TAN vs. COMELECG.R. No. 73155 July 11, 1986Governing law: Art XI Sec. 3 of Constitution in relation to Sec. 197 of Local Government Code

Facts:This case was prompted by the enactment of Batas Pambansa Blg. 885, An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, effective Dec. 3, 1985. (Cities of Silay, Cadiz and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona, and Salvador Benedicto proposed to belong to the new province).Pursuant to and in implementation of this law, the COMELEC scheduled a plebiscite for January 3, 1986. Petitioners opposed, filing a case for Prohibition and contending that the B.P. 885 is unconstitutional and not in complete accord with the Local Government Code because:• The voters of the parent province of Negros Occidental, other than those living within the territory of the new province of Negros del Norte, were not included in the plebiscite.• The area which would comprise the new province of Negros del Norte would only be about 2,856.56 sq. km., which is lesser than the minimum area prescribed by the governing statute, Sec. 197 of LGC.

Issue:WON the plebiscite was legal and complied with the constitutional requisites of the Consititution, which states that — “Sec. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the Local Government Code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected”? NO.

Held:Whenever a province is created, divided or merged and there is substantial alteration of the boundaries, “the approval of a majority of votes in the plebiscite in the unit or units affected” must first be obtained. The creation of the proposed new province of Negros del Norte will necessarily result in the division and alteration of the existing boundaries of Negros Occidental (parent province).Plain and simple logic will demonstrate that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte. Paredes vs. Executive (G.R. No. 55628) should not be taken as a doctrinal or compelling precedent. Rather, the dissenting view of Justice Abad Santos is applicable, to wit:“…when the Constitution speaks of “the unit or units affected” it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or of the people of two or more municipalities if there be a merger.”The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent province, not to mention the adverse economic effects it might suffer, eloquently argue the points raised by the petitioners.”SC pronounced that the plebscite has no legal effect for being a patent nullity.

TATEL V MUN OF VIRAC

This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of Catanduanes filed by appellant, Celestino Tatel, a businessman engaged in the import and export of abaca and other products against the Municipal Council of Virac, Catanduanes and its municipal officials enjoining them from enforcing Resolution No 29 1 of the Council, declaring the warehouse of petitioner in barrio Sta. Elena of the said municipality a public nuisance within the purview of Article 694 of the Civil Code of the Philippines and directing the petitioner to remove and transfer said warehouse to a more suitable place within two (2) months from receipt of the said resolution.

It appears from the records that on the basis of complaints received from the residents of barrio Sta. Elena on March 18, 1966 against the disturbance caused by the operation of the abaca bailing machine inside the warehouse of petitioner which affected the peace and tranquility of the neighborhood due to the smoke, obnoxious odor and dust emitted by the machine, a committee was appointed by the municipal council of Virac to investigate the matter. The committee noted the crowded nature of the neighborhood with narrow roads and the surrounding residential houses, so much so that an accidental fire within the warehouse of the petitioner occasioned by the continuance of the activity inside the warehouse and the storing of inflammable materials created a danger to the lives and properties of the people within the neighborhood.

Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966 declaring the warehouse owned and operated by petitioner a public nuisance within the purview of Article 694 of the New Civil Code. 2

His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner instituted the present petition for prohibition with preliminary injunction.

Respondent municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance No. 13, series of 1952, prohibiting the construction of warehouses near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire.

On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due process and equal protection clause of the Constitution and null and void for not having been passed in accordance with law.

The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of Article 694 of the Civil Code and whether Ordinance No. 13, S. 1952 of the Municipality of Virac is unconstitutional and void.

In a decision dated September 18, 1969, the court a quo ruled as follows:

1. The warehouse in question was legally constructed under a valid permit issued by the municipality of Virac in accordance with existing regulations and may not be destroyed or removed from its present location;

2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police power by the Municipal Council of Virac is not (sic) unconstitutional and void as claimed by the petitioner;

3. The storage by the petitioner of abaca and copra in the warehouse is not only in violation of the provisions of the ordinance but poses a grave danger to the safety of the lives and properties of the residents of the neighborhood due to accidental fire and constitutes a public nuisance under the provisions of Article 694 of the New Civil code of the Philippines and may be abated;

4. Accordingly, the petitioner is hereby directed to remove from the said warehouse all abaca and copra and other inflammable articles stored therein which are prohibited under the provisions of Ordinance No. 13, within a period of two (2) months from the time this decision becomes final and that henceforth, the petitioner is enjoined from storing such prohibited articles in the warehouse. With costs against petitioner.

Seeking appellate review, petitioner raised as errors of the court a quo:

1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac, Catanduanes, is a legitimate and valid exercise of police power of the Municipal Council, and therefore, constitutional;

2. In giving the ordinance a meaning other than and different from what it provided by declaring that petitioner violated the same by using the warehouse for storage of abaca and copra when what is prohibited and penalized by the ordinance is the construction of warehouses.

3. In refusing to take judicial notice of the fact that in the municipality, there are numerous establishments similarly situated as appellants' warehouses but which are not prosecuted.

We find no merit in the Petition.

Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with the police powers in order to effectively accomplish and carry out the declared objects of their creation. 3 Its authority emanates from the general welfare clause under the Administrative Code, which reads:

The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good

order, comfort and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. 4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (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. 5 Ordinance No. 13, Series of 1952, meets these criteria.

As to the petitioner's second assignment of error, the trial court did not give the ordinance in question a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of Virac on December 29, 1952, 6reads:

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.

Section 1 provides:

It is strictly prohibited to construct warehouses in any form to any person, persons, entity, corporation or merchants, wherein to keep or store copra, hemp, gasoline, petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if not within the distance of 200 meters from a block of houses either in the poblacion or barrios to avoid great losses of properties inclusive lives by fire accident.

Section 2 provides: 7

Owners of warehouses in any form, are hereby given advice to remove their said warehouses this ordinance by the Municipal Council, provided however, that if those warehouses now in existence should no longer be utilized as such warehouse for the above-described products in Section 1 of this ordinance after a lapse of the time given for the removal of the said warehouses now in existence, same warehouses shall be exempted from the spirit of the provision of section 1 of this ordinance,provided further, that these warehouses now in existence, shall in the future be converted into non-inflammable products and materials warehouses.

In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property in case of fire which is one of the primordial obligation of the government.

This was also the observation of the trial court:

A casual glance of the ordinance at once reveals a manifest disregard of the elemental rules of syntax. Experience, however, will show that this is not uncommon in law making bodies in small towns where local authorities and in particular the persons charged with the drafting and preparation of municipal resolutions and ordinances lack sufficient education and training and are not well grounded even on the basic and fundamental elements of the English language commonly used throughout the country in such matters. Nevertheless, if one scrutinizes the terms of the ordinance, it is clear that what is prohibited is the construction of warehouses by any person, entity or corporation wherein copra, hemp, gasoline and other inflammable products mentioned in Section 1 may be stored unless at a distance of not less than 200 meters from a block of houses either in the poblacion or barrios in order to avoid loss of property and life due to fire. Under Section 2, existing warehouses for the storage of the prohibited articles were given one year after the approval of the ordinance within which to remove them but were allowed to remain in operation if they had ceased to store such prohibited articles.

The ambiguity therefore is more apparent than real and springs from simple error in grammatical construction but otherwise, the meaning and intent is clear that what is prohibited is the construction or maintenance of warehouses for the storage of inflammable articles at a distance within 200 meters from a block of houses either in the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of life and property in case of accidental fire which is one of the primordial and basic obligation of any government. 8

Clearly, the lower court did NOT add meaning other than or differrent from what was provided in the ordinance in question. It merely stated the purpose of the ordinance and what it intends to prohibit to accomplish its purpose.

As to the third assignment of error, that warehouses similarly situated as that of the petitioner were not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not proceeded against other warehouses in the municipality allegedly violating Ordinance No. 13 is no reason to claim that the ordinance is discriminatory. A distinction must be made between the law itself and the manner in which said law is implemented by the agencies in charge with its administration and enforcement. There is no valid reason for the petitioner to complain, in the absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance and that the complaints have been lodged against the bodegas concerned without the municipal authorities doing anything about it.

The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government.

As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same. The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls under the then Court of First Instance.

WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

CRUZ v. PARAS

Facts:

Being the principal cause in the decadence of morality and because of their other adverse effects

on the community, the respondents passed Ordinance No. 84 which may be cited as the Prohibition and

Closure Ordinance of Bocaue, Bulacan which says that operator of night clubs, cabarets or dance hallsshall henceforth be issued permits/licenses to operate within the jurisdiction of the municipality and nolicense/permit shall be issued to any professional hostess, hospitality girls and professional dancer foremployment in any of the aforementioned establishments. The prohibition in the issuance oflicenses/permits to said persons and operators of said establishments shall include prohibition in therenewal thereof.

Petitioners allege that their rights to due process and equal protection of the laws were violated

as the licenses previously given to them was in effect withdrawn without judicial hearing.

The lower court dismissed the cases of prohibition with preliminary injuction and upheld the

constitutionality of the Ordinance in question. Hence, the petition for certiorari by way of appeal.

Issue: Whether or not a municipal corporation, Bocaue, Bulacan, represented by respondents, can

prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a lawful

occupation

Held:No

Ratio:

Police power is granted to municipal corporations in general terms as follows: "General power of

council to enact ordinances and make regulations. - The municipal council shall enact such ordinancesand make suchre gula tions, not repugnant to law, as may be necessary to carry into effect anddischarge the powers and duties conferred upon it by law and such as shall seem necessary and properto provide for the health and safety, promote the prosperity, improve the morals, peace, good order,comfort, and convenience of the municipality and the inhabitants thereof, and for the protection ofproperty therein."

It is a general rule that ordinances passed by virtue of the implied power found in the generalwelfare clause must be reasonable, consonant with the general powers and purposes of the corporation,and not inconsistent with the laws or policy of the State. If night clubs were merely then regulated and notprohibited, certainly the assailed ordinance would pass the test of validity.

The case is different from Ermita Malate Hotel & Motel Operators v. City Mayor because whatwas involved is a measure not embraced within the regulatory power but an exercise of an assumedpower to prohibit.

The writ of certiorari is granted and the decision of the lower court reversed, set aside, andnullified. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is declared void andunconstitutional.

QC V ERICTA

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death, to be determined by competent City Authorities. The area so designated shall immediately be developed and should be open for operation not later than six months from the date of approval of the application.

For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after the enactment of the ordinance, the Quezon City Council passed the following resolution:

RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon City where the owners thereof have failed to donate the required 6% space intended for paupers burial.

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and that the land is taken for a public use as it is intended for the burial ground of paupers.

They further argue that the Quezon City Council is authorized under its charter, in the exercise of local police power, " to make such further ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is obvious because the questioned ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use of his property.

The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the property in this case because it refers to "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The respondent points out that if an owner is deprived of his property outright under the State's police power, the property is generally not taken for public use but is urgently and summarily destroyed in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to prevent the spread of a conflagration.

We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?

An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulatesuch other business, trades, and occupation as may be established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Neither can the ordinance in question be justified under sub- section "t", Section 12 of Republic Act 537 which authorizes the City Council to-

'prohibit the burial of the dead within the center of population of the city and provide for their burial in such proper place and in such manner as the council may determine, subject to the provisions of the general law regulating burial grounds and cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).

There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this act and such as it shall deem necessary and proper to provide for the health and safety, promote, the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.

We start the discussion with a restatement of certain basic principles. Occupying the forefront in the bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).

On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-preservation

and survival itself, it is the most positive and active of all governmental processes, the most essential insistent and illimitable Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight. Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever challenges the validity of duly enacted legislation whether national or local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every presumption in favor of validity and, more so, where the ma corporation asserts that the ordinance was enacted to promote the common good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption of validity that attaches to a statute or ordinance. As was expressed categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The action of 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 lances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-being of the people. ... The Judiciary should not lightly set aside legislative action when there is not a clear invasion

of personal or property rights under the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of Health supra :

... Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best and highest interests of the municipality. It is a well-settled principle, growing out of the nature of well-ordered and society, that every holder of property, however absolute and may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. An property in the state is held subject to its general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the organic law and providing that such power is not exercised in such a manner as to justify the interference of the courts to prevent positive wrong and oppression.

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to

buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.

SO ORDERED.

G.R. No. L-24670 December 14, 1979

ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant,

vs.

FEATI BANK AND TRUST CO., defendant-appellee.

SANTOS, J.:

Facts

Plaintiff is engaged in real estate business, developing and selling lots to the public, particularly the

Highway Hills Subdivision along EDSA. On March 4, 1952, plaintiff, as vendor, and Augusto Padilla and

Natividad Angeles, as vendees, entered into separate agreements of sale on installments over two

parcels of land of the Subdivision. On July 19, 1962, the said vendees transferred their rights and

interests over the aforesaid lots in favor of one Emma Chavez. Upon completion of payment of the

purchase price, the plaintiff executed the corresponding deeds of sale in favor of Emma Chavez. Both

the agreements (of sale on installment) and the deeds of sale contained the stipulations or restrictions

that:

1. The parcel of land shall be used exclusively for residential purposes, and she shall not be entitled to

take or remove soil, stones or gravel from it or any other lots belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed at any time in said

lot must be, (a) of strong materials and properly painted, (b) provided with modern sanitary installations

connected either to the public sewer or to an approved septic tank, and (c) shall not be at a distance of

less than two (2) meters from its boundary lines.

Eventually a resolution was issued and within the resolution it declared the said lots has to be a

commercial and industrial zone, per Resolution No. 27, dated February 4, 1960 of the Municipal Council

of Mandaluyong, Rizal.9 It alleges that plaintiff-appellant 'completely sold and transferred to third

persons all lots in said subdivision facing

Epifanio de los Santos Avenue"10 and the subject lots thereunder were acquired by it "only on July 23,

1962 or more than two (2) years after the area had been declared a commercial and industrial zone Now

the petitioner assails that the said resolution violates the impairment clause provided by the

Constitution.

Issue

Whether or not the said Resolution violated the impairment clause provided by the Constitution

Held

It was held that the said resolution is a valid exercise of police power thus must yield to the impairment

clause provided by the Constitution The said resolution was obviously passed by the Municipal Council

of Mandaluyong,

Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and

general welfare of the people in the locality, Judicial notice may be taken of the conditions prevailing in

the area, especially where lots Nos. 5 and 6 are located. The lots themselves not only front the highway;

industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which

runs through several cities and municipalities in the Metro Manila area, supports an endless stream of

traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare

of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision

ordinances or regulations, the municipality of Mandaluyong,

through its Municipal 'council, was reasonably, if not perfectly, justified under the circumstances, in

passing the subject resolution

Macasiano v. Diokno

Facts:On 13 June 1990, the Municipality of Paranaque passed Ordinance 86, s. 1990 which authorized theclosure of J. Gabrielle, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located atBaclaran, Parañaque, Metro Manila and the establishment of a flea market thereon. The saidordinance was approved by the municipal council pursuant to MCC Ordinance 2, s. 1979, authorizingand regulating the use of certain city and/or municipal streets, roads and open spaces withinMetropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions.On 20 July 1990, the Metropolitan Manila Authority approved Ordinance 86, s. 1990 of the municipalcouncil subject to conditions. On 20 June 1990, the municipal council issued a resolution authorizingthe Parañaque Mayor to enter into contract with any service cooperative for the establishment,operation, maintenance and management of flea markets and/or vending areas. On 8 August 1990,the municipality and Palanyag, a service cooperative, entered into an agreement whereby the lattershall operate, maintain and manage the flea market with the obligation to remit dues to the treasury ofthe municipal government of Parañaque. Consequently, market stalls were put up by Palanyag on thesaid streets. On 13 September 1990 Brig. Gen. Macasiano, PNP Superintendent of the MetropolitanTraffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. GabrielleSt. in Baclaran. These stalls were later returned to Palanyag. On 16 October 1990, Macasiano wrotea letter to Palanyag giving the latter 10 days to discontinue the flea market; otherwise, the marketstalls shall be dismantled.On 23 October 1990, the municipality and Palanyag filed with the trial court a joint petition forprohibition and mandamus with damages and prayer for preliminary injunction. On 17 December1990, the trial court issued an order upholding the validity of Ordinance 86 s. 1990 of the Municipalityof Parañaque and enjoining Macasiano from enforcing his letter-order against Palanyag. Hence, apetition for certiorari under Rule 65 was filed by Macasiano thru the OSG.

Issue:

Whether or not an ordinance or resolution issued by the municipal council of Parañaque authorizing

the lease and use of public streets or thoroughfares assites for flea markets is valid?

Held:

The property of provinces, cities and municipalities is divided into property for public use andpatrimonial property (Art. 423, Civil Code). As to property for public use, Article 424 of Civil Codeprovides that "property for public use, in the provinces, cities and municipalities, consists of theprovincial roads, city streets, the squares, fountains, public waters, promenades, and public works forpublic service paid for by said provinces, cities or municipalities. All other property possessed by anyof them is patrimonial and shall be governed by this Code, without prejudice to the provisions ofspecial laws." In the present case, thus, J. Gabrielle G.G. Cruz, Bayanihan, Lt. Gacia Extension andOpena streets are local roads used for public service and are therefore considered public propertiesof the municipality. Properties of the local government which are devoted to public service aredeemed public and are under the absolute control of Congress. Hence, local government have noauthority whatsoever to control or regulate the use of public properties unless specific authority isvested upon them by Congress.Heirs of Juancho Ardona v. Reyes 123 SCRA 220

Facts: The Philippine Tourism Authority sought the expropriation of 282 Ha of land in Barangay Malubog and Babag in Cebu City. upon deposit of an amount equivalent to 10% of the value of the property, the CFI authorized the PTA to take immediate possession of the property. The charter of the PTA authorizes it to acquire through condemnation proceedings lands for tourist zone development of a sports complex. The petitioners who are occupants of the lands, filed a petition for certiorari in the SC. They contended that (1) the taking was not for public use; (2) the land was covered by the land reform program; and (3) expropriation would impair the obligation of contracts.

HELD: The concept of public use is not limited to traditional purposes for the construction of roads, bridges, and the like. The idea that "public use" means "use by the public" has been discarded. As long as the purpose of the taking is public, then the power of eminent domain comes into play. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. The petititioners have not shown that the area being developed is land reform area and that the affected persons have been given emancipation patents and certificates of land transfer. The contract clause has never been regarded as a barrier to the exercise of the police power and likewise eminent domain.

Magtajas vs Pryce Properties CorpDate: July 20, 1994Petitioners: Mayor Pablo Magtajas and the City of Cagayan de OroRespondents: Pryce Properties Corp and Pagcor

Ponente: CruzFacts:In 1992, representatives from PPC made representations with the Pagcor on the possibility ofsetting up a casino in Pryce Plaza Hotel in Cagayan de Oro City.On November 1992, the parties executeda contract of lease involving the ballroom of the hotel which would be converted into a casino.

Way back in 1950, the Sangguniang Panglungsod of CDO passed Resolution 2295 prohibiting theestablishment of a gambling casino. Resolution 2673, dated October 19, 1992, reiterated this prohibition.On December 7, 1992, Ordinance No. 3353 was enacted prohibiting the issuance of business permits forthe operation of a casino. On January 4, 1993, Ordinance 3375-93 was passed prohibiting the operation ofcasinos.

PPC filed a petition for prohibition with preliminary injunction against CDO before the CA. It prayedfor the declaration of unconstitutionality of Ordinance 3353. Pagcor intervened claiming that Ordinance4475 was violative of the non-impairment of contracts and EP clauses. The CA declared the ordinancesunconstitutional and void.

Issue:WON the Sangguniang Panglungsod has the authority to enact said ordinances

Held: NoRatio:Petitioner’s Contention. CDO, like other local political subdivisions, is empowered to enactordinances for the purposes indicated in the LGC. It is expressly vested with the police power under what isknown as the General Welfare Clause now embodied in Section 16. In addition, Section 458 declares thatthe Sangguniang Panglungsod has the power to approve ordinances and pass resolutions for the efficientand effective city government.The petitioners argue that by virtue of these provisions, the SangguniangPanlungsod may prohibit the operation of casinos because they involve games of chance, which aredetrimental to the people.

The adoption of the LGC, 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 ofinconsistencies between them. More than this, the powers of the PAGCOR under the decree are expresslydiscontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par.(f) of its repealing clause. It is also maintained that assuming there is doubt regarding the effect of theLocal Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners, inaccordance with the direction in the Code calling for its liberal interpretation in favor of the localgovernment units.

Morality of Gambling Not Justiciable. 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, thereis nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, evenmentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its owndiscretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibitsome forms of gambling and allow others for whatever reasons it may consider sufficient.The onlyquestion 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 CDO.

Test of Validity. The tests of a valid ordinance are well established. A long line of decisions 9 hasheld that to be valid, an ordinance must conform to the following substantive requirements: 1) It must notcontravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partialor discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent withpublic policy. 6) It must not be unreasonable.

We begin by observing that under Sec. 458 of the LGC, LGUs are authorized to prevent or suppress,among others, "gambling and other prohibited games of chance." Obviously, this provision excludesgames of chance which are not prohibited but are in fact permitted by law. The petitioners are less thanaccurate 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. We conclude that since the word "gambling" isassociated with "and other prohibited games of chance," the word should be read as referring to onlyillegal gambling which, like the other prohibited games of chance, must be prevented.

Contravention of PD 1896. 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 fromexercising the power conferred on it to operate a casino in CDO. Petitioner deny that the ordinancechanged the PD, rather the LGC itself changed the PD.It seems to us that the petitioners are playing withwords. While insisting that the decree has only been "modified pro tanto," they are actually arguing that itis already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR ofall power to centralize and regulate casinos. Strictly speaking, its operations may now be not onlyprohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated bySec 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Localgovernment 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 ofchance to regulate or centralize as they must all be prohibited by the local government units pursuant tothe mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to existexcept only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as aprime 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 thereofwhich are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them.Furthermore, itis a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakableshowing of such intention.

Moreover, the petitioners' suggestion that the Code authorizes them to prohibit all kinds ofgambling would erase the distinction between these two forms of gambling without a clear indication thatthis is the will of the legislature.In light of all the above considerations, we see no way of arriving at theconclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, wefind that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as thepublic policy expressed in the decree allowing the playing of certain games of chance despite theprohibition of gambling in general.

Rationale for the rule that ordinances should not contravene a statute. The rationale ofthe requirement that the ordinances should not contravene a statute is obvious. Municipal governmentsare only agents of the national government. Local councils exercise only delegated legislative powersconferred on them by Congress as the national lawmaking body. The delegate cannot be superior to theprincipal or exercise powers higher than those of the latter. It is a heresy to suggest that the localgovernment units can undo the acts of Congress, from which they have derived their power in the firstplace, and negate by mere ordinance the mandate of the statute.

Municipal corporations owe their origin to, and derive their powers and rights wholly from thelegislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it maydestroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on theright, the legislature might, by a single act, and if we can suppose it capable of so great a folly and sogreat a wrong, sweep from existence all of the municipal corporations in the State, and the corporationcould not prevent it. We know of no limitation on the right so far as to the corporation themselves areconcerned. They are, so to phrase it, the mere tenants at will of the legislature.

Relationship between national legislature and local government. This basic relationshipbetween the national legislature and the local government units has not been enfeebled by the newprovisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract fromthat policy, we here confirm that Congress retains control of the local government units although insignificantly reduced degree now than under our previous Constitutions. The power to create still includesthe power to destroy. The power to grant still includes the power to withhold or recall. True, there arecertain notable innovations in the Constitution, like the direct conferment on the local government units ofthe power to tax, which cannot now be withdrawn by mere statute. By and large, however, the nationallegislature is still the principal of the local government units, which cannot defy its will or modify or violateit.

Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot beamended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsodof Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of acasino 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 ultravires and void.Padilla, concurring:I concur with the majority holding that the city ordinances in question cannot modify much less repealPAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines underPresidential Decree No. 1869. However, despite the legality of the opening and operation of a casino inCagayan 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.Davide, concurring:Wrong mode, not prohibition but declaratory reliefThe issue that necessarily arises is whether in granting local governments (such as the City of Cagayan deOro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in thePhilippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarilybecause it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily acontravention of the constitution. In any case, the ordinances can still stand even if they be conceded asoffending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, theordinances should be construed as not applying to PAGCOR.

The Court holds that there is a valid delegation of legislative power to promulgate such measures, it

appearing that the requisites of such delegation are present. These requisites are. 1) the

completeness of the statute making the delegation; and 2) the presence of a sufficient standard. 

Under the first requirement, the statute must leave the legislature complete in all its terms and provisions such that all the delegate will have to do when the statute reaches it is to implement it. What only can be delegated is not the discretion to determine what the law shall be but the discretion to determine how the law shall be enforced. This has been done in the case at bar.

As a second requirement, the enforcement may be effected only in accordance with a sufficient standard, the function of which is to map out the boundaries of the delegate's authority and thus "prevent the delegation from running riot." This requirement has also been met. It is settled that the "convenience and welfare" of the public, particularly the motorists and passengers in the case at bar, is an acceptable sufficient standard to delimit the delegate's authority. 6

To test the validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations.

According to Elliot, a municipal ordinance, to be valid: 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 not be unreasonable; and 6) must be general and consistent with public policy.