HON. JEJOMAR C.
BINAY and the MUNICIPALITY OF
MAKATI, Petitioners, v. HON. EUFEMIO DOMINGO and the
COMMISSION ON AUDIT, Respondents.
Jejomar C . Binay for himself and for his co-petitioner.
Manuel D. Tamase and Rafael C. Marquez for Respondents.
DECISION
PARAS, J.:
The only pivotal issue before Us is whether or not Resolution No. 60, re-
enacted under Resolution No. 243, of the Municipality of Makati is a valid
exercise of police power under the general welfare clause.
The pertinent facts are:
On September 27, 1988, petitioner Municipality, through its Council,
approved Resolution No. 60 which reads:
"A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING
BURIAL ASSISTANCE PROGRAM INITIATED BY THE OFFICE OF THE
MAYOR, OF EXTENDING FINANCIAL ASSISTANCE OF FIVE
HUNDRED PESOS (P500.00) TO A BEREAVED FAMILY, FUNDS TO BE
TAKEN OUT OF UN APPROPRIATED AVAILABLE FUNDS EXISTING IN
THE MUNICIPAL TREASURY." (Rollo, Annex "A", p. 39).
Qualified beneficiaries, under the Burial Assistance Program, are bereaved
families of Makati whose gross family income does not exceed two
thousand pesos (P2,000.00) a month. The beneficiaries, upon fulfillment of
other requirements, would receive the amount of five hundred pesos
(P500.00) cash relief from the Municipality of Makati. (Rollo, Annex "B", p.
41).
Metro Manila Commission approved Resolution No. 60. Thereafter, the
municipal secretary certified a disbursement fund of four hundred
thousand pesos (P400,000.10) for the implementation of the Burial
Assistance Program. (Rollo, Annex "C", p. 43).
Resolution No. 60 was referred to respondent Commission on Audit (COA)
for its expected allowance in audit. Based on its preliminary findings,
respondent COA disapproved Resolution No. 60 and disallowed in audit
the disbursement of funds for the implementation thereof. (Rollo, Annex
"D", p. 44).
Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48,
respectively) filed by petitioners Mayor Jejomar Binay, were denied by
respondent in its Decision No. 1159, in the following manner:
"Your request for reconsideration is predicated on the following grounds, to
wit:
‘1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati
and the intended disbursements fall within the twin principles of ‘police
power’ and ‘parens patriae’; and
‘2. The Metropolitan Manila Commission (MMC), under a Certification,
dated June 5, 1989, has already appropriated the amount of P400,000.00
to implement the said resolution, and the only function of COA on the
matter is to allow the financial assistance in question.’
The first contention is believed untenable. Suffice it to state that:
‘a statute or ordinance must have a real substantial, or rational relation to
the public safety, health, morals, or general welfare to be sustained as a
legitimate exercise of the police power. The mere assertion by the
legislature that a statute relates to the public health, safety, or welfare
does not in itself bring the statute within the police power of a state for
there must always be on obvious and real connection between the actual
provisions of a police regulations and its avowed purpose, and the
regulation adopted must be reasonably adapted to accomplish the end
sought to be attained.’ 16 Am. Jur 2d, pp. 542-543; Emphasis supplied).

Here, we see no perceptible connection or relation between the objective
sought to be attained under Resolution No. 60, s. 1988, supra, and the
alleged public safety, general welfare, etc. of the inhabitants of Makati.
"Anent the second contention, let it be stressed that Resolution No. 60 is
still subject to the limitation that the expenditure covered thereby should be
for a public purpose, i.e., that the disbursement of the amount of P500.00
as burial assistance to a bereaved family of the Municipality of Makati or a
total of P400,000.00 appropriated under the Resolution, should be for the
benefit of the whole, if not the majority, of the inhabitants of the
Municipality and not for the benefit of only a few individuals as in the
present case. On this point, ‘government funds or property shall be spent
or used solely for public purposes.’" (Cf. Section 4[2], P.D. 1445). (pp. 50-
51, Rollo ) through the exercise of the police power but the municipality does also.
Bent on pursuing the Burial Assistance Program the Municipality of Makati,
through its Council, passed Resolution No. 243, reaffirming Resolution No.
60 (Rollo, Annex "H", p. 52).
However, the Burial Assistance Program has been stayed by COA
Decision No. 1159. Petitioner, through its Mayor, was constrained to file
this special civil action of certiorari praying that COA Decision No. 1159 be
set aside as null and void.
The police power is a governmental function, an inherent attribute of
sovereignty, which was born with civilized government. It is founded
largely on the maxims, "Sic utere tuo et alienum non laedas" and "Salus
populi est suprema lex." Its fundamental purpose is securing the general
welfare, comfort and convenience of the people.
Police power is inherent in the state but not in municipal corporations
(Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a municipal
corporation may exercise such power, there must be a valid delegation of
such power by the legislature which is the repository of the inherent
powers of the State. A valid delegation of police power may arise from
express delegation, or be inferred from the mere fact of the creation of the
municipal corporation; and as a general rule, municipal corporations may
exercise police powers within the fair intent and purpose of their creation
which are reasonably proper to give effect to the powers expressly
granted, and statutes conferring powers on public corporations have been
construed as empowering them to do the things essential to the enjoyment
of life and desirable for the safety of the people. (62 C.J.S., p. 277). The
so-called inferred police powers of such corporations are as much
delegated powers as are those conferred in express terms, the inference
of their delegation growing out of the fact of the creation of the municipal
corporation and the additional fact that the corporation can only fully
accomplish the objects of its creation by exercising such powers.
(Crawfordsville v. Braden, 28 N.E. 849). Furthermore, municipal
corporations, as governmental agencies, must have such measures of the
power as are necessary to enable them to perform their governmental
functions. The power is a continuing one, founded on public necessity. (62
C.J.S., p. 273) Thus, not only does the State effectuate its purposes
(U.S. v. Salaveria, 39 Phil. 102).
Municipal governments exercise this power under the general welfare
clause: pursuant thereto they are clothed with authority to "enact such
ordinances and issue such regulations as may be necessary to carry out
and discharge the responsibilities conferred upon it by law, and such as
shall be necessary and proper to provide for the health, safety, comfort
and convenience, maintain peace and order, improve public morals,
promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein."
(Sections 91, 149, 177 and 208, BP 337). And under Section 7 of BP 337,
"every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary and
proper for governance such as to promote health and safety, enhance
prosperity, improve morals, and maintain peace and order in the local
government unit, and preserve the comfort and convenience of the
inhabitants therein." 
Police power is the power to prescribe regulations to promote the health,
morals, peace, education, good order or safety and general welfare of the
people. It is the most essential, insistent, and illimitable of powers. In a
sense it is the greatest and most powerful attribute of the government. It is
elastic and must be responsive to various social conditions. (Sangalang,
Et. Al. v. IAC, 176 SCRA 719). On it depends the security of social order,
the life and health of the citizen, the comfort of an existence in a thickly
populated community, the enjoyment of private and social life, and the
beneficial use of property, and it has been said to be the very foundation
on which our social system rests. (16 C.J.S., p. 896) However, it is not
confined within narrow circumstances of precedents resting on past
conditions; it must follow the legal progress of a democratic way of life.
(Sangalang, Et. Al. v. LAC, supra).
In the case at bar, COA is of the position that there is "no perceptible
connection or relation between the objective sought to be attained under
Resolution No. 60, s. 1988, supra, and the alleged public safety, general
welfare etc. of the inhabitants of Makati." (Rollo, Annex "G", p. 51).
Apparently, COA tries to redefine the scope of police power by
circumscribing its exercise to "public safety, general welfare, etc. of the
inhabitants of Makati."
In the case of Sangalang v. IAC, supra, We ruled that police power is not
capable of an exact definition but has been, purposely, veiled in general
terms to underscore its all-comprehensiveness. Its scope, over-expanding
to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response
to conditions and circumstances thus assuring the greatest benefits.
The police power of a municipal corporation is broad, and has been said to
be commensurate with, but not to exceed, the duty to provide for the real
needs of the people in their health, safety, comfort, and convenience as
consistently as may be with private rights. It extends to all the great public
needs, and, in a broad sense includes all legislation and almost every
function of the municipal government. It covers a wide scope of subjects,
and, while it is especially occupied with whatever affects the peace,
security, health, morals, and general welfare of the community, it is not
limited thereto, but is broadened to deal with conditions which exists so as
to bring out of them the greatest welfare of the people by promoting public
convenience or general prosperity, and to everything worthwhile for the
preservation of comfort of the inhabitants of the corporation (62 C.J.S.
Sec. 128). Thus, it is deemed inadvisable to attempt to frame any definition
which shall absolutely indicate the limits of police power.
COA’s additional objection is based on its contention that "Resolution No.
60 is still subject to the limitation that the expenditure covered thereby
should be for a public purpose, should be for the benefit of the whole, if not
the majority, of the inhabitants of the Municipality and not for the benefit of
only a few individuals as in the present case." (Rollo, Annex "G", p. 51).
COA is not attuned to the changing of the times. Public purpose is not
unconstitutional merely because it incidentally benefits a limited number of
persons. As correctly pointed out by the Office of the Solicitor General,
"the drift is towards social welfare legislation geared towards state policies
to provide adequate social services (Section 9, Art. II, Constitution), the
promotion of the general welfare (Section 5, ibid) social justice (Section 10,
ibid) as well as human dignity and respect for human rights. (Section 11,
ibid." (Comment, p. 12).
The care for the poor is generally recognized as a public duty. The support
for the poor has long been an accepted exercise of police power in the
promotion of the common good.
There is no violation of the equal protection clause in classifying paupers
as subject of legislation. Paupers may be reasonably classified. Different
groups may receive varying treatment. Precious to the hearts of our
legislators, down to our local councilors, is the welfare of the paupers.
Thus, statutes have been passed giving rights and benefits to the disabled,
emancipating the tenant-farmer from the bondage of the soil, housing the
urban poor, etc.
Resolution No. 60, re-enacted under Resolution No. 243, of the
Municipality of Makati is a paragon of the continuing program of our
government towards social justice. The Burial Assistance Program is a
relief of pauperism, though not complete. The loss of a member of a family
is a painful experience, and it is more painful for the poor to be financially
burdened by such death. Resolution No. 60 vivifies the very words of the
late President Ramon Magsaysay "those who have less in life, should
have more in law." This decision, however must not be taken as a
precedent, or as an official go-signal for municipal governments to embark
on a philanthropic orgy of inordinate dole-outs for motives political or
otherwise.
PREMISES CONSIDERED, and with the afore-mentioned caveat, this
petition is hereby GRANTED and the Commission on Audit’s Decision No.
1159 is hereby SET ASIDE.

SO ORDERED.
G.R. No. 166494              June 29, 2007
CARLOS SUPERDRUG CORP., doing business under the name and
style "Carlos Superdrug," ELSIE M. CANO, doing business under the
name and style "Advance Drug," Dr. SIMPLICIO L. YAP, JR., doing
business under the name and style "City Pharmacy," MELVIN S.
DELA SERNA, doing business under the name and style "Botica dela
Serna," and LEYTE SERV-WELL CORP., doing business under the
name and style "Leyte Serv-Well Drugstore," petitioners,
vs.
DEPARTMENT OF SOCIAL WELFARE and DEVELOPMENT (DSWD),
DEPARTMENT OF HEALTH (DOH), DEPARTMENT OF FINANCE
(DOF), DEPARTMENT OF JUSTICE (DOJ), and DEPARTMENT OF
INTERIOR and LOCAL GOVERNMENT (DILG), respondents.
DECISION
AZCUNA, J.:
This is a petition1 for Prohibition with Prayer for Preliminary Injunction
assailing the constitutionality of Section 4(a) of Republic Act (R.A.) No.
9257,2 otherwise known as the "Expanded Senior Citizens Act of 2003."
Petitioners are domestic corporations and proprietors operating drugstores
in the Philippines.
Public respondents, on the other hand, include the Department of Social
Welfare and Development (DSWD), the Department of Health (DOH), the
Department of Finance (DOF), the Department of Justice (DOJ), and the
Department of Interior and Local Government (DILG) which have been
specifically tasked to monitor the drugstores’ compliance with the law;
promulgate the implementing rules and regulations for the effective
implementation of the law; and prosecute and revoke the licenses of erring
drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432, 3 was
signed into law by President Gloria Macapagal-Arroyo and it became
effective on March 21, 2004. Section 4(a) of the Act states:
SEC. 4. Privileges for the Senior Citizens. – The senior citizens shall be
entitled to the following:
(a) the grant of twenty percent (20%) discount from all establishments
relative to the utilization of services in hotels and similar lodging
establishments, restaurants and recreation centers, and purchase of
medicines in all establishments for the exclusive use or enjoyment of
senior citizens, including funeral and burial services for the death of senior
citizens;
...
The establishment may claim the discounts granted under (a), (f), (g) and
(h) as tax deduction based on the net cost of the goods sold or services
rendered: Provided, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is
granted. Provided, further,  That the total amount of the claimed tax
deduction net of value added tax if applicable, shall be included in their
gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue
Code, as amended.4
On May 28, 2004, the DSWD approved and adopted the Implementing
Rules and Regulations of R.A. No. 9257, Rule VI, Article 8 of which states:
Article 8. Tax Deduction of Establishments. – The establishment may claim
the discounts granted under Rule V, Section 4 – Discounts for
Establishments;5 Section 9, Medical and Dental Services in Private
Facilities[,]6 and Sections 107 and 118 – Air, Sea and Land Transportation
as tax deduction based on the net cost of the goods sold or services
rendered. Provided, That the cost of the discount shall be allowed as
deduction from gross income for the same taxable year that the discount is
granted; Provided, further, That the total amount of the claimed tax
deduction net of value added tax if applicable, shall be included in their
gross sales receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal Revenue
Code, as amended; Provided, finally, that the implementation of the tax
deduction shall be subject to the Revenue Regulations to be issued by the
Bureau of Internal Revenue (BIR) and approved by the Department of
Finance (DOF).9
On July 10, 2004, in reference to the query of the Drug Stores Association
of the Philippines (DSAP) concerning the meaning of a tax
deduction under the Expanded Senior Citizens Act, the DOF, through
Director IV Ma. Lourdes B. Recente, clarified as follows:
1) The difference between the Tax Credit (under the Old Senior Citizens
Act) and Tax Deduction (under the Expanded Senior Citizens Act).
1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior Citizens
Act) grants twenty percent (20%) discount from all establishments relative
to the utilization of transportation services, hotels and similar lodging
establishment, restaurants and recreation centers and purchase of
medicines anywhere in the country, the costs of which may be claimed by
the private establishments concerned as tax credit.
Effectively, a tax credit is a peso-for-peso deduction from a taxpayer’s tax
liability due to the government of the amount of discounts such
establishment has granted to a senior citizen. The establishment recovers
the full amount of discount given to a senior citizen and hence, the
government shoulders 100% of the discounts granted.
It must be noted, however, that conceptually, a tax credit scheme under
the Philippine tax system, necessitates that prior payments of taxes have
been made and the taxpayer is attempting to recover this tax payment
from his/her income tax due. The tax credit scheme under R.A. No. 7432
is, therefore, inapplicable since no tax payments have previously occurred.
1.2. The provision under R.A. No. 9257, on the other hand, provides that
the establishment concerned may claim the discounts under Section 4(a),
(f), (g) and (h) as tax deduction from gross income, based on the net cost
of goods sold or services rendered.
Under this scheme, the establishment concerned is allowed to deduct from
gross income, in computing for its tax liability, the amount of discounts
granted to senior citizens. Effectively, the government loses in terms of
foregone revenues an amount equivalent to the marginal tax rate the said
establishment is liable to pay the government. This will be an amount
equivalent to 32% of the twenty percent (20%) discounts so granted. The
establishment shoulders the remaining portion of the granted discounts.
It may be necessary to note that while the burden on [the] government is
slightly diminished in terms of its percentage share on the discounts
granted to senior citizens, the number of potential establishments that may
claim tax deductions, have however, been broadened. Aside from the
establishments that may claim tax credits under the old law, more
establishments were added under the new law such as: establishments
providing medical and dental services, diagnostic and laboratory services,
including professional fees of attending doctors in all private hospitals and
medical facilities, operators of domestic air and sea transport services,
public railways and skyways and bus transport services.
A simple illustration might help amplify the points discussed above, as
follows:
Tax Deduction Tax Credit
Gross Sales x x x x x x x x x x x x
Less : Cost of goods sold x x x x x x x x x x
Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x --
Other deductions: x x x x x x x x
Net Taxable Income x x x x x x x x x x
Tax Due x x x x x x
Less: Tax Credit -- ______x x
Net Tax Due -- x x
As shown above, under a tax deduction scheme, the tax deduction on
discounts was subtracted from Net Sales together with other deductions
which are considered as operating expenses before the Tax Due was
computed based on the Net Taxable Income. On the other hand, under
a tax credit scheme, the amount of discounts which is the tax credit item,
was deducted directly from the tax due amount.10
Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or
the Policies and Guidelines to Implement the Relevant Provisions of
Republic Act 9257, otherwise known as the "Expanded Senior Citizens Act
of 2003"11 was issued by the DOH, providing the grant of twenty percent
(20%) discount in the purchase of unbranded generic medicines from all
establishments dispensing medicines for the exclusive use of the senior
citizens.
On November 12, 2004, the DOH issued Administrative Order No
17712 amending A.O. No. 171. Under A.O. No. 177, the twenty percent
discount shall not be limited to the purchase of unbranded generic
medicines only, but shall extend to both prescription and non-prescription
medicines whether branded or generic. Thus, it stated that "[t]he grant of
twenty percent (20%) discount shall be provided in the purchase of
medicines from all establishments dispensing medicines for the exclusive
use of the senior citizens."
Petitioners assail the constitutionality of Section 4(a) of the Expanded
Senior Citizens Act based on the following grounds: 13
1) The law is confiscatory because it infringes Art. III, Sec. 9 of the
Constitution which provides that private property shall not be taken for
public use without just compensation;
2) It violates the equal protection clause (Art. III, Sec. 1) enshrined in our
Constitution which states that "no person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied of the
equal protection of the laws;" and
3) The 20% discount on medicines violates the constitutional guarantee in
Article XIII, Section 11 that makes "essential goods, health and other
social services available to all people at affordable cost." 14
Petitioners assert that Section 4(a) of the law is unconstitutional because it
constitutes deprivation of private property. Compelling drugstore owners
and establishments to grant the discount will result in a loss of profit
and capital because 1) drugstores impose a mark-up of only 5% to 10% on
branded medicines; and 2) the law failed to provide a scheme whereby
drugstores will be justly compensated for the discount.
Examining petitioners’ arguments, it is apparent that what petitioners are
ultimately questioning is the validity of the tax deduction scheme as a
reimbursement mechanism for the twenty percent (20%) discount that they
extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme does
not fully reimburse petitioners for the discount privilege accorded to senior
citizens. This is because the discount is treated as a deduction, a tax-
deductible expense that is subtracted from the gross income and results in
a lower taxable income. Stated otherwise, it is an amount that is allowed
by law15 to reduce the income prior to the application of the tax rate to
compute the amount of tax which is due.16 Being a tax deduction, the
discount does not reduce taxes owed on a peso for peso basis but merely
offers a fractional reduction in taxes owed.
Theoretically, the treatment of the discount as a deduction reduces the net
income of the private establishments concerned. The discounts given
would have entered the coffers and formed part of the gross sales of the
private establishments, were it not for R.A. No. 9257.
The permanent reduction in their total revenues is a forced subsidy
corresponding to the taking of private property for public use or
benefit.17 This constitutes compensable taking for which petitioners would
ordinarily become entitled to a just compensation.
Just compensation is defined as the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the taker’s
gain but the owner’s loss. The word just is used to intensify the meaning
of the word compensation, and to convey the idea that the equivalent to
be rendered for the property to be taken shall be real, substantial, full and
ample.18
A tax deduction does not offer full reimbursement of the senior citizen
discount. As such, it would not meet the definition of just compensation. 19
Having said that, this raises the question of whether the State, in
promoting the health and welfare of a special group of citizens, can impose
upon private establishments the burden of partly subsidizing a government
program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the contribution
of senior citizens to nation-building, and to grant benefits and privileges to
them for their improvement and well-being as the State considers them an
integral part of our society.20
The priority given to senior citizens finds its basis in the Constitution as set
forth in the law itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:
SECTION 1. Declaration of Policies and Objectives. – Pursuant to Article
XV, Section 4 of the Constitution, it is the duty of the family to take care of
its elderly members while the State may design programs of social security
for them. In addition to this, Section 10 in the Declaration of Principles and
State Policies provides: "The State shall provide social justice in all phases
of national development." Further, Article XIII, Section 11, provides: "The
State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged sick, elderly, disabled,
women and children." Consonant with these constitutional principles the
following are the declared policies of this Act:
...
(f) To recognize the important role of the private sector in the
improvement of the welfare of senior citizens and to actively seek
their partnership.21
To implement the above policy, the law grants a twenty percent discount to
senior citizens for medical and dental services, and diagnostic and
laboratory fees; admission fees charged by theaters, concert halls,
circuses, carnivals, and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel; utilization of
services in hotels and similar lodging establishments, restaurants and
recreation centers; and purchases of medicines for the exclusive use or
enjoyment of senior citizens. As a form of reimbursement, the law provides
that business establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to the power
of eminent domain, has general welfare for its object. Police power is not
capable of an exact definition, but has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible response to conditions
and circumstances, thus assuring the greatest benefits. 22 Accordingly, it
has been described as "the most essential, insistent and the least limitable
of powers, extending as it does to all the great public needs." 23 It is "[t]he
power vested in the legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same."24
For this reason, when the conditions so demand as determined by the
legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to
general welfare.25
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will suffer
loss of earnings and capital, the questioned provision is invalidated.
Moreover, in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which every law has in its
favor.26
Given these, it is incorrect for petitioners to insist that the grant of the
senior citizen discount is unduly oppressive to their business, because
petitioners have not taken time to calculate correctly and come up with a
financial report, so that they have not been able to show properly whether
or not the tax deduction scheme really works greatly to their
disadvantage.27
In treating the discount as a tax deduction, petitioners insist that they will
incur losses because, referring to the DOF Opinion, for every ₱1.00 senior
citizen discount that petitioners would give, ₱0.68 will be shouldered by
them as only ₱0.32 will be refunded by the government by way of a tax
deduction.
To illustrate this point, petitioner Carlos Super Drug cited the anti-
hypertensive maintenance drug Norvasc as an example. According to the
latter, it acquires Norvasc from the distributors at ₱37.57 per tablet, and
retails it at ₱39.60 (or at a margin of 5%). If it grants a 20% discount to
senior citizens or an amount equivalent to ₱7.92, then it would have to
sell Norvasc at ₱31.68 which translates to a loss from capital of ₱5.89 per
tablet. Even if the government will allow a tax deduction, only ₱2.53 per
tablet will be refunded and not the full amount of the discount which is
₱7.92. In short, only 32% of the 20% discount will be reimbursed to the
drugstores.28
Petitioners’ computation is flawed. For purposes of reimbursement, the law
states that the cost of the discount shall be deducted from gross
income,29 the amount of income derived from all sources before deducting
allowable expenses, which will result in net income. Here, petitioners tried
to show a loss on a per transaction basis, which should not be the case.
An income statement, showing an accounting of petitioners’ sales,
expenses, and net profit (or loss) for a given period could have accurately
reflected the effect of the discount on their income. Absent any financial
statement, petitioners cannot substantiate their claim that they will be
operating at a loss should they give the discount. In addition, the
computation was erroneously based on the assumption that their
customers consisted wholly of senior citizens. Lastly, the 32% tax rate is to
be imposed on income, not on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law because they
cannot raise the prices of their medicines given the cutthroat nature of the
players in the industry. It is a business decision on the part of petitioners to
peg the mark-up at 5%. Selling the medicines below acquisition cost, as
alleged by petitioners, is merely a result of this decision. Inasmuch as
pricing is a property right, petitioners cannot reproach the law for being
oppressive, simply because they cannot afford to raise their prices for fear
of losing their customers to competition.
The Court is not oblivious of the retail side of the pharmaceutical industry
and the competitive pricing component of the business. While the
Constitution protects property rights, petitioners must accept the realities of
business and the State, in the exercise of police power, can intervene in
the operations of a business which may result in an impairment of property
rights in the process.
Moreover, the right to property has a social dimension. While Article XIII of
the Constitution provides the precept for the protection of property, various
laws and jurisprudence, particularly on agrarian reform and the regulation
of contracts and public utilities, continuously serve as a reminder that the
right to property can be relinquished upon the command of the State for
the promotion of public good.30

Undeniably, the success of the senior citizens program rests largely on the
support imparted by petitioners and the other private establishments
concerned. This being the case, the means employed in invoking the
active participation of the private sector, in order to achieve the purpose or
objective of the law, is reasonably and directly related. Without sufficient
proof that Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably detrimental to
petitioners, the Court will refrain from quashing a legislative act. 31

WHEREFORE, the petition is DISMISSED for lack of merit.

No costs.

SO ORDERED.
G.R. No. 126102               December 4, 2000
ORTIGAS & CO. LTD., petitioner,
vs.
THE COURT OF APPEALS and ISMAEL G. MATHAY III, respondents.
DECISION
QUISUMBING, J.:
This petition seeks to reverse the decision of the Court of Appeals, dated
March 25, 1996, in CA-G.R. SP No. 39193, which nullified the writ of
preliminary injunction issued by the Regional Trial Court of Pasig City,
Branch 261, in Civil Case No. 64931. It also assails the resolution of the
appellate court, dated August 13, 1996, denying petitioner’s motion for
reconsideration.
The facts of this case, as culled from the records, are as follows:
On August 25, 1976, petitioner Ortigas & Company sold to Emilia
Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759, with an
area of 1,508 square meters, located in Greenhills Subdivision IV, San
Juan, Metro Manila, and covered by Transfer Certificate of Title No. 0737.
The contract of sale provided that the lot:
1. …(1) be used exclusively…for residential purposes only, and
not more than one single-family residential building will be
constructed thereon,…
xxx
6. The BUYER shall not erect…any sign or billboard on the roof…
for advertising purposes…
xxx
11. No single-family residential building shall be erected…until the
building plans, specification…have been approved by the
SELLER…
xxx
14....restrictions shall run with the land and shall be construed as
real covenants until December 31, 2025 when they shall cease
and terminate…1
These and the other conditions were duly annotated on the certificate of
title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila
Development Authority) enacted MMC Ordinance No. 81-01, also known
as the Comprehensive Zoning Area for the National Capital Region. The
ordinance reclassified as a commercial area a portion of Ortigas Avenue
from Madison to Roosevelt Streets of Greenhills Subdivision where the lot
is located.
On June 8, 1984, private respondent Ismael Mathay III leased the lot from
Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease contract did
not specify the purposes of the lease. Thereupon, private respondent
constructed a single story commercial building for Greenhills Autohaus,
Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia Hermoso
with the Regional Trial Court of Pasig, Branch 261. Docketed as Civil Case
No. 64931, the complaint sought the demolition of the said commercial
structure for having violated the terms and conditions of the Deed of Sale.
Complainant prayed for the issuance of a temporary restraining order and
a writ of preliminary injunction to prohibit petitioner from constructing the
commercial building and/or engaging in commercial activity on the lot. The
complaint was later amended to implead Ismael G. Mathay III and J.P.
Hermoso Realty Corp., which has a ten percent (10%) interest in the lot.
In his answer, Mathay III denied any knowledge of the restrictions on the
use of the lot and filed a cross-claim against the Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary injunction.
On June 29, 1995, Mathay III moved to set aside the injunctive order, but
the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil action for
certiorari, docketed as CA-G.R. SP No. 39193, ascribing to the trial court
grave abuse of discretion in issuing the writ of preliminary injunction. He
claimed that MMC Ordinance No. 81-01 classified the area where the lot
was located as commercial area and said ordinance must be read into the
August 25, 1976 Deed of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the restrictions on the use
of the lot were duly annotated on the title it issued to Emilia Hermoso, said
restrictions must prevail over the ordinance, specially since these
restrictions were agreed upon before the passage of MMC Ordinance No.
81-01.
On March 25, 1996, the appellate court disposed of the case as follows:
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED.
The assailed orders are hereby nullified and set aside.
SO ORDERED.2
In finding for Mathay III, the Court of Appeals held that the MMC
Ordinance No. 81-01 effectively nullified the restrictions allowing only
residential use of the property in question.
Ortigas seasonably moved for reconsideration, but the appellate court
denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the "principal issue in this
case is whether respondent Court of Appeals correctly set aside the Order
dated June 16, 1995 of the trial court which issued the writ of preliminary
injunction on the sole ground that MMC Ordinance No. 81-01 nullified the
building restriction imposing exclusive residential use on the property in
question."3 It also asserts that "Mathay III lacks legal capacity to question
the validity of conditions of the deed of sale; and he is barred by estoppel
or waiver to raise the same question like his principals, the
owners."4 Lastly, it avers that the appellate court "unaccountably failed to
address" several questions of fact.
Principally, we must resolve the issue of whether the Court of Appeals
erred in holding that the trial court committed grave abuse of discretion
when it refused to apply MMC Ordinance No.81-01 to Civil Case No.
64931.
But first, we must address petitioner’s allegation that the Court of Appeals
"unaccountably failed to address" questions of fact. For basic is the rule
that factual issues may not be raised before this Court in a petition for
review and this Court is not duty-bound to consider said questions. 5 CA-
G.R. SP No. 39193 was a special civil action for certiorari, and the
appellate court only had to determine if the trial court committed grave
abuse of discretion amounting to want or excess of jurisdiction in issuing
the writ of preliminary injunction. Thus, unless vital to our determination of
the issue at hand, we shall refrain from further consideration of factual
questions.
Petitioner contends that the appellate court erred in limiting its decision to
the cited zoning ordinance. It avers that a contractual right is not
automatically discarded once a claim is made that it conflicts with police
power. Petitioner submits that the restrictive clauses in the questioned
contract is not in conflict with the zoning ordinance. For one, according to
petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction
of residential buildings. Petitioner argues that even with the zoning
ordinance, the seller and buyer of the re-classified lot can voluntarily agree
to an exclusive residential use thereof. Hence, petitioner concludes that
the Court of Appeals erred in holding that the condition imposing exclusive
residential use was effectively nullified by the zoning ordinance.
In its turn, private respondent argues that the appellate court correctly
ruled that the trial court had acted with grave abuse of discretion in
refusing to subject the contract to the MMC Ordinance No. 81-01. He
avers that the appellate court properly held the police power superior to
the non-impairment of contract clause in the Constitution. He concludes
that the appellate court did not err in dissolving the writ of preliminary
injunction issued by the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction, the trial
court observed that the contract of sale was entered into in August 1976,
while the zoning ordinance was enacted only in March 1981. The trial court
reasoned that since private respondent had failed to show that MMC
Ordinance No. 81-01 had retroactive effect, said ordinance should be
given prospective application only,6 citing Co vs. Intermediate Appellate
Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as having only
prospective operation. Lex prospicit, non respicit. Equally settled, only laws
existing at the time of the execution of a contract are applicable thereto
and not later statutes, unless the latter are specifically intended to have
retroactive effect.7 A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract necessarily impairs the
contract itself8 and cannot be given retroactive effect without violating the
constitutional prohibition against impairment of contracts. 9
But, the foregoing principles do admit of certain exceptions. One involves
police power. A law enacted in the exercise of police power to regulate or
govern certain activities or transactions could be given retroactive effect
and may reasonably impair vested rights or contracts. Police power
legislation is applicable not only to future contracts, but equally to those
already in existence.10 Nonimpairment of contracts or vested rights clauses
will have to yield to the superior and legitimate exercise by the State of
police power to promote the health, morals, peace, education, good order,
safety, and general welfare of the people. 11 Moreover, statutes in exercise
of valid police power must be read into every contract. 12 Noteworthy,
in Sangalang vs. Intermediate Appellate Court, 13 we already upheld MMC
Ordinance No. 81-01 as a legitimate police power measure.
The trial court’s reliance on the Co vs. IAC,14 is misplaced. In Co, the
disputed area was agricultural and Ordinance No. 81-01 did not
specifically provide that "it shall have retroactive effect so as to discontinue
all rights previously acquired over lands located within the zone which are
neither residential nor light industrial in nature," 15 and stated with respect to
agricultural areas covered that "the zoning ordinance should be given
prospective operation only."16 The area in this case involves not agricultural
but urban residential land. Ordinance No. 81-01 retroactively affected the
operation of the zoning ordinance in Greenhills by reclassifying certain
locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94
SCRA 533 (1979), the contractual stipulations annotated on the Torrens
Title, on which Ortigas relies, must yield to the ordinance. When that
stretch of Ortigas Avenue from Roosevelt Street to Madison Street was
reclassified as a commercial zone by the Metropolitan Manila Commission
in March 1981, the restrictions in the contract of sale between Ortigas and
Hermoso, limiting all construction on the disputed lot to single-family
residential buildings, were deemed extinguished by the retroactive
operation of the zoning ordinance and could no longer be enforced. While
our legal system upholds the sanctity of contract so that a contract is
deemed law between the contracting parties, 17 nonetheless, stipulations in
a contract cannot contravene "law, morals, good customs, public order, or
public policy."18 Otherwise such stipulations would be deemed null and
void. Respondent court correctly found that the trial court committed in this
case a grave abuse of discretion amounting to want of or excess of
jurisdiction in refusing to treat Ordinance No. 81-01 as applicable to Civil
Case No. 64931. In resolving matters in litigation, judges are not only duty-
bound to ascertain the facts and the applicable laws, 19 they are also bound
by their oath of office to apply the applicable law. 20
As a secondary issue, petitioner contends that respondent Mathay III, as a
mere lessee of the lot in question, is a total stranger to the deed of sale
and is thus barred from questioning the conditions of said deed. Petitioner
points out that the owners of the lot voluntarily agreed to the restrictions on
the use of the lot and do not question the validity of these restrictions.
Petitioner argues that Mathay III as a lessee is merely an agent of the
owners, and could not override and rise above the status of his principals.
Petitioner submits that he could not have a higher interest than those of
the owners, the Hermosos, and thus had no locus standi to file CA-G.R.
SP No. 39193 to dissolve the injunctive writ issued by the RTC of Pasig
City.
For his part, private respondent argues that as the lessee who built the
commercial structure, it is he and he alone who stands to be either
benefited or injured by the results of the judgment in Civil Case No. 64931.
He avers he is the party with real interest in the subject matter of the
action, as it would be his business, not the Hermosos’, which would suffer
had not the respondent court dissolved the writ of preliminary injunction.
petitioner impleaded private respondent as a defendant. Thus petitioner
must recognize that where a plaintiff has impleaded a party as a
defendant, he cannot subsequently question the latter’s standing in court. 27
WHEREFORE, the instant petition is DENIED. The challenged decision of
the Court of Appeals dated March 25, 1996, as well as the assailed
resolution of August 13, 1996, in CA-G.R. SP No. 39193 is AFFIRMED.
Costs against petitioner.
SO ORDERED.

A real party in interest is defined as "the party who stands to be benefited

or injured by the judgment or the party entitled to the avails of the suit."
"Interest" within the meaning of the rule means material interest, an
interest in issue and to be affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental interest. 21 By
real interest is meant a present substantial interest, as distinguished from
a mere expectancy or a future, contingent, subordinate, or consequential
interest.22

Tested by the foregoing definition, private respondent in this case is clearly

a real party in interest.1âwphi1 It is not disputed that he is in possession of
the lot pursuant to a valid lease. He is a possessor in the concept of a
"holder of the thing" under Article 525 of the Civil Code. 23 He was
impleaded as a defendant in the amended complaint in Civil Case No.
64931. Further, what petitioner seeks to enjoin is the building by
respondent of a commercial structure on the lot. Clearly, it is private
respondent’s acts which are in issue, and his interest in said issue cannot
be a mere incidental interest. In its amended complaint, petitioner prayed
for, among others, judgment "ordering the demolition of all improvements
illegally built on the lot in question."24 These show that it is petitioner
Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only the
Hermosos, who will be adversely affected by the court’s decree.

Petitioner also cites the rule that a stranger to a contract has no rights or
obligations under it,25 and thus has no standing to challenge its
validity.26 But in seeking to enforce the stipulations in the deed of sale,
G.R. No. 135962             March 27, 2000
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner,
vs.
BEL-AIR VILLAGE ASSOCIATION, INC., respondent.
PUNO, J.:
Not infrequently, the government is tempted to take legal shortcuts solve
urgent problems of the people. But even when government is armed with
the best of intention, we cannot allow it to run roughshod over the rule of
law. Again, we let the hammer fall and fall hard on the illegal attempt of the
MMDA to open for public use a private road in a private subdivision. While
we hold that the general welfare should be promoted, we stress that it
should not be achieved at the expense of the rule of law.
Petitioner MMDA is a government agency tasked with the delivery of basic
services in Metro Manila. Respondent Bel-Air Village Association, Inc.
(BAVA) is a non-stock, non-profit corporation whose members are
homeowners in Bel-Air Village, a private subdivision in Makati City.
Respondent BAVA is the registered owner of Neptune Street, a road inside
Bel-Air Village.
On December 30, 1995, respondent received from petitioner, through its
Chairman, a notice dated December 22, 1995 requesting respondent to
open Neptune Street to public vehicular traffic starting January 2, 1996.
The notice reads:
SUBJECT: NOTICE of the Opening of Neptune Street to Traffic.
Dear President Lindo,
Please be informed that pursuant to the mandate of the MMDA
law or Republic Act No. 7924 which requires the Authority to
rationalize the use of roads and/or thoroughfares for the safe and
convenient movement of persons, Neptune Street shall be opened
to vehicular traffic effective January 2, 1996.
In view whereof, the undersigned requests you to voluntarily open
the points of entry and exit on said street.
Thank you for your cooperation and whatever assistance that may
be extended by your association to the MMDA personnel who will
be directing traffic in the area.
Finally, we are furnishing you with a copy of the handwritten
instruction of the President on the matter.
Very truly yours,
PROSPERO I. ORETA
Chairman 1
On the same day, respondent was apprised that the perimeter wall
separating the subdivision from the adjacent Kalayaan Avenue
would be demolished.
On January 2, 1996, respondent instituted against petitioner before the
Regional Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for
injunction. Respondent prayed for the issuance of a temporary restraining
order and preliminary injunction enjoining the opening of Neptune Street
and prohibiting the demolition of the perimeter wall. The trial court issued a
temporary restraining order the following day.
On January 23, 1996, after due hearing, the trial court denied issuance of
a preliminary injunction. 2 Respondent questioned the denial before the
Court of Appeals in CA-G.R. SP No. 39549. The appellate court conducted
an ocular inspection of Neptune Street 3 and on February 13, 1996, it
issued a writ of preliminary injunction enjoining the implementation of the
MMDA's proposed action. 4
On January 28, 1997, the appellate court rendered a Decision on the
merits of the case finding that the MMDA has no authority to order the
opening of Neptune Street, a private subdivision road and cause the
demolition of its perimeter walls. It held that the authority is lodged in the
City Council of Makati by ordinance. The decision disposed of as follows:
WHEREFORE, the Petition is GRANTED; the challenged Order
dated January 23, 1995, in Civil Case No. 96-001, is SET ASIDE
and the Writ of Preliminary Injunction issued on February 13, 1996
is hereby made permanent.
For want of sustainable substantiation, the Motion to Cite Roberto
L. del Rosario in contempt is denied. 5
No pronouncement as to costs.
SO ORDERED. 6
The Motion for Reconsideration of the decision was denied on September
28, 1998. Hence, this recourse.
Petitioner MMDA raises the following questions:
I a subdivision road open to public vehicular traffic, while its eastern end
HAS THE METROPOLITAN MANILA DEVELOPMENT
AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE
STREET TO PUBLIC TRAFFIC PURSUANT TO ITS
REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION
PRECEDENT BEFORE THE MMDA MAY ORDER THE
OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC.
ESTOPPED FROM DENYING OR ASSAILING THE AUTHORITY
OF THE MMDA TO OPEN THE SUBJECT STREET?
IV
WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE
THE SEVERAL MEETINGS HELD BETWEEN MMDA AND THE
AFFECTED EEL-AIR RESIDENTS AND BAVA OFFICERS?
V
HAS RESPONDENT COME TO COURT WITH UNCLEAN
HANDS?7
Neptune Street is owned by respondent BAVA. It is a private road inside
Bel-Air Village, a private residential subdivision in the heart of the financial
and commercial district of Makati City. It runs parallel to Kalayaan Avenue,
a national road open to the general public. Dividing the two (2) streets is a
concrete perimeter wall approximately fifteen (15) feet high. The western
end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street,
intersects Makati Avenue, a national road. Both ends of Neptune Street
are guarded by iron gates.
Petitioner MMDA claims that it has the authority to open Neptune Street to
public traffic because it is an agent of the state endowed with police power
in the delivery of basic services in Metro Manila. One of these basic
services is traffic management which involves the regulation of the use of
thoroughfares to insure the safety, convenience and welfare of the general
public. It is alleged that the police power of MMDA was affirmed by this
Court in the consolidated cases of Sangalang v. Intermediate Appellate
Court. 8 From the premise that it has police power, it is now urged that
there is no need for the City of Makati to enact an ordinance opening
Neptune street to the public. 9
Police power is an inherent attribute of sovereignty. It has been defined as
the power vested by the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same. 10 The power is plenary
and its scope is vast and pervasive, reaching and justifying measures for
public health, public safety, public morals, and the general welfare. 11
It bears stressing that police power is lodged primarily in the National
Legislature. 12 It cannot be exercised by any group or body of individuals
not possessing legislative power. 13 The National Legislature,
however, may delegate this power to the President and administrative
boards as well as the lawmaking bodies of municipal corporations or local
government units. 14 Once delegated, the agents can exercise only  such
legislative powers as are conferred on them by the national lawmaking
body. 15
A local government is a "political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs." 16 The Local
Government Code of 1991 defines a local government unit as a "body
politic and corporate." 17 — one endowed with powers as a political
subdivision of the National Government and as a corporate entity
representing the inhabitants of its territory. 18 Local government units are
the provinces, cities, municipalities and barangays. 19 They are also the
territorial and political subdivisions of the state. 20
Our Congress delegated police power to the local government units in the
Local Government Code of 1991. This delegation is found in Section 16 of
the same Code, known as the general welfare clause, viz:
Sec. 16. General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants. 21
Local government units exercise police power through their respective
legislative bodies. The legislative body of the provincial government is
the sangguniang panlalawigan, that of the city government is
the sangguniang panlungsod, that of the municipal government is
the sangguniang bayan, and that of the barangay is the sangguniang
barangay. The Local Government Code of 1991 empowers
the sangguniang panlalawigan, sangguniang panlungsod and
sangguniang bayan  to "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the [province, city or
municipality, as the case may be], 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 . . . " 22 The same
Code gives the sangguniang barangay the power to "enact ordinances as
may be necessary to discharge the responsibilities conferred upon it by
law or ordinance and to promote the general welfare of the inhabitants
thereon." 23
Metropolitan or Metro Manila is a body composed of several local
government units  — i.e., twelve (12) cities and five (5) municipalities,
namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay,
Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and
Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San
Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924  24 in
1995, Metropolitan Manila was declared as a  "special development and
administrative region" and the Administration of  "metro-wide" basic
services affecting the region placed under  "a development
authority" referred to as the MMDA. 25
"Metro-wide services" are those "services which have metro-wide impact
and transcend local political boundaries or entail huge expenditures such
that it would not be viable for said services to be provided by the individual
local government units comprising Metro Manila." 26 There are seven (7)
basic metro-wide services and the scope of these services cover the
following: (1) development planning; (2) transport and traffic management;
(3) solid waste disposal and management; (4) flood control and sewerage
management; (5) urban renewal, zoning and land use planning, and
shelter services; (6) health and sanitation, urban protection and pollution
control; and (7) public safety. The basic service of transport and traffic
management includes the following:
(b) Transport and traffic management which include the
formulation, coordination, and monitoring of
policies, standards, programs and projects to rationalize the
existing transport operations, infrastructure requirements, the use
of thoroughfares, and promotion of safe and convenient
movement of persons and goods;  provision for the mass transport
system and the institution of a system to regulate road
users; administration and implementation of all traffic enforcement
operations, traffic engineering services and traffic education
programs, including the institution of a single ticketing system in
Metropolitan Manila;" 27
In the delivery of the seven (7) basic services, the MMDA has the following
powers and functions:
Sec. 5. Functions and powers of the Metro Manila Development
Authority. — The MMDA shall:
(a) Formulate, coordinate and regulate the implementation of
medium and long-term plans and programs for the delivery of
metro-wide services, land use and physical development within
Metropolitan Manila, consistent with national development
objectives and priorities;
(b) Prepare, coordinate and regulate the implementation of
medium-term investment programs for metro-wide services which
shall indicate sources and uses of funds for priority programs and
projects, and which shall include the packaging of projects and
presentation to funding institutions;
(c) Undertake and manage on its own metro-wide programs and
projects for the delivery of specific services under its jurisdiction,
subject to the approval of the Council. For this purpose, MMDA
can create appropriate project management offices;
(d) Coordinate and monitor the implementation of such plans,
programs and projects in Metro Manila; identify bottlenecks and
adopt solutions to problems of implementation;
(e) The MMDA shall set the policies concerning traffic in Metro
Manila, and shall coordinate and regulate the implementation of all
programs and projects concerning traffic management, specifically
pertaining to enforcement, engineering and education. Upon
request, it shall be extended assistance and
cooperation, including but not limited to, assignment of
personnel, by all other government agencies and offices
concerned;
(f) Install and administer a single ticketing system, fix,  impose and
collect fines and penalties for all kinds of violations of traffic rules
and regulations, whether moving or non-moving in nature, and
confiscate and suspend or revoke drivers' licenses in the
enforcement of such traffic laws and regulations, the provisions of
RA 4136 and PD 1605 to the contrary notwithstanding. For this
purpose, the Authority shall impose all traffic laws and regulations
in Metro Manila, through its traffic operation center,  and may
deputize members of the PNP, traffic enforcers of local
government units, duly licensed security guards, or members of
non-governmental organizations to whom may be delegated
certain authority, subject to such conditions and requirements as
the Authority may impose; and
(g) Perform other related functions required to achieve the
objectives of the MMDA, including the undertaking of delivery of
basic services to the local government units, when deemed
 necessary subject to prior coordination with and consent of the
local government unit concerned.
The implementation of the MMDA's plans, programs and projects is
undertaken by the local government units, national government agencies,
accredited people's organizations, non-governmental organizations, and
the private sector as well as by the MMDA itself. For this purpose, the
MMDA has the power to enter into contracts, memoranda of agreement
and other arrangements with these bodies for the delivery of the required
services Metro Manila. 28
The governing board of the MMDA is the Metro Manila Council. The
Council is composed of the mayors of the component 12 cities and 5
municipalities, the president of the Metro Manila Vice-Mayors' League and
the president of the Metro Manila Councilors' League. 29 The Council is
headed by Chairman who is appointed by the President and vested with
the rank of cabinet member. As the policy-making body of the MMDA, the
Metro Manila Council approves metro-wide plans, programs and projects,
and issues the necessary rules and regulations for the implementation of
said plans; it approves the annual budget of the MMDA and promulgate
the rules and regulations for the delivery of basic services, collection of
service and regulatory fees, fines and penalties. These functions are
particularly enumerated as follows:
Sec. 6. Functions of the Metro Manila Council. —
(a) The Council shall be the policy-making body of the MMDA;
(b) It shall approve metro-wide plans, programs and projects and
issue rules and regulations deemed necessary by the MMDA to
carry out the purposes of this Act;
(c) It may increase the rate of allowances and  per diems of the
members of the Council to be effective during the term of the
succeeding Council. It shall fix the compensation of the officers
and personnel of the MMDA, and approve the annual budget
thereof for submission to the Department of Budget and
Management (DBM);
(d) It shall promulgate rules and regulations and set policies and
standards for metro-wide application governing the delivery of
basic services, prescribe and collect service and regulatory fees,
and impose and collect fines and penalties.
Clearly, the scope of the MMDA's function is limited to the delivery of the
seven (7) basic services. One of these is transport and traffic management
which includes the formulation and monitoring of policies, standards and
projects to rationalize the existing transport operations, infrastructure
requirements, the use of thoroughfares and promotion of the safe
movement of persons and goods. It also covers the mass transport system
and the institution of a system of road regulation, the administration of all
traffic enforcement operations, traffic engineering services and traffic
education programs, including the institution of a single ticketing system in
Metro Manila for traffic violations. Under the service, the MMDA is
expressly authorized "to set the policies concerning traffic" and "coordinate
and regulate the implementation of all traffic management programs." In
addition, the MMDA may "install and administer a single ticketing system,"
fix, impose and collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the following
acts: formulation, coordination, regulation, implementation, preparation,
management, monitoring, setting of policies, installation of a system and
administration. There is no syllable in R.A. No. 7924 that grants the
MMDA police power, let alone legislative power. Even the Metro Manila
Council has not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is no provision in
R.A. No. 7924 that empowers the MMDA or its Council to "enact
ordinances, approve resolutions appropriate funds for the general welfare"
of the inhabitants of Metro Manila. The MMDA is, as termed in the charter
itself, "development authority." 30 It is an agency created for the purpose of
laying down policies and coordinating with the various national government
agencies, people's organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of basic services in
the vast metropolitan area. All its functions are administrative in
nature and these are actually summed up in the charter itself, viz:
Sec. 2. Creation of the Metropolitan Manila Development
Authority. — . . . .
The MMDA shall perform  planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory
authority over the delivery of metro-wide services within Metro
Manila, without diminution of the autonomy of the local
government units concerning purely local matters. 31
Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate
Appellate Court  32 where we upheld a zoning ordinance issued by the
Metro Manila Commission (MMC), the predecessor of the MMDA, as an
exercise of police power. The first Sangalang decision was on the merits
of the petition, 33 while the second decision denied reconsideration of the
first case and in addition discussed the case of Yabut v. Court of
Appeals. 34
Sangalang v. IAC involved five (5) consolidated petitions filed by
respondent BAVA and three residents of Bel-Air Village against other
residents of the Village and the Ayala Corporation, formerly the Makati
Development Corporation, as the developer of the subdivision. The
petitioners sought to enforce certain restrictive easements in the deeds of
sale over their respective lots in the subdivision. These were the
prohibition on the setting up of commercial and advertising signs on the
lots, and the condition that the lots be used only for residential purposes.
Petitioners alleged that respondents, who were residents along Jupiter
Street of the subdivision, converted their residences into commercial
establishments in violation of the "deed restrictions," and that respondent
Ayala Corporation ushered in the full commercialization" of Jupiter Street
by tearing down the perimeter wall that separated the commercial from the
residential section of the village. 35
The petitions were dismissed based on Ordinance No. 81 of the Municipal
Council of Makati and Ordinance No. 81-01 of the Metro Manila
Commission (MMC). Municipal Ordinance No. 81 classified Bel-Air Village
as a Class A Residential Zone, with its boundary in the south extending to
the center line of Jupiter Street. The Municipal Ordinance was adopted by
the MMC under the Comprehensive Zoning Ordinance for the National
Capital Region and promulgated as MMC Ordinance No. 81-01. Bel-Air
Village was indicated therein as bounded by Jupiter Street and the block
adjacent thereto was classified as a High Intensity Commercial Zone. 36
We ruled that since both Ordinances recognized Jupiter Street as the
boundary between Bel-Air Village and the commercial district, Jupiter
Street was not for the exclusive benefit of Bel-Air residents. We also held
that the perimeter wall on said street was constructed not to separate the
residential from the commercial blocks but simply for security reasons,
hence, in tearing down said wall, Ayala Corporation did not violate the
"deed restrictions" in the deeds of sale.
We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a
legitimate exercise of police power. 37 The power of the MMC and the
Makati Municipal Council to enact zoning ordinances for the general
welfare prevailed over the "deed restrictions".
In the second Sangalang/Yabut decision, we held that the opening of
Jupiter Street was warranted by the demands of the common good in
terms of "traffic decongestion and public convenience." Jupiter was
opened by the Municipal Mayor to alleviate traffic congestion along the
public streets adjacent to the Village. 38 The same reason was given for the
opening to public vehicular traffic of Orbit Street, a road inside the same
village. The destruction of the gate in Orbit Street was also made under
the police power of the municipal government. The gate, like the perimeter
wall along Jupiter, was a public nuisance because it hindered and impaired
the use of property, hence, its summary abatement by the mayor was
proper and legal. 39
Contrary to petitioner's claim, the two Sangalang cases do not apply to the
case at bar.  Firstly, both involved zoning ordinances passed by the
municipal council of Makati and the MMC. In the instant case, the basis for
the proposed opening of Neptune Street is contained in the notice of
December 22, 1995 sent by petitioner to respondent BAVA, through its
president. The notice does not cite any ordinance or law, either by the
Sangguniang Panlungsod of Makati City or by the MMDA, as the legal
basis for the proposed opening of Neptune Street. Petitioner MMDA simply
relied on its authority under its charter "to rationalize the use of roads
and/or thoroughfares for the safe and convenient movement of persons."
Rationalizing the use of roads and thoroughfares is one of the acts that fall
within the scope of transport and traffic management. By no stretch of the
imagination, however, can this be interpreted as an express or implied
grant of ordinance-making power, much less police power.
Secondly, the MMDA is not the same entity as the MMC in Sangalang.
Although the MMC is the forerunner of the present MMDA, an examination
of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that
the latter possessed greater powers which were not bestowed on the
present MMDA.
Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.)
No. 824. It comprised the Greater Manila Area composed of the
contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the
thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pinas,
Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa and
Taguig in the province of Rizal, and Valenzuela in the province of
Bulacan. 40 Metropolitan Manila was created as a response to the finding
that the rapid growth of population and the increase of social and
economic requirements in these areas demand a call for simultaneous and
unified development; that the public services rendered by the respective
local governments could be administered more efficiently and
economically if integrated under a system of central planning; and this
coordination, "especially in the maintenance of peace and order and the
eradication of social and economic ills that fanned the flames of rebellion
and discontent [were] part of reform measures under Martial Law essential
to the safety and security of the State." 41
Metropolitan Manila was established as a "public corporation" with the
following powers:
Sec. 1. Creation of the Metropolitan Manila. — There is hereby
created a public corporation, to be known as the Metropolitan
Manila, vested with powers and attributes of a corporation
including the power to make contracts, sue and be
sued, acquire, purchase, expropriate, hold,  transfer and dispose
of property and such other powers as are necessary to carry out
its purposes. The Corporation shall be administered by a
Commission created under this Decree. 42
The administration of Metropolitan Manila was placed under the Metro
Manila Commission (MMC) vested with the following powers:
Sec. 4. Powers and Functions of the Commission. — The Commission
shall have the following powers and functions:
1. To act as a central government to establish and administer
programs and provide services common to the area;
2. To levy and collect taxes and special assessments, borrow and
expend money and issue bonds, revenue certificates, and other
obligations of indebtedness. Existing tax measures should,
however, continue to be operative until otherwise modified or
repealed by the Commission;
3. To charge and collect fees for the use of public service facilities;
4. To appropriate money for the operation of the metropolitan
government and review appropriations for the city and municipal
units within its jurisdiction with authority to disapprove the same if
found to be not in accordance with the established policies of the
Commission, without prejudice to any contractual obligation of the
local government units involved existing at the time of approval of
this Decree;
5. To review, amend, revise or repeal all ordinances, resolutions
and acts of cities and municipalities within Metropolitan Manila;
6. To enact or approve ordinances, resolutions and to fix penalties
for any violation thereof which shall not exceed a fine of
P10,000.00 or imprisonment of six years or both such fine and
imprisonment for a single offense;
7. To perform general administrative, executive and policy-making
functions;
8. To establish a fire control operation center, which shall direct
the fire services of the city and municipal governments in the
metropolitan area;
9. To establish a garbage disposal operation center, which shall
direct garbage collection and disposal in the metropolitan area;
10. To establish and operate a transport and traffic center, which
shall direct traffic activities;
11. To coordinate and monitor governmental and private activities
pertaining to essential services such as transportation, flood
control and drainage, water supply and sewerage, social, health
and environmental services, housing, park development, and
others;
12. To insure and monitor the undertaking of a comprehensive
social, economic and physical planning and development of the
area;
13. To study the feasibility of increasing barangay participation in
the affairs of their respective local governments and to propose to
the President of the Philippines definite programs and policies for
implementation;
14. To submit within thirty (30) days after the close of each fiscal
year an annual report to the President of the Philippines and to
submit a periodic report whenever deemed necessary; and
15. To perform such other tasks as may be assigned or directed
by the President of the Philippines.
The MMC was the "central government" of Metro Manila  for the purpose
of establishing and administering programs providing services common to
the area. As a "central government" it had the power to levy and collect
taxes and special assessments, the power to charge and collect fees; the
power to appropriate money for its operation, and at the same time, review
appropriations for the city and municipal units within its jurisdiction. It was
bestowed the power to enact or approve ordinances, resolutions and fix
penalties for violation of such ordinances and resolutions. It also had the
power to review, amend, revise or repeal all ordinances, resolutions and
acts of any of the four (4) cities and thirteen (13) municipalities comprising
Metro Manila.
P.D. No. 824 further provided:
Sec. 9. Until otherwise provided, the governments of the four cities
and thirteen municipalities in the Metropolitan Manila shall
continue to exist in their present form except as may be
inconsistent with this Decree. The members of the existing city
and municipal councils in Metropolitan Manila shall, upon
promulgation of this Decree, and until December 31, 1975,
become members of the Sangguniang Bayan which is hereby
created for every city and municipality of Metropolitan Manila.
In addition, the Sangguniang Bayan shall be composed of as
many barangay captains as may be determined and chosen by the
Commission, and such number of representatives from other
sectors of the society as may be appointed by the President upon
recommendation of the Commission.
x x x           x x x          x x x
The Sangguniang Bayan may recommend to the Commission
ordinances, resolutions or such measures as it may adopt;
Provided, that no such ordinance, resolution or measure shall
become effective, until after its approval by the Commission; and
Provided further, that the power to impose taxes and other levies,
the power to appropriate money and the power to pass ordinances
 or resolutions with penal sanctions shall be vested exclusively in
the Commission.
The creation of the MMC also carried with it the creation of the
Sangguniang Bayan. This was composed of the members of the
component city and municipal councils, barangay captains chosen by the
MMC and sectoral representatives appointed by the President.
The Sangguniang Bayan  had the power to recommend to the MMC the
adoption of ordinances, resolutions or measures. It was the MMC itself,
however, that possessed legislative powers. All ordinances, resolutions
and measures recommended by the Sangguniang Bayan were subject to
the MMC's approval. Moreover, the power to impose taxes and other
levies, the power to appropriate money, and the power to pass ordinances
or resolutions with penal sanctions were vested exclusively in the MMC.
Thus, Metropolitan Manila had a "central government," i.e., the MMC
which fully possessed legislative police powers. Whatever legislative
powers the component cities and municipalities had were all subject to
review and approval by the MMC.
After President Corazon Aquino assumed power, there was a clamor to
restore the autonomy of the local government units in Metro Manila.
Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided:
Sec. 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities and
barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as herein provided.
Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.
The Constitution, however, recognized the necessity of creating
metropolitan regions not only in the existing National Capital Region but
also in potential equivalents in the Visayas and Mindanao. 43 Section 11 of
the same Article X thus provided:
Sec. 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section
10 hereof. The component cities and municipalities shall retain
their basic autonomy and shall be entitled to their own local
executives and legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be created shall be limited
to basic services requiring coordination.
Constitution itself expressly provides that Congress may, by law, create
"special metropolitan political subdivisions" which shall be subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected; the jurisdiction of this subdivision shall be limited to basic
services requiring coordination; and the cities and municipalities
comprising this subdivision shall retain their basic services requiring
coordination; and the cities and municipalities comprising this subdivision
shall retain their basic autonomy and their own local executive and
legislative assemblies. 44 Pending enactment of this law, the Transitory
Provisions of the Constitution gave the President of the Philippines the
power to constitute the Metropolitan Authority, viz:
Sec. 8. Until otherwise provided by Congress, the President may
constitute the Metropolitan Authority to be composed of the heads
of all local government units comprising the Metropolitan Manila
area. 45
In 1990, President Aquino issued Executive Order (E. O.) No. 392 and
constituted the Metropolitan Manila Authority (MMA). The powers and
functions of the MMC were devolved to the MMA. 46 It ought to be stressed,
however, that not all powers and functions of the MMC were passed to the
MMA. The MMA's power was limited to the "delivery of basic urban
services requiring coordination in Metropolitan Manila." 47 The MMA's
governing body, the Metropolitan Manila Council, although composed of
the mayors of the component cities and municipalities, was merely given
power of: (1) formulation of policies on the delivery of basic services
requiring coordination and consolidation; and (2) promulgation resolutions
and other issuances, approval of a code of basic services and the exercise
of its rule-making power. 48
Under the 1987 Constitution, the local government units became primarily
responsible for the governance of their respective political subdivisions.
The MMA's jurisdiction was limited  to addressing common problems
involving basic services that transcended local boundaries. It did not have
legislative power. Its power was merely to provide the local government
units technical assistance in the preparation of local development plans.
Any semblance of legislative power it had was confined to a "review [of]
legislation proposed by the local legislative assemblies to ensure
consistency among local governments and with the comprehensive
development plan of Metro Manila," and to "advise the local governments
accordingly." 49
When R.A. No. 7924 took effect, Metropolitan Manila became a "special
development and administrative region" and the MMDA a "special
development authority" whose functions were "without prejudice to the
autonomy of the affected local government units." The character of the
MMDA was clearly defined in the legislative debates enacting its charter.
R.A. No. 7924 originated as House Bill No. 14170/11116 and was
introduced by several legislators led by Dante Tinga, Roilo Golez and
Feliciano Belmonte. It was presented to the House of Representatives by
the Committee on Local Governments chaired by Congressman Ciriaco R.
Alfelor. The bill was a product of Committee consultations with the local
government units in the National Capital Region (NCR), with former
Chairmen of the MMC and MMA, 50 and career officials of said agencies.
When the bill was first taken up by the Committee on Local Governments,
the following debate took place:
THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This
has been debated a long time ago, you know. It's a special . . . we
can create a special metropolitan political subdivision.
Actually, there are only six (6) political subdivisions provided for in
the Constitution: barangay, municipality, city, province, and we
have the Autonomous Region of Mindanao and we have the
Cordillera. So we have 6. Now. . . . .
HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of
the Autonomous Region, that is also specifically mandated by the
Constitution.
THE CHAIRMAN: That's correct. But it is considered to be a
political subdivision. What is the meaning of a political
subdivision? Meaning to say, that it has its own government, it has
its own political personality, it has the power to tax, and all
governmental powers: police power and everything. All right.
Authority is different; because it does not have its own
government. It is only a council, it is an organization of political
subdivision, powers, "no, which is not imbued with any political
power.
If you go over Section 6, where the powers and functions of the
Metro Manila Development Authority, it is purely coordinative. And
it provides here that the council is policy-making. All right.
Under the Constitution is a Metropolitan Authority with coordinative
power. Meaning to say, it coordinates all of the different basic
services which have to be delivered to the constituency. All right.
There is now a problem. Each local government unit is given its
respective . . . as a political subdivision. Kalookan has its powers,
as provided for and protected and guaranteed by the Constitution.
All right, the exercise. However, in the exercise of that power, it
might be deleterious and disadvantageous to other local
government units. So, we are forming an authority where all of
these will be members and then set up a policy in order that the
basic services can be effectively coordinated. All right.
Of course, we cannot deny that the MMDA has to survive. We
have to provide some funds, resources. But it does not possess
any political power. We do not elect the Governor. We do not have
the power to tax. As a matter of fact, I was trying to intimate to the
author that it must have the power to sue and be sued because it
coordinates. All right. It coordinates practically all these basic
services so that the flow and the distribution of the basic services
 will be continuous. Like traffic, we cannot deny that. It's before our
eyes. Sewerage, flood control, water system, peace and order, we
cannot deny these. It's right on our face. We have to look for a
solution. What would be the right solution? All right, we envision
that there should be a coordinating agency and it is called an
authority. All right, if you do not want to call it an authority, it's
alright. We may call it a council or maybe a management agency.
x x x           x x x          x x x 51
Clearly, the MMDA is not a political unit of government. The power
delegated to the MMDA is that given to the Metro Manila Council to
promulgate administrative rules and regulations in the implementation of
the MMDA's functions. There is no grant of authority to enact ordinances
and regulations for the general welfare of the inhabitants of the metropolis.
This was explicitly stated in the last Committee deliberations prior to the
bill's presentation to Congress. Thus:
THE CHAIRMAN: Yeah, but we have to go over the suggested
revision. I think this was already approved before, but it was
reconsidered in view of the proposals, set-up, to make the MMDA
stronger. Okay, so if there is no objection to paragraph "f". . . And
then next is paragraph "b," under Section 6. "It shall approve
metro-wide plans, programs and projects and issue ordinances or
resolutions deemed necessary by the MMDA to carry out the
purposes of this Act." Do you have the powers? Does the
MMDA... because that takes the form of a local government unit, a
political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor.
When we say that it has the policies, it's very clear that those
policies must be followed. Otherwise, what's the use of
empowering it to come out with policies. Now, the policies may be
in the form of a resolution or it may be in the form of a ordinance.
The term "ordinance" in this case really gives it more teeth, your
honor. Otherwise, we are going to see a situation where you have
the power to adopt the policy but you cannot really make it stick as
in the case now, and I think here is Chairman Bunye. I think he will
agree that that is the case now. You've got the power to set a
policy, the body wants to follow your policy, then we say let's call it
an ordinance and see if they will not follow it.
THE CHAIRMAN: That's very nice. I like that. However, there is a
constitutional impediment.1âwphi1 You are making this MMDA a
political subdivision. The creation of the MMDA would be subject
to a plebiscite. That is what I'm trying to avoid. I've been trying to
avoid this kind of predicament. Under the Constitution it states: if it
is a political subdivision, once it is created it has to be subject to a
plebiscite. I'm trying to make this as administrative. That's why we
place the Chairman as a cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what you are
saying there is . . . . .
THE CHAIRMAN: In setting up ordinances, it is a political
exercise, Believe me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into
issuances of rules and regulations. That would be . . . it shall also
be enforced.
HON. BELMONTE: Okay, I will . . . .
HON. LOPEZ: And you can also say that violation of such rule,
you impose a sanction. But you know, ordinance has a different
legal connotation.
HON. BELMONTE: All right, I defer to that opinion, your Honor.
THE CHAIRMAN: So instead of ordinances, say rules and
regulations.
HON. BELMONTE: Or resolutions. Actually, they are actually
considering resolutions now.
 THE CHAIRMAN: Rules and resolutions. opening by petitioner MMDA is illegal and the respondent Court of Appeals
did not err in so ruling. We desist from ruling on the other issues as they
HON. BELMONTE: Rules, regulations and resolutions. 52 are unnecessary.

The draft of H. B. No. 14170/11116 was presented by the Committee to
the House of Representatives. The explanatory note to the bill stated that
the proposed MMDA is a "development authority" which is a "national
agency, not a political government unit." 53 The explanatory note was
adopted as the sponsorship speech of the Committee on Local
Governments. No interpellations or debates were made on the floor and no
amendments introduced. The bill was approved on second reading on the
same day it was presented. 54
When the bill was forwarded to the Senate, several amendments were
made.1âwphi1 These amendments, however, did not affect the nature of
the MMDA as originally conceived in the House of Representatives. 55
We stress that this decision does not make light of the MMDA's noble
efforts to solve the chaotic traffic condition in Metro Manila. Everyday,
traffic jams and traffic bottlenecks plague the metropolis. Even our once
sprawling boulevards and avenues are now crammed with cars while city
streets are clogged with motorists and pedestrians. Traffic has become a
social malaise affecting our people's productivity and the efficient delivery
of goods and services in the country. The MMDA was created to put some
order in the metropolitan transportation system but unfortunately the
powers granted by its charter are limited. Its good intentions cannot justify
the opening for public use of a private street in a private subdivision
without any legal warrant. The promotion of the general welfare is not
antithetical to the preservation of the rule of law.1âwphi1.nêt

IN VIEW WHEREOF, the petition is denied. The Decision and Resolution

It is thus beyond doubt that the MMDA is not a local government unit or a
of the Court of Appeals in CA-G.R. SP No. 39549 are affirmed.
public corporation endowed with legislative power. It is not even a "special
metropolitan political subdivision" as contemplated in Section 11, Article X
of the Constitution. The creation of a "special metropolitan political SO ORDERED.
subdivision" requires the approval by a majority of the votes cast in a
plebiscite in the political units directly affected." 56 R. A. No. 7924 was not
submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman
of the MMDA is not an official elected by the people, but appointed by the
President with the rank and privileges of a cabinet member. In fact, part of
his function is to perform such other duties as may be assigned to him by
the President, 57 whereas in local government units, the President merely
exercises supervisory authority. This emphasizes the administrative
character of the MMDA.

Clearly then, the MMC under P.D. No. 824 is not the same entity as the
MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to
enact ordinances for the welfare of the community. It is the local
government units, acting through their respective legislative councils, that
possess legislative power and police power. In the case at bar, the
Sangguniang Panlungsod of Makati City did not pass any ordinance or
resolution ordering the opening of Neptune Street, hence, its proposed
G.R. No. 118127             April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of
Manila, HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of
the City of Manila and Presiding Officer of the City Council of Manila,
HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON.
AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO
DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G.
VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C.
PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M.
ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG,
HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G.
GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P.
MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA,
HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON.
JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q.
BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C.
SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M.
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA,
HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their
capacity as councilors of the City of Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila
and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what
is immoral is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if
performed by oneself, is less immoral than if performed by
someone else, who would be well-intentioned in his dishonesty.
J. Christopher  Gerald
Bonaparte in Egypt, Ch. I
The 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 Petition1 under Rule 45 (then Rule 42) of the
Revised Rules on Civil Procedure seeking the reversal of the Decision2 in
Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila,
Branch 18 (lower court),3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels
and lodging houses.5 It built and opened Victoria Court in Malate which
was licensed as a motel although duly accredited with the Department of
Tourism as a hotel.6 On 28 June 1993, MTDC filed a Petition for
Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order7 (RTC Petition) with the lower court
impleading as defendants, herein petitioners City of Manila, Hon. Alfredo
S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council).  MTDC prayed that the Ordinance, insofar
as it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner
City Mayor on 30 March 1993, the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS
OF AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER
PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the
contrary notwithstanding, no person, partnership, corporation
or entity shall, in the Ermita-Malate area bounded by Teodoro
M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito
Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and
engage in, any business providing certain forms of
amusement, entertainment, services and facilities where
women are used as tools in entertainment and which tend to
disturb the community, annoy the inhabitants, and adversely
affect the social and moral welfare of the community, such as
but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting
in behalf of the said officials are prohibited from issuing
permits, temporary or otherwise, or from granting licenses
and accepting payments for the operation of business
enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in,
or devoted to, the businesses enumerated in Section 1 hereof are
hereby given three (3) months from the date of approval of
this ordinance within which to wind up business operations
or to transfer to any place outside of the Ermita-Malate area
or convert said businesses to other kinds of business
allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
 5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-
defined activities for wholesome family entertainment that
cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion
pictures but also of cultural shows, stage and theatrical
plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium
intensity districts as provided for in the zoning ordinances
for Metropolitan Manila, except new warehouse or open-
storage depot, dock or yard, motor repair shop, gasoline
service station, light industry with any machinery, or
funeral establishments.
SEC. 4. Any person violating any provisions of this
ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND
(P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the
General Manager, or person-in-charge of operation shall be liable
thereof; PROVIDED FURTHER, that in case of subsequent
violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today,
March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis
supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments, motels
and inns such as MTDC's Victoria Court considering that these were not
establishments for "amusement" or "entertainment" and they were not
"services or facilities for entertainment," nor did they use women as "tools
for entertainment," and neither did they "disturb the community," "annoy
the inhabitants" or "adversely affect the social and moral welfare of the
community."11
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council has no
power to prohibit the operation of motels as Section 458 (a) 4 (iv) 12 of the
Local Government Code of 1991 (the Code) grants to the City Council only
the power to regulate the establishment, operation and maintenance of
hotels, motels, inns, pension houses, lodging houses and other similar
establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-
Malate area as a commercial zone with certain restrictions; (3)
The Ordinance does not constitute a proper exercise of police power as
the compulsory closure of the motel business has no reasonable relation
to the legitimate municipal interests sought to be protected; (4)
The Ordinance constitutes an ex post facto law by punishing the operation
of Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's property rights; (b) the
City Council has no power to find as a fact that a particular thing is a
nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) The Ordinance constitutes a denial of equal protection under the law as
no reasonable basis exists for prohibiting the operation of motels and inns,
but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-Malate area
but not outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to "prohibit certain forms of
entertainment in order to protect the social and moral welfare of the
community" as provided for in Section 458 (a) 4 (vii) of the Local
Government Code,16 which  reads,  thus:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code,
and shall:
....
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
....
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement facilities,
including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or
amusement; regulate such other events or activities for
amusement or entertainment, particularly those which
tend to disturb the community or annoy the inhabitants, or
require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in
order to protect the social and moral welfare of the
community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to
control, to govern and to restrain places of exhibition and amusement. 18
Petitioners likewise asserted that the Ordinance was enacted by the City
Council of Manila to protect the social and moral welfare of the community
in conjunction with its police power as found in Article III, Section 18(kk) of
Republic Act No. 409,19 otherwise known as the Revised Charter of the
City of Manila (Revised Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
.  .  .
Section 18. Legislative powers. – The Municipal Board shall have
the following legislative powers:
.  .  .
(kk) To enact all ordinances it may deem necessary and proper for
the sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants,
and such others as may be necessary to carry into effect and
discharge the powers and duties conferred by this chapter; and to
fix penalties for the violation of ordinances which shall not exceed
two hundred pesos fine or six months' imprisonment, or both such
fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of
validity; hence, private respondent had the burden to prove its illegality or
unconstitutionality.21
Petitioners also maintained that there was no inconsistency between P.D.
499 and the Ordinance as the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to remain a commercial
zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed
as ex post facto as it was prospective in operation. 23 The Ordinance also
did not infringe the equal protection clause and cannot be denounced as
class legislation as there existed substantial and real differences between
the Ermita-Malate area and other places in the City of Manila. 24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge
Laguio) issued an ex-parte temporary restraining order against the
enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid
gesture, he granted the writ of preliminary injunction prayed for by
MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing
the Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance
No. 778[3], Series of 1993, of the City of Manila null and void, and
making permanent the writ of preliminary injunction that had been
issued by this Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December
1994, manifesting that they are elevating the case to this Court under then
Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It erred
in concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in
holding that the questioned Ordinance contravenes P.D. 49931 which
allows operators of all kinds of commercial establishments, except those
specified therein; and (3) It erred in declaring the Ordinance void and
unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the
assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and
plenary power of the State and the general welfare clause exercised by
local government units provided for in Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the
Code.34 They allege that the Ordinance is a valid exercise of police power;
it does not contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains
that the Ordinance is ultra vires and that it is void for being repugnant to
the general law. It reiterates that the questioned Ordinance is not a valid
exercise of police power; that it is violative of due process, confiscatory
and amounts to an arbitrary interference with its lawful business; that it is
violative of the equal protection clause; and that it confers on petitioner
City Mayor or any officer unregulated discretion in the execution of
the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and
tenderness for the Ermita-Malate area being its home for several decades.
A long-time resident, the Court witnessed the area's many turn of events. It
relished its glory days and endured its days of infamy. Much as the Court
harks back to the resplendent era of the Old Manila and yearns to restore
its lost grandeur, it believes that the Ordinance is not the fitting means to
that end.  The Court is of the opinion, and so holds, that the lower court did
not err in declaring the Ordinance, as it did, ultra vires and therefore null
and void.
The Ordinance is so replete with constitutional infirmities that almost every
sentence thereof violates a constitutional provision. The prohibitions and
sanctions therein transgress the cardinal rights of persons enshrined by
the Constitution. The Court is called upon to shelter these rights from
attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and must be
passed according to the procedure prescribed by law, it  must also
conform to the following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or oppressive; (3)
must not be partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws.38 The Ordinance must satisfy
two requirements: it must pass muster under the test of constitutionality
and the test of consistency with the prevailing laws. That ordinances
should be constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not violate existing
law gives stress to the precept that local government units are able to
legislate only by virtue of their derivative legislative power, a delegation of
legislative power from the national legislature.  The delegate cannot be
superior to the principal or exercise powers higher than those of the
latter.39
This relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution
strengthening the policy of local autonomy. The national legislature is still
the principal of the local government units, which cannot defy its will or
modify or violate it.40
The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress.
Local government units, as agencies of the State, are endowed with police
power in order to effectively accomplish and carry out the declared objects
of their creation.41 This delegated police power is found in Section 16 of the
Code, known as the general welfare clause, viz:
SECTION 16. General Welfare.Every local government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. Within
their respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city
council. The Code empowers the legislative bodies to "enact ordinances,
approve resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the
Code and in the proper exercise of the corporate powers of the
province/city/ municipality provided under the Code. 42 The inquiry in this
Petition is concerned with the validity of the exercise of such delegated
power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the public good. 43 In
the case at bar, the enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings
of democracy.44
SEC. 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before the law
of women and men.45
 SEC. 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the
equal protection of laws.46
Sec. 9. Private property shall not be taken for public use without
just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o
person shall be deprived of life, liberty or property without due process of
law. . . ."48
There is no controlling and precise definition of due process.  It furnishes
though a standard to which governmental action should conform in order
that deprivation of life, liberty or property, in each appropriate case, be
valid.  This standard is aptly described as a responsiveness to the
supremacy of reason, obedience to the dictates of justice, 49 and as such it
is a limitation upon the exercise of the police power.50
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the government, unrestrained
by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure,
forfeiture, and destruction without a trial and conviction by the ordinary
mode of judicial procedure; and to secure to all persons equal and
impartial justice and the benefit of the general law. 51
The guaranty serves as a protection against arbitrary regulation, and
private corporations and partnerships are "persons" within the scope of the
guaranty insofar as their property is concerned.52
This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and "substantive due
process."
Procedural due process, as the phrase implies, refers to the procedures
that the government must follow before it deprives a person of life, liberty,
or property. Classic procedural due process issues are concerned with
what kind of notice and what form of hearing the government must provide
when it takes a particular action.53
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a person's life,
liberty, or property. In other words, substantive due process looks to
whether there is a sufficient justification for the government's action. 54 Case
law in the United States (U.S.) tells us that whether there is such a
justification depends very much on the level of scrutiny used. 55 For
example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a
legitimate government purpose.  But if it is an area where strict scrutiny is
used, such as for protecting fundamental rights, then the government will
meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose.56
The police power granted to local government units must always be
exercised with utmost observance of the rights of the people to due
process and equal protection of the law. Such power cannot be exercised
whimsically, arbitrarily or despotically57 as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard
due to the prescription of the fundamental law, particularly those forming
part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. 58 Due process
requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the interests of the
public generally, as distinguished from those of a particular class, require
an interference with private rights, but the means adopted must be
reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals.60 It must be evident that no other
alternative for the accomplishment of the purpose less intrusive of private
rights can work.  A reasonable relation must exist between the purposes of
the police measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and
those pertaining to private property will not be permitted to be arbitrarily
invaded.61
Lacking a concurrence of these two requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights 62 a violation of the
due process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate area
which are allegedly operated under the deceptive veneer of legitimate,
licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses,
cocktail lounges, hotels and motels.  Petitioners insist that even the Court
in the case of Ermita-Malate Hotel and Motel Operators Association, Inc.
v. City Mayor of Manila63 had already taken judicial notice of the "alarming
increase in the rate of prostitution, adultery and fornication in Manila
traceable in great part to existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and thus become the
ideal haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community. Granting for
the sake of argument that the objectives of the Ordinance are within the
scope of the City Council's police powers, the means employed for the
accomplishment thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to
make all reasonable regulations looking to the promotion of the moral and
social values of the community. However, the worthy aim of fostering
public morals and the eradication of the community's social ills can be
achieved through means less restrictive of private rights; it can be attained
by reasonable restrictions rather than by an absolute prohibition. The
closing down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable relation to
the accomplishment of its purposes. Otherwise stated, the prohibition of
the enumerated establishments will not per se protect and promote the
social and moral welfare of the community; it will not in itself eradicate the
alluded social ills of prostitution, adultery, fornication nor will it arrest the
spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of
ill-repute and establishments of the like which the City Council may lawfully
prohibit,65 it is baseless and insupportable to bring within that classification
sauna parlors, massage parlors, karaoke bars, night clubs, day clubs,
super clubs, discotheques, cabarets, dance halls, motels and inns. This is
not warranted under the accepted definitions of these terms. The
enumerated establishments are lawful pursuits which are not per
se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as
venues to further the illegal prostitution is of no moment. We lay stress on
the acrid truth that sexual immorality, being a human frailty, may take
place in the most innocent of places that it may even take place in the
substitute establishments enumerated under Section 3 of the Ordinance. 
If the flawed logic of the Ordinance were to be followed, in the remote
instance that an immoral sexual act transpires in a church cloister or a
court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned.  Every house,
building, park, curb, street or even vehicles for that matter will not be
exempt from the prohibition. Simply because there are no "pure" places
where there are impure men. Indeed, even the Scripture and the Tradition
of Christians churches continually recall the presence and universality of
sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by
its nature cannot be said to be injurious to the health or comfort of the
community and which in itself is amoral, but the deplorable human activity
that may occur within its premises. While a motel may be used as a venue
for immoral sexual activity, it cannot for that reason alone be punished. It
cannot be classified as a house of ill-repute or as a nuisance per se on a
mere likelihood or a naked assumption. If that were so and if that were
allowed, then the Ermita-Malate area would not only be purged of its
supposed social ills, it would be extinguished of its soul as well as every
human activity, reprehensible or not, in its every nook and cranny would be
laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core
issues of morality. Try as the Ordinance may to shape morality, it should
not foster the illusion that it can make a moral man out of it because
immorality is not a thing, a building or establishment; it is in the hearts of
men. The City Council instead should regulate human conduct that occurs
inside the establishments, but not to the detriment of liberty and privacy
which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators
of "wholesome," "innocent" establishments. In the instant case, there is a
clear invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and
property in terms of the investments made and the salaries to be paid to
those therein employed. If the City of Manila so desires to put an end to
prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the establishments for
any violation of the conditions of their licenses or permits; it may exercise
its authority to suspend or revoke their licenses for these violations; 67 and it
may even impose increased license fees. In other words, there are other
means to reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs,
discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate
area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of
the Ordinance within which "to wind up business operations or to transfer
to any place outside the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area." Further, it states in
Section 4 that in cases of subsequent violations of the provisions of the
Ordinance, the "premises of the erring establishment shall be closed and
padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes
on the constitutional guarantees of a person's fundamental right to liberty
and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm
to include "the right to exist and the right to be free from arbitrary restraint
or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common
welfare."68 In accordance with this case, the rights of the citizen to be free
to use his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any avocation are
all deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents, 70 sought
to clarify the meaning of "liberty."  It said:
While the Court has not attempted to define with exactness the
liberty. . . guaranteed [by the Fifth and Fourteenth Amendments],
the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized…as essential to the orderly
pursuit of happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of "liberty" must
be broad indeed.
In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. In
explaining the respect the Constitution demands for the autonomy of the
person in making these choices, the U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the
Fourteenth Amendment. At the heart of liberty is the right to define
one's own concept of existence, of meaning, of universe, and of
the mystery of human life. Beliefs about these matters could not
define the attributes of personhood where they formed under
compulsion of the State.71
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinance may seek autonomy for
these purposes.
Motel patrons who are single and unmarried may invoke this right to
autonomy to consummate their bonds in intimate sexual conduct within the
motel's premisesbe it stressed that their consensual sexual behavior
does not contravene any fundamental state policy as contained in the
Constitution.72   Adults have a right to choose to forge such relationships
with others in the confines of their own private lives and still retain their
dignity as free persons. The liberty protected by the Constitution allows
persons the right to make this choice. 73 Their right to liberty under the due
process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law.
Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is the beginning of all
freedomit is the most comprehensive of rights and the right most valued
by civilized men.74
The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v.
Mutuc,75 borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity.
His separateness, his isolation, are indefeasible; indeed, they are
so fundamental that they are the basis on which his civic
obligations are built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to himself.
If he surrenders his will to others, he surrenders himself. If his will
is set by the will of others, he ceases to be a master of himself. I
cannot believe that a man no longer a master of himself is in any
real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of
its identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions
into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil
liberties but the Court chooses to exercise restraint and restrict itself to the
issues presented when it should. The previous pronouncements of the
Court are not to be interpreted as a license for adults to engage in criminal
conduct. The reprehensibility of such conduct is not diminished. The Court
only reaffirms and guarantees their right to make this choice. Should they
be prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is their
choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its
property.77 The Ordinance in Section 1 thereof forbids the running of the
enumerated businesses in the Ermita-Malate area and in Section 3
instructs its owners/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed businesses. An
ordinance which permanently restricts the use of property that it can not be
used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just compensation. 78 It is
intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private
property shall not be taken for public use without just compensation." The
provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government
to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others.
In part too, it is about loss spreading. If the government takes away a
person's property to benefit society, then society should pay. The principal
purpose of the guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.79
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or physically
occupies property. A "regulatory" taking occurs when the government's
regulation leaves no reasonable economically viable use of the property. 80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a
taking also could be found if government regulation of the use of property
went "too far."  When regulation reaches a certain magnitude, in most if
not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking. 82
No formula or rule can be devised to answer the questions of what is too
far and when regulation becomes a taking. In Mahon, Justice Holmes
recognized that it was "a question of degree and therefore cannot be
disposed of by general propositions." On many other occasions as well,
the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The
Court asks whether justice and fairness require that the economic loss
caused by public action must be compensated by the government and
thus borne by the public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public action. 83
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable economically
viable use of property in a manner that interferes with reasonable
expectations for use.84 A regulation that permanently denies all
economically beneficial or productive use of land is, from the owner's point
of view, equivalent to a "taking" unless principles of nuisance or property
law that existed when the owner acquired the land make the use
prohibitable.85 When the owner of real property has been called upon to
sacrifice all economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a taking. 86
A regulation which denies all economically beneficial or productive use of
land will require compensation under the takings clause. Where a
regulation places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have occurred,
depending on a complex of factors including the regulation's economic
effect on the landowner, the extent to which the regulation interferes with
reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the
takings clause which is to prevent the government from forcing some
people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public purpose or
if it has an unduly harsh impact on the distinct investment-backed
expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited"
establishments three (3) months from its approval within which to "wind up
business operations or to transfer to any place outside of the Ermita-
Malate area or convert said businesses to other kinds of business
allowable within the area." The directive to "wind up business operations"
amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory.  Unless the owner converts his
establishment to accommodate an "allowed" business, the structure which
housed the previous business will be left empty and gathering dust.
Suppose he transfers it to another area, he will likewise leave the entire
establishment idle. Consideration must be given to the substantial amount
of money invested to build the edifices which the owner reasonably
expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in
a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the
Ermita-Malate area or to convert into allowed businessesare
confiscatory as well. The penalty of permanent closure in cases of
subsequent violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and
build another one outside the Ermita-Malate area.  In every sense, it
qualifies as a taking without just compensation with an additional burden
imposed on the owner to build another establishment solely from his
coffers. The proffered solution does not put an end to the "problem," it
merely relocates it. Not only is this impractical, it is unreasonable, onerous
and oppressive. The conversion into allowed enterprises is just as
ridiculous. How may the respondent convert a motel into a restaurant or a
coffee shop, art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due process of law,
nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or
transfer his business, otherwise it will be closed permanently after a
subsequent violation should be borne by the public as this end benefits
them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of police power,
which limits a "wholesome" property to a use which can not reasonably be
made of it constitutes the taking of such property without just
compensation.  Private property which is not noxious nor intended for
noxious purposes may not, by zoning, be destroyed without compensation.
Such principle finds no support in the principles of justice as we know
them.  The police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to cover this
particular taking.
Distinction should be made between destruction from necessity and
eminent domain.  It needs restating that the property taken in the exercise
of police power is destroyed because it is noxious or intended for a
noxious purpose while the property taken under the power of eminent
domain is intended for a public use or purpose and is therefore
"wholesome."89 If it be of public benefit that a "wholesome" property remain
unused or relegated to a particular purpose, then certainly the public
should bear the cost of reasonable compensation for the condemnation of
private property for public use.90
Further, the Ordinance fails to set up any standard to guide or limit the
petitioners' actions. It in no way controls or guides the discretion vested in
them. It provides no definition of the establishments covered by it and it
fails to set forth the conditions when the establishments come within its
ambit of prohibition. The Ordinance confers upon the mayor arbitrary and
unrestricted power to close down establishments. Ordinances such as this,
which make possible abuses in its execution, depending upon no
conditions or qualifications whatsoever other than the unregulated arbitrary
will of the city authorities as the touchstone by which its validity is to be
tested, are unreasonable and invalid. The Ordinance should have
established a rule by which its impartial enforcement could be secured. 91
Ordinances placing restrictions upon the lawful use of property must, in
order to be valid and constitutional, specify the rules and conditions to be
observed and conduct to avoid; and must not admit of the exercise, or of
an opportunity for the exercise, of unbridled discretion by the law enforcers
in carrying out its provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94     
the U.S. Supreme Court struck down an ordinance that had made it illegal
for "three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by." The ordinance
was nullified as it imposed no standard at all "because one may never
know in advance what 'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which
establishments "tend to disturb the community," "annoy the inhabitants,"
and "adversely affect the social and moral welfare of the community." The
cited case supports the nullification of the Ordinance for lack of
comprehensible standards to guide the law enforcers in carrying out its
provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business.  This is a sweeping exercise of police power that is a result of a
lack of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable
regulation which is a far cry from the ill-considered Ordinance enacted by
the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive
ordinance regulating "sexually oriented businesses," which are defined to
include adult arcades, bookstores, video stores, cabarets, motels, and
theaters as well as escort agencies, nude model studio and sexual
encounter centers. Among other things, the ordinance required that such
businesses be licensed. A group of motel owners were among the three
groups of businesses that filed separate suits challenging the ordinance.
The motel owners asserted that the city violated the due process clause by
failing to produce adequate support for its supposition that renting room for
fewer than ten (10) hours resulted in increased crime and other secondary
effects. They likewise argued than the ten (10)-hour limitation on the rental
of motel rooms placed an unconstitutional burden on the right to freedom
of association. Anent the first contention, the U.S. Supreme Court held that
the reasonableness of the legislative judgment combined with a study
which the city considered, was adequate to support the city's
determination that motels permitting room rentals for fewer than ten (10 )
hours should be included within the licensing scheme. As regards the
second point, the Court held that limiting motel room rentals to ten (10)
hours will have no discernible effect on personal bonds as those bonds
that are formed from the use of a motel room for fewer than ten (10) hours
are not those that have played a critical role in the culture and traditions of
the nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the
targeted businesses. It imposed reasonable restrictions; hence, its validity
was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila,96 it needs pointing out, is also different from this case
in that what was involved therein was a measure which regulated the
mode in which motels may conduct business in order to put an end to
practices which could encourage vice and immorality. Necessarily, there
was no valid objection on due process or equal protection grounds as the
ordinance did not prohibit motels. The Ordinance in this case however is
not a regulatory measure but is an exercise of an assumed power to
prohibit.97
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the
guise of exercising police power, be upheld as valid.
B.  The Ordinance violates Equa l
Protection Clause
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated differently,
so as to give undue favor to some and unjustly discriminate against
others.98 The guarantee means that no person or class of persons shall be
denied the same protection of laws which is enjoyed by other persons or
other classes in like circumstances.99 The "equal protection of the laws is a
pledge of the protection of equal laws." 100 It limits governmental
discrimination. The equal protection clause extends to artificial persons but
only insofar as their property is concerned.101
The Court has explained the scope of the equal protection clause in this
wise:
… What does it signify? To quote from J.M. Tuason & Co. v. Land
Tenure Administration: "The ideal situation is for the law's benefits
to be available to all, that none be placed outside the sphere of its
coverage. Only thus could chance and favor be excluded and the
affairs of men governed by that serene and impartial uniformity,
which is of the very essence of the idea of law." There is
recognition, however, in the opinion that what in fact exists "cannot
approximate the ideal. Nor is the law susceptible to the reproach
that it does not take into account the realities of the situation. The
constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the
general welfare be promoted, which is the end of law, a regulatory
measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the
equal protection clause only if they can show that the
governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in
reason." Classification is thus not ruled out, it being sufficient to
quote from the Tuason decision anew "that the laws operate
equally and uniformly on all persons under similar circumstances
or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and
the liabilities imposed. Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall
be given to every person under circumstances which, if not
identical, are analogous. If law be looked upon in terms of burden
or charges, those that fall within a class should be treated in the
same fashion, whatever restrictions cast on some in the group
equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all
of the people without violating the equal protection clause. 103 The
classification must, as an indispensable requisite, not be arbitrary. To be
valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class. 104
In the Court's view, there are no substantial distinctions between motels,
inns, pension houses, hotels, lodging houses or other similar
establishments. By definition, all are commercial establishments providing
lodging and usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension houses, hotels,
lodging houses or other similar establishments. The classification in the
instant case is invalid as similar subjects are not similarly treated, both as
to rights conferred and obligations imposed. It is arbitrary as it does not
rest on substantial distinctions bearing a just and fair relation to the
purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this area. 
A noxious establishment does not become any less noxious if located
outside the area.
The standard "where women are used as tools for entertainment" is also
discriminatory as prostitutionone of the hinted ills the Ordinance aims to
banishis not a profession exclusive to women. Both men and women
have an equal propensity to engage in prostitution. It is not any less grave
a sin when men engage in it. And why would the assumption that there is
an ongoing immoral activity apply only when women are employed and be
inapposite when men are in harness? This discrimination based on gender
violates equal protection as it is not substantially related to important
government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass
the test of consistency with prevailing laws.
C.    The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar
establishments is found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code,
and shall:
.  .  .
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
.  .  .
(iv) Regulate the establishment, operation and maintenance of
cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments,
including tourist guides and transports .  .  .  .
While its power to regulate the establishment, operation and maintenance
of any entertainment or amusement facilities, and to prohibit certain forms
of amusement or entertainment is provided under Section 458 (a) 4 (vii) of
the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code,
and shall:
.  .  .
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
.  .  .
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement facilities,
including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or
amusement; regulate such other events or activities for
amusement or entertainment, particularly those which
tend to disturb the community or annoy the inhabitants, or
require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in
order to protect the social and moral welfare of the
community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments,
the only power of the City Council to legislate relative thereto is to regulate
them to promote the general welfare. The Code still withholds from cities
the power to suppress and prohibit altogether the establishment, operation
and maintenance of such establishments. It is well to recall the rulings of
the Court in Kwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the
Administrative Code, means and includes the power to control, to
govern, and to restrain; but "regulate" should not be construed as
synonymous with "suppress" or "prohibit." Consequently, under
the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the
employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of
the Municipality of Tacloban which prohibited the selling, giving and
dispensing of liquor ratiocinating that the municipality is empowered only to
regulate the same and not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically
given authority or power to regulate or to license and regulate the
liquor traffic, power to prohibit is impliedly withheld. 109
These doctrines still hold contrary to petitioners' assertion 110 that they were
modified by the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing
schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement as found in the first clause of
Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such
other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants" and to
"prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community" are stated in the second
and third clauses, respectively of the same Section.  The several powers
of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is
pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are
independent of each other albeit closely related to justify being put
together in a single enumeration or paragraph. 111 These powers, therefore,
should not be confused, commingled or consolidated as to create a
conglomerated and unified power of regulation, suppression and
prohibition.112
The Congress unequivocably specified the establishments and forms of
amusement or entertainment subject to regulation among which are
beerhouses, hotels, motels, inns, pension houses, lodging houses, and
other similar establishments (Section 458 (a) 4 (iv)), public dancing
schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement (Section 458 (a) 4 (vii)). This
enumeration therefore cannot be included as among "other events or
activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" or "certain forms of
amusement or entertainment" which the City Council may suspend,
suppress or prohibit.
The rule is that the City Council has only such powers as are expressly
granted to it and those which are necessarily implied or incidental to the
exercise thereof.  By reason of its limited powers and the nature thereof,
said powers are to be construed strictissimi juris and any doubt or
ambiguity arising out of the terms used in granting said powers must be
construed against the City Council. 113 Moreover, it is a general rule in
statutory construction that the express mention of one person, thing, or
consequence is tantamount to an express exclusion of all
others. Expressio unius est exclusio alterium. This maxim is based upon
the rules of logic and the natural workings of human mind. It is particularly
applicable in the construction of such statutes as create new rights or
remedies, impose penalties or punishments, or otherwise come under the
rule of strict construction.114
The argument that the City Council is empowered to enact
the Ordinance by virtue of the general welfare clause of the Code and of
Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without
merit. On the first point, the ruling of the Court in People v. Esguerra,115 is
instructive. It held that:
 The powers conferred upon a municipal council in the general
welfare clause, or section 2238 of the Revised Administrative
Code, refers to matters not covered by the other provisions of the
same Code, and therefore it can not be applied to intoxicating
liquors, for the power to regulate the selling, giving away and
dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted
by section 2238,  a municipal council may enact the ordinance in
question, notwithstanding the provision of section 2242 (g), would
be to make the latter superfluous and nugatory, because the
power to prohibit, includes the power to regulate, the selling, giving
away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and override the
earlier law, the Revised Charter of Manila. Legis posteriores priores
contrarias abrogant, or later statute repeals prior ones which are
repugnant thereto. As between two laws on the same subject matter,
which are irreconcilably inconsistent, that which is passed later prevails,
since it is the latest expression of legislative will. 116 If there is an
inconsistency or repugnance between two statutes, both relating to the
same subject matter, which cannot be removed by any fair and reasonable
method of interpretation, it is the latest expression of the legislative will
which must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently enacted
law contains provisions contrary to those of an existing law but no
provisions expressly repealing them. Such repeals have been divided into
two general classes: those which occur where an act is so inconsistent or
irreconcilable with an existing prior act that only one of the two can remain
in force and those which occur when an act covers the whole subject of an
earlier act and is intended to be a substitute therefor. The validity of such a
repeal is sustained on the ground that the latest expression of the
legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special
laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed or modified
accordingly." Thus, submitting to petitioners' interpretation that the Revised
Charter of Manila empowers the City Council to prohibit motels, that
portion of the Charter stating such must be considered repealed by the
Code as it is at variance with the latter's provisions granting the City
Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the
general welfare clause authorizing the abatement of nuisances without
judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. It can not be said
that motels are injurious to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a nuisance per accidens it
may be so proven in a hearing conducted for that purpose. A motel is
not per se a nuisance warranting its summary abatement without judicial
intervention.119
Notably, the City Council was conferred powers to prevent and prohibit
certain activities and establishments in another section of the Code which
is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code,
and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective city government, and in this connection,
shall:
.  .  .
 (v) Enact ordinances intended to prevent, suppress and impose  appropriate connection, giving to each in its place, its proper force and
appropriate penalties for habitual drunkenness in public places,
vagrancy, mendicancy,  prostitution, establishment and
maintenance of      houses of ill repute, gambling and other
prohibited games of chance,  fraudulent devices and ways to
obtain money or property, drug addiction, maintenance of drug
dens, drug pushing, juvenile delinquency, the printing, distribution
or exhibition of obscene or pornographic materials or publications,
and such other activities inimical  to the welfare and morals of the
inhabitants of the city;
.  .  .
If it were the intention of Congress to confer upon the City Council the
power to prohibit the establishments enumerated in Section 1 of
the Ordinance, it would have so declared in uncertain terms by adding
them to the list of the matters it may prohibit under the above-quoted
Section. The Ordinance now vainly attempts to lump these establishments
with houses of ill-repute and expand the City Council's powers in the
second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort
to overreach its prohibitory powers. It is evident that these establishments
may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are recognized
legitimate enterprises can be gleaned from another Section of the Code.
Section 131 under the Title on Local Government Taxation expressly
mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the
"contractors" defined in paragraph (h) thereof.  The same Section also
defined "amusement" as a "pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;" and "amusement
places" to include "theaters, cinemas, concert halls, circuses and other
places of amusement where one seeks admission to entertain oneself by
seeing or viewing the show or performances." Thus, it can be inferred that
the Code considers these establishments as legitimate enterprises and
activities. It is well to recall the maxim reddendo singula singulis which
means that words in different parts of a statute must be referred to their
effect, and, if possible, rendering none of them useless or superfluous,
even if strict grammatical construction demands otherwise. Likewise,
where words under consideration appear in different sections or are widely
dispersed throughout an act the same principle applies. 120
Not only does the Ordinance contravene the Code, it likewise runs counter
to the provisions of P.D. 499. As correctly argued by MTDC, the statute
had already converted the residential Ermita-Malate area into a
commercial area. The decree allowed the establishment and operation of
all kinds of commercial establishments except warehouse or open storage
depot, dump or yard, motor repair shop, gasoline service station, light
industry with any machinery or funeral establishment. The rule is that for
an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in
conflict with or repugnant to the general law. 121 As succinctly illustrated
in Solicitor General v. Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law
explains itself. Local political subdivisions are able to legislate only
by virtue of a valid delegation of legislative power from the national
legislature (except only that the power to create their own sources
of revenue and to levy taxes is conferred by the Constitution itself).
They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local
government units cannot contravene but must obey at all times the
will of their principal. In the case before us, the enactment in
question, which are merely local in origin cannot prevail against
the decree, which has the force and effect of a statute. 123
Petitioners contend that the Ordinance enjoys the presumption of validity.
While this may be the rule, it has already been held that although the
presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself
or is established by proper evidence. The exercise of police power by the
local government is valid unless it contravenes the fundamental law of the
land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a
common right.124

Conclusion

All considered, the Ordinance invades fundamental personal and property

rights and impairs personal privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable
in its operation; it is not sufficiently detailed and explicit that abuses may
attend the enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and is
therefore ultra vires, null and void.

Concededly, the challenged Ordinance was enacted with the best of

motives and shares the concern of the public for the cleansing of the
Ermita-Malate area of its social sins. Police power legislation of such
character deserves the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the enactment of
the Ordinance has no statutory or constitutional authority to stand on.
Local legislative bodies, in this case, the City Council, cannot prohibit the
operation of the enumerated establishments under Section 1 thereof or
order their transfer or conversion without infringing the constitutional
guarantees of due process and equal protection of laws not even under
the guise of police power.

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

Regional Trial Court declaring the Ordinance void is AFFIRMED.  Costs
against petitioners.

SO ORDERED.
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; SAMAHANG OPTOMETRIST Sa
PILIPINAS — Iligan City Chapter, LEO T. CAHANAP, City Legal
Officer, and Hon. CAMILO P. CABILI, City Mayor of
Iligan, respondents.
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Rules of Court seeking
to nullify the dismissal by the Court of Appeals of the original petition
for certiorari, prohibition and mandamus filed by the herein petitioner
against the City Mayor and City Legal Officer of Iligan and the Samahang
Optometrist sa Pilipinas — Iligan Chapter (SOPI, for brevity).
The antecedent facts leading to the filing of the instant petition are as
follows:
Petitioner applied with the Office of the City Mayor of Iligan for a business
permit. After consideration of petitioner's application and the opposition
interposed thereto by local optometrists, respondent City Mayor issued
Business Permit No. 5342 subject to the following conditions:
1. Since it is a corporation, Acebedo cannot put up an optical clinic
but only a commercial store;
2. Acebedo cannot examine and/or prescribe reading and similar
optical glasses for patients, because these are functions of optical
clinics;
3. Acebedo cannot sell reading and similar eyeglasses without a
prescription having first been made by an independent optometrist
(not its employee) or independent optical clinic. Acebedo can only
sell directly to the public, without need of a prescription, Ray-Ban
and similar eyeglasses;
4. Acebedo cannot advertise optical lenses and eyeglasses, but
can advertise Ray-Ban and similar glasses and frames;
5. Acebedo is allowed to grind lenses but only upon the
prescription of an independent optometrist. 1
On December 5, 1988, 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 Acebedo had violated the conditions set forth
in its business permit and requesting the cancellation and/or revocation of
such permit.
Acting on such complaint, then City Mayor Camilo P. Cabili designated
City Legal Officer Leo T. Cahanap to conduct an investigation on the
matter. On July 12, 1989, respondent City Legal Officer submitted a report
to the City Mayor finding the herein petitioner guilty of violating all the
conditions of its business permit and recommending the disqualification of
petitioner from operating its business in Iligan City. The report further
advised that no new permit shall be granted to petitioner for the year 1989
and should only be given time to wind up its affairs.
On July 19, 1989, the City 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.
On October 17, 1989, petitioner brought a petition for certiorari, prohibition
and mandamus with prayer for restraining order/preliminary injunction
against the respondents, City Mayor, City Legal Officer and Samahan ng
Optometrists sa Pilipinas-Iligan City Chapter (SOPI), docketed as Civil
Case No. 1497 before the Regional Trial Court of Iligan City, Branch I.
Petitioner alleged that (1) it was denied due process because it was not
given an opportunity to present its evidence during the investigation
conducted by the City Legal Officer; (2) it was denied equal protection of
the laws as the limitations imposed on its business permit were not
imposed on similar businesses in Iligan City; (3) the City Mayor had no
authority to impose the special conditions on its business permit; and (4)
the City Legal Officer had no authority to conduct the investigation as the
matter falls within the exclusive jurisdiction of the Professional Regulation
Commission and the Board of Optometry.
Respondent SOPI interposed a Motion to Dismiss the Petition on the
ground of non-exhaustion of administrative remedies but on November 24,
1989, Presiding Judge Mamindiara P. Mangotara deferred resolution of
such Motion to Dismiss until after trial of the case on the merits. However,
the prayer for a writ of preliminary injunction was granted. Thereafter,
respondent SOPI filed its answer.
On May 30, 1990, 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. It was denied by an Order dated June 28, 1990.
On October 3, 1990, 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 on the part of the trial court.
On January 24, 1991, the Ninth Division 2 of the Court of Appeals
dismissed the petition for lack of merit. Petitioner's motion reconsideration
was also denied in the Resolution dated May 15, 1991.
Undaunted, petitioner has come before this court via the present petition,
theorizing that:
A.
THE RESPONDENT COURT, WHILE CORRECTLY HOLDING
THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS
AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE
PERMIT AS THEY HAD NO BASIS IN ANY LAW OR
ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL
CONDITIONS NEVERTHELESS BECAME BINDING ON
PETITIONER UPON ITS ACCEPTANCE THEREOF AS A
PRIVATE AGREEMENT OR CONTRACT.
B.
THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING
THAT THE CONTRACT BETWEEN PETITIONER AND THE CITY
OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE
PERFORMANCE OF ITS PROPRIETARY FUNCTIONS.
The petition is impressed with merit.
Although petitioner agrees with the finding of the Court of Appeals that
respondent City Mayor acted beyond the scope of his authority in imposing
the assailed conditions in subject business permit, it has excepted to the
ruling of the Court of Appeals that the said conditions nonetheless became
binding on petitioner, once accepted, as a private agreement or contract.
Petitioner maintains that the said special conditions are null and void for
being ultra vires and cannot be given effect; and therefore, the principle of
estoppel cannot apply against it.
On the other hand, the public respondents, City Mayor and City Legal
Officer, private respondent SOPI and the Office of the Solicitor General
contend that as a valid exercise of police power, respondent City Mayor
has the authority to impose, as he did, special conditions in the grant of
business permits.
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. 9 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. 4 This
delegation of police power is embodied in the general welfare clause of the
Local Government Code which provides:
Sec. 6. General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
The 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. 5
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:
x x x           x x x          x x x
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.
Succinct and in point is the ruling of this Court, that:
. . . While a business may be regulated, such regulation must,
however, be within the bounds of reason, i.e., the regulatory
ordinance must be reasonable, and its provision cannot be
oppressive amounting to an arbitrary interference with the
business or calling subject of regulation. A lawful business or
calling may not, under the guise of regulation, be unreasonably
interfered with even by the exercise of police power. . . .
x x x           x x x          x x x
. . . 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. 6
In the case under consideration, the business permit granted by
respondent City Mayor to petitioner was burdened with several conditions.
Petitioner agrees with the holding by the Court of Appeals that respondent
City Mayor acted beyond his authority in imposing such special conditions
in its permit as the same have no basis in the law or ordinance. Public
respondents and private respondent SOPI, on the other hand, are one in
saying that the imposition of said special conditions on petitioner's
business permit is well within the authority of the City Mayor as a valid
exercise of police power.
As aptly discussed by the Solicitor General in his Comment, the power to
issue licenses and permits necessarily includes the corollary power to
revoke, withdraw or cancel the same. And the power to revoke or cancel,
likewise includes the power to restrict through the imposition of certain
conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals, 7 it
was held that the power to license carries with it the authority to provide
reasonable terms and conditions under which the licensed business shall
be conducted. As the Solicitor General puts it:
If the City Mayor is empowered to grant or refuse to grant a
license, which is a broader power, it stands to reason that he can
also exercise a lesser power that is reasonably incidental to his
express power, i.e. to restrict a license through the imposition of
certain conditions, especially so that there is no positive prohibition
to the exercise of such prerogative by the City Mayor, nor is there
any particular official or body vested with such authority. 8
However, the present inquiry does not stop there, as the Solicitor General
believes. The power or authority of the City Mayor to impose conditions or
restrictions in the business permit is indisputable. What petitioner assails
are the conditions imposed in its particular case which, it complains,
amount to a confiscation of the business in which petitioner is engaged.
Distinction must be made between the grant of a license or permit to do
business and the issuance of a license to engage in the practice of a
particular profession. The first is usually granted by the local authorities
and the second is issued by the Board or Commission tasked to regulate
the particular profession. A business permit authorizes the person, natural
or otherwise, to engage in business or some form of commercial activity. A
professional license, on the other hand, is the grant of authority to a
natural person to engage in the practice or exercise of his or her
profession.
In the case at bar, what is sought by petitioner from respondent City Mayor
is a permit to engage in the business of running an optical shop. It does
not purport to seek a license to engage in the practice of optometry as a
corporate body or entity, although it does have in its employ, persons who
are duly licensed to practice optometry by the Board of Examiners in
Optometry.
The case of Samahan ng Optometrists sa Pilipinas
vs. Acebedo International Corporation, G.R. No. 117097, 9 promulgated by
this Court on March 21, 1997, is in point. The factual antecedents of that
case are similar to those of the case under consideration and the issue
ultimately resolved therein is exactly the same issue posed for resolution
by this Court en banc.
In the said case, the Acebedo International Corporation filed with the
Office of the Municipal Mayor an application for a business permit for the
operation of a branch of Acebedo Optical in Candon, Ilocos Sur. The
application was opposed by the Samahan ng Optometrists sa Pilipinas-
Ilocos Sur Chapter, theorizing that Acebedo is a juridical entity not
qualified to practice optometry. A committee was created by the Office of
the Mayor to study private respondent's application. Upon
recommendation of the said committee, Acebedo's application for a
business permit was denied. Acebedo filed a petition with the Regional
Trial Court but the same was dismissed. On appeal, however, the Court of
Appeals reversed the trial court's disposition, prompting the Samahan ng
Optometrists to elevate the matter to this Court.
The First Division of this Court, then composed of Honorable Justice
Teodoro Padilla, Josue Bellosillo, Jose Vitug and Santiago Kapunan, with
Honorable Justice Regino Hermosisima, Jr. as  ponente, denied the
petition and ruled in favor of respondent Acebedo International
Corporation, holding that "the fact that private respondent hires
optometrists who practice their profession in the course of their
employment in private respondent's optical shops, does not translate into a
practice of optometry by private respondent itself," 10 The Court further
elucidated that in both the old and new Optometry Law, R.A. No. 1998,
superseded by R.A. No. 8050, it is significant to note that there is no
prohibition against the hiring by corporations of optometrists. The Court
concluded thus:
All told, there is no law that prohibits the hiring by corporations of
optometrists or considers the hiring by corporations of optometrists
as a practice by the corporation itself of the profession 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.
It is significant to note that during the deliberations of the bicameral
conference committee of the Senate and the House of Representatives on
R.A. 8050 (Senate Bill No. 1998 and House Bill No. 14100), the committee
failed to reach a consensus as to the prohibition on indirect practice of
optometry by corporations. The proponent of the bill, former Senator
Freddie Webb, admitted thus:
Senator Webb: xxx xxx xxx
The focus of contention remains to be the proposal of prohibiting
the indirect practice of optometry by corporations.1âwphi1 We
took a second look and even a third look at the issue in the
bicameral conference, but a compromise remained elusive. 11
Former Senator Leticia Ramos-Shahani likewise voted her reservation in
casting her vote:
Senator Shahani: Mr. President.
The optometry bills have evoked controversial views from the
members of the panel. While we realize the need to uplift the
standards of optometry as a profession, the consesnsus of both
Houses was to avoid touching sensitive issues which properly
belong to judicial determination. Thus, the bicameral conference
committee decided to leave the issue of indirect practice of
optometry and the use of trade names open to the wisdom of the
Courts which are vested with the prerogative of interpreting the
laws. 12
From the foregoing, it is thus evident that Congress has not adopted a
unanimous position on the matter of prohibition of indirect practice of
optometry by corporations, specifically on the hiring and employment of
licensed optometrists by optical corporations. It is clear that Congress left
the resolution of such issue for judicial determination, and it is therefore
proper for this Court to resolve the issue.
Even in the United States, jurisprudence varies and there is a conflict of
opinions among the federal courts as to the right of a corporation or
individual not himself licensed, to hire and employ licensed optometrists. 13
Courts have distinguished between optometry as a learned profession in
the category of law and medicine, and optometry as a mechanical art. And,
insofar as the courts regard optometry as merely a mechanical art, they
have tended to find nothing objectionable in the making and selling of
eyeglasses, spectacles and lenses by corporations so long as the patient
is actually examined and prescribed for by a qualified practitioner. 14
The primary purpose of the statute regulating the practice of optometry is
to insure that optometrical services are to be rendered by competent and
licensed persons in order to protect the health and physical welfare of the
people from the dangers engendered by unlicensed practice. Such
purpose may be fully accomplished although the person rendering the
service is employed by a corporation. 15
Furthermore, it was ruled that the employment of a qualified optometrist by
a corporation is not against public policy. 16 Unless prohibited by statutes, a
corporation has all the contractual rights that an individual has 17 and it
does not become the practice of medicine or optometry because of the
presence of a physician or optometrist. 18 The manufacturing, selling,
trading and bartering of eyeglasses and spectacles as articles of
merchandise do not constitute the practice of optometry. 19
In the case of Dvorine vs.  Castelberg Jewelry Corporation, 20 defendant
corporation conducted as part of its business, a department for the sale of
eyeglasses and the furnishing of optometrical services to its clients. It
employed a registered optometrist who was compensated at a regular
salary and commission and who was furnished instruments and appliances
needed for the work, as well as an office. In holding that corporation was
not engaged in the practice of optometry, the court ruled that there is no
public policy forbidding the commercialization of optometry, as in law and
medicine, and recognized the general practice of making it a commercial
business by advertising and selling eyeglasses.
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. 21 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. 22
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.
It also bears stressing, as petitioner has pointed out, that the public and
private respondents did not appeal from the ruling of the Court of Appeals.
Consequently, the holding by the Court of Appeals that the act of
respondent City Mayor in imposing the questioned special conditions on
petitioner's business permit is ultra vires cannot be put into issue here by
the respondents. It is well-settled that:
A party who has not appealed from the decision may not obtain
any affirmative relief from the appellate court other than what he
had obtain from the lower court, if any, whose decision is brought
up on appeal. 23
. . . an appellee who is not an appellant may assign errors in his
brief where his purpose is to maintain the judgment on other
grounds, but he cannot seek modification or reversal of the
judgment or affirmative relief unless he has also appealed. 24
Thus, respondents' submission that the imposition of subject special
conditions on petitioner's business permit is not ultra vires cannot prevail
over the finding and ruling by the Court of Appeals from which they
(respondents) did not appeal.
Anent the second assigned error, petitioner maintains that its business
permit issued by the City Mayor is not a contract entered into by Iligan City
in the exercise of its proprietary functions, such that although petitioner
agreed to such conditions, it cannot be held in estoppel since ultra
vires acts cannot be given effect.
Respondents, on the other hand, agree with the ruling of the Court of
Appeals that the business permit in question is in the nature of a contract
between Iligan City and the herein petitioner, the terms and conditions of
which are binding upon agreement, and that petitioner is estopped from
questioning the same. Moreover, in the Resolution denying petitioner's
motion for reconsideration, the Court of Appeals held that the contract
between the petitioner and the City of Iligan was entered into by the latter
in the performance of its proprietary functions.
This Court holds otherwise. It had occasion to rule that a license or permit
is not in the nature of a contract but a special privilege.
. . . a license or a permit is not a contract between the sovereignty
and the licensee or permitee, and is not a property in the
constitutional sense, as to which the constitutional proscription
against impairment of the obligation of contracts may extend. A
license is rather in the nature of a special privilege, of a permission
or authority to do what is within its terms. It is not in any way
vested, permanent or absolute. 25
It is therefore 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 responded 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.
WHEREFORE, the petition is GRANTED; the Decision of the Court of
Appeals in CA-GR SP No. 22995 REVERSED: and the respondent City
Mayor is hereby ordered to reissue petitioner's business permit in
accordance with law and with this disposition. No pronouncement as to
costs.
Separate Opinions
KAPUNAN, J.,  separate and concurring opinion;
I concur with the opinion of Mr. Justice Purisima. In addition, I would like to
state the following: The issues that present themselves in the case at bar
are the following: First, can a corporation which is not a natural person,
engage in the practice of optometry? Second, can a corporation, by
employing optometrists as an incident to and in the ordinary course of its
business of selling optical wares, supplies, substances and instruments,
be said to be indirectly practicing optometry? Third, are the commercial
restrictions in the business license a proper exercise of police power under
the specific circumstances of this case?
I
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 nation 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.
II
The second question provides no easy answer and actually depends on
the facts and circumstance surrounding a particular case. What is well-
settled, however, is that in the absence of a statute specifically prohibiting
a corporation from hiring duly licensed optometrists, the employment by
such corporation of said professionals is not tantamount to practice of
optometry by the corporation itself. Thus, in Samahan ng Optometrists sa
Pilipinas, et al. vs. Acebedo International Corporation, 1 we held that:
. . . The fact that private respondent hires optometrists who
practice their profession in the course of their employment in
private respondent's optical shops, does not translate into a
practice of optometry by private respondent itself. Private
respondent is a corporation created and organized for the purpose
of conducting the business of selling optical lenses or eyeglasses,
among others. The clientele of private respondent understandably,
would largely be composed of persons with defective vision and
thus need the proper lenses to correct the same and enable them
to gain normal vision. The determination of the proper lenses to
sell to private respondent's clientele entails the employment of
optometrists who have been precisely trained for that purpose.
Private respondent's business is not the determination itself of the
proper lenses needed by persons with defective vision. Private
respondent's business, rather, is the buying and importing of
eyeglasses and lenses and other similar or allied instruments from
suppliers thereof and selling the same to consumers.
 For petitioners argument to hold water, there need be clear
showing that R.A. No. 1998 prohibits a corporation from hiring
optometrists, for only then would it be undeniably evident that the
intention of the legislature is to preclude the formation of the so-
called optometry corporations because such is tantamount to the
practice of the profession of optometry which is legally exercisable
only by natural persons and professional partnerships. We have
carefully reviewed R.A. No. 1998 however, and we find nothing
therein that supports petitioner's insistent claims.
It is interesting to note that during the Senate deliberations on the
enactment of R.A. 8050, a widely-debated and highly controversial
provision directly prohibiting the indirect practice of optometry, was
eventually deleted from the original bill and was, therefore, not included in
the final version of the law.2 That original provision states:
Prohibition against the Indirect Practice of Optometry — No
person, natural or juridical, other than an optometrist in good
standing or a partnership composed solely of optometrists, shall
hire, employ, join with or otherwise use the services of an
optometrist for the purpose of practicing optometry: Provided
however, That this prohibition shall not apply to the government of
the Philippines or any of its agencies or instrumentalities and to
persons who are exempted under the immediate preceding
section.
By deleting the aforequoted controversial provision and by deliberately
failing to provide one directly addressing the matter of whether or not duly-
licensed optometrists may practice their profession as employees of
corporations, it is evident that it was the legislative intent to leave to the
judiciary the resolution of whatever issues that may arise in the application
of the law. Senator Shahani explained:
The optometry bills have evoked controversial views from the
Members of the panel. While we realize the need to uplift the
standards of optometry as a profession, the consensus of both
Houses was to avoid touching sensitive issues which properly
belong to judicial determination. Thus, the bicameral conference
committee decided to leave the issue of indirect practice of
optometry and the use of trade names open to the wisdom of the
Courts which are vested with the prerogative of interpreting the
laws. 3
While the hiring by corporations of optometrists does not necessarily
translate into the corporate practice of profession, which is, without
question, prohibited and against public policy, factual relationships
between the corporation and the employee-optometrist have been inquired
into by some courts in the United States to determine whether or not there
is an unauthorized corporate practice of the profession, that is, whether or
not it is the corporation, and not its licensed employees, which is unduly
engaged in the practice of optometry.
In many cases, the measure of control is particularly
determinative. 4 Where it appears that the optical company has the power
of regulation or control of the professional activities of the licensed
optometrists, including corporation's power to dismiss, and including any
influence over the mode and manner of eye examinations and resulting
professional judgments, the reciprocal arrangement is held to constitute
the unlicensed practice of optometry. 5 In another case, advertisement of
the corporation is a factor. Where a statute provides that a person licensed
to practice optometry is forbidden to advertise, practice, or attempt to
practice "under a name other than his own," 6 advertisement of the
corporation is held to lead the public to believe that it (the corporation) is
practicing optometry. This provision, according to the court, is certainly
antagonistic to the view that a corporation might practice optometry
through a licensed optometrist.
The manner of compensation has also been held to be an important factor
in determining whether or not a corporation is unlawfully engaged in the
practice of optometry. Where the corporation exercises in any manner,
control over the payment of fees to be charged by the optometrist, 7 where
an optometrist receives a monthly salary from the corporation purporting to
be a percentage of payments made by certain customers, 8 and where the
prescription does not carry the name of the licensed optometrist, but rather
that of the corporate defendant, such has been held as sufficient
indications that there is unlawful corporate practice of the profession. 9
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.
III
In this connection, I do not fully share with the view that the exercise of the
optometrists' specialization is no different from the practice of other
regulated professions which can be done individually or in association with
duly-licensed colleagues only.
Sec. 3 of R.A. 8050 defines optometry as:
The science and art of examining the human eye, analyzing the
ocular function, prescribing and dispensing ophthalmic lenses,
prisms, contact lenses and their accessories and solutions, low
vision aids, and similar appliances and devices, conducting ocular
exercises, vision training, orthoptics, installing prosthetics, using
authorized diagnostic pharmaceutical agents (DPA), and other
preventive or corrective measures or procedures for the aid,
correction, rehabilitation or relief of the human eye, or to attain
maximum vision and comfort.
The words "ophthalmologist", "optometrist" and "optician", though closely
related, should be distinguished. An ophthalmologist is a duly licensed
physician who specializes in the care of eyes. Optometrists merely
examine the eyes for refractive error, recognize (but does not treat)
diseases of the eye, and fill prescriptions for eyeglasses. 10 Optometrists
also adapt frames and lenses to overcome errors of refraction and
restores, as nearly as possible with these mechanical appliances, normal
human vision. The optician is engaged in the business of furnishing lenses
to customers on the prescriptions of licensed optometrists or qualified
physicians, putting the lenses into frames selected by the customer, and
fitting the frames to the face. 11
Optometry is distinguished from other professions by the nature of
relationships created between the optometrist and the client. It has been
held that the traditional relationship between physician and patient does
not exist in the practice of optometry, since such practice involves no
relationship of trust and confidence as exists between a physician and a
patient, or as between an attorney and client. The argument is that,
considering the nature and scope of the optometrist's functions, no such
trust relationship exists and, consequently, there is no public policy to be
subserved by prohibiting optometrists to practice their profession as
employees of corporations. In the case of Silver v. Lansburgh, a U.S.
Court held:
. . . Both in the case of the physician and the lawyer, the person
seeking his services must break down the barriers of reserve
which otherwise serve to protect him and deliberately reveal to his
professional adviser secrets of physical or mental disability or
secrets of business of the most intimate nature. These necessary
disclosures create the personal relationship which cannot exist
between patient or client and a profit-seeking corporation. The
universal recognition of this immediate, unbroken, and confidential
association between doctor and lawyer and those who engage
their services early created and still justifies the rule that their
allegiance must be wholeheartedly to the patient or the client, not
to another. Nothing of this nature applies to the practice of
optometry. 12
Optometrists must also exercise the amount of care, skill and diligence
which is exercised generally in the community by other practitioners in the
same field, and as is mandated by the rules regulating their profession,
wherever and however they practice their profession. Optometry has also
been distinguished from other professions in that the selling of services in
the former, is intertwined with the selling of goods. It has been held that
"the optometrist and optician are also engaged in the sale of a product,
corrective lenses, and accordingly the activities of an optometrist lie
between those associated with the practice of a profession and those
characteristic of a merchandising concern." 13
Anent the question of whether optometrists may practice their profession
as employees of corporations, many courts in the United States have
based their decisions on the distinctions and differences in the required
degree of learning and training required. Generally, such decisions depend
on whether the courts classify optometry as a mere "mechanical art" or as
a "learned profession" such as law or medicine. Where courts consider
optometry as a mere mechanical art, optometrists are not prevented from
being employed in corporations, the courts holding that where the statute
itself does not specifically control, the reasons for preventing the practice
of law and medicine to corporations do not apply, to optometry. In the case
of Silver v. Lansburgh & Co., the court found:
. . . Optometry is a mechanical art which requires skill and a
knowledge of the use of certain mechanical instruments and
appliances designed to measure and record the errors and
deviations from the normal found in the human eye, but is not a
learned profession comparable to law, medicine, and theology and
that, though certain standards of education are prescribed by the
statute and by rules of the board created under it, optometry is not
a part of medicine. 14
The U.S. Court of Appeals for the District of Columbia to which the
aforementioned case was appealed, did concede that in their view,
optometry is a profession, as the term is colloquially used, nonetheless,
the court also said that there is no reason why a corporation cannot
employ licensed optometrist. Thus:
. . . but that fact is not enough to bring the rule into effect. There is
no more reason to prohibit a corporation, organized for the
purpose, from employing licensed optometrists, than there is to
prohibit similar employment of accountants, architects or
engineers. We know of no instance in which the right in any of
these cases has ever been challenged, though universally all are
deemed professions. 15
IV
The assailed conditions imposed 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. 16 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. 17
In the area of local governments, the police power of a municipality exists
solely by virtue of legislative or constitutional grant. 18 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. 19 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 receive
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 at 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. 20 The burden imposed must not interfere with rights of private
property and freedom of contract beyond the necessity of the
situation. 21 The test, thus, is the classic reasonableness and  propriety of
the measures or means in the promotion of the ends sought to be
accomplished.
Under the rubric of general welfare, what is the specific public policy
involved in the exercise of police power in this case? Or in constitutional
language, what is the end sought to be achieved?
The City Mayor in its comment to the petition cites the "safety and well-
being of the people of Iligan — especially the poor and naive among
them." 22 The Solicitor General, on the other hand, cites protection of
"public morals, health, safety or welfare" 23 and "to promote the prosperity
and general welfare of the local government unit and its
inhabitants." 24 With the lack of discussion in the pleadings on how these
general concerns will be served by the specific means adapted, we can
only speculate.
In terms of promoting safety, public health or welfare, it may be argued
that allowing corporations to employ licensed optometrists may
compromise professional accountability. Because corporations are
generally seen as more concerned at bottom with profits, the motivation to
sell might prevail over professional ethics. Again this is mere speculation.
Just being "big" is not a sin. Under the general scheme of the equal
protection clause of our Constitution, "bigness" should not be a
disadvantage in terms of benefits conferred and liabilities imposed.
Jurisprudence in the United States is replete with cases on the issue of
validity of governmental regulation relating to optometry. 25 In a case
upholding the validity of a statute prohibiting a corporation from practicing
optometry, directly or indirectly, and from employing registered optometrist
to examine the eyes of its customers, a US court cited the public policy
that one who practices a profession is apt to have less regard for
professional ethics and to be less amenable to regulation for their
enforcement when he has no contractual obligations to the client. 26
There are generally four types of commercial restrictions in the practice of
optometry. 27 These are:
1) Employment Restrictions which usually provide that it is
unprofessional conduct or an illegal practice for an optometrist to
accept employment from unlicensed person or non-professional
Corporations; 28
2) Restrictions on Location prohibit optometrist to work in an office
not devoted exclusively to the practice of optometry or in which
materials are displayed pertaining to a commercial undertaking not
related to the practice of optometry;
3) Branch Office Restrictions usually set a maximum number of
branch Offices an optometrist may operate or require the
optometrist to be on personal attendance a certain proportion of
time the office is open to the public;
4) Trade Name Restrictions declare illegal or unethical for an
optometrist to practice under a name other than his or her name or
under a false or assumed name. This last type of restriction has a
distinct discriminatory impact on non-professional corporations. 29
The public policy cited to justify these different types of restrictions is
generally consumer protection by elimination of low-quality
services. 30 Lay-employed optometrists, 31 may employ various cost-cutting
techniques like brief and inadequate eye examinations, in order to
increase profits. Those who practice under a trade name lack personal
accountability and the motivation to maintain a personal reputation for
high-quality service. The management of non-professional optical firms
may, likewise, interfere with the "doctor-patient" relationship and
professional judgments concerning patient welfare. Thus, the argument is
offered that commercial practice restrictions are necessary to prevent lay-
employed optometrist from increasing their market share by selling
services at lower prices and substituting low for high quality case without
consumer recognition of the change in quality. 32
Closer to home, the Senate proceedings discussing Senate Bill No. 1998,
the precursor of RA 8050, is enlightening as to the rationale behind the
original proposal to specifically prohibit employment by corporations of
optometrists.33
The exchange between Senator Webb, Chairman of the Committee on
Health and Demography, and Senator Macapagal is instructive:
Senator Macapagal: Mr. President, what I will ask comes from the
concern of corporations that hire optometrists. What they would
like to know from the Gentleman is what is the rationale behind
prohibiting corporations from engaging the services of
optometrists.
Senator Webb: Mr. President, a corporation is not the same as an
individual human being for one thing. A corporation cannot be a
doctor or a lawyer. Only a human being may be permitted to
practice medicine or law.
x x x           x x x          x x x
The optometrist for one thing has a peculiar relationship with a
patient and this is primarily based not on profit, though people will
say that one enters a profession primarily to make money. But
under their Code of Ethics, it is clearly stated that one goes there
as a doctor primarily to cure people.
A corporation, Mr. President, is a different entity. Primarily it is
there to make money. In fact, if a corporation were to hire an
optometrist then he is divided between his loyalty to the
corporation and his love and affection for his patient because a
corporation may have a specific product that it wants to push. And
as such, an optometrist is told to push a particular product for
whatever it is worth. "Kailangang itulak natin ito sapagkat ito ang
ating produkto."
Sa optometrist po ay hindi ganoon sapagkat wala kayong
makikitang abogado o duktor na nag-a-advertise na ang ginagamit
ay trade name or corporate name. In fact, in advertisement,
though not very clear kung pinapayagan itoy, ay hindi kayo
puwedeng gumamit ng korporasyon kundi iyong mga pangalan. At
iyan po ang ipinagbabawal.
Hindi po ipinagbabawal ang pagpapatuloy ng negosyo ng mga
optometrist. Ang ipinagbabawal lamang ay iyong korporasyon
dahil alam naman nating pag mayroong sakunang nangyari ay
napakahirap idimanda ang korporasyon. Hindi katulad ng isang
tao na personal and pagdadala ng serbisyo kaya mas madaling
matunton ang kaniyang pagkakamali hindi kapareho ng isang
korporasyon.
Senator Macapagal: Subalit kung ihahambing po natin sa isang
hospital, mayroong duktor iyong hospital at nagkaroon ng sakuna,
nadi-demanda rin naman iyong hospital. Hindi po ba pareho na rin
iyon kung idi-demanda iyong korporasyon na mayroong
optometrist na nagtatrabaho doon?
Senator Webb: Tama po iyan ngunit ang hospital ay regulated by
the Department of Health. Ang korporasyon po ay hindi man
lamang regulated by Professional Regulation Commission hindi
kapareho ng mga optometrist, they are regulated. Wala pong nag-
reregulate sa korporasyon. Kung mayroon kayong optical shop
ngayon, wala pong nagre-regulate diyan kaya ang maaaring
mabigyan ng kasalanan ay iyong optometrist na nagtatrabaho sa
kanila. Ngunit sila po ay libre sa kasong pagkakamali. Nabanggit
din ng isang korporasyon na napakarami nilang trabahador na
madi-displace. Iyan po ay aking sasagutin mamaya. 34
After intense interpellation by Senator Gonzales, Senator Webb conceded
that the proposal was also meant to "equalize the playing field" between a
corporation and one personally practicing optometry. 35
While the above-mentioned objectives are legitimate, the means employed
may be unduly oppressive upon individuals. For example, one distinct
feature of the regulation involved is that on its face, it purports to regulate
business and commerce. In its application and effect, however, the
business license practically prohibits individuals from seeking legitimate
employment from corporations. The nullity of the regulation, therefore,
arises from its operation.
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 State, its exercise is not unbrindled and must
in all cases meet the test of legitimacy, both in the ends it seeks to achieve
as well as in the means employed to achieve them. Applying such test 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 regulations that are
contrary to law.

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.
G.R. No. L-59234 September 30, 1982
TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO
CABIGAO and ACE TRANSPORTATION CORPORATION, petitioners,
vs.
THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE
BUREAU OF LAND TRANSPORTATION, respondents.
MELENCIO-HERRERA, J.:
This Petition for "Certiorari, Prohibition and mandamus with Preliminary
Injunction and Temporary Restraining Order" filed by the Taxicab
Operators of Metro Manila, Inc., Felicisimo Cabigao and Ace
Transportation, seeks to declare the nullity of Memorandum Circular No.
77-42, dated October 10, 1977, of the Board of Transportation, and
Memorandum Circular No. 52, dated August 15, 1980, of the Bureau of
Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic
corporation composed of taxicab operators, who are grantees of
Certificates of Public Convenience to operate taxicabs within the City of
Manila and to any other place in Luzon accessible to vehicular traffic.
Petitioners Ace Transportation Corporation and Felicisimo Cabigao are
two of the members of TOMMI, each being an operator and grantee of
such certificate of public convenience.
On October 10, 1977, respondent Board of Transportation (BOT) issued
Memorandum Circular No. 77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure
that only safe and comfortable units are used as public
conveyances;
WHEREAS, the riding public, particularly in Metro-Manila,
has, time and again, complained against, and condemned,
the continued operation of old and dilapidated taxis;
WHEREAS, in order that the commuting public may be
assured of comfort, convenience, and safety, a program of
phasing out of old and dilapidated taxis should be
adopted;
WHEREAS, after studies and inquiries made by the Board
of Transportation, the latter believes that in six years of
operation, a taxi operator has not only covered the cost of
his taxis, but has made reasonable profit for his
investments;
NOW, THEREFORE, pursuant to this policy, the Board
hereby declares that no car beyond six years shall be
operated as taxi, and in implementation of the same
hereby promulgates the following rules and regulations:
1. As of December 31, 1977, all taxis of Model 1971 and
earlier are ordered withdrawn from public service and
thereafter may no longer be registered and operated as
taxis. In the registration of cards for 1978, only taxis of
Model 1972 and later shall be accepted for registration
and allowed for operation;
2. As of December 31, 1978, all taxis of Model 1972 are
ordered withdrawn from public service and thereafter may
no longer be registered and operated as taxis. In the
registration of cars for 1979, only taxis of Model 1973 and
later shall be accepted for registration and allowed for
 operation; and every year thereafter, there shall be a six-
year lifetime of taxi, to wit:
1980 — Model 1974
1981 — Model 1975, etc.
All taxis of earlier models than those provided above are
hereby ordered withdrawn from public service as of the
last day of registration of each particular year and their
respective plates shall be surrendered directly to the
Board of Transportation for subsequent turnover to the
Land Transportation Commission.
For an orderly implementation of this Memorandum
Circular, the rules herein shall immediately be effective in
Metro-Manila. Its implementation outside Metro- Manila
shall be carried out only after the project has been
implemented in Metro-Manila and only after the date has
been determined by the Board. 1
Pursuant to the above BOT circular, respondent Director of the Bureau of
Land Transportation (BLT) issued Implementing Circular No. 52, dated
August 15, 1980, instructing the Regional Director, the MV Registrars and
other personnel of BLT, all within the National Capitol Region, to
implement said Circular, and formulating a schedule of phase-out of
vehicles to be allowed and accepted for registration as public
conveyances. To quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with
year models over six (6) years old are now banned from
operating as public utilities in Metro Manila. As such the
units involved should be considered as automatically
dropped as public utilities and, therefore, do not require
any further dropping order from the BOT.
Henceforth, taxi units within the National Capitol Region
having year models over 6 years old shall be refused
registration. The following schedule of phase-out is
herewith prescribed for the guidance of all concerned:
Year Model Automatic
Phase-Out
Year
 
1980
1974 1981
1975 1982
1976 1983
1977  
etc. etc.
Strict compliance here is desired. 2
In accordance therewith, cabs of model 1971 were phase-out in
registration year 1978; those of model 1972, in 1979; those of model 1973,
in 1980; and those of model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as
Case No. 80-7553, seeking to nullify MC No. 77-42 or to stop its
implementation; to allow the registration and operation in 1981 and
subsequent years of taxicabs of model 1974, as well as those of earlier
models which were phased-out, provided that, at the time of registration,
they are roadworthy and fit for operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation
and Urgent Motion", praying for an early hearing of their petition. The case
was heard on February 20, 1981. Petitioners presented testimonial and
documentary evidence, offered the same, and manifested that they would
submit additional documentary proofs. Said proofs were submitted on
March 27, 1981 attached to petitioners' pleading entitled, "Manifestation,
Presentation of Additional Evidence and Submission of the Case for
Resolution." 3
On November 28, 1981, petitioners filed before the same Board a
"Manifestation and Urgent Motion to Resolve or Decide Main Petition"
praying that the case be resolved or decided not later than December 10,
1981 to enable them, in case of denial, to avail of whatever remedy they
may have under the law for the protection of their interests before their
1975 model cabs are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of
the case, but was later informed that the records of the case could not be
located.
On December 29, 1981, the present Petition was instituted wherein the
following queries were posed for consideration by this Court:
A. Did BOT and BLT promulgate the questioned
memorandum circulars in accord with the manner required
by Presidential Decree No. 101, thereby safeguarding the
petitioners' constitutional right to procedural due process?
B. Granting, arguendo, that respondents did comply with
the procedural requirements imposed by Presidential
Decree No. 101, would the implementation and
enforcement of the assailed memorandum circulars violate
the petitioners' constitutional rights to.
(1) Equal protection of the
law;
(2) Substantive due
process; and
(3) Protection against
arbitrary and
unreasonable
classification and
standard?
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of Transportation the
power
4. To fix just and reasonable standards, classification,
regulations, practices, measurements, or service to be
furnished, imposed, observed, and followed by operators
of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to
follow in the exercise of its powers:
Sec. 2. Exercise of powers. — In the exercise of the
powers granted in the preceding section, the Board shag
proceed promptly along the method of legislative inquiry.
Apart from its own investigation and studies, the Board, in
its discretion, may require the cooperation and assistance
of the Bureau of Transportation, the Philippine
Constabulary, particularly the Highway Patrol Group, the
support agencies within the Department of Public Works,
Transportation and Communications, or any other
government office or agency that may be able to furnish
useful information or data in the formulation of the Board
of any policy, plan or program in the implementation of this
Decree.
The Board may also can conferences, require the
submission of position papers or other documents,
information, or data by operators or other persons that
 may be affected by the implementation of this Decree, or
employ any other suitable means of inquiry.
In support of their submission that they were denied procedural due
process, petitioners contend that they were not caged upon to submit their
position papers, nor were they ever summoned to attend any conference
prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway
accorded the Board gives it a wide range of choice in gathering necessary
information or data in the formulation of any policy, plan or program. It is
not mandatory that it should first call a conference or require the
submission of position papers or other documents from operators or
persons who may be affected, this being only one of the options open to
the Board, which is given wide discretionary authority. Petitioners cannot
justifiably claim, therefore, that they were deprived of procedural due
process. Neither can they state with certainty that public respondents had
not availed of other sources of inquiry prior to issuing the challenged
Circulars. operators of public conveyances are not the only primary
sources of the data and information that may be desired by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is
neither violative of procedural due process. As held in Central Bank vs.
Hon. Cloribel and Banco Filipino, 44 SCRA 307 (1972):
Pevious notice and hearing as elements of due process,
are constitutionally required for the protection of life or
vested property rights, as well as of liberty, when its
limitation or loss takes place in consequence of a judicial
or quasi-judicial proceeding, generally dependent upon a
past act or event which has to be established or
ascertained. It is not essential to the validity of general
rules or regulations promulgated to govern future conduct
of a class or persons or enterprises, unless the law
provides otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is
arbitrary and oppressive because the roadworthiness of taxicabs depends
upon their kind of maintenance and the use to which they are subjected,
and, therefore, their actual physical condition should be taken into
consideration at the time of registration. As public contend, however, it is
impractical to subject every taxicab to constant and recurring evaluation,
not to speak of the fact that it can open the door to the adoption of multiple
standards, possible collusion, and even graft and corruption. A reasonable
standard must be adopted to apply to an vehicles affected uniformly, fairly,
and justly. The span of six years supplies that reasonable standard. The
product of experience shows that by that time taxis have fully depreciated,
their cost recovered, and a fair return on investment obtained. They are
also generally dilapidated and no longer fit for safe and comfortable
service to the public specially considering that they are in continuous
operation practically 24 hours everyday in three shifts of eight hours per
shift. With that standard of reasonableness and absence of arbitrariness,
the requirement of due process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal
protection of the law because the same is being enforced in Metro Manila
only and is directed solely towards the taxi industry. At the outset it should
be pointed out that implementation outside Metro Manila is also envisioned
in Memorandum Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum
Circular, the rules herein shall immediately be effective in
Metro Manila. Its implementation outside Metro Manila
shall be carried out only after the project has been
implemented in Metro Manila and only after the date has
been determined by the Board. 4
In fact, it is the understanding of the Court that implementation of the
Circulars in Cebu City is already being effected, with the BOT in the
process of conducting studies regarding the operation of taxicabs in other
cities.
The Board's reason for enforcing the Circular initially in Metro Manila is
that taxicabs in this city, compared to those of other places, are subjected
to heavier traffic pressure and more constant use. This is of common SO ORDERED.
knowledge. Considering that traffic conditions are not the same in every
city, a substantial distinction exists so that infringement of the equal
protection clause can hardly be successfully claimed.

As enunciated in the preambular clauses of the challenged BOT Circular,

the overriding consideration is the safety and comfort of the riding public
from the dangers posed by old and dilapidated taxis. The State, in the
exercise, of its police power, can prescribe regulations to promote the
health, morals, peace, good order, safety and general welfare of the
people. It can prohibit all things hurtful to comfort, safety and welfare of
society. 5 It may also regulate property rights. 6 In the language of Chief
Justice Enrique M. Fernando "the necessities imposed by public welfare
may justify the exercise of governmental authority to regulate even if
thereby certain groups may plausibly assert that their interests are
disregarded". 7

In so far as the non-application of the assailed Circulars to other

transportation services is concerned, it need only be recalled that the
equal protection clause does not imply that the same treatment be
accorded all and sundry. It applies to things or persons Identically or
similarly situated. It permits of classification of the object or subject of the
law provided classification is reasonable or based on substantial
distinction, which make for real differences, and that it must apply equally
to each member of the class. 8 What is required under the equal protection
clause is the uniform operation by legal means so that all persons under
Identical or similar circumstance would be accorded the same treatment
both in privilege conferred and the liabilities imposed. 9 The challenged
Circulars satisfy the foregoing criteria.

Evident then is the conclusion that the questioned Circulars do not suffer
from any constitutional infirmity. To declare a law unconstitutional, the
infringement of constitutional right must be clear, categorical and
undeniable. 10

WHEREFORE, the Writs prayed for are denied and this Petition is hereby
dismissed. No costs.
TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON,
APOLONIA RAMIREZ and LOURDES LOMIBAO, as component
members of the STA. CRUZ BARBERSHOP ASSOCIATION, in their
own behalf and in representation of the other owners of barbershops
in the City of Manila, Petitioners-Appellants, v. HON. ANTONIO J.
VILLEGAS, City Mayor of Manila, HON. HERMINIO A. ASTORGA, Vice-
Mayor and Presiding Officer of the Municipal Board in relation to
Republic Act 4065, THE MUNICIPAL BOARD OF THE CITY OF
MANILA and EDUARDO QUINTOS SR., Chief of Police of the City of
Manila, Respondents-Appellees.
Joaquin P. Yuseco, Jr. for Petitioners-Appellants.
Leonardo L. Arguelles for Respondent-Appellant.
DECISION
succeed. As pointed out in the brief of respondents-appellees, it is a police
power measure. The objectives behind its enactment are:" (1) To be able
to impose payment of the license fee for engaging in the business of
massage clinic under Ordinance No. 3659 as amended by Ordinance
4767, an entirely different measure than the ordinance regulating the
business of barbershops and, (2) in order to forestall possible immorality
which might grow out of the construction of separate rooms for massage of
customers." 3 This Court has been most liberal in sustaining ordinances
based on the general welfare clause. As far back as U.S. v. Salaveria, 4 a
1918 decision, this Court through Justice Malcolm made clear the
significance and scope of such a clause, which "delegates in statutory
form the police power to a municipality. As above stated, this clause has
been given wide application by municipal authorities and has in its relation
to the particular circumstances of the case been liberally construed by the
courts. Such, it is well to recall, is the progressive view of Philippine
jurisprudence." 5 As it was then, so it has continued to be. 6 There is no
showing, therefore, of the unconstitutionality of such ordinance.

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

FERNANDO, J.:

This is an appeal from an order of the lower court dismissing a suit for
declaratory relief challenging the constitutionality based on Ordinance No.
4964 of the City of Manila, the contention being that it amounts to a
deprivation of property of petitioners-appellants of their means of livelihood
without due process of law. The assailed ordinance is worded thus: "It
shall be prohibited for any operator of any barber shop to conduct the
business of massaging customers or other persons in any adjacent room
or rooms of said barber shop, or in any room or rooms within the same
building where the barber shop is located as long as the operator of the
barber shop and the rooms where massaging is conducted is the same
person." 1 As noted in the appealed order, petitioners-appellants admitted
that criminal cases for the violation of this ordinance had been previously
filed and decided. The lower court, therefore, held that a petition for
declaratory relief did not lie, its availability being dependent on there being
as yet no case involving such issue having been filed.

Even if such were not the case, the attack against the validity cannot
G.R. No. 111097 July 20, 1994
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE
ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE
AMUSEMENT AND GAMING CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a
casino in Cagayan de Oro City. Civic organizations angrily denounced the
project. The religious elements echoed the objection and so did the
women's groups and the youth. Demonstrations were led by the mayor
and the city legislators. The media trumpeted the protest, describing the
casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in
several cities, PAGCOR decided to expand its operations to Cagayan de
Oro City. To this end, it leased a portion of a building belonging to Pryce
Properties Corporation, Inc., one of the herein private respondents,
renovated and equipped the same, and prepared to inaugurate its casino
there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was
swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353
reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF
BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR
THE USING AND ALLOWING TO BE USED ITS
PREMISES OR PORTION THEREOF FOR THE
OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the
City of Cagayan de Oro, in session assembled that:
Sec. 1. — That pursuant to the policy of the city banning
the operation of casino within its territorial jurisdiction, no
business permit shall be issued to any person, partnership
or corporation for the operation of casino within the city
limits.
Sec. 2. — That it shall be a violation of existing business
permit by any persons, partnership or corporation to use
its business establishment or portion thereof, or allow the
use thereof by others for casino operation and other
gambling activities.
Sec. 3. — PENALTIES. — Any violation of such existing
business permit as defined in the preceding section shall
suffer the following penalties, to wit:
a) Suspension of the
business permit for sixty
(60) days for the first
offense and a fine of
P1,000.00/day
 b) Suspension of the WHEREAS, under Art. 3, section 458, No. (4), sub
business permit for Six paragraph VI of the Local Government Code of 1991
(6) months for the second (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI
offense, and a fine of of the implementing rules of the Local Government Code,
P3,000.00/day the City Council as the Legislative Body shall enact
measure to suppress any activity inimical to public morals
c) Permanent revocation and general welfare of the people and/or regulate or
of the business permit prohibit such activity pertaining to amusement or
and imprisonment of One entertainment in order to protect social and moral welfare
(1) year, for the third and of the community;
subsequent offenses.
NOW THEREFORE,
Sec. 4. — This Ordinance shall take effect ten (10) days
from publication thereof. BE IT ORDAINED by the City Council in session duly
assembled that:
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No.
3375-93 reading as follows: Sec. 1. — The operation of gambling CASINO in the City
of Cagayan de Oro is hereby prohibited.
ORDINANCE NO. 3375-93
Sec. 2. — Any violation of this Ordinance shall be subject
AN ORDINANCE PROHIBITING THE OPERATION OF to the following penalties:
CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR. a) Administrative fine of P5,000.00 shall be imposed
against the proprietor, partnership or corporation
WHEREAS, the City Council established a policy as early undertaking the operation, conduct, maintenance of
as 1990 against CASINO under its Resolution No. 2295; gambling CASINO in the City and closure thereof;

WHEREAS, on October 14, 1992, the City Council passed
another Resolution No. 2673, reiterating its policy against
the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed
Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any
establishment for the using and allowing to be used its
premises or portion thereof for the operation of CASINO;
b) Imprisonment of not less than six (6) months nor more
than one (1) year or a fine in the amount of P5,000.00 or
both at the discretion of the court against the manager,
supervisor, and/or any person responsible in the
establishment, conduct and maintenance of gambling
CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days
after its publication in a local newspaper of general
circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was
joined by PAGCOR as intervenor and supplemental petitioner. Their
challenge succeeded. On March 31, 1993, the Court of Appeals declared
the ordinances invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13,
1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for
review under Rule 45 of the Rules of Court. 3 They aver that the
respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of
the City of Cagayan de Oro does not have the power and
authority to prohibit the establishment and operation of a
PAGCOR gambling casino within the City's territorial
limits.
2. The phrase "gambling and other prohibited games of
chance" found in Sec. 458, par. (a), sub-par. (1) — (v) of
R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869
and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino
and partial to cockfighting and are therefore invalid on that
point.
5. The questioned Ordinances are not reasonable, not
consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws
or policy of the State.
6. It had no option but to follow the ruling in the case
of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14,
1991, 197 SCRA 53 in disposing of the issues presented
in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize
and regulate all games of chance, including casinos on land and sea within
the territorial jurisdiction of the Philippines. In Basco v. Philippine
Amusements and Gaming Corporation, 4 this Court sustained the
constitutionality of the decree and even cited the benefits of the entity to
the national economy as the third highest revenue-earner in the
government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered
to enact ordinances for the purposes indicated in the Local Government
Code. It is expressly vested with the police power under what is known as
the General Welfare Clause now embodied in Section 16 as follows:
Sec. 16. — General Welfare. — Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-
reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social
justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. — Powers, Duties, Functions and
Compensation. — (a) The Sangguniang Panlungsod, as
the legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section
16 of this Code and in the proper exercise of the corporate
 powers of the city as provided for under Section 22 of this
Code, and shall:
(1) Approve ordinances and pass resolutions necessary
for an efficient and effective city government, and in this
connection, shall:
x x x           x x x          x x x
(v) Enact ordinances
intended to prevent,
suppress and impose
appropriate penalties for
habitual drunkenness in
public places, vagrancy,
mendicancy, prostitution,
establishment and
maintenance of houses of
ill repute, gambling and
other prohibited games of
chance, fraudulent
devices and ways to
obtain money or property,
drug addiction,
maintenance of drug
dens, drug pushing,
juvenile delinquency, the
printing, distribution or
exhibition of obscene or
pornographic materials or
publications, and such
other activities inimical to
the welfare and morals of
the inhabitants of the city;
This section also authorizes the local government units to regulate
properties and businesses within their territorial limits in the interest of the
general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang
Panlungsod may prohibit the operation of casinos because they involve
games of chance, which are detrimental to the people. Gambling is not
allowed by general law and even by the Constitution itself. The legislative
power conferred upon local government units may be exercised over all
kinds of gambling and not only over "illegal gambling" as the respondents
erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has
the authority to prohibit them within its territory pursuant to the authority
entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local
autonomy as mandated in Article II, Section 25, and Article X of the
Constitution, as well as various other provisions therein seeking to
strengthen the character of the nation. In giving the local government units
the power to prevent or suppress gambling and other social problems, the
Local Government Code has recognized the competence of such
communities to determine and adopt the measures best expected to
promote the general welfare of their inhabitants in line with the policies of
the State.
The petitioners also stress that when the Code expressly authorized the
local government units to prevent and suppress gambling and other
prohibited games of chance, like craps, baccarat, blackjack and roulette, it
meant all forms of gambling without distinction. Ubi lex non distinguit, nec
nos distinguere debemos. 6 Otherwise, it would have expressly excluded
from the scope of their power casinos and other forms of gambling
authorized by special law, as it could have easily done. The fact that it did
not do so simply means that the local government units are permitted to
prohibit all kinds of gambling within their territories, including the operation
of casinos.
The adoption of the Local Government Code, it is pointed out, had the
effect of modifying the charter of the PAGCOR. The Code is not only a
later enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the PAGCOR
under the decree are expressly discontinued by the Code insofar as they
do not conform to its philosophy and provisions, pursuant to Par. (f) of its
repealing clause reading as follows:
(f) All general and special laws, acts, city charters,
decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of
the Local Government Code on P.D. 1869, the doubt must be resolved in
favor of the petitioners, in accordance with the direction in the Code calling
for its liberal interpretation in favor of the local government units. Section 5
of the Code specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation of
the provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit
shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government
unit. Any fair and reasonable doubt as to the existence of
the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local
government units  in accelerating economic development
and upgrading the quality of life for the people in the
community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite
various provisions of the Constitution and several decisions of this Court
expressive of the general and official disapprobation of the vice. They
invoke the State policies on the family and the proper upbringing of the
youth and, as might be expected, call attention to the old case of U.S. v.
Salaveria,7 which sustained a municipal ordinance prohibiting the playing
of  panguingue. The petitioners decry the immorality of gambling. They
also impugn the wisdom of P.D. 1869 (which they describe as "a martial
law instrument") in creating PAGCOR and authorizing it to operate casinos
"on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not
illegal per se. While it is generally considered inimical to the interests of
the people, there is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning it at all. It is left to
Congress to deal with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-
racing. In making such choices, Congress has consulted its own wisdom,
which this Court has no authority to review, much less reverse. Well has it
been said that courts do not sit to resolve the merits of conflicting
theories. 8 That is the prerogative of the political departments. It is settled
that questions regarding the wisdom, morality, or practicibility of statutes
are not addressed to the judiciary but may be resolved only by the
legislative and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way these
branches decide, they are answerable only to their own conscience and
the constituents who will ultimately judge their acts, and not to the courts of
justice.
The only question we can and shall resolve in this petition is the validity of
Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the
Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so
only by the criteria laid down by law and not by our own convictions on the
propriety of gambling.
The tests of a valid ordinance are well established. A long line of
decisions 9 has held that to be valid, an ordinance must conform to the
following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government
Code, local government units are authorized to prevent or suppress,
among others, "gambling and other prohibited games of chance."
Obviously, this provision excludes games of chance which are not
prohibited but are in fact permitted by law. The petitioners are less than
accurate in claiming that the Code could have excluded such games of
chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should
be interpreted in relation to, or given the same meaning of, words with
which it is associated. Accordingly, we conclude that since the word
"gambling" is associated with "and other prohibited games of chance," the
word should be read as referring to only illegal gambling which, like
the other  prohibited games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite
conclusively. But we will not. The vigorous efforts of the petitioners on
behalf of the inhabitants of Cagayan de Oro City, and the earnestness of
their advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene
P.D. 1869 and the public policy embodied therein insofar as they prevent
PAGCOR from exercising the power conferred on it to operate a casino in
Cagayan de Oro City. The petitioners have an ingenious answer to this
misgiving. They deny that it is the ordinances that have changed P.D.
1869 for an ordinance admittedly cannot prevail against a statute. Their
theory is that the change has been made by the Local Government Code
itself, which was also enacted by the national lawmaking authority. In their
view, the decree has been, not really repealed by the Code, but merely
"modified  pro tanto" in the sense that PAGCOR cannot now operate a
casino over the objection of the local government unit concerned. This
modification of P.D. 1869 by the Local Government Code is permissible
because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting
that the decree has only been "modified pro tanto," they are actually
arguing that it is already dead, repealed and useless for all intents and
purposes because the Code has shorn PAGCOR of all power to centralize
and regulate casinos. Strictly speaking, its operations may now be not only
prohibited by the local government unit; in fact, the prohibition is not only
discretionary but mandated by Section 458 of the Code if the word "shall"
as used therein is to be given its accepted meaning. Local government
units have now no choice but to prevent and suppress gambling, which in
the petitioners' view includes both legal and illegal gambling. Under this
construction, PAGCOR will have no more games of chance to regulate or
centralize as they must all be prohibited by the local government units
pursuant to the mandatory duty imposed upon them by the Code. In this
situation, PAGCOR cannot continue to exist except only as a toothless
tiger or a white elephant and will no longer be able to exercise its powers
as a prime source of government revenue through the operation of
casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing
clause, conveniently discarding the rest of the provision which
painstakingly mentions the specific laws or the parts thereof which are
repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of
them. A reading of the entire repealing clause, which is reproduced below,
will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg.
337, otherwise known as the "Local Government Code,"
Executive Order No. 112 (1987), and Executive Order No.
319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such
other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are
hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act
No. 1939 regarding hospital fund; Section 3, a (3) and b
(2) of Republic Act. No. 5447 regarding the Special
Education Fund; Presidential Decree No. 144 as amended
by Presidential Decree Nos. 559 and 1741; Presidential
Decree No. 231 as amended; Presidential Decree No. 436
as amended by Presidential Decree No. 558; and
Presidential Decree Nos. 381, 436, 464, 477, 526, 632,
752, and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby repealed
insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or
amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16, and 29 of
Presidential Decree No. 704; Sections 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68,
69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463,
as amended; and Section 16 of Presidential Decree No.
972, as amended, and
(f) All general and special laws, acts, city charters,
decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly
presumed in the absence of a clear and unmistakable showing of such
intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication
all proceed on the assumption that if the act of later date
clearly reveals an intention on the part of the lawmaking
power to abrogate the prior law, this intention must be
given effect; but there must always be a sufficient
revelation of this intention, and it has become an
unbending rule of statutory construction that the intention
to repeal a former law will not be imputed to the
Legislature when it appears that the two statutes, or
provisions, with reference to which the question arises
bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the
contrary, as the private respondent points out, PAGCOR is mentioned as
the source of funding in two later enactments of Congress, to wit, R.A.
7309, creating a Board of Claims under the Department of Justice for the
benefit of victims of unjust punishment or detention or of violent crimes,
and R.A. 7648, providing for measures for the solution of the power crisis.
PAGCOR revenues are tapped by these two statutes. This would show
that the PAGCOR charter has not been repealed by the Local Government
Code but has in fact been improved as it were to make the entity more
responsive to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute
against another in an inevitably destructive confrontation, courts must
exert every effort to reconcile them, remembering that both laws deserve a
becoming respect as the handiwork of a coordinate branch of the
government. On the assumption of a conflict between P.D. 1869 and the
Code, the proper action is not to uphold one and annul the other but to
give effect to both by harmonizing them if possible. This is possible in the
case before us. The proper resolution of the problem at hand is to hold that
under the Local Government Code, local government units may (and
indeed must) prevent and suppress all kinds of gambling within their
territories except only those allowed by statutes like P.D. 1869. The
exception reserved in such laws must be read into the Code, to make both
the Code and such laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of
gambling, to wit, the illegal and those authorized by law. Legalized
gambling is not a modern concept; it is probably as old as illegal gambling,
if not indeed more so. The petitioners' suggestion that the Code authorizes
them to prohibit all kinds of gambling would erase the distinction between
these two forms of gambling without a clear indication that this is the will of
the legislature. Plausibly, following this theory, the City of Manila could, by
mere ordinance, prohibit the Philippine Charity Sweepstakes Office from
conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the
races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A.
983.
In light of all the above considerations, we see no way of arriving at the
conclusion urged on us by the petitioners that the ordinances in question
are valid. On the contrary, we find that the ordinances violate P.D. 1869,
which has the character and force of a statute, as well as the public policy
expressed in the decree allowing the playing of certain games of chance
despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene
a statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local government units
can undo the acts of Congress, from which they have derived their power
in the first place, and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and derive their
powers and rights wholly from the legislature. It breathes
into them the breath of life, without which they cannot
exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some
constitutional limitation on the right, the legislature might,
by a single act, and if we can suppose it capable of so
great a folly and so great a wrong, sweep from existence
all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation
on the right so far as to the corporation themselves are
concerned. They are, so to phrase it, the mere tenants at
will of the legislature. 11
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning
to detract from that policy, we here confirm that Congress retains control of
the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes
the power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the
power to tax, 12 which cannot now be withdrawn by mere statute. By and
large, however, the national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the
welfare of their constituents and their apprehensions that the welfare of
Cagayan de Oro City will be endangered by the opening of the casino. We
share the view that "the hope of large or easy gain, obtained without
special effort, turns the head of the workman" 13 and that "habitual
gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we
declared: "The social scourge of gambling must be stamped out. The laws
against gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of
mischief." Nevertheless, we must recognize the power of the legislature to
decide, in its own wisdom, to legalize certain forms of gambling, as was
done in P.D. 1869 and impliedly affirmed in the Local Government Code.
That decision can be revoked by this Court only if it contravenes the
Constitution as the touchstone of all official acts. We do not find such
contravention here.
We hold that the power of PAGCOR to centralize and regulate all games
of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been
modified by the Local Government Code, which empowers the local
government units to prevent or suppress only those forms of gambling
prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of
a statute that cannot be amended or nullified by a mere ordinance. Hence,
it was not competent for the Sangguniang Panlungsod of Cagayan de Oro
City to enact Ordinance No. 3353 prohibiting the use of buildings for the
operation of a casino and Ordinance No. 3375-93 prohibiting the operation
of casinos. For all their praiseworthy motives, these ordinances are
contrary to P.D. 1869 and the public policy announced therein and are
therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the
respondent Court of Appeals is AFFIRMED, with costs against the
petitioners. It is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo,
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
 Separate Opinions
PADILLA, J.,  concurring:
I concur with the majority holding that the city ordinances in question
cannot modify much less repeal PAGCOR's general authority to establish
and maintain gambling casinos anywhere in the Philippines under
Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR),
197 SCRA 52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It is,
therefore, the political departments of government,
namely, the legislative and the executive that should
decide on what government should do in the entire area of
gambling, and assume  full responsibility to the people for
such policy." (Emphasis supplied)
However, despite the legality of the opening and operation of a casino in
Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view
that gambling in any form runs counter to the government's own efforts to
re-establish and resurrect the Filipino moral character which is generally
perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to
carefully weigh the advantages and disadvantages of setting up more
gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is
not enough reason for setting up more gambling casinos because,
undoubtedly, this will not help improve, but will cause a further
deterioration in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always
moral and 2) the ends do not always justify the means.
As in Basco, I can easily visualize  prostitution at par with gambling. And
yet, legalization of the former will not render it any less reprehensible even
if substantial revenue for the government can be realized from it. The
same is true of gambling.
In the present case, it is my considered view that the national government
(through PAGCOR) should re-examine and re-evaluate its decision
of imposing the gambling casino on the residents of Cagayan de Oro City;
for it is abundantly clear that public opinion in the city is very much against
it, and again the question must be seriously deliberated: will the prospects
of revenue to be realized from the casino outweigh the further destruction
of the Filipino sense of values?
 DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my
views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties
Corporation (PRYCE) directly filed with the Court of Appeals its so-called
petition for  prohibition, thereby invoking the said court's original jurisdiction
to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,
however, the principal cause of action therein is one for declaratory relief:
to declare null and unconstitutional — for, inter alia, having been enacted
without or in excess of jurisdiction, for impairing the obligation of contracts,
and for being inconsistent with public policy — the challenged ordinances
enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro.
The intervention therein of public respondent Philippine Amusement and
Gaming Corporation (PAGCOR) further underscores the "declaratory
relief" nature of the action. PAGCOR assails the ordinances for being
contrary to the non-impairment and equal protection clauses of the
Constitution, violative of the Local Government Code, and against the
State's national policy declared in P.D. No. 1869. Accordingly, the Court of
Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for  prohibition, then, under this
Court's established policy relative to the hierarchy of courts, the petition
should have been filed with the Regional Trial Court of Cagayan de Oro
City. I find no special or compelling reason why it was not filed with the
said court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the
Court of Appeals may have been impelled by tactical considerations. A
dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma  (172 SCRA 415, [1989])
and Defensor-Santiago vs. Vasquez  (217 SCRA 633 [1993]).
In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs
of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive.
It is shared by this Court with Regional Trial Courts
(formerly Courts of First Instance), which may issue the
writ, enforceable in any part of their respective regions. It
is also shared by this court, and by the Regional Trial
Court, with the Court of Appeals (formerly, Intermediate
Appellate Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was restricted
by those "in aid of its appellate jurisdiction." This
concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a
hierarchy of courts. That hierarchy is determinative of the
revenue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court's
original jurisdiction to issue these writs should be allowed
only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This
is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within
its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the
restriction of the jurisdiction of the Court of Appeals in this
regard, supra — resulting from the deletion of the
qualifying phrase, "in aid of its appellate jurisdiction" —
was evidently intended precisely to relieve this Court pro
tanto of the burden of dealing with applications for
extraordinary writs which, but for the expansion of the
Appellate Court's corresponding jurisdiction, would have
had to be filed with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in
this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of litigants
who initiate recourses before us, to disregard the
hierarchy of courts in our judicial system by seeking relief
directly from this Court despite the fact that the same is
available in the lower courts in the exercise of their original
or concurrent jurisdiction, or is even mandated by law to
be sought therein. This practice must be stopped, not only
because of the imposition upon the previous time of this
Court but also because of the inevitable and resultant
delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the
lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We, therefore,
reiterate the judicial policy that this Court will not entertain
direct resort to it unless the redress desired cannot be
obtained in the appropriate courts or where exceptional
and compelling circumstances justify availment of a
remedy within and calling for the exercise of our primary
jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An
Ordinance Prohibiting the Issuance of Business Permit and Canceling
Existing Business Permit To Any Establishment for the Using and Allowing
to be Used Its Premises or Portion Thereof for the Operation of Casino,"
and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
Operation of Casino and Providing Penalty for Violation Therefor." They
were enacted to implement Resolution No. 2295 entitled, "Resolution
Declaring As a Matter of Policy to Prohibit and/or Not to Allow the
Establishment of the Gambling Casino in the City of Cagayan de Oro,"
which was promulgated on 19 November 1990 — nearly two years before
PRYCE and PAGCOR entered into a contract of lease under which the
latter leased a portion of the former's Pryce Plaza Hotel for the operation
of a gambling casino — which resolution was vigorously reiterated in
Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang
Panglungsod's express powers conferred by Section 458, paragraph (a),
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government
Code, and pursuant to its implied power under Section 16 thereof (the
general welfare clause) which reads:
Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-
reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social
justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments
(such as the City of Cagayan de Oro) the above powers and functions, the
Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as
PAGCOR's general authority to establish and maintain gambling casinos
anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No.
1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional  primarily because it is in contravention to P.D. No.
1869 is unwarranted. A contravention of a law is not necessarily a
contravention of the constitution. In any case, the ordinances can still
stand even if they be conceded as offending P.D. No. 1869. They can be
reconciled, which is not impossible to do. So reconciled, the ordinances
should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of
Cagayan de Oro City are, for obvious reasons, strongly against the
opening of the gambling casino in their city. Gambling, even if legalized,
would be inimical to the general welfare of the inhabitants of the City, or of
any place for that matter. The PAGCOR, as a government-owned
corporation, must consider the valid concerns of the people of the City of
Cagayan de Oro and should not impose its will upon them in an arbitrary, if
not despotic, manner.
 
# Separate Opinions
PADILLA, J.,  concurring:
I concur with the majority holding that the city ordinances in question
cannot modify much less repeal PAGCOR's general authority to establish
and maintain gambling casinos anywhere in the Philippines under
Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation
(PAGCOR), 197 SCRA 52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It is,
therefore, the political departments of government,
namely, the legislative and the executive that should
decide on what government should do in the entire area of
gambling, and assume full responsibility to the people for
such policy. (emphasis supplied)
However, despite the legality of the opening and operation of a casino in
Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view
that gambling in any form runs counter to the government's own efforts to
re-establish and resurrect the Filipino moral character which is generally
perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to
carefully weigh the advantages and disadvantages of setting up more
gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is
not enough reason for setting up more gambling casinos because,
undoubtedly, this will not help improve, but will cause a further
deterioration in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always
moral and 2) the ends do not always justify the means.
As in Basco, I can easily visualize  prostitution at par with gambling. And
yet, legalization of the former will not render it any less reprehensible even
if substantial revenue for the government can be realized from it. The
same is true of gambling.
In the present case, it is my considered view that the national government
(through PAGCOR) should re-examine and re-evaluate its decision
of imposing the gambling casino on the residents of Cagayan de Oro City;
for it is abundantly clear that public opinion in the city is very much against
it, and again the question must be seriously deliberated: will the prospects
of revenue to be realized from the casino outweigh the further destruction
of the Filipino sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my
views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties
Corporation (PRYCE) directly filed with the Court of Appeals its so-called
petition for  prohibition, thereby invoking the said court's original jurisdiction
to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,
however, the principal cause of action therein is one for declaratory relief:
to declare null and unconstitutional — for, inter alia, having been enacted
without or in excess of jurisdiction, for impairing the obligation of contracts,
and for being inconsistent with public policy — the challenged ordinances
enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro.
The intervention therein of public respondent Philippine Amusement and
Gaming Corporation (PAGCOR) further underscores the "declaratory
relief" nature of the action. PAGCOR assails the ordinances for being
contrary to the non-impairment and equal protection clauses of the
Constitution, violative of the Local Government Code, and against the
State's national policy declared in P.D. No. 1869. Accordingly, the Court of
Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for  prohibition, then, under this
Court's established policy relative to the hierarchy of courts, the petition
should have been filed with the Regional Trial Court of Cagayan de Oro
City. I find no special or compelling reason why it was not filed with the
said court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the
Court of Appeals may have been impelled by tactical considerations. A
dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma  (172 SCRA 415, [1989])
and Defensor-Santiago vs. Vasquez  (217 SCRA 633 [1993]).
In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs
of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus  and injunction) is not exclusive.
It is shared by this Court with Regional Trial Courts
(formerly Courts of First Instance), which may issue the
writ, enforceable in any part of their respective regions. It
is also shared by this court, and by the Regional Trial
Court, with the Court of Appeals (formerly, Intermediate
Appellate Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was restricted
by those "in aid of its appellate jurisdiction." This
concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a
hierarchy of courts. That hierarchy is determinative of the
revenue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court's
original jurisdiction to issue these writs should be allowed
only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This
is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within
its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the
restriction of the jurisdiction of the Court of Appeals in this
regard, supra — resulting from the deletion of the
qualifying phrase, "in aid of its appellate jurisdiction" —
was evidently intended precisely to relieve this Court pro
tanto of the burden of dealing with applications for
extraordinary writs which, but for the expansion of the
Appellate Court's corresponding jurisdiction, would have
had to be filed with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in
this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of litigants
who initiate recourses before us, to disregard the
hierarchy of courts in our judicial system by seeking relief
directly from this Court despite the fact that the same is
available in the lower courts in the exercise of their original
or concurrent jurisdiction, or is even mandated by law to
be sought therein. This practice must be stopped, not only
because of the imposition upon the previous time of this
Court but also because of the inevitable and resultant
delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the
lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We, therefore,
reiterate the judicial policy that this Court will not entertain
direct resort to it unless the redress desired cannot be
obtained in the appropriate courts or where exceptional
and compelling circumstances justify availment of a
remedy within and calling for the exercise of our primary
jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An
Ordinance Prohibiting the Issuance of Business Permit and Canceling
Existing Business Permit To Any Establishment for the Using and Allowing
to be Used Its Premises or Portion Thereof for the Operation of Casino,"
and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
Operation of Casino and Providing Penalty for Violation Therefor." They
were enacted to implement Resolution No. 2295 entitled, "Resolution
Declaring As a Matter of Policy to Prohibit and/or Not to Allow the
Establishment of the Gambling Casino in the City of Cagayan de Oro,"
which was promulgated on 19 November 1990 — nearly two years before
PRYCE and PAGCOR entered into a contract of lease under which the
latter leased a portion of the former's Pryce Plaza Hotel for the operation
of a gambling casino — which resolution was vigorously reiterated in
Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang
Panglungsod's express powers conferred by Section 458, paragraph (a),
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government
Code, and pursuant to its implied power under Section 16 thereof (the
general welfare clause) which reads:
Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-
reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social
justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments
(such as the City of Cagayan de Oro) the above powers and functions, the
Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as
PAGCOR's general authority to establish and maintain gambling casinos
anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No.
1869.
III.
The nullification by the Court of Appeals of the challenged ordinances
as unconstitutional  primarily because it is in contravention to P.D. No.
1869 is unwarranted. A contravention of a law is not necessarily a
contravention of the constitution. In any case, the ordinances can still
stand even if they be conceded as offending P.D. No. 1869. They can be
reconciled, which is not impossible to do. So reconciled, the ordinances
should be construed as not applying to PAGCOR.

IV.

From the pleadings, it is obvious that the government and the people of
Cagayan de Oro City are, for obvious reasons, strongly against the
opening of the gambling casino in their city. Gambling, even if legalized,
would be inimical to the general welfare of the inhabitants of the City, or of
any place for that matter. The PAGCOR, as a government-owned
corporation, must consider the valid concerns of the people of the City of
Cagayan de Oro and should not impose its will upon them in an arbitrary, if
not despotic, manner.
G.R. No. 110249 August 21, 1997
ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO
TANO, TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO
TREMOCHA, FELIPE ONGONION, JR., ANDRES LINIJAN, ROBERT
LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO ARAGON,
TEODORICO ANDRE, ROMULO DEL ROSARIO, CHOLITO ANDRE,
ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR,
LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO LEONILA, JOSE
DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE, ROBERTO
REYES, DANILO PANGARUTAN, NOE GOLPAN, ESTANISLAO
ROMERO, NICANOR DOMINGO, ROLDAN TABANG, ADRIANO
TABANG, FREDDIE SACAMAY, MIGUEL TRIMOCHA, PACENCIO
LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN
ALMODAI, BILLY D. BARTOLAY, ALBINO D. LIQUE, MECHOR J.
LAYSON, MELANIE AMANTE, CLARO E. YATOC, MERGELDO B.
BALDEO, EDGAR M. ALMASETA, JOSELITO MANAEG, LIBERATO
ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA,
EDUARDO VALMORIA, WILFREDO MENDOZA, NAPOLEON
BABANGGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO
GABO, JERRY ROMERO, DAVID PANGGARUTAN, DANIEL
PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO
LEQUIZ, RONILO MODERABLE, BENEDICTO TORRES, ROSITO A.
VALDEZ, CRESENCIO A. SAYANG, NICOMEDES S. ACOSTA,
ERENEO A. SEGARINO, JR., WILFREDO A. RAUTO, DIOSDADO A.
ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B.
BATERZAL, ELISEO YBAÑEZ, DIOSDADO E. HANCHIC, EDDIE
ESCALICAS, ELEAZAR B. BATERZAL, DOMINADOR HALICHIC,
ROOSEVELT RISMO-AN, ROBERT C. MERCADER, TIRSO
ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR
VILLAROEL, ERNESTO C. YBAÑEZ, ARMANDO T. SANTILLAN, RUDY
S. SANTILLAN, JODJEN ILUSTRISIMO, NESTOR SALANGRON,
ALBERTO SALANGRON, ROGER L. ROXAS, FRANCISCO T.
ANTICANO, PASTOR SALANGRON, BIENVENIDO SANTILLAN,
GILBUENA LADDY, FIDEL BENJAMIN, JOVELITO BELGANO, HONEY
PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE
SHIPPERS ASSOCIATION OF PALAWAN, petitioners,
vs.
HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF
SANGGUNIANG PANLALAWIGAN OF PALAWAN, namely, VICE-
GOVERNOR JOEL T. REYES, JOSE D. ZABALA, ROSALINO R.
ACOSTA, JOSELITO A. CADLAON, ANDRES R. BAACO, NELSON P.
PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO,
ERNESTO A. LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S.
BAACO, WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL P.
ACOSTA, CITY MAYOR EDWARD HAGEDORN, MEMBERS OF
SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA, ALL
MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE
NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY
PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and
ALL JUDGES OF PALAWAN, REGIONAL, MUNICIPAL AND
METROPOLITAN, respondents.
DAVIDE, JR., J.:
Petitioners caption their petition as one for "Certiorari, Injunction With
Preliminary and Mandatory Injunction, with Prayer for Temporary
Restraining Order" and pray that this Court: (1) declare as unconstitutional:
(a) Ordinance No. 15-92, dated 15 December 1992, of the Sangguniang
Panglungsod of Puerto Princesa; (b) Office Order No. 23, Series of 1993,
dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero of
Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2, Series
of 1993, dated 19 February 1993, of the Sangguniang Panlalawigan of
Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents
Provincial and City Prosecutors of Palawan and Puerto Princesa City and
Judges of the Regional Trial Courts, Metropolitan Trial Courts 1 and
Municipal Circuit Trial Courts in Palawan from assuming jurisdiction over
and hearing cases concerning the violation of the Ordinances and of the
Office Order.
More appropriately, the petition is, and shall be treated as, a special civil
action for certiorari and prohibition.
The following is petitioners' summary of the factual antecedents giving rise B. CATFISH — A
to the petition: kind of fish under
the family of
1. On December 15, 1992, the Sangguniang Panlungsod ng Plotosidae, better
Puerto Princesa City enacted Ordinance No. 15-92 which took known as HITO-
effect on January 1, 1993 entitled: "AN ORDINANCE BANNING HITO;
THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE
PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO C. MUDFISH —
JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES A kind of fish
AND FOR OTHER PURPOSES THEREOF", the full text of which under the family
reads as follows: of
Orphicaphalisae
Sec. 1. Title of the Ordinance. — This Ordinance better known as
is entitled: AN ORDINANCE BANNING THE DALAG;
SHIPMENT OF ALL LIVE FISH AND LOBSTER
OUTSIDE PUERTO PRINCESA CITY FROM D. ALL LIVE
JANUARY 1, 1993 TO JANUARY 1, 1998 AND FISH — All alive,
PROVIDING EXEMPTIONS, PENALTIES AND breathing not
FOR OTHER PURPOSES THEREOF. necessarily
moving of all
Sec. 2. Purpose, Scope and Coverage. — To specie[s] use[d]
effectively free our City Sea Waters from Cyanide for food and for
and other Obnoxious substance[s], and shall aquarium
cover all persons and/or entities operating within purposes.
and outside the City of Puerto Princesa who is are
(sic) directly or indirectly in the business or E. LIVE
shipment of live fish and lobster outside the City. LOBSTER —
Several relatively,
Sec. 3. Definition of terms. — For purpose of this large marine
Ordinance the following are hereby defined: crusteceans [sic]
of the genus
Homarus that are
A. SEA BASS —
alive and
A kind of fish
breathing not
under the family
necessarily
of
moving.
Centropomidae,
better known as
APAHAP;
 Sec. 4. It shall be unlawful [for] any person or any
business enterprise or company to ship out from
Puerto Princesa City to any point of destination
either via aircraft or seacraft of any live fish and
lobster except SEA BASS, CATFISH, MUDFISH,
AND MILKFISH FRIES.
Sec. 5. Penalty Clause. — Any person/s and or
business entity violating this Ordinance shall be
penalized with a fine of not more than P5,000.00
or imprisonment of not more than twelve (12)
months, cancellation of their permit to do business
in the City of Puerto Princesa or all of the herein
stated penalties, upon the discretion of the court.
Sec. 6. If the owner and/or operator of the
establishment found violating the provisions of this
ordinance is a corporation or a partnership, the
penalty prescribed in Section 5 hereof shall be
imposed upon its president and/or General
Manager or Managing Partner and/or Manager, as
the case maybe [sic].
Sec. 7. Any existing ordinance or any provision of
any ordinance inconsistent to [sic] this ordinance
is deemed repealed.
Sec. 8. This Ordinance shall take effect on
January 1, 1993.
SO ORDAINED.
xxx xxx xxx
2. To implement said city ordinance, then Acting City Mayor
Amado L. Lucero issued Office Order No. 23, Series of 1993 dated
January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance
No. PD 426-14-74, otherwise known as "AN ORDINANCE
REQUIRING ANY PERSON ENGAGED OR INTENDING TO
ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING
OR PROFESSION OR HAVING IN HIS POSSESSION ANY OF
THE ARTICLES FOR WHICH A PERMIT IS REQUIRED TO BE
HAD, TO OBTAIN FIRST A MAYOR'S PERMIT" and "City
Ordinance No. 15-92, AN ORDINANCE BANNING THE
SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE
PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO
JANUARY 1, 1998, you are hereby authorized and directed to
check or conduct necessary inspections on cargoes containing live
fish and lobster being shipped out from the Puerto Princesa
Airport, Puerto Princesa Wharf or at any port within the jurisdiction
of the City to any point of destinations [sic] either via aircraft or
seacraft.
The purpose of the inspection is to ascertain whether the shipper
possessed the required Mayor's Permit issued by this Office and
the shipment is covered by invoice or clearance issued by the
local office of the Bureau of Fisheries and Aquatic Resources and
as to compliance with all other existing rules and regulations on
the matter.
Any cargo containing live fish and lobster without the required
documents as stated herein must be held for proper disposition.
In the pursuit of this Order, you are hereby authorized to
coordinate with the PAL Manager, the PPA Manager, the local
PNP Station and other offices concerned for the needed support
and cooperation. Further, that the usual courtesy and diplomacy
must be observed at all times in the conduct of the inspection.
Please be guided accordingly.
xxx xxx xxx
3. On February 19, 1993, the Sangguniang Panlalawigan,
Provincial Government of Palawan enacted Resolution No. 33
entitled: "A RESOLUTION PROHIBITING THE CATCHING,
GATHERING, POSSESSING, BUYING, SELLING AND
SHIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC
ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE
PHELUS FASCIATUS (SUNO). CROMILEPTES
ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200
GRAMS AND SPAWNING, TRIDACNA
GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER
PEARL, OYSTERS, GIANT CLAMS AND OTHER
SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER
SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR
GREEN GROUPER) AND FAMILY: BALISTIDAE (TROPICAL
AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND
COMING FROM PALAWAN WATERS", the full text of which reads
as follows:
WHEREAS, scientific and factual researches [sic]
and studies disclose that only five (5) percent of
the corals of our province remain to be in
excellent condition as [a] habitat of marine coral
dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the
destruction and devastation of the corals of our
province were principally due to illegal fishing
activities like dynamite fishing, sodium cyanide
fishing, use of other obnoxious substances and
other related activities;
WHEREAS, there is an imperative and urgent
need to protect and preserve the existence of the
remaining excellent corals and allow the
devastated ones to reinvigorate and regenerate
themselves into vitality within the span of five (5)
years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the
[sic] R.A. 7160 otherwise known as the Local
Government Code of 1991 empowers the
Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties
[upon] acts which endanger the environment such
as dynamite fishing and other forms of destructive
fishing, among others.
NOW, THEREFORE, on motion by Kagawad
Nelson P. Peneyra and upon unanimous decision
of all the members present;
Be it resolved as it is hereby resolved, to approve
Resolution No. 33, Series of 1993 of the
Sangguniang Panlalawigan and to enact
Ordinance No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN
SESSION ASSEMBLED:
Sec. 1. TITLE — This Ordinance shall be known
as an "Ordinance Prohibiting the catching,
gathering, possessing, buying, selling and
shipment of live marine coral dwelling aquatic
organisms, to wit: 1. Family: Scaridae (Mameng),
2. Epinephelus Fasciatus (Suno) 3. Cromileptes
altivelis (Panther or Senorita), lobster below 200
grams and spawning), 4. Tridacna Gigas
(Taklobo), 5. Pinctada Margaretefera (Mother
Pearl, Oysters, Giant Clams and other species), 6.
Penaeus Monodon (Tiger Prawn-breeder size or
mother), 7. Epinephelus Suillus (Loba or Green
Grouper) and 8. Family: Balistidae (T[r]opical
 Aquarium Fishes) for a period of five (5) years in
and coming from Palawan Waters.
Sec. II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared,
the policy of the state that the territorial and
political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable
them to attain their fullest development as self-
reliant communities and make them more
effective partners in the attainment of national
goals. Toward this end, the State shall provide for
[a] more responsive and accountable local
government structure instituted through a system
of decentralization whereby local government
units shall be given more powers, authority,
responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power
of [a] local Government Unit shall be liberally
interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of
devolution of powers and of the lower government
units. "Any fair and reasonable doubts as to the
existence of the power shall be interpreted in
favor of the Local Government Unit concerned."
3. Sec. 5-C (R.A. 7160). The general welfare
provisions in this Code shall be liberally
interpreted to give more powers to local
government units in accelerating economic
development and upgrading the quality of life for
the people in the community.
4. Sec. 16 (R.A. 7160). 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.
Sec. III. DECLARATION OF POLICY. — It is
hereby declared to be the policy of the Province of
Palawan to protect and conserve the marine
resources of Palawan not only for the greatest
good of the majority of the present generation but
with [the] proper perspective and consideration of
[sic] their prosperity, and to attain this end, the
Sangguniang Panlalawigan henceforth declares
that is (sic) shall be unlawful for any person or any
business entity to engage in catching, gathering,
possessing, buying, selling and shipment of live
marine coral dwelling aquatic organisms as
enumerated in Section 1 hereof in and coming out
of Palawan Waters for a period of five (5) years;
Sec. IV. PENALTY CLAUSE. — Any person
and/or business entity violating this Ordinance
shall be penalized with a fine of not more than
Five Thousand Pesos (P5,000.00), Philippine
Currency, and/or imprisonment of six (6) months
to twelve (12) months and confiscation and
forfeiture of paraphernalias [sic] and equipment in
favor of the government at the discretion of the
Court;
Sec. V. SEPARABILITY CLAUSE. — If for any
reason, a Section or provision of this Ordinance
shall be held as unconditional [sic] or invalid, it
shall not affect the other provisions hereof.
Sec. VI. REPEALING CLAUSE. — Any existing
Ordinance or a provision of any ordinance
 inconsistent herewith is deemed modified,
amended or repealed.
Sec. VII. EFFECTIVITY — This Ordinance shall
take effect ten (10) days after its publication.
SO ORDAINED.
xxx xxx xxx
4. The respondents implemented the said ordinances, Annexes
"A" and "C" hereof thereby depriving all the fishermen of the whole
province of Palawan and the City of Puerto Princesa of their only
means of livelihood and the petitioners Airline Shippers
Association of Palawan and other marine merchants from
performing their lawful occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello,
Angel de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were
even charged criminally under criminal case no. 93-05-C in the 1st
Municipal Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an
original carbon copy of the criminal complaint dated April 12, 1993
is hereto attached as Annex "D"; while xerox copies are attached
as Annex "D" to the copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand,
were charged by the respondent PNP with the respondent City
Prosecutor of Puerto Princess City, a xerox copy of the complaint
is hereto attached as Annex "E";
Without seeking redress from the concerned local government units,
prosecutor's office and courts, petitioners directly invoked our original
jurisdiction by filing this petition on 4 June 1993. In sum, petitioners
contend that:
First, the Ordinances deprived them of due process of law, their livelihood,
and unduly restricted them from the practice of their trade, in violation of
Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987
Constitution.
Second, Office Order No. 23 contained no regulation nor condition under
which the Mayor's permit could be granted or denied; in other words, the
Mayor had the absolute authority to determine whether or not to issue the
permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether
prohibited the catching, gathering, possession, buying, selling and
shipping of live marine coral dwelling organisms, without any distinction
whether it was caught or gathered through lawful fishing method," the
Ordinance took away the right of petitioners-fishermen to earn their
livelihood in lawful ways; and insofar as petitioners-members of Airline
Shippers Association are concerned, they were unduly prevented from
pursuing their vocation and entering "into contracts which are proper,
necessary, and essential to carry out their business endeavors to a
successful conclusion."
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and
void, the criminal cases based thereon against petitioners Tano and the
others have to be dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on
the petition, and furnished the Office of the Solicitor General with a copy
thereof.
In their comment filed on 13 August 1993, public respondents Governor
Socrates and Members of the Sangguniang Panlalawigan of Palawan
defended the validity of Ordinance No. 2, Series of 1993, as a valid
exercise of the Provincial Government's power under the general welfare
clause (Section 16 of the Local Government Code of 1991 [hereafter,
LGC]), and its specific power to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing under Section 447
(a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC.
They claimed that in the exercise of such powers, the Province of Palawan
had "the right and responsibility . . . to insure that the remaining coral
reefs, where fish dwells [sic], within its territory remain healthy for the
future generation." The Ordinance, they further asserted, covered only live
marine coral dwelling aquatic organisms which were enumerated in the
ordinance and excluded other kinds of live marine aquatic organisms not
dwelling in coral reefs; besides the prohibition was for only five (5) years to
protect and preserve the pristine coral and allow those damaged to
regenerate.
Aforementioned respondents likewise maintained that there was no
violation of the due process and equal protection clauses of the
Constitution. As to the former, public hearings were conducted before the
enactment of the Ordinance which, undoubtedly, had a lawful purpose and
employed reasonable means; while as to the latter, a substantial
distinction existed "between a fisherman who catches live fish with the
intention of selling it live, and a fisherman who catches live fish with no
intention at all of selling it live," i.e., "the former uses sodium cyanide while
the latter does not." Further, the Ordinance applied equally to all those
belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate
Issuance of a Temporary Restraining Order, claiming that despite the
pendency of this case, Branch 50 of the Regional Trial Court of Palawan
was bent on proceeding with Criminal Case No. 11223 against petitioners
Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano,
Baldomero Tano, Andres Linijan and Angel de Mesa for violation of
Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on
said plea, we issued on 11 November 1993 a temporary restraining order
directing Judge Angel Miclat of said court to cease and desist from
proceeding with the arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor General from filing
a comment, considering that as claimed by said office in its Manifestation
of 28 June 1994, respondents were already represented by counsel.
The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the
comment on the petition as the Answer, gave due course to the petition
and required the parties to submit their respective memoranda. 2
On 22 April 1997 we ordered impleaded as party respondents the
Department of Agriculture and the Bureau of Fisheries and Aquatic
Resources and required the Office of the Solicitor General to comment on
their behalf. But in light of the latter's motion of 9 July 1997 for an
extension of time to file the comment which would only result in further
delay, we dispensed with said comment.
After due deliberation on the pleadings filed, we resolved to dismiss this
petition for want of merit, and on 22 July 1997, assigned it to
the ponente to write the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first is
composed of Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo
Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, Felipe
Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were criminally
charged with violating Sangguniang Panlalawigan Resolution No. 33 and
Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal
Case No. 93-05-C of the 1st Municipal Circuit Trial Court (MCTC) of
Palawan;  3 and Robert Lim and Virginia Lim who were charged with
violating City Ordinance No. 15-92 of Puerto Princesa City and Ordinance
No. 2, Series of 1993, of the Province of Palawan before the Office of the
City Prosecutor of Puerto Princesa. 4 All of them, with the exception of
Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and
Virginia Lim, are likewise the accused in Criminal Case No. 11223 for the
violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan,
pending before Branch 50 of the Regional Trial Court of Palawan. 5
The second set of petitioners is composed of the rest of the petitioners
numbering seventy-seven (77), all of whom, except the Airline Shippers
Association of Palawan — an alleged private association of several marine
merchants — are natural persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent
the prosecution, trial and determination of the criminal cases until the
constitutionality or legality of the Ordinances they allegedly violated shall
have been resolved. The second set of petitioners merely claim that being
fishermen or marine merchants, they would be adversely affected by the
ordinance's.
As to the first set of petitioners, this special civil for certiorari must fail on
the ground of prematurity amounting to a lack of cause of action. There is
no showing that said petitioners, as the accused in the criminal cases,
have filed motions to quash the informations therein and that the same
were denied. The ground available for such motions is that the facts
charged therein do not constitute an offense because the ordinances in
question are unconstitutional.  6 It cannot then be said that the lower courts
acted without or in excess of jurisdiction or with grave abuse of discretion
to justify recourse to the extraordinary remedy of certiorari or prohibition. It
must further be stressed that even if petitioners did file motions to quash,
the denial thereof would not forthwith give rise to a cause of action under
Rule 65 of the Rules of Court. The general rule is that where a motion to
quash is denied, the remedy therefrom is not certiorari, but for the party
aggrieved thereby to go to trial without prejudice to reiterating special
defenses involved in said motion, and if, after trial on the merits an
adverse decision is rendered, to appeal therefrom in the manner
authorized by law.  7 And, even where in an exceptional circumstance such
denial may be the subject of a special civil action for certiorari, a motion for
reconsideration must have to be filed to allow the court concerned an
opportunity to correct its errors, unless such motion may be dispensed with
because of existing exceptional circumstances.  8 Finally, even if a motion
for reconsideration has been filed and denied, the remedy under Rule 65 is
still unavailable absent any showing of the grounds provided for in Section
1 thereof. 9 For obvious reasons, the petition at bar does not, and could
not have, alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for
DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in
question are a "nullity . . . for being unconstitutional." 10 As such, their
petition must likewise fail, as this Court is not possessed of original
jurisdiction over petitions for declaratory relief even if only questions of law
are involved,11 it being settled that the Court merely exercises appellate
jurisdiction over such petitions.12
II
Even granting arguendo that the first set of petitioners have a cause of
action ripe for the extraordinary writ of certiorari, there is here a clear
disregard of the hierarchy of courts, and no special and important reason
or exceptional and compelling circumstance has been adduced why direct
recourse to us should be allowed. While we have concurrent jurisdiction
with Regional Trial courts and with the Court of Appeals to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction, such concurrence gives petitioners no unrestricted freedom of
choice of court forum, so we held in People v. Cuaresma.13
This concurrence of jurisdiction is not . . . to be taken as according
to parties seeking any of the writs an absolute unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be
filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals. A direct invocation of the Supreme
Court's original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor,
clearly and specifically set out in the petition. This is established
policy. It is a policy necessary to prevent inordinate demands upon
the Court's time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. . . .
The Court feels the need to reaffirm that policy at this time, and to
enjoin strict adherence thereto in the light of what it perceives to
be a growing tendency on the part of litigants and lawyers to have
their applications for the so-called extraordinary writs, and
 sometimes even their appeals, passed upon and adjudicated
directly and immediately by the highest tribunal of the land. . . .
In Santiago v. Vasquez,14 this Court forcefully expressed that the
propensity of litigants and lawyers to disregard the hierarchy of courts
must be put to a halt, not only because of the imposition upon the precious
time of this Court, but also because of the inevitable and resultant delay,
intended or otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court, the proper forum under the rules
of procedure, or as better equipped to resolve the issues since this Court
is not a trier of facts. We reiterated "the judicial policy that this Court will
not entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the
exercise of [its] primary jurisdiction."
III
Notwithstanding the foregoing procedural obstacles against the first set of
petitioners, we opt to resolve this case on its merits considering that the
lifetime of the challenged Ordinances is about to end. Ordinance No. 15-92
of the City of Puerto Princesa is effective only up to 1 January 1998, while
Ordinance No. 2 of the Province of Palawan, enacted on 19 February
1993, is effective for only five (5) years. Besides, these Ordinances were
undoubtedly enacted in the exercise of powers under the new LGC relative
to the protection and preservation of the environment and are thus novel
and of paramount importance. No further delay then may be allowed in the
resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local
government units) enjoy the presumption of constitutionality. 15 To
overthrow this presumption, there must be a clear and unequivocal breach
of the Constitution, not merely a doubtful or argumentative contradiction. In
short, the conflict with the Constitution must be shown beyond reasonable
doubt.16 Where doubt exists, even if well-founded, there can be no finding
of unconstitutionality. To doubt is to sustain.17
After a scrutiny of the challenged Ordinances and the provisions of the
Constitution petitioners claim to have been violated, we find petitioners'
contentions baseless and so hold that the former do not suffer from any
infirmity, both under the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7,
Article XIII of the Constitution as having been transgressed by the
Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Sec. 2. . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone,
and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the
commitment to create economic opportunities based on
freedom of initiative and self-reliance.
xxx xxx xxx
Sec. 7. The State shall protect the rights of subsistence
fishermen, especially of local communities, to the
preferential use of the communal marine and fishing
resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology
and research, adequate financial, production, and
marketing assistance, and other services. The State shall
 also protect, develop, and conserve such resources. The preferential right of marginal fishermen is Section 149 of the LGC,
protection shall extend to offshore fishing grounds of which pertinently provides:
subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in Sec. 149. Fishery Rentals, Fees and Charges. — . . .
the utilization of marine and fishing resources.
(b) The sangguniang
There is absolutely no showing that any of the petitioners qualifies bayan may:
as a subsistence or marginal fisherman. In their petition, petitioner
Airline Shippers Association of Palawan is self-described as "a (1) Grant fishery
private association composed of Marine Merchants;" petitioners privileges to erect fish
Robert Lim and Virginia Lim, as "merchants;" while the rest of the corrals, oyster, mussels
petitioners claim to be "fishermen," without any qualification, or other aquatic beds or
however, as to their status. bangus fry areas, within a
definite zone of the
Since the Constitution does not specifically provide a definition of municipal waters, as
the terms "subsistence" or "marginal" fishermen, 18 they should be determined by
construed in their general and ordinary sense. A marginal it: Provided, however,
fisherman is an individual engaged in fishing whose margin of That duly registered
return or reward in his harvest of fish as measured by existing organizations and
price levels is barely sufficient to yield a profit or cover the cost of cooperatives of marginal
gathering the fish,19 while a subsistence fisherman is one whose fishermen shall have the
catch yields but the irreducible minimum for his preferential right to such
livelihood.20 Section 131(p) of the LGC (R.A. No. 7160) defines a fishery privileges . . . .
marginal farmer or fisherman as "an individual engaged in
subsistence farming or fishing which shall be limited to the sale, In a Joint Administrative Order No. 3 dated 25 April 1996, the
barter or exchange of agricultural or marine products produced by Secretary of the Department of Agriculture and the Secretary of
himself and his immediate family." It bears repeating that nothing the Department of Interior and Local Government prescribed
in the record supports a finding that any petitioner falls within guidelines concerning the preferential treatment of small fisherfolk
these definitions. relative to the fishery right mentioned in Section 149. This case,
however, does not involve such fishery right.
Besides, Section 2 of Article XII aims primarily not to bestow any
right to subsistence fishermen, but to lay stress on the duty of the Anent Section 7 of Article XIII, it speaks not only of the use of
State to protect the nation's marine wealth. What the provision communal marine and fishing resources, but of their protection,
merely recognizes is that the State may allow, by law, cooperative development and conservation. As hereafter shown, the
fish farming, with priority to subsistence fishermen and fishworkers ordinances in question are meant precisely to protect and
in rivers, lakes, bays and lagoons. Our survey of the statute books conserve our marine resources to the end that their enjoyment
reveals that the only provision of law which speaks of a may be guaranteed not only for the present generation, but also
for the generations to come.
The so-called "preferential right" of subsistence or marginal
fishermen to the use of marine resources is not at all absolute. In
accordance with the Regalian Doctrine, marine resources belong
to the State, and, pursuant to the first paragraph of Section 2,
Article XII of the Constitution, their "exploration, development and
utilization . . . shall be under the full control and supervision of the
State." Moreover, their mandated protection, development and
conservation as necessarily recognized by the framers of the
Constitution, imply certain restrictions on whatever right of
enjoyment there may be in favor of anyone. Thus, as to the
curtailment of the preferential treatment of marginal fishermen, the
following exchange between Commissioner Francisco Rodrigo
and Commissioner Jose F.S. Bengzon, Jr., took place at the
plenary session of the Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this
because I would not raise the hopes of
our people, and afterwards fail in the
implementation. How will this be
implemented? Will there be a licensing or
giving of permits so that government
officials will know that one is really a
marginal fisherman? Or if policeman say
that a person is not a marginal fisherman,
he can show his permit, to prove that
indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of
licensing insofar as this is concerned and
this particular question could be tackled
when we discuss the Article on Local
Governments — whether we will leave to
the local governments or to Congress on
how these things will be implemented. But
certainly, I think our congressmen and our
local officials will not be bereft of ideas on
how to implement this mandate.
xxx xxx xxx
MR. RODRIGO:
So, once one is licensed as a marginal
fisherman, he can go anywhere in the
Philippines and fish in any fishing
grounds.
MR. BENGZON:
Subject to whatever rules and regulations
and local laws that may be passed, may
be existing or will be passed.21 (emphasis
supplied)
What must likewise be borne in mind is the state policy enshrined
in the Constitution regarding the duty of the State to protect and
advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature. 22 On
this score, in Oposa v. Factoran, 23 this Court declared:
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles the State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation
— aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution
 for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear
of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and
advance the second, the day would not be too far when all
else would be lost not only for the present generation, but
also for those to come — generations which stand to
inherit nothing but parched earth incapable of sustaining
life.
The right to a balanced and healthful ecology carries with
it a correlative duty to refrain from impairing the
environment. . . .
The LGC provisions invoked by private respondents merely seek
to give flesh and blood to the right of the people to a balanced and
healthful ecology. In fact, the General Welfare Clause, expressly
mentions this right:
Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and
enrichment of culture, promote health and
safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
(emphasis supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the
general welfare provisions of the LGC "shall be liberally
interpreted to give more powers to the local government units in
accelerating economic development and upgrading the quality of
life for the people of the community."
The LGC vests municipalities with the power to grant fishery
privileges in municipal waters and impose rentals, fees or charges
therefor; to penalize, by appropriate ordinances, the use of
explosives, noxious or poisonous substances, electricity, muro-
ami, and other deleterious methods of fishing; and to prosecute
any violation of the provisions of applicable fishery laws. 24 Further,
the sangguniang bayan, the sangguniang panlungsod and the
sangguniang panlalawigan are directed to enact ordinances for the
general welfare of the municipality and its inhabitants, which shall
include, inter alia, ordinances that "[p]rotect the environment and
impose appropriate penalties for acts which endanger the
environment such as dynamite fishing and other forms of
destructive fishing . . . and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes, or of
ecological
imbalance."25
Finally, the centerpiece of LGC is the system of
decentralization26 as expressly mandated by the
Constitution.27 Indispensable to decentralization is devolution and
the LGC expressly provides that "[a]ny provision on a power of a
local government unit shall be liberally interpreted in its favor, and
in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any
fair and reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit
concerned."28 Devolution refers to the act by which the National
Government confers power and authority upon the various local
government units to perform specific functions and
responsibilities.29
One of the devolved powers enumerated in the section of the LGC
on devolution is the enforcement of fishery laws in municipal
waters including the conservation of mangroves. 30 This necessarily
includes the enactment of ordinances to effectively carry out such
fishery laws within the municipal waters.
The term "municipal waters," in turn, includes not only streams,
lakes, and tidal waters within the municipality, not being the
subject of private ownership and not comprised within the national
parks, public forest, timber lands, forest reserves, or fishery
reserves, but also marine waters included between two lines
drawn perpendicularly to the general coastline from points where
the boundary lines of the municipality or city touch the sea at low
tide and a third line parallel with the general coastline and fifteen
kilometers from
it.31 Under P.D. No. 704, the marine waters included in municipal
waters is limited to three nautical miles from the general coastline
using the above perpendicular lines and a third parallel line.
These "fishery laws" which local government units may enforce
under Section 17(b)(2)(i) in municipal waters include: (1) P.D. No.
704; (2) P.D. No. 1015 which, inter alia, authorizes the
establishment of a "closed season" in any Philippine water if
necessary for conservation or ecological purposes; (3) P.D. No.
1219 which provides for the exploration, exploitation, utilization
and conservation of coral resources; (4) R.A. No. 5474, as
amended by B.P. Blg. 58, which makes it unlawful for any person,
association or corporation to catch or cause to be caught, sell,
offer to sell, purchase, or have in possession any of the fish specie
called gobiidae or "ipon" during closed season; and (5) R.A. No.
6451 which prohibits and punishes electrofishing, as well as
various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation
of fishing in municipal waters and the protection of its marine
environment are concerned, must be added the following:
1. Issuance of permits to construct fish
cages within municipal waters;
2. Issuance of permits to gather aquarium
fishes within municipal waters;
3. Issuance of permits to gather kapis
shells within municipal waters;
4. Issuance of permits to gather/culture
shelled mollusks within municipal waters;
5. Issuance of licenses to establish
seaweed farms within municipal waters;
6. Issuance of licenses to establish culture
pearls within municipal waters;
7. Issuance of auxiliary invoice to
transport fish and fishery products; and
8. Establishment of "closed season" in
municipal waters.
These functions are covered in the Memorandum of Agreement of
5 April 1994 between the Department of Agriculture and the
Department of Interior and Local Government.
In light then of the principles of decentralization and devolution
enshrined in the LGC and the powers granted therein to local
government units under Section 16 (the General Welfare Clause),
and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a)
(1) (vi), which unquestionably involve the exercise of police power,
the validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full
support under R.A. No. 7611, otherwise known as the Strategic
Environmental Plan (SEP) for Palawan Act, approved on 19 June
1992. This statute adopts a "comprehensive framework for the
sustainable development of Palawan compatible with protecting
and enhancing the natural resources and endangered
environment of the province," which "shall serve to guide the local
government of Palawan and the government agencies concerned
in the formulation and implementation of plans, programs and
projects affecting said province."32
At this time then, it would be appropriate to determine the relation
between the assailed Ordinances and the aforesaid powers of the
Sangguniang Panlungsod of the City of Puerto Princesa and the
Sangguniang Panlalawigan of the Province of Palawan to protect
the environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or
declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal
objectives or purposes: (1) to establish a "closed season" for the
species of fish or aquatic animals covered therein for a period of
five years; and (2) to protect the coral in the marine waters of the
City of Puerto Princesa and the Province of Palawan from further
destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the
devolved power to enforce fishery laws in municipal waters, such
as P.D. No. 1015, which allows the establishment of "closed
seasons." The devolution of such power has been expressly
confirmed in the Memorandum of Agreement of 5 April 1994
between the Department of Agriculture and the Department of
Interior and Local Government.
The realization of the second objective clearly falls within both the
general welfare clause of the LGC and the express mandate
thereunder to cities and provinces to protect the environment and
impose appropriate penalties for acts which endanger the
environment.33
The destruction of coral reefs results in serious, if not irreparable,
ecological imbalance, for coral reefs are among nature's life-
support systems.34 They collect, retain and recycle nutrients for
adjacent nearshore areas such as mangroves, seagrass beds,
and reef flats; provide food for marine plants and animals; and
serve as a protective shelter for aquatic organisms. 35 It is said that
"[e]cologically, the reefs are to the oceans what forests are to
continents: they are shelter and breeding grounds for fish and
plant species that will disappear without them."36
The prohibition against catching live fish stems, in part, from the
modern phenomenon of live-fish trade which entails the catching
of so-called exotic species of tropical fish, not only for aquarium
use in the West, but also for "the market for live banquet fish
[which] is virtually insatiable in ever more affluent Asia. 37 These
exotic species are coral-dwellers, and fishermen catch them by
"diving in shallow water with corraline habitats and squirting
sodium cyanide poison at passing fish directly or onto coral
crevices; once affected the fish are immobilized [merely stunned]
and then scooped by hand."38 The diver then surfaces and dumps
his catch into a submerged net attached to the skiff. Twenty
minutes later, the fish can swim normally. Back on shore, they are
placed in holding pens, and within a few weeks, they expel the
cyanide from their system and are ready to be hauled. They are
then placed in saltwater tanks or packaged in plastic bags filled
with seawater for shipment by air freight to major markets for live
food fish.39 While the fish are meant to survive, the opposite holds
true for their former home as "[a]fter the fisherman squirts the
cyanide, the first thing to perish is the reef algae, on which fish
feed. Days later, the living coral starts to expire. Soon the reef
loses its function as habitat for the fish, which eat both the algae
and invertebrates that cling to the coral. The reef becomes an
underwater graveyard, its skeletal remains brittle, bleached of all
color and vulnerable to erosion from the pounding of the
waves."40 It has been found that cyanide fishing kills most hard
and soft corals within three months of repeated application. 41
The nexus then between the activities barred by Ordinance No.
15-92 of the City of Puerto Princesa and the prohibited acts
provided in Ordinance No. 2, Series of 1993 of the Province of
Palawan, on one hand, and the use of sodium cyanide, on the
other, is painfully obvious. In sum, the public purpose and
reasonableness of the Ordinances may not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City
Mayor Amado L. Lucero of the City of Puerto Princesa, we find
nothing therein violative of any constitutional or statutory provision.
The Order refers to the implementation of the challenged
ordinance and is not the Mayor's Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies
upon the lack of authority on the part of the Sangguniang
Panglungsod of Puerto Princesa to enact Ordinance No. 15,
Series of 1992, on the theory that the subject thereof is within the
jurisdiction and responsibility of the Bureau of Fisheries and
Aquatic Resources (BFAR) under P.D. No. 704, otherwise known
as the Fisheries Decree of 1975; and that, in any event, the
Ordinance is unenforceable for lack of approval by the Secretary
of the Department of Natural Resources (DNR), likewise in
accordance with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction
and responsibility of the BFAR under P.D. No. 704, over the
management, conservation, development, protection, utilization
and disposition of all fishery and aquatic resources of the country
is not all-encompassing. First, Section 4 thereof excludes from
such jurisdiction and responsibility municipal waters, which shall
be under the municipal or city government concerned, except
insofar as fishpens and seaweed culture in municipal centers are
concerned. This section provides, however, that all municipal or
city ordinances and resolutions affecting fishing and fisheries and
any disposition thereunder shall be submitted to the Secretary of
the Department of Natural Resources for appropriate action and
shall have full force and effect only upon his approval. 42
Second, it must at once be pointed out that the BFAR is no longer
under the Department of Natural Resources (now Department of
Environment and Natural Resources). Executive Order No. 967 of
30 June 1984 transferred the BFAR from the control and
supervision of the Minister (formerly Secretary) Of Natural
Resources to the Ministry of Agriculture and Food (MAF) and
converted it into a mere staff agency thereof, integrating its
functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which
reorganized the MAF, the BFAR was retained as an attached
agency of the MAF. And under the Administrative Code of
1987,43 the BFAR is placed under the Title concerning the
Department of Agriculture.44
Therefore, it is incorrect to say that the challenged Ordinance of
the City of Puerto Princesa is invalid or unenforceable because it
was not approved by the Secretary of the DENR. If at all, the
approval that should be sought would be that of the Secretary of
the Department of Agriculture. However, the requirement of
approval by the Secretary of the Department of Agriculture (not
DENR) of municipal ordinances affecting fishing and fisheries in
municipal waters has been dispensed with in view of the following
reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals
or amends Sections 16 and 29 of P.D. No. 704 45 insofar as they
are inconsistent with the provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the
LGC, local government units have the power, inter alia, to enact
ordinances to enhance the right of the people to a balanced
ecology. It likewise specifically vests municipalities with the power
 to grant fishery privileges in municipal waters, and impose rentals,
fees or charges therefor; to penalize, by appropriate ordinances,
the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing; and
to prosecute any violation of the provisions of applicable fishery
laws.46 Finally, it imposes upon the sangguniang bayan, the
sangguniang panlungsod, and the sangguniang panlalawigan the
duty to enact ordinances to "[p]rotect the environment and impose
appropriate penalties for acts which endanger the environment
such as dynamite fishing and other forms of destructive fishing . . .
and such other activities which result in pollution, acceleration of
eutrophication of rivers and lakes or of ecological imbalance."47
In closing, we commend the Sangguniang Panlungsod of the City
of Puerto Princesa and Sangguniang Panlalawigan of the Province
of Palawan for exercising the requisite political will to enact
urgently needed legislation to protect and enhance the marine
environment, thereby sharing in the herculean task of arresting the
tide of ecological destruction. We hope that other local
government units shall now be roused from their lethargy and
adopt a more vigilant stand in the battle against the decimation of
our legacy to future generations. At this time, the repercussions of
any further delay in their response may prove disastrous, if not,
irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit
and the temporary restraining order issued on 11 November 1993
is LIFTED.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco Panganiban and
Torres, Jr., JJ., concur.
Regalado, J., is on leave.
Separate Opinions
MENDOZA, J.,  concurring:
I fully concur in the opinion of the Court written by Justice Davide. I
write separately to emphasize two points which I believe are
important. The first is the need to uphold the presumption of
validity of the ordinances in this case in view of the total absence
of evidence to undermine their factual basis. The second is the
need not to allow a shortcircuiting of the normal process of
adjudication on the mere plea that unless we take cognizance of
petitions like this, by-passing the trial courts, alleged violations of
constitutional rights will be left unprotected, when the matter can
very well be looked into by trial courts and in fact should be
brought there.
The ordinances in question in this case are conservation
measures which the local governments of Palawan have adopted
in view of the widespread destruction caused by cyanide fishing of
corals within their territorial waters. At the very least, these
ordinances must be presumed valid in the absence of evidence to
show that the necessary factual foundation for their enactment
does not exist. Their invalidation at this point can result in the
untimely exoneration of otherwise guilty parties on the basis of
doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of
Palawan adopted in 1993, prohibits, for a period of five years, the
"catching, gathering, possessing, buying, selling and shipment" of
five fish and lobsters. As originally enacted, the prohibition applied
to eight species of fish and lobsters caught in the waters of
Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus
Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Señorita),
lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant
Clams or Taklobo and other species), 5. Pinctada Margaritifera
(Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn —
breeder size or mother), 7. Epinephelus Suillus (Loba or Green
Grouper) and 8. Family: Balistidae (Tropical Aquarium
Fishes)."  1 Later, however, the ordinance was amended to limit
the ban to three species only, namely: mameng (scaridae),
panther or señorita (cromileptes altivelis) and ornamental or
aquarium fishes (balistidae). Violation of the ordinance is
punishable by a fine of P5,000.00 and/or imprisonment of not less
than 6 nor more than 12 months and confiscation of the
paraphernalia and equipment used in the commission of the
offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang
Panlalawigan on the basis of a 1992 study submitted by the
Department of Agriculture, 3 showing that, as a result of the use of
cyanide and other noxious substances for fishing, only 5% of the
coral reefs in the Province of Palawan remained in excellent
condition as fish sanctuaries and habitats, while 75% was heavily
damaged.
The rampant use of cyanide has been encouraged by the lucrative
trade in live fishes which are shipped not only to Manila but also
abroad, principally to Hongkong, Taiwan and Malaysia. The fishes
are sold to gourmet restaurants because of the great demand for
exotic food, to aquariums and to pet shops. In its issue of July 19,
1993. Time Magazine 4 reported that the illicit trade in live animals
is the third biggest contraband business in the world, after drugs
and arms, and identified the Philippines as a major source of
tropical fishes for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in
commercial quantity in a way not possible with the use of such
traditional methods as hook and line, fish traps, baklad and the
like, which allows only limited catch and often results in injuries to
fishes and the loss of their scales, thereby reducing their survival
for transportation abroad.  5 Cyanide does not kill fish but only
stuns them. The stunned creatures are then scooped up and
placed in containers ready for shipment across borders, national
and transnational. What cyanide does, however, is poison the
fragile reefs and cause them to die and cease as fish habitats.  6
Concern over the use of cyanide in fishing and its ill effect on the
marine environment also prompted the Sangguniang Panlungsod
of Puerto Princesa to pass Ordinance No. 15-92, which makes it
unlawful for any person or business enterprise or company "to
ship out from Puerto Princesa City to any point of destinations
either via aircraft or seacraft of any live fish and lobster except
SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES."  7 The
ban is for five years, from January 1, 1993 to January 1, 1998. The
penalty for violation of the ordinance is a fine of not more than
P5,000.00 or imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa ordered
the inspection of cargoes of live fish and lobsters leaving the city
by air or sea. Inspectors are to ascertain if the shipper has a
permit issued by the office of the city mayor. Any cargo of live fish
and lobster without a permit from the mayor's office will be "held
for proper disposition." 9
The ordinances in question are police power measures, enacted
by the Province of Palawan and the City of Puerto Princesa,
pursuant to the Local Government Code of 1991 which makes it in
fact their duty to enact measures to "protect the environment and
impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of
destructive fishing. . . ."10 There is no basis for the claim in the
dissenting opinion that the subject of these ordinances lies within
the competence of the national government. For the matter
concerns a local problem, namely, the destruction of aquatic
resources in the Province of Palawan. For this reason the Solicitor
General asked for leave to withdraw from this case. On the other
hand, the Department of Agriculture submitted its report on the
extent of the devastation of coral reefs caused by illegal fishing to
the Sangguniang Panlalawigan of Palawan and thereby left the
solution of the problem to be worked out by the local authorities. It
would therefore set back the policy of decentralization were this
Court to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances does
not rest on the claim that the ordinances are beyond the power of
local governments to enact but on the ground that they deprive
petitioners of their means of livelihood and occupation and for that
reason violate the Constitution of the Philippines. For support,
petitioners invoke the following constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea and exclusive economic
zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays and
lagoons.
Art. XIII, §1: The Congress shall give highest priority to the
enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power
for the common good.
Id., §7: The State shall protect the rights of subsistence
fishermen, especially of local communities, to the
preferential use of the communal marine and fishing
resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology
and research, adequate financial, production, and
marketing assistance, and other services. The State shall
also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in
the utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend support to
petitioners' contention that the ordinances violate the Constitution.
These provisions refer to the duty of the State to protect the
nation's marine resources for the exclusive use and enjoyment of
Filipino citizens, to the preferential right of subsistence fishermen
in the use of such communal marine resources, and to their right
to be protected, even in offshore fishing grounds, against foreign
intrusion. There is no question here of Filipino preference over
aliens in the use of marine resources. What is in issue is the
protection of marine resources in the Province of Palawan. It was
precisely to implement Art. XII, §2 that the ordinances in question
were enacted. For, without these marine resources, it would be
idle to talk of the rights of subsistence fishermen to be preferred in
the use of these resources.
It has been held that "as underlying questions of fact may
condition the constitutionality of legislation of this character, the
presumption of constitutionality must prevail in the absence of
some factual foundation of record for overthrowing the
statute."11 No evidence has been presented by petitioners to
overthrow the factual basis of the ordinances — that, as a result of
the use of cyanide and other noxious substances for fishing, only
5% of the coral reefs in Palawan was in excellent condition, that
75% had been heavily destroyed, and that because of the thriving
market for live fish and lobster here and abroad there was rampant
illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation here
involved is arbitrary or unreasonable. It has been held: "If the laws
passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory,
the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . .
With the wisdom of the policy adopted, with the adequacy or
practicability of the law enacted to forward it, the courts are both
incompetent and unauthorized to deal. . . ." 12
It is contended that neither Provincial Ordinance No. 2-93 nor City
Ordinance No. 15-92 prohibits cyanide fishing and therefore the
prohibition against catching certain species of fish and their
transportation is "excessive and irrational." It is further argued that
the ban is unreasonable because it is not limited to cyanide fishing
but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is
already provided for in other legislation. P.D. No. 534, §2 punishes
fishing by means of "explosives, obnoxious or poisonous
substances or by the use of electricity." Consequently, the
ordinances in question can be seen as a necessary corollary of
the prohibition against illegal fishing contained in this Decree. By
prohibiting the catching of certain fishes and lobsters, Ordinance
No. 2-93 in effect discourages cyanide fishing because, as already
stated, cyanide is preferred in catching fishes because it does not
kill but only stuns them and thus preserves them for export to the
world market.
On the other hand, the claim that the ordinance sweeps
overbroadly by "absolutely prohibit[ing] the catching, gathering,
buying and shipment of live fishes and marine coral resources by
any and all means including those lawfully executed or done in the
pursuit of legitimate occupation" misconceives the principal
purpose of the ordinance, which is not so much to prohibit the use
of cyanide for fishing as to rebuild corals because of their
destruction by cyanide fishing. This is clear from the "whereas"
clauses of Resolution No. 33, accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies
disclose that only five (5) percent of the corals of our
province remain to be in excellent condition as habitat of
marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally
due to illegal fishing activities like dynamite fishing,
sodium cyanide fishing, use of other obnoxious
substances and other related activities;
WHEREAS, there is an imperative and urgent need to
protect and preserve the existence of the remaining
excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality within
the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [for] acts
which endanger the environment such as dynamite fishing
and other forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and
rehabilitation of the corals. Only indirectly is it also concerned with
prohibiting the use of cyanide. That this is the aim of the ordinance
can also be inferred from the fact that the ban imposed by it on the
catching and gathering of fishes is for a limited period (5 years)
calculated to be the time needed for the growth and regeneration
of the corals. Were the purpose of the ordinance the prohibition of
the use of cyanide for fishing, the ban would not be for a limited
period only but for all time.
I am not much moved by the plea that the ordinances deprive
small fishermen of their means of livelihood and occupation. The
ban imposed by Ordinance No. 2-93, as amended, covers only
three species, i.e., mameng (scaridae), panther or señorita
(cromilepres altivelis) and ornamental aquarium fishes
(balistiedae), which are prized in the black market. With respect to
other species, it is open season for legitimate fishermen. On the
other hand, the ban imposed by Ordinance No. 15-92 allows the
transportation and shipment of sea bass, catfish, mudfish and
milkfish fries. The ban imposed by the two ordinances is limited to
five years. It is thus limited both as to scope and as to period of
effectivity. There is, on the other hand, the imperative necessity for
measures to prevent the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable relation
between the end and the means adopted in this case is not on the
local governments but on petitioners because of the presumption
that a regulatory statute is valid in the absence of factual evidence
to the contrary. As held in United States v. Salaveria.13 "The
presumption is all in favor of validity. . . The councilors must, in the
very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances
which surround the subject, and necessitate action. The local
legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well being of the
people. . . . 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."
Finally, petitioners question Office Order No. 23, s. of 1993, of the
city mayor of Puerto Princesa, for being allegedly vague. This
order prohibits the transportation of fish outside the city without
permit from the mayor's office. Petitioners contend that the order
does not state under what condition a permit may be granted and,
consequently, leaves it to the absolute discretion of the mayor
when to grant and when to deny a permit. The questioned
paragraph of the order states:
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by
this Office and the shipment is covered by invoice or
clearance issued by the local office of the Bureau of
Fisheries and Aquatic Resources and as to compliance
with all other existing rules and regulations on the matter.
This contention is untenable. As the office order is intended to
implement City Ordinance No. 15-92, resort must be made to the
ordinance in order to determine the scope of such office order. As
already noted, the ordinance prohibits the shipment out of Puerto
Princesa of live fish and lobsters, with the exception of catfish,
mudfish and milkfish fries. Consequently, a permit may be denied
if it is for the transportation of fishes which are covered by the ban,
but not for those not covered by it. This is the common sense
meaning of the office order in question. Criminal laws must be
precisely drawn, but, as Justice Holmes once said, "We agree to
all the generalities about not supplying criminal laws with what
they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."14
One final point. This case was brought to this Court on the bare
bones of the ordinances, on the mere claim of petitioner Alfredo
Tano and his 83 copetitioners that they are subsistence fishermen.
The constitutional protection refers to small fishermen who depend
on the sea for their existence. Ten of the petitioners, led by Alfredo
Tano, are accused in the Municipal Circuit Trial Court of
possession of the species covered by Provincial Ordinance No. 2-
93, while two, Roberto Lim and Virginia Lim, are charged with
violation of the two ordinances in the City Prosecutor's Office.
There is no telling from the records of this case whether petitioners
are subsistence fishermen or simply impecunious individuals
selling their catch to the big businessmen. The other petitioners
are admittedly fish traders, members of an association of airline
shippers, to whom the constitutional provisions obviously do not
apply.
The judicial invalidation of the ordinances in this case could
undermine the on-going trial of some of petitioners. Instead of
leaving the determination of the validity of the ordinances to the
trial court, where some of petitioners are facing charges, this Court
will be shortcircuiting the criminal process by prematurely passing
upon the constitutional questions and indirectly on the criminal
liability of some of the petitioners. This is a task which should
await the development of evidence of record.
 Indeed because of the unsatisfactory abstractness of the record,
this case should not have been brought here. The mere fact that
some of petitioners are facing prosecution for violation of the
ordinances is no reason for entertaining their suit. Our jurisdiction
is limited to cases and controversies. Who are petitioners? What is
the impact of the ordinance on their economic situation? Are the
factual bases of the two ordinances supported by evidence?
These questions must be raised in the criminal trial or in a suit
brought in the trial court so that facts necessary to adjudicate the
constitutional questions can be presented. Nothing can take the
place of the flesh and blood of litigation to assess the actual
operation of a statute and thus ground the judicial power more
firmly.
Petitioners justify the filing of the present action in this Court on
the ground that constitutional questions must be raised at the
earliest time. That is true, but it does not mean that the questions
should be presented to the Supreme Court first hand. Moreover,
the rule is not absolute. Constitutional questions like those invoked
by petitioners can be raised anytime, even in a motion for
reconsideration, if their resolution is necessary to the decision of
an actual case or controversy, as our recent resolution 15 of the
constitutionality of R.A. No. 7659, reimposing the death penalty,
amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J.,  dissenting:
It is settled rule that where the provisions of the law are clear and
unambiguous there is no room for interpretation. The duty of the
court is only to apply the law. The exception to such rule cannot be
justified on the sole basis of good motives or noble objectives. For
it is also basic that the end does not justify the means.
The petition raises significant constitutional questions. While
petitioners apparently instituted the action to enjoin their criminal
prosecution, the issue boils down to whether the subject
ordinances of Palawan and Puerto Princesa are valid and
enforceable as to authorize the criminal prosecution of those
charged with violation thereof.
Notwithstanding the procedural limitations strictly applied in the
majority opinion to render the petition dismissible on grounds of
prematurity and lack of real interest in the controversy, the case
clearly falls under the exceptions allowed by law. The petition, I
submit, can be properly treated as a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court to
correct errors of jurisdiction committed by the lower court arising
from the implementation of a void ordinance. Even if the purpose
of the petition is for declaratory relief, if the petition has far-
reaching implications and raises questions that should be resolved
as they involve national interest, it may be treated as a special civil
action under Rule 65.  1 The mere absence of a prior motion to
quash the Information in the trial court should not prevent the
accused, petitioners herein, from seeking to render null and void
the criminal proceedings below.
In criminal cases, when the constitutionality or validity of a law or
ordinance is essentially involved, the same may be raised at any
stage of the proceedings. It can also be considered by the
appellate court at any time if it involves the jurisdiction of the lower
Court.  2 Further, under Sec. 8, Rule 117, of the Rules on Criminal
Procedure, the failure of the accused to assert any ground of a
motion to quash before he pleads to the Complaint or Information
either because he did not file a motion to quash or failed to allege
the same in the motion shall be deemed a waiver of the grounds of
a motion to quash, except the grounds of no offense charged, lack
of jurisdiction over the offense charged, extinction of the offense or
penalty, and jeopardy.
Petitioners are proper parties to set aside the proceedings in the
trial court. A proper party is one who has sustained or is in
immediate danger of sustaining an injury as a result of the act
complained of. Petitioners have been criminally charged and
arrested for alleged violation of the ordinances in question.
Consequently, unless the trial court is enjoined from continuing
with the proceedings, petitioners are in danger of being convicted
and punished under ordinances which they allege to be invalid and
ineffective. In fact this Court initially recognized the real interest of
petitioners in instituting the action when it issued a restraining
order directing Judge Angel R. Miclat to cease and desist until
further orders from proceeding with the arraignment and pre-trial
of People v. Alfredo Tano, et al., Crim. Case No. 11223, for
violation of Resolution No. 2-93 of the Sangguniang Panlalawigan
of Palawan, and Ordinance No. 15-92 of the Sangguniang
Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office
Order No. 23 and Ordinance No. 15-92 are constitutional, valid
and enforceable. By considering the purpose and objective of the
ordinances as laudable, the majority adopts the affirmative view in
consonance with the general welfare clause and principle of
devolution well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan
and Puerto Princesa City be commended for their efforts to uplift
and protect the environment and natural resources within their
areas, the general welfare clause is not the sole criterion to
determine the validity or constitutionality of the ordinances.
In Magtajas v. Pryce Properties Corporation, 3 we reiterated that
the well-established tests of a valid ordinance are: (a) It must not
contravene the Constitution or any statute; (b) It must not be unfair
or oppressive; (c) It must not be partial or discriminatory; (d) It
must not prohibit but may regulate trade; (e) It must be general
and consistent with public policy; and, (f) It must not be
unreasonable.
As admitted by the majority, among our existing statutes on fishing
and fishery or aquatic resources are P.D. Nos. 704, 1015 and
1219. P.D. No. 704 is titled "Revising and Consolidating All Laws
and Decrees Affecting Fishing and Fisheries." With the enactment
of the Local Government Code of 1991, only Secs. 16 and 29 of
P.D. No. 704 were expressly repealed. All the rest of the
provisions of P.D. No. 704 remain valid and effective, Sec. 4 of
which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and
Aquatic Resources). — The Bureau shall have jurisdiction
and responsibility in the management, conservation,
development, protection, utilization and disposition of all
fishery and aquatic resources of the country except
municipal waters which shall be under the municipal or
city government concerned: Provided, That fishpens and
seaweed culture in municipal centers shall be under the
jurisdiction of the Bureau: Provided, further, That all
municipal or city ordinances and resolutions affecting
fishing and fisheries and any disposition thereunder shall
be submitted to the Secretary for appropriate action and
shall have full force and effect only upon his approval. The
Bureau shall also have authority to regulate and supervise
the production, capture and gathering of fish and
fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and
aquatic resources in municipal waters are under the jurisdiction of
the municipal or city government concerned. However, the same
decree imposes a mandatory requirement directing municipal or
city governments to submit ordinances enacted pertinent to fishing
and fishery resources to the Secretary of Agriculture who now has
control and supervision over the Bureau of Fisheries and Aquatic
Resources (BFAR). The ordinances will attain full force and effect
only upon the approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not
submitted to the Secretary of Agriculture through the BFAR for
approval. Such failure of compliance with the law prevented it from
becoming valid and effective. Consequently, Office Order No. 23
of the Mayor of Puerto Princesa City which seeks to implement
and enforce Ordinance No. 15-92 is also ineffective as there is
nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the
Local Government Code is gratuitous. For, if it was the intention of
the legislature to dispense with the requirement of prior approval
by the Secretary of Agriculture of ordinances pertinent to fishery
resources, it would. have expressly repealed Sec. 4 when, in fact,
it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound
holding that a repeal by implication is not presumed or favored
considering that the legislature is presumed to be aware of
existing laws; ordinarily, if it intends to revoke a statute it would
manifest such intention in express terms. 4 Before such a repeal
is deemed to exist it should be shown that the statutes or statutory
provisions deal with the same subject matter and that the latter be
inconsistent with the former. There must be a showing of
repugnancy clear and convincing in character. The language used
in the latter statute must be such as to render it irreconcilable with
what has been formerly enacted. An inconsistency that falls short
of that standard does not suffice. In fact, there is no inconsistency
between the Local Government Code and P.D. No. 704 as
amended. While the Local Government Code vests power upon
the local government to enact ordinances for the general welfare
of its inhabitants, such power is subject to certain limitations
imposed by the Code itself and by other statutes. When the
legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and
recognized a limitation on the power of the local government to
enact ordinances relative to matters affecting fishery and aquatic
resources. A reading of particular provisions of the Local
Government Code itself will reveal that devolution on the powers
of the local government pertaining to the protection of environment
is limited and not all-encompassing, as will be discussed in the
succeeding paragraphs.
Further, while the Local Government Code is a general law on the
powers, responsibilities and composition of different local
government units, P.D. No. 704 is a special law dealing with the
protection and conservation of fishing and aquatic resources
including those in the municipal waters. Hence, the special law
should prevail over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of
Agriculture the authority to establish closed seasons. Another
existing law on fisheries which has not been repealed by the Local
Government Code is P.D. No. 1219, which provides for the
exploration, exploitation, utilization and conservation of coral
resources. Section 4 thereof provides that the decree shall be
implemented by the Secretary of Environment and Natural
Resources who shall have jurisdiction and responsibility in the
exploration, exploitation, utilization and conservation of coral
resources. Section 6 authorizes the Secretary to issue special
permit to any person or institution to gather in limited quantities
any coral for scientific or educational purposes. Section 10
empowers the Secretary to promulgate rules and regulations for
the implementation of this law.
It is true that police power can be exercised through the general
welfare clause. But, while police power is inherent in a state, it is
not so in municipal corporations or local governments. In order
that a local government may exercise police power, there must be
a legislative grant which necessarily sets the limits for the exercise
of the power.  5 In this case, Congress has enacted the Local
Government Code which provides the standards as well as the
limitations in the exercise of the police power by the local
government unit.
Section 2 of the Local Government Code provides for a system of
decentralization whereby local government units are given more
powers, authority, responsibilities and resources, and the process
shall proceed from the national government to the local
government units. However, under Sec 3, par. (i), of the Local
Government Code, the operative principles of decentralization
upon the environment and natural resources are not absolute
when it is provided therein that "local government units shall share
with the national government the responsibility in the management
and maintenance of ecological balance within their territorial
jurisdiction, subject to the provisions of this Code and national
policies." The national policies mentioned here refer to existing
policies which the DENR and other government agencies
concerned with the environment may implement at any given
moment. The national policies are embodied in existing laws, rules
and regulations pertaining to environment and natural resources,
such as P.D. Nos. 704 and 1219 relating to fishery resources. The
above provision was crafted to make sure that local government
enactments do not supplant or negate national government
policies on environment. 6 This is precisely the reason why the
Local Government Code did not repeal Sec. 4 of P.D. NO. 704
requiring prior submission to and approval by the Secretary of
Agriculture of ordinances relative to fishery and aquatic resources.
Needless to stress, the approval of the Secretary is necessary in
order to ensure that these ordinances are in accordance with the
laws on fisheries and national policies. Likewise, the jurisdiction of
the Secretary of Environment and Natural Resources over coral
resources under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government
Code is found in Sec. 17 thereof which reiterates the basic
services and facilities to be rendered by the local governments.
With respect to the protection and conservation of fisheries, Sec.
17, par. 2 (i), specifically provides that the municipality shall
conduct "extension and on-site research services and facilities
related to agriculture and fishery activities which include dispersal
of livestock and poultry, fingerlings and other seeding materials for
aquaculture
. . . . and enforcement of fishery laws in municipal waters including
the conservation of mangroves . . . ." The power devolved upon
the municipality under the Local Government Code is the
enforcement of existing fishery laws of the State and not the
enactment thereof. While a local government unit may adopt
ordinances upon subjects covered by law or statute, such
ordinances should be in accordance with and not repugnant to the
law.  7 In view thereof, ordinances which may be enacted by the
municipality or city should be pursuant to the provisions of P.D.
Nos. 704, 1015 and 1219. Thus, under the provisions of Secs.
447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the
municipality, city and province respectively may approve
ordinances protecting the environment by specifically penalizing
only those acts which endanger the environment such as dynamite
fishing and other forms of destructive fishing which are already
prohibited under P.D. Nos. 704 and 1219, and other laws on illegal
fishing. 8
The questioned ordinances may also be struck down for being not
only a prohibitory legislation but also an unauthorized exercise of
delegation of powers. An objective, however worthy or desirable it
may be, such as the protection and conservation of our fisheries in
this case, can be attained by a measure that does not encompass
too wide a field. The purpose can be achieved by reasonable
restrictions rather than by absolute prohibition. Local governments
are not possessed with prohibitory powers but only regulatory
powers under the general welfare clause.  9 They cannot therefore
exceed the powers granted to them by the Code by altogether
prohibiting fishing and selling for five (5) years all live fishes
through Ordinance No. 15-92 and coral organisms through
Ordinance No. 2-93 involving even lawful methods of fishing.
These prohibitions are tantamount to the establishment of a closed
season for fish and aquatic resources which authority is not
among those powers vested by the Local Government Code to the
local government units. For the authority to establish a closed
season for fisheries is vested upon the Secretary of Agriculture by
virtue of P.D. Nos. 704 and 1015 and in the Secretary of
Environment and Natural resources pursuant to P.D. No. 1219 in
relation to coral resources. The power of the local governments is
confined and limited to ensuring that these national fishery laws
are implemented and enforced within their territorial jurisdictions.
Hence, any memorandum of agreement which might have been
executed by the Department of Agriculture or Department of
Environment and Natural Resources granting additional powers
and functions to the local governments which are not vested upon
the latter by the Local Government Code because such powers
are covered by existing statutes, is an undue delegation of power
and, consequently, null and void.
The majority also cites R.A. No. 7611, otherwise known as the
Strategic Environmental Plan (SEP) for Palawan Act, as proof of
the power of the local governments of Palawan and Puerto
Princesa City to issue the assailed ordinances. Although the
objectives of R.A. No. 7611 and of the ordinances are one and the
same, i.e., the protection, conservation and development of
natural resources, the former does not grant additional powers to
the local governments pertaining to the environment. In fact, the
law adopts a comprehensive framework which shall serve to direct
and guide local governments and national government agencies in
the implementation of programs and projects affecting Palawan.
With the enactment of this Act, the local governments are
mandated to coordinate and align their developmental plans,
projects and budgets in accord with the framework of the SEP. It
can be said that this is another limitation on the exercise of police
power by the local governments of Palawan and Puerto Princesa
City because the governance, implementation and policy direction
of the SEP shall be exercised by the Palawan Council for
Sustainable Development (PCSD) which is under the Office of the
President.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and
Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set
forth are not germane to the accomplishment of their goals.
Ordinance No. 15-92 is aimed to free effectively the marine
resources of Puerto Princesa from cyanide and other obnoxious
substances. But the means to achieve this objective borders on
the excessive and irrational, for the edict would absolutely ban the
shipment of live fishes and lobsters out of the city for a period of
five (5) years without prohibiting cyanide fishing itself which is the
professed goal of the ordinance. The purpose of Resolution No. 2-
93, on the other hand, is to protect and preserve all marine coral-
dwelling organisms from devastation and destruction by illegal
fishing activities, e.g., dynamite fishing, sodium cyanide fishing,
and the use of other obnoxious substances. But in absolutely
prohibiting the catching, gathering, buying and shipment of live
fishes and marine coral resources by any means including those
lawfully executed or done in the pursuit of legitimate occupation,
the ordinance overstepped the reasonable limits and boundaries
of its raison d'etre. This I cannot help viewing as plain arbitrariness
masquerading as police power. For the consequent deprivation of
the main source of livelihood of the people of Palawan can only be
regarded as utter depravation of this awesome power of the State.
For all the foregoing, I vote to grant the petition.
Kapunan and Hermosisima, Jr., JJ., concur.
Separate Opinions
MENDOZA, J.,  concurring:
I fully concur in the opinion of the Court written by Justice Davide. I
write separately to emphasize two points which I believe are
important. The first is the need to uphold the presumption of
validity of the ordinances in this case in view of the total absence
of evidence to undermine their factual basis. The second is the
need not to allow a shortcircuiting of the normal process of
adjudication on the mere plea that unless we take cognizance of
petitions like this, by-passing the trial courts, alleged violations of
constitutional rights will be left unprotected, when the matter can
very well be looked into by trial courts and in fact should be
brought there.
The ordinances in question in this case are conservation
measures which the local governments of Palawan have adopted
in view of the widespread destruction caused by cyanide fishing of
corals within their territorial waters. At the very least, these
ordinances must be presumed valid in the absence of evidence to
show that the necessary factual foundation for their enactment
does not exist. Their invalidation at this point can result in the
untimely exoneration of otherwise guilty parties on the basis of
doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of
Palawan adopted in 1993, prohibits, for a period of five years, the
"catching, gathering, possessing, buying, selling and shipment" of
five fish and lobsters. As originally enacted, the prohibition applied
to eight species of fish and lobsters caught in the waters of
Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus
Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Señorita),
lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant
Clams or Taklobo and other species), 5. Pinctada Margaritifera
(Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn —
breeder size or mother), 7. Epinephelus Suillus (Loba or Green
Grouper) and 8. Family: Balistidae (Tropical Aquarium
Fishes)."  1 Later, however, the ordinance was amended to limit
the ban to three species only, namely: mameng (scaridae),
panther or señorita (cromileptes altivelis) and ornamental or
aquarium fishes (balistidae). Violation of the ordinance is
punishable by a fine of P5,000.00 and/or imprisonment of not less
than 6 nor more than 12 months and confiscation of the
paraphernalia and equipment used in the commission of the
offense. 2
Ordinance No. 2-93 was adopted by the Sangguniang
Panlalawigan on the basis of a 1992 study submitted by the
Department of Agriculture, 3 showing that, as a result of the use of
cyanide and other noxious substances for fishing, only 5% of the
coral reefs in the Province of Palawan remained in excellent
condition as fish sanctuaries and habitats, while 75% was heavily
damaged.
The rampant use of cyanide has been encouraged by the lucrative
trade in live fishes which are shipped not only to Manila but also
abroad, principally to Hongkong, Taiwan and Malaysia. The fishes
are sold to gourmet restaurants because of the great demand for
exotic food, to aquariums and to pet shops. In its issue of July 19,
1993. Time Magazine 4 reported that the illicit trade in live animals
is the third biggest contraband business in the world, after drugs
and arms, and identified the Philippines as a major source of
tropical fishes for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in
commercial quantity in a way not possible with the use of such
traditional methods as hook and line, fish traps, baklad and the
like, which allows only limited catch and often results in injuries to
fishes and the loss of their scales, thereby reducing their survival
for transportation abroad. 5 Cyanide does not kill fish but only
stuns them. The stunned creatures are then scooped up and
placed in containers ready for shipment across borders, national
and transnational. What cyanide does, however, is poison the
fragile reefs and cause them to die and cease as fish habitats. 6
Concern over the use of cyanide in fishing and its ill effect on the
marine environment also prompted the Sangguniang Panlungsod
of Puerto Princesa to pass Ordinance No. 15-92, which makes it
unlawful for any person or business enterprise or company "to
ship out from Puerto Princesa City to any point of destinations
either via aircraft or seacraft of any live fish and lobster except
SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES."  7 The
ban is for five years, from January 1, 1993 to January 1, 1998. The
penalty for violation of the ordinance is a fine of not more than
P5,000.00 or imprisonment of not more than 12 months. 8
To enforce the ordinance, the mayor of Puerto Princesa ordered
the inspection of cargoes of live fish and lobsters leaving the city
by air or sea. Inspectors are to ascertain if the shipper has a
permit issued by the office of the city mayor. Any cargo of live fish
and lobster without a permit from the mayor's office will be "held
for proper disposition." 9
The ordinances in question are police power measures, enacted
by the Province of Palawan and the City of Puerto Princesa,
pursuant to the Local Government Code of 1991 which makes it in
fact their duty to enact measures to "protect the environment and
impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of
destructive fishing. . . ."10 There is no basis for the claim in the
dissenting opinion that the subject of these ordinances lies within
the competence of the national government. For the matter
concerns a local problem, namely, the destruction of aquatic
resources in the Province of Palawan. For this reason the Solicitor
General asked for leave to withdraw from this case. On the other
hand, the Department of Agriculture submitted its report on the
extent of the devastation of coral reefs caused by illegal fishing to
the Sangguniang Panlalawigan of Palawan and thereby left the
solution of the problem to be worked out by the local authorities. It
would therefore set back the policy of decentralization were this
Court to sustain such a claim.
Indeed, petitioners' challenge to the validity of the ordinances does
not rest on the claim that the ordinances are beyond the power of
local governments to enact but on the ground that they deprive
petitioners of their means of livelihood and occupation and for that
reason violate the Constitution of the Philippines. For support,
petitioners invoke the following constitutional provisions:
Art. XII, §2 . . . . .
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea and exclusive economic
zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays and
lagoons.
Art. XIII, §1: The Congress shall give highest priority to the
enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power
for the common good.
Id., §7: The State shall protect the rights of subsistence
fishermen, especially of local communities, to the
preferential use of the communal marine and fishing
resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology
and research, adequate financial, production, and
marketing assistance, and other services. The State shall
also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in
the utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend support to
petitioners' contention that the ordinances violate the Constitution.
These provisions refer to the duty of the State to protect the
nation's marine resources for the exclusive use and enjoyment of
Filipino citizens, to the preferential right of subsistence fishermen
in the use of such communal marine resources, and to their right
to be protected, even in offshore fishing grounds, against foreign
intrusion. There is no question here of Filipino preference over
aliens in the use of marine resources. What is in issue is the
protection of marine resources in the Province of Palawan. It was
precisely to implement Art. XII, §2 that the ordinances in question
were enacted. For, without these marine resources, it would be
idle to talk of the rights of subsistence fishermen to be preferred in
the use of these resources.
It has been held that "as underlying questions of fact may
condition the constitutionality of legislation of this character, the
presumption of constitutionality must prevail in the absence of
some factual foundation of record for overthrowing the
statute."11 No evidence has been presented by petitioners to
overthrow the factual basis of the ordinances — that, as a result of
the use of cyanide and other noxious substances for fishing, only
5% of the coral reefs in Palawan was in excellent condition, that
75% had been heavily destroyed, and that because of the thriving
market for live fish and lobster here and abroad there was rampant
illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation here
involved is arbitrary or unreasonable. It has been held: "If the laws
passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory,
the requirements of due process are satisfied, and judicial
determination to that effect renders a court  functus officio. . . .
With the wisdom of the policy adopted, with the adequacy or
practicability of the law enacted to forward it, the courts are both
incompetent and unauthorized to deal. . . ." 12
It is contended that neither Provincial Ordinance No. 2-93 nor City
Ordinance No. 15-92 prohibits cyanide fishing and therefore the
prohibition against catching certain species of fish and their
transportation is "excessive and irrational." It is further argued that
the ban is unreasonable because it is not limited to cyanide fishing
but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is
already provided for in other legislation. P.D. No. 534, §2 punishes
fishing by means of "explosives, obnoxious or poisonous
substances or by the use of electricity." Consequently, the
ordinances in question can be seen as a necessary corollary of
the prohibition against illegal fishing contained in this Decree. By
prohibiting the catching of certain fishes and lobsters, Ordinance
No. 2-93 in effect discourages cyanide fishing because, as already
stated, cyanide is preferred in catching fishes because it does not
kill but only stuns them and thus preserves them for export to the
world market.
On the other hand, the claim that the ordinance sweeps
overbroadly by "absolutely prohibit[ing] the catching, gathering,
buying and shipment of live fishes and marine coral resources by
any and all means including those lawfully executed or done in the
pursuit of legitimate occupation" misconceives the principal
purpose of the ordinance, which is not so much to prohibit the use
of cyanide for fishing as to rebuild corals because of their
destruction by cyanide fishing. This is clear from the "whereas"
clauses of Resolution No. 33, accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies
disclose that only five (5) percent of the corals of our
province remain to be in excellent condition as habitat of
marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and
devastation of the corals of our province were principally
due to illegal fishing activities like dynamite fishing,
sodium cyanide fishing, use of other obnoxious
substances and other related activities;
WHEREAS, there is an imperative and urgent need to
protect and preserve the existence of the remaining
excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality within
the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Panlalawigan to protect the
environment and impose appropriate penalties [for] acts
which endanger the environment such as dynamite fishing
and other forms of destructive fishing, among others;
The principal aim of the ordinance is thus the preservation and
rehabilitation of the corals. Only indirectly is it also concerned with
prohibiting the use of cyanide. That this is the aim of the ordinance
can also be inferred from the fact that the ban imposed by it on the
catching and gathering of fishes is for a limited period (5 years)
calculated to be the time needed for the growth and regeneration
of the corals. Were the purpose of the ordinance the prohibition of
the use of cyanide for fishing, the ban would not be for a limited
period only but for all time.
I am not much moved by the plea that the ordinances deprive
small fishermen of their means of livelihood and occupation. The
ban imposed by Ordinance No. 2-93, as amended, covers only
three species, i.e., mameng (scaridae), panther or señorita
(cromilepres altivelis) and ornamental aquarium fishes
(balistiedae), which are prized in the black market. With respect to
other species, it is open season for legitimate fishermen. On the
other hand, the ban imposed by Ordinance No. 15-92 allows the
transportation and shipment of sea bass, catfish, mudfish and
milkfish fries. The ban imposed by the two ordinances is limited to
five years. It is thus limited both as to scope and as to period of
effectivity. There is, on the other hand, the imperative necessity for
measures to prevent the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable relation
between the end and the means adopted in this case is not on the
local governments but on petitioners because of the presumption
that a regulatory statute is valid in the absence of factual evidence
to the contrary. As held in United States v. Salaveria.13 "The
presumption is all in favor of validity. . . The councilors must, in the
very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances
which surround the subject, and necessitate action. The local
legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well being of the
people. . . . 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."
Finally, petitioners question Office Order No. 23, s. of 1993, of the
city mayor of Puerto Princesa, for being allegedly vague. This
order prohibits the transportation of fish outside the city without
permit from the mayor's office. Petitioners contend that the order
does not state under what condition a permit may be granted and,
consequently, leaves it to the absolute discretion of the mayor
when to grant and when to deny a permit. The questioned
paragraph of the order states:
The purpose of the inspection is to ascertain whether the
shipper possessed the required Mayor's Permit issued by
this Office and the shipment is covered by invoice or
clearance issued by the local office of the Bureau of
Fisheries and Aquatic Resources and as to compliance
with all other existing rules and regulations on the matter.
This contention is untenable. As the office order is intended to
implement City Ordinance No. 15-92, resort must be made to the
ordinance in order to determine the scope of such office order. As
already noted, the ordinance prohibits the shipment out of Puerto
Princesa of live fish and lobsters, with the exception of catfish,
mudfish and milkfish fries. Consequently, a permit may be denied
if it is for the transportation of fishes which are covered by the ban,
but not for those not covered by it. This is the common sense
meaning of the office order in question. Criminal laws must be
precisely drawn, but, as Justice Holmes once said, "We agree to
all the generalities about not supplying criminal laws with what
they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."14
One final point. This case was brought to this Court on the bare
bones of the ordinances, on the mere claim of petitioner Alfredo
Tano and his 83 copetitioners that they are subsistence fishermen.
The constitutional protection refers to small fishermen who depend
on the sea for their existence. Ten of the petitioners, led by Alfredo
Tano, are accused in the Municipal Circuit Trial Court of
possession of the species covered by Provincial Ordinance No. 2-
93, while two, Roberto Lim and Virginia Lim, are charged with
violation of the two ordinances in the City Prosecutor's Office.
There is no telling from the records of this case whether petitioners
are subsistence fishermen or simply impecunious individuals
selling their catch to the big businessmen. The other petitioners
are admittedly fish traders, members of an association of airline
shippers, to whom the constitutional provisions obviously do not
apply.
 The judicial invalidation of the ordinances in this case could
undermine the on-going trial of some of petitioners. Instead of
leaving the determination of the validity of the ordinances to the
trial court, where some of petitioners are facing charges, this Court
will be shortcircuiting the criminal process by prematurely passing
upon the constitutional questions and indirectly on the criminal
liability of some of the petitioners. This is a task which should
await the development of evidence of record.
Indeed because of the unsatisfactory abstractness of the record,
this case should not have been brought here. The mere fact that
some of petitioners are facing prosecution for violation of the
ordinances is no reason for entertaining their suit. Our jurisdiction
is limited to cases and controversies. Who are petitioners? What is
the impact of the ordinance on their economic situation? Are the
factual bases of the two ordinances supported by evidence?
These questions must be raised in the criminal trial or in a suit
brought in the trial court so that facts necessary to adjudicate the
constitutional questions can be presented. Nothing can take the
place of the flesh and blood of litigation to assess the actual
operation of a statute and thus ground the judicial power more
firmly.
Petitioners justify the filing of the present action in this Court on
the ground that constitutional questions must be raised at the
earliest time. That is true, but it does not mean that the questions
should be presented to the Supreme Court first hand. Moreover,
the rule is not absolute. Constitutional questions like those invoked
by petitioners can be raised anytime, even in a motion for
reconsideration, if their resolution is necessary to the decision of
an actual case or controversy, as our recent resolution 15 of the
constitutionality of R.A. No. 7659, reimposing the death penalty,
amply demonstrates.
Romero, Melo, Puno and Francisco, JJ., concur.
BELLOSILLO, J., dissenting:
It is settled rule that where the provisions of the law are clear and
unambiguous there is no room for interpretation. The duty of the
court is only to apply the law. The exception to such rule cannot be
justified on the sole basis of good motives or noble objectives. For
it is also basic that the end does not justify the means.
The petition raises significant constitutional questions. While
petitioners apparently instituted the action to enjoin their criminal
prosecution, the issue boils down to whether the subject
ordinances of Palawan and Puerto Princesa are valid and
enforceable as to authorize the criminal prosecution of those
charged with violation thereof.
Notwithstanding the procedural limitations strictly applied in the
majority opinion to render the petition dismissible on grounds of
prematurity and lack of real interest in the controversy, the case
clearly falls under the exceptions allowed by law. The petition, I
submit, can be properly treated as a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court to
correct errors of jurisdiction committed by the lower court arising
from the implementation of a void ordinance. Even if the purpose
of the petition is for declaratory relief, if the petition has far-
reaching implications and raises questions that should be resolved
as they involve national interest, it may be treated as a special civil
action under Rule 65.  1 The mere absence of a prior motion to
quash the Information in the trial court should not prevent the
accused, petitioners herein, from seeking to render null and void
the criminal proceedings below.
In criminal cases, when the constitutionality or validity of a law or
ordinance is essentially involved, the same may be raised at any
stage of the proceedings. It can also be considered by the
appellate court at any time if it involves the jurisdiction of the lower
Court.  2 Further, under Sec. 8, Rule 117, of the Rules on Criminal
Procedure, the failure of the accused to assert any ground of a
motion to quash before he pleads to the Complaint or Information
either because he did not file a motion to quash or failed to allege
the same in the motion shall be deemed a waiver of the grounds of
a motion to quash, except the grounds of no offense charged, lack
of jurisdiction over the offense charged, extinction of the offense or
penalty, and jeopardy.
Petitioners are proper parties to set aside the proceedings in the
trial court. A proper party is one who has sustained or is in
immediate danger of sustaining an injury as a result of the act
complained of. Petitioners have been criminally charged and
arrested for alleged violation of the ordinances in question.
Consequently, unless the trial court is enjoined from continuing
with the proceedings, petitioners are in danger of being convicted
and punished under ordinances which they allege to be invalid and
ineffective. In fact this Court initially recognized the real interest of
petitioners in instituting the action when it issued a restraining
order directing Judge Angel R. Miclat to cease and desist until
further orders from proceeding with the arraignment and pre-trial
of People v. Alfredo Tano, et al., Crim. Case No. 11223, for
violation of Resolution No. 2-93 of the Sangguniang Panlalawigan
of Palawan, and Ordinance No. 15-92 of the Sangguniang
Panlungsod of Puerto Princesa City.
The question to be resolved is whether Resolution No. 2-93, Office
Order No. 23 and Ordinance No. 15-92 are constitutional, valid
and enforceable. By considering the purpose and objective of the
ordinances as laudable, the majority adopts the affirmative view in
consonance with the general welfare clause and principle of
devolution well-rooted in the Local Government Code of 1991.
While I agree with the majority that the local leaders of Palawan
and Puerto Princesa City be commended for their efforts to uplift
and protect the environment and natural resources within their
areas, the general welfare clause is not the sole criterion to
determine the validity or constitutionality of the ordinances.
In Magtajas v. Pryce Properties Corporation, 3 we reiterated that
the well-established tests of a valid ordinance are: (a) It must not
contravene the Constitution or any statute; (b) It must not be unfair
or oppressive; (c) It must not be partial or discriminatory; (d) It
must not prohibit but may regulate trade; (e) It must be general
and consistent with public policy; and, (f) It must not be
unreasonable.
As admitted by the majority, among our existing statutes on fishing
and fishery or aquatic resources are P.D. Nos. 704, 1015 and
1219. P.D. No. 704 is titled "Revising and Consolidating All Laws
and Decrees Affecting Fishing and Fisheries." With the enactment
of the Local Government Code of 1991, only Secs. 16 and 29 of
P.D. No. 704 were expressly repealed. All the rest of the
provisions of P.D. No. 704 remain valid and effective, Sec. 4 of
which is enlightening —
Sec. 4. Jurisdiction of the Bureau (of Fisheries and
Aquatic Resources). — The Bureau shall have jurisdiction
and responsibility in the management, conservation,
development, protection, utilization and disposition of all
fishery and aquatic resources of the country except
municipal waters which shall be under the municipal or
city government concerned: Provided, That fishpens and
seaweed culture in municipal centers shall be under the
jurisdiction of the Bureau: Provided, further, That all
municipal or city ordinances and resolutions affecting
fishing and fisheries and any disposition thereunder shall
be submitted to the Secretary for appropriate action and
shall have full force and effect only upon his approval. The
Bureau shall also have authority to regulate and supervise
the production, capture and gathering of fish and
fishery/aquatic products.
There is no doubt that under P.D. No. 704 fishing, fishery and
aquatic resources in municipal waters are under the jurisdiction of
the municipal or city government concerned. However, the same
decree imposes a mandatory requirement directing municipal or
city governments to submit ordinances enacted pertinent to fishing
and fishery resources to the Secretary of Agriculture who now has
control and supervision over the Bureau of Fisheries and Aquatic
Resources (BFAR). The ordinances will attain full force and effect
only upon the approval of the Secretary of Agriculture.
Ordinance 15-92 of Puerto Princesa City, admittedly, was not
submitted to the Secretary of Agriculture through the BFAR for
approval. Such failure of compliance with the law prevented it from
becoming valid and effective. Consequently, Office Order No. 23
of the Mayor of Puerto Princesa City which seeks to implement
and enforce Ordinance No. 15-92 is also ineffective as there is
nothing to implement.
To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the
Local Government Code is gratuitous. For, if it was the intention of
the legislature to dispense with the requirement of prior approval
by the Secretary of Agriculture of ordinances pertinent to fishery
resources, it would. have expressly repealed Sec. 4 when, in fact,
it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound
holding that a repeal by implication is not presumed or favored
considering that the legislature is presumed to be aware of
existing laws; ordinarily, if it intends to revoke a statute it would
manifest such intention in express terms. 4 Before such a repeal
is deemed to exist it should be shown that the statutes or statutory
provisions deal with the same subject matter and that the latter be
inconsistent with the former. There must be a showing of
repugnancy clear and convincing in character. The language used
in the latter statute must be such as to render it irreconcilable with
what has been formerly enacted. An inconsistency that falls short
of that standard does not suffice. In fact, there is no inconsistency
between the Local Government Code and P.D. No. 704 as
amended. While the Local Government Code vests power upon
the local government to enact ordinances for the general welfare
of its inhabitants, such power is subject to certain limitations
imposed by the Code itself and by other statutes. When the
legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and
recognized a limitation on the power of the local government to
enact ordinances relative to matters affecting fishery and aquatic
resources. A reading of particular provisions of the Local
Government Code itself will reveal that devolution on the powers
of the local government pertaining to the protection of environment
is limited and not all-encompassing, as will be discussed in the
succeeding paragraphs.
Further, while the Local Government Code is a general law on the
powers, responsibilities and composition of different local
government units, P.D. No. 704 is a special law dealing with the
protection and conservation of fishing and aquatic resources
including those in the municipal waters. Hence, the special law
should prevail over the general law.
There is also P.D. No. 1015 which vests upon the Secretary of
Agriculture the authority to establish closed seasons. Another
existing law on fisheries which has not been repealed by the Local
Government Code is P.D. No. 1219, which provides for the
exploration, exploitation, utilization and conservation of coral
resources. Section 4 thereof provides that the decree shall be
implemented by the Secretary of Environment and Natural
Resources who shall have jurisdiction and responsibility in the
exploration, exploitation, utilization and conservation of coral
resources. Section 6 authorizes the Secretary to issue special
permit to any person or institution to gather in limited quantities
any coral for scientific or educational purposes. Section 10
empowers the Secretary to promulgate rules and regulations for
the implementation of this law.
It is true that police power can be exercised through the general
welfare clause. But, while police power is inherent in a state, it is
not so in municipal corporations or local governments. In order
that a local government may exercise police power, there must be
a legislative grant which necessarily sets the limits for the exercise
of the power.  5 In this case, Congress has enacted the Local
Government Code which provides the standards as well as the
limitations in the exercise of the police power by the local
government unit.
Section 2 of the Local Government Code provides for a system of
decentralization whereby local government units are given more
powers, authority, responsibilities and resources, and the process
shall proceed from the national government to the local
government units. However, under Sec 3, par. (i), of the Local
Government Code, the operative principles of decentralization
upon the environment and natural resources are not absolute
when it is provided therein that "local government units shall share
with the national government the responsibility in the management
and maintenance of ecological balance within their territorial
jurisdiction, subject to the provisions of this Code and national
policies." The national policies mentioned here refer to existing
policies which the DENR and other government agencies
concerned with the environment may implement at any given
moment. The national policies are embodied in existing laws, rules
and regulations pertaining to environment and natural resources,
such as P.D. Nos. 704 and 1219 relating to fishery resources. The
above provision was crafted to make sure that local government
enactments do not supplant or negate national government
policies on environment. 6 This is precisely the reason why the
Local Government Code did not repeal Sec. 4 of P.D. NO. 704
requiring prior submission to and approval by the Secretary of
Agriculture of ordinances relative to fishery and aquatic resources.
Needless to stress, the approval of the Secretary is necessary in
order to ensure that these ordinances are in accordance with the
laws on fisheries and national policies. Likewise, the jurisdiction of
the Secretary of Environment and Natural Resources over coral
resources under P.D. No. 1219 remains.
The core of the devolution adopted by the Local Government
Code is found in Sec. 17 thereof which reiterates the basic
services and facilities to be rendered by the local governments.
With respect to the protection and conservation of fisheries, Sec.
17, par. 2 (i), specifically provides that the municipality shall
conduct "extension and on-site research services and facilities
related to agriculture and fishery activities which include dispersal
of livestock and poultry, fingerlings and other seeding materials for
aquaculture
. . . . and enforcement of fishery laws in municipal waters including
the conservation of mangroves . . . ." The power devolved upon
the municipality under the Local Government Code is the
enforcement of existing fishery laws of the State and not the
enactment thereof. While a local government unit may adopt
ordinances upon subjects covered by law or statute, such
ordinances should be in accordance with and not repugnant to the
law. 7 In view thereof, ordinances which may be enacted by the
municipality or city should be pursuant to the provisions of P.D.
Nos. 704, 1015 and 1219. Thus, under the provisions of Secs.
447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the
municipality, city and province respectively may approve
ordinances protecting the environment by specifically penalizing
only those acts which endanger the environment such as dynamite
fishing and other forms of destructive fishing which are already
prohibited under P.D. Nos. 704 and 1219, and other laws on illegal
fishing. 8
The questioned ordinances may also be struck down for being not
only a prohibitory legislation but also an unauthorized exercise of
delegation of powers. An objective, however worthy or desirable it
may be, such as the protection and conservation of our fisheries in
this case, can be attained by a measure that does not encompass
too wide a field. The purpose can be achieved by reasonable
restrictions rather than by absolute prohibition. Local governments
are not possessed with prohibitory powers but only regulatory
powers under the general welfare clause.  9 They cannot therefore
exceed the powers granted to them by the Code by altogether
prohibiting fishing and selling for five (5) years all live fishes
through Ordinance No. 15-92 and coral organisms through
Ordinance No. 2-93 involving even lawful methods of fishing.
These prohibitions are tantamount to the establishment of a closed
season for fish and aquatic resources which authority is not
among those powers vested by the Local Government Code to the
local government units. For the authority to establish a closed
season for fisheries is vested upon the Secretary of Agriculture by
virtue of P.D. Nos. 704 and 1015 and in the Secretary of
Environment and Natural resources pursuant to P.D. No. 1219 in
relation to coral resources. The power of the local governments is
confined and limited to ensuring that these national fishery laws
are implemented and enforced within their territorial jurisdictions. five (5) years without prohibiting cyanide fishing itself which is the
Hence, any memorandum of agreement which might have been professed goal of the ordinance. The purpose of Resolution No. 2-
executed by the Department of Agriculture or Department of 93, on the other hand, is to protect and preserve all marine coral-
Environment and Natural Resources granting additional powers dwelling organisms from devastation and destruction by illegal
and functions to the local governments which are not vested upon fishing activities, e.g., dynamite fishing, sodium cyanide fishing,
the latter by the Local Government Code because such powers and the use of other obnoxious substances. But in absolutely
are covered by existing statutes, is an undue delegation of power prohibiting the catching, gathering, buying and shipment of live
and, consequently, null and void. fishes and marine coral resources by any means including those
lawfully executed or done in the pursuit of legitimate occupation,
The majority also cites R.A. No. 7611, otherwise known as the the ordinance overstepped the reasonable limits and boundaries
Strategic Environmental Plan (SEP) for Palawan Act, as proof of of its raison d'etre. This I cannot help viewing as plain arbitrariness
the power of the local governments of Palawan and Puerto masquerading as police power. For the consequent deprivation of
Princesa City to issue the assailed ordinances. Although the the main source of livelihood of the people of Palawan can only be
objectives of R.A. No. 7611 and of the ordinances are one and the regarded as utter depravation of this awesome power of the State.
same, i.e., the protection, conservation and development of
natural resources, the former does not grant additional powers to For all the foregoing, I vote to grant the petition.
the local governments pertaining to the environment. In fact, the
law adopts a comprehensive framework which shall serve to direct Kapunan and Hermosisima, Jr., JJ., concur.
and guide local governments and national government agencies in
the implementation of programs and projects affecting Palawan.
With the enactment of this Act, the local governments are
mandated to coordinate and align their developmental plans,
projects and budgets in accord with the framework of the SEP. It
can be said that this is another limitation on the exercise of police
power by the local governments of Palawan and Puerto Princesa
City because the governance, implementation and policy direction
of the SEP shall be exercised by the Palawan Council for
Sustainable Development (PCSD) which is under the Office of the
President.

Finally, I find unreasonable Resolution No. 2-93 of Palawan and

Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set
forth are not germane to the accomplishment of their goals.
Ordinance No. 15-92 is aimed to free effectively the marine
resources of Puerto Princesa from cyanide and other obnoxious
substances. But the means to achieve this objective borders on
the excessive and irrational, for the edict would absolutely ban the
shipment of live fishes and lobsters out of the city for a period of
G.R. No. L-24693             July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION,
INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in
an action for prohibition is whether Ordinance No. 4760 of the City of
Manila is violative of the due process clause. The lower court held that it is
and adjudged it "unconstitutional, and, therefore, null and void." For
reasons to be more specifically set forth, such judgment must be reversed,
there being a failure of the requisite showing to sustain an attack against
its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5,
1963 by the petitioners, Ermita-Malate Hotel and Motel Operators
Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu,
who is "the president and general manager of the second petitioner"
against the respondent Mayor of the City of Manila who was sued in his
capacity as such "charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the
faithful execution and enforcement of such ordinances." (par. 1). It was
alleged that the petitioner non-stock corporation is dedicated to the
promotion and protection of the interest of its eighteen (18) members
"operating hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying taxes,
employing and giving livelihood to not less than 2,500 person and
representing an investment of more than P3 million." 1 (par. 2). It was then
alleged that on June 13, 1963, the Municipal Board of the City of Manila
enacted Ordinance No. 4760, approved on June 14, 1963 by the then
Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the
City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in
detail. There was the assertion of its being beyond the powers of the
Municipal Board of the City of Manila to enact insofar as it would regulate
motels, on the ground that in the revised charter of the City of Manila or in
any other law, no reference is made to motels; that Section 1 of the
challenged ordinance is unconstitutional and void for being unreasonable
and violative of due process insofar as it would impose P6,000.00 fee per
annum for first class motels and P4,500.00 for second class motels; that
the provision in the same section which would require the owner, manager,
keeper or duly authorized representative of a hotel, motel, or lodging
house to refrain from entertaining or accepting any guest or customer or
letting any room or other quarter to any person or persons without his
filling up the prescribed form in a lobby open to public view at all times and
in his presence, wherein the surname, given name and middle name, the
date of birth, the address, the occupation, the sex, the nationality, the
length of stay and the number of companions in the room, if any, with the
name, relationship, age and sex would be specified, with data furnished as
to his residence certificate as well as his passport number, if any, coupled
with a certification that a person signing such form has personally filled it
up and affixed his signature in the presence of such owner, manager,
keeper or duly authorized representative, with such registration forms and
records kept and bound together, it also being provided that the premises
and facilities of such hotels, motels and lodging houses would be open for
inspection either by the City Mayor, or the Chief of Police, or their duly
authorized representatives is unconstitutional and void again on due
process grounds, not only for being arbitrary, unreasonable or oppressive
but also for being vague, indefinite and uncertain, and likewise for the
alleged invasion of the right to privacy and the guaranty against self-
incrimination; that Section 2 of the challenged ordinance classifying motels
into two classes and requiring the maintenance of certain minimum
facilities in first class motels such as a telephone in each room, a dining
room or, restaurant and laundry similarly offends against the due process
clause for being arbitrary, unreasonable and oppressive, a conclusion
which applies to the portion of the ordinance requiring second class motels
to have a dining room; that the provision of Section 2 of the challenged
ordinance prohibiting a person less than 18 years old from being accepted
in such hotels, motels, lodging houses, tavern or common inn unless
accompanied by parents or a lawful guardian and making it unlawful for
the owner, manager, keeper or duly authorized representative of such
establishments to lease any room or portion thereof more than twice every
24 hours, runs counter to the due process guaranty for lack of certainty
and for its unreasonable, arbitrary and oppressive character; and that
insofar as the penalty provided for in Section 4 of the challenged ordinance
for a subsequent conviction would, cause the automatic cancellation of the
license of the offended party, in effect causing the destruction of the
business and loss of its investments, there is once again a transgression
of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final
judgment declaring the above ordinance null and void and unenforceable.
The lower court on July 6, 1963 issued a writ of preliminary injunction
ordering respondent Mayor to refrain from enforcing said Ordinance No.
4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the
personal circumstances regarding the respondent Mayor and of the fact
that petitioners are licensed to engage in the hotel or motel business in the
City of Manila, of the provisions of the cited Ordinance but a denial of its
alleged nullity, whether on statutory or constitutional grounds. After setting
forth that the petition did fail to state a cause of action and that the
challenged ordinance bears a reasonable relation, to a proper purpose,
which is to curb immorality, a valid and proper exercise of the police power
and that only the guests or customers not before the court could complain
of the alleged invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the preliminary
injunction ex parte  was contrary to law, respondent Mayor prayed for, its
dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a
stipulation of facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators
Association, Inc. and Hotel del Mar Inc. are duly organized and
existing under the laws of the Philippines, both with offices in the
City of Manila, while the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and the intervenor Victor
Alabanza is a resident of Baguio City, all having the capacity to
sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent
City Mayor and chief executive of the City of Manila charged with
the general power and duty to enforce ordinances of the City of
Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business
of operating hotels and motels in Malate and Ermita districts in
Manila;
4. That on June 13, 1963, the Municipal Board of the City of
Manila enacted Ordinance No. 4760, which was approved on June
14, 1963, by Vice-Mayor Herminio Astorga, then the acting City
Mayor of Manila, in the absence of the respondent regular City
Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the
compilation of the ordinances of the City of Manila besides
inserting therein three new sections. This ordinance is similar to
the one vetoed by the respondent Mayor (Annex A) for the
reasons stated in its 4th Indorsement dated February 15, 1963
(Annex B);
5. That the explanatory note signed by then Councilor Herminio
Astorga was submitted with the proposed ordinance (now
Ordinance 4760) to the Municipal Board, copy of which is attached
hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of
P101,904.05 from license fees paid by the 105 hotels and motels
(including herein petitioners) operating in the City of Manila.
Thereafter came a memorandum for respondent on January 22, 1965,
wherein stress was laid on the presumption of the validity of the
challenged ordinance, the burden of showing its lack of conformity to the
Constitution resting on the party who assails it, citing not only U.S. v.
Salaveria, but likewise applicable American authorities. Such a
memorandum likewise refuted point by point the arguments advanced by
petitioners against its validity. Then barely two weeks later, on February 4,
1965, the memorandum for petitioners was filed reiterating in detail what
was set forth in the petition, with citations of what they considered to be
applicable American authorities and praying for a judgment declaring the
challenged ordinance "null and void and unenforceable" and making
permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the
petitioners association, and referring to the alleged constitutional questions
raised by the party, the lower court observed: "The only remaining issue
here being purely a question of law, the parties, with the nod of the Court,
agreed to file memoranda and thereafter, to submit the case for decision of
the Court." It does appear obvious then that without any evidence
submitted by the parties, the decision passed upon the alleged infirmity on
constitutional grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the
conclusion that "the challenged Ordinance No. 4760 of the City of Manila,
would be unconstitutional and, therefore, null and void." It made
permanent the preliminary injunction issued against respondent Mayor and
his agents "to restrain him from enforcing the ordinance in question."
Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard
for constitutional doctrines of a fundamental character ought to have
admonished the lower court against such a sweeping condemnation of the
challenged ordinance. Its decision cannot be allowed to stand, consistently
with what has hitherto been the accepted standards of constitutional
adjudication, in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any
evidence to offset the presumption of validity that attaches to a challenged
statute or ordinance. As was expressed categorically by Justice Malcolm:
"The presumption is all in favor of validity x x x . The action of the elected
representatives of the people cannot be lightly set aside. The councilors
must, in the very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances which
surround the subject and necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that the regulations are
essential to the well being of the people x x x . The Judiciary should not
lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation. 2
It admits of no doubt therefore that there being a presumption of validity,
the necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face which is not the case here. The principle has
been nowhere better expressed than in the leading case of O'Gorman &
Young v. Hartford Fire Insurance Co.,3 where the American Supreme
Court through Justice Brandeis tersely and succinctly summed up the
matter thus: The statute here questioned deals with a subject clearly within
the scope of the police power. We are asked to declare it void on the
ground that the specific method of regulation prescribed is unreasonable
and hence deprives the plaintiff of due process of law. As underlying
questions of fact may condition the constitutionality of legislation of this
character, the resumption of constitutionality must prevail in the absence of
some factual foundation of record for overthrowing the statute." No such
factual foundation being laid in the present case, the lower court deciding
the matter on the pleadings and the stipulation of facts, the presumption of
validity must prevail and the judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is
fatally defective as being repugnant to the due process clause of the
Constitution. The mantle of protection associated with the due process
guaranty does not cover petitioners. This particular manifestation of a
police power measure being specifically aimed to safeguard public morals
is immune from such imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold otherwise would be to
unduly restrict and narrow the scope of police power which has been
properly characterized as the most essential, insistent and the least
limitable of powers,4 extending as it does "to all the great public needs." 5 It
would be, to paraphrase another leading decision, to destroy the very
purpose of the state if it could be deprived or allowed itself to be deprived
of its competence to promote public health, public morals, public safety
and the genera welfare.6 Negatively put, police power is "that inherent and
plenary power in the State which enables it to prohibit all that is hurt full to
the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely
enacted to minimize certain practices hurtful to public morals. The
explanatory note of the Councilor Herminio Astorga included as annex to
the stipulation of facts, speaks of the alarming increase in the rate of
prostitution, adultery and fornication in Manila traceable in great part to the
existence of motels, which "provide a necessary atmosphere for
clandestine entry, presence and exit" and thus become the "ideal haven
for prostitutes and thrill-seekers." The challenged ordinance then proposes
to check the clandestine harboring of transients and guests of these
establishments by requiring these transients and guests to fill up a
registration form, prepared for the purpose, in a lobby open to public view
at all times, and by introducing several other amendatory provisions
calculated to shatter the privacy that characterizes the registration of
transients and guests." Moreover, the increase in the licensed fees was
intended to discourage "establishments of the kind from operating for
purpose other than legal" and at the same time, to increase "the income of
the city government." It would appear therefore that the stipulation of facts,
far from sustaining any attack against the validity of the ordinance, argues
eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal
of its approval, ordinances punishing vagrancy and classifying a pimp or
procurer as a vagrant;8 provide a license tax for and regulating the
maintenance or operation of public dance halls; 9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of
panguingui on days other than Sundays or legal holidays; 13 prohibiting the
operation of pinball machines;14 and prohibiting any person from keeping,
conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect public
morals.
On the legislative organs of the government, whether national or local,
primarily rest the exercise of the police power, which, it cannot be too often
emphasized, is the power to prescribe regulations to promote the health,
morals, peace, good order, safety and general welfare of the people. In
view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police
power insofar as it may affect the life, liberty or property of any person is
subject to judicial inquiry. Where such exercise of police power may be
considered as either capricious, whimsical, unjust or unreasonable, a
denial of due process or a violation of any other applicable constitutional
guaranty may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the
objection is raised to the question of due process. 16 There is no controlling
and precise definition of due process. It furnishes though a standard to
which the governmental action should conform in order that deprivation of
life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a
substantive requisite to free the challenged ordinance, or any
governmental action for that matter, from the imputation of legal infirmity
sufficient to spell its doom? It is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is
ruled out and unfairness avoided. To satisfy the due process requirement,
official action, to paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness. It is the embodiment of the
sporting idea of fair play.17 It exacts fealty "to those strivings for justice"
and judges the act of officialdom of whatever branch "in the light of reason
drawn from considerations of fairness that reflect [democratic] traditions of
legal and political thought."18 It is not a narrow or "technical conception
with fixed content unrelated to time, place and circumstances," 19 decisions
based on such a clause requiring a "close and perceptive inquiry into
fundamental principles of our society." 20 Questions of due process are not
to be treated narrowly or pedantically in slavery to form or phrases. 21
It would thus be an affront to reason to stigmatize an ordinance enacted
precisely to meet what a municipal lawmaking body considers an evil of
rather serious proportion an arbitrary and capricious exercise of authority.
It would seem that what should be deemed unreasonable and what would
amount to an abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be more specific,
the Municipal Board of the City of Manila felt the need for a remedial
measure. It provided it with the enactment of the challenged ordinance. A
strong case must be found in the records, and, as has been set forth, none
is even attempted here to attach to an ordinance of such character the
taint of nullity for an alleged failure to meet the due process requirement.
Nor does it lend any semblance even of deceptive plausibility to
petitioners' indictment of Ordinance No. 4760 on due process grounds to
single out such features as the increased fees for motels and hotels, the
curtailment of the area of freedom to contract, and, in certain particulars,
its alleged vagueness.
Admittedly there was a decided increase of the annual license fees
provided for by the challenged ordinance for hotels and motels, 150% for
the former and over 200% for the latter, first-class motels being required to
pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has
been the settled law however, as far back as 1922 that municipal license
fees could be classified into those imposed for regulating occupations or
regular enterprises, for the regulation or restriction of non-useful
occupations or enterprises and for revenue purposes only. 22 As was
explained more in detail in the above Cu Unjieng case: (2) Licenses for
non-useful occupations are also incidental to the police power and the right
to exact a fee may be implied from the power to license and regulate, but
in fixing amount of the license fees the municipal corporations are allowed
a much wider discretion in this class of cases than in the former, and aside
from applying the well-known legal principle that municipal ordinances
must not be unreasonable, oppressive, or tyrannical, courts have, as a
general rule, declined to interfere with such discretion. The desirability of
imposing restraint upon the number of persons who might otherwise
engage in non-useful enterprises is, of course, generally an important
factor in the determination of the amount of this kind of license fee. Hence
license fees clearly in the nature of privilege taxes for revenue have
frequently been upheld, especially in of licenses for the sale of liquors. In
fact, in the latter cases the fees have rarely been declared unreasonable. 23
Moreover in the equally leading case of Lutz v. Araneta24 this Court
affirmed the doctrine earlier announced by the American Supreme Court
that taxation may be made to implement the state's police power. Only the
other day, this Court had occasion to affirm that the broad taxing authority
conferred by the Local Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with the only
limitation that the tax so levied is for public purposes, just and uniform. 25
As a matter of fact, even without reference to the wide latitude enjoyed by
the City of Manila in imposing licenses for revenue, it has been explicitly
held in one case that "much discretion is given to municipal corporations in
determining the amount," here the license fee of the operator of a
massage clinic, even if it were viewed purely as a police power
measure.26 The discussion of this particular matter may fitly close with this
pertinent citation from another decision of significance: "It is urged on
behalf of the plaintiffs-appellees that the enforcement of the ordinance
could deprive them of their lawful occupation and means of livelihood
because they can not rent stalls in the public markets. But it appears that
plaintiffs are also dealers in refrigerated or cold storage meat, the sale of
which outside the city markets under certain conditions is permitted x x x .
And surely, the mere fact, that some individuals in the community may be
deprived of their present business or a particular mode of earning a living
cannot prevent the exercise of the police power. As was said in a case,
persons licensed to pursue occupations which may in the public need and
interest be affected by the exercise of the police power embark in these
occupations subject to the disadvantages which may result from the legal
exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the
challenged ordinance makes it unlawful for the owner, manager, keeper or
duly authorized representative of any hotel, motel, lodging house, tavern,
common inn or the like, to lease or rent room or portion thereof more than
twice every 24 hours, with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a limitation cannot be
viewed as a transgression against the command of due process. It is
neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises
could be, and, according to the explanatory note, are being devoted. How
could it then be arbitrary or oppressive when there appears a
correspondence between the undeniable existence of an undesirable
situation and the legislative attempt at correction. Moreover, petitioners
cannot be unaware that every regulation of conduct amounts to curtailment
of liberty which as pointed out by Justice Malcolm cannot be absolute.
Thus: "One thought which runs through all these different conceptions of
liberty is plainly apparent. It is this: 'Liberty' as understood in democracies,
is not license; it is 'liberty regulated by law.' Implied in the term is restraint
by law for the good of the individual and for the greater good of the peace
and order of society and the general well-being. No man can do exactly as
he pleases. Every man must renounce unbridled license. The right of the
individual is necessarily subject to reasonable restraint by general law for
the common good x x x The liberty of the citizen may be restrained in the
interest of the public health, or of the public order and safety, or otherwise
within the proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare, then,
lies at the bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and property may
be subjected to all kinds of restraints and burdens, in order to secure the
general comfort, health, and prosperity of the state x x x To this
fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall
into anarchy. Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The citizen should achieve
the required balance of liberty and authority in his mind through education
and personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all. 29
It is noteworthy that the only decision of this Court nullifying legislation
because of undue deprivation of freedom to contract, People v.
Pomar,30 no longer "retains its virtuality as a living principle. The policy
of laissez faire has to some extent given way to the assumption by the
government of the right of intervention even in contractual relations
affected with public interest.31 What may be stressed sufficiently is that if
the liberty involved were freedom of the mind or the person, the standard
for the validity of governmental acts is much more rigorous and exacting,
but where the liberty curtailed affects at the most rights of property, the
permissible scope of regulatory measure is wider.32 How justify then the
allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due
process ground by invoking the principles of vagueness or uncertainty. It
would appear from a recital in the petition itself that what seems to be the
gravamen of the alleged grievance is that the provisions are too detailed
and specific rather than vague or uncertain. Petitioners, however, point to
the requirement that a guest should give the name, relationship, age and
sex of the companion or companions as indefinite and uncertain in view of
the necessity for determining whether the companion or companions
referred to are those arriving with the customer or guest at the time of the
registry or entering the room With him at about the same time or coming at
any indefinite time later to join him; a proviso in one of its sections which
cast doubt as to whether the maintenance of a restaurant in a motel is
dependent upon the discretion of its owners or operators; another proviso
which from their standpoint would require a guess as to whether the "full
rate of payment" to be charged for every such lease thereof means a full
day's or merely a half-day's rate. It may be asked, do these allegations
suffice to render the ordinance void on its face for alleged vagueness or
uncertainty? To ask the question is to answer it. From Connally v. General
Construction Co.33 to Adderley v. Florida,34 the principle has been
consistently upheld that what makes a statute susceptible to such a charge
is an enactment either forbidding or requiring the doing of an act that men
of common intelligence must necessarily guess at its meaning and differ
as to its application. Is this the situation before us? A citation from Justice
Holmes would prove illuminating: "We agree to all the generalities about
not supplying criminal laws with what they omit but there is no canon
against using common sense in construing laws as saying what they
obviously mean."35
That is all then that this case presents. As it stands, with all due allowance
for the arguments pressed with such vigor and determination, the attack
against the validity of the challenged ordinance cannot be considered a
success. Far from it. Respect for constitutional law principles so uniformly
held and so uninterruptedly adhered to by this Court compels a reversal of
the appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction
issued lifted forthwith. With costs.

Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and

Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.