take effect immediately.
      Done in the City of Manila this 28 th day of June in the year of
Our Lord, nineteen hundred and seventy-four.
14
 RTC Records, pp. 11-13.
15
 Id. at 158-171.
16
 Id. at 160.
17
 41 Phil. 103 (1920); see also Samson v. Mayor of Bacolod City,
G.R. No. L-28745, 23 October 1974, 60 SCRA 267.
18
 RTC Records, p. 161.
19
 Approved on 18 June 1949.
20
 RTC Records, p. 160.
21
 Supra note 18.
22
 Id. at 164.
23
 Ibid.
24
 Id. at 165-169.
25
 Id. at 84.
26
 Id. at 453. preliminary injunction issued by the RTC, enjoining the closure of
a certain establishment pursuant to the Ordinance.
27
 Rollo, pp. 6 and 72.
58
 Homeowners' Asso. of the Phil., Inc. v. Municipal Board of the
28 City of Manila, 133 Phil. 903, 907 (1968).
 Id. at 6.

59
29  Cruz, Isagani A., Constitutional Law 104 (1998).
 Dated 12 December 1994; Id. at 73.

60
30  See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila,
 Id. at 2.
21 Phil. 486 (1912); Case v. Board of Health, 24 Phil. 256 (1913).
31
 Supra note 13. 61
 Balacuit v. CFI of Agusan del Norte, No. L-38429, 30 June 1988,
163 SCRA 182, 191-193.
32
 Rollo, p. 13.
62
 Cruz, supra note 59 at 56.
33
 Id. at 190-201.
63
 Ermita-Malate Hotel and Motel Operators Assoc. Inc. v. City
34
 Id. at 16, 194, 198. Mayor of Manila, supra note 49.

35
 Id. at 19, 22, 25-26, 199. 64
 Id. at   858-859.

36
 Id. at 150-180. 65
 Section 458 (a) 1 (v), the Code.

37
 Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992,
207   SCRA 157, 161; Solicitor General v. Metropolitan Manila
Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837,
845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097,
20 July 1994, 234 SCRA 255, 268-267.
66
 Catechism of the Catholic Church, Definitive Edition, p. 101;
ECCE and Word & Life Publications, Don Bosco Compound, Makati.
67
 Lim v. Court of Appeals, supra note 57 at 867.

68
38  Rubi v. Provincial Board 39 Phil. 660 (1919), as cited   in
 See ART. 7, par. (3) of the Civil Code which reads, thus:
Morfe v. Mutuc, 130 Phil. 415 (1968).

. . . 69
 Morfe v. Mutuc, 130 Phil. 415, 440 (1968).

      Administrative or executive acts, orders and regulations shall 70

 408 U.S.   572.
be valid only when they are not contrary to the laws or the
Constitution.
71
 See Lawrence v. Texas, 539 U.S. 558 (2003).
39
 Magtajas v. Pryce Properties Corp, Inc., G.R. No. 111097, 20
72
July 1994, 234 SCRA 255, 270-271.  Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-
1564, 23 November 2004, J. TINGA, ponente.
40
 Id. at 273.
73
 Lawrence v. Texas, supra note 70.
41
 Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil.
74
956, 968-969 (2000).  Morfe v. Mutuc, supra note 68 at 442.

42 75
 Metropolitan Manila Devt. Authority v. Bel-Air Village Asso., 385  Id. at 442-443, citing Laski, Liberty in the Modern State, 44
Phil. 586, 603 (2000), citing Sections 468 (a), 458 (a), and 447 (1944).
(a), Book III, Local Government Code of 1991.
76
 Id. at 444-445, citing Emerson, Nine Justices in Search of a
43
 16 C.J.S., pp. 562-565. Doctrine, 64 Mich. Law. Rev. 219, 229 (1965).

44 77
 Art. II, Declaration of principles and state policies, 1987 const.  People v. Fajardo, et al., 104 Phil. 443, 447 (1958).

45 78
 Ibid.  Ibid. citing Arverne Bay Const. Co. v. Thatcher (N.Y.) 117 ALR.
1110, 1116.
46
 Art. III, Bill of Rights, 1987 Const.
79
 Chemerinsky, supra note 53 at 616.
47
 Ibid.
80
 Id. at 617.
48
 Id. at Sec. 9; See also Cruz, Isagani A., Constitutional Law 97
81
(1998).  260 U.S. 393, 415 (1922).

49 82
 Ermita-Malate Hotel and Motel Operators Association,  Id. at 413-415.
Inc. v. City Mayor of Manila, 20 Phil. 849, 860 (1967).
83
 See Penn Central Transportation Co. v. New York City, 438 U.S.
50
 See In re Lutker, Okl. Cr., 274 P. 2d 786, 789, 790. 104 (1978).

51 84
 Supra note 43 at 1150-1151.  Chemerinsky, supra note 53 at 623-626.

52 85
 See Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919).  See Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992).
53
 Chemerinsky, Erwin, Constitutional Law Principles And Policies,
2nd Ed. 523 (2002). 86
 Ibid.

54 87
 Id.   at 523-524.  Chemerinsky, supra note 53 at 166.

55 88
 See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).  Supra note 82.

56 89
 Chemerinsky, supra note 53 at 524.  Cruz, supra note 59 at 38.

57 90
 Lim v. Court of Appeals, 435 Phil. 857, 868 (2002); This is a  People v. Fajardo, supra note 76 at 443,
related case involving the same Ordinance challenged in this case. 448 citing Tews v. Woolhiser (1933) 352 I11. 212, 185 N.E. 827.
The Court denied the petition questioning the writ of prohibitory
91 120
 Id. at 446-447.  Francisco, supra note 113 at 178-179; See King, et
al. v. Hernaez, etc., et al., 114 Phil. 730, 739 (1962).
92
 Id. at 447, citing Schloss Poster Adv. Co., Inc. v. City of Rock
121
Hill, et al., 2 SE (2d), pp. 394-395; People v. Nazario, No. L-  Chua Lao, etc., et al. v. Raymundo, etc., et al., 104 Phil. 302,
44143, 31 August 1988, 165 SCRA 186, 195. 307 (1958).

93 122
 402 U.S. 611 (1971).  G.R. No. 102782, 11 December 1991, 204 SCRA 837.

94 123
 No. L-44143, 31 August 1988, 165 SCRA 186, 195.  Id. at 847.

95 124
 493 U.S. 215 (1990).  Balacuit v. CFI of Agusan del Norte, supra note 61 at 198-199.

96
 Supra note 49.

97
 De la Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490, 503
(1983).

98
 See Ichong v. Hernandez, 101 Phil. 1155 (1957).

99
 16B Am Jur 2d 779 299 citing State of Missouri ex rel.
Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208
(1938), reh'g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437
(1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d
217 (1939).

100
 16B Am Jur 2d 779 299 citing Romer v. Evans, 517 U.S.
620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 109 Ed. Law Rep. 539,
70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH)
44013 (1996); Walker v. Board of Supervisors of Monroe County,
224 Miss. 801, 81 So. 2d 225 (1955), cert. denied, 350 U.S. 887,
76 S. Ct. 142, 100 L. Ed. 782 (1955); Preisler v. Calcaterra, 362
Mo. 662, 243 S.W. 2d 62 (1951).

101
 Supra note 52 at 145.

102
 Nuñez v. Sandiganbayan, 197 Phil. 407 (1982).

103
 Cruz, supra note 59 at 125.

104
 See People v. Cayat, 68 Phil. 12 (1939).

105
 See  Craig v. Boren, 429 U.S. 190 (1976).

106
 Supra note 17.

107
 Id. at 108 (1920).

108
 81 Phil. 33 (1948).

109
 Id. at 38.

110
 Rollo, p. 19.

111
 RTC Records, p. 409; The Decision of the Regional Trial Court
of Manila, Branch 55 in the case of Cotton Club Corporation,
Inc. v. Hon. Alfredo S. Lim, etc., et al., Civil Case No. 93-66551;  
Dated 28 July 1993; Penned by Judge Hermogenes R. Liwag;
Citing Shaw, Harry, Punctuate it Right! Everday Handbooks 125-
126.

112
 Id. at 408.

113
 City of Ozamis v. Lumapas, No. L-30727, 15 July 1975, 65
SCRA 33, 42.

114
 Francisco, Vicente J., Statutory Construction, Second Edition
172   (1959); See Pepsi-Cola Bottling Company of the Philippines,
Inc. v. Municipality of Tanauan, Leyte, et al., 161 Phil. 591, 605
(1976).

115
 Supra note 107 at 33.

116
 Agpalo, Ruben   F., Statutory Construction 296 (1986).

117
 Francisco, supra note 113 at 271.

118
 Crawford, Earl T., The Construction of Statutes 196-197
(1940); See Mecano v. Commission on Audit, G.R. No. 103982,
11 December 1992, 216 SCRA 500, 505.

119
 See Estate of Gregoria Francisco v. Court of Appeals, G.R. No.
95279, 25 July 1991, 199 SCRA 595, 601.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24693             July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION,
INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in
an action for prohibition is whether Ordinance No. 4760 of the City of Manila
is violative of the due process clause. The lower court held that it is and
adjudged it "unconstitutional, and, therefore, null and void." For reasons to
be more specifically set forth, such judgment must be reversed, there being
a failure of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5,
1963 by the petitioners, Ermita-Malate Hotel and Motel Operators
Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu,
who is "the president and general manager of the second petitioner" against
the respondent Mayor of the City of Manila who was sued in his capacity as
such "charged with the general power and duty to enforce ordinances of the
City of Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances." (par. 1). It was alleged that the
petitioner non-stock corporation is dedicated to the promotion and
protection of the interest of its eighteen (18) members "operating hotels and
motels, characterized as legitimate businesses duly licensed by both
national and city authorities, regularly paying taxes, employing and giving
livelihood to not less than 2,500 person and representing an investment of
more than P3 million." 1 (par. 2). It was then alleged that on June 13, 1963,
the Municipal Board of the City of Manila enacted Ordinance No. 4760,
approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who
was at the time acting as Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in
detail. There was the assertion of its being beyond the powers of the
Municipal Board of the City of Manila to enact insofar as it would regulate
motels, on the ground that in the revised charter of the City of Manila or in
any other law, no reference is made to motels; that Section 1 of the
challenged ordinance is unconstitutional and void for being unreasonable
and violative of due process insofar as it would impose P6,000.00 fee per
annum for first class motels and P4,500.00 for second class motels; that the
provision in the same section which would require the owner, manager,
keeper or duly authorized representative of a hotel, motel, or lodging house
to refrain from entertaining or accepting any guest or customer or letting any
room or other quarter to any person or persons without his filling up the
prescribed form in a lobby open to public view at all times and in his
presence, wherein the surname, given name and middle name, the date of
birth, the address, the occupation, the sex, the nationality, the length of stay
and the number of companions in the room, if any, with the name,
relationship, age and sex would be specified, with data furnished as to his
residence certificate as well as his passport number, if any, coupled with a
certification that a person signing such form has personally filled it up and
affixed his signature in the presence of such owner, manager, keeper or
duly authorized representative, with such registration forms and records
kept and bound together, it also being provided that the premises and
facilities of such hotels, motels and lodging houses would be open for
inspection either by the City Mayor, or the Chief of Police, or their duly
authorized representatives is unconstitutional and void again on due
process grounds, not only for being arbitrary, unreasonable or oppressive
but also for being vague, indefinite and uncertain, and likewise for the
alleged invasion of the right to privacy and the guaranty against self-
incrimination; that Section 2 of the challenged ordinance classifying motels
into two classes and requiring the maintenance of certain minimum facilities
in first class motels such as a telephone in each room, a dining room or,
restaurant and laundry similarly offends against the due process clause for
being arbitrary, unreasonable and oppressive, a conclusion which applies to
the portion of the ordinance requiring second class motels to have a dining
room; that the provision of Section 2 of the challenged ordinance prohibiting
a person less than 18 years old from being accepted in such hotels, motels,
lodging houses, tavern or common inn unless accompanied by parents or a
lawful guardian and making it unlawful for the owner, manager, keeper or
duly authorized representative of such establishments to lease any room or
portion thereof more than twice every 24 hours, runs counter to the due
process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section
4 of the challenged ordinance for a subsequent conviction would, cause the
automatic cancellation of the license of the offended party, in effect causing
the destruction of the business and loss of its investments, there is once
again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final
judgment declaring the above ordinance null and void and unenforceable.
The lower court on July 6, 1963 issued a writ of preliminary injunction
ordering respondent Mayor to refrain from enforcing said Ordinance No.
4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the
personal circumstances regarding the respondent Mayor and of the fact that
petitioners are licensed to engage in the hotel or motel business in the City
of Manila, of the provisions of the cited Ordinance but a denial of its alleged
nullity, whether on statutory or constitutional grounds. After setting forth that
the petition did fail to state a cause of action and that the challenged
ordinance bears a reasonable relation, to a proper purpose, which is to curb
immorality, a valid and proper exercise of the police power and that only the
guests or customers not before the court could complain of the alleged
invasion of the right to privacy and the guaranty against self incrimination,
with the assertion that the issuance of the preliminary injunction ex
parte was contrary to law, respondent Mayor prayed for, its dissolution and
the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a
stipulation of facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators
Association, Inc. and Hotel del Mar Inc. are duly organized and
existing under the laws of the Philippines, both with offices in the
City of Manila, while the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and the intervenor Victor
Alabanza is a resident of Baguio City, all having the capacity to
sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent
City Mayor and chief executive of the City of Manila charged with
the general power and duty to enforce ordinances of the City of
Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business
of operating hotels and motels in Malate and Ermita districts in
Manila;
4. That on June 13, 1963, the Municipal Board of the City of
Manila enacted Ordinance No. 4760, which was approved on
June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting
City Mayor of Manila, in the absence of the respondent regular
City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of
the compilation of the ordinances of the City of Manila besides
inserting therein three new sections. This ordinance is similar to
the one vetoed by the respondent Mayor (Annex A) for the
reasons stated in its 4th Indorsement dated February 15, 1963
(Annex B);
5. That the explanatory note signed by then Councilor Herminio
Astorga was submitted with the proposed ordinance (now
Ordinance 4760) to the Municipal Board, copy of which is
attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of
P101,904.05 from license fees paid by the 105 hotels and motels
(including herein petitioners) operating in the City of
Manila.1äwphï1.ñët
Thereafter came a memorandum for respondent on January 22, 1965,
wherein stress was laid on the presumption of the validity of the challenged
ordinance, the burden of showing its lack of conformity to the Constitution
resting on the party who assails it, citing not only U.S. v. Salaveria, but
likewise applicable American authorities. Such a memorandum likewise
refuted point by point the arguments advanced by petitioners against its
validity. Then barely two weeks later, on February 4, 1965, the
memorandum for petitioners was filed reiterating in detail what was set forth
in the petition, with citations of what they considered to be applicable
American authorities and praying for a judgment declaring the challenged
ordinance "null and void and unenforceable" and making permanent the writ
of preliminary injunction issued.
After referring to the motels and hotels, which are members of the
petitioners association, and referring to the alleged constitutional questions
raised by the party, the lower court observed: "The only remaining issue
here being purely a question of law, the parties, with the nod of the Court,
agreed to file memoranda and thereafter, to submit the case for decision of
the Court." It does appear obvious then that without any evidence submitted
by the parties, the decision passed upon the alleged infirmity on
constitutional grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the
conclusion that "the challenged Ordinance No. 4760 of the City of Manila,
would be unconstitutional and, therefore, null and void." It made permanent
the preliminary injunction issued against respondent Mayor and his agents
"to restrain him from enforcing the ordinance in question." Hence this
appeal.
As noted at the outset, the judgment must be reversed. A decent regard for
constitutional doctrines of a fundamental character ought to have
admonished the lower court against such a sweeping condemnation of the
challenged ordinance. Its decision cannot be allowed to stand, consistently
with what has hitherto been the accepted standards of constitutional
adjudication, in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any
evidence to offset the presumption of validity that attaches to a challenged
statute or ordinance. As was expressed categorically by Justice Malcolm:
"The presumption is all in favor of validity x x x . The action of the elected
representatives of the people cannot be lightly set aside. The councilors
must, in the very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances which
surround the subject and necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that the regulations are
essential to the well being of the people x x x . The Judiciary should not
lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation. 2
It admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face which is not the case here. The principle has
been nowhere better expressed than in the leading case of O'Gorman &
Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court
through Justice Brandeis tersely and succinctly summed up the matter thus:
The statute here questioned deals with a subject clearly within the scope of
the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence
deprives the plaintiff of due process of law. As underlying questions of fact
may condition the constitutionality of legislation of this character, the
resumption of constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute." No such factual
foundation being laid in the present case, the lower court deciding the
matter on the pleadings and the stipulation of facts, the presumption of
validity must prevail and the judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is
fatally defective as being repugnant to the due process clause of the
Constitution. The mantle of protection associated with the due process
guaranty does not cover petitioners. This particular manifestation of a police
power measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold otherwise would be to
unduly restrict and narrow the scope of police power which has been
properly characterized as the most essential, insistent and the least
limitable of powers, 4 extending as it does "to all the great public needs." 5 It
would be, to paraphrase another leading decision, to destroy the very
purpose of the state if it could be deprived or allowed itself to be deprived of
its competence to promote public health, public morals, public safety and
the genera welfare.6 Negatively put, police power is "that inherent and
plenary power in the State which enables it to prohibit all that is hurt full to
the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely
enacted to minimize certain practices hurtful to public morals. The
explanatory note of the Councilor Herminio Astorga included as annex to
the stipulation of facts, speaks of the alarming increase in the rate of
prostitution, adultery and fornication in Manila traceable in great part to the
existence of motels, which "provide a necessary atmosphere for clandestine
entry, presence and exit" and thus become the "ideal haven for prostitutes
and thrill-seekers." The challenged ordinance then proposes to check the
clandestine harboring of transients and guests of these establishments by
requiring these transients and guests to fill up a registration form, prepared
for the purpose, in a lobby open to public view at all times, and by
introducing several other amendatory provisions calculated to shatter the
privacy that characterizes the registration of transients and guests."
Moreover, the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than legal" and
at the same time, to increase "the income of the city government." It would
appear therefore that the stipulation of facts, far from sustaining any attack
against the validity of the ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal
of its approval, ordinances punishing vagrancy and classifying a pimp or
procurer as a vagrant;8 provide a license tax for and regulating the
maintenance or operation of public dance halls;9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of
panguingui on days other than Sundays or legal holidays; 13 prohibiting the
operation of pinball machines; 14 and prohibiting any person from keeping,
conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used, 15 all of which are intended to protect public
morals.
On the legislative organs of the government, whether national or local,
primarily rest the exercise of the police power, which, it cannot be too often
emphasized, is the power to prescribe regulations to promote the health,
morals, peace, good order, safety and general welfare of the people. In
view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police
power insofar as it may affect the life, liberty or property of any person is
subject to judicial inquiry. Where such exercise of police power may be
considered as either capricious, whimsical, unjust or unreasonable, a denial
of due process or a violation of any other applicable constitutional guaranty
may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the
objection is raised to the question of due process. 16 There is no controlling
and precise definition of due process. It furnishes though a standard to
which the governmental action should conform in order that deprivation of
life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a
substantive requisite to free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal infirmity sufficient to spell
its doom? It is responsiveness to the supremacy of reason, obedience to
the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official action,
to paraphrase Cardozo, must not outrun the bounds of reason and result in
sheer oppression. Due process is thus hostile to any official action marred
by lack of reasonableness. Correctly it has been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts
fealty "to those strivings for justice" and judges the act of officialdom of
whatever branch "in the light of reason drawn from considerations of
fairness that reflect [democratic] traditions of legal and political thought." 18 It
is not a narrow or "technical conception with fixed content unrelated to time,
place and circumstances,"19 decisions based on such a clause requiring a
"close and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or
pedantically in slavery to form or phrases. 21
It would thus be an affront to reason to stigmatize an ordinance enacted
precisely to meet what a municipal lawmaking body considers an evil of
rather serious proportion an arbitrary and capricious exercise of authority. It
would seem that what should be deemed unreasonable and what would
amount to an abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be more specific, the
Municipal Board of the City of Manila felt the need for a remedial measure.
It provided it with the enactment of the challenged ordinance. A strong case
must be found in the records, and, as has been set forth, none is even
attempted here to attach to an ordinance of such character the taint of
nullity for an alleged failure to meet the due process requirement. Nor does
it lend any semblance even of deceptive plausibility to petitioners'
indictment of Ordinance No. 4760 on due process grounds to single out
such features as the increased fees for motels and hotels, the curtailment of
the area of freedom to contract, and, in certain particulars, its alleged
vagueness.
Admittedly there was a decided increase of the annual license fees
provided for by the challenged ordinance for hotels and motels, 150% for
the former and over 200% for the latter, first-class motels being required to
pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has
been the settled law however, as far back as 1922 that municipal license
fees could be classified into those imposed for regulating occupations or
regular enterprises, for the regulation or restriction of non-useful
occupations or enterprises and for revenue purposes only. 22 As was
explained more in detail in the above Cu Unjieng case: (2) Licenses for non-
useful occupations are also incidental to the police power and the right to
exact a fee may be implied from the power to license and regulate, but in
fixing amount of the license fees the municipal corporations are allowed a
much wider discretion in this class of cases than in the former, and aside
from applying the well-known legal principle that municipal ordinances must
not be unreasonable, oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The desirability of imposing
restraint upon the number of persons who might otherwise engage in non-
useful enterprises is, of course, generally an important factor in the
determination of the amount of this kind of license fee. Hence license fees
clearly in the nature of privilege taxes for revenue have frequently been
upheld, especially in of licenses for the sale of liquors. In fact, in the latter
cases the fees have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed
the doctrine earlier announced by the American Supreme Court that
taxation may be made to implement the state's police power. Only the other
day, this Court had occasion to affirm that the broad taxing authority
conferred by the Local Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with the only limitation
that the tax so levied is for public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by
the City of Manila in imposing licenses for revenue, it has been explicitly
held in one case that "much discretion is given to municipal corporations in
determining the amount," here the license fee of the operator of a massage
clinic, even if it were viewed purely as a police power measure. 26 The
discussion of this particular matter may fitly close with this pertinent citation
from another decision of significance: "It is urged on behalf of the plaintiffs-
appellees that the enforcement of the ordinance could deprive them of their
lawful occupation and means of livelihood because they can not rent stalls
in the public markets. But it appears that plaintiffs are also dealers in
refrigerated or cold storage meat, the sale of which outside the city markets
under certain conditions is permitted x x x . And surely, the mere fact, that
some individuals in the community may be deprived of their present
business or a particular mode of earning a living cannot prevent the
exercise of the police power. As was said in a case, persons licensed to
pursue occupations which may in the public need and interest be affected
by the exercise of the police power embark in these occupations subject to
the disadvantages which may result from the legal exercise of that power." 27
Nor does the restriction on the freedom to contract, insofar as the
challenged ordinance makes it unlawful for the owner, manager, keeper or
duly authorized representative of any hotel, motel, lodging house, tavern,
common inn or the like, to lease or rent room or portion thereof more than
twice every 24 hours, with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a limitation cannot be
viewed as a transgression against the command of due process. It is
neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises could
be, and, according to the explanatory note, are being devoted. How could it
then be arbitrary or oppressive when there appears a correspondence
between the undeniable existence of an undesirable situation and the
legislative attempt at correction. Moreover, petitioners cannot be unaware
that every regulation of conduct amounts to curtailment of liberty which as
pointed out by Justice Malcolm cannot be absolute. Thus: "One thought
which runs through all these different conceptions of liberty is plainly
apparent. It is this: 'Liberty' as understood in democracies, is not license; it
is 'liberty regulated by law.' Implied in the term is restraint by law for the
good of the individual and for the greater good of the peace and order of
society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is
necessarily subject to reasonable restraint by general law for the common
good x x x The liberty of the citizen may be restrained in the interest of the
public health, or of the public order and safety, or otherwise within the
proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies
at the bottom of the enactment of said law, and the state in order to promote
the general welfare may interfere with personal liberty, with property, and
with business and occupations. Persons and property may be subjected to
all kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this fundamental aim of our
Government the rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of
liberty and authority in his mind through education and personal discipline,
so that there may be established the resultant equilibrium, which means
peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation
because of undue deprivation of freedom to contract, People v. Pomar,30 no
longer "retains its virtuality as a living principle. The policy of laissez
faire has to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved
were freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the
liberty curtailed affects at the most rights of property, the permissible scope
of regulatory measure is wider.32 How justify then the allegation of a denial
of due process?
Lastly, there is the attempt to impugn the ordinance on another due process
ground by invoking the principles of vagueness or uncertainty. It would
appear from a recital in the petition itself that what seems to be the
gravamen of the alleged grievance is that the provisions are too detailed
and specific rather than vague or uncertain. Petitioners, however, point to
the requirement that a guest should give the name, relationship, age and
sex of the companion or companions as indefinite and uncertain in view of
the necessity for determining whether the companion or companions
referred to are those arriving with the customer or guest at the time of the
registry or entering the room With him at about the same time or coming at
any indefinite time later to join him; a proviso in one of its sections which
cast doubt as to whether the maintenance of a restaurant in a motel is
dependent upon the discretion of its owners or operators; another proviso
which from their standpoint would require a guess as to whether the "full
rate of payment" to be charged for every such lease thereof means a full
day's or merely a half-day's rate. It may be asked, do these allegations
suffice to render the ordinance void on its face for alleged vagueness or
uncertainty? To ask the question is to answer it. From Connally v. General
Construction Co.33 to Adderley v. Florida,34 the principle has been
consistently upheld that what makes a statute susceptible to such a charge
is an enactment either forbidding or requiring the doing of an act that men of
common intelligence must necessarily guess at its meaning and differ as to
its application. Is this the situation before us? A citation from Justice Holmes
would prove illuminating: "We agree to all the generalities about not
supplying criminal laws with what they omit but there is no canon against
using common sense in construing laws as saying what they obviously
mean."35
That is all then that this case presents. As it stands, with all due allowance
for the arguments pressed with such vigor and determination, the attack
against the validity of the challenged ordinance cannot be considered a
success. Far from it. Respect for constitutional law principles so uniformly
held and so uninterruptedly adhered to by this Court compels a reversal of
the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction
issued lifted forthwith. With costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and
Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.
Footnotes
The eighteen members are Waldorf Hotel, Hotel Monte Carlo,
1 Merced County v. Fleming, Ill Cal. 46; 43 Pac. 392; Williams v.
Golden Gate Motel, Miami Hotel, Palm Spring Hotel, Flamingo
Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel, Paradise
Hotel, Mayfair Hotel, Siesta Court, Sun Valley Hotel, Springfield
Hotel, New Palace Hotel, Hotel del Mar Longbeach Hotel and Ritz
Motel.
2
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 Eboña v. Daet,
(1950) 85 Phil. 369.
3
282 US 251, 328, January 5, 1931.
4
Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163. Also:
"To Frankfurter the police power, true to its etymology is the
power to shape policy. It defies legal definition; as a response to
the dynamic aspects of society, it cannot be reduced to a
constitutional formula. The law must be sensitive to life; in
resolving cases, it must not fall back upon sterile claims; its
judgments are not derived from an abstract duel between liberty
and the police power. Instead, in a world of trusts and unions and
large-scale industry, it must meet the challenge of drastic social
change. For him as for Holmes, 'society is more than bargain and
business' and the jurist's art rises to no higher peak than in
vindicating interests not represented by the items in a balance-
sheet. In a progressive society, new interests emerge, new
attitudes appeal, social consciousness quickens. In the face of
the unknown one cannot choose with certainty. Nor as yet, has
the whole of truth been brought up from its bottomless well and
how fragile in scientific proof is the ultimate validity of any
particular economic adjustment. Social development is a process
of trial and error; in the making of policy the fullest possible
opportunity must be given for the play of the human mind. If
Congress or legislature does not regulate, laissez faire — not the
individual — must be the regulator. (Hamilton, Preview of a
Justice (1939) 48 Yale Law Journal, 819).
5
Noble state Bank v. Haskell, 219 U.S. 412.
6
U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.
7
Rubi v. Provincial Board, (1918) 39 Phil. 660.
8
U.S. vs. Giner Cruz, (1918) 38 Phil. 677.
9
U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v.
Belderol, L-15719, May 31, 1961; Lapera v. Vicente, L-18102,
June 30, 1962.
10
U.S. v. Pacis, (1915) 31 Phil. 524.
11
U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson,
(1913) 26 Phil. 1; People vs. Chan Hong, (1938) 65 Phil. 625.
12
U.S. v. Tamparong, (1915) 31 Phil. 321.
13
U.S. v. Salaveria, (1918) 39 Phil. 102.
Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v.
14
City of Manila, L-17252, May 31, 1961.
15
U.S. v. Ten Yu, (1912) 24 Phil. 1.
16
There is no occasion to consider even cursorily the alleged
invasion of the right of privacy or the prohibition against self-
incrimination. Petitioners obviously are not the proper parties to
do so. Nor may such an incurable defect be remedied by an
accommodating intervenor "who has always taken advantage of
as he exclusively relies on, the facilities, services and
accommodations offered by petitioner-motels. A general
merchant, doing business not only in Baguio City but in the City of
Manila, has no legitimate cause for complaint. At least, not
according to the case as it has been developed.
Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938)
17
pp. 32- 33.
18
Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.
19
Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.
20
Bartkus v. Illinois, (1959) 359 U.S. 121.
21
Pearson v. McGraw, (1939) 308 U.S. 313.
22
Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.
23
Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of
Chicago, 120 Ill. 627; 12 N.E., 227; United States Distilling Co. v.
City of Chicago, 112 Ill. 19: Drew County v. Bennet, 43 Ark. 364;
City Council of West Point, 68 Ga. 816; Cheny v. Shellbyville, 19
Ind. 84; Wiley y. Owens, 39 Ind. 429; Sweet v. City of Wabash,
41 Ind. 7; Jones v. Grady, 25 La. Ann. 586; Goldsmith v. City of
New Orleans, 31 La. Ann. 646; People ex rel., Cramer v.
Medberry, 39 N.Y.S. 207; 17 Misc. Rep., 8 ; McGuigan v. Town of
Belmont, 89 Wis. 637; 62 N.W., 421; Ex parte Burnett 30 Ala.
461; Craig v. Burnett 32 Ala., 728, and Muhlenbrinck v. Long
Branch Commissioner, 42 N.J.L. 364; 36 Am. Rep., 518. At pp.
829-830.
98 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean,
24
301 U.S. 412, 81 L. Ed. 1193; U.S. v. Butler, 297 US 1, 80 L. Ed
477; M'Culloch v. Maryland, 4 Wheat 316, 4 L. Ed 579. The Lutz
decision was followed in Republic v. Bacolod Murcia Milling, L-
19824, July 9, 1966.
Ormoc Sugar Co. v. Municipal Board of Ormoc City, L-24322,
25
July 21, 1967.
Physical Therapy Organization v. Municipal Board, (1957) 101
26
Phil. 1142.
27
Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654,
citing City of New Orleans v. Stafford, 27 L. Ann. 417.

Rubi v. Provincial Board, (1919) 39 Phil. 660, at 706, citing Hall

28

v. Geiger-Jones (1916), 242 U.S. 539; Hardie-Tynes

Manufacturing Co. vs. Cruz (1914), 189 Ala. 66.

29
Calalang v. Williams (1940), 70 Phil. 726, at 733-734.

30
46 Phil. 440 (1924). The Philippines was then under American
sovereignty, American Supreme Court decisions having thus an
obligatory effect. No alternative was left to this Court except to
follow the then controlling decision in Adkins v. Children's
Hospital (1924), 261 U.S. 525, which subsequently was overruled
in West Coast Hotel v. Parrish (1937), 300 U.S. 379.

Antamok Goldfields Mining Co. v. Court (1940), 70 Phil. 340, at

31

360, quoting a concurring opinion of Justice Laurel in Ang Tibay

v. Court, G.R. No. 46496.

32
Cf. "In weighing arguments of the parties it is important to
distinguish between the due process clause of the Fourteenth
Amendment as an instrument for transmitting the principles of the
First Amendment and those cases in which it is applied for its
own sake. The test of legislation which collides with the
Fourteenth Amendment because it also collides with the
principles of the First, is much more definite than the test when
only the Fourteen is involved. Much of the vagueness of the due
process clause disappears when the specific prohibition of the
First become its standard. The right of a State to regulate, for
example, a public utility may well include, so far as the due
process test is concerned, power to impose all of the restrictions
which a legislature may have a 'rational basis' for adopting. But
freedoms of speech and of press, of assembly, and of worship
may well be infringed on such slender grounds. They are
susceptible of restriction only to prevent an immediate danger to
interests which the state may lawfully protect." (West Virginia
State Bd. of Edu v. Barnette, (1942), 319 U.S. 624, at 639).

33
269 U.S. 385 (1926).

34
17 L. ed. 2d 149, Nov. 14, 1966.

35
Roschen v. Ward (1929), 279 U. S. 337,339.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14355             October 31, 1919
THE CITY OF MANILA, plaintiff-appellant,
vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.
City Fiscal Diaz for appellant.
Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado,
Filemon Sotto, and Ramon Salinas for appellees.
JOHNSON, J.:
The important question presented by this appeal is: In expropriation
proceedings by the city of Manila, may the courts inquire into, and hear
proof upon, the necessity of the expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila presented a petition
in the Court of First Instance of said city, praying that certain lands, therein
particularly described, be expropriated for the purpose of constructing a
public improvement. The petitioner, in the second paragraph of the petition,
alleged:
That for the purpose of constructing a public improvement,
namely, the extension of Rizal Avenue, Manila, it is necessary for
the plaintiff to acquire ownership in fee simple of certain parcels
of land situated in the district of Binondo of said city within Block
83 of said district, and within the jurisdiction of this court.
The defendant, the Comunidad de Chinos de Manila [Chinese Community
of Manila], answering the petition of the plaintiff, alleged that it was a
corporation organized and existing under and by virtue of the laws of the
Philippine Islands, having for its purpose the benefit and general welfare of
the Chinese Community of the City of Manila; that it was the owner of
parcels one and two of the land described in paragraph 2 of the complaint;
that it denied that it was either necessary or expedient that the said parcels
be expropriated for street purposes; that existing street and roads furnished
ample means of communication for the public in the district covered by such
proposed expropriation; that if the construction of the street or road should
be considered a public necessity, other routes were available, which would
fully satisfy the plaintiff's purposes, at much less expense and without
disturbing the resting places of the dead; that it had a Torrens title for the
lands in question; that the lands in question had been used by the
defendant for cemetery purposes; that a great number of Chinese were
buried in said cemetery; that if said expropriation be carried into effect, it
would disturb the resting places of the dead, would require the expenditure
of a large sum of money in the transfer or removal of the bodies to some
other place or site and in the purchase of such new sites, would involve the
destruction of existing monuments and the erection of new monuments in
their stead, and would create irreparable loss and injury to the defendant
and to all those persons owning and interested in the graves and
monuments which would have to be destroyed; that the plaintiff was without
right or authority to expropriate said cemetery or any part or portion thereof
for street purposes; and that the expropriation, in fact, was not necessary as
a public improvement.
The defendant Ildefonso Tambunting, answering the petition, denied each
and every allegation of the complaint, and alleged that said expropriation
was not a public improvement; that it was not necessary for the plaintiff to
acquire the parcels of land in question; that a portion of the lands in
question was used as a cemetery in which were the graves of his
ancestors; that monuments and tombstones of great value were found
thereon; that the land had become quasi-public property of a benevolent
association, dedicated and used for the burial of the dead and that many
dead were buried there; that if the plaintiff deemed it necessary to extend
Rizal Avenue, he had offered and still offers to grant a right of way for the
said extension over other land, without cost to the plaintiff, in order that the
sepulchers, chapels and graves of his ancestors may not be disturbed; that
the land so offered, free of charge, would answer every public necessity on
the part of the plaintiff.
The defendant Feliza Concepcion de Delgado, with her husband, Jose
Maria Delgado, and each of the other defendants, answering separately,
presented substantially the same defense as that presented by
the Comunidad de Chinos de Manila and Ildefonso Tambunting above
referred to.
The foregoing parts of the defense presented by the defendants have been
inserted in order to show the general character of the defenses presented
by each of the defendants. The plaintiff alleged that the expropriation was
necessary. The defendants each alleged (a) that no necessity existed for
said expropriation and (b) that the land in question was a cemetery, which
had been used as such for many years, and was covered with sepulchres
and monuments, and that the same should not be converted into a street for
public purposes.
Upon the issue thus presented by the petition and the various answers, the
Honorable Simplicio del Rosario, judge, in a very elucidated opinion, with
very clear and explicit reasons, supported by ambulance of authorities,
decided that there was no necessity for the expropriation of the particular
strip of land in question, and absolved each and all of the defendants from
all liability under the complaint, without any finding as to costs.
From that judgment the plaintiff appealed and presented the above question
as its principal ground of appeal.
The theory of the plaintiff is, that once it has established the fact, under the
law, that it has authority to expropriate land, it may expropriate any land it
may desire; that the only function of the court in such proceedings is to
ascertain the value of the land in question; that neither the court nor the
owners of the land can inquire into the advisible purpose of purpose of the
expropriation or ask any questions concerning the necessities therefor; that
the courts are mere appraisers of the land involved in expropriation
proceedings, and, when the value of the land is fixed by the method
adopted by the law, to render a judgment in favor of the defendant for its
value.
That the city of Manila has authority to expropriate private lands
for public purposes, is not denied. Section 2429 of Act No. 2711 (Charter of
the city of Manila) provides that "the city (Manila) . . . may
condemn private property for public use."
The Charter of the city of Manila contains no procedure by which the said
authority may be carried into effect. We are driven, therefore, to the
procedure marked out by Act No. 190 to ascertain how the said authority
may be exercised. From an examination of Act No. 190, in its section 241,
we find how the right of eminent domain may be exercised. Said section
241 provides that, "The Government of the Philippine Islands, or of any
province or department thereof, or of any municipality, and any person, or
public or private corporation having, by law, the right to condemn private
property for public use, shall exercise that right in the manner hereinafter
prescribed."
Section 242 provides that a complaint in expropriation proceeding shall be
presented; that the complaint shall state with certainty the right of
condemnation, with a description of the property sought to be condemned
together with the interest of each defendant separately.
Section 243 provides that if the court shall find upon trial that the right to
expropriate the land in question exists, it shall then appoint commissioners.
Sections 244, 245 and 246 provide the method of procedure and duty of the
commissioners. Section 248 provides for an appeal from the judgment of
the Court of First Instance to the Supreme Court. Said section 248 gives the
Supreme Court authority to inquire into the right of expropriation on the part
of the plaintiff. If the Supreme Court on appeal shall determine that
no right of expropriation existed, it shall remand the cause to the Court of
First Instance with a mandate that the defendant be replaced in the
possession of the property and that he recover whatever damages he may
have sustained by reason of the possession of the plaintiff.
It is contended on the part of the plaintiff that the phrase in said section,
"and if the court shall find the right to expropriate exists," means simply
that, if the court finds that there is some law authorizing the plaintiff to
expropriate, then the courts have no other function than to authorize the
expropriation and to proceed to ascertain the value of the land involved; that
the necessity for the expropriation is a legislative and not a judicial question.
Upon the question whether expropriation is a legislative function
exclusively, and that the courts cannot intervene except for the purpose of
determining the value of the land in question, there is much legal
legislature. Much has been written upon both sides of that question. A
careful examination of the discussions pro and con will disclose the fact
that the decisions depend largely upon particular constitutional or statutory
provisions. It cannot be denied, if the legislature under proper authority
should grant the expropriation of a certain or particular parcel of land for
some specified public purpose, that the courts would be without jurisdiction
to inquire into the purpose of that legislation.
If, upon the other hand, however, the Legislature should grant general
authority to a municipal corporation to expropriate private
land for public purposes, we think the courts have ample authority in this
jurisdiction, under the provisions above quoted, to make inquiry and to hear
proof, upon an issue properly presented, concerning whether or not the
lands were private and whether the purpose was, in fact, public. In other
words, have no the courts in this jurisdiction the right, inasmuch as the
questions relating to expropriation must be referred to them (sec. 241, Act
No. 190) for final decision, to ask whether or not the law has been complied
with? Suppose in a particular case, it should be denied that the property is
not private property but public, may not the courts hear proof upon that
question? Or, suppose the defense is, that the purpose of the expropriation
is not public but private, or that there exists no public purpose at all, may
not the courts make inquiry and hear proof upon that question?
The city of Manila is given authority to expropriate private lands
for public purposes. Can it be possible that said authority confers the right
to determine for itself that the land is private and that the purpose is public,
and that the people of the city of Manila who pay the taxes for its support,
especially those who are directly affected, may not question one or the The legislative department of the government was rarely undertakes to
other, or both, of these questions? Can it be successfully contended that designate the precise property which should be taken for public use. It has
the phrase used in Act No. 190, "and if the court upon trial shall find that generally, like in the present case, merely conferred general authority to
such right exists," means simply that the court shall examine the statutes take land for public use when a necessity exists therefor. We believe that it
simply for the purpose of ascertaining whether a law exists authorizing the can be confidently asserted that, under such statute, the allegation of the
petitioner to exercise the right of eminent domain? Or, when the case necessity for the appropriation is an issuable allegation which it is
arrives in the Supreme Court, can it be possible that the phrase, "if the competent for the courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42
Supreme Court shall determine that no right of expropriation exists," that Am. St. Rep., 402, 407].)
that simply means that the Supreme Court shall also examine the
enactments of the legislature for the purpose of determining whether or not
There is a wide distinction between a legislative declaration that a
a law exists permitting the plaintiff to expropriate?
municipality is given authority to exercise the right of eminent domain, and a
decision by the municipality that there exist a necessity for the exercise of
We are of the opinion that the power of the court is not limited to that that right in a particular case. The first is a declaration simply that there
question. The right of expropriation is not an inherent power in a municipal exist reasons why the right should be conferred upon municipal corporation,
corporation, and before it can exercise the right some law must exist while the second is the application of the right to a particular case.
conferring the power upon it. When the courts come to determine the Certainly, the legislative declaration relating to the advisability of granting
question, they must only find (a) that a law or authority exists for the the power cannot be converted into a declaration that a necessity exists for
exercise of the right of eminent domain, but (b) also that the right or its exercise in a particular case, and especially so when, perhaps, the land
authority is being exercised in accordance with the law. In the present case in question was not within the territorial authority was granted.
there are two conditions imposed upon the authority conceded to the City of
Manila: First, the land must be private; and, second, the purpose must be
Whether it was wise, advisable, or necessary to confer upon a municipality
public. If the court, upon trial, finds that neither of these conditions exists or
the power to exercise the right of eminent domain, is a question with which
that either one of them fails, certainly it cannot be contended that the right is
the courts are not concerned. But when that right or authority is exercised
being exercised in accordance with law.
for the purpose of depriving citizens of their property, the courts are
authorized, in this jurisdiction, to make inquiry and to hear proof upon the
Whether the purpose for the exercise of the right of eminent domain is necessity in the particular case, and not the general authority.
public, is a question of fact. Whether the land is public, is a question of fact;
and, in our opinion, when the legislature conferred upon the courts of the
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is
Philippine Islands the right to ascertain upon trial whether the right exists
cited as a further conclusive authority upon the question that the necessity
for the exercise of eminent domain, it intended that the courts should inquire
for the exercise of the right of eminent domain is a legislative and not a
into, and hear proof upon, those questions. Is it possible that the owner of
judicial question. Cyclopedia, at the page stated, says:
valuable land in this jurisdiction is compelled to stand mute while his land is
being expropriated for a use not public, with the right simply to beg the city
of Manila to pay him the value of his land? Does the law in this jurisdiction In the absence of some constitutional or statutory provision to the
permit municipalities to expropriate lands, without question, simply for the contrary, the necessity and expediency of exercising the right of
purpose of satisfying the aesthetic sense of those who happen for the time eminent domain are questions essentially political and not judicial
being to be in authority? Expropriation of lands usually calls for public in their character. The determination of those questions (the
expense. The taxpayers are called upon to pay the costs. Cannot the necessity and the expediency) belongs to the sovereign power;
owners of land question the public use or the public necessity? the legislative department is final and conclusive, and the courts
have no power to review it (the necessity and the expediency) . . .
. It (the legislature) may designate the particular property to be
As was said above, there is a wide divergence of opinion upon the authority
condemned, and its determination in this respect cannot be
of the court to question the necessity or advisability of the exercise of the
reviewed by the courts.
right of eminent domain. The divergence is usually found to depend upon
particular statutory or constitutional provisions.
The volume of Cyclopedia, above referred to, cites many cases in support
of the doctrine quoted. While time has not permitted an examination of all of
It has been contended — and many cases are cited in support of that
said citations, many of them have been examined, and it can be confidently
contention, and section 158 of volume 10 of Ruling Case Law is cited as
asserted that said cases which are cited in support of the assertion that,
conclusive — that the necessity for taking property under the right of
"the necessity and expediency of exercising the right of eminent domain are
eminent domain is not a judicial question. But those who cited said section
questions essentially political and not judicial," show clearly and invariably
evidently overlooked the section immediately following (sec. 159), which
that in each case the legislature itself usually, by a special law, designated
adds: "But it is obvious that if the property is taken in the ostensible behalf
the particular case in which the right of eminent domain might be exercised
of a public improvement which it can never by any possibility serve, it is
by the particular municipal corporation or entity within the state. (Eastern R.
being taken for a use not public, and the owner's constitutional rights call for
Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn
protection by the courts. While many courts have used sweeping
Park Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70];
expression in the decisions in which they have disclaimed the power of
Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville,
supervising the power of supervising the selection of the sites of public
etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co.,
improvements, it may be safely said that the courts of the various states
229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction
would feel bound to interfere to prevent an abuse of the discretion
Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351
delegated by the legislature, by an attempted appropriation of land in utter
[erroneously cited as 242 U.S.].)
disregard of the possible necessity of its use, or when the alleged purpose
was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn.,
151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme
R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., Court of the United States said: "It is erroneous to suppose that the
620.) legislature is beyond the control of the courts in exercising the power of
eminent domain, either as to the nature of the use or the necessity to the
use of any particular property. For if the use be not public or no necessity
Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in
for the taking exists, the legislature cannot authorize the taking of private
support of the contention of the appellant, says:
property against the will of the owner, notwithstanding compensation may
be required."
The legislature, in providing for the exercise of the power of
eminent domain, may directly determine the necessity for
In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339,
appropriating private property for a particular improvement for
356), we find the Supreme Court of Porto Rico, speaking through Justice
public use, and it may select the exact location of the
MacLeary, quoting approvingly the following, upon the question which we
improvement. In such a case, it is well settled that the utility of the
are discussing: "It is well settled that although the legislature must
proposed improvement, the extent of the public necessity for its
necessarily determine in the first instance whether the use for which they
construction, the expediency of constructing it, the suitableness of
(municipalities, etc.) attempt to exercise the power is a public one or not,
the location selected and the consequent necessity of taking the
their (municipalities, etc.) determination is not final, but is subject to
land selected for its site, are all questions exclusively for the
correction by the courts, who may undoubtedly declare the statute
legislature to determine, and the courts have no power to
unconstitutional, if it shall clearly appear that the use for which it is
interfere, or to substitute their own views for those of the
proposed to authorize the taking of private property is in reality not public
representatives of the people.
but private." Many cases are cited in support of that doctrine.

Practically every case cited in support of the above doctrine has been
Later, in the same decision, we find the Supreme Court of Porto Rico says:
examined, and we are justified in making the statement that in each case
"At any rate, the rule is quite well settled that in the cases under
the legislature directly determined the necessity for the exercise of the right
consideration the determination of the necessity of taking a particular
of eminent domain in the particular case. It is not denied that if the necessity
piece or a certain amount of land rests ultimately with the courts." (Spring
for the exercise of the right of eminent domain is presented to the legislative
Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
department of the government and that department decides that there
exists a necessity for the exercise of the right in a particular case, that then
and in that case, the courts will not go behind the action of the legislature In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41
and make inquiry concerning the necessity. But, in the case of Wheeling, L. R. A., N. S., 1024]), the Supreme Court of Connecticut approvingly
etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., quoted the following doctrine from Lewis on Eminent Domain (3d ed.),
622, 628]), which was cited in support of the doctrine laid down in section section 599: "In all such cases the necessity of public utility of the proposed
158 above quoted, the court said: work or improvement is a judicial question. In all such cases, where the
authority is to take property necessary for the purpose, the necessity of
taking particular property for a particular purpose is a judicial one, upon
But when the statute does not designate the property to be taken
which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71
nor how may be taken, then the necessity of taking particular
S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky.,
property is a question for the courts. Where the application to
390, 403.)
condemn or appropriate is made directly to the court, the question
(of necessity) should be raised and decided in limene.
The taking of private property for any use which is not required by the
necessities or convenience of the inhabitants of the state, is an
unreasonable exercise of the right of eminent domain, and beyond the
power of the legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628,
633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc.
Co. vs. Ely, etc. Co., 132 Ky., 692, 697.)
In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537,
564), the Supreme Court of the State of Maryland, discussing the question
before us, said: "To justify the exercise of this extreme power (eminent
domain) where the legislature has left it to depend upon the necessity that
may be found to exist, in order to accomplish the purpose of the
incorporation, as in this case, the party claiming the right to the exercise of
the power should be required to show at least a reasonable degree of
necessity for its exercise. Any rule less strict than this, with the large and
almost indiscriminate delegation of the right to corporations, would likely
lead to oppression and the sacrifice of private right to corporate power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court
said: "Its right to condemn property is not a general power of condemnation,
but is limited to cases where a necessity for resort to private property is
shown to exist. Such necessity must appear upon the face of the petition to
condemn. If the necessary is denied the burden is upon the company
(municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed.,
852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)
It is true that naby decisions may be found asserting that what is a public
use is a legislative question, and many other decisions declaring with equal
emphasis that it is a judicial question. But, as long as there is a
constitutional or statutory provision denying the right to take land for any
use other than a public use, it occurs to us that the question whether
any particular use is a public one or not is ultimately, at least, a judicial
question. The legislative may, it is true, in effect declare certain uses to be
public, and, under the operation of the well-known rule that a statute will not
be declared to be unconstitutional except in a case free, or comparatively
free, from doubt, the courts will certainly sustain the action of the legislature
unless it appears that the particular use is clearly not of a public nature. The
decisions must be understood with this limitation; for, certainly, no court of
last resort will be willing to declare that any and every purpose which the
legislative might happen to designate as a public use shall be conclusively
held to be so, irrespective of the purpose in question and of its manifestly
private character Blackstone in his Commentaries on the English Law
remarks that, 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 therefor.
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court
of the United States said: "That government can scarcely be deemed free
where the rights of property are left solely defendant on the legislative body,
without restraint. The fundamental maxims of free government seem to
require that the rights of personal liberty and private property should be held
sacred. At least no court of justice in this country would be warranted in
assuming that the power to violate and disregard them — a power so
repugnant to the common principles of justice and civil liberty — lurked in
any general grant of legislature authority, or ought to be implied from any
general expression of the people. The people ought no to be presumed to
part with rights so vital to their security and well-being without very strong
and direct expression of such intention." (Lewis on Eminent Domain, sec.
603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La.
Ann., 182.)
Blackstone, in his Commentaries on the English Law said that the right to
own and possess land — a place to live separate and apart from others —
to retain it as a home for the family in a way not to be molested by others —
is one of the most sacred rights that men are heirs to. That right has been
written into the organic law of every civilized nation. The Acts of Congress
of July 1, 1902, and of August 29, 1916, which provide that "no law shall be
enacted in the Philippine Islands which shall deprive any person of his
property without due process of law," are but a restatement of the time-
honored protection of the absolute right of the individual to his property.
Neither did said Acts of Congress add anything to the law already existing
in the Philippine Islands. The Spaniard fully recognized the principle and
adequately protected the inhabitants of the Philippine Islands against the
encroachment upon the private property of the individual. Article 349 of the
Civil Code provides that: "No one may be deprived of his property unless it
be by competent authority, for some purpose of proven public utility, and
after payment of the proper compensation Unless this requisite (proven
public utility and payment) has been complied with, it shall be the duty of
the courts to protect the owner of such property in its possession or to
restore its possession to him , as the case may be."
The exercise of the right of eminent domain, whether directly by the State,
or by its authorized agents, is necessarily in derogation of private rights,
and the rule in that case is that the authority must be strictly construed. No
species of property is held by individuals with greater tenacity, and none is
guarded by the constitution and laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes with that right, and,
for greater public purposes, appropriates the land of an individual without
his consent, the plain meaning of the law should not be enlarged by doubtly
interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases
cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner without his consent is
one of the most delicate exercise of government authority. It is to be
watched with jealous scrutiny. Important as the power may be to the
government, the inviolable sanctity which all free constitutions attach to the
right of property of the citizens, constrains the strict observance of the
substantial provisions of the law which are prescribed as modes of the
exercise of the power, and to protect it from abuse. Not only must the
authority of municipal corporations to take property be expressly conferred
and the use for which it is taken specified, but the power, with all
constitutional limitation and directions for its exercise, must be strictly
pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases
cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)
It can scarcely be contended that a municipality would be permitted to take
property for some public use unless some public necessity existed therefor.
The right to take private property for public use originates in the necessity,
and the taking must be limited by such necessity. The appellant contends
that inasmuch as the legislature has given it general authority to take
private property for public use, that the legislature has, therefore, settled the
question of the necessity in every case and that the courts are closed to the
owners of the property upon that question. Can it be imagined, when the
legislature adopted section 2429 of Act No. 2711, that it thereby declared
that it was necessary to appropriate the property of Juan de la Cruz, whose
property, perhaps, was not within the city limits at the time the law was
adopted? The legislature, then, not having declared the necessity, can it be
contemplated that it intended that a municipality should be the sole judge of
the necessity in every case, and that the courts, in the face of the provision
that "if upon trial they shall find that a right exists," cannot in that trial inquire
into and hear proof upon the necessity for the appropriation in a particular
case?
The Charter of the city of Manila authorizes the taking of private property
for public use. Suppose the owner of the property denies and successfully
proves that the taking of his property serves no public use: Would the courts
not be justified in inquiring into that question and in finally denying the
petition if no public purpose was proved? Can it be denied that the courts
have a right to inquire into that question? If the courts can ask questions
and decide, upon an issue properly presented, whether the use is public or
not, is not that tantamount to permitting the courts to inquire into the
necessity of the appropriation? If there is no public use, then there is no
necessity, and if there is no necessity, it is difficult to understand how a
public use can necessarily exist. If the courts can inquire into the question
whether a public use exists or not, then it seems that it must follow that they
can examine into the question of the necessity.
The very foundation of the right to exercise eminent domain is a genuine
necessity, and that necessity must be of a public character. The
ascertainment of the necessity must precede or accompany, and not follow,
the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind.,
511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry.
etc. Co., 72 Ohio St., 368.)
The general power to exercise the right of eminent domain must not be
confused with the right to exercise it in a particular case. The power of the
legislature to confer, upon municipal corporations and other entities within
the State, general authority to exercise the right of eminent domain cannot
be questioned by the courts, but that general authority of municipalities or
entities must not be confused with the right to exercise it in particular
instances. The moment the municipal corporation or entity attempts to
exercise the authority conferred, it must comply with the conditions
accompanying the authority. The necessity for conferring the authority upon
a municipal corporation to exercise the right of eminent domain is
admittedly within the power of the legislature. But whether or not the
municipal corporation or entity is exercising the right in a particular case
under the conditions imposed by the general authority, is a question which
the courts have the right to inquire into.
The conflict in the authorities upon the question whether the necessity for
the exercise of the right of eminent domain is purely legislative and not
judicial, arises generally in the wisdom and propriety of the legislature in
authorizing the exercise of the right of eminent domain instead of in the
question of the right to exercise it in a particular case. (Creston Waterworks
Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the power of restricting the
exercise of eminent domain to the actual reasonable necessities of the case
and for the purposes designated by the law. (Fairchild vs. City of St. Paul.
48 Minn., 540.)
And, moreover, the record does not show conclusively that the plaintiff has
definitely decided that their exists a necessity for the appropriation of the
particular land described in the complaint. Exhibits 4, 5, 7, and E clearly
indicate that the municipal board believed at one time that other land might
be used for the proposed improvement, thereby avoiding the necessity of
distributing the quiet resting place of the dead.
Aside from insisting that there exists no necessity for the alleged
improvements, the defendants further contend that the street in question
should not be opened through the cemetery. One of the defendants alleges
that said cemetery is public property. If that allegations is true, then, of
course, the city of Manila cannot appropriate it for public use. The city of
Manila can only expropriate private property.
It is a well known fact that cemeteries may be public or private. The former
is a cemetery used by the general community, or neighborhood, or church,
while the latter is used only by a family, or a small portion of the community
or neighborhood. (11 C. J., 50.)
Where a cemetery is open to public, it is a public use and no part of the
ground can be taken for other public uses under a general authority. And
this immunity extends to the unimproved and unoccupied parts which are
held in good faith for future use. (Lewis on Eminent Domain, sec. 434, and
cases cited.)
The cemetery in question seems to have been established under
governmental authority. The Spanish Governor-General, in an order
creating the same, used the following language:
The cemetery and general hospital for indigent Chinese having
been founded and maintained by the spontaneous and fraternal
contribution of their protector, merchants and industrials,
benefactors of mankind, in consideration of their services to the
Government of the Islands its internal administration, government
and regime must necessarily be adjusted to the taste and
traditional practices of those born and educated in China in order
that the sentiments which animated the founders may be
perpetually effectuated.
It is alleged, and not denied, that the cemetery in question may be used by
the general community of Chinese, which fact, in the general acceptation of
the definition of a public cemetery, would make the cemetery in question
public property. If that is true, then, of course, the petition of the plaintiff
must be denied, for the reason that the city of Manila has no authority or
right under the law to expropriate public property.
But, whether or not the cemetery is public or private property, its
appropriation for the uses of a public street, especially during the lifetime of
those specially interested in its maintenance as a cemetery, should be a
question of great concern, and its appropriation should not be made for
such purposes until it is fully established that the greatest necessity exists
therefor.
While we do not contend that the dead must not give place to the living, and
while it is a matter of public knowledge that in the process of time
sepulchres may become the seat of cities and cemeteries traversed by
streets and daily trod by the feet of millions of men, yet, nevertheless such
sacrifices and such uses of the places of the dead should not be made
unless and until it is fully established that there exists an eminent necessity
therefor. While cemeteries and sepulchres and the places of the burial of
the dead are still within
the memory and command of the active care of the living; while they are still
devoted to pious uses and sacred regard, it is difficult to believe that even
the legislature would adopt a law expressly providing that such places,
under such circumstances, should be violated.
In such an appropriation, what, we may ask, would be the measure of
damages at law, for the wounded sensibilities of the living, in having the
graves of kindred and loved ones blotted out and desecrated by a common
highway or street for public travel? The impossibility of measuring the
damage and inadequacy of a remedy at law is too apparent to admit of
argument. To disturb the mortal remains of those endeared to us in life
sometimes becomes the sad duty of the living; but, except in cases
of necessity, or for laudable purposes, the sanctity of the grave, the last
resting place of our friends, should be maintained, and the preventative aid
of the courts should be invoked for that object. (Railroad
Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery
Association vs. The City of New Haven, 43 Conn., 234;
Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.)
In the present case, even granting that a necessity exists for the opening of
the street in question, the record contains no proof of the necessity of
opening the same through the cemetery. The record shows that adjoining
and adjacent lands have been offered to the city free of charge, which will
answer every purpose of the plaintiff.
For all of the foregoing, we are fully persuaded that the judgment of the
lower court should be and is hereby affirmed, with costs against the
appellant. So ordered.
Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.
Separate Opinions
MALCOLM, J., concurring:
The Government of the Philippine Islands is authorized by the Philippine Bill
to acquire real estate for public use by the exercise of the right of eminent
domain. (Act of Congress of July 1, 1902, sec. 63.) A portion of this power
has been delegated by the Philippine Legislature to the city of Manila, which
is permitted to "condemn private property for public use." (Administrative
Code of 1917, sec. 2429.) The Code of Civil Procedure, in prescribing how
the right of eminent domain may be exercised, also limits the condemnation
to "private property for public use." (Sec. 241.) As under the facts actually
presented, there can be no question that a public street constitutes a public
use, the only remaining question is whether or not the Chinese Cemetery
and the other property here sought to be taken by the exercise of the right
of eminent domain is "private property."
As narrowing our inquiry still further, let it be noted that cemeteries are of
two classes, public and private. A public cemetery is one used by the
general community, or neighborhood, or church; while a private cemetery is
one used only by a family, or small portion of a community. (Lay vs. State,
12 Ind. App., 362; Cemetery Association vs. Meninger [1875], 14 Kan.,
312.) Our specific question, then, is, whether the Chinese Cemetery in the
city of Manila is a public, or a private graveyard. If it be found to be the
former, it is not subject to condemnation by the city of Manila; if it be found
to be the latter, it is subject to condemnation.
The Chinese Cemetery of Manila was established during the Spanish
administration in the Philippines by public spirited Chinese. The order of the
Governor-General giving governmental recognition to the cemetery reads
as follows: "The cemetery and general hospital for indigent Chinese having
been founded and maintained by the spontaneous and fraternal contribution
of their protectors, merchants and industrials, benefactors of mankind, in
consideration of their services to the Government of the Islands, its internal
administration, government and regime, must necessarily be adjusted to the
taste and traditional practices of those born and educated in China in order
that the sentiments which animated the founders may be perpetually
effectuated." Sometimes after the inauguration of the new regime in the
Philippines, a corporation was organized to control the cemetery, and a
Torrens title for the lands in question was obtained.
From the time of its creation until the present the cemetery has been used
by the Chinese community for the burial of their dead. It is said that not less
than four hundred graves, many of them with handsome monuments, would
be destroyed by the proposed street. This desecration is attempted as to
the las t resting places of the dead of a people who, because of their
peculiar and ingrained ancestral workship, retain more than the usual
reverence for the departed. These facts lead us straight to the conclusion
that the Chinese Cemetery is not used by a family or a small portion of a
community but by a particular race long existing in the country and of
considerable numbers. The case, then, is one of where the city of Manila,
under a general authority permitting it to condemn private property for public
use, is attempting to convert a property already dedicated to a public use to
an entirely different public use; and this, not directly pursuant to legislative
authority, but primarily through the sole advice of the consulting architect.
Two well considered decisions coming from the American state courts on
almost identical facts are worthy of our consideration. The first is the case of
The Evergreen Cemetery Association vs. The City of New Haven ([1875],
43 Conn., 234), of cited by other courts. Here the City of New Haven,
Connecticut, under the general power conferred upon it to lay out,
construct, and maintain all necessary highways within its limits, proceeded
to widen and straighten one of its streets and in so doing took a small piece
of land belonging to the Evergreen Cemetery Association. This association
was incorporated under the general statute. The city had no special power
to take any part of the cemetery for such purposes. It was found that the
land taken was needed for the purposes of the cemetery and was not
needed for the purpose of widening and straightening the avenue. The court
said that it is unquestionable that the Legislature has the power to authorize
the taking of land already applied to one public use and devote it to another.
When the power is granted to municipal or private corporations in express
words, no question can arise. But, it was added, "The same land cannot
properly be used for burial lots and for a public highway at the same time. . .
. Land therefore applied to one use should not be taken for the other except
in cases on necessity. . . . There is no difficulty in effecting the desired
improvement by taking land on the other side of the street. . . . The idea of
running a public street, regardless of graves, monuments, and the feelings
of the living, through one of our public cemeteries, would be shocking to the
moral sense of the community, and would not be tolerated except upon the
direst necessity." It was then held that land already devoted to a public use
cannot be taken by the public for another use which is inconsistent with the
first, without special authority from the Legislature, or authority granted by
necessary and reasonable implication.
The second decision is that of Memphis State Line Railroad
Company vs. Forest Hill Cemetery Co. ([1906], 116 Tenn., 400.) Here the
purpose of the proceedings was to condemn a right of way for the railway
company through the Forest Hill Cemetery. The railroad proposed to run
through the southeast corner of the cemetery where no bodies were
interred. The cemetery had been in use for about eight years, and during
this period thirteen hundred bodies had been buried therein. The cemetery
was under the control of a corporation which, by its character, held itself out
as being willing to sell lots to any one who applies therefor and pays the
price demanded, except to members of the Negro race.1awph!l.net
It was found that there were two other routes along which the railroad might
be located without touching the cemetery, while the present line might be
pursued without interfering with Forest Hill Cemetery by making a curve
around it. In the court below the railroad was granted the right of
condemnation through the cemetery and damages were assessed. On
appeal, the certiorari applied for was granted, and the supersedeas
awarded. The court, in effect, found that the land of the Cemetery Company
was devoted to a public purpose, and that under the general language of
the Tennessee statute of eminent domain it could not be taken for another
public purpose. The court said that in process of time the sepulchres of the
dead "are made the seats of cities, and are traversed by streets, and daily
trodden by the feet of man. This is inevitable in the course of ages. But
while these places are yet within the memory and under the active care of
the living, while they are still devoted to pious uses, they are sacred, and we
cannot suppose that the legislature intended that they should be violated, in
the absence of special provisions upon the subject authorizing such
invasion, and indicating a method for the disinterment, removal, and
reinterment of the bodies buried, and directing how the expense thereof
shall be borne." Two members of the court, delivering a separate concurring
opinion, concluded with this significant and eloquent sentence: "The wheels
of commerce must stop at the grave."
For the foregoing reasons, and for others which are stated in the principal
decision, I am of the opinion that the judgment of the lower court should be
affirmed.
STREET, J., dissenting:
It may be admitted that, upon the evidence before us, the projected
condemnation of the Chinese Cemetery is unnecessary and perhaps ill-
considered. Nevertheless I concur with Justice Moir in the view that the
authorities of the city of Manila are the proper judges of the propriety of the
condemnation and that this Court should have nothing to do with the
question of the necessity of the taking.
MOIR, J., dissenting:
I dissent from the majority opinion in this case, which has not yet been
written, and because of the importance of the question involved, present my
dissent for the record.
This is an action by the city of Manila for the expropriation of land for an
extension of Rizal Avenue north. The petition for condemnation was
opposed by the "Comunidad de Chinos de Manila" and Ildefonso
Tambunting and various other who obtained permission of the trial court to
intervene in the case.
All of the defendants allege in their opposition that the proposed extension
of Rizal Avenue cuts through a part of the Chinese Cemetery, North of
Manila, and necessitates the destruction of many monuments and the
removal of many graves.
The Court of First Instance of Manila, Honorable S. del Rosario, judge after
hearing the parties, decided that there was no need for constructing the
street as and where proposed by the city, and dismissed the petition.
The plaintiff appealed and sets up the following errors:
1. The court erred in deciding that the determination of the
necessity and convenience of the expropriation of the lands of the
defendants lies with the court and not with the Municipal Board of
the city of Manila.
2. The court erred in permitting the presentation of proofs over
the objection and exception of the plaintiff tending to demonstrate
the lack of necessity of the projected street and the need of the
lands in question.
3. The court erred in declaring that the plaintiff had no right to
expropriate the lands in question.
4. The court erred in dismissing the complaint.
The right of the plaintiff to expropriate property for public use cannot be
denied. The "right of eminent domain is inherent in all sovereignties and
therefore would exist without any constitutional recognition . . . . The right of
eminent domain antedates constitutions . . . . The right can only be denied
or restricted by fundamental law and is right inherent in society." (15 Cyc.,
pp. 557-8.) .
This general right was recognized in the Philippine Code of Civil Procedure
effective October 1st, 1901, which prescribed the manner of exercising the
right. (Sections 241 et seq.)
It was further recognized in the Organic Act of July 1st, 1902, which
provides in section 74 "that the Government of the Philippine Islands may
grant franchises . . . including the authority to exercise the right of eminent
domain for the construction and operation of works of public utility and
service, and may authorize said works to be constructed and maintained
over and across the public property of the United States including . . .
reservations." This provisions is repeated in the Jones Law of August, 1916.
The legislature of the Islands conferred the right on the city of Manila.
(Section 2429, Administrative Code of 1917; section 2402, Administrative
Code of 1916.)
Clearly having the right of expropriation, the city of Manila selected the line
of its street and asked the court by proper order to place the plaintiff in
possession of the land described in the complaint, and to appoint
Commissioners to inspect the property, appraise the value, and assess the
damages. Instead of doing so, the court entered upon the question of the
right of the city to take the property and the necessity for the taking.
The court says:
The controversy relates to whether or not the Chinese Cemetery,
where a great majority of this race is buried and other persons
belonging to other nationalities have been formerly inhumed,
is private or public; whether or not said cemetery, in case it
is public, would be susceptible to expropriation for the purpose of
public improvements proposed by the city of Manila; whether or
not the latter is justified of the necessity and expediency of similar
expropriation before its right to the same would be upheld by the
courts of justice; and whether or not the appreciation of
said necessity pertains to the legislative or the judicial
department before which the expropriation proceedings have
been brought.
Relative to the first point, it is not necessary for the court to pass
upon its consideration, in view of the conclusion it has arrived at
the appreciation of the other points connected with each other.
From the testimony of two reputable engineers produced by some
of the defendants, it appears that the land chosen by the plaintiff
for the extension of Rizal Avenue to the municipality of Caloocan
is not the best or the less expensive, although upon it there may
be constructed a straight road, without curves or winding; but that
in order to construct said road upon said land, the city of Manila
would have to remove and transfer to other places about four
hundred graves and monuments, make some grubbings, undergo
some leveling and build some bridges — the works thereon,
together with the construction of the road and the value of the
lands expropriated, would mean an expenditure which will not be
less than P180,000.
Beside that considerable amount, the road would have a declivity
of 3 per cent which, in order to cover a distance of one kilometer,
would require an energy equivalent to that which would be
expanded in covering a distance of two and one-half kilometers
upon a level road.
On the other hand, if the road would be constructed with the
deviation proposed by Ildefonso Tambunting, one of the
defendants, who even offered to donate gratuitously to the city of
Manila part of the land upon which said road will have to be
constructed, the plaintiff entity would be able to save more than
hundreds of thousand of pesos, which can be invested in other
improvements of greater pressure and necessity for the benefit of
the taxpayers; and it will not have to employ more time and incur
greater expenditures in the removal and transfer of the remains
buried in the land of the Chinese Community and of Sr.
Tambunting, although with the insignificant disadvantage that the
road would be little longer by a still more insignificant extension of
426 meters and 55 centimeters less than one-half kilometer,
according to the plan included in the records; but it would offer a
better panorama to those who would use it, and who would not
have to traverse in their necessary or pleasure-making trips or
walks any cemetery which, on account of its nature, always
deserves the respect of the travellers. It should be observed that
the proposed straight road over the cemetery, which the city of
Manila is proposing to expropriate, does not lead to any
commercial, industrial, or agricultural center, and if with said road
it is endeavored to benefit some community or created interest,
the same object may be obtained by the proposed deviation of
the road by the defendants. The road traced by the plaintiffs has
the disadvantage that the lands on both sides thereof would not
serve for residential purposes, for the reason that no one has the
pleasure to construct buildings upon cemeteries, unless it be in
very overcrowded cities, so exhausted of land that every inch
thereof represents a dwelling house.
And it is against the ruling, that it lies with the court to determine the
necessity of the proposed street and not with the municipal board, that the
appellant directs its first assignment of error.
It is a right of the city government to determine whether or not it will
construct streets and where, and the court's sole duty was to see that the
value of the property was paid the owners after proper legal proceedings
ascertaining the value.
The law gives the city the right to take private property for public use. It is
assumed it is unnecessary to argue that a public road is a public use.
But it is argued that plaintiff must show that it is necessary to take this land
for a public improvement. The law does not so read, and it is believed that
the great weight of authority, including the United States Supreme Court, is
against the contention.
The question of necessity is distinct from the question of public
use, and former question is exclusively for the
legislature, except that if the constitution or statute authorizes the
taking of property only in cases of necessity, then the
necessity becomes a judicial question. (McQuillen Municipal
Corporations, Vol. IV, pp. 3090-3091.)
In the absence of some constitutional or statutory provision to the
contrary, the necessity and expediency of exercising the right of
eminent domain are questions essentially political and not judicial
in their character. The determination of those questions belongs
to the sovereign power; the legislative determination is final and
conclusive, and the courts have no power to review it. It rests with
the legislature not only to determine when the power of eminent
domain may be exercised, but also the character, quality,
method, and extent of such exercise. And this power is
unqualified, other than by the necessity of providing that
compensation shall be made. Nevertheless, under the express
provisions of the constitution of some states the question of
necessity is made a judicial one, to be determined by the courts
and not by the legislature.
While the legislature may itself exercise the right of determining
the necessity for the exercise of the power of eminent domain, it
may, unless prohibited by the constitution, delegate this power to
public officers or to private corporations established to carry on
enterprises in which the public are interested, and their
determination that a necessity for the exercise of the power exists
 is conclusive. There is no restraint upon the power except that
requiring compensation to be made. And when the power has
been so delegated it is a subject of legislative discretion to
determine what prudential regulations shall be established to
secure a discreet and judicious exercise of the authority. It has
been held that in the absence of any statutory provision
submitting the matter to a court or jury the decision of the
question of necessity lies with the body of individuals to whom the
state has delegated the authority to take, and the legislature may
be express provision confer this power on a corporation to whom
the power of eminent domain is delegated unless prohibited by
the constitution. It is of course competent for the legislature to
declare that the question shall be a judicial one, in which case the
court and not the corporation determines the question of
necessity. (15 Cyc., pp. 629-632.)
To the same effect is Lewis on Eminen Domain (3d Edition, section 597).
I quote from the notes to Vol. 5, Encyclopedia of United States Supreme
Court Reports, p. 762, as follows:
Neither can it be said that there is any fundamental right secured
by the constitution of the United States to have the questions of
compensation and necessity both passed upon by one and the
same jury. In many states the question of necessity is never
submitted to the jury which passes upon the question of
compensation. It is either settled affirmatively by the legislature,
or left to the judgment of the corporation invested with the right to
take property by condemnation. The question of necessity is not
one of a judicial character, but rather one for determination by the
lawmaking branch of the government. (Boom Co. vs. Patterson,
98 U.S., 403, 406 [25 L. ed., 206]; United States vs. Jones, 109
U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street Union Depot
Co., 169 U.S., 557, 568 [42 L. ed., 853].)
Speaking generally, it is for the state primarily and exclusively, to
declare for what local public purposes private property, within its
limits may be taken upon compensation to the owner, as well as
to prescribe a mode in which it may be condemned and taken.
(Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S., 239,
252 [49 L. ed., 462].)
Courts have no power to control the legislative authority in the
exercise of their right to determine when it is necessary or
expedient to condemn a specific piece of property for public
purposes. (Adirondack R. Co. vs. New York States, 176 U.S., 335
[44 L. ed., 492].)
10 R. C. L. (p. 183), states the law as follows:
158. Necessity for taking ordinarily not judicial question. — The
legislature, in providing for the exercise the power of eminent
domain, may directly determine the necessity for appropriating
private property for a particular improvement or public use, and it
may select the exact location of the improvement. In such a case,
it is well settled that the utility of the proposed improvement, the
extent of the public necessity for its construction, the expediency
of constructing it, the suitableness of the location selected and
the consequent necessity of taking the land selected for its
site, are all questions exclusively for the legislature to determine,
and the courts have no power to interfere, or to substitute their
own views for these of the representatives of the people.
Similarly, when the legislature has delegated the power of
eminent domain to municipal or public service corporation or
other tribunals or bodies, and has given them discretion as to
when the power is to be called into exercise and to what extent,
the court will not inquire into the necessity or propriety of the
taking.
The United States Supreme Court recently said:
The uses to which this land are to be put are undeniably public
uses. When that is the case the propriety or expediency of the
appropriation cannot be called in question by any other authority.
(Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting
U.S. vs. Jones, 109, U.S., 519.)
And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it
said:
Plaintiff contends that the ordinance is void because the general
statute which authorized the appropriation violates both Article 1,
paragraph 10, of the Federal Constitution, and the Fourteenth
Amendment, in that it authorizes the municipality to determine the
necessity for the taking of private property without the owners
having an opportunity to be hear as to such necessity; that in fact
no necessity existed for any taking which would interfere with the
company's project; since the city might have taken water from the
Little Cuyahoga or the Tuscarawas rivers; and furthermore, that it
has taken ten times as much water as it can legitimately use. It is
well settled that while the question whether the purpose of a
taking is a public one is judicial (Hairston vs. Danville & W. R.
Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann.
Cas., 1008]), the necessity and the proper extent of a taking is a
legislative question. (Shoemaker vs. United States, 147 U.S.,
282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United
States vs. Gettysburg Electric R. Co., 160 U.S. 668, 685 [40 L.
ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-
Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063,
1076; 33 Sup. Ct. Rep., 667].)
I think the case should be decided in accordance with foregoing citations,
but one other point has been argued so extensively that it ought to be
considered.
It is contended for the defense that this Chinese Cemetery is a public
cemetery and that it cannot therefore be taken for public use. In its answer
the "Comunidad de Chinos de Manila" says it is "a corporation organized
and existing under and by virtue of the laws of the Philippine Islands," and
that it owns the land which plaintiff seeks to acquire. The facts that it is
private corporation owning land would seem of necessity to make the land it
owns private land. The fact that it belongs to the Chinese community
deprives it of any public character.
But admitting that it is a public cemetery, although limited in its use to the
Chinese Community of the city of Manila, can it not be taken for public use?
Must we let the reverence we feel for the dead and the sanctity of their final
resting-place obstruct the progress of the living? It will be instructive to
inquire what other jurisdictions have held on that point.
On the Application of Board of Street Openings of New York City to acquire
St. Johns Cemetery (133 N.Y., 329) the court of appeal said:
. . . The board instituted this proceeding under the act to acquire
for park purposes the title to land below One Hundred and Fifty-
fifth street known as St. John's cemetery which belonged to a
religious corporation in the city of New York, commonly called
Trinity Church. It was established as a cemetery as early as
1801, and used for that purpose until 1839, during which time
about ten thousand human bodies had been buried therein. In
1839 an ordinance was passed by the city of New York forbidding
interments south of Eighty-sixth street, and since that time no
interments have been made in the cemetery, but Trinity Church
has preserved and kept it in order and prevented any disturbance
thereof.
It is contended on behalf of Trinity Church that under the general
authority given by statute of 1887, this land which had been
devoted to cemetery purposes could not be taken for a park. The
authority conferred upon the board by the act is broad and
general. It is authorized to take for park purposes any land south
of One Hundred and Fifty-fifth street. . . . .
The fact that lands have previously been devoted to cemetery
purposes does not place them beyond the reach of the power of
eminent domain. That is an absolute transcendent power
belonging to the sovereign which can be exercised for the public
welfare whenever the sovereign authority shall determine that a
necessity for its exercise exists. By its existence the homes and
the dwellings of the living, and the resting-places of the dead may
be alike condemned.
It seems always to have been recognized in the laws of this state,
that under the general laws streets and highways could be laid
out through cemeteries, in the absence of special limitation or
prohibition. . . .
In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the
Supreme Court of the State said:
This was an action for the opening of a street through a cemetery
in the City of Philadelphia. It was contended for the United
American Mechanics and United Daughters of America Cemetery
Association that by an act of the legislature of the State approved
March 20th, 1849, they were forever exempt from the taking of
any their property for streets, roads or alleys and this Act was
formally accepted by the Cemetery Company on April 9th, 1849,
and there was, therefore, a contract between the Cemetery
Company and the State of Pennsylvania, which would be violated
by the taking of any part of their property for street purposes. It
was further contended that there were 11,000 persons buried in
the cemetery.
The court held that property and contracts of all kinds must yield
to the demand of the sovereign and that under the power of
eminent domain all properties could be taken, and that if there
was a contract between the State of Pennsylvania and the
Cemetery Association, the contract itself could be taken for public
use, and ordered the opening of the street through the cemetery.
In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it
is said:
Although it has been held, that where a state has delegated the
power of eminent domain to a person or corporation and where
by its exercise lands have been subject to a public use, they
cannot be applied to another public use without specific authority
expressed or implied to that effect, yet, the general rule seems to
be that the fact that property is already devoted to a public use,
does not exempt it from being appropriated under the right of
eminent domain but it may be so taken for a use which is clearly
superior or paramount to the one to which it is already devoted.
(Citing many United States Supreme Court decisions.)
A few cases have been cited where the courts refused to allow the opening
of streets through cemeteries, but in my opinion they are not as well
considered as the cases and authorities relied upon herein.

The holding of this court in this case reverses well settled principles of law
of long standing and almost universal acceptance.

The other assignments of error need not be considered as they are involved
in the foregoing.

The decision should be reversed and the record returned to the Court of
First Instance with instructions to proceed with the case in accordance with
this decision.