Professional Documents
Culture Documents
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SUGGESTED ANSWER:
1) On the assumption that Jose Reyes possesses the minimum qualification
requirements prescribed by law for the position, the appointment extended to him is valid.
Consequently, he has a better right than Vicente Estrada.
The claim of Estrada that being the officer next in rank he should have been appointed as City
Engineer is not meritorious. It is a settled rule that the appointing authority is not limited to
promotion in filling up vacancies but may choose to fill them by the appointment of persons with
civil service eligibility appropriate to the position. Even if a vacancy were to be filled by
promotion, the concept of “next in rank” does not import any mandatory requirement that the
person next in rank must be appointed to the vacancy. What the civil service law provides is that
if a vacancy is filled by promotion, the person holding the position next in rank thereto “shall be
considered for promotion.” Espanol v. Civil Service Commission 206 SCRA 715,
ALTERNATIVE ANSWER;
Neither Jose Reyes nor Vicente Estrada has a better right to be appointed City Engineer. As held
in Barrozo vs. Civil Service Commission, 198 SCRA 487, the appointing authority is not
required to appoint the one next-in-rank to fill a vacancy. He is allowed to fill it also by the
transfer of an employee who possesses civil service eligibility.
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(a) Does the phrase “unless sooner terminated” mean that the position of Ricardo is terminable
at will?
ALTERNATIVE ANSWER:
No, the term “unless sooner terminated” could not mean that his position is terminable at will.
Security of tenure means that dismissal should only be for cause, as provided by law and not
otherwise. (Palmera v. CSC, G.R. No. 110168, August 4, 1994)
ALTERNATIVE ANSWER:
No, his position is not terminable at will. Ricardo’s contract of employment has a fixed term of
five years. It is not an appointment in an acting capacity or as officer-in-charge. A college dean
appointed with a term cannot be separated without cause. Ricardo, with a definite term of
employment, may not thus be
removed except for cause. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18,1970)
(b) Was Ricardo removed from his position as Dean of the College of Education or merely
transferred to the position of Special Assistant to the President? Explain.
SUGGESTED ANSWER:
Ricardo was removed from his position as dean. Having an appointment with a fixed term, he
cannot, without his consent, be transferred before the end of his term. He cannot be asked to give
up his post nor appointed as dean of another college, much less transferred to another position
even if it be dignified with a dean’s rank. More than this, the transfer was a demotion because
deanship in a university, being an academic position which requires learning, ability and
scholarship, is more exalted than that of a special assistant who merely assists the President, as
the title indicates. The special assistant does not make authoritative decisions unlike the dean
who does so in his own name and responsibility. The position of dean is created by law, while
the special assistant is not so provided by law; it was a creation of the university president. (Sta.
Maria v. Lopez, G.R. No. L-30773, February 18, 1970)
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Prohibition On Elective Officer to Hold Public Office (2002)
No VII. X was elected provincial governor for a term of three years. He was subsequently
appointed by the President of the Philippines serving at her pleasure, as concurrent Presidential
Assistant for Political Affairs in the Office of the President, without additional compensation.
Is X’s appointment valid? (5%)
SUGGESTED ANSWER:
The appointment of X is not valid, because the position of Presidential Assistant for Political
Affairs is a public office. Article IX-B Section 7 of the Constitution provides that no elective
official shall be eligible for appointment or designation in any capacity to any public office or
position during his tenure. As held in Flores
v. Drilon, 223 SCRA 568 (1993), since an elective official is ineligible for an appointive
position, his appointment is not valid.
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Receiving of Indirect Compensation (1997)
No. 18; A, while an incumbent Governor of his province, was invited by the Government of
Cambodia as its official guest. While there, the sovereign king awarded Governor A with a
decoration of honor and gifted him with a gold ring of insignificant monetary value, both of
which he accepted.
Was Governor A’s acceptance of the decoration and gift violative of the Constitution?
SUGGESTED ANSWER:
Yes, it violated Section 8, Article IX-B of the Constitution. For his acceptance of the
decoration of honor and the gold ring from the Government of Cambodia to be valid, Governor
A should first obtain the consent of Congress.
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SUGGESTED ANSWER:
No. The President was wrong in extending an ad interim appointment in favor of Commissioner
C. In Summers vs. Ozaeta, 81 Phil. 754, it was held that an ad interim appointment is a
permanent appointment.
Under Section 15, Article VII of the Constitution, within two months immediately before the
next presidential elections and up to the end of his term, the President cannot make permanent
appointments. The designation of Justice D as acting Associate Commissioner is also invalid.
Section 1(2). Article IX-C of the Constitution prohibits the designation of any Commissioner of
the COMELEC in a temporary or acting capacity. Section 12, Article VIII of the Constitution
prohibits the designation of any member of the Judiciary to any agency performing quasi-judicial
or administrative functions.
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Appointing Powers; Ad Interim Appointments (Q4-2005)
(1) In March 2001, while Congress was adjourned, the President appointed Santos as
Chairman of the COMELEC. Santos immediately took his oath and assumed office. While his
appointment was promptly submitted to the Commission on Appointments for confirmation, it
was not acted upon and Congress again adjourned. In June 2001, the President extended a second
ad interim appointment to Santos for the same position with the same term, and this appointment
was again submitted to the Commission on Appointments for confirmation. Santos took his oath
anew and performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned
the validity of Santos’ appointment. Resolve the following issues: (5%)
(a) Does Santos’ assumption of office on the basis of the ad interim appointments issued by
the President amount to a temporary appointment which is prohibited by Section 1(2), Article
IX-C of the Constitution?
ALTERNATIVE ANSWER:
No, Santos’ appointment does not amount to a temporary appointment. An ad interim
appointment is a permanent appointment because it takes effect immediately and can no longer
be withdrawn by the President once the appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interim appointment permanent in character by
making it effective until disapproved by the Commission on Appointments or until the next
adjournment of Congress. A temporary or acting appointee does not enjoy any security of tenure,
no matter how briefly. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)
ALTERNATIVE ANSWER:
An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article
IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L65439,
November 13,1985)
(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos,
were his second ad interim appointment and subsequent assumption of office to the same
position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the
Constitution?
SUGGESTED ANSWER:
No, the second ad interim appointment and subsequent assumption of office does not violate the
Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution
does not apply to by-passed ad interim appointments. It can be revived by a new ad interim
appointment because there is no final disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in the appointee serving beyond the fixed
term of seven years. The phrase “without reappointment” applies only to one who has been
appointed by the President and confirmed by the Commission on Appointments, whether or not
such person completes his term of office. To hold otherwise will lead to absurdities and negate
the President’s power to make ad interim appointments. (Matibag v. Benipayo, G.R. No. 149036,
April 2, 2002)
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Appointing Powers; Ad Interim Appointments (Q4-2005)
(1) In March 2001, while Congress was adjourned, the President appointed Santos as
Chairman of the COMELEC. Santos immediately took his oath and assumed office. While his
appointment was promptly submitted to the Commission on Appointments for confirmation, it
was not acted upon and Congress again adjourned. In June 2001, the President extended a second
ad interim appointment to Santos for the same position with the same term, and this appointment
was again submitted to the Commission on Appointments for confirmation. Santos took his oath
anew and performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned
the validity of Santos’ appointment. Resolve the following issues: (5%)
(a) Does Santos’ assumption of office on the basis of the ad interim appointments issued by
the President amount to a temporary appointment which is prohibited by Section 1(2), Article
IX-C of the Constitution?
ALTERNATIVE ANSWER:
No, Santos’ appointment does not amount to a temporary appointment. An ad interim
appointment is a permanent appointment because it takes effect immediately and can no longer
be withdrawn by the President once the appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interim appointment permanent in character by
making it effective until disapproved by the Commission on Appointments or until the next
adjournment of Congress. A temporary or acting appointee does not enjoy any security of tenure,
no matter how briefly. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)
ALTERNATIVE ANSWER:
An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article
IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L65439,
November 13,1985)
(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos,
were his second ad interim appointment and subsequent assumption of office to the same
position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the
Constitution?
SUGGESTED ANSWER:
No, the second ad interim appointment and subsequent assumption of office does not violate the
Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution
does not apply to by-passed ad interim appointments. It can be revived by a new ad interim
appointment because there is no final disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in the appointee serving beyond the fixed
term of seven years. The phrase “without reappointment” applies only to one who has been
appointed by the President and confirmed by the Commission on Appointments, whether or not
such person completes his term of office. To hold otherwise will lead to absurdities and negate
the President’s power to make ad interim appointments. (Matibag v. Benipayo, G.R. No. 149036,
April 2, 2002)
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SUGGESTED ANSWER:
(a) If I were the judge, I would uphold the validity of the designation of Secretary M as ex
officio member of the Monetary Board, As stated in Civil Liberties Union v. Executive
Secretary, 194 SCRA 317 (1991), the prohibition against the holding of multiple positions by
Cabinet Members in Article VII, Section 13 of the Constitution does not apply to positions
occupied in an ex officio capacity as provided by law and as required by the primary functions of
their office.
(b) If I were the Judge, I would rule that Secretary M cannot receive any additional
compensation. As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991),
a Cabinet Member holding an ex-officio position has no right to receive additional
compensation, for his services in that position are already paid for by the compensation attached
to his principal office.
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GOCCs Without Original Charter vs. GOCCs With Original Charter (1998)
No II.– The Constitution distinguishes between two types of owned and/or controlled
corporations: those with original charters and those which are subsidiaries of such corporations.
In which of the following rule/rules is such a distinction made? Consider each of the following
items and explain briefly your answer, citing pertinent provisions of the Constitution.
The rule prohibiting the appointment to certain government positions, of the spouse and relatives
of the President within the fourth degree of consanguinity or affinity. [2%]
The rule making it incompatible for members of Congress to hold offices or employment in the
government. [2%]
The rule prohibiting members of the Constitutional Commissions, during their tenure, to be
financially interested in any contract with or any franchise or privilege granted by the
government, [2%]
The rule providing for post audit by the COA of certain government agencies. [2%]
The rule requiring Congress to provide for the standardization of compensation of government
officials and employees. [2%]
SUGGESTED ANSWER:
Section 13. Article VII of the Constitution, which prohibits the President from appointing his
spouse and relatives within the fourth degree of consanguinity or affinity does not distinguish
between government corporations with original charters and their subsidiaries, because the
prohibition applies to both.
Section 13, Article VII of the Constitution, which prohibits Members of Congress from holding
any other office during their term without forfeiting their seat, does not distinguish between
government corporations with original charters and their subsidiaries, because the prohibition
applies to both.
Section 2, Article IX-A of the Constitution, which prohibits Members of the Constitutional
Commissions from being financially interested in any contract with or any franchise or privilege
granted by the Government, does not distinguish between government corporations with original
charters and their subsidiaries, because the prohibition applies to both.
Section 2(1), Article IX-D of the Constitution which provides for post audit by the Commission
on audit of government corporations, does not distinguish between government corporations with
original charters and their subsidiaries, because the provision applies to both.
Section 5, Article IX-B of the Constitution, which provides for the standardization of the
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No VIII – The Philippine National Bank was then one of the leading government-owned banks
and it was under the audit jurisdiction of the Commission on Audit (COA). A few years ago, it
was privatized.
What is the effect, if any, of the privatization of PNB on the audit Jurisdiction of the COA? (5%)
SUGGESTED ANSWER:
In accordance with the ruling in Philippine Airlines vs. Commission on Audit, 245 SCRA 39,
(1995), since the Philippine National Bank is no longer owned by the Government, the
Commission on Audit no longer has jurisdiction to audit it as an institution. Under Section 2(2),
Article IX-D of the Constitution, it is government-owned or controlled corporations and their
subsidiaries which are subject to audit by the Commission on Audit. However, in accordance
with Section 2(1), Article IX-D of the Constitution, the Commission on Audit can audit the
Philippine National Bank with respect to its accounts because the Government still has equity in
it.
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(2) The contract must be entered into by the proper officer, i.e., the mayor, upon resolution of the
Sangguniang Bayan pursuant to Section 142 of the Local Government Code;
(3) In accordance with Sec. 606 of the Revised Administrative Code, there must be an
appropriation of the public funds; and in accordance with Sec. 607, there must be a
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No. 2: The City of Cebu passed an ordinance proclaiming the expropriation of a ten (10) hectare
property of C Company, which property is already a developed commercial center. The City
proposed to operate the commercial center in order to finance a housing project for city
employees in the vacant portion of the said property. The ordinance fixed the price of the land
and the value of the improvements to be paid C Company on the basis of the prevailing land
value and cost of construction.
(1) As counsel for C Company, give two constitutional objections to the validity of the
ordinance.
(2) As the judge, rule on the said objections.
SUGGESTED ANSWER:
(1) As counsel for C Company, I will argue that the taking of the property is not for a public use
and that the ordinance cannot fix the compensation to be paid C Company, because this is a
judicial question that is for the courts to decide.
(2) As judge, I will sustain the contention that the taking of the property of C Company to
operate the commercial center established within it to finance a housing project for city
employees is not for a public use but for a private purpose. As the Court indicated in a dictum in
Manotok. v. National Housing Authority, 150 SCRA 89, that the expropriation of a commercial
center so that the profits derived from its operation can be used for housing projects is a taking
for a private purpose.
I will also sustain the contention that the ordinance, even though it fixes the compensation for the
land on the basis of the prevailing land value cannot really displace judicial determination of the
price for the simple reason that many factors, some of them supervening, cannot possibly be
considered by the legislature at the time of enacting the ordinance. There is greater reason for
nullifying the use of the cost of construction in the ordinance as basis for compensation for the
improvements. The fair market value of the improvements may not be equal to the cost of
construction. The original cost of construction may be lower than the fair market value, since the
cost of construction at the time of expropriation may have increased.
ALTERNATIVE ANSWER:
The taking of the commercial center is justified by the concept of indirect public benefit since its
operation is intended for the development of the vacant portion for socialized housing, which is
clearly a public purpose.
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(10-2) The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution No. 1
authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina as
site for its municipal sports center. This was approved by the Mayor. However, the Sangguniang
Panlalawigan of Ilocos Sur disapproved the Resolution as there might still
be other available lots in Santa for a sports center.
Nonetheless, the Municipality of Santa, through its Mayor, filed a complaint for eminent domain.
Christina opposed this on the following grounds:
the Municipality of Santa has no power to expropriate;
Resolution No. 1 has been voided since the Sangguniang Panlalawigan disapproved it for being
arbitrary; and
the Municipality of Santa has other and
better lots for that purpose. Resolve the case with reasons. (5%)
SUGGESTED ANSWERS:
a) Under Section 19 of R.A. No. 7160, the power of eminent domain is explicitly granted to
the municipality, but must be exercised through an ordinance rather than through a resolution.
(Municipality ofParanaque v. V.M. Realty Corp., G.R. No. 127820, July 20, 1998)
1. b) The Sangguniang Panlalawigan of Ilocos Sur was without the
authority to disapprove Resolution No. 1 as the municipality clearly has the
power to exercise the right of eminent domain and its Sangguniang Bayan
the capacity to promulgate said resolution. The only ground upon which a
provincial board may declare any municipal resolution, ordinance or order
invalid is when such resolution, ordinance or order is beyond the powers
conferred upon the council or president making the same. Such is not the
situation in this case. (Moday v. Court of Appeals, G.R. No. 107916,
February 20, 1997)
2. c) The question of whether there is genuine necessity for the
expropriation of Christina’s lot or whether the municipality has other and
better lots for the purpose is a matter that will have to be resolved by the
Court upon presentation of evidence by the parties to the
case.********************************
Ordinance; Use & Lease of Properties; Public Use (1997)
No. 9: Due to over-crowding in the public market in Paco, Manila, the City Council passed an
ordinance allowing the lease to vendors of parts of the streets where the public market is located,
provided that the lessees pay to the city government a fee of P50 per square meter of the area
occupied by the lessees. The residents in the area complained to the Mayor that the lease of the
public streets would cause serious traffic problems to them. The Mayor cancelled the lease and
ordered the removal of the stalls constructed on the streets. Was the act of the Mayor legal?
SUGGESTED ANSWER:
The cancellation of the lease and the removal of the stalls are valid. As held in Macasiano vs.
Diokno, 212 SCRA 464, the lease of public streets is void, since they are reserved for public use
and are outside the commerce of man.
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Recall (2002)
No XVI. Suppose the people of a province want to recall the provincial governor before the end
of his three-year term of office,
A. On what ground or grounds can the provincial governor be recalled? (1%)
B. How will the recall be initiated? (2%)
C. When will the recall of an elective local official be considered effective? {2%}
SUGGESTED ANSWER:
In accordance with Section 69 of the Local Government Code, the Governor can be recalled for
LOSS OF CONFIDENCE.
Under Section 70 of the Local Government Code, the recall may be initiated by a resolution
adopted by a majority of all the members of the preparatory recall assembly, which consists of
all the mayors, the vice-mayors, and the sangguniang members of the municipalities and
component cities, or by a written petition signed by at least twenty-five per cent (25%) of the
total number of registered voters in the province.
According to Section 72 of the Local Government Code, the recall of an elective local official
shall take effect upon the election and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election on recall.
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Ordinance; Validity; Utilization & Development; National Wealth (1991)
No. 5; The province of Palawan passes an ordinance requiring all owners/operators of fishing
vessels that fish in waters surrounding the province to invest ten percent (10%) of their net
profits from operations therein in any enterprise located in Palawan.
NARCO Fishing Corp., a Filipino corporation with head office in Navotas, Metro Manila,
challenges the ordinance as unconstitutional. Decide the case.
SUGGESTED ANSWER:
The ordinance is invalid. The ordinance was apparently enacted pursuant to Article X, Sec. 7 of
the Constitution, which entitles local governments to an equitable share in the proceeds of the
utilization and development of the national wealth within their respective areas. However, this
should be made pursuant to law. A law is needed to implement this provision and a local
government cannot constitute itself unto a law. In the absence of a law the ordinance in question
is invalid.
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SUGGESTED ANSWER:
Manuel is not eligible to run as mayor of the city of Tuba. The 1987 Constitution specifically
included an exception to the people’s freedom to choose those who will govern them in order to
avoid the evil of a single person accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in the same office. To allow Manuel to vie for the
position of city mayor after having served for three consecutive terms as a municipal mayor
would obviously defeat the very intent of the framers when they wrote this exception. Should he
be allowed another three consecutive terms as mayor of the City of Tuba, Manuel would then be
possibly holding office as chief executive over the same territorial jurisdiction and inhabitants
for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it. (Latasa v. COMELEC, G.R. No. 154829, December 10, 2003)
(c) Assuming that Manuel is not an eligible candidate, rebut Reyes’ claim that he should be
proclaimed as winner having received the next higher number of votes.
ALTERNATIVE ANSWER:
Reyes cannot be proclaimed winner for receiving the second highest number of votes. The
Supreme Court has consistently ruled that the fact that a plurality or a majority of the votes are
cast for an ineligible candidate at a popular election, or that a candidate is later declared to be
disqualified to hold office, does not entitle the candidate who garnered the second highest
number of votes to be declared elected. The same merely results in making the winning
candidate’s election a nullity. In the present case, 10,000 votes were cast for private respondent
Reyes as against the 20,000 votes cast for petitioner Manuel. The second placer is obviously not
the choice of the people in this
particular election. The permanent vacancy in the contested office should be filled by succession.
(Labo v. COMELEC, G.R. No. 105111, July 3,1992)
ALTERNATIVE ANSWER:
Reyes could not be proclaimed as winner because he did not win the election. To allow the
defeated candidate to take over the Mayoralty despite his rejection by the electorate is to
disenfranchise the electorate without any fault on their part and to undermine the importance and
meaning of democracy and the people’s right to elect officials of their choice. (Benito v.
COMELEC, G.R. No. 106053, August 17, 1994)
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Powers of Barangay Assembly (2003)
Can a Barangay Assembly exercise any police power?
SUGGESTED ANSWER:
No, the Barangay Assembly cannot exercise any police power. Under Section 398 of the Local
Government Code, it can only recommend to the Sangguniang Barangay the adoption of
measures for the welfare of the barangay and decide on the adoption of an initiative.
Powers; Liga ng mga Barangay (2003)
Can the Liga ng mga Barangay exercise legislative powers?
SUGGESTED ANSWER:
The Liga ng Mga Barangay cannot exercise legislative powers. As stated in Bito-Onon v.
Fernandez. 350 SCRA 732 [2001], it is not a local government unit and its primary purpose is to
determine representation of the mga in the sanggunians; to ventilate, articulate, and crystallize
issues affecting barangay government administration; and to secure solutions for them through
proper and legal means.
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SUGGESTED ANSWER:
(b) The ordinance is valid. The charge on the business establishments is not a tax but a SPECIAL
ASSESSMENT. Hence, the holding in Pascual v. Secretary of Public Works, 110 Phil. 331
(1960), that public funds cannot be appropriated for the construction of roads in a private
subdivision, does not apply. As held in Apostolic Prefect v. City Treasurer of Baguio, 71 Phil.
547 (1941), special assessments may be charged to property owners benefited by public works,
because the essential difference between a tax and such assessment is precisely that the latter is
based wholly on benefits received.
However, if the ordinance levies a tax on all business establishments located outside the private
subdivision, then it is objectionable on the ground that it appropriate private funds for a public
purpose. (Pascual v. Secretary of Public Works, supra)
(c) The ordinance is valid. In Velasco v, Villegas, 120 SCRA 658 (1983) such ordinance was
upheld on the ground that it is a means of enabling the City of Manila to collect a fee for
operating massage clinics and of preventing immorality which might be committed by allowing
the construction of separate rooms in barber shops.
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SUGGESTED ANSWER:
Although the municipality cannot be considered as a de facto corporation, because there is no
valid law under which it was created, the acts of the municipality and of its officers will not be
invalidated, because the existence of the law creating it is an operative fact before it was declared
unconstitutional. Hence, the previous acts of the municipality and its officers should be given
effect as a matter of fairness and justice. (Municipality ofMalabang v. Benito, 27 SCRA 533
[1969]