Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-46455 October 31, 1939
EUSEBIO PELINO, plaintiff-appellee,
vs.
JOSE ICHON, ET AL., defendants.
JOSE ICHON, appellant.
P. Salazar and F. Montejo for appellant.
Mateo Canonoy for appellee.

AVANCEA, C.J .:
The plaintiff is operating a cockpit in the municipality of Tanauan, under a license issued in
accordance with municipal ordinance No. 20 of 1935 authorizing the establishment of a single
cockpit in the municipality.
On March 15, 1938, the municipal council of Tanauan approved another ordinance No. 8
authorizing as many cockpits as are applied for. The Municipal President vetoed this ordinance .
The municipal council, however, composed of six councilors, kept Ordinance No. 8 in being
over the veto of the president by a two-thirds vote of its members.
The defendant, in turn, obtained a license, pursuant to this ordinance No. 8, to operate another
cockpit in the same municipality.
On June 8, 1938, the plaintiff Eusebio Pelio brought this action against the municipal council of
Tanauan, asking that municipal ordinance No. 8 be declared null and void and that the defendant
Ichon be ordered to pay him, by way of damages, the amount of P2,000.
Upon petition of the plaintiff, the court, on April 9th of the same year, issued a writ of
preliminary injunction against the defendants, which writ was lifted by the filing of a bond put
up by the defendant Ichon.
The court declared ordinance No. 8 null and void, revived the writ of injunction issued against
the defendants and ordered the defendant Inchon to pay the plaintiff the sum of P2,000 by way of
damages. The defendants appealed form this decision.
The only ground of the appealed decision is annulling ordinance No. 8 is that the same is
contrary to the spirit of section 2338 of the Revised Administrative Code and is beyond the
powers granted to the municipal council by section 2243 of the same code.
The portion of ordinance No. 8 which led the court to declare it null and void is that one
authorizing as many cockpits in the municipality as there are applicants therefor. However, the
municipal council acted within its powers in enacting this ordinance. It is granted discretion by
law to regulate or prohibit cockpits (section 2243 of the Revised Administrative Code). While,
according to this, the municipal council may absolutely prohibit cockpits, nevertheless, when it
does not so prohibit, they are deemed to be authorized subject to its regulation. This power to
regulate includes the power to fix its number, inasmuch as the law neither fixes it nor limits it to
one.
The court sentenced the defendant to pay the plaintiff P2,000 by way of damages on the theory
that the plaintiff suffered damages because of the establishment of defendant's cockpit. It is
clearly seen from the facts set out that no cause of action exists against the defendant. he
operated his cockpit pursuant to a license issued under ordinance No. 8, in the enactment of
which he had absolutely nothing to do.lwphi1.nt
The appealed judgment is reversed,, ordinance No. 8 of the municipality of Tanauan, Leyte, is
declared valid, and the defendant, is absolved from the sentence to pay damages without special
pronouncement as to the costs. So ordered.
Villa-Real, Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.



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

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

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

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of
First Instance of Bulacan.
5
The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the law,
as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3. That
under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to license
and regulate tourist-oriented businesses including night clubs, has been transferred to the Department of
Tourism."
6
The cases were assigned to respondent Judge, now Associate Justice Paras of the
Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The answers were
thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by law not only to
regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section
2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not
violative of petitioners' right to due process and the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree No. 189, as amended, did not deprive
Municipal Councils of their jurisdiction to regulate or prohibit night clubs."
7
There was the admission of
the following facts as having been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case
No. 4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose
Torres III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and
petitioner Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their
businesses; 3. That the night clubs are well-lighted and have no partitions, the tables being near each
other; 4. That the petitioners owners/operators of these clubs do not allow the hospitality girls therein to
engage in immoral acts and to go out with customers; 5. That these hospitality girls are made to go
through periodic medical check-ups and not one of them is suffering from any venereal disease and that
those who fail to submit to a medical check-up or those who are found to be infected with venereal
disease are not allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in
other towns of Bulacan."
8
Then came on January 15, 1976 the decision upholding the constitutionality
and validity of Ordinance No. 84 and dismissing the cases. Hence this petition for certiorari by way of
appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set
forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the Municipality
of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual titillation and fearful of
what the awesome future holds for it, had no alternative except to order thru its legislative machinery, and
even at the risk of partial economic dislocation, the closure of its night clubs and/or cabarets. This in
essence is also why this Court, obedient to the mandates of good government, and cognizant of the
categorical imperatives of the current legal and social revolution, hereby [upholds] in the name of police
power the validity and constitutionality of Ordinance No. 84, Series of 1975, of the Municipal Council of
Bocaue, Bulacan. The restraining orders heretofore issued in these two cases are therefore hereby rifted,
effective the first day of February, 1976, the purpose of the grace period being to enable the petitioners
herein to apply to the proper appellate tribunals for any contemplated redress."
9
This Court is, however,
unable to agree with such a conclusion and for reasons herein set forth, holds that reliance on the police
power is insufficient to justify the enactment of the assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General power of
council to enact ordinances and make regulations. - The municipal council shall enact such ordinances
and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge
the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide
for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants thereof, and for the protection of property therein."
10

It is practically a reproduction of the former Section 39 of Municipal Code.
11
An ordinance enacted by
virtue thereof, according to Justice Moreland, speaking for the Court in the leading case of United States
v. Abendan
12
"is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of
the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial,
discriminating, or in derogation of common right. Where the power to legislate upon a given subject, and
the mode of its exercise and the details of such legislation are not prescribed, the ordinance passed
pursuant thereto must be a reasonable exercise of the power, or it will be pronounced invalid."
13
In
another leading case, United States v. Salaveria,
14
the ponente this time being Justice Malcolm, where
the present Administrative Code provision was applied, it was stated by this Court: "The general welfare
clause has two branches: One branch attaches itself to the main trunk of municipal authority, and relates
to such ordinances and regulations as may be necessary to carry into effect and discharge the powers
and duties conferred upon the municipal council by law. With this class we are not here directly
concerned. The second branch of the clause is much more independent of the specific functions of the
council which are enumerated by law. It authorizes such ordinances as shall seem necessary and proper
to provide for the health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of
property therein.' It is a general rule that ordinances passed by virtue of the implied power found in the
general welfare clause must be reasonable, consonant with the general powersand purposes of the
corporation, and not inconsistent with the laws or policy of the State."
15
If night clubs were merely then
regulated and not prohibited, certainly the assailed ordinance would pass the test of validity. In the two
leading cases above set forth, this Court had stressed reasonableness, consonant with the general
powers and purposes of municipal corporations, as well as consistency with the laws or policy of the
State. It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify
under the term reasonable. The objective of fostering public morals, a worthy and desirable end can be
attained by a measure that does not encompass too wide a field. Certainly the ordinance on its face is
characterized by overbreadth. The purpose sought to be achieved could have been attained by
reasonable restrictions rather than by an absolute prohibition. The admonition in Salaveria should be
heeded: "The Judiciary should not lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation."
16
It is clear that in the guise of a police
regulation, there was in this instance a clear invasion of personal or property rights, personal in the case
of those individuals desirous of patronizing those night clubs and property in terms of the investments
made and salaries to be earned by those therein employed.
2. The decision now under review refers to Republic Act No. 938 as amended.
17
It was originally enacted
on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS
THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF
CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS.'
18
Its first section insofar as pertinent reads: "The municipal or city board or council of each chartered city
shall have the power to regulate by ordinance the establishment, maintenance and operation of night
clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and
other similar places of amusement within its territorial jurisdiction: ... "
19
Then on May 21, 1954, the first
section was amended to include not merely "the power to regulate, but likewise "Prohibit ... "
20
The title,
however, remained the same. It is worded exactly as Republic Act No. 938. It is to be admitted that as
thus amended, if only the above portion of the Act were considered, a municipal council may go as far as
to prohibit the operation of night clubs. If that were all, then the appealed decision is not devoid of support
in law. That is not all, however. The title was not in any way altered. It was not changed one whit. The
exact wording was followed. The power granted remains that of regulation, not prohibition. There is thus
support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution
mandates: "Every bill shall embrace only one subject which shall be expressed in the title thereof. "
21

Since there is no dispute as the title limits the power to regulating, not prohibiting, it would result in the
statute being invalid if, as was done by the Municipality of Bocaue, the operation of a night club was
prohibited. There is a wide gap between the exercise of a regulatory power "to provide for the health and
safety, promote the prosperity, improve the morals,
22
in the language of the Administrative Code, such
competence extending to all "the great public needs,
23
to quote from Holmes, and to interdict any calling,
occupation, or enterprise. In accordance with the well-settled principle of constitutional construction that
between two possible interpretations by one of which it will be free from constitutional infirmity and by the
other tainted by such grave defect, the former is to be preferred. A construction that would save rather
than one that would affix the seal of doom certainly commends itself. We have done so before We do so
again.
24

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-
enacted Local Government Code.
25
The general welfare clause, a reiteration of the Administrative Code
provision, is set forth in the first paragraph of Section 149 defining the powers and duties of the
sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as may be
necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be
necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and
order, improve public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..."
26
There are in addition provisions
that may have a bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses,
except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing and regulatory power of the Ministry
of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the
municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or massage
parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses
and other forms of entertainment; ..."
27
It is clear that municipal corporations cannot prohibit the operation
of night clubs. They may be regulated, but not prevented from carrying on their business. It would be,
therefore, an exercise in futility if the decision under review were sustained. All that petitioners would
have to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because
no such businesses could legally open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of
an affirmance, would amount to no more than a temporary termination of their business. During such
time, their employees would undergo a period of deprivation. Certainly, if such an undesirable outcome
can be avoided, it should be. The law should not be susceptible to the reproach that it displays less than
sympathetic concern for the plight of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is to be avoided. If it were not thus,
then the element of arbitrariness enters the picture. That is to pay less, very much less, than full
deference to the due process clause with its mandate of fairness and reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal forbids
such a backward step. Legislation of that character is deserving of the fullest sympathy from the judiciary.
Accordingly, the judiciary has not been hesitant to lend the weight of its support to measures that can be
characterized as falling within that aspect of the police power. Reference is made by respondents to
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila.
28
There is a
misapprehension as to what was decided by this Court. That was a regulatory measure. Necessarily,
there was no valid objection on due process or equal protection grounds. It did not prohibit motels. It
merely regulated the mode in which it may conduct business in order precisely to put an end to practices
which could encourage vice and immorality. This is an entirely different case. What was involved is a
measure not embraced within the regulatory power but an exercise of an assumed power to prohibit.
Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators Association,
Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear that there is
no need to satisfy such a requirement if a statute were void on its face. That it certainly is if the power to
enact such ordinance is at the most dubious and under the present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976
reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is
declared void and unconstitutional. The temporary restraining order issued by this Court is hereby made
permanent. No costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez, Jr.,
JJ., concur.
Makasiar, J, reserves his right to file a dissent.
De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.

EN BANC
[G.R. No. 118127. April 12, 2005]
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON.
JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding
Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P.
GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON.
ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR.,
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B.
BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON.
MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON.
MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO
A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON.
DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA,
HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG,
HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R.
CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON.
MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA,
HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as
councilors of the City of Manila, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION,
respondents.
D E C I S I O N
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is what you feel
bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is less
immoral than if performed by someone else, who would be well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Courts commitment to the protection of morals is secondary to its fealty to the fundamental
law of the land. It is foremost a guardian of the Constitution but not the conscience of
individuals. And if it need be, the Court will not hesitate to make the hammer fall, and heavily
in the words of Justice Laurel, and uphold the constitutional guarantees when faced with laws
that, though not lacking in zeal to promote morality, nevertheless fail to pass the test of
constitutionality.
The pivotal issue in this Petition[1] under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision[2] in Civil Case No. 93-66511 of the Regional
Trial Court (RTC) of Manila, Branch 18 (lower court),[3] is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.[4]
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged
in the business of operating hotels, motels, hostels and lodging houses.[5] It built and opened
Victoria Court in Malate which was licensed as a motel although duly accredited with the
Department of Tourism as a hotel.[6] On 28 June 1993, MTDC filed a Petition for Declaratory
Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order[7]
(RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila,
Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of
Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns
as among its prohibited establishments, be declared invalid and unconstitutional.[8]
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner City Mayor on 30
March 1993, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.[10]
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no
person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by
Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South
and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract
and engage in, any business providing certain forms of amusement, entertainment, services
and facilities where women are used as tools in entertainment and which tend to disturb
the community, annoy the inhabitants, and adversely affect the social and moral welfare of
the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials
are prohibited from issuing permits, temporary or otherwise, or from granting licenses and
accepting payments for the operation of business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses
enumerated in Section 1 hereof are hereby given three (3) months from the date of approval
of this ordinance within which to wind up business operations or to transfer to any place
outside of the Ermita-Malate area or convert said businesses to other kinds of business
allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also
of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for
in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot,
dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or
funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be
punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00)
PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person, the
President, the General Manager, or person-in-charge of operation shall be liable thereof;
PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises of
the erring establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in
its enumeration of prohibited establishments, motels and inns such as MTDCs Victoria Court
considering that these were not establishments for amusement or entertainment and they
were not services or facilities for entertainment, nor did they use women as tools for
entertainment, and neither did they disturb the community, annoy the inhabitants or
adversely affect the social and moral welfare of the community.[11]
MTDC further advanced that the Ordinance was invalid and unconstitutional for the following
reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a)
4 (iv)[12] of the Local Government Code of 1991 (the Code) grants to the City Council only the
power to regulate the establishment, operation and maintenance of hotels, motels, inns, pension
houses, lodging houses and other similar establishments; (2) The Ordinance is void as it is
violative of Presidential Decree (P.D.) No. 499[13] which specifically declared portions of the
Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does not
constitute a proper exercise of police power as the compulsory closure of the motel business has
no reasonable relation to the legitimate municipal interests sought to be protected; (4) The
Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court which
was a legitimate business prior to its enactment; (5) The Ordinance violates MTDCs
constitutional rights in that: (a) it is confiscatory and constitutes an invasion of plaintiffs
property rights; (b) the City Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially destroy it; and (6) 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]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim maintained that the
City Council had the power to prohibit certain forms of entertainment in order to protect the
social and moral welfare of the community as provided for in Section 458 (a) 4 (vii) of the
Local Government Code,[16] which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the city as provided for under Section 22 of this
Code, and shall:
. . . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
. . . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools, public
dancing schools, public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or activities for amusement or
entertainment, particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit certain
forms of amusement or entertainment in order to protect the social and moral welfare of
the community.
Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of regulation spoken
of in the above-quoted provision included the power to control, to govern and to restrain places
of exhibition and amusement.[18]
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to
protect the social and moral welfare of the community in conjunction with its police power as
found in Article III, Section 18(kk) of Republic Act No. 409,[19] otherwise known as the Revised
Charter of the City of Manila (Revised Charter of Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. The Municipal Board shall have the following
legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the city and its inhabitants, and
such others as may be necessary to carry into effect and discharge the powers and duties
conferred by this chapter; and to fix penalties for the violation of ordinances which shall
not exceed two hundred pesos fine or six months imprisonment, or both such fine and
imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance
as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area
to remain a commercial zone.[22] The Ordinance, the petitioners likewise claimed, cannot be
assailed as ex post facto as it was prospective in operation.[23] The Ordinance also did not
infringe the equal protection clause and cannot be denounced as class legislation as there existed
substantial and real differences between the Ermita-Malate area and other places in the City of
Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte
temporary restraining order against the enforcement of the Ordinance.[25] And on 16 July 1993,
again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by
MTDC.[26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the
petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of
the City of Manila null and void, and making permanent the writ of preliminary injunction that
had been issued by this Court against the defendant. No costs.
SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12 December 1994, manifesting
that they are elevating the case to this Court under then Rule 42 on pure questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is
ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It
erred in holding that the questioned Ordinance contravenes P.D. 499[31] which allows operators
of all kinds of commercial establishments, except those specified therein; and (3) It erred in
declaring the Ordinance void and unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the assertions they made
before the lower court. They contend that the assailed Ordinance was enacted in the exercise of
the inherent and plenary power of the State and the general welfare clause exercised by local
government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code.[34] They allege that the Ordinance is a valid
exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of
validity.[35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that the Ordinance is
ultra vires and that it is void for being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that it is violative of due process,
confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative
of the equal protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide and control his
actions.
This is an opportune time to express the Courts deep sentiment and tenderness for the Ermita-
Malate area being its home for several decades. A long-time resident, the Court witnessed the
areas many turn of events. It relished its glory days and endured its days of infamy. Much as the
Court harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur,
it believes that the Ordinance is not the fitting means to that end. The Court is of the opinion,
and so holds, that the lower court did not err in declaring 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 persons life, liberty, or property. In other words, substantive due
process looks to whether there is a sufficient justification for the governments action.[54] Case
law in the United States (U.S.) tells us that whether there is such a justification depends very
much on the level of scrutiny used.[55] For example, if a law is in an area where only rational
basis review is applied, substantive due process is met so long as the law is rationally related to a
legitimate government purpose. But if it is an area where strict scrutiny is used, such as for
protecting fundamental rights, then the government will meet substantive due process only if it
can prove that the law is necessary to achieve a compelling government purpose.[56]
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically[57] as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard due to the prescription
of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it
bears emphasis, may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare.[58] Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty and property.[59]
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of the
Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from those of a particular class, require
an interference with private rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.[60] It must be
evident that no other alternative for the accomplishment of the purpose less intrusive of private
rights can work. A reasonable relation must exist between the purposes of the police measure
and the means employed for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private property will not be permitted to be
arbitrarily invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights[62] a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive
veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses,
cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-
Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila[63] had already
taken judicial notice of the alarming increase in the rate of prostitution, adultery and fornication
in Manila traceable in great part to existence of motels, which provide a necessary atmosphere
for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-
seekers.[64]
The object of the Ordinance was, accordingly, the promotion and protection of the social and
moral values of the community. Granting for the sake of argument that the objectives of the
Ordinance are within the scope of the City Councils police powers, the means employed for the
accomplishment thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community. However,
the worthy aim of fostering public morals and the eradication of the communitys social ills can
be achieved through means less restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing down and transfer of businesses
or their conversion into businesses allowed under the Ordinance have no reasonable relation to
the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution, adultery,
fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit,[65] it is baseless and
insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars,
night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is
not warranted under the accepted definitions of these terms. The enumerated establishments are
lawful pursuits which are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the
illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality,
being a human frailty, may take place in the most innocent of places that it may even take place
in the substitute establishments enumerated under Section 3 of the Ordinance. If the flawed
logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act
transpires in a church cloister or a court chamber, we would behold the spectacle of the City of
Manila ordering the closure of the church or court concerned. Every house, building, park, curb,
street or even vehicles for that matter will not be exempt from the prohibition. Simply because
there are no pure places where there are impure men. Indeed, even the Scripture and the
Tradition of Christians churches continually recall the presence and universality of sin in mans
history.[66]
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be
said to be injurious to the health or comfort of the community and which in itself is amoral, but
the deplorable human activity that may occur within its premises. While a motel may be used as
a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be
classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked
assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only
be purged of its supposed social ills, it would be extinguished of its soul as well as every human
activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation
of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or establishment; it is in the hearts of
men. The City Council instead should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which are covenants, premiums
and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is commendable, they
unwittingly punish even the proprietors and operators of wholesome, innocent
establishments. In the instant case, there is a clear invasion of personal or property rights,
personal in the case of those individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to prostitution, fornication and other
social ills, it can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may exercise its
authority to suspend or revoke their licenses for these violations;[67] and it may even impose
increased license fees. In other words, there are other means to reasonably accomplish the
desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of the 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
persons fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right
to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed
into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace
the right of man to enjoy the facilities with which he has been endowed by his Creator, subject
only to such restraint as are necessary for the common welfare.[68] In accordance with this case,
the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where
he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed
embraced in the concept of liberty.[69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to clarify the
meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the
Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognizedas essential to the orderly pursuit of happiness by free men. In a Constitution for a
free people, there can be no doubt that the meaning of liberty must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes
personal decisions relating to marriage, procreation, contraception, family relationships, child
rearing, and education. In explaining the respect the Constitution demands for the autonomy of
the person in making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by
the Fourteenth Amendment. At the heart of liberty is the right to define ones own concept of
existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood where they formed under compulsion of the
State.[71]
Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of
the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to consummate
their bonds in intimate sexual conduct within the motels premisesbe it stressed that their
consensual sexual behavior does not contravene any fundamental state policy as contained in the
Constitution.[72] Adults have a right to choose to forge such relationships with others in the
confines of their own private lives and still retain their dignity as free persons. The liberty
protected by the Constitution allows persons the right to make this choice.[73] Their right to
liberty under the due process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law. Liberty should be the
rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint;
it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is
the beginning of all freedomit is the most comprehensive of rights and the right most valued
by civilized men.[74]
The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc,[75] borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation,
are indefeasible; indeed, they are so fundamental that they are the basis on which his civic
obligations are built. He cannot abandon the consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of
others, he ceases to be a master of himself. I cannot believe that a man no longer a master of
himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of
which should be justified by a compelling state interest. Morfe accorded recognition to the right
to privacy independently of its identification with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers should stop short of certain intrusions into the
personal life of the citizen.[76]
There is a great temptation to have an extended discussion on these civil liberties but the Court
chooses to exercise restraint and restrict itself to the issues presented when it should. The
previous pronouncements of the Court are not to be interpreted as a license for adults to engage
in criminal conduct. The reprehensibility of such conduct is not diminished. The Court only
reaffirms and guarantees their right to make this choice. Should they be prosecuted for their
illegal conduct, they should suffer the consequences of the choice they have made. That,
ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
respondent of the beneficial use of its property.[77] The Ordinance in Section 1 thereof forbids the
running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its
owners/operators to wind up business operations or to transfer outside the area or convert said
businesses into allowed businesses. An ordinance which permanently restricts the use of property
that it can not be used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just compensation.[78] It is intrusive and violative
of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property shall not be
taken for public use without just compensation. The provision is the most important protection
of property rights in the Constitution. This is a restriction on the general power of the
government to take property. The constitutional provision is about ensuring that the government
does not confiscate the property of some to give it to others. In part too, it is about loss
spreading. If the government takes away a persons property to benefit society, then society
should pay. The principal purpose of the guarantee is to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.[79]
There are two different types of taking that can be identified. A possessory taking occurs when
the government confiscates or physically occupies property. A regulatory taking occurs when
the governments regulation leaves no reasonable economically viable use of the property.[80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking also could be
found if government regulation of the use of property went too far. When regulation reaches a
certain magnitude, in most if not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was a question of degree and
therefore cannot be disposed of by general propositions. On many other occasions as well, the
U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks whether justice and fairness require that the
economic loss caused by public action must be compensated by the government and thus borne
by the public as a whole, or whether the loss should remain concentrated on those few persons
subject to the public action.[83]
What is crucial in judicial consideration of regulatory takings is that government regulation is a
taking if it leaves no reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use.[84] A regulation that permanently denies all economically
beneficial or productive use of land is, from the owners point of view, equivalent to a taking
unless principles of nuisance or property law that existed when the owner acquired the land make
the use prohibitable.[85] When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.[86]
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall
short of eliminating all economically beneficial use, a taking nonetheless may have occurred,
depending on a complex of factors including the regulations economic effect on the landowner,
the extent to which the regulation interferes with reasonable investment-backed expectations and
the character of government action. These inquiries are informed by the purpose of the takings
clause which is to prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole.[87]
A restriction on use of property may also constitute a taking if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.[88]
The Ordinance gives the owners and operators of the prohibited establishments three (3)
months from its approval within which to wind up business operations or to transfer to any
place outside of the Ermita-Malate area or convert said businesses to other kinds of business
allowable within the area. The directive to wind up business operations amounts to a closure
of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless
the owner converts his establishment to accommodate an allowed business, the structure which
housed the previous business will be left empty and gathering dust. Suppose he transfers it to
another area, he will likewise leave the entire establishment idle. Consideration must be given to
the substantial amount of money invested to build the edifices which the owner reasonably
expects to be returned within a period of time. It is apparent that the Ordinance leaves no
reasonable economically viable use of property in a manner that interferes with reasonable
expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to
convert into allowed businessesare confiscatory as well. The penalty of permanent closure in
cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a
taking of private property.
The second option instructs the owners to abandon their property and build another one outside
the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another establishment solely from his coffers.
The proffered solution does not put an end to the problem, it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed
enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a
coffee shop, art gallery or music lounge without essentially destroying its property? This is a
taking of private property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the
government. The burden on the owner to convert or transfer his business, otherwise it will be
closed permanently after a subsequent violation should be borne by the public as this end
benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning
ordinance, although a valid exercise of police power, which limits a wholesome property to a
use which can not reasonably be made of it constitutes the taking of such property without just
compensation. Private property which is not noxious nor intended for noxious purposes may not,
by zoning, be destroyed without compensation. Such principle finds no support in the principles
of justice as we know them. The police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain. It needs
restating that the property taken in the exercise of police power is destroyed because it is noxious
or intended for a noxious purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore wholesome.[89] If it be of public benefit
that a wholesome property remain unused or relegated to a particular purpose, then certainly
the public should bear the cost of reasonable compensation for the condemnation of private
property for public use.[90]
Further, the Ordinance fails to set up any standard to guide or limit the petitioners actions. It in
no way controls or guides the discretion vested in them. It provides no definition of the
establishments covered by it and it fails to set forth the conditions when the establishments come
within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this, which make possible abuses in its
execution, depending upon no conditions or qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are
unreasonable and invalid. The Ordinance should have established a rule by which its impartial
enforcement could be secured.[91]
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law
enforcers in carrying out its provisions.[92]
Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the U.S. Supreme
Court struck down an ordinance that had made it illegal for three or more persons to assemble
on any sidewalk and there conduct themselves in a manner annoying to persons passing by. The
ordinance was nullified as it imposed no standard at all because one may never know in
advance what annoys some people but does not annoy others.
Similarly, the Ordinance does not specify the standards to ascertain which establishments tend
to disturb the community, annoy the inhabitants, and adversely affect the social and moral
welfare of the community. The cited case supports the nullification of the Ordinance for lack of
comprehensible standards to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping exercise of police power that is a
result of a lack of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not countenance. In this regard,
we take a resolute stand to uphold the constitutional guarantee of the right to liberty and
property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry
from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive ordinance regulating
sexually oriented businesses, which are defined to include adult arcades, bookstores, video
stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual
encounter centers. Among other things, the ordinance required that such businesses be licensed.
A group of motel owners were among the three groups of businesses that filed separate suits
challenging the ordinance. The motel owners asserted that the city violated the due process
clause by failing to produce adequate support for its supposition that renting room for fewer than
ten (10) hours resulted in increased crime and other secondary effects. They likewise argued than
the ten (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden on
the right to freedom of association. Anent the first contention, the U.S. Supreme Court held that
the reasonableness of the legislative judgment combined with a study which the city considered,
was adequate to support the citys determination that motels permitting room rentals for fewer
than ten (10 ) hours should be included within the licensing scheme. As regards the second point,
the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect
on personal bonds as those bonds that are formed from the use of a motel room for fewer than
ten (10) hours are not those that have played a critical role in the culture and traditions of the
nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted businesses. It
imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila,[96] it needs pointing out, is also different from this case in that what was involved therein
was a measure which regulated the mode in which motels may conduct business in order to put
an end to practices which could encourage vice and immorality. Necessarily, there was no valid
objection on due process or equal protection grounds as the ordinance did not prohibit motels.
The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed
power to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of
property and personal rights of citizens. For being unreasonable and an undue restraint of trade,
it cannot, even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not
be treated differently, so as to give undue favor to some and unjustly discriminate against
others.[98] The guarantee means that no person or class of persons shall be denied the same
protection of laws which is enjoyed by other persons or other classes in like circumstances.[99]
The equal protection of the laws is a pledge of the protection of equal laws.[100] It limits
governmental discrimination. The equal protection clause extends to artificial persons but only
insofar as their property is concerned.[101]
The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: The
ideal situation is for the laws benefits to be available to all, that none be placed outside the
sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity, which is of the very essence of the idea of
law. There is recognition, however, in the opinion that what in fact exists cannot approximate
the ideal. Nor is the law susceptible to the reproach that it does not take into account the realities
of the situation. The constitutional guarantee then is not to be given a meaning that disregards
what is, what does in fact exist. To assure that the general welfare be promoted, which is the end
of law, a regulatory measure may cut into the rights to liberty and property. Those adversely
affected may under such circumstances invoke the equal protection clause only if they can show
that the governmental act assailed, far from being inspired by the attainment of the common weal
was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in
reason. Classification is thus not ruled out, it being sufficient to quote from the Tuason decision
anew that the laws operate equally and uniformly on all persons under similar circumstances or
that all persons must be treated in the same manner, the conditions not being different, both in
the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall be given to every person
under circumstances which, if not identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest.[102]
Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating the
equal protection clause.[103] The classification must, as an indispensable requisite, not be
arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts view, there are no substantial distinctions between motels, inns, pension houses,
hotels, lodging houses or other similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other
similar establishments. The classification in the instant case is invalid as similar subjects are not
similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not
rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in
the Ermita-Malate area but not outside of this area. A noxious establishment does not become
any less noxious if located outside the area.
The standard where women are used as tools for entertainment is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive
to women. Both men and women have an equal propensity to engage in prostitution. It is not any
less grave a sin when men engage in it. And why would the assumption that there is an ongoing
immoral activity apply only when women are employed and be inapposite when men are in
harness? This discrimination based on gender violates equal protection as it is not substantially
related to important government objectives.[105] Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency
with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local government
units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv),
which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the city as provided for under Section 22 of this
Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including
tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of any entertainment or
amusement facilities, and to prohibit certain forms of amusement or entertainment is provided
under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the city as provided for under Section 22 of this
Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement; regulate such other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms of amusement or entertainment in order to
protect the social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare. The Code still withholds from
cities the power to suppress and prohibit altogether the establishment, operation and maintenance
of such establishments. It is well to recall the rulings of the Court in Kwong Sing v. City of
Manila[106] that:
The word regulate, as used in subsection (l), section 2444 of the Administrative Code, means
and includes the power to control, to govern, and to restrain; but regulate should not be
construed as synonymous with suppress or prohibit. Consequently, under the power to
regulate laundries, the municipal authorities could make proper police regulations as to the mode
in which the employment or business shall be exercised.[107]
And in People v. Esguerra,[108] wherein the Court nullified an ordinance of the Municipality of
Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not prohibit. The Court therein
declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power to
regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.[109]
These doctrines still hold contrary to petitioners assertion[110] that they were modified by the
Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement as
found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend
such other events or activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants and to prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community are stated in the
second and third clauses, respectively of the same Section. The several powers of the City
Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are
separated by semi-colons (;), the use of which indicates that the clauses in which these powers
are set forth are independent of each other albeit closely related to justify being put together in a
single enumeration or paragraph.[111] These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and unified power of regulation,
suppression and prohibition.[112]
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among
other events or activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants or certain forms of amusement or
entertainment which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those
which are necessarily implied or incidental to the exercise thereof. By reason of its limited
powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or
ambiguity arising out of the terms used in granting said powers must be construed against the
City Council.[113] Moreover, it is a general rule in statutory construction that the express mention
of one person, thing, or consequence is tantamount to an express exclusion of all others.
Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and the
natural workings of human mind. It is particularly applicable in the construction of such statutes
as create new rights or remedies, impose penalties or punishments, or otherwise come under the
rule of strict construction.[114]
The argument that the City Council is empowered to enact the Ordinance by virtue of the general
welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is
likewise without merit. On the first point, the ruling of the Court in People v. Esguerra,[115] is
instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section 2238 of
the Revised Administrative Code, refers to matters not covered by the other provisions of the
same Code, and therefore it can not be applied to intoxicating liquors, for the power to regulate
the selling, giving away and dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted by section 2238, a municipal
council may enact the ordinance in question, notwithstanding the provision of section 2242 (g),
would be to make the latter superfluous and nugatory, because the power to prohibit, includes the
power to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the legislative
will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant
thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent,
that which is passed later prevails, since it is the latest expression of legislative will.[116] If there
is an inconsistency or repugnance between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of interpretation, it is the latest
expression of the legislative will which must prevail and override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted law contains provisions
contrary to those of an existing law but no provisions expressly repealing them. Such repeals
have been divided into two general classes: those which occur where an act is so inconsistent or
irreconcilable with an existing prior act that only one of the two can remain in force and those
which occur when an act covers the whole subject of an earlier act and is intended to be a
substitute therefor. The validity of such a repeal is sustained on the ground that the latest
expression of the legislative will should prevail.[118]
In addition, Section 534(f) of the Code states that All general and special laws, acts, city
charters, decrees, executive orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code are hereby repealed or
modified accordingly. Thus, submitting to petitioners interpretation that the Revised Charter of
Manila empowers the City Council to prohibit motels, that portion of the Charter stating such
must be considered repealed by the Code as it is at variance with the latters provisions granting
the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. It can not be said that motels are
injurious to the rights of property, health or comfort of the community. It is a legitimate business.
If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A
motel is not per se a nuisance warranting its summary abatement without judicial
intervention.[119]
Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the city as provided for under Section 22 of this
Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual
drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and
maintenance of houses of ill repute, gambling and other prohibited games of chance,
fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug
dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or
pornographic materials or publications, and such other activities inimical to the welfare and
morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the
establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain
terms by adding them to the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and
expand the City Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the
Code in an effort to overreach its prohibitory powers. It is evident that these establishments may
only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments themselves. That
these establishments are recognized legitimate enterprises can be gleaned from another Section
of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned
proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and
lodging houses as among the contractors defined in paragraph (h) thereof. The same Section
also defined amusement as a pleasurable diversion and entertainment, synonymous to
relaxation, avocation, pastime or fun; and amusement places to include theaters, cinemas,
concert halls, circuses and other places of amusement where one seeks admission to entertain
oneself by seeing or viewing the show or performances. Thus, it can be inferred that the Code
considers these establishments as legitimate enterprises and activities. It is well to recall the
maxim reddendo singula singulis which means that words in different parts of a statute must be
referred to their appropriate connection, giving to each in its place, its proper force and effect,
and, if possible, rendering none of them useless or superfluous, even if strict grammatical
construction demands otherwise. Likewise, where words under consideration appear in different
sections or are widely dispersed throughout an act the same principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of
P.D. 499. As correctly argued by MTDC, the statute had already converted the residential
Ermita-Malate area into a commercial area. The decree allowed the establishment and operation
of all kinds of commercial establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry with any machinery or funeral
establishment. The rule is that for an ordinance to be valid and to have force and effect, it must
not only be within the powers of the council to enact but the same must not be in conflict with or
repugnant to the general law.[121] As succinctly illustrated in Solicitor General v. Metropolitan
Manila Authority:[122]
The requirement that the enactment must not violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of a valid delegation of legislative power from
the national legislature (except only that the power to create their own sources of revenue and to
levy taxes is conferred by the Constitution itself). They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the Congress, the local government
units cannot contravene but must obey at all times the will of their principal. In the case before
us, the enactment in question, which are merely local in origin cannot prevail against the decree,
which has the force and effect of a statute.[123]
Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the
rule, it has already been held that although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local government is valid unless it
contravenes the fundamental law of the land, or an act of the legislature, or unless it is against
public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a
common right.[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs
personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that
abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council
under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
legislation of such character deserves the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory or
constitutional authority to stand on. Local legislative bodies, in this case, the City Council,
cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order
their transfer or conversion without infringing the constitutional guarantees of due process and
equal protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA
TOURIST & DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM,
Respondent.
D E C I S I O N
Tinga, J .:
With another city ordinance of Manila also principally involving the tourist district as subject,
the Court is confronted anew with the incessant clash between government power and individual
liberty in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,
1
the Court affirmed the nullification of a city ordinance barring
the operation of motels and inns, among other establishments, within the Ermita-Malate area.
The petition at bar assails a similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated or "wash up" rates for
such abbreviated stays. Our earlier decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal protection of law. The same parameters
apply to the present petition.
This Petition
2
under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal
of the Decision
3
in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of
Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission,
Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging
Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.
4

The Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to
protect the best interest, health and welfare, and the morality of its constituents in general and the
youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time
admission in hotels, motels, lodging houses, pension houses and similar establishments in the
City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of
room rate for less than twelve (12) hours at any given time or the renting out of rooms more than
twice a day or any other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this
ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00)
Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and
imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of the operation thereof shall be liable: Provided,
further, That in case of subsequent conviction for the same offense, the business license of the
guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or
contrary to this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a
complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary
restraining order ( TRO)
5
with the Regional Trial Court (RTC) of Manila, Branch 9 impleading
as defendant, herein respondent City of Manila (the City) represented by Mayor Lim.
6
MTDC
prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.)
No. 259 to admit customers on a short time basis as well as to charge customers wash up rates
for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC)
and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to
admit attached complaint-in-intervention
7
on the ground that the Ordinance directly affects their
business interests as operators of drive-in-hotels and motels in Manila.
8
The three companies are
components of the Anito Group of Companies which owns and operates several hotels and
motels in Metro Manila.
9

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

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

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist
from the enforcement of the Ordinance.
15
A month later, on March 8, 1993, the Solicitor General
filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question.
16
On October 20, 1993, the RTC
rendered a decision declaring the Ordinance null and void. The dispositive portion of the
decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made permanent.
SO ORDERED.
17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed
and jealously guarded by the Constitution."
18
Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to needed investment, as well as
the right to operate economic enterprises. Finally, from the observation that the illicit
relationships the Ordinance sought to dissuade could nonetheless be consummated by simply
paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v.
Intermediate Appellate Court,
19
where the legitimate purpose of preventing indiscriminate
slaughter of carabaos was sought to be effected through an inter-province ban on the transport of
carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme Court.
20
The petition
was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court
treated the petition as a petition for certiorari and referred the petition to the Court of Appeals.
21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police
power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities,
among other local government units, the power:
[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses and other similar establishments, including
tourist guides and transports.
22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III,
Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort,
convenience and general welfare of the city and its inhabitants, and such others as be necessary
to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix
penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six
months imprisonment, or both such fine and imprisonment for a single offense.
23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to
privacy and the freedom of movement; it is an invalid exercise of police power; and it is an
unreasonable and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.
24
First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals
for short time stays. Second, the virtually limitless reach of police power is only constrained by
having a lawful object obtained through a lawful method. The lawful objective of the Ordinance
is satisfied since it aims to curb immoral activities. There is a lawful method since the
establishments are still allowed to operate. Third, the adverse effect on the establishments is
justified by the well-being of its constituents in general. Finally, as held in Ermita-Malate Motel
Operators Association v. City Mayor of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for review on certiorari.
25
In their petition
and Memorandum, petitioners in essence repeat the assertions they made before the Court of
Appeals. They contend that the assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are
also being interfered with. Thus, the crux of the matter is whether or not these establishments
have the requisite standing to plead for protection of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection
to and harm from the law or action challenged to support that party's participation in the case.
More importantly, the doctrine of standing is built on the principle of separation of powers,
26

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

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

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

American jurisprudence is replete with examples where parties-in-interest were allowed standing
to advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. In Griswold v. Connecticut,
35
the United States
Supreme Court held that physicians had standing to challenge a reproductive health statute that
would penalize them as accessories as well as to plead the constitutional protections available to
their patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected
unless those rights are considered in a suit involving those who have this kind of confidential
relation to them."
36

An even more analogous example may be found in Craig v. Boren,
37
wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection
claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males
under the age of 21 and to females under the age of 18. The United States High Court explained
that the vendors had standing "by acting as advocates of the rights of third parties who seek
access to their market or function."
38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former
to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth
analysis, challengers to government action are in effect permitted to raise the rights of third
parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth
doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.
39
In
this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to
liberty of their clients. We can see that based on the allegations in the petition, the Ordinance
suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their
clients to patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association,
Inc., v. Hon. City Mayor of Manila.
40
Ermita-Malate concerned the City ordinance requiring
patrons to fill up a prescribed form stating personal information such as name, gender,
nationality, age, address and occupation before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely enacted to minimize certain practices
deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila
which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area.
However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case, wherein there is no
wholesale ban on motels and hotels but the services offered by these establishments have been
severely restricted. At its core, this is another case about the extent to which the State can intrude
into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of
Manila has held that for an ordinance to be valid, it must not only be within the corporate powers
of the local government unit to enact and pass according to the procedure prescribed by law, it
must also conform to the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent
with public policy; and (6) must not be unreasonable.
41

The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local government units by the Local Government
Code through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely veiled in general terms
to underscore its comprehensiveness to meet all exigencies and provide enough room for an
efficient and flexible response as the conditions warrant.
42
Police power is based upon the
concept of necessity of the State and its corresponding right to protect itself and its people.
43

Police power has been used as justification for numerous and varied actions by the State. These
range from the regulation of dance halls,
44
movie theaters,
45
gas stations
46
and cockpits.
47
The
awesome scope of police power is best demonstrated by the fact that in its hundred or so years of
presence in our nations legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the
desirability of these ends do not sanctify any and all means for their achievement. Those means
must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the
people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for analysis of due process or
equal protection questions, the courts are naturally inhibited by a due deference to the co-equal
branches of government as they exercise their political functions. But when we are compelled to
nullify executive or legislative actions, yet another form of caution emerges. If the Court were
animated by the same passing fancies or turbulent emotions that motivate many political
decisions, judicial integrity is compromised by any perception that the judiciary is merely the
third political branch of government. We derive our respect and good standing in the annals of
history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to
that end than through the development of rigorous and sophisticated legal standards through
which the courts analyze the most fundamental and far-reaching constitutional questions of the
day.
B.
The primary constitutional question that confronts us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due process evades a precise definition.
48
The purpose
of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and
property of individuals. The due process guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as
their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural
due process refers to the procedures that the government must follow before it deprives a person
of life, liberty, or property.
49
Procedural due process concerns itself with government action
adhering to the established process when it makes an intrusion into the private sphere. Examples
range from the form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation
of arbitrary government action, provided the proper formalities are followed. Substantive due
process completes the protection envisioned by the due process clause. It inquires whether the
government has sufficient justification for depriving a person of life, liberty, or property.
50

The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental
freedoms. Police power, traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though of constitutional due
process has not been predicated on the frequency with which it has been utilized to achieve a
liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the
State. Instead, the due process clause has acquired potency because of the sophisticated
methodology that has emerged to determine the proper metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.
51
Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a "discrete and insular"
minority or infringement of a "fundamental right."
52
Consequently, two standards of judicial
review were established: strict scrutiny for laws dealing with freedom of the mind or restricting
the political process, and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the
U.S. Supreme Court for evaluating classifications based on gender
53
and legitimacy.
54
Immediate
scrutiny was adopted by the U.S. Supreme Court in Craig,
55
after the Court declined to do so in
Reed v. Reed.
56
While the test may have first been articulated in equal protection analysis, it has
in the United States since been applied in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.
57
Using the rational basis examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest.
58
Under intermediate review, governmental
interest is extensively examined and the availability of less restrictive measures is considered.
59

Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation
of fundamental freedoms.
60
Strict scrutiny is used today to test the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights as expansion from
its earlier applications to equal protection.
61
The United States Supreme Court has expanded the
scope of strict scrutiny to protect fundamental rights such as suffrage,
62
judicial access
63
and
interstate travel.
64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect
only on the petitioners at bar, then it would seem that the only restraint imposed by the law
which we are capacitated to act upon is the injury to property sustained by the petitioners, an
injury that would warrant the application of the most deferential standard the rational basis test.
Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons those persons who would be deprived of availing short
time access or wash-up rates to the lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these customers were are trivial
since they seem shorn of political consequence. Concededly, these are not the sort of cherished
rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of
Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms
which the people reflexively exercise any day without the impairing awareness of their
constitutional consequence that accurately reflect the degree of liberty enjoyed by the people.
Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a Ten
Commandments-style enumeration of what may or what may not be done; but rather an
atmosphere of freedom where the people do not feel labored under a Big Brother presence as
they interact with each other, their society and nature, in a manner innately understood by them
as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty which we upheld in
City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed
into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace
the right of man to enjoy the facilities with which he has been endowed by his Creator, subject
only to such restraint as are necessary for the common welfare."[
65
] In accordance with this case,
the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where
he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed
embraced in the concept of liberty.[
66
]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning
of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the
Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a
free people, there can be no doubt that the meaning of "liberty" must be broad indeed.
67

[Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments "have gained
notoriety as venue of prostitution, adultery and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven
for prostitutes and thrill-seekers."
68
Whether or not this depiction of a mise-en-scene of vice is
accurate, it cannot be denied that legitimate sexual behavior among willing married or
consenting single adults which is constitutionally protected
69
will be curtailed as well, as it was
in the City of Manila case. Our holding therein retains significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation,
are indefeasible; indeed, they are so fundamental that they are the basis on which his civic
obligations are built. He cannot abandon the consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of
others, he ceases to be a master of himself. I cannot believe that a man no longer a master of
himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of
which should be justified by a compelling state interest. Morfe accorded recognition to the right
to privacy independently of its identification with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers should stop short of certain intrusions into the
personal life of the citizen.
70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair.
There are very legitimate uses for a wash rate or renting the room out for more than twice a day.
Entire families are known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash up and rest between trips
have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups
of persons in need of comfortable private spaces for a span of a few hours with purposes other
than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a
convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of
the Ordinance as a police power measure. It must appear that the interests of the public generally,
as distinguished from those of a particular class, require an interference with private rights and
the means must be reasonably necessary for the accomplishment of the purpose and not unduly
oppressive of private rights.
71
It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. More importantly, a
reasonable relation must exist between the purposes of the measure and the means employed for
its accomplishment, for even under the guise of protecting the public interest, personal rights and
those pertaining to private property will not be permitted to be arbitrarily invaded.
72

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

Similar to the Comelec resolution requiring newspapers to donate advertising space to
candidates, this Ordinance is a blunt and heavy instrument.
75
The Ordinance makes no
distinction between places frequented by patrons engaged in illicit activities and patrons engaged
in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or
even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification
of places of lodging, thus deems them all susceptible to illicit patronage and subject them
without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its
longtime home,
76
and it is skeptical of those who wish to depict our capital city the Pearl of the
Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in
Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all
evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila,
and vice is a common problem confronted by the modern metropolis wherever in the world. The
solution to such perceived decay is not to prevent legitimate businesses from offering a
legitimate product. Rather, cities revive themselves by offering incentives for new businesses to
sprout up thus attracting the dynamism of individuals that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact
be diminished simply by applying existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police work would be more effective
in easing the situation. So would the strict enforcement of existing laws and regulations
penalizing prostitution and drug use. These measures would have minimal intrusion on the
businesses of the petitioners and other legitimate merchants. Further, it is apparent that the
Ordinance can easily be circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact
collect "wash rates" from their clientele by charging their customers a portion of the rent for
motel rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or public welfare. The State is a leviathan
that must be restrained from needlessly intruding into the lives of its citizens. However well-
intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the
rights of the establishments as well as their patrons. The Ordinance needlessly restrains the
operation of the businesses of the petitioners as well as restricting the rights of their patrons
without sufficient justification. The Ordinance rashly equates wash rates and renting out a room
more than twice a day with immorality without accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is
sworn to protect.
77
The notion that the promotion of public morality is a function of the State is
as old as Aristotle.
78
The advancement of moral relativism as a school of philosophy does not de-
legitimize the role of morality in law, even if it may foster wider debate on which particular
behavior to penalize. It is conceivable that a society with relatively little shared morality among
its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields
an adequate accommodation of different interests.
79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.
80
Our penal laws, for one, are founded on
age-old moral traditions, and as long as there are widely accepted distinctions between right and
wrong, they will remain so oriented.
Yet the continuing progression of the human story has seen not only the acceptance of the right-
wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life
to the fullest. Our democracy is distinguished from non-free societies not with any more
extensive elaboration on our part of what is moral and immoral, but from our recognition that the
individual liberty to make the choices in our lives is innate, and protected by the State.
Independent and fair-minded judges themselves are under a moral duty to uphold the
Constitution as the embodiment of the rule of law, by reason of their expression of consent to do
so when they take the oath of office, and because they are entrusted by the people to uphold the
law.
81

Even as the implementation of moral norms remains an indispensable complement to
governance, that prerogative is hardly absolute, especially in the face of the norms of due process
of liberty. And while the tension may often be left to the courts to relieve, it is possible for the
government to avoid the constitutional conflict by employing more judicious, less drastic means
to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is
REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is
REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No
pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-
appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY,
Branch 11, and the CITY OF BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.

GANCAYCO, J .:
At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the Municipal Board of the
City of Butuan on April 21, 1969, the title and text of which are reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION ENGAGED IN THE
BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES,
CONTESTS OR OTHER PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7) AND TWELVE (12)
YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY
ONE-HALF OF THE SAID TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session assembled, that:
SECTION 1It shall be unlawful for any person, group of persons, entity, or corporation engaged in the business of
selling admission tickets to any movie or other public exhibitions, games, contests, or other performances to require
children between seven (7) and twelve (12) years of age to pay full payment for admission tickets intended for adults
but should charge only one-half of the value of the said tickets.
SECTION 2Any person violating the provisions of this Ordinance shall upon conviction be punished by a fine of not
less than TWO HUNDRED PESOS (P200.00) but not more than SIX HUNDRED PESOS (P600.00) or an imprisonment
of not less than TWO (2) MONTHS or not more than SIX (6) MONTHS or both such firm and imprisonment in the
discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed upon the Manager, Agent or Representative of such
firm or corporation.
SECTION 3This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and Dalisay Theaters, the Crown Theater, and
the Diamond Theater, respectively. Aggrieved by the effect of Ordinance No. 640, they filed a complaint before the Court of First Instance of
Agusan del Norte and Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the subject ordinance be
declared unconstitutional and, therefore, void and unenforceable.
1

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

On January 30, 1973, the litigants filed their stipulation of facts.
5
On June 4, 1973, the respondent court
rendered its decision,
6
the dispositive part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the
respondents and against the petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: Provided,
however, that the fine for a single offense shall not exceed TWO HUNDRED PESOS, as
prescribed in the aforequoted Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration
8
of the decision of the court a quo which was denied in a
resolution of the said court dated November 10, 1973.
9

Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra
vires and an invalid exercise of police power.
Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to enact as
provided for in Section 15(n) of Republic Act No. 523, the Charter of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board Except as otherwise provided by
law, and subject to the conditions and limitations thereof, the Municipal Board shall have
the following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the following; . . . theaters,
theatrical performances, cinematographs, public exhibitions and all other performances
and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by
invoking the general welfare clause embodied in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the city and its inhabitants, and such
others as may be necessary to carry into effect and discharge the powers and duties
conferred by this Act, and to fix the penalties for the violation of the ordinances, which
shall not exceed a two hundred peso fine or six months imprisonment, or both such fine
and imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of license
fees for theaters, theatrical performances, cinematographs, public exhibitions and other places of
amusement has been expressly granted to the City of Butuan under its charter. But the question which
needs to be resolved is this: does this power to regulate include the authority to interfere in the fixing of
prices of admission to these places of exhibition and amusement whether under its general grant of
power or under the general welfare clause as invoked by the City?
This is the first time this Court is confronted with the question of direct interference by the local
government with the operation of theaters, cinematographs and the like to the extent of fixing the prices of
admission to these places. Previous decisions of this Court involved the power to impose license fees
upon businesses of this nature as a corollary to the power of the local government to regulate them.
Ordinances which required moviehouses or theaters to increase the price of their admission tickets
supposedly to cover the license fees have been held to be invalid for these impositions were considered
as not merely license fees but taxes for purposes of revenue and not regulation which the cities have no
power to exact,
10
unless expressly granted by its charter.
11

Applying the ruling in Kwong Sing v. City of Manila,
12
where the word "regulate" was interpreted to
include the power to control, to govern and to restrain, it would seem that under its power to regulate
places of exhibitions and amusement, the Municipal Board of the City of Butuan could make proper police
regulations as to the mode in which the business shall be exercised.
While in a New York case,
13
an ordinance which regulates the business of selling admission tickets to
public exhibitions or performances by virtue of the power of cities under the General City Law "to maintain
order, enforce the laws, protect property and preserve and care for the safety, health, comfort and
general welfare of the inhabitants of the city and visitors thereto; and for any of said purposes, to regulate
and license occupations" was considered not to be within the scope of any duty or power implied in the
charter. It was held therein that the power of regulation of public exhibitions and places of amusement
within the city granted by the charter does not carry with it any authority to interfere with the price of
admission to such places or the resale of tickets or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters, cinematographs and other places of
public exhibition are subject to regulation by the municipal council in the exercise of delegated police
power by the local government.
14
Thus, in People v. Chan,
15
an ordinance of the City of Manila
prohibiting first run cinematographs from selling tickets beyond their seating capacity was upheld as
constitutional for being a valid exercise of police power. Still in another case,
16
the validity of an
ordinance of the City of Bacolod prohibiting admission of two or more persons in moviehouses and other
amusement places with the use of only one ticket was sustained as a valid regulatory police measure not
only in the interest of preventing fraud in so far as municipal taxes are concerned but also in accordance
with public health, public safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to enact the ordinance in question under
its power to regulate embodied in Section 15(n), now invokes the police power as delegated to it under
the general welfare clause to justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest of the public generally
requires an interference with private rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
17
The legislature may not,
under the guise of protecting the public interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In other words, the determination as to
what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of
the courts.
18

Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for being
oppressive, unfair, unjust, confiscatory, and an undue restraint of trade, and violative of the right of
persons to enter into contracts, considering that the theater owners are bound under a contract with the
film owners for just admission prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila,
19
this Court
held:
The authority of municipal corporations to regulate is essentially police power, Inasmuch
as the same generally entails a curtailment of the liberty, the rights and/or the property of
persons, which are protected and even guaranteed by the Constitution, the exercise of
police power is necessarily subject to a qualification, limitation or restriction demanded by
the regard, the respect and the obedience due to the prescriptions of the fundamental
law, particularly those forming part of the Constitution of Liberty, otherwise known as the
Bill of Rights the police power measure must be reasonable. In other words, individual
rights may be adversely affected by the exercise of police power to the extent only and
only to the extent--that may be fairly required by the legitimate demands of public interest
or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the ordinance in question
was passed shows that a certain Councilor Calo, the proponent of the measure, had taken into account
the complaints of parents that for them to pay the full price of admission for their children is too financially
burdensome.
The trial court advances the view that "even if the subject ordinance does not spell out its raison d'etre in
all probability the respondents were impelled by the awareness that children are entitled to share in the
joys of their elders, but that considering that, apart from size, children between the ages of seven and
twelve cannot fully grasp the nuance of movies or other public exhibitions, games, contests or other
performances, the admission prices with respect to them ought to be reduced.
19
a
We must bear in mind that there must be public necessity which demands the adoption of proper
measures to secure the ends sought to be attained by the enactment of the ordinance, and the large
discretion is necessarily vested in the legislative authority to determine not only what the interests of the
public require, but what measures are necessary for the protection of such interests.
20
The methods or
means used to protect the public health, morals, safety or welfare, must have some relation to the end in
view, for under the guise of the police power, personal rights and those pertaining to private property will
not be permitted to be arbitralily invaded by the legislative department.
21

We agree with petitioners that the ordinance is not justified by any necessity for the public interest. The
police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation
must exist between purposes and means.
22
The evident purpose of the ordinance is to help ease the
burden of cost on the part of parents who have to shell out the same amount of money for the admission
of their children, as they would for themselves, A reduction in the price of admission would mean
corresponding savings for the parents; however, the petitioners are the ones made to bear the cost of
these savings. The ordinance does not only make the petitioners suffer the loss of earnings but it likewise
penalizes them for failure to comply with it. Furthermore, as petitioners point out, there will be difficulty in
its implementation because as already experienced by petitioners since the effectivity of the ordinance,
children over 12 years of age tried to pass off their age as below 12 years in order to avail of the benefit
of the ordinance. The ordinance does not provide a safeguard against this undesirable practice and as
such, the respondent City of Butuan now suggests that birth certificates be exhibited by movie house
patrons to prove the age of children. This is, however, not at all practicable. We can see that the
ordinance is clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreover,
there is no discernible relation between the ordinance and the promotion of public health, safety, morals
and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious practice of
movie operators and other public exhibitions promoters or the like of demanding equal price for their
admission tickets along with the adults. This practice is allegedly repugnant and unconscionable to the
interest of the City in the furtherance of the prosperity, peace, good order, comfort, convenience and the
general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and adults. The petitioners are
merely conducting their legitimate businesses. The object of every business entrepreneur is to make a
profit out of his venture. There is nothing immoral or injurious in charging the same price for both children
and adults. In fact, no person is under compulsion to purchase a ticket. It is a totally voluntary act on the
part of the purchaser if he buys a ticket to such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen the
economic burden of parents whose minor children are lured by the attractive nuisance being maintained
by the petitioners. Respondent further alleges that by charging the full price, the children are being
exploited by movie house operators. We fail to see how the children are exploited if they pay the full price
of admission. They are treated with the same quality of entertainment as the adults. The supposition of
the trial court that because of their age children cannot fully grasp the nuances of such entertainment as
adults do fails to convince Us that the reduction in admission ticket price is justifiable. In fact, by the very
claim of respondent that movies and the like are attractive nuisances, it is difficult to comprehend why the
municipal board passed the subject ordinance. How can the municipal authorities consider the movies an
attractive nuisance and yet encourage parents and children to patronize them by lowering the price of
admission for children? Perhaps, there is some ,truth to the argument of petitioners that Ordinance No.
640 is detrimental to the public good and the general welfare of society for it encourages children of
tender age to frequent the movies, rather than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater operators will be
discouraged from exhibiting wholesome movies for general patronage, much less children's pictures if
only to avoid compliance with the ordinance and still earn profits for themselves. For after all, these movie
house and theater operators cannot be compelled to exhibit any particular kind of film except those films
which may be dictated by public demand and those which are restricted by censorship laws. So instead of
children being able to share in the joys of their elders as envisioned by the trial court, there will be a
dearth of wholesome and educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state courts of the United
States which upheld the right of the proprietor of a theater to fix the price of an admission ticket as against
the right of the state to interfere in this regard and which We consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of
the theater or it may be evidence of a contract whereby, for a valuable consideration, the purchaser has
acquired the right to enter the theater and observe the performance on condition that he behaves
properly.
23
Such ticket, therefore, represents a right, Positive or conditional, as the case may be,
according to the terms of the original contract of sale. This right is clearly a right of property. The ticket
which represents that right is also, necessarily, a species of property. As such, the owner thereof, in the
absence of any condition to the contrary in the contract by which he obtained it, has the clear right to
dispose of it, to sell it to whom he pleases and at such price as he can obtain.
24
So that an act prohibiting
the sale of tickets to theaters or other places of amusement at more than the regular price was held
invalid as conflicting with the state constitution securing the right of property.
25

In Collister vs. Hayman,
26
it was held:
The defendants were conducting a private business, which, even if clothed with a public
interest, was without a franchise to accommodate the public, and they had the right to
control it, the same as the proprietors of any other business, subject to such obligations
as were placed upon them by statute. Unlike a carrier of passengers, for instance, with a
franchise from the state, and hence under obligation to transport anyone who applies and
to continue the business year in and year out, the proprietors of a theater can open and
close their place at will, and no one can make a lawful complaint. They can charge what
they choose for admission to their theater. They can limit the number admitted. They can
refuse to sell tickets and collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on. They can make it a part of the
contract and condition of admission, by giving due notice and printing the condition in the
ticket that no one shall be admitted under 21 years of age, or that men only or women
only shall be admitted, or that a woman cannot enter unless she is accompanied by a
male escort, and the like. The proprietors, in the control of their business, may regulate
the terms of admission in any reasonable way. If those terms are not satisfactory, no one
is obliged to buy a ticket or make the contract. If the terms are satisfactory, and the
contract is made, the minds of the parties meet upon the condition, and the purchaser
impliedly promises to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs. Banton,
27
the United States Supreme Court
held:
... And certainly a place of entertainment is in no legal sense a public utility; and quite as
certainly, its activities are not such that their enjoyment can be regarded under any
conditions from the point of view of an emergency.
The interest of the public in theaters and other places of entertainment may be more
nearly, and with better reason, assimilated to the like interest in provision stores and
markets and in the rental of houses and apartments for residence purposes; although in
importance it fails below such an interest in the proportion that food and shelter are of
more moment than amusement or instruction. As we have shown there is no legislative
power to fix the prices of provisions or clothing, or the rental charges for houses and
apartments, in the absence of some controlling emergency; and we are unable to
perceive any dissimilarities of such quality or degree as to justify a different rule in
respect of amusements and entertainment ...
We are in consonance with the foregoing observations and conclusions of American courts. In this
jurisdiction, legislation had been passed controlling the prices of goods commodities and drugs during
periods of emergency,
28
limiting the net profits of public utility
29
as well as regulating rentals of residential
apartments for a limited period,
30
as a matter of national policy in the interest of public health and safety,
economic security and the general welfare of the people. And these laws cannot be impugned as
unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense
could these businesses be considered public utilities. The State has not found it appropriate as a national
policy to interfere with the admission prices to these performances. This does not mean however, that
theaters and exhibitions are not affected with public interest even to a certain degree. Motion pictures
have been considered important both as a medium for the communication of Ideas and expression of the
artistic impulse. Their effects on the perceptions by our people of issues and public officials or public
figures as well as the prevailing cultural traits are considerable.
31
People of all ages flock to movie
houses, games and other public exhibitions for recreation and relaxation. The government realizing their
importance has seen it fit to enact censorship laws to regulate the movie industry.
32
Their aesthetic
entertainment and even educational values cannot be underestimated. Even police measures regulating
the operation of these businesses have been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the same
must be resolved in the negative. While it is true that a business may be regulated, it is equally true that
such regulation must be within the bounds of reason, that is, the regulatory ordinance must be
reasonable, and its provisions cannot be oppressive amounting to an arbitrary interference with the
business or calling subject of regulation. A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the exercise of police power.
33
A police measure for
the regulation of the conduct, control and operation of a business should not encroach upon the legitimate
and lawful exercise by the citizens of their property rights.
34
The right of the owner to fix a price at which
his property shall be sold or used is an inherent attribute of the property itself and, as such, within the
protection of the due process clause."" Hence, the proprietors of a theater have a right to manage their
property in their own way, to fix what prices of admission they think most for their own advantage, and
that any person who did not approve could stay away.
36

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

Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We could
assume that, on its face, the interference was reasonable, from the foregoing considerations, it has been
fully shown that it is an unwarranted and unlawful curtailment of the property and personal rights of
citizens. For being unreasonable and an undue restraint of trade, it cannot, under the guise of exercising
police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED and
SET ASIDE and a new judgment is hereby rendered declaring Ordinance No. 640 unconstitutional and,
therefore, null and void. This decision is immediately executory.
SO ORDERED.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Grio-Aquino, JJ., concur.


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 of P1,000.00/day
b) Suspension of the business permit for Six (6) months for the second
offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and imprisonment of One
(1) year, for the third and subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against
the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any establishment for the using and allowing to be used its premises
or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act
7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City
Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general
welfare of the people and/or regulate or prohibit such activity pertaining to amusement or entertainment in order to
protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the
operation, conduct, maintenance of gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both
at the discretion of the court against the manager, supervisor, and/or any person responsible in the establishment,
conduct and maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their
challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the writ prayed for to prohibit
their enforcement.
1
Reconsideration of this decision was denied on July 13, 1993.
2

Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the
Rules of Court.
3
They aver that the respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does
not have the power and authority to prohibit the establishment and operation of a
PAGCOR gambling casino within the City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par.
(a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that
point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and
are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the general
powers and purposes of the instrumentality concerned and inconsistent with the laws or
policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R.
No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this
present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v.
Philippine Amusements and Gaming Corporation,
4
this Court sustained the constitutionality of the decree
and even cited the benefits of the entity to the national economy as the third highest revenue-earner in
the government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is expressly vested with the police power under
what is known as the General Welfare Clause now embodied in Section 16 as follows:
Sec. 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and convenience of
their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang
Panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness in
public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill repute,
gambling and other prohibited games of chance,
fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug
pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the
welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within their
territorial limits in the interest of the general welfare.
5

The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the
operation of casinos because they involve games of chance, which are detrimental to the people.
Gambling is not allowed by general law and even by the Constitution itself. The legislative power
conferred upon local government units may be exercised over all kinds of gambling and not only over
"illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them
within its territory pursuant to the authority entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in
Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking
to strengthen the character of the nation. In giving the local government units the power to prevent or
suppress gambling and other social problems, the 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11119 March 23, 1916
JUANA RIVERA, petitioner,
vs.
RICHARD CAMPBELL, judge of the Court of First Instance of the city of Manila,
respondent.
Vicente Santia for petitioner.
Prosecuting Attorneys Paredes and De Joya for respondent.
JOHNSON, J .:
The petition in the present case was presented for the purpose of obtaining the writ of certiorari.
The record shows that the petitioner had been convicted of a violation of subsection (f) of section
4 of Ordinance No. 149, first by the municipal court of the city of Manila and again by the Court
of First Instance of the city of Manila. She alleged in each court that the same was without
jurisdiction to try her for the crime committed. She admitted that she had committed the acts
charged in the complaint, but denied that the courts of the city of Manila had jurisdiction to try
her for the same. Each of said courts overruled her objection to the jurisdiction, each found her
guilty of the crime charged, and each sentenced her to pay a fine.
Upon the presentation of the petition in this court the respondent was ordered to appear and show
cause why the writ should not issue. In response to said order a demurrer was presented.
The facts upon which the present proceeding are based seem to be as follows: That the said
Juana Rivera was charged with having willfully and unlawfully washed garments, articles of
clothing, and fabrics in the waters of that part of the Mariquina River lying between the Santolan
pumping station and the Boso-Boso dam, in the Province of Rizal, a place then occupied by duly
authorized representatives and employees of the city of Manila, on or about May 11th, 1915, in
violation of subsection (f) of section 4 of Ordinance No. 149 of the city of Manila, in relation
with the provisions of sections 6 and 7 of the same Ordinance.
Upon said complaint the municipal court found the plaintiff guilty. She appealed to the Court of
First Instance where she was again found guilty of a violation of said Ordinance.
The simple question presented in the present case is whether or not the courts of the city of
Manila have jurisdiction over the crime committed by the petitioner at the place it was
committed.
Said section 4 of paragraph (f) of said Ordinance provides as follows:
SECTION 4. The following regulations shall be observed upon all lands occupied by any
duly authorized representative, officer, or employee of the city of Manila:
xxx xxx xxx
(f) Bathing in water courses. All persons are prohibited from bathing in the river and
water courses. The washing of garments, articles of clothing, and fabrics in the waters of
any river or water course is prohibited.
Said section of said Ordinance was adopted by the municipal board of the city of Manila in
pursuance of the power conferred upon it by authority of the provisions of paragraphs (w) and
(cc) of section 17 of Act No. 183, and paragraph (i) of section 3 of Act No. 1150 of the
Philippine Commission.
Section 17 and paragraph (w) and (cc) provide:
SEC. 17 . . . . In addition to the foregoing the board (municipal) shall have the following
general powers:
xxx xxx xxx
(w) To maintain waterworks for the purpose of supplying water to the inhabitants of the
city (of Manila), to purify the source of supply, and regulate the control and use of the
water, and to fix and collect rents therefor; to regulate the construction, repair, and use of
hydrants, pumps, cisterns, and reservoirs, and to prevent the waste of water.
xxx xxx xxx
(cc) To extend and enforce all its ordinances over all waters within the city, . . . and for
the purpose of protecting and insuring the purity of the water supply of the city, to extend
and enforce ordinances to that end over all territory within the drainage area of such
water supply, or within one hundred meters of any reservoir, conduit, canal, aqueduct, or
pumping station used in connection with the city water service.
The municipal board was further authorized to protect the purity of the water supply of the city
of Manila, by Act No. 1150 of the Philippine Commission. Section 3 of said Act provides:
SEC. 3 (Act No. 1150.) The ordinances drafted by the Board of Health may provide for:
xxx xxx xxx
(i) Protection from infection of all public and private water supplies and sources, and
prohibition of the use of water of dangerous character of domestic purposes. Ordinances
enacted for the purpose of protecting the purity of the water supply of Manila shall apply
to and be enforced over all territory within the drainage area of such water supply or
within one hundred meters of any reservoir, conduit, canal, aqueduct, or pumping station
used in connection with the city water service."
It is admitted that during the dry season, the city of Manila was obliged to use, in addition to the
natural water supply from Boso-Boso dam, the water from Mariquina River; that the water was
taken out of the Mariquina Rivera by means of a pumping station located some distance below
Boso-Boso dam, and that the petitioner was found washing her clothing between the said
pumping station and Boso-Boso dam. It is clear, therefore, that she was guilty of interfering with
the purity of the water which was supplied to the city of Manila by said pumping station.
With reference to the jurisdiction of the courts of the city of Manila over said territory, it may be
noted that section 6 of said Ordinance No. 149, expressly confers upon the municipal court of the
city of Manila power to try any violation of any of its provisions. Section 7 of said ordinance
provides the penalty for its violation.
When the question of the jurisdiction of the Court of First Instance of the city of Manila was
presented to the lower court, Judge Campbell, the respondent herein, in a very well-reasoned
opinion, reached the conclusion that the court had jurisdiction over the petitioner and the offense
committed, and sentenced her to pay a fine of P50 and costs, and in case of insolvency to suffer
subsidiary imprisonment. In the course of his opinion, Judge Campbell said:
It is beyond question that by washing garments, articles of clothing, and fabrics in the
Mariquina River, as shown above, the defendant committed a violation of paragraph (f)
of section 4 of Ordinance No. 149 of the city of Manila, in connection with sections 6 and
7 thereof. The Santolan pumping station is a part of the public water supply of the city of
Manila which is used in supplying the inhabitants of the city with water taken from that
part of the Mariquina River during the dry reason, in the waters of which the defendant
washed articles of clothing. According to American authorities, the true meaning of the
phrase public water supply is as follows:
'Public was supply is not limited to water supply owned and controlled by a municipal
corporation, but should be construed as meaning a supply of water for public and
domestic use, furnished or to be furnished from waterworks.' (State vs. Township etc., 52
N. J. Law, 496; 19 Atl. Rep., 975.)
The provisions of Ordinance No. 149 of the city of Manila and the Acts of the Philippine
Commission upon which it is based would be meaningless and almost absurd if made
applicable only to the Santolan pumping station and not to that part of the Mariquina
River immediately above it and from which the said pumping station draws water for the
use of the inhabitants of the city of Manila during the dry season, considering that the
policy and purpose of said ordinance is the protection of the public health in the said city.
According to American decisions on the construction of statutes: `Every statute must be
construed with reference to the object intended to be accomplished by it. In order to
ascertain this object it is proper to consider the occasion and necessity of its enactment, . .
. . and the statute should be given that construction which is best calculated to advance its
object, by suppressing the mischief and securing the benefits intended.' (36 Cyc., 1110,
1111.)
That the Court of First Instance of the city of Manila has jurisdiction to try the offense
under consideration, although committed in the Province of Rizal, by virtue of the
provisions of said ordinance (149), based upon paragraphs (w) and (cc), of section 17 of
Act No. 183, and paragraph (i) f section 3 of Act No. 1150 of the Philippine Commission
can not be disputed, if we simply take into consideration the following rule, which has
been pronounced on many occasions, in relation to the same question, by many courts:
'The corporation boundaries usually mark the limit for the exercise of the police power by
the municipality; but in many instances because essential to the statutory performance of
police functions, and especially for the preservation of the public health, the municipality
is granted police power beyond its boundaries. Thus it has been held that the grant of
power to acquire territory for water supply beyond the limits of the municipality is within
the competency of the legislature, and that the municipality may exercise police power in
the protection of the territory thus acquired to insure cleanliness, and prevent any
business and conduct likely to corrupt the fountain of water supply for the city.' (28 Cyc.,
703, 704.)
After a consideration of the facts and the law applicable thereto and the general power conferred
upon the city of Manila, we are fully persuaded that the municipal court of the city of Manila, as
well as the Court of First Instance of the city of Manila, has jurisdiction to hear and determine
the question presented by the complaint originally presented against the petitioner. Therefore the
petition for the writ of certiorari is hereby denied, with costs. So ordered.
Torres, Moreland, Trent, and Araullo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12172 August 29, 1958
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J .:
Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-
appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950,
of the Municipality of Baao, Camarines Sur, for having constructed without a permit from the
municipal mayor a building that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F.
Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the
ordinance in question providing as follows:
SECTION 1. Any person or persons who will construct or repair a building should,
before constructing or repairing, obtain a written permit from the Municipal Mayor.
SEC. 2. A fee of not less than P2.00 should be charged for each building permit and
P1.00 for each repair permit issued.
SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall
make the violation liable to pay a fine of not less than P25 nor more than P50 or
imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of
the court. If said building destroys the view of the Public Plaza or occupies any public
property, it shall be removed at the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs.,
P. 3)
Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,
appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's
name, located along the national highway and separated from the public plaza by a creek (Exh.
D). On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954,
defendants reiterated their request for a building permit (Exh. 3), but again the request was
turned down by the mayor. Whereupon, appellants proceeded with the construction of the
building without a permit, because they needed a place of residence very badly, their former
house having been destroyed by a typhoon and hitherto they had been living on leased property.
On February 26, 1954, appellants were charged before and convicted by the justice of the peace
court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to
the Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine
of P35 each and the costs, as well as to demolish the building in question because it destroys the
view of the public plaza of Baao, in that "it hinders the view of travelers from the National
Highway to the said public plaza." From this decision, the accused appealed to the Court of
Appeals, but the latter forwarded the records to us because the appeal attacks the
constitutionality of the ordinance in question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is that under it the mayor has
absolute discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up
any standard to guide or limit the mayor's action. No purpose to be attained by requiring the
permit is expressed; no conditions for its grant or refusal are enumerated. It is not merely a case
of deficient standards; standards are entirely lacking. The ordinance thus confers upon the mayor
arbitrary and unrestricted power to grant or deny the issuance of building permits, and it is a
settled rule that such an undefined and unlimited delegation of power to allow or prevent an
activity, per se lawful, is invalid (People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil.,
71; Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d) 392)
The ordinance in question in no way controls or guides the discretion vested thereby in
the respondents. It prescribes no uniform rule upon which the special permission of the
city is to be granted. Thus the city is clothed with the uncontrolled power to capriciously
grant the privilege to some and deny it others; to refuse the application of one landowner
or lessee and to grant that of another, when for all material purposes, the two applying for
precisely the same privileges under the same circumstances. The danger of such an
ordinance is that it makes possible arbitrary discriminations and abuses in its execution,
depending upon no conditions or qualifications whatever, other than the unregulated
arbitrary will of the city authorities as the touchstone by which its validity is to be tested.
Fundamental rights under our government do not depend for their existence upon such a
slender and uncertain thread. Ordinances which thus invest a city council with a
discretion which is purely arbitrary, and which may be exercised in the interest of a
favored few, are unreasonable and invalid. The ordinance should have established a rule
by which its impartial enforcement could be secured. All of the authorities cited above
sustain this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A.
587, 28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established
that municipal ordinances placing restrictions upon lawful conduct or the lawful use of
property must, in order to be valid, specify the rules and conditions to be observed in
such conduct or business; and must admit of the exercise of the privilege of all citizens
alike who will comply with such rules and conditions; and must not admit of the exercise,
or of an opportunity for the exercise, of any arbitrary discrimination by the municipal
authorities between citizens who will so comply. (Schloss Poster Adv. Co., Inc. vs. City
of Rock Hill, et al., 2 SE (2d), pp. 394-395).
It is contended, on the other hand, that the mayor can refuse a permit solely in case that the
proposed building "destroys the view of the public plaza or occupies any public property" (as
stated in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to
the appellant was predicated on the ground that the proposed building would "destroy the view of
the public plaza" by preventing its being seen from the public highway. Even thus interpreted,
the ordinance is unreasonable and oppressive, in that it operates to permanently deprive
appellants of the right to use their own property; hence, it oversteps the bounds of police power,
and amounts to a taking of appellants property without just compensation. We do not overlook
that the modern tendency is to regard the beautification of neighborhoods as conducive to the
comfort and happiness of residents. But while property may be regulated in the interest of the
general welfare, and in its pursuit, the State may prohibit structures offensive to the sight
(Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police
power, permanently divest owners of the beneficial use of their property and practically
confiscate them solely to preserve or assure the aesthetic appearance of the community. As the
case now stands, every structure that may be erected on appellants' land, regardless of its own
beauty, stands condemned under the ordinance in question, because it would interfere with the
view of the public plaza from the highway. The appellants would, in effect, be constrained to let
their land remain idle and unused for the obvious purpose for which it is best suited, being urban
in character. To legally achieve that result, the municipality must give appellants just
compensation and an opportunity to be heard.
An ordinance which permanently so restricts the use of property that it can not be used
for any reasonable purpose goes, it is plain, beyond regulation and must be recognized as
a taking of the property. The only substantial difference, in such case, between restriction
and actual taking, is that the restriction leaves the owner subject to the burden of payment
of taxation, while outright confiscation would relieve him of that burden. (Arverne Bay
Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).
A regulation which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum
vs. Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs.
Jacksonville, 133 So. 114).
Zoning which admittedly limits property to a use which can not reasonably be made of it
cannot be said to set aside such property to a use but constitutes the taking of such
property without just compensation. Use of property is an element of ownership therein.
Regardless of the opinion of zealots that property may properly, by zoning, be utterly
destroyed without compensation, such principle finds no support in the genius of our
government nor in the principles of justice as we known them. Such a doctrine shocks the
sense of justice. If it be of public benefit that property remain open and unused, then
certainly the public, and not the private individuals, should bear the cost of reasonable
compensation for such property under the rules of law governing the condemnation of
private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185 N.E. 827)
(Emphasis supplied.)
The validity of the ordinance in question was justified by the court below under section 2243,
par. (c), of the Revised Administrative Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary character. The municipal
council shall have authority to exercise the following discretionary powers:
x x x x x x x x x
(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may
be constructed or repaired within them, and issue permits for the creation or repair
thereof, charging a fee which shall be determined by the municipal council and which
shall not be less than two pesos for each building permit and one peso for each repair
permit issued. The fees collected under the provisions of this subsection shall accrue to
the municipal school fund.
Under the provisions of the section above quoted, however, the power of the municipal council
to require the issuance of building permits rests upon its first establishing fire limits in populous
parts of the town and prescribing the kinds of buildings that may be constructed or repaired
within them. As there is absolutely no showing in this case that the municipal council had either
established fire limits within the municipality or set standards for the kind or kinds of buildings
to be constructed or repaired within them before it passed the ordinance in question, it is clear
that said ordinance was not conceived and promulgated under the express authority of sec. 2243
(c) aforequoted.
We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the
Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact,
and is therefore null and void. Hence, the conviction of herein appellants is reversed, and said
accused are acquitted, with costs de oficio. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia
and Felix, JJ., concur.