VI.

POWERS OF MUN. CORPORATIONS IN GENERAL

A.
Sources
B.
Classification of Powers
1. U.S. v. Ten Yu, 24 Phil 1
FIRST DIVISION
[G.R. No. 7482. December 28, 1912.]
THE
UNITED
STATES, plaintiff-appellee, vs.
AL., defendants-appellants.

TEN

YU

ET

L. M. Southworth for appellants.

Solicitor-General Harney for appellee.
SYLLABUS
1. MUNICIPALITIES; MUNICIPAL ORDINANCES. Generally speaking,
municipal corporations have only such powers as are expressly delegated to them
and such other powers as are necessarily implied from such express powers. The
city of Manila is expressly authorized (section 16 of charter) to make such
ordinances or regulations as may be necessary to discharge the powers and duties
conferred by its charter and to provide for the peace, order, safety, and general
welfare of the city and its inhabitants and to fix penalties for the violation of such
ordinances. Paragraph (ff) of section 17 provides that the city of Manila may adopt
ordinances providing for the closing of opium joints is smoked or sold the keeping
or visiting of any place where opium is smoked or sold for the purpose of smoking.
In pursuance of this express authority (paragraph (ff) of section 17 of the charter)
ordinance No. 152 was adopted.
2. ID.; ID.; REASONABLENESS OF AN ORDINANCE; PROHIBITED ACT MAY BE
INNOCENTLY PERFORMED. Section 3 of ordinance No. 152 provides that no
person shall visit or be present at or in any place where opium or any of its
derivatives at or compounds are smoked or otherwise used in or on the human
body, or unlawfully sold, given away, or otherwise disposed of. This ordinance was
intended to prohibit an offense and not an innocent or lawful act. If an act is done
which is prohibited by the express words of the statute, it may be shown to be
lawfully or innocently done and a person charged with a violation of such ordinance
may thereby be relieved from criminal responsibility thereunder.
3. ID.; ID.; STATUTORY CONSTRUCTION; AUTHORITY OF COURTS TO DECLARE
STATUTES VOID. Courts are slow to pronounce statutes invalid or void. The
question of the validity of every statute is first determined by the legislative
department of the Government itself, and the courts should resolve every
presumption in favor of its validity. Courts are not justified in adjudging a statute
invalid in the face of the conclusions of the legislature when the question of its
validity is at all doubtful. The courts must assume that the validity of a statute was
fully considered by the legislature when adopted. Statutes should not be presumed
to be invalid unless it clearly appears that they fall within some of the inhibitions of
the fundamental laws of the State. The wisdom or advisability of a particular
statute is not a question for the courts to determine that is a question for the
legislature to determine. The courts may or may not agree with the legislature

upon the wisdom or necessity of a law. Their disagreement, however, furnishes no

basis for pronouncing a statute illegal. If a particular statute is within the statutory
power of the legislature of enact, whether the courts agree or not in the wisdom of
its enactment is a matter or no concern. Upon the other hand, however, if the
statute covers subjects not authorized by the fundamental laws of the land or its
constitution, then the courts are not only authorized but are justified in
pronouncing the same illegal and void, no matter how wise or beneficent such
legislation may seem to be. Courts are not justified in measuring their opinion with
the opinion of the legislative department of the Government, as expressed in
statutes, upon questions of the wisdom, justice, or advisability of a particular law.
In exercising the high authority conferred upon the courts to pronounce valid or
invalid a particular statute, they are only the administrators of the public will, as
expressed in the fundamental laws of the land. If an act of the legislature is held
illegal, it is not because the judges have any control over the legislative power, but
because the act is forbidden by the fundamental laws of the land, and because the
will of the people, as declared in such fundamental laws, is paramount and must be
obeyed, even by the legislature. In pronouncing statutes illegal, the courts are
simply interpreting the meaning, force, and application of the fundamental laws of
the State.

2. U.S. v. Garring, 28 Phil 149

EN BANC
[G.R. No. 8611. October 13, 1914.]
THE UNITED STATES, plaintiff-appellant, vs.
BONIFACIO GARING, defendant-appellee.
Attorney-General Villamor for appellant.
Macario Adriatico for appellee.
SYLLABUS
1. MUNICIPAL CORPORATIONS; ORDINANCES; REGULATION OF FISHING.
The regulation, by means of an ordinance passed by a municipal council, of the use
and enjoyment of the right to fish within its jurisdictional waters, by fixing the
seasons of the year when this right may be exercised, though it implies a
prohibition to fish during the seasons not designated in such ordinance, does not
constitute a prohibition of the said right, but, on the contrary, a granting of the
same, through means of the necessary regulations for the protection and develop
ment of the common property of the municipality.
2. ID.; ID.; ID.; CONSTITUTIONALITY. When the action of such municipal
ordinance is limited to the district comprised within the municipality and it does not
deprive anyone of the exercise of that right, it cannot be maintained that it is
unconstitutional.
3. ID.; ID.; ID.; VALIDITY. Inasmuch as subsection (r) of section 29 of Act No.
1397 (The Township Government Act) provides that it shall be one of the duties of

the township councils to make such ordinances and regulations, not in conflict with
law, as may be necessary to carry into effect and discharge the powers and duties
conferred by this Act and such as shall seem necessary and proper to promote
prosperity, protect property, and enforce obedience thereto with such lawful fines
or penalties as the council may prescribe under the provision of subsection (q) of
this section; and further, whereas subsection (a) of section 43 of the same Act
prescribes that one of the sources of revenue of the townships shall be the fees
which they may collect for licenses to fish, it is unquestionable that the said
councils have the power to pass ordinances and regulations with respect to the
exercise and enjoyment of the right to fish within their respective municipal
districts, and such ordinances and regulations are valid, such power being one of
those incident to the existence of these councils as public corporations, pursuant to
the provisions of section 2 of Act No. 1459.
i.
ii.

Powers specified in the local Government Code

Separation of power in Local Governments
Case: Perez v. De la Cruz, 27 SCRA 587

EN BANC
[G.R. No. L-29458. March 28, 1969.]
VIRGINIA F. PEREZ, petitioner, vs. HON. RAFAEL DE LA CRUZ,
REYNALDO BORJA, ROBERTO RUELO, FELICISIMO DE ASIS and
CARLOS DEL CASTILLO, respondents.
Salonga, Ordonez, Yap, Sicat and Associates for petitioner.
Reynaldo P. Borja for and in his own behalf as respondent.
SYLLABUS
1.ADMINISTRATIVE LAW; MUNICIPAL CORPORATIONS; NAGA CITY; VICE MAYOR
THEREOF; THE VICE-MAYOR IS NOT A MEMBER OF THE MUNICIPAL BOARD. There is
absolutely nothing in Republic Act 305, also known as the charter of the City of Naga,
which provides that the vice-mayor of the said city is a member of the municipal
board thereof. Forsooth, the position of vice mayor was not even provided for, as the
"acting mayor" designated to take over in case of sickness, absence or other
temporary incapacity of the mayor was the "City Treasurer."
2.ID.; ID.; ID.; ID.; THE VICE-MAYOR IS NOT A MEMBER OF THE MUNICIPAL COUNCIL
UNDER REPUBLIC ACT 2259. True it is that upon the passage of Republic Act 2259,
the position of vice-mayor in Naga City, and in all other chartered cities whose
corporate charters did not provide for the position of vice-mayor was created, but
Section 3 thereof simply provides that "the Vice-Mayor shall be the presiding officer of
the City Council or Municipal Board in all chartered cities." It does not decree that the
vice-mayor is a member of the city council or municipal board. This is especially true
in the case of Naga where the position of vice-mayor (whether appointive or elective)
was originally not even provided for in its charter - the official next-in-rank to the
mayor being the city treasurer. In no manner does the law, either in its original form
under Rep. Act 305, or in its amendatory shape under Rep. Act 2259, constitute the
vice-mayor as a member of the municipal board. It simply says that "the vice-mayor
shall be the presiding officer of the City Council or Municipal Board."

3.ID.; ID.; ID.; ID.; CASE OF QUIEM VS. SERIA, ET AL. NOT APPLICABLE IN INSTANT
CASE. Quiem vs. Seria, et al. is cited, where this Court held that the silence of Rep.
Act 2259 on whether the vice-mayor, the presiding officer, is a member of the board,
was not enough ground for excluding the vice-mayor from membership in the board.
But the legal setting and premises in Quiem are widely disparate from those in the
case at bar. In the first place, in Quiem, this Court found "by express legal mandate,
the vice-mayor of Cagayan de Oro City is a member of the board" because "that city's
original charter calls for an appointive Vice-Mayor who `shall be a member of the
Municipal Board.'" In the case at bar, however, in contrast with Sec. 11 of Republic Act
521 creating the city of Cagayan de Oro which explicitly made the vice-mayor a
member of the municipal board, Section 11 of Republic Act 305 creating the City of
Naga failed to provide even for the position of vice-mayor. In the second
place, Republic Act 1325, particularly Section 1 thereof, amending the Cagayan de
Oro charter, expressly reiterated that the vice-mayor "shall be a member of the
Municipal Board"; no such similar statutory basis can be cogently invoked for the
petitioner Perez.
4.ID.; ID.; ID.; ID.; BEING A PRESIDING OFFICER OF THE MUNICIPAL BOARD DOES NOT
MAKE THE VICE-MAYOR A MEMBER THEREOF. The mere fact that the vice-mayor
was made the "presiding officer" of the board did not ipso jure make him a member
thereof; and even if he "is an integral part of the Municipal Board" such fact does not
necessarily confer on him "either the status of a regular member of its municipal
board or the powers and attributes of a municipal councilor." In sum, the vice-mayor
of Naga possesses in the municipal board of Naga no more than the prerogatives and
authority of a "presiding officer" as such. The chairman of the board - the vice-mayor was, therefore, bereft of a casting vote such as would empower him to vote to create
a tie, then vote again to break such tie.
5.ID.; ID.; ID.; ID.; AS PRESIDING OFFICER, VICE-MAYOR CAN ONLY VOTE TO BREAK A
TIE. The petitioner now argues that as vice-mayor she merely stepped into the
shoes of the mayor as presiding officer of the board, and since the mayor was
considered a member thereof, she too became a member entitled to the same rights,
powers and prerogatives of voting as the mayor. There is no gainsaying the fact that
prior to the approval of Rep. Act 2259, the mayor of a municipality was a member of
the municipal council, besides being the presiding officer thereof, but his right to vote
could be exercised only in "case of a tie." Certainly, the vice-mayor who merely
stepped into the shoes of the mayor could have no greater power than that possessed
by the mayor who could not create a tie vote and then break it. A stream, as the
aphorism goes, cannot rise higher than its source. It is not here urged that the
petitioner is a member of the board acting as chairman. Her claim is that she is the
presiding officer and also a member of the board. But as we said, she is not both the
presiding officer and a constituent member of the board. She cannot, therefore, vote
twice - once to create a tie as a constituent member, and the second time around, to
break such tie with another vote.
6.ID.; ID.; COURTS CAN DETERMINE VALIDITY OF MUNICIPAL PROCEEDINGS. The
petitioner's final contention is that as a legislative official, performing legislative
functions, she is not subject to any prohibitory process by the courts. Invocation of
Vera, et al. vs. Avelino, et al. is completely inapposite. The doctrine therein laid down
is based on the principle of separation of powers and checks and balances and is not
applicable to local governments. Moreover, executives at the local or municipal level
are vested with both legislative and sometimes judicial functions, in addition to their
purely executive duties. By explicit statutory command, courts are given authority to
determine the validity of municipal proceedings. It is not disputed that the present

proceeding for prohibition has for its objective to prevent the petitioner from
"participating in the election of Secretary of the Board, chairmanship of different
committees and in voting in other legislative matters, proposals and proceedings,
other than to break a tie." It is our view that the petitioner, in insisting to exercise the
right to vote twice in the municipal board; acted without jurisdiction and power to do
so, and may be validly prevented and restrained by a writ of prohibition.
C.
Rules of Interpretation
1. Ortigas v. Feati, 94 SCRA 533
EN BANC
[G.R. No. L-24670. December 14, 1979.]
ORTIGAS
&
CO.,
LIMITED
PARTNERSHIP, plaintiffappellant, vs. FEATI BANK AND TRUST CO., defendant-appellee.
Ramirez & Ortigas for appellant.
Taada, Teehankee & Carreon for appellee.
DECISION
SANTOS, J p:
An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas & Co., Limited
Partnership, from the decision of the Court of First Instance of Rizal, Branch VI, at
Pasig, Hon. Andres Reyes presiding, which dismissed its complaint in Civil Case No.
7706, entitled, "Ortigas & Company, Limited Partnership, plaintiff, v. Feati Bank and
Trust Company, defendant," for lack of merit.
The following facts a reproduction of the lower court's findings, which, in turn, are
based on a stipulation of facts entered into by the parties are not disputed. Plaintiff
(formerly known as "Ortigas, Madrigal y Cia") is a limited partnership and defendant
Feati Bank and Trust Co., is a corporation duly organized and existing in accordance
with the laws of the Philippines. Plaintiff is engaged in real estate business, developing
and selling lots to the public, particularly the Highway Hills Subdivision along Epifanio
de los Santos Avenue, Mandaluyong, Rizal. 1
On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and Natividad
Angeles, as vendees, entered into separate agreements of sale on installments over
two parcels of land, known as Lots Nos. 5 and 6, Block 31, of the Highway Hills
Subdivision, situated at Mandaluyong, Rizal. On July 19, 1962, the said vendees
transferred their rights and interests over the aforesaid lots in favor of one Emma
Chavez. Upon completion of payment of the purchase price, the plaintiff executed the
corresponding deeds of sale in favor of Emma Chavez. Both the agreements (of sale
on installment) and the deeds of sale contained the stipulations or restrictions that:
"1. The parcel of land subject of this deed of sale shall be used by the
Buyer exclusively for residential purposes, and she shall not be entitled
to take or remove soil, stones or gravel from it or any other lots
belonging to the Seller.

2. All buildings and other improvements (except the fence) which may
be constructed at any time in said lot must be, (a) of strong materials
and properly painted, (b) provided with modern sanitary installations
connected either to the public sewer or to an approved septic tank, and
(c) shall not be at a distance of less than two (2) meters from its
boundary lines." 2
The above restrictions were later annotated in TCT Nos. 101509 and 101511 of the
Register of Deeds of Rizal, covering the said lots and issued in the name of Emma
Chavez. 3
Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT Nos. 101613 and
106092 issued in its name, respectively, and the building restrictions were also
annotated therein. 4 Defendant-appellee bought Lot No. 5 directly from Emma
Chavez, "free from all liens and encumbrances as stated in Annex 'D'," 5 while Lot No.
6 was acquired from Republic Flour Mills through a "Deed of Exchange," Annex
"E". 6 TCT No. 101719 in the name of Republic Flour Mills likewise contained the same
restrictions, although defendant-appellee claims that Republic Flour Mills purchased
the said Lot No. 6 "in good faith, free from all liens and encumbrances," as stated in
the Deed of Sale, Annex "F" 7 between it and Emma Chavez. Cdpr
Plaintiff-appellant claims that the restrictions annotated on TCT Nos. 101509, 101511,
101719, 101613, and 106092 were imposed as part of its general building scheme
designed for the beautification and development of the Highway Hills Subdivision
which forms part of the big landed estate of plaintiff-appellant where commercial and
industrial sites are also designated or established. 8
Defendant-appellee, upon the other hand, maintains that the area along the western
part of Epifanio de los Santos Avenue (EDSA) from Shaw Boulevard to Pasig River, has
been declared a commercial and industrial zone, per Resolution No. 27, dated
February 4, 1960 of the Municipal Council of Mandaluyong, Rizal. 9 It alleges that
plaintiff-appellant "completely sold and transferred to third persons all lots in said
subdivision facing Epifanio de los Santos Avenue" 10 and the subject lots thereunder
were acquired by it "only on July 23, 1962 or more than two (2) years after the
area . . . had been declared a commercial and industrial zone . . ." 11
On or about May 5, 1963, defendant-appellee began laying the foundation and
commenced the construction of a building on Lots Nos. 5 and 6, to be devoted to
banking purposes, but which defendant-appellee claims could also be devoted to, and
used exclusively for, residential purposes. The following day, plaintiff-appellant
demanded in writing that defendant-appellee stop the construction of the commercial
building on the said lots. The latter refused to comply with the demand, contending
that the building was being constructed in accordance with the zoning regulations,
defendant-appellee having filed building and planning permit applications with the
Municipality of Mandaluyong, and it had accordingly obtained building and planning
permits to proceed with the construction. 12
On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the
lower court for decision. The complaint sought, among other things, the issuance of "a
writ of preliminary injunction . . . restraining and enjoining defendant, its agents,
assigns, and those acting on its or their behalf from continuing or completing the
construction of a commercial bank building in the premises . . . involved, with the view
to commanding the defendant to observe and comply with the building restrictions
annotated in the defendant's transfer certificate of title." cdphil

In deciding the said case, the trial court considered, as the fundamental issue,
whether or not the resolution of the Municipal Council of Mandaluyong declaring Lots
Nos. 5 and 6, among others, as part of the commercial and industrial zone of the
municipality, prevailed over the building restrictions imposed by plaintiff-appellant on
the lots in question. 13 The records do not show that a writ of preliminary injunction
was issued. cdphil
The trial court upheld the defendant-appellee and dismissed the complaint, holding
that the subject restrictions were subordinate to Municipal Resolution No. 27, supra. It
predicated its conclusion on the exercise of police power of the said municipality, and
stressed that private interest should "bow down to general interest and welfare." In
short, it upheld the classification by the Municipal Council of the area along Epifanio
de los Santos Avenue as a commercial and industrial zone, and held that the same
rendered "ineffective and unenforceable" the restrictions in question as against
defendant-appellee. 14 The trial court decision further emphasized that it "assumes
said resolution to be valid, considering that there is no issue raised by either of the
parties as to whether the same is null and void." 15
On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above
decision, 16 which motion was opposed by defendant-appellee on March 17,
1965. 17 It averred, among others, in the motion for reconsideration that defendantappellee "was duty bound to comply with the conditions of the contract of sale in its
favor, which conditions were duly annotated in the Transfer Certificates of Title issued
in her (Emma Chavez) favor." It also invited the trial court's attention to its claim that
" . . . the Municipal Council had (no) power to nullify the contractual obligations
assumed by the defendant corporation." 18
The trial court denied the motion for reconsideration in its order of March 26, 1965. 19
On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision
dismissing the complaint and from the order of March 26, 1965 denying the motion for
reconsideration, its record on appeal, and a cash appeal bond. 20 On April 14, the
appeal was given due course 21 and the records of the case were elevated directly to
this Court, since only questions of law are raised. 22
Plaintiff-appellant alleges in its brief that the trial court erred
I. When it sustained the view that Resolution No. 27, series of 1960 of
the Municipal Council of Mandaluyong, Rizal declaring Lots Nos. 5 and 6,
among others, as part of the commercial and industrial zone, is valid
because it did so in the exercise of its police power; and
II. When it failed to consider whether or not the Municipal Council had
the power to nullify the contractual obligations assumed by defendantappellee and when it did not make a finding that the building was
erected along the property line, when it should have been erected two
meters away from said property line. 23
The defendant-appellee submitted its counter-assignment of errors. In this connection,
We already had occasion to hold in Relativo v. Castro 24 that "(I)t is not incumbent on
the appellee, who occupies a purely defensive position, and is seeking no affirmative
relief, to make assignments of error."

The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is
a valid exercise of police power; and (2) whether the said Resolution can nullify or
supersede the contractual obligations assumed by defendant-appellee.
1. The contention that the trial court erred in sustaining the validity of Resolution No.
27 as an exercise of police power is without merit. In the first place, the validity of the
said resolution was never questioned before it. The rule is that the question of law or
of fact which may be included in the appellant's assignment of errors must be those
which have been raised in the court below, and are within the issues framed by the
parties. 25 The object of requiring the parties to present all questions and issues to
the lower court before they can be presented to the appellate court is to enable the
lower court to pass thereon, so that the appellate court upon appeal may determine
whether or not such ruling was erroneous. The requirement is in furtherance of justice
in that the other party may not be taken by surprise. 26 The rule against the practice
of blowing "hot and cold" by assuming one position in the trial court and another on
appeal will, in the words of Elliot, prevent deception. 27 For it is well-settled that
issues or defenses not raised 28 or properly litigated 29 or pleaded 30 in the Court
below cannot be raised or entertained on appeal.

In this particular case, the validity of the resolution was admitted, at least impliedly, in
the stipulation of facts below, when plaintiff-appellant did not dispute the same. The
only controversy then as stated by the trial court was ".. whether or not the resolution
of the Municipal Council of Mandaluyong . . . which declared Lots Nos. 4 and 5 among
others, as a part of the commercial and industrial zone of the municipality, prevails
over the restrictions constituting as encumbrances on the lots in question." 31 Having
admitted the validity of the subject resolution below, even if impliedly, plaintiffappellant cannot now change its position on appeal. LibLex
But, assuming arguendo that it is not yet too late in the day for plaintiff-appellant to
raise the issue of the invalidity of the municipal resolution in question, We are of the
opinion that its posture is unsustainable. Section 3 of R.A. No. 2264, otherwise known
as the Local Autonomy Act, 32 empowers a Municipal Council "to adopt zoning and
subdivision ordinances or regulations" 33 for the municipality. Clearly, the law does
not restrict the exercise of the power through an ordinance. Therefore, granting that
Resolution No. 27 is not an ordinance, it certainly is a regulatory measure within the
intendment or ambit of the word "regulation" under the provision. As a matter of fact
the same section declares that the power exists "(A)ny provision of law to the contrary
notwithstanding . . ."
An examination of Section 12 of the same law 34 which prescribes the rules for its
interpretation likewise reveals that the implied power of a municipality should be
"liberally construed in its favor" and that "(A)ny fair and reasonable doubt as to the
existence of the power should be interpreted in favor of the local government and it
shall be presumed to exist." The same section further mandates that the general
welfare clause be liberally interpreted in case of doubt, so as to give more power to
local governments in promoting the economic conditions, social welfare and material
progress of the people in the community. The only exceptions under Section 12 are
existing vested rights arising out of a contract between "a province, city or
municipality on one hand and a third party on the other," in which case the original
terms and provisions of the contract should govern. The exceptions, clearly, do not
apply in the case at bar.

2. With regard to the contention that said resolution cannot nullify the contractual
obligations assumed by the defendant-appellee referring to the restrictions
incorporated in the deeds of sale and later in the corresponding Transfer Certificates
of Title issued to defendant-appellee it should be stressed, that while nonimpairment of contracts is constitutionally guaranteed, the rule is not absolute, since
it has to be reconciled with the legitimate exercise of police power, i.e., "the power to
prescribe regulations to promote the health, morals, peace, education, good order or
safety and general welfare of the people." 35 Invariably described as "the most
essential, insistent, and illimitable of powers" 36 and "in a sense, the greatest and
most powerful attribute of government," 37 the exercise of the power may be
judicially inquired into and corrected only if it is capricious, whimsical, unjust or
unreasonable, there having been a denial of due process or a violation of any other
applicable constitutional guarantee. 38 As this Court held through Justice Jose P.
Bengzon in Philippine Long Distance Company vs. City of Davao, et al. 39 police
power "is elastic and must be responsive to various social conditions; it is not confined
within narrow circumscriptions of precedents resting on past conditions; it must follow
the legal progress of a democratic way of life." We were even more emphatic in Vda.
de Genuino vs. The Court of Agrarian Relations, et al., 40 when We declared: "We do
not see why public welfare when clashing with the individual right to property should
not be made to prevail through the state's exercise of its police power."
Resolution No. 27, s-1960 declaring the western part of Highway 54, now E. de los
Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an
industrial and commercial zone, was obviously passed by the Municipal Council of
Mandaluyong, Rizal in the exercise of police power to safeguard or promote the
health, safety, peace, good order and general welfare of the people in the locality.
Judicial notice may be taken of the conditions prevailing in the area, especially where
Lots Nos. 5 and 6 are located. The lots themselves not only front the highway;
industrial and commercial complexes have flourished about the place. EDSA, a main
traffic artery which runs through several cities and municipalities in the Metro Manila
area, supports an endless stream of traffic and the resulting activity, noise and
pollution are hardly conducive to the health, safety or welfare of the residents in its
route. Having been expressly granted the power to adopt zoning and subdivision
ordinances or regulations, the municipality of Mandaluyong, through its Municipal
Council, was reasonably, if not perfectly, justified under the circumstances, in passing
the subject resolution. prcd
The scope of police power keeps expanding as civilization advances, stressed this
Court, speaking thru Justice Laurel in the leading case of Calalang v. Williams, et
al. 41 Thus
"As was said in the case of Dobbins v. Los Angeles (195 US 223, 238 49
L. ed. 169), 'the right to exercise the police power is a continuing one,
and a business lawful today may in the future, because of changed
situation the growth of population or other causes, become a menace to
the public health and welfare, and be required to yield to the public
good.' And in People v. Pomar (46 Phil. 440), it was observed that
'advancing civilization is bringing within the scope of police power of the
state today things which were not thought of as being with in such
power yesterday. The development of civilization, the rapidly increasing
population, the growth of public opinion, with an increasing desire on the
part of the masses and of the government to look after and care for the
interests of the individuals of the state, have brought within the police

power many questions for regulation which formerly were not so

considered.'" 42 (Emphasis, supplied.).
Thus, the state, in order to promote the general welfare, may interfere with
personal liberty, with property, and with business and occupations. Persons may be
subjected to all kinds of restraints and burdens, in order to secure the general
comfort health and prosperity of the state 43 and to this fundamental aim of our
Government, the rights of the individual are subordinated. 44
The need for reconciling the non-impairment clause of the Constitution and the valid
exercise of police power may also be gleaned from Helvering v. Davis 45 wherein Mr.
Justice Cardozo, speaking for the Court, resolved the conflict "between one welfare
and another, between particular and general," thus
"Nor is the concept of the general welfare static. Needs that were narrow
or parochial a century ago may be interwoven in our day with the wellbeing of the nation. What is critical or urgent changes with the
times." 46
The motives behind the passage of the questioned resolution being reasonable, and it
being a "legitimate response to a felt public need," 47 not whimsical or oppressive,
the non-impairment of contracts clause of the Constitution will not bar the
municipality's proper exercise of the power. Now Chief Justice Fernando puts it aptly
when he declared: "Police power legislation then is not likely to succumb to the
challenge that thereby contractual rights are rendered nugatory." 48
Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor
General 49 that laws and reservation of essential attributes of sovereign power are
read into contracts agreed upon by the parties. Thus
"Not only are existing laws read into contracts in order to fix obligations
as between the parties, but the reservation of essential attributes of
sovereign power is also read into contracts as a postulate of the legal
order. The policy of protecting contracts against impairments
presupposes the maintenance of a government by virtue of which
contractual relations are worthwhile a government which retains
adequate authority to secure the peace and good order of society."
Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial
Relations, 50 through Justice J.B.L. Reyes, that ". . . the law forms part of, and is read
into, every contract, unless clearly excluded therefrom in those cases where such
exclusion is allowed." The decision in Maritime Company of the Philippines v.
Reparations Commission, 51 written for the Court by Justice Fernando, now Chief
Justice, restates the rule.
One last observation. Appellant has placed unqualified reliance on American
jurisprudence and authorities 52 to bolster its theory that the municipal resolution in
question cannot nullify or supersede the agreement of the parties embodied in the
sales contract, as that, it claims, would impair the obligation of contracts in violation
of the Constitution. Such reliance is misplaced.
In the first place, the views set forth in American decisions and authorities are not per
se controlling in the Philippines, the laws of which must necessarily be construed in
accordance with the intention of its own lawmakers and such intent may be deduced

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

It is, therefore, clear that even if the subject building restrictions were assumed by the
defendant-appellee as vendee of Lots Nos. 5 and 6, in the corresponding deeds of
sale, and later, in Transfer Certificates of Title Nos. 101613 and 106092, the
contractual obligations so assumed cannot prevail over Resolution No. 27, of the
Municipality of Mandaluyong, which has validly exercised its police power through the
said resolution. Accordingly, the building restrictions, which declare Lots Nos. 5 and 6
as residential, cannot be enforced.
IN VIEW OF THE FOREGOING, the decision appealed from, dismissing the complaint, is
hereby AFFIRMED. Without pronouncement as to costs.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez, Guerrero, De Castro and MelencioHerrera, JJ ., concur.
Teehankee * and Aquino, JJ ., took no part.

2. Rep v. Montano 21 SCRA 609

EN BANC
[G.R. No. L-28055. October 30, 1967.]
REPUBLIC
OF
THE
PHILIPPINES, petitioner, vs. PROVINCIAL
GOVERNOR DELFIN MONTANO, ET AL., respondents.
The Solicitor General A.P. Barredo and Solicitor R.L. Pronove, Jr. for petitioner.

Abraham F. Sarmiento for respondents.

SYLLABUS
1. PROVINCES; PROVINCIAL GOVERNMENTS, POWERS OF; APPROPRIATION OF PUBLIC
FUNDS FOR PUBLIC WELFARE; ITS HISTORY. The power of provincial governments to
appropriate money for the welfare of their inhabitants is not at all of recent vintage.
As early as 1906, this was granted to provincial boards by Act 1548 which amended
section 13 of the Organic Act of the Provinces by providing that the provincial boards
of provinces shall have the power "(nn). To appropriate moneys from [their] funds,
except those the use of which is otherwise specifically fixed by law, for other purposes
having in view the general welfare of the province and its inhabitants." Similarly, the
Administrative Code of 1916, reenacting with modification this provision of the
Organic Act of the Provinces, provided that "Upon approval of the Department Head of
the particular resolution by which such action shall be taken, the provincial boards of
the respective provinces shall have authority (a) To appropriate money for purposes
not specified by law, having in view the general welfare of the province and its
inhabitants ..." This provision was in turn reenacted in section 2106(a) of the Revised
Administrative Code. In truth, section 3(a) of the Local Autonomy Act is nothing but a
copy of section 2106(a) of the Revised Administrative Code, with the only difference
that prior approval of the Department Head has been dispensed with, in line with the
legislative policy of granting greater autonomy to local governments. In a sense, the
elimination of the requisite approval is a return to the original provision of the old
Organic Act of the Provinces. It is in this sense that section 3 of the Local Autonomy
Act is entitled "Additional powers of provincial boards ...," and rightly so, for it
removed the fetters that once bound local governments to the national government.
2. ID.; ID.; CONSTITUTIONAL PROVISIONS ON LOCAL GOVERNMENT SHOULD BE
LIBERALLY CONSTRUED IN THEIR FAVOR. The provisions of this Constitution and of
any law concerning municipal corporations formed for local government, or
concerning counties, shall be liberally construed in their favor. The powers of counties
and such municipal corporations shall include not only those granted in express terms
but also those of necessary or fair implication, or incident to the powers expressly
conferred, or essential thereto, and not inconsistent with or prohibited by this
Constitution or by law.
3. ID.; ID.; ID.; NECESSARY AND FAIR IMPLICATION OR INCIDENT TO POWERS
CONFERRED OR ESSENTIAL THERETO. It is argued that this clause of the
Constitution, which had no counterpart in its predecessor Constitution, introduced a
new concept of home rule, being in effect a direct grant of the police power to all
municipalities. We find no merit in this contention of the defendant. The quoted
provision of the Constitution on its face does not purport to be a grant of general
police powers to al municipalities, its plain language is not susceptible of being so
construed, the proceedings of the Constitutional Convention referred to do not
indicate that it was so intended, and during the five years since its adoption our
courts have never so interpreted it. On the contrary, it is well settled in this state that
a municipality has only those powers granted to it by statute, albeit by virtue of the
constitutional provision here under discussion those powers are to be liberally
construed in favor of the municipality and express grants of power are deemed to
include `those of necessary or fair implication, or incident to the powers expressly
conferred, or essential thereto.'
4. ID.; ID.; LOCAL GOVERNMENTS HAVE NO INHERENT BUT ENUMERATED POWERS.
Provincial governments, like municipal corporations, are governments of enumerated

powers. The assumption, although historically inaccurate, is that municipal

corporations are mere creatures of the state with no inherent powers of their own.
This same assumption underlies the grant of autonomy to local governments, for
implicit in the grant is precisely the recognition that they exercise only delegated
powers which should be enlarged and, in case of fair and reasonable doubt," should
be resolved in their favor.
5. STATUTORY CONSTRUCTION; LOCAL AUTONOMY ACT; GRANT OF POWERS TO LOCAL
GOVERNMENTS SHOULD BE CONSTRUED STRICTLY AGAINST THEM. Section 12(1)
(2) of the Local Autonomy Act, which is reproduced in section 23 of the
Decentralization Act of 1967, did not alter the basic nature of municipal governments
as governments of limited power. What it changed was the prevailing rule at the time
of its enactment that the grant of powers to municipal corporations must be strictly
construed against them. As a rule of interpretation it does not purport to supply power
where none exists, not even by necessary implication.
6. PROVINCES; PROVINCIAL GOVERNMENTS, POWERS OF; POWER TO CREATE
PROVINCIAL POLICE FORCE NOT CONFERRED BY LAW. The power to create a
provincial police force appears to be denied to provincial governments. Thus, whereas
section 2105 (c) of the Revised Administrative Code gives them the power to
appropriate money "for the organization, equipment and maintenance of a police
force in any municipality or municipal district of the province where local funds are
insufficient .. bear such expenses," nothing is said of their power to provide for the
organization of their own police. Again, while cities and municipalities are authorized
to provide uniforms for their police forces no such authority is conferred on provinces.
This power given to cities and municipalities is in addition to their power "to
appropriate money for purposes not specified by law, having in view the general
welfare of the city and its inhabitants," undoubtedly because the former cannot be
fairly embraced in the latter. Section 2081 cannot be invoked because that provision
authorizes the appointment of subordinate employees in existing offices, not the
creation of the offices themselves.
7. PUBLIC OFFICE; NATIONAL AND MUNICIPAL POLICE FORCES ARE STATUTORY
CREATURES; PROVINCIAL POLICE FORCE INEXISTENT. Municipal offices can be
created only by legislative authority. This creative act must be either immediate or
delegated. In the Philippines, national and local police bodies are directly created by
statute. Thus the Philippine Constabulary was constituted as a national police force by
virtue of a statute. So is the organization of police force in cities and municipalities
specifically provided for by an Act of Congress. Even the formation of posses
comitatus in towns to assist the police in the apprehension of criminals is a matter of
express statutory enactment. Thus there is a national police force and there are city
and municipal forces, but the remarkable thing is that there is no provision for
provincial police forces.
8. PROVINCES; PROVINCIAL POLICE FORCES, CREATION OF; STATUTORY BASIS;
REASONS. This lack of statutory basis for the creation of provincial police forces
stands in sharp contrast to the proliferation of statutory materials on municipal and
city police forces. Not that peace and order are less a responsibility of the provinces.
The reason is simply that the Governors are already clothed with ample powers and
resources. They can temporarily transfer policemen from one municipality to another
when public interest so requires. They can call on the Philippine Constabulary or even
on the Armed Forces of the Philippines to quell any "disorder, riot, lawless violence or
rebellious or seditious conspiracy or to apprehend violators of law."

9. ID.; ID.; ID.; CREATION OF PROVINCIAL POLICE FORCES RESERVED TO LEGISLATURE

AND EXCLUDED FROM ACTIONS BY LOCAL GOVERNMENTS. The legislature intended
to reserve for itself the field of legislation on this matter and thereby exclude from it
like actions by local governments. Precedents in support of this view are not wanting.
It was held that where the charter authorizes the appointment of a marshal and in
case of "special emergencies," of a special police, the city could not create an office of
a night watchman with powers to arrest persons violating the laws and ordinances.
Not even the plea that the office was necessary for the preservation of peace and
order justified the creation of the office. Similarly, it was held that a statute creating
the office of the "Chief of Police" did not authorize a city to appoint a day chief of
police and a night chief of police and that an ordinance so providing was invalid.
10. ID.; PROVINCIAL GOVERNMENT, POWERS OF; CREATION OF PROVINCIAL POLICE
FORCES CANNOT BE INFERRED. The power of provinces to create provincial police
forces cannot be inferred. Neither can the existence of such bodies be implied from
the fact that in prescribing the qualifications of members of local police agencies,
section 9 of the Police Act of 1966 mentions "provincial police agencies" and the like.
The reference to such bodies is a misnomer as is evident from the discussion on the
bill which became the Police Act.
11. ID.; ID.; PROVINCIAL POLICE FORCE REFERS TO PROVINCIAL GUARDS. The term
is used in other legislation before the enactment of the Police Act of 1966 and it has
always been understood to refer to provincial guards assigned to provincial jails. It is
used in Commonwealth Act 343 which constituted the Philippine Constabulary as a
national police force and returned to the control of the Governors the "provincial ...
police bodies or provincial guards who earlier, had been organized into a state police,
along with the police forces of the cities and municipalities President Quezon's
Executive Order 153 as well as Executive order 175, issued to implement C.A. 343,
likewise spoke of "local police bodies in each province" and "provincial police service"
but that the term meant no more than provincial guards is evident from the text
thereof.

12. MUNICIPAL CORPORATIONS; PROVINCIAL GOVERNMENT; RESOLUTION NO. 27

DATED JANUARY 27, 1964 OF THE PROVINCIAL BOARD OF CAVITE, AND
ADMINISTRATIVE ORDER No. 65-1 CREATING THE DEPARTMENT OF PUBLIC SAFETY;
LEGALITY. As the provincial government has no power by necessary implication
from certain express powers granted to it to create provincial police offices, Resolution
No. 27 of the Provincial Board of Cavite and Administrative Order No. 65-1 of the
Provincial Governor thereof, creating the Department of Public Safety "to be manned
by trained technicians and investigators who shall be agents of a person in authority"
are declared void, the Cavite Department of Public Safety is ordered dissolved, and
the respondent public safety officers are ousted from their positions.
i.

VI.

by whom exercised

MUN. POLICE POWER & THE GENERAL WELFARE CLAUSE

A.
Nature and Definition of Police Power
1. Primicias v. Fugoso, 80 Phil 71

EN BANC
[G.R. No. L-1800. January 27, 1948.]
CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced
Minority Parties, petitioner, vs. VALERIANO E. FUGOSO, Mayor of
City of Manila, respondent.
Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for
respondent.
SYLLABUS
1.CONSTITUTIONAL LAW; RIGHT TO FREEDOM OF SPEECH AND TO
PEACEFULLY ASSEMBLE AND PETITION GOVERNMENT FOR REDRESS OF
GRIEVANCES, NOT ABSOLUTE; REGULATION UNDER POLICE POWER; POLICE
POWER, BY WHOM EXERCISED. The right to freedom of speech, and to peacefully
assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of
democratic countries. But it is a settled principle growing out of the nature of wellordered civil societies that the exercise of those rights is not absolute for it may be
so regulated that it shall not be injurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society. The power to
regulate the exercise of such and other constitutional rights is termed the
sovereign "police power," which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or safety, and general welfare of
the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other
constitutional and civil rights, and it may be delegated to political subdivisions,
such as towns, municipalities and cities by authorizing their legislative bodies
called municipal and city councils to enact ordinances for the purpose.
2.ID.; ID.; ID.; ID.; SCOPE OF POLICE POWER DELEGATED TO MUNICIPAL
BOARD OF MANILA. The Philippine Legislature has delegated the exercise of the
police power to the Municipal Board of the City of Manila, which according to
section 2439 of the Administrative Code is the legislative body of the City. Section
2444 of the same Code grants the Municipal Board, among others, the following
legislative powers, to wit: "(p) to provide for the prohibition and suppression of
riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use of
streets, avenues, . . . parks, cemeteries and other public places" and "for the
abatement of nuisances in the same," and "(ee) to enact all ordinances it may
deem necessary and proper for sanitation and safety, the furtherance of prosperity
and the promotion of morality, peace, good order, comfort, convenience, and
general welfare of the city and its inhabitants."
3.ID.; ID.; ID.; ID.; ID.; MEETING AND ASSEMBLY IN STREET OR PUBLIC PLACE
IN MANILA, REGULATION OF. As there is no express and separate provision in the
Revised Ordinance of the City of Manila regulating the holding of public meeting or
assembly at any streets or public places, the provision of section 1119 of said

Ordinance to the effect, among others, "that the holding of any parade or
procession in any streets or public places is prohibited unless a permit therefor is
first secured from the Mayor, who shall, on every such occasion, determine or
specify the streets or public places for the formation, route, and dismissal of such
parade or procession," may be applied by analogy to meeting and assembly in any
street or public places.
4.ID.; ID.; ID.; ID.; ID.; ID.; POWER OF MAYOR TO GRANT PERMIT FOR
HOLDING ASSEMBLY OR MEETING, PARADE OR PROCESSION, SCOPE OF. Section
1119 of the Revised Ordinance of the City of Manila is susceptible of two
constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse to grant permit for the holding of a lawful
assembly or meeting, parade, or procession in the streets and other public places
of the City of Manila; and the other is that the applicant has the right to a permit
which shall be granted by the Mayor, subject only to the latter's reasonable
discretion to determine or specify the streets or public places to be used for the
purpose, with a view to prevent confusion by overlapping, to secure convenient use
of the streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder. This court has adopted the second
construction, namely, that said provision does not confer upon the Mayor the
power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession
may pass or the meeting may be held. The ordinance cannot be construed as
conferring upon the Mayor power to grant or refuse to grant the permit, which
would be tantamount to authorizing him to prohibit the use of the streets and other
public places for holding of meetings, parades or processions, because such a
construction would make the ordinance invalid and void or violative of the
constitutional limitations. As the Municipal Board is empowered only to regulate the
use of streets, parks and other public places, and the word "regulate," as used in
section 2444 of the Revised Administrative Code, means and includes the power to
control, to govern and to restrain, but can not be construed as synonymous with
"suppress" or "prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the Municipal
Board cannot grant the Mayor a power which it does not have. Besides, as the
powers and duties of the Mayor as the Chief Executive of the City are executive,
and one of them is "to comply with and enforce and give the necessary orders for
the faithful performance and execution of the laws and ordinances (section 2434
[b] of the Revised Administrative Code), the legislative police power of the
Municipal Board to enact ordinances regulating reasonably the exercise of the
fundamental personal right of the citizens in the streets and other public places,
cannot be delegated to the Mayor or any other officer by conferring upon him
unregulated discretion or without laying down rules to guide and control his action
by which its impartial execution can be secured or partiality and oppression
prevented.
5.ID.; ID.; ID.; ID.; ID.; ID.; ID.; SECTION 2434 OF ADMINISTRATIVE CODE
GRANTING MAYOR POWER TO GRANT OR REFUSE MUNICIPAL LICENSES OR PERMITS
OF ALL CLASSES, NOT APPLICABLE. Section 2434 of the Administrative Code, a
part of the Charter of the City of Manila, which provides that the Mayor shall have
the power to grant and refuse municipal licenses or permits of all classes, cannot
be cited as an authority for the Mayor to deny the application of the petitioner, for
the simple reason that said general power is predicated upon the ordinances
enacted by the Municipal Board requiring licenses or permits to be issued by the
Mayor, such as those found in Chapters 40 to 87 of the Revised Ordinances of the
City of Manila. It is not a specific or substantive power independent from the
corresponding municipal ordinances which the Mayor, as Chief Executive of the

City, is required to enforce under the same section 2434. Moreover "one of the
settled maxims in constitutional law is that the power conferred upon the
Legislature to make laws cannot be delegated by that department to any other
body or authority," except certain powers of local government, specially of police
regulations which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate
the use of streets and other public places has been delegated or rather conferred
by the Legislature upon the Municipal Board of the City (section 2444 [u] of the
Administrative Code), it is to be presumed that the Legislature has not, in the same
breath, conferred upon the Mayor in section 2434 (m) the same power, specially in
view of the fact that its exercise may be in conflict with the exercise of the same
power by the Municipal Board.
6.ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; NULLITY OF UNLIMITED POWER OF MAYOR
TO GRANT OR REFUSE PERMIT FOR USE OF STREET AND PUBLIC PLACE FOR
PROCESSIONS, PARADES OR MEETINGS. Assuming arguendo that the Legislature
has the power to confer, and in fact has conferred, upon the Mayor the power to
grant or refuse licenses and permits of all classes, independent from ordinances
enacted by the Municipal Board on the matter, and the provisions of section 2444
(u) of the same Code and of section 1119 of the Revised Ordinances to the contrary
notwithstanding, such grant of unregulated and unlimited power to grant or refuse
a permit for the use of streets and other public places for processions, parades, or
meetings, would be null and void, for the same reasons stated in the decisions in
the cases cited in the opinion, specially in Willis Cox vs. State of New Hampshire
(312 U. S., 569), wherein the question involved was also the validity of a similar
statute of New Hampshire. Because the same constitutional limitations applicable
to ordinances apply to statutes, and the same objections to a municipal ordinance
which grants unrestrained discretion upon a city officer are applicable to a law or
statute that confers unlimited power to any officer either of the municipal or state
governments. Under the democratic system of government in the Philippines, no
such unlimited power may be validly granted to any officer of the government,
except perhaps in cases of national emergency. As stated in State ex rel. Garrabad
vs. Dering (84 Wis., 585; 54 N. W., 1104) "The discretion with which the council is
vested is a legal discretion to be exercised within the limits of the law, and not a
discretion to transcend it or to confer upon any city officer an arbitrary authority
making in its exercise a petty tyrant."
7.ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. The reason alleged by
the respondent in his defense for refusing the permit is, "that there is a reasonable
ground to believe, basing upon previous utterances and upon the fact that
passions, specially on the part of the losing groups, remain bitter and high, that
similar speeches will be delivered tending to undermine the faith and confidence of
the people in their government, and in the duly constituted authorities, which
might threaten breaches of the peace and a disruption of public order." As the
request of the petition was for a permit "to hold a peaceful public meeting," and
there is no denial of that fact or any doubt that it was to be a lawful assemblage,
the reason given for the refusal of the permit can not be given any consideration. It
does not make comfort and convenience in the use of streets or parks the standard
of official action. It enables the Mayor to refuse the permit on his mere opinion that
such refusal will prevent riots, disturbances or disorderly assemblage. It can thus,
as the record discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs, for the prohibition of all speaking will
undoubtedly prevent such eventualities. (Hague vs. Committee on Industrial
Organization, 307 U. S., 496; 83 Law. ed., 1423.)

B.
General Welfare Clause
1. U. S. v. Salaveria , 39 Phil 102
EN BANC
[G.R. No. 13678. November 12, 1918.]
THE
UNITED
STATES, plaintiff-appellee, vs.
SALAVERIA, defendant-appellant.

PRUDENCIO

SYLLABUS
1. CONSTITUTIONAL LAW; "LIBERTY. The constitutional provision that no
person shall be deprived of liberty without due process of law found not to be
violated by an ordinance of Orion, Bataan. "Liberty" is defined in the opinion.
2. ID.; PUBLIC CORPORATIONS; POLICE POWER. Not only does the State
effectuate its purposes through the exercise of the police power, but the
municipality does also. Like the State, the police power of a municipal corporation
extends to all matters affecting the peace, order, health, morals, convenience,
comfort, and safety of its citizens the security of social order the best and
highest interests of the municipality. The best considered decisions have tended to
broaden the scope of action of the municipality in dealing with police offenses. The
public welfare is rightly made the basis of construction.
3. ID.; ID.; ID.; GENERAL WELFARE CLAUSE. Section 2238 of the
Administrative Code of 1917, known as the general welfare clause, delegates in
statutory form the police power to a municipality. 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. The second branch of the clause is much more independent of the specific
functions of the council which are enumerated by law.
4. ID.; ID.; ID.; ID.; RULE OF CONSTRUCTION. 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 powers and purposes of the
corporation, and not inconsistent with the laws or policy of the State.
5. ID.; ID.; ORDINANCES; STATUTORY CONSTRUCTION. The presumption is
all in favor of the validity of an ordinance.
6. ID.; ID.; PRESIDENT McKINLEY'S INSTRUCTIONS TO THE COMMISSION.
Those portions of President McKinley's Instructions to the Commission, relating to
local self-government, yet constitute a portion of Philippine Constitutional Law and
should be enforced.
7. GAMBLING; CONTROL. The courts cannot but realize that gambling, in
its larger sense as well as in its restricted sense, is an act beyond the pale of good
morals, which, for the welfare of the Filipino people, should be exterminated. It is
highly proper that this pastime should be subject to the control of restraints
imposed by the ordinances of local governments peculiarly afflicted by the evil.

8. ID.; ID. For the suppression of the evil of gambling, coordinate and
harmonious action must concur between the three, departments of government.
9. ID.; ID.; PENALTIES. In all cases arising under the Gambling Law or
ordinances, except for unusual circumstances, a prison sentence should be
imposed if permitted by the law or ordinance. Further, where the defendant has
been found guilty and is a man of station, he should be given the maximum
penalty. Example: A justice of the peace, convicted of a violation of a municipal
ordinance, sentenced to the maximum penalty provided by the ordinance, the
payment of a fine of P200.
10. ID.; ID.; PUBLIC CORPORATIONS; ORDINANCES; "PANGUINGUE."
Panguingue is not a game of chance or of hazard and is not prohibited by Act No.
1757.
11. ID.; ID.; ID.; ID.; ID. Panguingue is, however, in one sense, a species of
gambling which municipalities can restrain, suppress, or control, by the exercise of
the police power.
12. ID.; ID.; ID.; ID.; ID. Ordinance No. 3 of Orion, Bataan, prohibiting the
playing of panguingue on days not Sundays or legal holidays, and penalizing the
violation thereof by a casero [housekeeper] by a fine of not less than P10 nor more
than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than
P200, held valid.
2. Kwong Sing v. City, 41 Phil 103
EN BANC
[G.R. No. 15972. October 11, 1920.]
KWONG SING, in his own behalf and in behalf of all others
having a common or general interest in the subject- matter of
this action, plaintiff-appellant, vs. THE CITY OF MANILA, defendantappellant.
G. E. Campbell for appellant.
City Fiscal Diaz for appellee.
SYLLABUS
1. PUBLIC CORPORATIONS; MUNICIPAL POLICE POWER; ORDINANCE NO. 682,
CITY OF MANILA; LAUNDRIES; LAUNDRY RECEIPTS IN ENGLISH AND SPANISH. The
government of the city of Manila possesses the power to enact Ordinance No. 532,
requiring receipts in duplicate in English and Spanish duly signed showing the kind
and number of articles delivered by laundries and dyeing and cleaning
establishments. As said ordinance is neither oppressive, nor unequal, nor unjust, it
is valid.
2. ID.; ID.; ID.; ID.; ID.; "REGULATE," CONSTRUED. The word "regulate," as
used in subsection (1), 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."
3. ID,; ID.; ID.; ID.; ID.; ID. Under the power to regulate laundries, the
municipal authorities can make proper police regulations as to the mode in which
the employment or business shall be exercised.
4. ID.; TD.; ID.; ID.; ID.; PURPOSE-The object of the ordinance was the
promotion of peace and good order and the prevention of fraud, deceit, cheating,
and imposition. The convenience of the public would also be served in a
community where there is a Babel of tongues by having receipts made out in the
two official languages.
5. ID.; ID.; ID.; ID.; ID.; ID. Reasonable restraints of a lawful business for
such purposes are permissible under the police power.
6. ID.; ID.; ID.; ID.; ID.; RULES DETERMINING VALIDITY. It is a familiar legal
principle that an ordinance must be reasonable. Not only must it appear that the
interest of the public generally 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.
7. ID.; ID.; ID.; ID.; ID.; ID. If the ordinance appears to the judicial mind to
be partial or oppressive, it must be declared invalid.
8. ID.; ID.; ID.; ID.; ID.; ID. The presumption is that the municipal authorities,
in enacting the ordinance, did so with a rational and conscientious regard for the
rights of the individual and of the community.
9 ID.; ID.; ID.; ID.; ID.; ID. Even if private rights of person or property are
subjected to restraint, and even if loss will result to individuals from the
enforcement of the ordinance, this is not sufficient ground for failing to uphold the
hands of the legislative body.
10. ID.; ID.; ID.; ID.; ID.; YOUNG vs. RAFFERTY, DISTINGUISHED. There is no
analogy between the instant case and the former one of Young vs. Rafferty ([1916],
33 Phil., 556).
11. ID.; INJUNCTION; VALIDITY OF AN ORDINANCE. The validity of a
municipal ordinance can be determined on a complaint for an injunction where it is
apparent that irreparable injury is impending, that a multiplicity of suits is
threatened, and that complainants have no other plain, speedy, and adequate
remedy.
12. ID.; ID.; RESTRAINING CRIMINAL PROSECUTIONS. As a general rule, an
injunction will not be granted to restrain a criminal prosecution.
13. CONSTITUTIONAL LAW; DUE PROCESS OF LAW AND EQUAL PROTECTION
OF THE LAWS; RIGHTS OF CHINESE ALIENS. The rights of Chinese laundrymen
are not less because they may be aliens. The life, liberty, or property of these
persons cannot be taken without due process of law; they are entitled to the equal
protection of the laws without regard to their race; and treaty rights, as effectuated
between the United States and China, must be accorded them.

C.
Requisites for exercise/Limitations
1. Fabie v. City, 21 Phil 468
SECOND DIVISION
[G.R. No. 6583. February 16, 1912.]
RAMON FABIE ET
AL., plaintiffs-appellees, vs.
MANILA, defendant-appellant.

THE CITY OF

Acting Attorney-General Harvey, for appellant.

Sanz & Opisso, for appellees.
SYLLABUS
1. MANILA
ORDINANCES;
VALIDITY
OF
ORDINANCE
REGULATING
CONSTRUCTION OF BUILDINGS. The proviso of Ordinance 124 of the city of
Manila, amending section 107 of the Revised Ordinances of that city enacted June
13, 1908, directing that new buildings "shall abut or face upon a public street or
alley, or on a private street or alley which has been officially approved held to be
valid and not to constitute an invasion of private property rights without due
process of law.
2. ID.; ID.; PROPER EXERCISE OF POLICE POWER. The police power of the
state is properly exercised where it appears (1) that the interests of the public
generally as distinguished from those of a particular class, require such
interference, and (2) that the means are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
3. ID.; ID.; ID.; QUALIFIED RIGHT OF USE AND ENJOYMENT OF PROPERTY. "It
is a settled principle, growing out of the nature of well ordered civil society, that
every holder of property, however absolute and unqualified may be his title, holds
it under the implied liability that his use of it may be so regulated, that it shall not
be injurious to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights of the community."
(Commonwealth vs. Alger, 7 Cush., 53, 84.)

D.
Rule of Interpretation
1. PLDT v. Davao, 15 SCRA 244
EN BANC
[G.R. No. L-23080. October 30, 1965.]

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, petitioner, vs.

CITY
OF
DAVAO
and
the
PUBLIC
SERVICE
COMMISSION, respondents, ITT PHILIPPINES, INC., intervenor.
SYLLABUS
1. MUNICIPAL CORPORATIONS; POWER TO ESTABLISH AND MAINTAIN OWN
TELEPHONE SYSTEM. The City of Davao has the power and authority to establish
and maintain the telephone system ordained under its Resolutions Nos. 664 and
2015, as of the time of their passage on August 7, 1963 and December 27, 1963,
respectively, in view of the special facts and circumstances existing in said City
which brought the same within the scope of the general welfare clause in the City's
Charter. In adopting the resolutions, the City was responding to a pressing used to
establish a telephone system that can fully serve and benefit the people in its
territory. Such resolutions constitute a lawful exercise of the City's power under
Sec. 14(ee) of its Charter to legislate for the general welfare of the City and its
inhabitants.
2. ID.; ID.; AUTHORITY TO OPERATE COMPETING PUBLIC UTILITY. A
municipal corporation is not prevented from constructing and operating a
competing plant, although a franchise had been granted a private company for a
similar public utility, provided the franchise is not exclusive. (McQuillin, Municipal
Corporations, 3rd Ed., Sec. 35.13, Vol. 12, pp. 607-603.) In the case at bar, the law
(Act No. 3436) granting petitioner's franchise to operate a telephone system,
expressly provided that the rights thereunder conferred are not exclusive.
3. ID.; ID.; ID.; PRIOR OPERATOR RULE, REQUISITES. Petitioner cannot
invoke, in this instance, the prior operator rule, for the same requires for its
application that the old operator offers to meet the increase in the demand the
moment it arises and not when another operator, even a new one, has made the
offer to serve the public needs. (Fernando vs. Gallardo, L-4860, Sept. 8, 1953;
Raymundo Trans. Co., Inc., vs. Cerda, L-7880, May 18, 1956; Saulog Transit, Inc. vs.
Medina, L-7329, May 30, 1956; Medina vs. Saulog Transit, Inc., L-7244, June 28,
1956; Estate of F. P. Buan vs. La Mallorca, L-8729, Feb. 28, 1957; Isidro vs. Ocampo,
105 Phil. 811; Manila Yellow Taxicab Co., Inc. vs. Castelo, 108 Phil. 394.
4. ID.; ID.; EXEMPTION FROM SECURING CERTIFICATE OF PUBLIC
CONVENIENCE. The City of Davao, being a government entity, is exempt from
the requirement of the Public Service Act to first secure a certificate of public
convenience and necessity from the Public Service Commission.
E.

Method of Exercise

F.

Illustrative cases on Police Power

i.
Public Health
1. See Eng Kee v. Earnshaw, 56 Phil 204
EN BANC
[G.R. No. 34976. October 21, 1931.]

SENG KEE & CO., plaintiff-appellant, vs. TOMAS EARNSHAW, Mayor

of the City of Manila, and C. E. PIATT, Chief of Police of said
City, defendants-appellees.
J. W. Ferrier, for appellant.
City Fiscal Felix, for appellees.
SYLLABUS
1. CITY OF MANILA; ORDINANCES ON MANUFACTURES OF "TOYO"; VALIDITY
AND CONSTITUTIONALITY. Sections 120 and 121 of the Revised Ordinances, No.
1600 of the City of Manila, dividing its territory into residential and industrial zones,
and section 122 providing that certain noxious trades, including the manufacture
of toyo, should be established in the latter zone exclusively, are valid and
constitutional, and were enacted by the City of Manila in the exercise of the power
granted to it by the Revised Administrative Code of 1917.
2. ID.; ID.; ID. Sections 1067 and 1068 of the Revised Ordinances of the
City of Manila, classifying the manufacture of toyo as an offensive and
unwholesome trade, and providing that it shall be established in the industrial zone
exclusively: Provided, that those factories already established on September 10,
1926, are excepted for a period of not less than four years, respectively, are also
legal and valid, and not in conflict with the police and health powers granted to the
City of Manila by its charter, the Revised Administrative Code of 1917, in sections
1019 and 1020 (g).
3. ID.; ID.; LACK OF COMPENSATION. Likewise, these sections are not void
and unconstitutional because they provide no compensation, nor does the omission
of this provision convert them into an expropriation of property without due
process of law. It does not deprive an individual, entity, or corporation of his or its
property, but merely restricts the exercise of such right in certain fixed places for
the proper protection of the public health, and the benefit of the community, which
the State is bound to safeguard.
ii.
Public Morals
1. Ermita v. City, 20 SCRA 849
EN BANC
[G.R. No. L-24693. October 23, 1967.]
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION,
INC., HOTEL DEL MAR, INC. and GO CHIU, petitionersappellees, vs. THE
HONORABLE
CITY
MAYOR
OF
MANILA, respondent-appellant. VICTOR
ALABANZA, intervenorappellee.
J. M. Aruego, A. Tenchavez and L. U. Go for petitioners-appellees.
Panganiban, Abad & Associates for respondent-appellant.
SYLLABUS

1. CONSTITUTIONAL LAW; ABSENCE OF INJURY TO RIGHTS BY OPERATION OF STATUTE

OR ORDINANCE. Unless a person is injuriously affected in any of his constitutional
rights by the operation of statute or ordinance he has no standing, except perhaps as
to the liberty to contract, which is part and parcel of their right to property.
2. ID.; FREEDOM OF CONTRACT, NOT A BAR TO POLICE POWER MEASURES. In this
jurisdiction, the liberty to contract, has never stood in the way of the enactment of
police power measures when called for by circumstances. The same is true in the
United States, where such concept has definitely fallen from its previously high estate
under the impact of the Nebbia (291 US 502), West Coast Hotel Co. (300 US 379), and
Olsen (313 US 1305) decisions.
3. ID.; DEPRIVATION OF PROPERTY ALLOWED PROVIDED DUE PROCESS IS OBSERVED.
One could, consistently with the fundamental law, be deprived of his property, as
long as due process is observed.
4. ID.; CHALLENGED ORDINANCE DOES NOT DENY EQUAL PROTECTION CLAUSE.
Since the challenged ordinance applies to all the motels in Manila, an assertion that
there is denial of equal protection would be extremely far-fetched.
5. ID.; LAISSEZ FAIRE CONCEPT AS BAR TO ENACTMENT OF REGULATORY MEASURES,
MAY NOT BE INVOKED. The invocation of the laissez faire concept as bar against the
enactment of regulatory measures, which undoubtedly would result in the diminution
of income and the loss of business, does not occasion any misgiving as to the
conformity of the decision arrived at by the Court with controlling constitutional law
principles. The policy of laissez faire has to some extent given way to the assumption
by the government of the right of intervention even in contractual relations affected
with public interest. The state in order to promote the general welfare may interfere
with personal liberty, with property, and with business and occupations. Persons and
property may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health, and prosperity of the state. The mere fact that some
individuals in the community may be deprived of their present business or a particular
mode of earning a living cannot prevent the exercise of police power. Persons licensed
to pursue occupations which may in the public need and interest be affected by the
exercise of the police power embark in those occupations subject to the
disadvantages which may result from the legal exercise of that power.

2. Manila v. Laguio 455 SCRA 308

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 ViceMayor of the City of Manila and Presiding Officer of the City
Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P.
GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C.
OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ,
HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S.
MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B.
BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G.
RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS,

HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP

Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ,
HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON.
DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA.
PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D.
ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ,
HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES,
HON. CASIMIRO C. SISON, HON. BIENVENIDO M. ABANTE, JR.,
HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON.
ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON.
JOCELYN B. DAWIS, in their capacity as councilors of the City of
Manila, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding
Judge,
RTC,
Manila
and
MALATE
TOURIST
DEVELOPMENT CORPORATION,respondents.
DECISION
TINGA, J p:
I know only that what is moral is what you feel good after and what is
immoral is what you feel bad after.
Ernest
Death in the Afternoon, Ch. 1

Hemingway

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.
Bonaparte in Egypt, Ch. I

Christopher

Gerald

The Court's commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to "make the
hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional
guarantees when faced with laws that, though not lacking in zeal to promote morality,
nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition 1 under Rule 45 (then Rule 42) of the Revised Rules
on Civil Procedure seeking the reversal of the 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 EDSAac
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
MTDC's Victoria Court considering that these were not establishments for
"amusement" or "entertainment" and they were not "services or facilities for
entertainment," nor did they use women as "tools for entertainment," and neither did
they "disturb the community," "annoy the inhabitants" or "adversely affect the social
and moral welfare of the community." 11
MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of
motels as Section 458 (a) 4 (iv) 12 of the Local Government Code of 1991 (the Code)
grants to the City Council only the power to regulate the establishment, operation and
maintenance of hotels, motels, inns, pension houses, lodging houses and other similar
establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.)
No. 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 MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power
to find as a fact that a particular thing is a nuisance per se nor does it have the power
to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal
protection under the law as no reasonable basis exists for prohibiting the operation of
motels and inns, but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-Malate area but not
outside of this area. 14
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:
xxx xxx xxx
(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:
xxx xxx xxx
(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. cDIaAS
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
THE MUNICIPAL BOARD
xxx xxx xxx

III

Section 18.Legislative powers. The Municipal Board shall have the

following legislative powers:
xxx xxx xxx
(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 TheOrdinance, 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 Court's deep sentiment and tenderness for
the Ermita-Malate area being its home for several decades. A long-time resident, the
Court witnessed the area's many turn of events. It relished its glory days and endured
its days of infamy. Much as the Court harks back to the resplendant 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. STCDaI
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
the Constitution

Ordinance

contravenes

The police power of the City Council, however broad and far-reaching, is subordinate
to the constitutional limitations thereon; and is subject to the limitation that its
exercise must be reasonable and for the public good. 43 In the case at bar, the
enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5.The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy. 44
SEC. 14.The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and
men. 45
SEC. 1.No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of
laws. 46
SEC. 9.Private property shall not be taken for public use without just
compensation. 47
A.The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall
be deprived of life, liberty or property without due process of law. . . ." 48

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

standard to which governmental action should conform in order that deprivation of
life, liberty or property, in each appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of reason, obedience to the dictates
of justice, 49 and as such it is a limitation upon the exercise of the police power. 50
The purpose of the guaranty is to prevent governmental encroachment against the
life, liberty and property of individuals; to secure the individual from the arbitrary
exercise of the powers of the government, unrestrained by the established principles
of private rights and distributive justice; to protect property from confiscation by
legislative enactments, from seizure, forfeiture, and destruction without a trial and
conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law. 51
The guaranty serves as a protection against arbitrary regulation, and private
corporations and partnerships are "persons" within the scope of the guaranty insofar
as their property is concerned. 52
This clause has been interpreted as imposing two separate limits on government,
usually called "procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what kind of notice and what form
of hearing the government must provide when it takes a particular action. 53
Substantive due process, as that phrase connotes, asks whether the government has
an adequate reason for taking away a person's life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the
government's action. 54 Case law in the United States (U.S.) tells us that whether
there is such a justification depends very much on the level of scrutiny used. 55 For
example, if a law is in an area where only rational basis review is applied, substantive
due process is met so long as the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used, such as for protecting
fundamental rights, then the government will meet substantive due process only if it
can prove that the law is necessary to achieve a compelling government purpose. 56
The police power granted to local government units must always be exercised with
utmost observance of the rights of the people to due process and equal protection of
the law. Such power cannot be exercised whimsically, arbitrarily or despotically 57 as
its exercise is subject to a qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the fundamental law, particularly those
forming part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare. 58 Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty and
property. 59
Requisites
for
of Police Power are not met

the

valid

exercise

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. aSDHCT
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 thrillseekers." 64
The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Council's police powers,
the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication of
the community's social ills can be achieved through means less restrictive of private
rights; it can be attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per seprotect 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 anduniversality of sin in man's
history. (Catechism of the Catholic Church, Definitive Edition, p. 101; ECCE and
Word & Life Publications, Don Bosco Compound, Makati)
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; 66 and it may even
impose increased license fees. In other words, there are other means to reasonably
accomplish the desired end.
Means
constitutionally infirm

employed

are

The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance
halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or
operators of the enumerated establishments are given three (3) months from the date
of approval of the Ordinance within which "to wind up business operations or to
transfer to any place outside the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area." Further, it states in Section 4 that
in cases of subsequent violations of the provisions of the Ordinance, the "premises of
the erring establishment shall be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement
of its purposes, the governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and property.HCEcAa
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 faculties with which
he has been endowed by his Creator, subject only to such restraint as are necessary
for the common welfare." 67 In accordance with this case, the rights of the citizen to
be free to use his faculties in all lawful ways; to live and work where he will; to earn
his livelihood by any lawful calling; and to pursue any avocation are all deemed
embraced in the concept of liberty. 68
The U.S. Supreme Court in the case of Roth v. Board of Regents, 69 sought to clarify
the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . .
. guaranteed [by the Fifth and Fourteenth Amendments], the term
denotes not merely freedom from bodily restraint but also the right of
the individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized . . .
as essential to the orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no doubt that the meaning of
"liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause
includes personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, the U.S. Supreme
Court explained:
These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one's own
concept of existence, of meaning, of universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of
personhood where they formed under compulsion of the State. 70
Persons desirous to own, operate and patronize the enumerated establishments under
Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motel's premises be
it stressed that their consensual sexual behavior does not contravene any
fundamental state policy as contained in the Constitution. 71 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. 72 Their right to liberty under the due
process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law. Liberty
should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government
restraint; it must include privacy as well, if it is to be a repository of freedom. The
right to be let alone is the beginning of all freedom it is the most comprehensive of
rights and the right most valued by civilized men. 73

The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, 74 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. 75
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
unlawful taking

employed

is

In addition, the Ordinance is unreasonable and oppressive as it substantially divests

the respondent of the beneficial use of its property. 76 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. 77 It is intrusive and violative of the
private property rights of individuals.EHTCAa
The Constitution expressly provides in Article III, Section 9, that "private property shall
not be taken for public use without just compensation." The provision is the most
important protection of property rights in the Constitution. This is a restriction on the
general power of the government to take property. The constitutional provision is
about ensuring that the government does not confiscate the property of some to give
it to others. In part too, it is about loss spreading. If the government takes away a
person's property to benefit society, then society should pay. The principal purpose of
the guarantee is "to bar the Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a
whole. 78
There are two different types of taking that can be identified. A "possessory" taking
occurs when the government confiscates or physically occupies property. A
"regulatory" taking occurs when the government's regulation leaves no reasonable
economically viable use of the property. 79

In the landmark case of Pennsylvania Coal v. Mahon, 80 it was held that a taking also
could be found if government regulation of the use of property went "too far." When
regulation reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act. While property may
be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking. 81
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. 82
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. 83 A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owner's point of view, equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land make the use
prohibitable. 84 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. 85
A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places limitations
on land that fall short of eliminating all economically beneficial use, a taking
nonetheless may have occurred, depending on a complex of factors including the
regulation's economic effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings clause
which is to prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole. 86
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.87
The Ordinance gives the owners and operators of the "prohibited" establishments
three (3) months from its approval within which to "wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area." The directive to "wind up business
operations" amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his establishment
to accommodate an "allowed" business, the structure which housed the previous
business will be left empty and gathering dust. Suppose he transfers it to another
area, he will likewise leave the entire establishment idle. Consideration must be given
to the substantial amount of money invested to build the edifices which the owner
reasonably expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in a manner
that interferes with reasonable expectations for use.

The second and third options to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businesses are confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another
one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just
compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to
the "problem," it merely relocates it. Not only is this impractical, it is unreasonable,
onerous and oppressive. The conversion into allowed enterprises is just as ridiculous.
How may the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property? This is a taking of
private property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or transfer his
business, otherwise it will be closed permanently after a subsequent violation should
be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A
zoning ordinance, although a valid exercise of police power, which limits a
"wholesome" property to a use which can not reasonably be made of it constitutes the
taking of such property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the principles of justice as we know
them. The police powers of local government units which have always received broad
and liberal interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent domain.
It needs restating that the property taken in the exercise of police power is destroyed
because it is noxious or intended for a noxious purpose while the property taken under
the power of eminent domain is intended for a public use or purpose and is therefore
"wholesome." 88 If it be of public benefit that a "wholesome" property remain unused
or relegated to a particular purpose, then certainly the public should bear the cost of
reasonable compensation for the condemnation of private property for public use. 89
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. TheOrdinance should have established a rule by which its
impartial enforcement could be secured. 90
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. 91
Thus, in Coates v. City of Cincinnati, 92 as cited in People v. Nazario, 93 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. EATCcI
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, 94 the city of Dallas adopted a comprehensive ordinance
regulating "sexually oriented businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as escort agencies,
nude model studio and sexual encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of motel owners were among the
three groups of businesses that filed separate suits challenging the ordinance. The
motel owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer than ten (10)
hours resulted in increased crime and other secondary effects. They likewise argued
than the ten (10)-hour limitation on the rental of motel rooms placed an
unconstitutional burden on the right to freedom of association. Anent the first
contention, the U.S. Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered, was adequate to support
the city's determination that motels permitting room rentals for fewer than ten (10)
hours should be included within the licensing scheme. As regards the second point,
the Court held that limiting motel room rentals to ten (10) hours will have no
discernible effect on personal bonds as those bonds that are formed from the use of a
motel room for fewer than ten (10) hours are not those that have played a critical role
in the culture and traditions of the nation by cultivating and transmitting shared ideals
and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila, 95 it needs pointing out, is also different from this case in that what was
involved therein was a measure which regulated the mode in which motels may
conduct business in order to put an end to practices which could encourage vice and
immorality. Necessarily, there was no valid objection on due process or equal
protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power to
prohibit. 96
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
Protection Clause

violates

Equal

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. 97 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. 98The "equal protection of the laws is
a pledge of the protection of equal laws." 99 It limits governmental discrimination.
The equal protection clause extends to artificial persons but only insofar as their
property is concerned. 100
The Court has explained the scope of the equal protection clause in this wise:
. . . What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: "The ideal situation is for the law's benefits to be
available to all, that none be placed outside the sphere of its coverage.
Only thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity, which is of the very
essence of the idea of law." There is recognition, however, in the opinion
that what in fact exists "cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the
realities of the situation. The constitutional guarantee then is not to be
given a meaning that disregards what is, what does in fact exist. To
assure that the general welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal
protection clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the common weal
was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason." Classification is thus not
ruled out, it being sufficient to quote from the Tuason decision anew
"that the laws operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the same manner,
the conditions not being different, both in the privileges conferred and
the liabilities imposed. Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall be
given to every person under circumstances which, if not identical, are
analogous. If law be looked upon in terms of burden or charges, those
that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest. 101
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. 102 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. IEAacS
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. 103

In the Court's view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition,
all are commercial establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and inns but not
pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly treated,
both as to rights conferred and obligations imposed. It is arbitrary as it does not rest
on substantial distinctions bearing a just and fair relation to the purpose of
the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious establishment
does not become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also
discriminatory as prostitution one of the hinted ills the Ordinance aims to banish
is not a profession exclusive to women. Both men and women have an equal
propensity to engage in prostitution. It is not any less grave a sin when men engage in
it. And why would the assumption that there is an ongoing immoral activity apply only
when women are employed and be inapposite when men are in harness? This
discrimination based on gender violates equal protection as it is not substantially
related to important government objectives. 104 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
to general laws; it is ultra vires

is

repugnant

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:
xxx xxx xxx
(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:
xxx xxx xxx
(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:
xxx xxx xxx
(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:
xxx xxx xxx
(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 105 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. 106
And in People v. Esguerra, 107 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. 108
These doctrines still hold contrary to petitioners' assertion 109 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. 110 These powers,
therefore, should not be confused, commingled or consolidated as to create a
conglomerated and unified power of regulation, suppression and prohibition. 111
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. AEDcIH
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. 112 Moreover, it is a
general rule in statutory construction that the express mention of one person, thing,
or consequence is tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic and the natural
workings of human mind. It is particularly applicable in the construction of such
statutes as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction. 113
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, 114 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. 115 If there is an
inconsistency or repugnance between two statutes, both relating to the same subject
matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail and
override the earlier. 116
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. 117
In addition, Section 534(f) of the Code states that "All general and special laws, acts,
city charters, decrees, executive orders, proclamations and administrative regulations,
or part or parts thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly." Thus, submitting to petitioners'
interpretation that the Revised Charter of Manila empowers the City Council to
prohibit motels, that portion of the Charter stating such must be considered repealed
by the Code as it is at variance with the latter's provisions granting the City Council
mere regulatory powers. ESCacI
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. 118
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:
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;
xxx xxx xxx
If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list of the matters it may
prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City Council's powers in
the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to
overreach its prohibitory powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage
clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the "contractors" defined in paragraph (h) thereof. The same Section also
defined "amusement" as a "pleasurable diversion and entertainment," "synonymous
to relaxation, avocation, pastime or fun;" and "amusement places" to include
"theaters, cinemas, concert halls, circuses and other places of amusement where one
seeks admission to entertain oneself by seeing or viewing the show or performances."
Thus, it can be inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo singula
singulis which means that words in different parts of a statute must be referred to
their appropriate connection, giving to each in its place, its proper force and effect,
and, if possible, rendering none of them useless or superfluous, even if strict
grammatical construction demands otherwise. Likewise, where words under
consideration appear in different sections or are widely dispersed throughout an act
the same principle applies. 119
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. 120 As succinctly illustrated in Solicitor General
v. Metropolitan Manila Authority: 121
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. 122
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. 123
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. cHCSDa
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., concurs in the result.
Ynares-Santiago, J., concurs in the result only.
||| (City of Manila v. Laguio, Jr., G.R. No. 118127, [April 12, 2005], 495 PHIL 289-338)
iii.

Public Safety

Javier v. Earnshaw, 64 Phil 626

FIRST DIVISION
[G.R. No. 43634. August 24, 1937.]

FRANCISCO JAVIER and ROMAN OZAETA, plaintiffs-appellants, vs.

TOMAS EARNSHAW, Mayor of the City of Manila, defendantappellee.
Gibbs, McDonough & Ozaeta and Claro M. Recto for plaintiffs.
City Fiscals Felix and Diaz for appellee.
SYLLABUS
1. MUNICIPAL CORPORATIONS; ORDINANCE ON GASOLINE STATIONS;
LEGALITY. The municipal board of the City of Manila, in the exercise of the police
power, may reasonably regulate professions and business enterprise within its
territorial limits when the public health, safety and welfare so demand. Ordinance
No. 1985 in question is of this nature and, therefore, is not illegal. The municipal
board of the City of Manila, by virtue of the police power, may reasonably regulate
the use of private property whenever such measure is required by the public health
and safety, and the welfare of its inhabitants (Fabie vs. City of Manila, 21 Phil., 486;
Kwong Sing vs. City of Manila, 41 Phil., 103; Manigault vs. Ward, 123 Fed., 707; Ex
parte Yun Quong, 114 Pac., 835; Sierra Country vs. Flanigan, 87 Pac., 913; Plumas
County vs. Wheeler, 87 Pac., 909).
2. ID.; ID.; ID. The ordinance under consideration prohibits the installation
of gasoline stations within the distance of 500 meters from each other not only to
prevent ruinous competition among merchants engaged in this kind of business but
also to protect the public from any harm or danger that may be occasioned by said
inflammable substance. The ordinance is not arbitrary, unreasonable or
discriminatory because, as already stated, it was enacted by the City of Manila in
the exercise of the police power delegated to it by the Legislature, it tends to
protect the inhabitants thereof from the dangers and injuries that may arise from
the inflammable substance, and the measure is general and applicable to all
persons in the same situation as the plaintiffs.
3. ID.; ID.; NECESSARY OR INTERESTED PARTY. The court held that the
plaintiffs were not the ones called upon to bring the action instituted by them
because they were not the concessionaires, but the Asiatic Petroleum Co. (P. I.),
Ltd., in whose favor the license was issued. The fifth assignment of error of the
plaintiffs is directed against this ruling. The assignment of error is well taken. The
plaintiffs may maintain this action because they are a necessary and interested
party to the case, being the direct beneficiaries of the license issued in favor of the
Asiatic Petroleum Co. (P. I.), Ltd.

iv.
Protection of property/ Regulation of trade
1. Kwong Sing v. City, 41 Phil 103, supra
2. Tan v. Perena 452 SCRA 53, 69
3. Acebedo Optical v. CA 329 SCRA 314
EN BANC
[G.R. No. 100152. March 31, 2000.]

ACEBEDO
OPTICAL
COMPANY,
INC., petitioner, vs.
THE
HONORABLE
COURT
OF
APPEALS,
Hon.
MAMINDIARA
MANGOTARA, in his capacity as Presiding Judge of the RTC, 12th
Judicial Region, Br. 1, Iligan City; SAMAHAN NG OPTOMETRIST Sa
PILIPINAS Iligan City Chapter, LEO T. CAHANAP, City Legal
Officer,
and
Hon.
CAMILO
P.
CABILI,
City
Mayor
of
Iligan, respondents.
Puruganan Chato Tan & Geronimo for petitioner.
The Solicitor General for public respondents.
Magsalin Law Offices for Samahan ng Optomitrist sa Pilipinas.
SYNOPSIS
Petitioner applied with the Office of the City Mayor of Iligan for a business permit.
After consideration of its application and the opposition interposed thereto by local
optometrists, respondent City Mayor issued Business Permit No. 5342 subject to the
condition that since petitioner is a corporation, it cannot put up a clinic but only a
commercial store. Private respondent Samahan ng Optometrist Sa Pilipinas (SOPI),
Iligan Chapter, through its Acting President, Dr. Frances B. Apostol, lodged a complaint
against the petitioner before the Office of the City Mayor, alleging that petitioner had
violated the conditions set forth in its business permit and requesting the cancellation
and/or revocation of such permit. After conducting an investigation, respondent Mayor
sent petitioner a Notice of Resolution and Cancellation of Business Permit effective as
of said date and giving petitioner three (3) months to wind up its affairs. Petitioner
brought a petition for certiorari, prohibition and mandamus against the respondents,
City Mayor, City Legal Officer and Samahan ng Optometrist sa Pilipinas-Iligan City
Chapter (SOPI) before the Regional Trial Court of Iligan City, Branch 1. The trial court
dismissed the petition for failure to exhaust administrative remedies, and dissolved
the writ of preliminary injunction it earlier issued. Petitioner's motion for
reconsideration met the same fate. Instead of taking an appeal, petitioner filed a
petition for certiorari, prohibition and mandamus with the Court of Appeals seeking to
set aside the questioned Order of Dismissal, branding the same as tainted with grave
abuse of discretion. Court of Appeals dismissed the petition for lack of merit.
Petitioner's motion for reconsideration was also denied. Undaunted, petitioner filed
the present petition for review on certiorari.
The Supreme Court ruled that a business permit is issued primarily to regulate the
conduct of business and the City Mayor cannot, through the issuance of such permit,
regulate the practice of a profession, like that of optometry. Such a function is within
the exclusive domain of the administrative agency specifically empowered by law to
supervise the profession, in this case the Professional Regulations Commission and
the Board of Examiners in Optometry. The Court by analogy compared petitioner to
private hospitals maintained by corporations and incorporated for the purpose of
furnishing medical and surgical treatment. In the course of providing such treatments,
these corporations employ physicians, surgeons and medical practitioners, in the
same way that in the course of manufacturing and selling eyeglasses, eye frames and
optical lenses, optical shops hire licensed optometrists to examine, prescribe and
dispense ophthalmic lenses. No one has ever charged that these corporations are
engaged in the practice of medicine. There is indeed no valid basis for treating
corporations engaged in the business of running optical shops differently.

SYLLABUS
1. POLITICAL LAW; LOCAL GOVERNMENT CODE; POLICE POWER OF LOCAL
GOVERNMENT UNITS; THE POWER TO GRANT OR ISSUE LICENSES OR BUSINESS
PERMITS MUST ALWAYS BE EXERCISED IN ACCORDANCE WITH LAW WITH UTMOST
OBSERVANCE OF THE RIGHTS OF ALL CONCERNED TO DUE PROCESS AND EQUAL
PROTECTION OF THE LAW. Police power as an inherent attribute of sovereignty is
the power to prescribe regulations to promote the health, morals, peace, education,
good order or safety and general welfare of the people. The State, through the
legislature, has delegated the exercise of police power to local government units, as
agencies of the State, in order to effectively accomplish and carry out the declared
objects of their creation. This delegation of police power is embodied in the general
welfare clause of the Local Government Code. The scope of police power has been
held to be so comprehensive as to encompass almost all matters affecting the health,
safety, peace, order, morals, comfort and convenience of the community. Police power
is essentially regulatory in nature and the power to issue licenses or grant business
permits, if exercised for a regulatory and not revenue-raising purpose, is within the
ambit of this power. The authority of city mayors to issue or grant licenses and
business permits is beyond cavil. It is provided for by law. Section 171, paragraph 2
(n) of Batas Pambansa Bilang 337 otherwise known as the Local Government Code of
1983, reads: Sec. 171. The City Mayor shall: . . . n) Grant or refuse to grant, pursuant
to law, city licenses or permits, and revoke the same for violation of law or ordinance
or the conditions upon which they are granted. However, the power to grant or issue
licenses or business permits must always be exercised in accordance with law, with
utmost observance of the rights of all concerned to due process and equal protection
of the law.
2. ID.; ID.; ID.; ID.; A BUSINESS PERMIT IS ISSUED PRIMARILY TO REGULATE THE
CONDUCT OF BUSINESS AND THE CITY MAYOR CANNOT, THROUGH THE ISSUANCE OF
SUCH PERMIT, REGULATE THE PRACTICE OF A PROFESSION, LIKE THAT OF OPTOMETRY.
In the present case, the objective of the imposition of subject conditions on
petitioner's business permit could be attained by requiring the optometrists in
petitioner's employ to produce a valid certificate of registration as optometrist, from
the Board of Examiners in Optometry. A business permit is issued primarily to regulate
the conduct of business and the City Mayor cannot, through the issuance of such
permit, regulate the practice of a profession, like that of optometry. Such a function is
within the exclusive domain of the administrative agency specifically empowered by
law to supervise the profession, in this case the Professional Regulations Commission
and the Board of Examiners in Optometry.
3. ID.; ID.; ID.; ID.; NO VALID BASIS FOR TREATING CORPORATIONS ENGAGED IN THE
BUSINESS OF RUNNING OPTICAL SHOPS DIFFERENTLY FROM INCORPORATED
HOSPITALS WHO EMPLOY PHYSICIANS, SURGEONS AND MEDICAL PRACTITIONERS, IN
THE SAME WAY THAT IN THE COURSE OF MANUFACTURING AND SELLING EYEGLASSES,
EYE FRAMES AND OPTICAL LENSES, OPTICAL SHOPS HIRE LICENSED OPTOMETRISTS
TO EXAMINE, PRESCRIBE AND DISPENSE OPHTHALMIC LENSES. To accomplish the
objective of the regulation, a state may provide by statute that corporations cannot
sell eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly
qualified optometrist is in charge of, and in personal attendance at the place where
such articles are sold. In such a case, the patient's primary and essential safeguard
lies in the optometrist's control of the "treatment" by means of prescription and
preliminary and final examination. In analogy, it is noteworthy that private hospitals
are maintained by corporations incorporated for the purpose of furnishing medical and
surgical treatment. In the course of providing such treatments, these corporations

employ physicians, surgeons and medical practitioners, in the same way that in the
course of manufacturing and selling eyeglasses, eye frames and optical lenses, optical
shops hire licensed optometrists to examine, prescribe and dispense ophthalmic
lenses. No one has ever charged that these corporations are engaged in the practice
of medicine. There is indeed no valid basis for treating corporations engaged in the
business of running optical shops differently.
4. ID.; ID.; ID.; ID.; THE DOCTRINE OF ESTOPPEL CANNOT OPERATE TO GIVE EFFECT
TO AN ACT WHICH IS OTHERWISE NULL AND VOID AND ULTRA VIRES; THE FACT THAT
PETITIONER ACQUIESCED IN THE SPECIAL CONDITIONS IMPOSED BY THE CITY MAYOR
DOES NOT PRECLUDE IT FROM CHALLENGING THE SAID IMPOSITION, WHICH IS ULTRA
VIRES OR BEYOND THE AMBIT OF THE AUTHORITY OF RESPONDENT CITY MAYOR. It
is decisively clear that estoppel cannot apply in this case. The fact that petitioner
acquiesced in the special conditions imposed by the City Mayor in subject business
permit does not preclude it from challenging the said imposition, which is ultra vires or
beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts which
are clearly beyond the scope of one's authority are null and void and cannot be given
any effect. The doctrine of estoppel cannot operate to give effect to an act which is
otherwise null and void or ultra vires. The Court of Appeals erred in adjudging subject
business permit as having been issued by respondent City Mayor in the performance
of proprietary functions of Iligan City. As hereinabove elaborated upon, the issuance of
business licenses and permits by a municipality or city is essentially regulatory in
nature. The authority, which devolved upon local government units to issue or grant
such licenses or permits, is essentially in the exercise of the police power of the State
within the contemplation of the general welfare clause of the Local Government Code.
KAPUNAN, J., concurring opinion:
1. POLITICAL LAW; LOCAL GOVERNMENT CODE; POLICE POWER OF LOCAL
GOVERNMENT UNITS; CORPORATE PRACTICE OF ANY PROFESSION, INCLUDING
OPTOMETRY, MUST NEVER BE SANCTIONED. The rule is that the corporate practice
of any profession, including optometry, must never be sanctioned. The public policy
behind such rulings is universal, and is based on the notion that the ethics of any
profession is based upon individual responsibility, personal accountability and
independence, which are all lost where one verily acts as a mere agent, or alter ego,
of unlicensed persons or corporations.
2. ID.; ID.; ID.; IT WAS NOT WITHIN RESPONDENT MAYOR'S FUNCTION TO DETERMINE
THE PROPER SCOPE AND APPLICATION OF THE OPTOMETRY LAW BY IMPOSING THE
ASSAILED CONDITIONS IN THE BUSINESS PERMIT. In this case, the imposition of
conditions by the respondent mayor in the business permit was premature, there
being no factual basis for him to conclude whether or not there was a danger that
corporate practice of optometry was to take place should the business permit to
operate an optical shop be granted to the petitioner. The conditions on the business
permit were imposed even before petitioner began operating its optical shop in Iligan
city, the alleged breach of which was the basis for the permit's cancellation and the
institution of this case in court. It was not within respondent mayor's functions to
determine the proper scope and application of the Optometry Law by imposing the
conditions in the business permit.
3. ID.; ID.; ID.; ASSAILED CONDITIONS IN THE SUBJECT BUSINESS PERMIT ARE ULTRA
VIRES BECAUSE THEY ARE UNREASONABLE. Police power is often characterized as
the most essential, insistent and the least limitable of powers, extending as it does to
all the great public needs. It is the inherent and plenary power in the State which

enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society. In
the area of local governments, the police power of a municipality exists solely by
virtue of legislative or constitutional grant. In view, however, of the constitutional
grant of local autonomy, the argument on presumption of reasonableness in the
exercise of the police power by local government may be persuasive. But this
awesome character of police power is not without limits because the determination of
what is proper exercise of such power is subject to the supervision of the courts. This
is specially true in this case where police power is used to justify restriction on the
right to engage in a legitimate employment or business, which right receives
protection and recognition as a portion of the individual freedoms secured by the due
process clause of the Constitution. A justification for a licensing requirement and other
forms of restrictions generally requires a showing that the measures at least tend to
promote public health, morals, safety or welfare. Whenever a business is affected with
public interest it may be subject to regulation to protect the public against danger and
injustice. However, the scope of regulations of trades and occupation is determined by
the principle that an exercise of the police power must confer public benefit
commensurate with the burden imposed upon private rights and property, and the
means adapted must be suitable to the end in view, impartial in operation, and not
unduly oppressive upon individuals. The burden imposed must not interfere with
rights of private property and freedom of contract beyond the necessity of the
situation. The test, thus, is the classic reasonableness and propriety of the measures
or means in the promotion of the ends sought to be accomplished.
4. ID.; ID.; ID.; THE MEANS EMPLOYED EFFECTIVELY DEPRIVE OPTOMETRISTS OF THE
BASIC PROPERTY RIGHT TO SEEK LEGITIMATE EMPLOYMENT OF THEIR CHOICE WHICH
CANNOT BE ARBITRARILY INFRINGED UPON BY REGULATIONS THAT ARE CONTRARY TO
LAW. That the exercise of police powers is subject to judicial review is without
question. Police powers being the most pervasive and most demanding of the three
inherent powers of the State, its exercise is not unbridled and must in all cases meet
the tests of legitimacy, both in the ends it seeks to achieve as well as in the means
employed to achieve them. Applying such tests to the present case therefore, it is
clear that the respondent mayor acted in excess of his legitimate authority. The
purported ends sought to be achieved go no deeper than a recital of the General
Welfare clause: i.e., "the safety and well-being of the people," "safeguarding the
general public, especially the poor. . . ," without establishing how those goals could be
reasonably achieved by imposing such conditions in the permit. Furthermore, the
means employed effectively deprive optometrists of basic property right: that is, the
right to seek legitimate employment of their choice, which cannot be arbitrarily
infringed upon by regulations that are contrary to law.
5. ID.; ID.; ID.; THE COURT SEES NO REASON WHY THE PRIMARY PURPOSE OF THE
OPTOMETRY LAW WHICH IS TO ENSURE THAT THE SERVICE WOULD BE RENDERED BY
COMPETENT AND LICENSED PERSONS AND THEREBY PROTECT THE PUBLIC FROM
INEXPERTNESS CANNOT BE ATTAINED IF THE PERSONS RENDERING THE SERVICE ARE
EMPLOYED BY A CORPORATION. The primary purpose of the Optometry Law is to
ensure that the service would be rendered by competent and licensed persons and
thereby protect the public from inexpertness. Despite the public respondent's
assertions that the conditions in the business permit were made for the purpose of
"safeguarding the general public and especially the poor who are easily gulled by
misleading advertisements," hence, falling within the ambit of police powers granted
to local officials under the Local Government Code, this Court sees no cogent reason
why such purpose cannot be attained even if the persons rendering the service are
employed by a corporation. Optometrists, like any other professionals are,
nonetheless, bound by the same standards of professional conduct, care, skill and

diligence, whether they practice as independent optometrists or as employees of

unlicensed persons or corporations.
VITUG, J., dissenting opinion:
1. POLITICAL LAW; LOCAL GOVERNMENT CODE; POLICE POWER OF LOCAL
GOVERNMENT UNITS; THE QUESTIONED CONDITIONALITIES IMPOSED ON THE
BUSINESS PERMIT OF PETITIONER CORPORATION ARE ACTIVITIES THAT CANNOT BE
PERFORMED WITHOUT SUCH ENGAGEMENT BEING TRANSLATED INTO AN
UNAUTHORIZED PRACTICE OF OPTOMETRY. The questioned conditionalities imposed
on the business permit of Acebedo are activities that cannot be performed by a
corporation without such engagement being translated into an unauthorized practice
of optometry. The exercise of this profession is no different from the practice of other
regulated professions which can only be undertaken by individuals duly licensed
therefor. Republic Act No. 8050, otherwise known as the Revised Optometry Law,
like Republic Act No. 1998, the old Optometry Law, specifically prohibits any person
from practicing or attempting to practice optometry without such person having been
first admitted to the practice of that profession and granted a valid certificate of
registration signed by the Commissioner of the Professional Regulation Commission
and by all members of the Board of Optometry.
2. ID.; ID.; ID.; PETITIONER'S CONTENTION THAT RESPONDENT CITY MAYOR HAS
ACTED BEYOND HIS AUTHORITY IN IMPOSING THE CONDITIONS IS BEREFT OF MERIT
BECAUSE IN DOING SO THE RESPONDENT MERELY RESTATED WHAT THE OPTOMETRY
LAW MANDATES. Petitioner argues that respondent City Mayor has acted beyond his
authority in imposing the conditions expressed in Acebedo's permit. The contention is
bereft of merit. The City Mayor has merely restated what the Optometry Law
mandates. Under Section 171, paragraph 2(n), of the then Local Government Code,
the City Mayor, being the Chief Executive of the Local Government, has had the
authority to "grant or refuse to grant, pursuant to law, city licenses or permits, and
revoke the same for violation of law or ordinance or the conditions upon which they
are granted." Its equivalent provision in the Local Government Code of 1991 is now
found in Section 445, paragraph 3(iv), which empowers city mayors to "issue licenses
and permits and suspend or revoke the same for any violation of the conditions upon
which said licenses or permits (are) issued, pursuant to law or ordinance." Municipal
corporations are agencies of the State for the promotion and maintenance of local
self-governance and are endowed with police power in order to effectively accomplish
the declared objects of their creation. An attribute of sovereignty, police power has
been defined to be the power to prescribe regulations to promote the health, morals,
education, good order or safety, and general welfare of the people.
3. ID.; ID.; ID.; A LICENSE OR PERMIT IS NOT A CONTRACT BETWEEN THE SOVEREIGN
AND THE GRANTEE, RATHER, IT IS A SPECIAL PRIVILEGE, A PERMISSION OR AUTHORITY
TO DO WHAT WOULD BE WITHIN ITS TERMS; IT IS NEITHER VESTED NOR PERMANENT
THAT CAN AT NO TIME BE WITHDRAWN OR TAKEN BACK BY THE GRANTOR. A license
or permit is not a contract between the sovereign and the grantee; rather, it is a
special privilege, a permission or authority to do what would be within its terms; it is
neither vested nor permanent that can at no time be withdrawn or taken back by the
grantor. The Solicitor General has posited correctly in disagreeing with the appellate
court which has mistaken the conditions imposed by respondent City Mayor as being
binding on both the city government and petitioner upon the thesis that the permit
issued by him partakes the nature of a private agreement or contract. For a permit to
be impressed with a contractual character, it must be clearly demonstrated that the
very administrative agency, which is the source of the permit, can place that burden
on itself as such. cCSDaI

v.
Promotion of General welfare, comfort and convenience
1. Ebon v. Daet, 85 Phil 369
EN BANC
[G.R. No. L-2811. January 28, 1950.]
PRESCILA S. EBOA, EULALIA CABANELA, EUSEBIA CABANELA,
ELEUTERIO CABANELA, NIEVES ESPINOSA, PANTALEONA C.
TOTANES, RICARDO CABANELA, PETRA ABANES, ADELA VASQUEZ
and
AGAPITA
ARBOLEDA,plaintiffs-appellants, vs.
THE
MUNICIPALITY OF DAET, defendant-appellee.
Generoso F. Obusan for appellants.
Provincial Fiscal Valentin Reyes for appellee.
SYLLABUS
1. MUNICIPAL CORPORATIONS; ORDINANCE FOR ZONIFICATION OF PUBLIC
MARKET, CONSTITUTIONALITY OF. A municipal ordinance prescribing the
zonification and classification of merchandise and foodstuff sold in the public
market, is valid and constitutional, because under the general welfare clause
contained in section 2238 of the revised Administrative Code, the municipal council
is empowered to "enact ordinances and make 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 orals, peace, good
order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein."
2. ID.; ID.; When the municipality administers the market, if has the
authority to regulate the use thereof and may distribute and award the spaces
therein to be occupied by stores and stalls under conditions and regulations it may
impose.

2. Lim v. CA 387 SCRA 149, 151

THIRD DIVISION
[G.R. No. 111397. August 12, 2002.]
HON. ALFREDO LIM and RAFAELITO GARAYBLAS, petitioners, vs.
THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO
PIGALLE, INC., respondents.
Felix C. Chavez and Angel P. Aguirre for petitioners.
SYNOPSIS

When Mayor Lim disrupted the business operations of the New Bangkok Club and the
Exotic Garden Restaurant owned by respondent Bistro, the latter went to court where
its application for writ of prohibitory preliminary injunction was granted. Despite the
same, however, Mayor Lim still issued a closure order of the establishments, even
sending policemen to carry out the order.
The issue is the validity of the preliminary injunction, which the Court upheld. The
power of the mayor to suspend business licenses and work permits is expressly
premised on the violation of the terms and conditions thereof; and the power to
inspect and investigate does not include the power to order a police raid on the
establishments. Further, Mayor Lim has no authority to close down a business
establishment without due process of law. The Court noted that Mayor Lim did not
charge Bistro with any specific violation; that he closed down the clubs before
expiration of Bistro's business license; and that he refused to accept the license and
work applications of Bistro without examining whether it complies with the legal
prerequisites. IAEcaH
SYLLABUS
1. POLITICAL LAW; ADMINISTRATIVE LAW; MAYORS; POWER TO ISSUE BUSINESS
LICENSES AND PERMITS; INCLUDES POWER TO SUSPEND, REVOKE OR REFUSE BUT
ONLY IN CASE OF VIOLATION OF CONDITIONS. The authority of mayors to issue
business licenses and permits is beyond question. The law expressly provides for such
authority. And the power of the mayor to issue business licenses and permits
necessarily includes the corollary power to suspend, revoke or even refuse to issue
the same. However, the power to suspend or revoke these licenses and permits is
expressly premised on the violation of the conditions of these permits and licenses.
The laws specifically refer to the "violation of the condition(s)" on which the licenses
and permits were issued. Similarly, the power to refuse to issue such licenses and
permits is premised on non-compliance with the prerequisites for the issuance of such
licenses and permits. The mayor must observe due process in exercising these
powers, which means that the mayor must give the applicant or licensee notice and
opportunity to be heard.
2. ID.; ID.; ID.; POWER TO INSPECT AND INVESTIGATE PRIVATE COMMERCIAL
ESTABLISHMENTS DOES NOT INCLUDE POWER TO ORDER POLICE RAID. True, the
mayor has the power to inspect and investigate private commercial establishments
for any violation of the conditions of their licenses and permits. However, the mayor
has no power to order a police raid on these establishments in the guise of inspecting
or investigating these commercial establishments. Lim acted beyond his authority
when he directed policemen to raid the New Bangkok Club and the Exotic Garden
Restaurant. Such act of Lim violated Ordinance No. 7716 which expressly prohibits
police raids and inspections, to wit: "Section 1. No member of the Western Police
District shall conduct inspection of food and other business establishments for the
purpose of enforcing sanitary rules and regulations, inspecting licenses and permits,
and/or enforcing internal revenue and customs laws and regulations. This
responsibility should be properly exercised by Local Government Authorities and
other concerned agencies." These local government officials include the City Health
Officer or his representative, pursuant to the Revised City Ordinances of the City of
Manila, and the City Treasurer pursuant to Section 470 of the Local Government Code.
3. ID.; ID.; ID.; REGULATORY POWERS OF MUNICIPAL CORPORATIONS DOES NOT
INCLUDE POWER OF MAYOR TO CLOSE DOWN A BUSINESS ESTABLISHMENT WITHOUT
DUE PROCESS OF LAW. Lim has no authority to close down Bistro's business or any

business establishment in Manila without due process of law. Lim cannot take refuge
under the Revised Charter of the City of Manila and the Local Government Code. There
is no provision in these laws expressly or impliedly granting the mayor authority to
close down private commercial establishments without notice and hearing, and even if
there is, such provision would be void. The due process clause of the Constitution
requires that Lim should have given Bistro an opportunity to rebut the allegations that
it violated the conditions of its licenses and permits. The regulatory powers granted to
municipal corporations must always be exercised in accordance with law, 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. In the instant
case, we find that Lim's exercise of this power violated Bistro's property rights that are
protected under the due process clause of the Constitution. Lim did not charge Bistro
with any specific violation of the conditions of its business license or permits. Still, Lim
closed down Bistro's operations even before the expiration of its business license on
December 31, 1992. Lim also refused to accept Bistro's license application for 1993, in
effect denying the application without examining whether it complies with legal
prerequisites.
4. REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; PURPOSE.
The sole objective of a writ of preliminary injunction is to preserve the status quo until
the merits of the case can be heard fully. It is generally availed of to prevent actual or
threatened acts, until the merits of the case can be disposed of. In the instant case,
the issuance of the writ of prohibitory preliminary injunction did not dispose of the
main case for mandamus. The trial court issued the injunction in view of the
disruptions and stoppage in Bistro's operations as a consequence of Lim's closure
orders. The injunction was intended to maintain the status quo while the petition has
not been resolved on the merits. EHcaAI

3. Estate of Francisco v. CA 199 SCRA 595

SECOND DIVISION
[G.R. No. 95279. July 25, 1991.]
ESTATE OF GREGORIA FRANCISCO, herein represented by
SILVESTRE F. TAN, Administrator, petitioner, vs. HON. COURT OF
APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as
Presiding Judge of the Regional Trial Court of Isabela, Basilan
Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province,
herein represented by BENJAMIN VALENCIA, in his capacity as
Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT,
FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON,
FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN
DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO
TUBILAG, PABLO ANDRES, respondents.
Bienvenido G. Martin for petitioner.
Laurencio Saavedra for private respondents.

SYLLABUS
1. CONSTITUTIONAL LAW; LOCAL GOVERNMENT; MUNICIPAL MAYOR; DUTY TO
INSTITUTE JUDICIAL PROCEEDING IN CASE OF VIOLATION OF ORDINANCE. Violation
of a municipal ordinance neither empowers the Municipal Mayor to avail of extrajudicial remedies. On the contrary, the Local Government Code imposes upon him the
duty "to cause to be instituted judicial proceedings in connection with the violation of
ordinances" (Local Government Code, Sec. 141 [2] [t]).
2. ID.; ID.; SANGGUNIANG BAYAN; CANNOT DECLARE A PARTICULAR THING AS A
NUISANCE PER SE AND ORDER ITS CONDEMNATION. While the Sangguniang Bayan
may provide for the abatement of a nuisance (Local Government Code, Sec. 149 [ee]),
it can not declare a particular thing as a nuisance per se and order its condemnation.
The nuisance can only be so adjudged by judicial determination. "[Municipal councils]
do not have the power to find as a fact that a particular thing is a nuisance when such
thing is not a nuisance per se; nor can they authorize the extra judicial condemnation
and destruction of that as a nuisance which, in its nature, situation or use is not such.
These things must be determined in the ordinary courts of law. In the present
case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate
industry . . . . If it be in fact a nuisance due to the manner of its operation, that
question cannot be determined by a mere resolution of the board. The petitioner is
entitled to a fair and impartial hearing before a judicial tribunal." (Iloilo Cold Storage v.
Municipal Council, 24 Phil. 471 [1913]).
3. CIVIL LAW; NUISANCE; RULE IN ABATING THEREOF. Respondents can not seek
cover under the general welfare clause authorizing the abatement of nuisances
without judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be summarily abated
under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1928]).
The storage of copra in the quonset building is a legitimate business. By its nature, it
can not be said to be injurious to rights of property, of health or of comfort of the
community. If it be a nuisance per accidens it may be so proven in a hearing
conducted for that purpose. It is not per se a nuisance warranting its summary
abatement without judicial intervention.
4. ID.; ID.; AUTHORITY TO DEMOLISH BUILDING; MUST BE WITH JUDICIAL ORDER.
Petitioner was in lawful possession of the lot and quonset building by virtue of a
permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was
effected. It was not squatting on public land. Its property was not of trifling value. It
was entitled to an impartial hearing before a tribunal authorized to decide whether
the quonset building did constitute a nuisance in law. There was no compelling
necessity for precipitate action. It follows then that respondent public officials of the
Municipality of Isabela, Basilan, transcended their authority in abating summarily
petitioner's quonset building. They had deprived petitioner of its property without due
process of law. The fact that petitioner filed a suit for prohibition and was
subsequently heard thereon will not cure the defect, as opined by the Court of
Appeals, the demolition having been a fait accompli prior to hearing and the authority
to demolish without a judicial order being a prejudicial issue.

4. De la Cruz v. Paras, 123 SCRA 569

EN BANC
[G.R. Nos. 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.
SYLLABUS
1. CONSTITUTIONAL LAW; POLICE POWER OF THE STATE; POWER OF MUNICIPAL
CORPORATIONS TO ENACT LEGISLATION PURSUANT THERETO. 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." (Sec. 2238, Revised Administrative Code of the Philippines, (1917).
2. ID ; ID.; ID.; WHEN ORDINANCES MAY BE PRONOUNCED INVALID. An ordinance
enacted by virtue thereof, according to Justice Moreland, speaking for the Court in the
leading case of United States v Phil. 165 (1913 ) "is valid, unless contravenes the
fundamental law of the Philippine Island, or an Act of the Philippines 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."
3. ID.; ID.; ID.; LEGISLATION BY VIRTUE OF THE GENERAL WELFARE CLAUSE. The
general welfare clause 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 powers and purposes of the
corporation, and not inconsistent with the laws or policy of the State.

4. ID.; ID.; ID.; MUNICIPAL ORDINANCE NO. 84 OF BOCAUE BULACAN; TEST OF

REASONABLENESS TO UPHOLD IT VALIDITY, NOT MET. In two leading cases, 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 restriction rather than
by an absolute prohibition. The admonition in U.S. vs. Salavaria, 39 Phil. 102 (1918)
should be heeded: "The Judiciary should not lightly set aside legislative action when
there is not a clear invasion of personal or property rights under the guise of police
regulation ." It is clear that in the guise of 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
investment made and salaries to be earned by those therein employed.
5. ID.; ID.; ID.; REPUBLIC ACT NO. 938; POWER GRANTED TO MUNICIPAL
CORPORATIONS IS THAT OF REGULATION, NOT PROHIBITION. The first Section
of R.A. No 938 was amended to include not merely "the power of regulate, but
likewise 'prohibit . . ." 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 way go as far as to prohibit the
operation of night clubs. If that were all, then the appealed decision is not devoid if
support in law. That is not all, however. The title was not in any altered. It was not
change one with. The exact wording was followed. The power granted remains that or
regulation, not prohibition. There is thus Act No. 938 as allowing the prohibition of the
operation of night clubs would give rise to a constitutional question.
6. ID.; ID.; ID.; ID.; ID.; STATUTE TO BE CONSTRUED TO FREE IT FROM
CONSTITUTIONAL INFIRMITY. Since there is no dispute as the title limits the power
to regulating, not prohibiting, it would result 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 power "to provide for the health and safety, promote
the prosperity, improve the morals." in the language of the Administrative Code, such
competence extending to all "the great public needs." 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.
7. ID.; ID.; ID.; JUDGMENT UPHOLDING THE VALIDITY OF MUNICIPAL ORDINANCE NO.
84 CANNOT BE SUSTAINED. 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 he, therefore, an exercise in futility if the decision under
review were sustained. All that petitioners would have to do so is to apply once more
for licenses to operate night clubs. A refusal to grant licenses, because no such
businesses could legally open. would he 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 so
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 it to pay lets, very much
less, than full deference to the due process clause with its mandate of fairness and
reasonableness.
vi.
G.

Issuance of zoning ordinances

Exercise of powers beyond boundaries

Cases: Rivera v. Campbell, 34 Phil 348

SECOND DIVISION
[G.R. No. 11119. March 23, 1916.]
JUANA RIVERA, petitioner, vs. RICHARD CAMPBELL, judge of the
Court of First Instance of the city of Manila, appellees.
Vicente Santiago for petitioner.
Prosecuting Attorneys Paredes and De Joya for respondent.
SYLLABUS
1. MANILA, CITY OF; ORDINANCE; PROTECTION OF WATER SUPPLY.
Held: Under the power and authority expressly conferred upon the city of Manila,
by paragraphs (w) and (cc) of section 17 of Act No. 183, in relation with paragraph
(i) of section 3 of Act No. 1150, that said city had ample power and authority to
adopt subsection (f) of section 4 of Ordinance No. 149.
2. ID.; ID.; ID.; JURISDICTION OF MUNICIPAL COURT. Held: That, by express
provisions of Ordinance No. 149 of the city of Manila, its municipal court had full
power and authority to take jurisdiction of cases for a violation of said ordinance
and to try and sentence persons charged with its violation.
3. MUNICIPALITIES; PROTECTION OF WATER SUPPLY. Held: That municipal
governments, under proper authority, may adopt ordinances to protect and control
the purity of their water supply, and that such protection and control is not limited
to the municipal territorial limits, but may extend beyond such limits. Public water
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.
4. STATUTES; CONSTRUCTION AND INTERPRETATION. 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.

5. MUNICIPALITIES; POLICE POWERS; EXTENT OF TERRITORIAL JURISDICTION.

Held: That, while for ordinary purposes municipal governments are limited to
their territorial jurisdiction, they are not always so limited in the exercise of their
police powers. They may be granted the right to exercise their police powers
beyond their territorial jurisdiction. 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 foundation of water supply for the
city. (28 Cyc., 703, 704.)