Miranda et al.

vs, Aguirre
GR No. 133064
September 16, 1999
DECISION
PUNO, J.:
This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the constitutionality of Republic Act
No. 8528 converting the city of Santiago, Isabela from an independent component city to a component city.
On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an independent component
city was signed into law. On July 4, 1994, the people of Santiago ratified R.A. No. 7720 in a plebiscite.1
On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it changed the status of
Santiago from an independent component city to a component city, viz:
AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 AN ACT CONVERTING THE
MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO.
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
SECTION 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words an independent thereon so
that said Section will read as follows:
SEC. 2. The City of Santiago. The Municipality of Santiago shall be converted into a component city to be known as
the City of Santiago, hereinafter referred to as the City, which shall comprise of the present territory of the Municipality of
Santiago, Isabela. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of
Santiago.
Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire section and in its stead substitute the
following:
SEC. 51. Election of Provincial Governor, Vice-Governor, Sangguniang Panlalawigan Members, and any Elective
Provincial Position for the Province of Isabela.- The voters of the City of Santiago shall be qualified to vote in the elections
of the Provincial Governor, Vice-Governor, Sangguniang Panlalawigan members and other elective provincial positions of
the Province of Isabela, and any such qualified voter can be a candidate for such provincial positions and any elective
provincial office.
Sec. 3. Repealing Clause.- All existing laws or parts thereof inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.
Sec. 4. Effectivity.- This Act shall take effect upon its approval.
Approved.
Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as ground the lack of provision in R.A. No. 8528
submitting the law for ratification by the people of Santiago City in a proper plebiscite. Petitioner Miranda was the mayor of Santiago
at the time of the filing of the petition at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng Santiago
City. Petitioners Dirige, Cabuyadao and Babaran are residents of Santiago City.
In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No. 8528. They assailed the
standing of petitioners to file the petition at bar. They also contend that the petition raises a political question over which this Court
lacks jurisdiction.
Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor General also contends that
petitioners are not real parties in interest. More importantly, it is contended that R.A. No. 8528 merelyreclassified Santiago City from
an independent component city to a component city. It allegedly did not involve any creation, division, merger, abolition, or
substantial alteration of boundaries of local government units, hence, a plebiscite of the people of Santiago is unnecessary.
A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao, 3 a member of the provincial board of
Isabela.4 He contended that both the Constitution and the Local Government Code of 1991 do not require a plebiscite to approve a law
that merely allowed qualified voters of a city to vote in provincial elections. The rules implementing the Local Government Code
cannot require a plebiscite. He also urged that petitioners lacked locus standi.
Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended their standing. They also
stressed the changes that would visit the city of Santiago as a result of its reclassification.

We find merit in the petition.

First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the constitutionality of law
can be challenged by one who will sustain a direct injury as a result of its enforcement. 5 Petitioner Miranda was the mayor of Santiago
City when he filed the present petition in his own right as mayor and not on behalf of the city, hence, he did not need the consent of
the city council of Santiago City. It is also indubitable that the change of status of the city of Santiago from independent component
city to a mere component city will affect his powers as mayor, as will be shown hereafter. The injury that he would sustain from the
enforcement of R.A. No. 8528 is direct and immediate and not a mere generalized grievance shared with the people of Santiago
City. Similarly, the standing of the other petitioners rests on a firm foundation. They are residents and voters in the city of
Santiago. They have the right to be heard in the conversion of their city thru a plebiscite to be conducted by the COMELEC. The
denial of this right in R.A. No. 8528 gives them proper standing to strike the law as unconstitutional.
Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the ground that it involves a
political question has to be brushed aside. This plea has long lost its appeal especially in light of Section 1 ofArticle VIII of the 1987
Constitution which defines judicial power as including the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. To be sure, the cut between a political
and justiciable issue has been made by this Court in many cases and need no longer mystify us. In Taada v. Cuenco,6 we held:
xxx
The term political question connotes what it means in ordinary parlance, namely, a question of policy. It refers to those questions
which under the Constitution are to be decided by the people in their sovereign capacity; or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
In Casibang v. Aquino,7 we defined a justiciable issue as follows:
A purely justiciable issue implies a given right, legally demandable and enforceable, an act or omission violative of such right,
and a remedy granted and sanctioned by law, for said breach of right.
Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10, Article X of the 1987 Constitution they
have a right to approve or disapprove R.A. No. 8528 in a plebiscite before it can be enforced. It ought to be self-evident that whether
or not petitioners have the said right is a legal not a political question. For whether or not laws passed by Congress comply with the
requirements of the Constitution pose questions that this Court alone can decide. The proposition that this Court is the ultimate arbiter
of the meaning and nuances of the Constitution need not be the subject of a prolix explanation.
Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the conversion of the city
of Santiago from an independent component city to a component city should be submitted to its people in a proper plebiscite. We hold
that the Constitution requires a plebiscite. Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay may be created, or divided, merged, abolished, or its boundary substantially altered
except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast
in a plebiscite in the political units directly affected.
This constitutional requirement is reiterated in Section 10, Chapter 2 of the Local Government Code (R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or barangay 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 approval by a majority of the
votes cast in a plebiscite in the political units directly affected.
The power to create, divide, merge, abolish or substantially alter boundaries of local government units belongs to
Congress.8 This power is part of the larger power to enact laws which the Constitution vested in Congress. 9 The exercise of the power
must be in accord with the mandate of the Constitution. In the case at bar, the issue is whether the downgrading of Santiago City from
an independent component city to a mere component city requires the approval of the people of Santiago City in a plebiscite. The
resolution of the issue depends on whether or not the downgrading falls within the meaning of creation, division, merger, abolition or
substantial alteration of boundaries of municipalities per Section 10, Article X of the Constitution. A close analysis of the said
constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of local
government units involve a common denominator - - - material change in the political and economic rights of the local government
units directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the
people in the political units directly affected. It is not difficult to appreciate the rationale of this constitutional requirement. The 1987
Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of
the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local
government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism
to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. It is
one instance where the people in their sovereign capacity decide on a matter that affects them - - - direct democracy of the people as

opposed to democracy thru peoples representatives. This plebiscite requirement is also in accord with the philosophy of the
Constitution granting more autonomy to local government units.
The changes that will result from the downgrading of the city of Santiago from an independent component city to a component
city are many and cannot be characterized as insubstantial. For one, the independence of the city as a political unit will be
diminished. The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and
ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela.Taxes that will be collected by
the city will now have to be shared with the province. Petitioners pointed out these far reaching changes on the life of the people of the
city of Santiago, viz:10
Although RESPONDENTS would like to make it appear that R.A. No. 8528 had merely re-classified Santiago City from an
independent component city into a component city, the effect when challenged (sic) the Act were operational would be, actually, that
of conversion. Consequently, there would be substantial changes in the political culture and administrative responsibilities of
Santiago City, and the Province of Isabela. Santiago City from an independent component city will revert to the Province of Isabela,
geographically, politically and administratively. Thus, the territorial land area of Santiago City will be added to the land area
comprising the province of Isabela. This will be to the benefit or advantage of the Provincial Government of Isabela on account of the
subsequent increase of its share from the internal revenue allotment (IRA) from the National Government (Section 285, R.A. No. 7160
or the Local Government Code of 1991). The IRA is based on land area and population of local government units, provinces included.
The nature or kinds, and magnitude of the taxes collected by the City Government, and which taxes shall accrue solely to the
City Government, will be redefined (Section 151, R.A. No. 7160), and may be shared with the province such as taxes on sand, gravel
and other quarry resources (Section 138, R.A. No. 7160), professional taxes (Section 139, R.A. No. 7160), or amusement taxes
(Section 140, R.A. No. 7160). The Provincial Government will allocate operating funds for the City. Inarguably, there would be a (sic)
diminished funds for the local operations of the City Government because of reduced shares of the IRA in accordance with the
schedule set forth by Section 285 of the R.A. No. 7160. The City Governments share in the proceeds in the development and
utilization of national wealth shall be diluted since certain portions shall accrue to the Provincial Government (Section 292, R.A.
No.7160).
The registered voters of Santiago City will vote for and can be voted as provincial officials (Section 451 and 452 [c], R.A. No.
7160).
The City Mayor will now be under the administrative supervision of the Provincial Governor who is tasked by law to ensure that
every component city and municipality within the territorial jurisdiction of the province acts within the scope of its prescribed powers
and functions (Section 29 and 465 (b) (2) (i), R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders
submitted by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local governance
and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials will also be effectively under the control
of the Provincial Governor (Section 63, R.A. No. 7160). Such will be the great change in the state of the political autonomy of what is
now Santiago City where by virtue of R.A. No. 7720, it is the Office of the President which has supervisory authority over it as an
independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).
The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod will be subject to the review of the
Sangguniang Panlalawigan (Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in
administrative cases by the former could be appealed and acted upon by the latter (Section 67, R.A. No. 7160).
It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component
city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite
should not be called to determine the will of the people of Santiago City when R.A. No. 8528 downgrades the status of their
city. Indeed, there is more reason to consult the people when a law substantially diminishes their right. Rule II, Article 6, paragraph (f)
(1) of the Implementing Rules and Regulations of the Local Government Code is in accord with the Constitution when it provides
that:
(f) Plebiscite - (1) no creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUS shall take
effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The
plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity
of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.
x x x.
The rules cover all conversions, whether upward or downward in character, so long as they result in a material change in the
local government unit directly affected, especially a change in the political and economic rights of its people.
A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528 on the ground that
Congress has the power to amend the charter of Santiago City. This power of amendment, however, is limited by Section 10, Article
X of the Constitution. Quite clearly, when an amendment of a law involves the creation, merger, division, abolition or substantial
alteration of boundaries of local government units, a plebiscite in the political units directly affected is mandatory. He also contends
that the amendment merely caused a transition in the status of Santiago as a city. Allegedly, it is a transition because no new city was

created nor was a former city dissolved by R.A. No. 8528. As discussed above, the spirit of Section 10, Article X of the Constitution
calls for the people of the local government unit directly affected to vote in a plebiscite whenever there is a material change in their
rights and responsibilities. They may call the downgrading of Santiago to a component city as a mere transition but they cannot blink
away from the fact that the transition will radically change its physical and political configuration as well as the rights and
responsibilities of its people.
On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that " only if the classification involves
changes in income, population, and land area of the local government unit is there a need for such changes to be approved by the
people x x x."
With due respect, such an interpretation runs against the letter and spirit of section 10, Article X of the 1987 Constitution which,
to repeat, states: "No province, city, municipality, or barangay 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 approval by a
majority of the votes cast in a plebiscite in the political units directly affected." It is clear that the Constitution imposes two
conditions - - - first, the creation, division, merger, abolition or substantial alteration of boundary of a local government unit must
meet the criteria fixed by the Local Government Code on income, population and land area and second, the law must be approved by
the people "by a majority of the votes cast in a plebiscite in the political units directly affected."
In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria and they involve
requirements on income, population and land area. These requirements, however, are imposed to help assure the economic
viability of the local government unit concerned. They were not imposed to determine the necessity for a plebiscite of the
people. Indeed, the Local Government Code does not state that there will be no more plebiscite after its requirements on income,
population and land area have been satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation, division,
merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of
the votes casts in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by
the COMELEC within one hundred twenty (120) days from the date of the effectivity of the law or ordinance effecting such action,
unless said law or ordinance fixes another date." 11 Senator Aquilino Pimentel, the principal author of the Local Government Code
of 1991, opines that the plebiscite is absolute and mandatory.12
It cannot be overstressed that the said two requirements of the Constitution have different purposes. The criteria fixed by the
Local Government Code on income, population and land area are designed to achieve an economic purpose.They are to be based on
verified indicators, hence, section 7, Chapter 2 of the Local Government Code requires that these "indicators shall be attested by the
Department of Finance, the National Statistics Office, and the Lands Management Bureau of the Department of Environment and
Natural Resources." In contrast, the people's plebiscite is required to achieve a political purpose --- to use the people's voice as a
check against the pernicious political practice of gerrymandering.There is no better check against this excess committed by the
political representatives of the people themselves than the exercise of direct people power. As well-observed by one commentator, as
the creation, division, merger, abolition, or substantial alteration of boundaries are "xxx basic to local government, it is
also imperative that these acts be done not only by Congress but also be approved by the inhabitants of the locality concerned. xxx By
giving the inhabitants a hand in their approval, the provision will also eliminate the old practice of gerrymandering and minimize
legislative action designed for the benefit of a few politicians. Hence, it promotes the autonomy of local government units."13
The records show that the downgrading of Santiago City was opposed by certain segments of its people. In the debates in
Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago City has been converted to an independent component
city barely two and a half (2 1/2) years ago and the conversion was approved by a majority of 14,000 votes. Some legislators
expressed surprise for the sudden move to downgrade the status of Santiago City as there had been no significant change in its socioeconomic-political status. The only reason given for the downgrading is to enable the people of the city to aspire for the leadership of
the province. To say the least, the alleged reason is unconvincing for it is the essence of an independent component city that its
people can no longer participate or be voted for in the election of officials of the province. The people of Santiago City were aware
that they gave up that privilege when they voted to beindependent from the province of Isabela. There was an attempt on the part of
the Committee on Local Government to submit the downgrading of Santiago City to its people via a plebiscite. The amendment to this
effect was about to be voted upon when a recess was called. After the recess, the chairman of the Committee anounced the withdrawal
of the amendment "after a very enlightening conversation with the elders of the Body." We quote the debates, viz:14
"BILL ON SECOND READING
H.B. No. 8729 - City of Santiago
"Senator Tatad. Mr. President, I move that we consider House Bill No. 8729 as reported out under Committee Report No. 971.
"The President. Is there any objection? [Silence] there being none, the motion is approved.
"Consideration of House Bill No. 8729 is now in order. With the permission of the Body, the Secretary will read only the title of
the bill without prejudice to inserting in the Record the whole text thereof.
"The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled

AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN ACT CONVERTING THE
MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO
**
The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of the city of Santiago. There is all the
reason to listen to the voice of the people of the city via a plebiscite.
In the case of Tan, et al. vs. COMELEC,15 BP 885 was enacted partitioning the province of Negros Occidental without
consulting its people in a plebiscite. In his concurring opinion striking down the law as unconstitutional, Chief Justice Teehankee
cited the illicit political purpose behind its enactment, viz:
"The scenario, as petitioners urgently asserted, was to have the creation of the new Province a fait accompli by the time elections
are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have
been installed in office, ready to function for purposes of the election for President and Vice-President. Thus, the petitioners reported
after the event: With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in
existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were
held on February 7, 1986, the political machinery was in place to deliver the solid North to ex-President Marcos.The rest is
history. What happened in Negros del Norte during the elections - the unashamed use of naked power and resources - contributed in
no small way to arousing peoples power and steel the ordinary citizen to perform deeds of courage and patriotism that makes one
proud to be a Filipino today.
"The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the
plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the
voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota
and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia,
Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of
Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially
altered without the approval of a majority of the votes in a plebiscite in the unit or units affected. It is plain that all the cities and
municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It
follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the
plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the
plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the
secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of
majority rule.
Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent component cities were
downgraded into component cities without need of a plebiscite. They cite the City of Oroquieta, Misamis Occidental, 16 and the
City of San Carlos, Pangasinan17 whose charters were amended to allow their people to vote and be voted upon in the election of
officials of the province to which their city belongs without submitting the amendment to a plebiscite. With due respect, the cities of
Oroquieta and San Carlos are not similarly situated as the city of Santiago. The said two cities then were not independent
component cities unlike the city of Santiago. The two cities were chartered but were not independent component cities for both
were not highly urbanized cities which alone were considered independent cities at that time. Thus, when the case of San Carlos
City was under consideration by the Senate, Senator Pimentel explained:18
"x x x Senator Pimentel. The bill under consideration, Mr. President, merely empowers the voters of San Carlos to vote in the
elections of provincial officials. There is no intention whatsoever to downgrade the status of the City of San Carlos and there is
no showing whatsoever that the enactment of this bill will, in any way, diminish the powers and prerogatives already enjoyed by the
City of San Carlos. In fact, the City of San Carlos as of now, is a component city. It is not a highly urbanized city. Therefore, this
bill merely, as we said earlier, grants the voters of the city, the power to vote in provincial elections, without in any way changing the
character of its being a component city. It is for this reason that I vote in favor of this bill.
It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the city of Oroquieta to vote in provincial elections
of the province of Misamis Occidental. In his sponsorship speech, he explained that the right to vote being given to the people of
Oroquieta City was consistent with its status as a component city.20 Indeed, during the debates, former Senator Neptali Gonzales
pointed out the need to remedy the anomalous situation then obtaining xxx where voters of one component city can vote in the
provincial election while the voters of another component city cannot vote simply because their charters so provide. 21 Thus, Congress
amended other charters of component cities prohibiting their people from voting in provincial elections.
IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the writ of prohibition is
hereby issued commanding the respondents to desist from implementing said law.
SO ORDERED.

G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII;
HIMLAYANG PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

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, L6765, 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.
DAVIDE, JR., J.:
Petitioners caption their petition as one for Certiorari, Injunction With Preliminary 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 Panlungsod 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 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 to the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which took effect on
January 1, 1993 entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE
PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES
AND FOR OTHER PURPOSES THEREOF, the full text of which reads as follows:
Section 1. Title of the Ordinance. - This Ordinance is entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF.

Section 2. Purpose, Scope and Coverage. - To effectively free our City Sea Waters from Cyanide and other Obnoxious substance, and
shall cover all persons and/or entities operating within and outside the City of Puerto Princesa who is are [sic] directly or indirectly in
the business or shipment of live fish and lobster outside the City.
Section 3. Definition of terms. - For purpose of this Ordinance the following are hereby defined:
A. SEA BASS - A kind of fish under the family of Centropomidae, better known as APAHAP;
B. CATFISH - A kind of fish under the family of Plotosidae, better known as HITO-HITO;
C. MUDFISH - A kind of fish under the family of Orphicaphalisae better known as DALAG
D. ALL LIVE FISH - All alive, breathing not necessarily moving of all specie[s] use for food and for aquarium purposes.
E. LIVE LOBSTER - Several relatively, large marine crustaceans of the genus Homarus that are alive and breathing not necessarily
moving.
Section 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.
Section 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.
Section 6. If the owner and/or operator of the establishment found vilating 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].
Section 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this ordinance is deemed repealed.
Section 8. This Ordinance shall take effect on January 1, 1993.
SO ORDAINED.
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. PD426-14-74, 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 MAYORS 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 Mayors 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
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, TRADACNA 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:
Section 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 (Topical Aquarium Fishes) for a period of five (5) years in and
coming from Palawan Waters.
Section 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 liberaly 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.
Section 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;
Section 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;
Section 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.
Section VI. REPEALING CLAUSE. - Any existing Ordinance or a provision of any ordinance inconsistent herewith is deemed
modified, amended or repealed.
Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10) days after its publication.
SO ORDAINED.
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 Princesa City, a xerox copy of the complaint is hereto attached as Annex E;

Without seeking redress from the concerned local government units, prosecutors 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 Mayors permit could be granted or denied; in
other words, the Mayor had the absolute authority to determine whether or not to issue 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 petitionersmembers 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 Governments 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 responsibilty 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 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 Lemihan 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 latters 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, on 22 July 1997, and assigned it to
the ponente for the writing of 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 they being fishermen or marine merchants, they would be adversely affected by the ordinances.
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 the 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 the 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 of 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 or 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 ofcertiorari, 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 Courts 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 Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and
to prevent further over-crowding of the Courts 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 scrunity 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. x x x
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

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 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.
There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In their petition, petitioner
Airline Shippers Association of Palawan is described as a private association composed of Marine Merchants; petitioners Robert Lim
and Virginia Lim, as merchants; while the rest of the petitioners claim to be fishermen, without any qualification, however, as to their
status.
Since the Constitution does not specifically provide a definition of the terms subsistence or marginal fishermen, [18] they should be
construed in their general and ordinary sense. A marginal fisherman is an individual engaged in fishing whose margin of return or
reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the
fish,[19] while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood.[20] Section 131(p) of
the LGC (R.A. No. 7160) defines a marginal farmer or fisherman as an individual engaged in subsistence farming or fishing which
shall be limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family. It
bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions.
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
State to protect the nations marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish
farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. Our survey of the statute books
reveals that the only provision of law which speaks of the preferential right of marginal fishermen is Section 149 of the LGC of 1991
which pertinently provides:
SEC. 149. Fishery Rentals, Fees and Charges. -- x x x
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within a definite zone of the
municipal waters, as determined by it: Provided, however, That duly registered organizations and cooperatives of marginal fishermen
shall have preferential right to such fishery privileges ....
In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary of the Department of Agriculture and the Secretary of the
Department of Interior and Local Government prescribed the guidelines on the preferential treatment of small fisherfolk relative to the
fishery right mentioned in Section 149. This case, however, does not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but of their protection,
development, and conservation. As hereafter shown, the ordinances in question are meant precisely to protect and conserve our marine
resources to the end that their enjoyment by the people 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 fisherman, 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
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]
(underscoring supplied for emphasis).
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 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. (underscoring 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 to 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 decentralization[26] as expressly mandated by the Constitution.[27] Indispensable thereto
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 enactment of ordinances to effectively carry out such
fishery laws within the municipal waters.
The term municipal waters, in turn, include 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 iponduring
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 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 July 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 corals of 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 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 the coral reefs results in serious, if not irreparable, ecological imbalance, for coral reefs are among the natures lifesupport 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 tropical species of 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. Then they are 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 Mayors Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on the part of the Sangguniang
Panlungsod 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 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 (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 Section 16 and 29 of P.D. No. 704[45] insofar that 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
other methods of fishing; and to prosecute any violation of the provisions of applicable fishing 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.

G.R. No. L-29910

April 25, 1969

ANTONIO C. FAVIS, plaintiff-appellant,

vs.
THE CITY OF BAGUIO and THE SHELL COMPANY OF THE PHILIPPINES, LIMITED, defendants-appellees.
Juan L. Fontanilla for plaintiff-appellant.
Lichauco, Picaso and Agcaoili and Roman Mabanta, Jr. for defendant-appellee Shell Company.
The City Attorney for defendant-appellee City of Baguio.
SANCHEZ, J.:
Key targets in plaintiff's complaint for the restoration of the original measurement 8 meters wide of the dead end of Lapu-Lapu
Street are: (1) Resolution No. 132, Series of 1961, authorizing the lease by the City of Baguio (hereinafter referred to as the City) to
Shell Company of the Philippines, Limited (Shell, for short) of Lot 25 of the Baguio Market Subdivision and a portion of Lapu-Lapu
Street abutting said lot; and (2) Resolution No. 215, Series of 1961, amending the first mentioned resolution by authorizing the
vacation of the leased portion of Lapu-Lapu Street and the conversion of the remainder by the side thereof into an alley of 5 meters
wide (4 meters in actual use). Plaintiff wants these resolutions stricken down as invalid. The court below ruled in the negative. This
appeal is the offshoot.
The facts are as follows:
On April 30, 1957, Antonio Favis bought a parcel of land of about 1,000 square meters Lot 2-E-3-B-3-B-2 of the subdivision plan
(LRC) Psd-2179 from the Assumption Convent, Inc. Said lot is bounded on the southwest by Lot 2-E-3-B-3-B-1 (proposed road),
owned by Assumption Convent, Inc. and part of subdivision plan Psd-2179.
Simultaneous with the sale, Assumption donated to the City "for road purposes" the lot indicated in its subdivision plan as the
proposed road Lot 2-E-3-B-3-B-1 aforesaid. This donated road is used by Favis as his means of egress and ingress from his
residence to a public street called Lapu-Lapu Street.
Lapu-Lapu Street is actually Lot 27 in the amendatory plan (Bcs-56-Amd 2, Residence Section "B") And is a portion of a big tract of
land registered in the name of the City, known as Baguio Market Subdivision, for all of which the City holds Transfer Certificate of
Title No. 2209. branches out to various parts of the market subdivision. From its intersecting point with Dagohoy Street and going
northward, Lapu-Lapu Street is eight (8) meters wide; 1it abruptly ends as it meets portions of two lots the donated road
aforementioned and the lot owned by Olmina Fernandez (Lot 2-E-3-B-1-A, Bsd-26963). Fernandez' lot is fenced, with buildings; and
there is a sharp depression of at least 2 meters at the precise point it meets Lapu-Lapu Street. Ocular inspection conducted by the trial
court disclosed that at the exact connecting point of Lapu-Lapu Street and the donated road (which leads to appellant's land), the road
opening is only 2.5 meters wide.
Lot 25 of the Baguio Market Subdivision is northernmost in said subdivision and contains an area of approximately 400 square
meters. Immediately next to it, to the north, is the lot of Olmina Fernandez aforesaid. As far back as June, 1947, the City, by virtue of
Resolution No. 115, Series of 1947, of the City Council of Baguio leased this Lot 25 to Shell for a ten-year period renewable for
another ten years. Shell constructed thereon a service station of about 335 square meters.
On May 10, 1961, the City Council of Baguio passed Resolution No. 132 authorizing the City thru its Mayor to lease to Shell two
parcels of land described as follows:
A parcel of land, known as Lot No. 25 of the Market Subdivision and shown as "Lot A" on Sketch Plan ... marked "Exhibit A" and
made a part hereof, situated in the City of Baguio, containing an area of 335 sq. m....
and
Also a parcel of land containing an area of 100 sq. m. more or less, marked as "Lot B" on Sketch Plan...
Lot 25 (Lot A), it is to be noted, is the same lot leased to Shell way back in June, 1947 and the lease of Lot B is merely an addition
thereto. This additional area taken from Lapu-Lapu Street is five (5) meters wide and twenty (20) meters long and abuts Lot 25.
About three weeks later, the City, thru its Mayor entered into a formal contract of lease with Shell. 2

Shell filed an application with the Office of the City Engineer of Baguio for a building permit for the construction of a new and bigger
gasoline station on the leased premises. Said office, in a letter to the City Council thru the City Mayor dated June 30, 1961, noted that
the leased "[1] to 'B' which consists of 100 square meters is exactly within the road right-of-way of Lapu-Lapu Street," is for public
use, and may not be leased.
On July 5, 1961, appellant Antonio C. Favis lodged a letter-protest against the additional lease made in favor of Shell. He claimed that
it would diminish the width of Lapu-Lapu Street to five meters only; that it would destroy the symmetry of the said street thus making
it look very ugly; and that the City was bereft of authority to lease any portion of its public streets in favor of anyone.
Apparently to obviate any and all objections to the lease of the additional area to Shell, the City Council of Baguio, on July 19, 1961,
passed Resolution No. 215, amending Resolution No. 132, Series of 1961, by converting that "portion of Lapu-Lapu Street lying
southeast from Lot B of the sketch plan prepared March 10, 1961 by Private Land Surveyor Perfecto B. Espiritu, beginning at this
portion's intersection with Dagohoy Street, into an alley 5.00 meters wide (4 m. now in actual use); declaring for this purpose, that
said Lot B shall not be a part of this alley."
On November 29, 1961, Favis commenced suit for the annulment of the lease contract with damages in the Court of First Instance of
Baguio. 3 He prayed that (1) defendants be ordered to stop, remove and/or demolish whatever constructions had been introduced at the
additional leased area on Lapu-Lapu Street; (2) the building permit and contract of lease entered into by and between the defendants
be cancelled and revoked for being null and void; and (3) defendants be directed to pay, jointly and severally, actual, compensatory,
corrective and consequential damages totalling P50,000, attorneys' fees in the sum of P2,000, and the costs.
After hearing, the lower court, on May 21, 1962, rendered judgment uphelding the two questioned resolutions and dismissing the
complaint, with costs.
We first address ourselves to the preliminary questions raised in the appeal.lawphi1.nt
1. Amongst these is appellant's charge that the resolutions directing the partial closing of Lapu-Lapu Street and the lease thereof are
invalid. Because, so appellant avers, those resolutions contravene the City Charter. He relies on subsection (L) of Section 2553 of the
Revised Administrative Code. It provides that the powers granted to the City including the power to close streets shall be carried
"into effect by ordinance."
This objection is directed at form, not at substance. It has been held that "even where the statute or municipal charter requires the
municipality to act by ordinance, if a resolution is passed in the manner and with the statutory formality required in the enactment of
an ordinance, it will be binding and effective as an ordinance." 4 Such resolution may operate regardless of the name by which it is
called. 5
Resolutions No. 132 and 215, Series of 1961, were unanimously approved with all the councilors present and voting, carried the seal
of the city council, were signed by the City Vice-Mayor, the Presiding Officer, approved by the City Mayor, and attested by the City
Secretary. With the presumption of validity of the resolution and the other presumption that official duty has been regularly performed,
the embattled resolutions are just as good as ordinances and have the same force.
2. Appellant cites lack of advertisement or direct notice to owners of contiguous properties whose rights might be affected, as another
ground to show invalidity of the resolutions. The pertinent provision of the charter reads, thus: .
... to carry into effect by ordinance the powers hereinbefore granted in this subsection, but no ordinance shall provide for more than
one project of any of the kinds named herein, nor create more than one district, assessment, and fund necessary and appropriate
therefor, and in each and every such ordinance provision shall be made for notice to any and all persons interested, giving them and
each of them not less than two weeks from and after the date of depositing a notice in the post-office at Baguio in a securely sealed
postpaid wrapper addressed to each person affected thereby and assessed thereunder at his last known place of residence, or at Baguio
if no place of residence is known, or to an agent who may be or may have been appointed by such person in writing, in which to
appear and file objection to either the work itself, the method or manner of assessment, the time or times and method
of payment therefor, or to all thereof and such other and further objection or objections as may seem to any such person or persons
reasonable and proper in the premises: such notice shall set forth the nature of the proposed improvement, the estimated cost therefor,
the total amount of the assessment to be levied therefor, and the amount to be levied upon each parcel of the property or possession of
the addressee; any and every such appearance and objection shall be made and heard only before the city council, and council may, at
any such hearing alter, modify, or increase the area of such district, the total assessment thereof, or any individual area or assessment
objected to therein, and shall decide any and every such objection within ten days after the filing thereof and give notice of such

decision to the person or persons interested in the manner hereinbefore provided for notice of such assessment within five days
thereafter....6
The requirement of notice specified in the aforequoted provision of the city charter is not applicable to the case at bar. It will be
observed that the notice is to be given "to any, and all persons interested", to be placed in a securely sealed postpaid wrapper addressed
"to each person affected thereby and assessed thereunder." The accent is on the word and. The person "affected" must also be
"assessed". And then, "such notice shall set forth the nature of the proposed improvement, the estimated cost therefor, the total amount
of the assessment to be levied therefor, and the amount to be levied upon each parcel of the property or possession of the addressee."
In turn, the council, after hearing objections, may "alter, modify, or increase the area of [the] district, the total assessment thereof, or
any individual area or assessment objected to therein."
Clearly then, this method of giving notice applies only when an ordinance calls for an assessment. So that where no assessment has
been made or is to be made, such notice need not be given.
In the case at bar, the resolutions in question do not at all call for any kind of assessment against appellant or his land. Hence, the
notice that appellant would want to have, need not be given.
Besides, appellant did actually protest Resolution 132 authorizing the lease to Shell. Such protest was, however, overruled. And the
council passed Resolution 215, in effect, confirming the lease. The purpose of notice on the assumption that appellant is entitled
thereto is subserved. Appellant has no cause for complaint.
3. We now direct attention to appellant's plaint that the questioned resolutions narrowed down, much to his prejudice, the width of
Lapu-Lapu Street at its connecting point with the donated road which, in turn, leads to his land. The reduction of the usable width
from 8 meters to 4 meters cannot be done, so he argues, because said resolutions violate Executive Order No. 113, Series of 1955,
issued by President Ramon Magsaysay, particularly the following:
IV. MUNICIPAL ROADS:
All highways not included in the above classifications, Municipal and city roads shall have a right-of-way of not less than ten (10)
meters; provided that the principal streets of town sites located on public lands shall have a width of sixty (60) meters and all other
streets a width of not less than fifteen (15) meters.7
We do not go along with appellant. First, because the 2.5 meter opening connecting the donated road and Lapu-Lapu Street has always
been that wide since the donated road was opened. The fact that this opening is 2.5 meters, is confirmed by the ocular inspection
personally made by the trial judge himself. The occupancy by Shell of a portion of the road right-of-way did not in any way put
appellant to any more inconvenience than he already had. His outlet to Lapu-Lapu Street of 2.5 meters still remains the same.
In the second place, the resolutions in question do not have the effect of decreasing the width of the opening because said opening is
far from the leased portion of Lapu-Lapu Street. The said leased portion is on the left side of Lapu-Lapu Street, whereas the opening
lies on the right uppermost part of Lapu-Lapu Street. That leased strip does not reach said opening. In fact, while the lease contract
authorized Shell to take 5 meters wide of Lapu-Lapu Street, Shell occupied only 4 meters wide. 8
Thirdly, the executive order could not have been violated because even before its promulgation, Lapu-Lapu Street was only 8 meters
wide, and the said executive order did not demand widening to 10 meters of existing streets. For it to have so ordered would have
entailed huge expenditure not only on the part of Baguio City but many other municipal corporations as well which have streets less
than 10 meters wide. For, compensation for the expropriation of private property would have to be given.
4. The main thrust of appellant's arguments is that the city council does not have the power to close city streets like Lapu-Lapu Street.
He asserts that since municipal bodies have no inherent power to vacate or withdraw a street from public use, there must be a specific
grant by the legislative body to the city or municipality concerned.
Considering that "municipal corporations in the Philippines are mere creatures of Congress; that, as such, said corporations possessed,
and may exercise, only such power as Congress may deem fit to grant thereto", 9 a reference to the organic act of the City of Baguio
appears to be in order. In subsection (L) of Section 2558 of the Review Administrative Code (Baguio Charter), the language of the
grant of authority runs thus

(L) To provide for laying out, opening, extending, widening, straightening, closing up, constructing, or regulating, in whole or in part,
any public plaza, square, street, sidewalk, trail, park, waterworks, or water remains, or any cemetery, sewer, sewer connection or
connections, either on, in, or upon public or private property; .... 10
Undoubtedly, the City is explicitly empowered to close a city street.
We may drive home the point by presenting here the converse of the rule as set forth in Unson vs. Lacson, supra. There, as here, the
municipal board passed an ordinance (No. 3470) withdrawing the northern portion of Callejon del Carmen from public use, declaring
it patrimonia property of the City of Manila and authorizing its lease to Genato Commercial Corporation. Unson had a lot bordering
Callejon del Carmen on which several buildings stood. One of such buildings was known as "Commerce Building". Prior to the
construction of Genato's building on the leased premises, Unson's lot had on its southern boundary two exits on Callejon del Carmen
which had to be closed upon the construction of said building. Unson went to court alleging that the ordinance and the contract of
lease with Genato were illegal. The trial court upheld the city's authority to withdraw such alley for public use and to convert it into
patrimonial property. But, on appeal, we held:
In this connection, respondents have been unable to cite any legal provision specifically vesting in the City of Manila the power to
close Callejon del Carmen. Indeed, section 18(x) of Republic Act No. 409 upon which appellees rely authorizes the Municipal
Board of Manila "subject to the provisions of existing laws, to provide for the laying out, construction and improvement ... of streets,
avenues, alleys ... and other public places," but it says nothing about the closing of any such places. The significance of this silence
becomes apparent when contrasted with section 2246 of the Revised Administrative Code, explicitly vesting in municipal councils of
regularly organized municipalities the power to close any municipal road, street, alley, park or square, provided that persons
prejudiced thereby are duly indemnified, and that the previous approval of the Department Head shall have been secured. The
express grant of such power to the aforementioned municipalities and the absence of said grant to the City of Manila lead to no other
conclusion than that the power was intended to be withheld from the latter.11
5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from
public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street.
The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for
public use. 12
Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the
courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some
private interests may be served incidentally will not invalidate the vacation ordinance. 13
Deemed as material factors which a municipality must consider in deliberating upon the advisability of closing a street are: "the
topography of the property surrounding the street in the light of ingress and egress to other streets; the relationship of the street in the
road system throughout the subdivision; the problem posed by the 'dead end' of the street; the width of the street; the cost of rebuilding
and maintaining the street as contrasted to its ultimate value to all of the property in the vicinity; the inconvenience of those visiting
the subdivision; and whether the closing of the street would cut off any property owners from access to a street." 14
We now take a look at the factors Considered by the City Council of Baguio in vacating a portion of Lapu-Lapu Street. These appear
in the resolution (Resolution 215) itself, thus:
WHEREAS, that portion of the road right-of-way of Lapu-Lapu Street, Baguio, beginning with its intersection, with Dagohoy Street
does not have much traffic, being in fact a dead end street;
AND WHEREAS, the conversion of this portion of Lapu-Lapu Street into a five-meter alley would neither prejudice nor damage any
person or property;
AND WHEREAS, in the subdivision scheme of the burned area of the City Market Subdivision, already approved by the City
Council, provision was made for another road behind Lapu-Lapu Street interesting Dagohoy Street.
Besides, there are the specific findings by the trial court that the "2.5 opening is sufficient for Plaintiff to enter and exit from the lot he
purchased from Assumption Convent, Inc."; that the "present road right of way was rendered narrow by surrounding properties and
is sufficient for the needs of the Plaintiff"; and that the "portion leased to Shell Company was not necessary for public use." We are
bound by these findings of fact.

By the embattled resolutions, no right of the public is overwhelmed, none defeated. Public interest was not at all disregarded. On the
contrary, some benefit did flow from the withdrawal of a portion of the street and the lease thereof. The City saves from the cost of
maintenance, gets some income yet.
Given the precept that the discretion of a municipal corporation is broad in scope and should thus be accorded great deference in the
spirit of the Local Autonomy Law (R.A. 2264), and absent a clear abuse of discretion, we hold that the withdrawal for lease of the
disputed portion of Lapu-Lapu Street and the conversion of the remainder of the dead-end part thereof into an alley, does not call for,
and is beyond the reach of, judicial interference.
6. From the fact that the leased strip of 100 square meters was withdrawn from public use, it necessarily follows that such leased
portion becomes patrimonial property. Article 422 of the Civil Code indeed provides that property of public domain, "when no longer
intended for public use or public service, shall form part of the patrimonial property of the State." Authority is not wanting for the
proposition that property for public use of provinces and towns are governed by the same principles as property of public dominion of
the same character." 15 There is no doubt that the strip withdrawn from public use and held in private ownership may be given in lease.
For amongst the charter powers given the City of Baguio (Section 2541, Revised Administrative Code [Charter of the City of
Baguio] ) is to "lease ... real ... property, for the benefit of the city...."
7. We now look into appellant's averment that by reducing the original width of Lapu-Lapu Street, his entrance and exit to and from
his property has become very difficult; that it is now impossible for his big trucks and trailers to turn around; that it made the area
around it very dangerous in case of fire; and that it has caused perpetual danger, annoyance, irreparable loss and damage not only to
the public in general but especially to heroin plaintiff in particular. For all these, he asks for damages.
First to the governing principle: "The general rule is that one whose property does not abut on the closed section of a street has no
right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The
circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on
the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has
sustained special damages differing in from those sustained by kind, and not merely in degree, the public generally." 16
In the case at bar, no private right of appellant has been invaded. No special damage or damages he will incur by reason of the closing
of a portion of Lapu-Lapu Street at its dead-end. His property does not abut that street. In fact, the court has found that the remaining
portion of Lapu-Lapu Street, which actually is 4 meters in width, is sufficient for the needs of appellant and that the leased portion
subject of this suit "was not necessary for public use." Furthermore, it is physically impossible to connect Lapu-Lapu Street in its
entire width 8 meters with the area donated to the City or Assumption Convent, for the reason that the only outlet between them
is 2.5 meters wide. Even appellant's allegation that by reducing the width of Lapu-Lapu Street it is now impossible for his big trucks to
turn around is of dubious veracity on the face of his testimony that turning around at the original Lapu-Lapu Street or at the junction of
Lapu-Lapu Street and the donated road has not been tried before and that his trucks actually do their maneuvering at the intersection of
Dagohoy Street and Lapu-Lapu Street. 17 Further, as stated in the resolution, provision has been "made for another road behind LapuLapu Street and intersecting Dagohoy Street." It has been said that
The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door.
The law will not permit him to be cut off from the public thoroughfares, but he must content himself route for outlet as the regularly
constituted public with such authority may deem most compatible with the public welfare. When he acquires city property, he does so
in tacit recognition of these principles. If, subsequent to his appreciation, the city authorities abandon a portion of the street to which
his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be
required to recompense him. Such case is damnum absque injuria.18
For the reasons given, the appealed judgment of the Court of First Instance of Baguio declaring valid Resolution No. 132, Series of
1961, and Resolution No. 215, Series of 1961, both of the City Council of Baguio, and ordering the dismissal of the complaint as well
as the counterclaim, is hereby affirmed.
Costs against plaintiff-appellant.

G.R. No. 97764 August 10, 1992

LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, petitioner,

vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila,
MUNICIPALITY OF PARAAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE,respondents.
Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.
Manuel de Guia for Municipality of Paraaque.

MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court
of Makati, Branch 62, which granted the writ of preliminary injunction applied for by respondents Municipality of Paraaque and
Palanyag Kilusang Bayan for Service (Palanyag for brevity) against petitioner herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel,
G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of
a flea market thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979,
authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites
for flea market and/or vending areas, under certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent
municipality subject to the following conditions:
1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose the establishment
of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides
of the road shall be used by pedestrians;
3. That the time during which the vending area is to be used shall be clearly designated;
4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the
Public Estate Authority.
On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter
into contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or
vending areas.
On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the
latter shall operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury
of the municipal government of Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the
destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent
Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to
discontinue the flea market; otherwise, the market stalls shall be dismantled.
Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition
and mandamus with damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the
issuance of the writ of preliminary injunction.

On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October
16, 1990 pending the hearing on the motion for writ of preliminary injunction.
On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of
Paraaque and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to
lack or excess of jurisdiction on the part of the trial judge in issuing the assailed order.
The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Paraaque
authorizing the lease and use of public streets or thoroughfares as sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public
properties; that as such, they cannot be subject to private appropriation or private contract by any person, even by the respondent
Municipality of Paraaque. Petitioner submits that a property already dedicated to public use cannot be used for another public
purpose and that absent a clear showing that the Municipality of Paraaque has been granted by the legislature specific authority to
convert a property already in public use to another public use, respondent municipality is, therefore, bereft of any authority to close
municipal roads for the establishment of a flea market. Petitioner also submits that assuming that the respondent municipality is
authorized to close streets, it failed to comply with the conditions set forth by the Metropolitan Manila Authority for the approval of
the ordinance providing for the establishment of flea markets on public streets. Lastly, petitioner contends that by allowing the
municipal streets to be used by market vendors the municipal council of respondent municipality violated its duty under the Local
Government Code to promote the general welfare of the residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court ruled:
. . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government units, the
Municipality of Paraaque as such, is empowered under that law to close its roads, streets or alley subject to limitations stated therein
(i.e., that it is in accordance with existing laws and the provisions of this code).
xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an encroachment of power
legally vested to the municipality, precisely because when the municipality enacted the ordinance in question the authority of the
respondent as Police Superintendent ceases to be operative on the ground that the streets covered by the ordinance ceases to be a
public thoroughfare. (pp. 33-34, Rollo)
We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on
the public streets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas
Pambansa Blg. 337, otherwise known as Local Government Code, in connection with established principles embodied in the Civil
Code an property and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil
Code). As to what consists of property for public use, Article 424 of Civil Code states:
Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares,
fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of
special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public
service and are therefore considered public properties of respondent municipality. Properties of the local government which are
devoted to public service are deemed public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City
of Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to control or
regulate the use of public properties unless specific authority is vested upon them by Congress. One such example of this authority
given by Congress to the local governments is the power to close roads as provided in Section 10, Chapter II of the Local Government
Code, which states:

Sec. 10. Closure of roads. A local government unit may likewise, through its head acting pursuant to a resolution of its sangguniang
and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street,
alley, park or square. No such way or place or any part of thereof shall be close without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed. (Emphasis ours).
However, the aforestated legal provision which gives authority to local government units to close roads and other similar public places
should be read and interpreted in accordance with basic principles already established by law. These basic principles have the effect of
limiting such authority of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays
down the basic principle that properties of public dominion devoted to public use and made available to the public in general are
outside the commerce of man and cannot be disposed of or leased by the local government unit to private persons. Aside from the
requirement of due process which should be complied with before closing a road, street or park, the closure should be for the sole
purpose of withdrawing the road or other public property from public use when circumstances show that such property is no longer
intended or necessary for public use or public service. When it is already withdrawn from public use, the property then becomes
patrimonial property of the local government unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R.
No. L-40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality can "use or convey them for any
purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed" in accordance with
the last sentence of Section 10, Chapter II of Blg. 337, known as Local Government Code. In one case, the City Council of Cebu,
through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not being
included in the City Development Plan. Thereafter, the City Council passes another resolution authorizing the sale of the said
abandoned road through public bidding. We held therein that the City of Cebu is empowered to close a city street and to vacate or
withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be the object of an ordinary
contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily
used for vehicular traffic are still considered public property devoted to public use. In such case, the local government has no power to
use it for another purpose or to dispose of or lease it to private persons. This limitation on the authority of the local government over
public properties has been discussed and settled by this Court en banc in "Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio,
Jr., et al., respondents, G.R. No. 93654, May 6, 1992." This Court ruled:
There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets,
as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside the commerce of man
(Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease or others contract (Villanueva, et
al. v. Castaeda and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council
of Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860).
As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary
to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of
the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good
of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are
under legal obligation to protect.
The Executive Order issued by acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who
were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor
Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to
serve: i.e., as arteries of travel for vehicles and pedestrians.
Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be
validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by
respondent municipality of the conditions imposed by the former for the approval of the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not oppose the
establishment of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides
of the road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall be clearly designated;
4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the
Public Estate Authority. (p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval
of the ordinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the
majority of the residents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will
show that this first condition has been met. Likewise, the designation by respondents of a time schedule during which the flea market
shall operate is absent.
Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. We take note of
the other observations of the Solicitor General when he said:
. . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using the roads for a more
direct access to the fire area, have to maneuver and look for other streets which are not occupied by stalls and vendors thereby losing
valuable time which could, otherwise, have been spent in saving properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their patients to the
hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine the tragedy of losing a life just
because of a few seconds delay brought about by the inaccessibility of the streets leading to the hospital.
The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is disrupted and
school children have to get off at a distance still far from their schools and walk, rain or shine.
Indeed one can only imagine the garbage and litter left by vendors on the streets at the end of the day. Needless to say, these cause
further pollution, sickness and deterioration of health of the residents therein. (pp. 21-22, Rollo)
Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to
focus its attention solely on the argument that the use of public spaces for the establishment of a flea market is well within the powers
granted by law to a local government which should not be interfered with by the courts.
Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the
laws such as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and
well-being of the members of the community. Every local government unit has the sworn obligation to enact measures that will
enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of
the local units. Based on this objective, the local government should refrain from acting towards that which might prejudice or
adversely affect the general welfare.
As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed
stalls in public roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to
clear the city streets and restore them to their specific public purpose.
The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local
Government Lode, has already been repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect
on January 1, 1992. Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new
Code and arising out of contracts or any other source of prestation involving a local government unit shall be governed by the original
terms and conditions of the said contracts or the law in force at the time such rights were vested.
ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which
granted the writ of preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing
the demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED
and SET ASIDE.

SO ORDERED.

G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT, ROSALIA
FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE
CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO
GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES
SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL,petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO MENDOZA as the
Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.

FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal corporation, Bocaue, Bulacan, represented by
respondents, 1 can, prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such
clubs employing hostesses. It is contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid
of power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that their rights to due process and
equal protection of the laws were violated as the licenses previously given to them was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall be known and may be cited as
the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2. Definitions of Terms (a) 'Night Club' shall include any
place or establishment selling to the public food or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall
include any place or establishment where dancing is permitted to the public and where professional hostesses or hospitality girls and
professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls' shall include any woman employed by any of the
establishments herein defined to entertain guests and customers at their table or to dance with them. (d) 'Professional dancer' shall
include any woman who dances at any of the establishments herein defined for a fee or remuneration paid directly or indirectly by the
operator or by the persons she dances with. (e) 'Operator' shall include the owner, manager, administrator or any person who operates
and is responsible for the operation of any night club, cabaret or dance hall. Section 3. Prohibition in the Issuance and Renewal of
Licenses, Permits. Being the principal cause in the decadence of morality and because of their other adverse effects on this
community as explained above, no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to
operate within the jurisdiction of the municipality and no license/permit shall be issued to any professional hostess, hospitality girls
and professional dancer for employment in any of the aforementioned establishments. The prohibition in the issuance of
licenses/permits to said persons and operators of said establishments shall include prohibition in the renewal thereof. Section 4.
Revocation of Permits and Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which
are now in operation including permits issued to professional hostesses, hospitality girls and professional dancers are hereby revoked
upon the expiration of the thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these
establishments within the jurisdiction of the municipality shall be illegal. Section 5. Penalty in case of violation. Violation of any
of the provisions of this Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding
P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty provided herein. Section 6. Separability Clause. If, for any
reason, any section or provision of this Ordinance is held unconstitutional or invalid, no other section or provision hereof shall be
affected thereby. Section 7.Repealing Clause. All ordinance, resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby repealed. Section 8. Effectivity. This Ordinance shall take effect
immediately upon its approval; provided, however, that operators of night clubs, cabarets and dance halls now in operation including
professional hostesses, hospitality girls and professional dancers are given a period of thirty days from the approval hereof within
which to wind up their businesses and comply with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of First Instance of
Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the law, as the license previously
given to petitioners was in effect withdrawn without judicial hearing. 3. That under Presidential Decree No. 189, as amended, by
Presidential Decree No. 259, the power to license and regulate tourist-oriented businesses including night clubs, has been transferred
to the Department of Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice Paras of the Intermediate
Appellate Court, who issued a restraining order on November 7, 1975. The answers were thereafter filed. It was therein alleged: " 1.
That the Municipal Council is authorized by law not only to regulate but to prohibit the establishment, maintenance and operation of
night clubs invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not
violative of petitioners' right to due process and the equal protection of the law, since property rights are subordinate to public
interests. 3. That Presidential Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to regulate or
prohibit night clubs." 7There was the admission of the following facts as having been established: "l. That petitioners Vicente de la
Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres
III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since
1972; 2. That petitioners had invested large sums of money in their businesses; 3. That the night clubs are well-lighted and have no
partitions, the tables being near each other; 4. That the petitioners owners/operators of these clubs do not allow the hospitality girls
therein to engage in immoral acts and to go out with customers; 5. That these hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any venereal disease and that those who fail to submit to a medical check-up or those
who are found to be infected with venereal disease are not allowed to work; 6. That the crime rate there is better than in other parts of
Bocaue or in other towns of Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality and validity of
Ordinance No. 84 and dismissing the cases. Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set forth in the opening paragraph
thus: "Those who lust cannot last. This in essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been
by innuendos of sexual titillation and fearful of what the awesome future holds for it, had no alternative except to order thru its
legislative machinery, and even at the risk of partial economic dislocation, the closure of its night clubs and/or cabarets. This in
essence is also why this Court, obedient to the mandates of good government, and cognizant of the categorical imperatives of the
current legal and social revolution, hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No.
84, Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in these two cases are
therefore hereby rifted, effective the first day of February, 1976, the purpose of the grace period being to enable the petitioners herein
to apply to the proper appellate tribunals for any contemplated redress." 9 This Court is, however, unable to agree with such a
conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to justify the enactment of the
assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General power of council to enact ordinances and
make regulations. - The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and
proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience
of the municipality and the inhabitants thereof, and for the protection of property therein." 10 It is practically a reproduction of the
former Section 39 of Municipal Code. 11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for the Court
in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the fundamental law of the Philippine Islands, or an
Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in
derogation of common right. Where the power to legislate upon a given subject, and the mode of its exercise and the details of such
legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of the power, or it will be
pronounced invalid." 13 In another leading case, United States v. Salaveria, 14 the ponente this time being Justice Malcolm, where the
present Administrative Code provision was applied, it was stated by this Court: "The general welfare clause has two branches: One
branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to
carry into effect and discharge the powers and duties conferred upon the municipal council by law. With this class we are not here
directly concerned. The second branch of the clause is much more independent of the specific functions of the council which are
enumerated by law. It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for
the protection of property therein.' It is a general rule that ordinances passed by virtue of the implied power found in the general

welfare clause must be reasonable, consonant with the general powersand purposes of the corporation, and not inconsistent with the
laws or policy of the State." 15 If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would
pass the test of validity. In the two leading cases above set forth, this Court had stressed reasonableness, consonant with the general
powers and purposes of municipal corporations, as well as consistency with the laws or policy of the State. It cannot be said that such
a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a field. Certainly the ordinance on
its face is characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions rather
than by an absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative
action when there is not a clear invasion of personal or property rights under the guise of police regulation." 16 It is clear that in the
guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those
individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those
therein employed.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally enacted on June 20, 1953. It is
entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO REGULATE THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR
RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city board or
council of each chartered city shall have the power to regulate by ordinance the establishment, maintenance and operation of night
clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of
amusement within its territorial jurisdiction: ... " 19 Then on May 21, 1954, the first section was amended to include not merely "the
power to regulate, but likewise "Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It
is to be admitted that as thus amended, if only the above portion of the Act were considered, a municipal council may go as far as to
prohibit the operation of night clubs. If that were all, then the appealed decision is not devoid of support in law. That is not all,
however. The title was not in any way altered. It was not changed one whit. The exact wording was followed. The power granted
remains that of regulation, notprohibition. There is thus support for the view advanced by petitioners that to construe Republic Act No.
938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution mandates:
"Every bill shall embrace only one subject which shall be expressed in the title thereof. " 21 Since there is no dispute as the title limits
the power to regulating, not prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the
operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power "to provide for the health and
safety, promote the prosperity, improve the morals, 22 in the language of the Administrative Code, such competence extending to all
"the great public needs, 23 to quote from Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the wellsettled principle of constitutional construction that between two possible interpretations by one of which it will be free from
constitutional infirmity and by the other tainted by such grave defect, the former is to be preferred. A construction that would save
rather than one that would affix the seal of doom certainly commends itself. We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-enacted Local Government
Code. 25 The general welfare clause, a reiteration of the Administrative Code provision, is set forth in the first paragraph of Section
149 defining the powers and duties of the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such
regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary
and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the
prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property
therein; ..." 26 There are in addition provisions that may have a bearing on the question now before this Court. Thus the sangguniang
bayan shall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses, except travel
agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall
remain under the licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on
the taxing or regulatory powers of the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or
massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses and other forms of
entertainment; ..." 27It is clear that municipal corporations cannot prohibit the operation of night clubs. They may be regulated, but not
prevented from carrying on their business. It would be, therefore, an exercise in futility if the decision under review were sustained.
All that petitioners would have to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because no
such businesses could legally open, would be subject to judicial correction. That is to comply with the legislative will to allow the
operation and continued existence of night clubs subject to appropriate regulations. In the meanwhile, to compel petitioners to close
their establishments, the necessary result of an affirmance, would amount to no more than a temporary termination of their business.
During such time, their employees would undergo a period of deprivation. Certainly, if such an undesirable outcome can be avoided, it
should be. The law should not be susceptible to the reproach that it displays less than sympathetic concern for the plight of those who,

under a mistaken appreciation of a municipal power, were thus left without employment. Such a deplorable consequence is to be
avoided. If it were not thus, then the element of arbitrariness enters the picture. That is to pay less, very much less, than full deference
to the due process clause with its mandate of fairness and reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand sustaining police power legislation
to promote public morals. The commitment to such an Ideal forbids such a backward step. Legislation of that character is deserving of
the fullest sympathy from the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to measures
that can be characterized as falling within that aspect of the police power. Reference is made by respondents to Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor of Manila. 28 There is a misapprehension as to what was decided by this Court.
That was a regulatory measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not
prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an end to practices which
could encourage vice and immorality. This is an entirely different case. What was involved is a measure not embraced within the
regulatory power but an exercise of an assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate
Hotel and Motel Operators Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear
that there is no need to satisfy such a requirement if a statute were void on its face. That it certainly is if the power to enact such
ordinance is at the most dubious and under the present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976 reversed, set aside, and
nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is declared void and unconstitutional. The temporary
restraining order issued by this Court is hereby made permanent. No costs.

G.R. No. L-38429 June 30, 1988

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch 11, and the CITY OF
BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:
At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the Municipal Board
of the City of Butuan on April 21, 1969, the title and text of which are reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION ENGAGED IN THE
BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES, CONTESTS
OR OTHER PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS OF AGE TO PAY
FULL PAYMENT FOR TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID
TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session assembled, that:
SECTION 1It shall be unlawful for any person, group of persons, entity, or corporation engaged in the business of selling admission
tickets to any movie or other public exhibitions, games, contests, or other performances to require children between seven (7) and
twelve (12) years of age to pay full payment for admission tickets intended for adults but should charge only one-half of the value of
the said tickets.

SECTION 2Any person violating the provisions of this Ordinance shall upon conviction be punished by a fine of not less than
TWO HUNDRED PESOS (P200.00) but not more than SIX HUNDRED PESOS (P600.00) or an imprisonment of not less than TWO
(2) MONTHS or not more than SIX (6) MONTHS or both such firm and imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed upon the Manager, Agent or Representative of such firm or
corporation.
SECTION 3This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and Dalisay Theaters, the Crown Theater,
and the Diamond Theater, respectively. Aggrieved by the effect of Ordinance No. 640, they filed a complaint before the Court of First
Instance of Agusan del Norte and Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the
subject ordinance be declared unconstitutional and, therefore, void and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court a quo enjoining the
respondent City of Butuan and its officials from enforcing Ordinance No. 640. 3 On July 29, 1969, respondents filed their answer
sustaining the validity of the ordinance. 4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the respondent court rendered its decision, 6 the
dispositive part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the respondents and against the petitioners, as
follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: Provided, however, that the fine for a single offense
shall not exceed TWO HUNDRED PESOS, as prescribed in the aforequoted Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in a resolution of the said court
dated November 10, 1973. 9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra vires and an invalid exercise of
police power.
Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to enact as provided for in Section 15(n)
of Republic Act No. 523, the Charter of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board Except as otherwise provided by law, and subject to the conditions and limitations
thereof, the Municipal Board shall have the following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical performances, cinematographs, public
exhibitions and all other performances and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by invoking the general welfare
clause embodied in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others

as may be necessary to carry into effect and discharge the powers and duties conferred by this Act, and to fix the penalties for the
violation of the ordinances, which shall not exceed a two hundred peso fine or six months imprisonment, or both such fine and
imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of license fees for theaters, theatrical
performances, cinematographs, public exhibitions and other places of amusement has been expressly granted to the City of Butuan
under its charter. But the question which needs to be resolved is this: does this power to regulate include the authority to interfere in
the fixing of prices of admission to these places of exhibition and amusement whether under its general grant of power or under the
general welfare clause as invoked by the City?
This is the first time this Court is confronted with the question of direct interference by the local government with the operation of
theaters, cinematographs and the like to the extent of fixing the prices of admission to these places. Previous decisions of this Court
involved the power to impose license fees upon businesses of this nature as a corollary to the power of the local government to
regulate them. Ordinances which required moviehouses or theaters to increase the price of their admission tickets supposedly to cover
the license fees have been held to be invalid for these impositions were considered as not merely license fees but taxes for purposes of
revenue and not regulation which the cities have no power to exact, 10 unless expressly granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was interpreted to include the power to control, to
govern and to restrain, it would seem that under its power to regulate places of exhibitions and amusement, the Municipal Board of the
City of Butuan could make proper police regulations as to the mode in which the business shall be exercised.
While in a New York case, 13 an ordinance which regulates the business of selling admission tickets to public exhibitions or
performances by virtue of the power of cities under the General City Law "to maintain order, enforce the laws, protect property and
preserve and care for the safety, health, comfort and general welfare of the inhabitants of the city and visitors thereto; and for any of
said purposes, to regulate and license occupations" was considered not to be within the scope of any duty or power implied in the
charter. It was held therein that the power of regulation of public exhibitions and places of amusement within the city granted by the
charter does not carry with it any authority to interfere with the price of admission to such places or the resale of tickets or tokens of
admission.
In this jurisdiction, it is already settled that the operation of theaters, cinematographs and other places of public exhibition are subject
to regulation by the municipal council in the exercise of delegated police power by the local government. 14 Thus, in People v.
Chan, 15 an ordinance of the City of Manila prohibiting first run cinematographs from selling tickets beyond their seating capacity was
upheld as constitutional for being a valid exercise of police power. Still in another case, 16 the validity of an ordinance of the City of
Bacolod prohibiting admission of two or more persons in moviehouses and other amusement places with the use of only one ticket
was sustained as a valid regulatory police measure not only in the interest of preventing fraud in so far as municipal taxes are
concerned but also in accordance with public health, public safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to enact the ordinance in question under its power to regulate
embodied in Section 15(n), now invokes the police power as delegated to it under the general welfare clause to justify the enactment
of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest of the public generally requires an interference with
private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. 17 The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business,
or impose unusual and unnecessary restrictions upon lawful occupations. In other words, the determination as to what is a proper
exercise of its police power is not final or conclusive, but is subject to the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for being oppressive, unfair, unjust,
confiscatory, and an undue restraint of trade, and violative of the right of persons to enter into contracts, considering that the theater
owners are bound under a contract with the film owners for just admission prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially police power, Inasmuch as the same generally entails a curtailment of
the liberty, the rights and/or the property of persons, which are protected and even guaranteed by the Constitution, the exercise of
police power is necessarily subject to a qualification, limitation or restriction demanded by the regard, the respect and the obedience
due to the prescriptions of the fundamental law, particularly those forming part of the Constitution of Liberty, otherwise known as the

Bill of Rights the police power measure must be reasonable. In other words, individual rights may be adversely affected by the
exercise of police power to the extent only and only to the extent--that may be fairly required by the legitimate demands of public
interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the ordinance in question was passed shows that a certain
Councilor Calo, the proponent of the measure, had taken into account the complaints of parents that for them to pay the full price of
admission for their children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance does not spell out its raison d'etre in all probability the
respondents were impelled by the awareness that children are entitled to share in the joys of their elders, but that considering that,
apart from size, children between the ages of seven and twelve cannot fully grasp the nuance of movies or other public exhibitions,
games, contests or other performances, the admission prices with respect to them ought to be reduced. 19a
We must bear in mind that there must be public necessity which demands the adoption of proper measures to secure the ends sought to
be attained by the enactment of the ordinance, and the large discretion is necessarily vested in the legislative authority to determine not
only what the interests of the public require, but what measures are necessary for the protection of such interests. 20 The methods or
means used to protect the public health, morals, safety or welfare, must have some relation to the end in view, for under the guise of
the police power, personal rights and those pertaining to private property will not be permitted to be arbitralily invaded by the
legislative department. 21
We agree with petitioners that the ordinance is not justified by any necessity for the public interest. The police power legislation must
be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. 22 The evident
purpose of the ordinance is to help ease the burden of cost on the part of parents who have to shell out the same amount of money for
the admission of their children, as they would for themselves, A reduction in the price of admission would mean corresponding
savings for the parents; however, the petitioners are the ones made to bear the cost of these savings. The ordinance does not only make
the petitioners suffer the loss of earnings but it likewise penalizes them for failure to comply with it. Furthermore, as petitioners point
out, there will be difficulty in its implementation because as already experienced by petitioners since the effectivity of the ordinance,
children over 12 years of age tried to pass off their age as below 12 years in order to avail of the benefit of the ordinance. The
ordinance does not provide a safeguard against this undesirable practice and as such, the respondent City of Butuan now suggests that
birth certificates be exhibited by movie house patrons to prove the age of children. This is, however, not at all practicable. We can see
that the ordinance is clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreover, there is no discernible
relation between the ordinance and the promotion of public health, safety, morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious practice of movie operators and other
public exhibitions promoters or the like of demanding equal price for their admission tickets along with the adults. This practice is
allegedly repugnant and unconscionable to the interest of the City in the furtherance of the prosperity, peace, good order, comfort,
convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and adults. The petitioners are merely conducting their
legitimate businesses. The object of every business entrepreneur is to make a profit out of his venture. There is nothing immoral or
injurious in charging the same price for both children and adults. In fact, no person is under compulsion to purchase a ticket. It is a
totally voluntary act on the part of the purchaser if he buys a ticket to such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen the economic burden of parents
whose minor children are lured by the attractive nuisance being maintained by the petitioners. Respondent further alleges that by
charging the full price, the children are being exploited by movie house operators. We fail to see how the children are exploited if they
pay the full price of admission. They are treated with the same quality of entertainment as the adults. The supposition of the trial court
that because of their age children cannot fully grasp the nuances of such entertainment as adults do fails to convince Us that the
reduction in admission ticket price is justifiable. In fact, by the very claim of respondent that movies and the like are attractive
nuisances, it is difficult to comprehend why the municipal board passed the subject ordinance. How can the municipal authorities
consider the movies an attractive nuisance and yet encourage parents and children to patronize them by lowering the price of
admission for children? Perhaps, there is some ,truth to the argument of petitioners that Ordinance No. 640 is detrimental to the public
good and the general welfare of society for it encourages children of tender age to frequent the movies, rather than attend to their
studies in school or be in their homes.

Moreover, as a logical consequence of the ordinance, movie house and theater operators will be discouraged from exhibiting
wholesome movies for general patronage, much less children's pictures if only to avoid compliance with the ordinance and still earn
profits for themselves. For after all, these movie house and theater operators cannot be compelled to exhibit any particular kind of film
except those films which may be dictated by public demand and those which are restricted by censorship laws. So instead of children
being able to share in the joys of their elders as envisioned by the trial court, there will be a dearth of wholesome and educational
movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state courts of the United States which upheld the right of
the proprietor of a theater to fix the price of an admission ticket as against the right of the state to interfere in this regard and which We
consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of the theater or it may be
evidence of a contract whereby, for a valuable consideration, the purchaser has acquired the right to enter the theater and observe the
performance on condition that he behaves properly. 23 Such ticket, therefore, represents a right, Positive or conditional, as the case may
be, according to the terms of the original contract of sale. This right is clearly a right of property. The ticket which represents that right
is also, necessarily, a species of property. As such, the owner thereof, in the absence of any condition to the contrary in the contract by
which he obtained it, has the clear right to dispose of it, to sell it to whom he pleases and at such price as he can obtain. 24 So that an
act prohibiting the sale of tickets to theaters or other places of amusement at more than the regular price was held invalid as
conflicting with the state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
The defendants were conducting a private business, which, even if clothed with a public interest, was without a franchise to
accommodate the public, and they had the right to control it, the same as the proprietors of any other business, subject to such
obligations as were placed upon them by statute. Unlike a carrier of passengers, for instance, with a franchise from the state, and hence
under obligation to transport anyone who applies and to continue the business year in and year out, the proprietors of a theater can
open and close their place at will, and no one can make a lawful complaint. They can charge what they choose for admission to their
theater. They can limit the number admitted. They can refuse to sell tickets and collect the price of admission at the door. They can
preserve order and enforce quiet while the performance is going on. They can make it a part of the contract and condition of
admission, by giving due notice and printing the condition in the ticket that no one shall be admitted under 21 years of age, or that
men only or women only shall be admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like.
The proprietors, in the control of their business, may regulate the terms of admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the contract. If the terms are satisfactory, and the contract is made, the minds of
the parties meet upon the condition, and the purchaser impliedly promises to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs. Banton, 27 the United States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a public utility; and quite as certainly, its activities are not such that their
enjoyment can be regarded under any conditions from the point of view of an emergency.
The interest of the public in theaters and other places of entertainment may be more nearly, and with better reason, assimilated to the
like interest in provision stores and markets and in the rental of houses and apartments for residence purposes; although in importance
it fails below such an interest in the proportion that food and shelter are of more moment than amusement or instruction. As we have
shown there is no legislative power to fix the prices of provisions or clothing, or the rental charges for houses and apartments, in the
absence of some controlling emergency; and we are unable to perceive any dissimilarities of such quality or degree as to justify a
different rule in respect of amusements and entertainment ...
We are in consonance with the foregoing observations and conclusions of American courts. In this jurisdiction, legislation had been
passed controlling the prices of goods commodities and drugs during periods of emergency,28 limiting the net profits of public
utility 29 as well as regulating rentals of residential apartments for a limited period, 30 as a matter of national policy in the interest of
public health and safety, economic security and the general welfare of the people. And these laws cannot be impugned as
unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense could these businesses be
considered public utilities. The State has not found it appropriate as a national policy to interfere with the admission prices to these
performances. This does not mean however, that theaters and exhibitions are not affected with public interest even to a certain degree.

Motion pictures have been considered important both as a medium for the communication of Ideas and expression of the artistic
impulse. Their effects on the perceptions by our people of issues and public officials or public figures as well as the prevailing cultural
traits are considerable. 31 People of all ages flock to movie houses, games and other public exhibitions for recreation and relaxation.
The government realizing their importance has seen it fit to enact censorship laws to regulate the movie industry.32 Their aesthetic
entertainment and even educational values cannot be underestimated. Even police measures regulating the operation of these
businesses have been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the same must be resolved in the
negative. While it is true that a business may be regulated, it is equally true that such regulation must be within the bounds of reason,
that is, the regulatory ordinance must be reasonable, and its provisions cannot be oppressive amounting to an arbitrary interference
with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably
interfered with even by the exercise of police power. 33 A police measure for the regulation of the conduct, control and operation of a
business should not encroach upon the legitimate and lawful exercise by the citizens of their property rights. 34 The right of the owner
to fix a price at which his property shall be sold or used is an inherent attribute of the property itself and, as such, within the protection
of the due process clause."" Hence, the proprietors of a theater have a right to manage their property in their own way, to fix what
prices of admission they think most for their own advantage, and that any person who did not approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in favor of the validity of the ordinance. This maybe the rule but it
has already been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such
presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence. 37 The exercise of police power by the local government is valid unless it contravenes the fundamental
law of the land, or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or
in derogation of a common right. 38
Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We could assume that, on its face, the
interference was reasonable, from the foregoing considerations, it has been fully shown that it is an unwarranted and unlawful
curtailment of the property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, under the
guise of exercising police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED and SET ASIDE and a new
judgment is hereby rendered declaring Ordinance No. 640 unconstitutional and, therefore, null and void. This decision is immediately
executory.
SO ORDERED.

G.R. No. 92389 September 11, 1991

HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners,
vs.
HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents.
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
UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE MUNICIPAL TREASURY. (Rollo, Annnex "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. (Reno, Annex "13", p. 41)
Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified a disbursement fired of four
hundred thousand pesos (P400,000.00) 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 finds 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 Id 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 an 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)
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 ahenum 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 vs. 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 through the
exercise of the police power but the municipality does also. (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. vs. 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. vs. IAC,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 re-define 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 vs. 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. L-44178 August 21, 1987

RICARDO CRUZ, petitioner,
vs.
HON. COURT OF APPEALS, LOPE S. OCAMPO, FEDERICO TUAZON, LEON SANTOS, ANGELINA LABRADOR,
CIRIACA STO. TOMAS, VICTORIA ANONOY, CIPRIANA GONGON, CALOS GERONIMO, LEONARDO CHAVEZ,
PABLO FLORES, NATALIA PAMINTUAN, GINI CARO, ROMAN SANTOS, TEOTIMO GARCIA, ANACLETO BUENO,
ESPERANZA AGRAS, FIDEL ESTO, NATIVIDAD LLANES, AND OTHERS,respondents.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari of the decision of the Court of Appeals declaring that the Padre Rada Market remains a
public market under government supervision and control and that the private respondent-vendors be maintained in the premises.
The private respondents instituted a class suit before the then Court of First Instance of Manila, Branch VIII in behalf of the vendors
and regular stall holders in Padre Rada Market for annulment with preliminary injunction against the then Manila Mayor Antonio J.
Villegas, petitioner Cruz, and other persons whose names were unknown to them.
The complaint prayed, among others, that the defendant City Mayor's decision to withdraw Padre Rada Market as a public market be
declared null and void.
Petitioner Ricardo Cruz states that he and his business associates Elpidio Talastas, Feliciana Alcantara and others have been the
owners and operators of the Padre Rada Market at Tondo, Manila for more than twenty-five (25) years.
The market was authorized to be operated as a public market of the City of Manila by virtue of Resolution No. 230, as amended by
Resolution No. 406, both series of 1949.
On May 26, 1970, the management of said market represent by petitioner Cruz wrote Mayor Villegas that the management was
withdrawing three-fourths of the area of the market "from the direct supervision and control of the City Treasurer's Office effective on
June 15, 1970, and from said date the withdrawn portion shall cease to function and operate as a public market." The respondentvendors, who were likewise notified of such withdrawal, protested such move,
After several exchanges of referrals, indorsements, and communications, Mayor Villegas allowed the withdrawal in the light of the
Court of Appeals' decision in CA-G. R. Nos. 39999-R, and 40000-R upholding the right of the operators of the Elcano Market to
withdraw their property from its use as a public market stating, among others, that approval for the withdrawal by the City of Manila
is not even necessary. Motions for reconsiderations were denied. Hence, herein private respondents instituted Civil Case No. 80773.
The lower court rendered a decision, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:
(a) declaring as valid the decision of defendant City Mayor A. Villegas withdrawing Padre Rada Market as a public
market;
(b) declaring legal and valid defendant Operator's Notice of Withdrawal of said market as public market;
(c) vacating and setting aside the writ of preliminary injuncion issued by this Court on November 6, 1970;
(d) dismissing plaintiff's complaint;

(e) as to defendants' counterclaim, plaintiffs and the Manila Underwriters Insurance Co., Inc. of Manila, are hereby
ordered to pay, jointly and severally, defendant Ricardo Cruz and his associates named in paragraph 3 of the partial
stipulation of facts, the additional amount of P210.00 daily by way of actual damages for the period from November,
1970 until the 840 stalls are returned to defendants;
(f) ordering plaintiffs to pay defendant Cruz and his associates the sum of P5,000.00 as attorney's fees, plus the
costs.
And in this connection, the liability of the Surety, Manila Underwriters Insurance Co., Inc. of Manila, shall not
exceed P10,000.00, and plaintiffs are ordered to reimburse the Surety whatever the latter may pay to defendants.
(Rollo, pp. 72-73)
Acting on the private respondents' motion for reconsideration, the trial court later amended its decision as follows:
IN VIEW OF ALL THE FOREGOING, only number (e) of the dispositive portion of the decision is hereby
modified, to read as follows:
(e) as to defendants' counterclaim, plaintiffs and the Manila Underwriters Insurance Co., Inc. of Manila, are hereby
ordered to pay, jointly and severally, defendant Ricardo Cruz and his associates named in paragraph 3 of the partial
stipulation of facts, the additional amount of P50.00 daily by way of actual damages for the period from November,
1970 until the 840 stalls are returned to defendants.'
The other portions of the dispositive part of the decision remain in full force and effect. (Rollo, pp. 76-77)
On appeal, the respondent Court of Appeals reversed and set aside the lower court's decision and instead denied the withdrawal by the
Manila City Mayor of government-control and supervision "until legal conditions and equitable justification for the withdrawal by
private parties obtain." A subsequent motion for reconsideration was denied.
Hence, this present petition.
The questions raised by the petitioners are:
First. Is a resolution of the then Municipal Board of Manila necessary and indispensable for the purpose of
effecting the withdrawal of the Padre Rada Market as a public market or temporary "talipapa"? And, if such a
resolution is necessary, as held by the Court of Appeals, how has such ruling been affected by the dissolution of the
Municipal Board of Manila?
Second. Will the withdrawal of the Padre Rada Market from further use as a public market or a temporary
"talipapa" violate Republic Act No. 6039?
Third. Can the Court of Appeals simply ignore the earlier decision it promulgated on May 16, 1970 in CA-G.R.
Nos. 39999-R and 40000-R (Pacita Sta. Rosa, et al., v. M. Cudiamat etc., et al., and Jose San Jose, et al., v. M.
Cudiamat etc., et al., respectively), when the legality and correctness of the doctrine laid down in said decision
(penned by then Associate Justice Carmelino G. Alvendia and concurred in by then Associate Justices Cecilia
Munoz Palma and Andres Reyes) have been virtually sustained by this Honorable Court when it denied due course
to the petition for review by certiorari filed by the losing appellants in G. R. Nos. L-32187-88 (Pacita Sta. Rosa, et
al. v. M. Cudiamat etc., et al.), per resolution dated August 12, 1970? (Rec. on App., pp. 142-156).
Fourth. Does the Court of Appeals have the power to compel petitioner to continue operating the Padre Rada
Market as a public market or temporary "talipapa" notwithstanding the fact that petitioner and his business
associates have been incurring substantial losses as a consequence of such operation under present conditions and
circumstances?" (Rollo, 16-17)

The main issue centers on whether or not the City Mayor may validly withdraw Padre Rada Market as a public market.
The answer is in the negative.
The Municipal Board of Manila with the approval of then Mayor Manuel de la Fuente authorized the disputed premises to be operated
as a public market under its direct control and supervision as embodied in Resolution No. 230, amended by Resolution No. 406, both
series of 1949.
The Municipal Board acted pursuant to its legislative powers vested by Republic Act No. 409 (Revised Charter of the City of Manila),
particularly Sec. 18 (cc) which provides:
Legislative powers. The Municipal Board shall have the following legislative powers:
(cc) Subject to the provisions of ordinances issued by the Department of Health in accordance with law, to provide
for the establishment and maintenance and fix the fees for the use of, and regulate public stables, laundries, and
baths, and public markets and slaughterhouses, and prohibit or permit the establishment or operation within the city
limits of public markets and slaughterhouses by any person, entity, association, or corporation other than the city.
(45 O.G. 4265)
The respondent Court of Appeals held that Mayor Villegas had no authority to allow such withdrawal as "it is axiomatic that only the
power that created it can withdraw it."
On the other hand, the petitioner contends that the Padre Rada Market was not created but merely authorized to operate as a public
market by the Municipal Board. Accordingly, there is nothing in the said resolutions which obligates or compels petitioner Cruz and
his business associates to continue operating the said market for as long as the Municipal Board desires it.
The records show that the petitioner wants to convert the major portion of the Padre Rada Market into a private market to enable him
to raise the rentals for the stalls. It is obvious that he wants to remove the market from the control and supervision of city authorities.
The private respondents also contend that to remove three-fourths of the market from its status as a public market would practically
result in the total withdrawal of the entire market. The remaining one fourth is no longer being used by the owner for its avowed
purpose.
By the very nature of a market, * its location, opening, operations, and closure must be regulated by government. It is not a question of
the petitioner's right to run his market as he pleases but what agency or office should supervise its operations.
We agree with the Court of Appeals that the Mayor had no legal authority to, by himself, allow the petitioner to withdraw the major
portion of Padre Rada Market from its use as a public market, thereby also withdrawing it from the city's constant supervision.
The establishment and maintenance of public markets is by law among the legislative powers of the City of Manila. Since the
operation of Padre Rada Market was authorized by a municipal board resolution and approved by the City Mayor, as provided by law,
it follows that a withdrawal of the whole or any portion from use as a public market must be subject to the same joint action of the
Board and the Mayor. The Mayor of Manila, by himself, cannot provide for the opening, operations, and closure of a public market.
The withdrawal from the market's public status was in fact objected to by the Manila City Treasurer and the Market Administrator in
their memorandums and indorsements to the Mayor. The market administrator opposed the withdrawal as it involved the displacement
of numerous vendors (Record on Appeal, p. 35). At least 840 market stalls are involved. The city treasurer pointed out that the
withdrawal would result in a diminution of city revenues.
Moreover, the city treasurer brought to the Mayor's attention Sec. 1, III (2) of Republic Act No. 6039, amending the Revised Charter
of the City of Manila, which provides:
xxx xxx xxx

2) City-owned and operated public markets shall not be disposed of, closed, destroyed, sold or transferred until all
vendors therein shall have been relocated or transferred by the city government at its expense to another temporary
or new public market: Provided, however, That notice of the city's such intention or plans shall be made to all
concerned vendors at least one hundred twenty days before the actual transfer or relocation to another market site:
Provided, further, that all such temporarily relocated vendors shall be given preference and priority to occupy stalls
in the new site as provided for under paragraph 11 (5) and III (1). (66 0. G. 3694)
The Court of Appeals held that the withdrawal violated the above-mentioned provision.
It stated:
The lower court held that the following provision of Republic 6039:
City-owned and operated public markets shall not be disposed of, closed ... or transferred until an
vendors therein shall have been relocated or transferred by the city government at its expenses to
another temporary or new public market.
was not violated because
... That provision applies solely to city-owned and operated public market, but the Padre Rada
Market was not city-owned.
Such construction of the law is too technical. The conjunction "and" is not used in a restricted sense. It means
"additional." The City of Manila has two public markets: city owned and city operated. It would be unthinkable that
the law would restrict the coverage of its application for protection of public market vendors to only those public
markets owned and operated by the City and not those in city-owned but not city- operated or city-operated but not
city-owned public markets. (Rollo, pp. 53-54)
The petitioner alleges otherwise, stating that said provision is not applicable to the Padre Rada Market, it being a privately-owned and
privately-operated public market under the control and supervision of the City of Manila. The fact that all privately-owned public
markets are under government supervision and control do not make them city-operated public markets.
There is no question that the Padre Rada Market is a public market as it was authorized to operate and it operates as such.
A market is a "public market" when it is dedicated to the service of the general public and is operated under government control and
supervision as a public utility, whether it be owned by the government or any instrumentality thereof or by any private individual. It is
a settled doctrine that a "public market may be the object of individual ownership or lease, subject to municipal supervision and
control." (43 C.J. 394). Thus, if a market has been permitted to operate under government license for service to the general public, it is
a "public market" whether the building that houses it or the land upon which it is built is of private or public ownership. (Vda. de
Salgado v. De la Fuente, 87 Phil. 343).
The Padre Rada Market is, therefore, a public market which happens to be privately-owned and privately operated.
The petitioner contends that even assuming arguendo that another resolution was necessary for the withdrawal from use as a public
market, the same could not be passed due to the dissolution of the Municipal Board of Manila.
The dissolution of the Municipal Board was among the measures which followed the promulgation of martial law. It did not follow,
however, that the City Mayor automatically became both executive and legislature of the local government. He was never vested with
legislative power. The answer to the petitioner's arguments is found in Presidential Decree No. 824 enacted on November 7, 1975
creating the Metropolitan Manila Commission.
Section 4 (5) of said decree provides:

The Commission shall have the following powers and functions:

xxx xxx xxx
(5) To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within
Metropolitan Manila. (Emphasis supplied). (Vital Legal Documents, Vol. 29, pp. 2627).
Therefore, the Metropolitan Manila Commission took over the legislative functions of the Municipal Board of Manila.
It was not within the mayor's authority to allow the questioned withdrawal.
As earlier stated, the intention of the operators of the Padre Rada Market is very clear. The withdrawal from its status as a public
market is to operate the market without government control and supervision but not to discontinue operating as a market.
This can be gleaned from the notice sent to the respondent vendors.
It states:
PATALASTAS
Sa Mga Manininda Ng Pamilihang Padre Rada:
Mapitagan naming ipinaaalam sa inyo na mula sa Hunyo 15, 1970 ang Padre Rada Market ay hindi na aandar o
magpapatuloy bilang isang pamilihang bayan o public market. Nagpadala na po kami ng kaukulang kalatas sa
mabunying Gatpuno ng Lunsod, Kgg. Antonio J. Villegas.
Dahilan sa hindi na po maniningil sa loob ng palengke ang mga kolektor (ng gobyerno) o kinatawan ng Ingat-Yaman
ng Lunsod, ang lahat po ng maninindang may puesto sa loob ay dapat kumuha ng permiso (Mayor's Permit) at
lisensya upang makapangalakal kayo nang naaayon sa batas. May nakalaan pong "porma" sa aming upisina para sa
inyong kaluwagan at kami po'y nakahanda tumulong sa pagsasaayos ng inyong pangangailangan tungkol dito.
Kaya, kung hangad po ninyong magpatuloy sa pagtitinda at pangangalakal sa loob ng pamilihang Padre Rada nang
walang balakid ay mangyari lang na kumuha ng kinakailangang permiso at lisensiya bago sumapit ang Hunyo 15,
1970.
Sumasai
nyo,
(SGD.) RICARDO CRUZ
(Underscoring supplied; pp. 30-31, Record on Appeal).
The Padre Rada Market is a public market and as such should be subject to the local government's supervision and control. Its
conversion into a private market or its closure must follow the procedures laid down by law.
WHEREFORE,, the petition is hereby DISMISSED for lack of merit. The questioned decision of the Court of Appeals is AFFIRMED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.
[G.R. No. 147402. January 14, 2004]

ENGR. RANULFO C. FELICIANO, in his capacity as General Manager of the Leyte Metropolitan Water District (LMWD),
Tacloban City, petitioner, vs. COMMISSION ON AUDIT, Chairman CELSO D. GANGAN, Commissioners RAUL C.
FLORES and EMMANUEL M. DALMAN, and Regional Director of COA Region VIII, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari[1] to annul the Commission on Audits (COA) Resolution dated 3 January 2000 and the Decision
dated 30 January 2001 denying the Motion for Reconsideration. The COA denied petitioner Ranulfo C. Felicianos request for COA to
cease all audit services, and to stop charging auditing fees, to Leyte Metropolitan Water District (LMWD). The COA also denied
petitioners request for COA to refund all auditing fees previously paid by LMWD.
Antecedent Facts
A Special Audit Team from COA Regional Office No. VIII audited the accounts of LMWD. Subsequently, LMWD received a
letter from COA dated 19 July 1999 requesting payment of auditing fees. As General Manager of LMWD, petitioner sent a reply dated
12 October 1999 informing COAs Regional Director that the water district could not pay the auditing fees. Petitioner cited as basis for
his action Sections 6 and 20 of Presidential Decree 198 (PD 198) [2], as well as Section 18 of Republic Act No. 6758 (RA 6758). The
Regional Director referred petitioners reply to the COA Chairman on 18 October 1999.
On 19 October 1999, petitioner wrote COA through the Regional Director asking for refund of all auditing fees LMWD
previously paid to COA.
On 16 March 2000, petitioner received COA Chairman Celso D. Gangans Resolution dated 3 January 2000 denying his
requests. Petitioner filed a motion for reconsideration on 31 March 2000, which COA denied on 30 January 2001.
On 13 March 2001, petitioner filed this instant petition. Attached to the petition were resolutions of the Visayas Association of
Water Districts (VAWD) and the Philippine Association of Water Districts (PAWD) supporting the petition.
The Ruling of the Commission on Audit
The COA ruled that this Court has already settled COAs audit jurisdiction over local water districts in Davao City Water District
v. Civil Service Commission and Commission on Audit,[3] as follows:
The above-quoted provision [referring to Section 3(b) PD 198] definitely sets to naught petitioners contention that they are private
corporations. It is clear therefrom that the power to appoint the members who will comprise the members of the Board of Directors
belong to the local executives of the local subdivision unit where such districts are located. In contrast, the members of the Board of
Directors or the trustees of a private corporation are elected from among members or stockholders thereof. It would not be amiss at
this point to emphasize that a private corporation is created for the private purpose, benefit, aim and end of its members or
stockholders. Necessarily, said members or stockholders should be given a free hand to choose who will compose the governing body
of their corporation. But this is not the case here and this clearly indicates that petitioners are not private corporations.
The COA also denied petitioners request for COA to stop charging auditing fees as well as petitioners request for COA to refund all
auditing fees already paid.
The Issues
Petitioner contends that COA committed grave abuse of discretion amounting to lack or excess of jurisdiction by auditing
LMWD and requiring it to pay auditing fees. Petitioner raises the following issues for resolution:

1. Whether a Local Water District (LWD) created under PD 198, as amended, is a government-owned or controlled
corporation subject to the audit jurisdiction of COA;
2. Whether Section 20 of PD 198, as amended, prohibits COAs certified public accountants from auditing local water
districts; and
3. Whether Section 18 of RA 6758 prohibits the COA from charging government-owned and controlled corporations
auditing fees.
The Ruling of the Court
The petition lacks merit.
The Constitution and existing laws[4] mandate COA to audit all government agencies, including government-owned and
controlled corporations (GOCCs) with original charters. An LWD is a GOCC with an original charter. Section 2(1), Article IX-D of
the Constitution provides for COAs audit jurisdiction, as follows:
SECTION 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to,
the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled
corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been
granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or
controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or
indirectly, from or through the government, which are required by law or the granting institution to submit to such audit as a condition
of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt
such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the
general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting
papers pertaining thereto. (Emphasis supplied)
The COAs audit jurisdiction extends not only to government agencies or instrumentalities, but also to government-owned and
controlled corporations with original charters as well as other government-owned or controlled corporations without original charters.
Whether LWDs are Private or Government-Owned
and Controlled Corporations with Original Charters
Petitioner seeks to revive a well-settled issue. Petitioner asks for a re-examination of a doctrine backed by a long line of cases
culminating in Davao City Water District v. Civil Service Commission [5] and just recently reiterated in De Jesus v. Commission on
Audit.[6] Petitioner maintains that LWDs are not government-owned and controlled corporations with original charters. Petitioner even
argues that LWDs are private corporations. Petitioner asks the Court to consider certain interpretations of the applicable laws, which
would give a new perspective to the issue of the true character of water districts.[7]
Petitioner theorizes that what PD 198 created was the Local Waters Utilities Administration (LWUA) and not the
LWDs. Petitioner claims that LWDs are created pursuant to and not created directly by PD 198. Thus, petitioner concludes that PD
198 is not an original charter that would place LWDs within the audit jurisdiction of COA as defined in Section 2(1), Article IX-D of
the Constitution. Petitioner elaborates that PD 198 does not create LWDs since it does not expressly direct the creation of such entities,
but only provides for their formation on an optional or voluntary basis. [8] Petitioner adds that the operative act that creates an LWD is
the approval of the Sanggunian Resolution as specified in PD 198.
Petitioners contention deserves scant consideration.

We begin by explaining the general framework under the fundamental law. The Constitution recognizes two classes of
corporations. The first refers to private corporations created under a general law. The second refers to government-owned or controlled
corporations created by special charters. Section 16, Article XII of the Constitution provides:
Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability.
The Constitution emphatically prohibits the creation of private corporations except by a general law applicable to all citizens. [9] The
purpose of this constitutional provision is to ban private corporations created by special charters, which historically gave certain
individuals, families or groups special privileges denied to other citizens. [10]
In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be
unconstitutional. Private corporations may exist only under a general law. If the corporation is private, it must necessarily exist under a
general law. Stated differently, only corporations created under a general law can qualify as private corporations. Under existing laws,
that general law is the Corporation Code,[11]except that the Cooperative Code governs the incorporation of cooperatives.[12]
The Constitution authorizes Congress to create government-owned or controlled corporations through special charters. Since
private corporations cannot have special charters, it follows that Congress can create corporations with special charters only if such
corporations are government-owned or controlled.
Obviously, LWDs are not private corporations because they are not created under the Corporation Code. LWDs are not registered
with the Securities and Exchange Commission. Section 14 of the Corporation Code states that [A]ll corporations organized under this
code shall file with the Securities and Exchange Commission articles of incorporation x x x. LWDs have no articles of incorporation,
no incorporators and no stockholders or members. There are no stockholders or members to elect the board directors of LWDs as in
the case of all corporations registered with the Securities and Exchange Commission. The local mayor or the provincial governor
appoints the directors of LWDs for a fixed term of office. This Court has ruled that LWDs are not created under the Corporation Code,
thus:
From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the CSC are those corporations
created pursuant to the Corporation Code. Significantly, petitioners are not created under the said code, but on the contrary, they
were created pursuant to a special law and are governed primarily by its provision. [13] (Emphasis supplied)
LWDs exist by virtue of PD 198, which constitutes their special charter. Since under the Constitution only government-owned or
controlled corporations may have special charters, LWDs can validly exist only if they are government-owned or controlled. To claim
that LWDs are private corporations with a special charter is to admit that their existence is constitutionally infirm.
Unlike private corporations, which derive their legal existence and power from the Corporation Code, LWDs derive their legal
existence and power from PD 198. Sections 6 and 25 of PD 198[14] provide:
Section 6. Formation of District. This Act is the source of authorization and power to form and maintain a district. For purposes
of this Act, a district shall be considered as a quasi-public corporation performing public service and supplying public
wants. As such, a district shall exercise the powers, rights and privileges given to private corporations under existing laws, in
addition to the powers granted in, and subject to such restrictions imposed, under this Act.
(a) The name of the local water district, which shall include the name of the city, municipality, or province, or region thereof, served
by said system, followed by the words Water District.
(b) A description of the boundary of the district. In the case of a city or municipality, such boundary may include all lands within the
city or municipality. A district may include one or more municipalities, cities or provinces, or portions thereof.
(c) A statement completely transferring any and all waterworks and/or sewerage facilities managed, operated by or under the control
of such city, municipality or province to such district upon the filing of resolution forming the district.

(d) A statement identifying the purpose for which the district is formed, which shall include those purposes outlined in Section 5
above.
(e) The names of the initial directors of the district with the date of expiration of term of office for each.
(f) A statement that the district may only be dissolved on the grounds and under the conditions set forth in Section 44 of this Title.
(g) A statement acknowledging the powers, rights and obligations as set forth in Section 36 of this Title.
Nothing in the resolution of formation shall state or infer that the local legislative body has the power to dissolve, alter or affect the
district beyond that specifically provided for in this Act.
If two or more cities, municipalities or provinces, or any combination thereof, desire to form a single district, a similar resolution shall
be adopted in each city, municipality and province.
xxx
Sec. 25. Authorization. The district may exercise all the powers which are expressly granted by this Title or which are
necessarily implied from or incidental to the powers and purposes herein stated. For the purpose of carrying out the objectives of
this Act, a district is hereby granted the power of eminent domain, the exercise thereof shall, however, be subject to review by the
Administration. (Emphasis supplied)
Clearly, LWDs exist as corporations only by virtue of PD 198, which expressly confers on LWDs corporate powers. Section 6
of PD 198 provides that LWDs shall exercise the powers, rights and privileges given to private corporations under existing
laws. Without PD 198, LWDs would have no corporate powers. Thus, PD 198 constitutes the special enabling charter of LWDs. The
ineluctable conclusion is that LWDs are government-owned and controlled corporations with a special charter.
The phrase government-owned and controlled corporations with original charters means GOCCs created under special laws and
not under the general incorporation law. There is no difference between the term original charters and special charters. The Court
clarified this in National Service Corporation v. NLRC[15] by citing the deliberations in the Constitutional Commission, as follows:
THE PRESIDING OFFICER (Mr. Trenas). The session is resumed.
Commissioner Romulo is recognized.
MR. ROMULO. Mr. Presiding Officer, I am amending my original proposed amendment to now read as follows: including
government-owned or controlled corporations WITH ORIGINAL CHARTERS. The purpose of this amendment is to indicate that
government corporations such as the GSIS and SSS, which have original charters, fall within the ambit of the civil service. However,
corporations which are subsidiaries of these chartered agencies such as the Philippine Airlines, Manila Hotel and Hyatt are excluded
from the coverage of the civil service.
THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?
MR. FOZ. Just one question, Mr. Presiding Officer. By the term original charters, what exactly do we mean?
MR. ROMULO. We mean that they were created by law, by an act of Congress, or by special law.
MR. FOZ. And not under the general corporation law.
MR. ROMULO. That is correct. Mr. Presiding Officer.
MR. FOZ. With that understanding and clarification, the Committee accepts the amendment.

MR. NATIVIDAD. Mr. Presiding Officer, so those created by the general corporation law are out.
MR. ROMULO. That is correct. (Emphasis supplied)
Again, in Davao City Water District v. Civil Service Commission,[16] the Court reiterated the meaning of the phrase governmentowned and controlled corporations with original charters in this wise:
By government-owned or controlled corporation with original charter, We mean government owned or controlled corporation
created by a special law and not under the Corporation Code of the Philippines. Thus, in the case of Lumanta v. NLRC (G.R. No.
82819, February 8, 1989, 170 SCRA 79, 82), We held:
The Court, in National Service Corporation (NASECO) v. National Labor Relations Commission, G.R. No. 69870, promulgated
on 29 November 1988, quoting extensively from the deliberations of the 1986 Constitutional Commission in respect of the
intent and meaning of the new phrase with original charter, in effect held that government-owned and controlled corporations
with original charter refer to corporations chartered by special law as distinguished from corporations organized under our
general incorporation statute the Corporation Code. In NASECO, the company involved had been organized under the general
incorporation statute and was a subsidiary of the National Investment Development Corporation (NIDC) which in turn was a
subsidiary of the Philippine National Bank, a bank chartered by a special statute. Thus, government-owned or controlled corporations
like NASECO are effectively, excluded from the scope of the Civil Service. (Emphasis supplied)
Petitioners contention that the Sangguniang Bayan resolution creates the LWDs assumes that the Sangguniang Bayan has the
power to create corporations. This is a patently baseless assumption. The Local Government Code[17] does not vest in the Sangguniang
Bayan the power to create corporations.[18] What the Local Government Code empowers the Sangguniang Bayan to do is to provide for
the establishment of a waterworks system subject to existing laws. Thus, Section 447(5)(vii) of the Local Government Code provides:
SECTION 447. Powers, Duties, Functions and Compensation. (a) The sangguniang bayan, as the legislative body of the municipality,
shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under
Section 22 of this Code, and shall:
xxx
(vii) Subject to existing laws, provide for the establishment, operation, maintenance, and repair of an efficient waterworks system to
supply water for the inhabitants; regulate the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs;
protect the purity and quantity of the water supply of the municipality and, for this purpose, extend the coverage of appropriate
ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir,
conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulate the consumption, use
or wastage of water;
x x x. (Emphasis supplied)
The Sangguniang Bayan may establish a waterworks system only in accordance with the provisions of PD 198. The Sangguniang
Bayan has no power to create a corporate entity that will operate its waterworks system. However, the Sangguniang Bayan may avail
of existing enabling laws, like PD 198, to form and incorporate a water district. Besides, even assuming for the sake of argument that
the Sangguniang Bayan has the power to create corporations, the LWDs would remain government-owned or controlled corporations
subject to COAs audit jurisdiction. The resolution of the Sangguniang Bayan would constitute an LWDs special charter, making the
LWD a government-owned and controlled corporation with an original charter. In any event, the Court has already ruled in Baguio
Water District v. Trajano[19] that the Sangguniang Bayan resolution is not the special charter of LWDs, thus:
While it is true that a resolution of a local sanggunian is still necessary for the final creation of a district, this Court is of the opinion
that said resolution cannot be considered as its charter, the same being intended only to implement the provisions of said decree.

Petitioner further contends that a law must create directly and explicitly a GOCC in order that it may have an original charter. In
short, petitioner argues that one special law cannot serve as enabling law for several GOCCs but only for one GOCC. Section 16,
Article XII of the Constitution mandates that Congress shall not, except by general law,[20] provide for the creation of private
corporations. Thus, the Constitution prohibits one special law to create one private corporation, requiring instead a general law to
create private corporations. In contrast, the same Section 16 states that Government-owned or controlled corporations may be created
or established by special charters. Thus, the Constitution permits Congress to create a GOCC with a special charter. There is,
however, no prohibition on Congress to create several GOCCs of the same class under one special enabling charter.
The rationale behind the prohibition on private corporations having special charters does not apply to GOCCs. There is no
danger of creating special privileges to certain individuals, families or groups if there is one special law creating each
GOCC. Certainly, such danger will not exist whether one special law creates one GOCC, or one special enabling law creates several
GOCCs. Thus, Congress may create GOCCs either by special charters specific to each GOCC, or by one special enabling charter
applicable to a class of GOCCs, like PD 198 which applies only to LWDs.
Petitioner also contends that LWDs are private corporations because Section 6 of PD 198 [21] declares that LWDs shall be
considered quasi-public in nature. Petitioners rationale is that only private corporations may be deemed quasi-public and not public
corporations. Put differently, petitioner rationalizes that a public corporation cannot be deemed quasi-public because such corporation
is already public. Petitioner concludes that the term quasi-public can only apply to private corporations. Petitioners argument is
inconsequential.
Petitioner forgets that the constitutional criterion on the exercise of COAs audit jurisdiction depends on the governments
ownership or control of a corporation. The nature of the corporation, whether it is private, quasi-public, or public is immaterial.
The Constitution vests in the COA audit jurisdiction over government-owned and controlled corporations with original charters,
as well as government-owned or controlled corporations without original charters. GOCCs with original charters are subject to COA
pre-audit, while GOCCs without original charters are subject to COA post-audit. GOCCs without original charters refer to
corporations created under the Corporation Code but are owned or controlled by the government. The nature or purpose of the
corporation is not material in determining COAs audit jurisdiction. Neither is the manner of creation of a corporation, whether under a
general or special law.
The determining factor of COAs audit jurisdiction is government ownership or control of the corporation. In Philippine
Veterans Bank Employees Union-NUBE v. Philippine Veterans Bank,[22] the Court even ruled that the criterion of ownership and
control is more important than the issue of original charter, thus:
This point is important because the Constitution provides in its Article IX-B, Section 2(1) that the Civil Service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original
charters. As the Bank is not owned or controlled by the Government although it does have an original charter in the form of
R.A. No. 3518,[23] it clearly does not fall under the Civil Service and should be regarded as an ordinary commercial
corporation. Section 28 of the said law so provides. The consequence is that the relations of the Bank with its employees should be
governed by the labor laws, under which in fact they have already been paid some of their claims. (Emphasis supplied)
Certainly, the government owns and controls LWDs. The government organizes LWDs in accordance with a specific law, PD
198. There is no private party involved as co-owner in the creation of an LWD. Just prior to the creation of LWDs, the national or
local government owns and controls all their assets. The government controls LWDs because under PD 198 the municipal or city
mayor, or the provincial governor, appoints all the board directors of an LWD for a fixed term of six years. [24] The board directors of
LWDs are not co-owners of the LWDs. LWDs have no private stockholders or members. The board directors and other personnel of
LWDs are government employees subject to civil service laws[25] and anti-graft laws.[26]
While Section 8 of PD 198 states that [N]o public official shall serve as director of an LWD, it only means that the appointees to
the board of directors of LWDs shall come from the private sector. Once such private sector representatives assume office as directors,
they become public officials governed by the civil service law and anti-graft laws. Otherwise, Section 8 of PD 198 would contravene
Section 2(1), Article IX-B of the Constitution declaring that the civil service includes government-owned or controlled corporations
with original charters.

If LWDs are neither GOCCs with original charters nor GOCCs without original charters, then they would fall under the term
agencies or instrumentalities of the government and thus still subject to COAs audit jurisdiction. However, the stark and undeniable
fact is that the government owns LWDs. Section 45[27] of PD 198 recognizes government ownership of LWDs when Section 45 states
that the board of directors may dissolve an LWD only on the condition that another public entity has acquired the assets of the
district and has assumed all obligations and liabilities attached thereto. The implication is clear that an LWD is a public and not a
private entity.
Petitioner does not allege that some entity other than the government owns or controls LWDs. Instead, petitioner advances the
theory that the Water Districts owner is the District itself. [28] Assuming for the sake of argument that an LWD is self-owned, [29] as
petitioner describes an LWD, the government in any event controls all LWDs. First, government officials appoint all LWD directors to
a fixed term of office. Second, any per diemof LWD directors in excess of P50 is subject to the approval of the Local Water Utilities
Administration, and directors can receive no other compensation for their services to the LWD. [30] Third, the Local Water Utilities
Administration can require LWDs to merge or consolidate their facilities or operations. [31] This element of government control subjects
LWDs to COAs audit jurisdiction.
Petitioner argues that upon the enactment of PD 198, LWDs became private entities through the transfer of ownership of water
facilities from local government units to their respective water districts as mandated by PD 198. Petitioner is grasping at
straws. Privatization involves the transfer of government assets to a private entity. Petitioner concedes that the owner of the assets
transferred under Section 6 (c) of PD 198 is no other than the LWD itself. [32] The transfer of assets mandated by PD 198 is a transfer of
the water systems facilities managed, operated by or under the control of such city, municipality or province to such (water) district.
[33]
In short, the transfer is from one government entity to another government entity. PD 198 is bereft of any indication that the
transfer is to privatize the operation and control of water systems.
Finally, petitioner claims that even on the assumption that the government owns and controls LWDs, Section 20 of PD 198
prevents COA from auditing LWDs. [34] Section 20 of PD 198 provides:
Sec. 20. System of Business Administration. The Board shall, as soon as practicable, prescribe and define by resolution a system of
business administration and accounting for the district, which shall be patterned upon and conform to the standards established by the
Administration. Auditing shall be performed by a certified public accountant not in the government service. The Administration
may, however, conduct annual audits of the fiscal operations of the district to be performed by an auditor retained by the
Administration. Expenses incurred in connection therewith shall be borne equally by the water district concerned and the
Administration.[35] (Emphasis supplied)
Petitioner argues that PD 198 expressly prohibits COA auditors, or any government auditor for that matter, from auditing
LWDs. Petitioner asserts that this is the import of the second sentence of Section 20 of PD 198 when it states that [A]uditing shall be
performed by a certified public accountant not in the government service.[36]
PD 198 cannot prevail over the Constitution. No amount of clever legislation can exclude GOCCs like LWDs from COAs audit
jurisdiction. Section 3, Article IX-C of the Constitution outlaws any scheme or devise to escape COAs audit jurisdiction, thus:
Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of
public funds, from the jurisdiction of the Commission on Audit. (Emphasis supplied)
The framers of the Constitution added Section 3, Article IX-D of the Constitution precisely to annul provisions of Presidential
Decrees, like that of Section 20 of PD 198, that exempt GOCCs from COA audit. The following exchange in the deliberations of the
Constitutional Commission elucidates this intent of the framers:
MR. OPLE: I propose to add a new section on line 9, page 2 of the amended committee report which reads: NO LAW SHALL BE
PASSED EXEMPTING ANY ENTITY OF THE GOVERNMENT OR ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY
INVESTMENTS OF PUBLIC FUNDS, FROM THE JURISDICTION OF THE COMMISSION ON AUDIT.
May I explain my reasons on record.

We know that a number of entities of the government took advantage of the absence of a legislature in the past to obtain
presidential decrees exempting themselves from the jurisdiction of the Commission on Audit, one notable example of which is
the Philippine National Oil Company which is really an empty shell. It is a holding corporation by itself, and strictly on its own
account. Its funds were not very impressive in quantity but underneath that shell there were billions of pesos in a multiplicity of
companies. The PNOC the empty shell under a presidential decree was covered by the jurisdiction of the Commission on Audit, but
the billions of pesos invested in different corporations underneath it were exempted from the coverage of the Commission on Audit.
Another example is the United Coconut Planters Bank. The Commission on Audit has determined that the coconut levy is a form of
taxation; and that, therefore, these funds attributed to the shares of 1,400,000 coconut farmers are, in effect, public funds. And that
was, I think, the basis of the PCGG in undertaking that last major sequestration of up to 94 percent of all the shares in the United
Coconut Planters Bank. The charter of the UCPB, through a presidential decree, exempted it from the jurisdiction of the Commission
on Audit, it being a private organization.
So these are the fetuses of future abuse that we are slaying right here with this additional section.
May I repeat the amendment, Madam President: NO LAW SHALL BE PASSED EXEMPTING ANY ENTITY OF THE
GOVERNMENT OR ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY INVESTMENTS OF PUBLIC FUNDS, FROM
THE JURISDICTION OF THE COMMISSION ON AUDIT.
THE PRESIDENT: May we know the position of the Committee on the proposed amendment of Commissioner Ople?
MR. JAMIR: If the honorable Commissioner will change the number of the section to 4, we will accept the amendment.
MR. OPLE: Gladly, Madam President. Thank you.
MR. DE CASTRO: Madam President, point of inquiry on the new amendment.
THE PRESIDENT: Commissioner de Castro is recognized.
MR. DE CASTRO: Thank you. May I just ask a few questions of Commissioner Ople.
Is that not included in Section 2 (1) where it states: (c) government-owned or controlled corporations and their subsidiaries? So that if
these government-owned and controlled corporations and their subsidiaries are subjected to the audit of the COA, any law exempting
certain government corporations or subsidiaries will be already unconstitutional.
So I believe, Madam President, that the proposed amendment is unnecessary.
MR. MONSOD: Madam President, since this has been accepted, we would like to reply to the point raised by Commissioner de
Castro.
THE PRESIDENT: Commissioner Monsod will please proceed.
MR. MONSOD: I think the Commissioner is trying to avoid the situation that happened in the past, because the same provision was
in the 1973 Constitution and yet somehow a law or a decree was passed where certain institutions were exempted from audit. We are
just reaffirming, emphasizing, the role of the Commission on Audit so that this problem will never arise in the future. [37]
There is an irreconcilable conflict between the second sentence of Section 20 of PD 198 prohibiting COA auditors from auditing
LWDs and Sections 2(1) and 3, Article IX-D of the Constitution vesting in COA the power to audit all GOCCs. We rule that the
second sentence of Section 20 of PD 198 is unconstitutional since it violates Sections 2(1) and 3, Article IX-D of the Constitution.
On the Legality of COAs
Practice of Charging Auditing Fees

[38]

Petitioner claims that the auditing fees COA charges LWDs for audit services violate the prohibition in Section 18 of RA 6758,
which states:

Sec. 18. Additional Compensation of Commission on Audit Personnel and of other Agencies. In order to preserve the independence
and integrity of the Commission on Audit (COA), its officials and employees are prohibited from receiving salaries, honoraria,
bonuses, allowances or other emoluments from any government entity, local government unit, government-owned or controlled
corporations, and government financial institutions, except those compensation paid directly by COA out of its appropriations
and contributions.
Government entities, including government-owned or controlled corporations including financial institutions and local government
units are hereby prohibited from assessing or billing other government entities, including government-owned or controlled
corporations including financial institutions or local government units for services rendered by its officials and employees as part of
their regular functions for purposes of paying additional compensation to said officials and employees. (Emphasis supplied)
Claiming that Section 18 is absolute and leaves no doubt,[39] petitioner asks COA to discontinue its practice of charging auditing fees to
LWDs since such practice allegedly violates the law.
Petitioners claim has no basis.
Section 18 of RA 6758 prohibits COA personnel from receiving any kind of compensation from any government entity
except compensation paid directly by COA out of its appropriations and contributions. Thus,RA 6758 itself recognizes an
exception to the statutory ban on COA personnel receiving compensation from GOCCs. In Tejada v. Domingo,[40] the Court declared:
There can be no question that Section 18 of Republic Act No. 6758 is designed to strengthen further the policy x x x to preserve the
independence and integrity of the COA, by explicitly PROHIBITING: (1) COA officials and employees from receiving salaries,
honoraria, bonuses, allowances or other emoluments from any government entity, local government unit, GOCCs and government
financial institutions, except such compensation paid directly by the COA out of its appropriations and contributions, and (2)
government entities, including GOCCs, government financial institutions and local government units from assessing or billing other
government entities, GOCCs, government financial institutions or local government units for services rendered by the latters officials
and employees as part of their regular functions for purposes of paying additional compensation to said officials and employees.
xxx
The first aspect of the strategy is directed to the COA itself, while the second aspect is addressed directly against the GOCCs and
government financial institutions. Under the first, COA personnel assigned to auditing units of GOCCs or government financial
institutions can receive only such salaries, allowances or fringe benefits paid directly by the COA out of its appropriations and
contributions. The contributions referred to are the cost of audit services earlier mentioned which cannot include the extra
emoluments or benefits now claimed by petitioners. The COA is further barred from assessing or billing GOCCs and government
financial institutions for services rendered by its personnel as part of their regular audit functions for purposes of paying additional
compensation to such personnel. x x x. (Emphasis supplied)
In Tejada, the Court explained the meaning of the word contributions in Section 18 of RA 6758, which allows COA to charge
GOCCs the cost of its audit services:
x x x the contributions from the GOCCs are limited to the cost of audit services which are based on the actual cost of the audit
function in the corporation concerned plus a reasonable rate to cover overhead expenses. The actual audit cost shall include personnel
services, maintenance and other operating expenses, depreciation on capital and equipment and out-of-pocket expenses. In respect to
the allowances and fringe benefits granted by the GOCCs to the COA personnel assigned to the formers auditing units, the same shall
be directly defrayed by COA from its own appropriations x x x. [41]
COA may charge GOCCs actual audit cost but GOCCs must pay the same directly to COA and not to COA auditors. Petitioner has not
alleged that COA charges LWDs auditing fees in excess of COAs actual audit cost. Neither has petitioner alleged that the auditing fees
are paid by LWDs directly to individual COA auditors. Thus, petitioners contention must fail.

WHEREFORE, the Resolution of the Commission on Audit dated 3 January 2000 and the Decision dated 30 January 2001
denying petitioners Motion for Reconsideration are AFFIRMED. The second sentence of Section 20 of Presidential Decree No. 198 is
declared VOID for being inconsistent with Sections 2 (1) and 3, Article IX-D of the Constitution. No costs.
SO ORDERED.

[G.R. No. 155344. January 20, 2004]

ROLANDO N. CANET, petitioner, vs. MAYOR JULIETA A. DECENA, respondent.
DECISION
YNARES-SANTIAGO, J.:
On July 27, 1998, the Sangguniang Bayan of Bula, Camarines Sur, passed Resolution No. 049, Series of 1998, [1] authorizing
petitioner Rolando N. Canet to establish, operate and maintain a cockpit in Sitio, Cabaya, San Roque, Bula, Camarines Sur.
Subsequently, the Sangguniang Bayan passed Ordinance No. 001, Series of 1999, entitled An Ordinance Regulating the
Operation of Cockpits and Other Related Game-Fowl Activities in the Municipality of Bula, Camarines Sur and Providing Penalties
for any Violation to (sic) the Provisions Thereof.[2] Upon transmittal to respondent Mayor Julieta A. Decena of the said municipality, it
was noted that the Ordinance does not contain rules and regulations on cockfighting and other related game fowl activities and a
separability clause. The Ordinance was returned to the Sangguniang Bayan. In Resolution No. 078, Series of 1999, Sangguniang
Bayanresolved to withdraw, set aside and shelf indefinitely Ordinance No. 001, Series of 1999.[3]
Meanwhile, petitioner, relying on Resolution No. 049, Series of 1998, of the Sangguniang Bayan, filed an application for a
mayors permit to operate, establish and maintain a cockpit in Sitio Cabuya, San Roque, Bula, Camarines Sur. Respondent Mayor
Julieta Decena denied the application on the ground, among others, that under the Local Government Code of 1991, the authority to
give licenses for the establishment, operation and maintenance of cockpits as well as the regulation of cockfighting and commercial
breeding of gamecocks is vested in the Sangguniang Bayan.[4]
Therefore, she cannot issue the said permit inasmuch as there was no ordinance passed by the Sangguniang Bayan authorizing
the same.
On July 26, 1999, petitioner filed a complaint[5] against respondent Mayor with the Regional Trial Court of Pili, Camarines Sur,
Branch XXXI, which was docketed as Special Civil Action No. P-84-99, for Mandamus and Damages with Application for
Preliminary Mandatory Injunction. Respondent moved for the dismissal of the complaint.
A Resolution was issued by the trial court on January 27, 2000, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied. Let a writ of preliminary mandatory injunction issue
upon the posting of an injunction bond by the plaintiff in the amount of FIFTY THOUSAND PESOS (P50,000.00) executed to
defendant to stand for all the damages which she may sustain if it should be finally found that plaintiff is not entitled thereto, said
mandatory injunction ordering and commanding herein defendant, incumbent Mayor of the Municipality of Bula, Camarines Sur to
approve and issue forthwith the Mayors Permit and to accept the fees therefor for plaintiff to establish, maintain and operate a cockpit
in Cabaya, San Roque, Bula, Camarines Sur. Upon finality of this resolution, let the main case be set for further proceedings.
SO ORDERED.[6]
The writ of preliminary mandatory injunction was issued on February 1, 2000.[7]
Respondent filed a petition for certiorari and prohibition with the Court of Appeals, docketed as CA-G.R. SP No. 57797. [8] On
April 3, 2000, the Court of Appeals issued a temporary restraining order,[9] directing petitioner and the presiding judge to temporarily
cease and desist from enforcing the writ of preliminary mandatory injunction issued on February 1, 2000 in Special Civil Action No.
P-84-99.
On June 3, 2002, the Court of Appeals rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, the petition is granted and the questioned January 27, 2000 Resolution and February 1, 2000 writ of preliminary
mandatory injunction issued by respondent Judge are ANNULLED AND SET ASIDE while the writ of preliminary injunction
heretofore issued by this Court on July 10, 2000 is made permanent. No costs.
SO ORDERED.[10]
Petitioner filed a Motion for Reconsideration which was denied for lack of merit in a Resolution dated August 2002. [11]
Hence, this petition for review.
The core issue in this petition is whether or not respondent, in her capacity as Municipal Mayor, can be compelled to issue the
necessary business permit to petitioner absent a municipal ordinance which would empower her to do so.
The pertinent provision of law in contention is Section 447 (a) (3) (v) of the Local Government Code of 1991 (Republic Act No.
7160), which reads:
SEC. 447. Powers, Functions and Compensation. (a) The Sangguniang Bayan as the legislative body of the municipality shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under Section 22,
and shall:
xxx xxx xxx.
(3) Subject to the provisions of Book II of this Code, grant franchises, enact ordinances levying taxes, fees and charges upon such
conditions and for such purposes intended to promote the general welfare of the inhabitants of the municipality,and pursuant to this
legislative authority shall:
xxx xxx xxx.
(v) Any law to the contrary notwithstanding, authorize and license the establishment, operation and maintenance of cockpits and
regulate cockfighting and commercial breeding of gamecocks: Provided, That existing rights should not be prejudiced.
Petitioner admits that there is no ordinance in Bula, Camarines Sur which authorizes the grant of a mayors permit to operate and
maintain a cockfighting arena. However, he invokes Resolution No. 049, S. 1998, wherein the Sangguniang Bayan authorized him to
operate a cockpit. Furthermore, he cites Municipal Tax Ordinances Nos. 01, S. 1989, and 05, S. 1993, which generally provide for the
issuance of a mayors permit for the operation of businesses.
Municipal Tax Ordinances Nos. 01, S. 1989 and 05, S. 1993 contain general provisions for the issuance of business permits but
do not contain specific provisions prescribing the reasonable fees to be paid in theoperation of cockpits and other game fowl activities.
It was Ordinance No. 001, S. 1999 which provided for the collection of application filing fees, ocular inspection fees, mayors
permit fees, filing fees for the institution of complaints, entrance fees and special derby assessments for the operation of cockpits.
[12]
This Ordinance, however, was withdrawn by the Sangguniang Bayan.
Hence, there being in effect no ordinance allowing the operation of a cockpit, Resolution No. 049, S. 1998, authorizing petitioner
to establish, operate and maintain a cockpit in Bula, Camarines Sur cannot be implemented. Suffice it to state in this regard that to
compel respondent to issue the mayors permit would not only be a violation of the explicit provisions of Section 447 of the Local
Government Code of 1991, but would also be an undue encroachment on respondents administrative prerogatives.
Along the same vein, to read into the ordinances relied upon by petitioner objects which were neither specifically mentioned nor
enumerated would be to run afoul of the dictum that where a statute, by its terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. [13] In other words, it is a basic precept of statutory construction that the
express mention of one person, thing, act, or consequence excludes all others, as expressed in the oft-repeated maxim expression unius

est exlusio alterius.[14] Elsewise stated, expressium facit cessare tacitum what is expressed puts an end to what is implied. [15] The rule
proceeds from the premise that the legislative body would not have made specific enumerations in a statute, if it had the intention not
to restrict its meaning and confine its terms to those expressly mentioned.
Even on the assumption that there is in fact a legislative gap caused by such an omission, neither could the Court presume
otherwise and supply the details thereof, because a legislative lacuna cannot be filled by judicial fiat.[16] Indeed, courts may not, in the
guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An
omission at the time of the enactment, whether careless or calculated, cannot be judicially supplied however after later wisdom may
recommend the inclusion.[17] Courts are not authorized to insert into the law what they think should be in it or to supply what they
think the legislature would have supplied if its attention has been called to the omission. [18]
Courts should not, by construction, revise even the most arbitrary and unfair action of the legislature, nor rewrite the law to
conform with what they think should be the law.[19] Nor may they interpret into the law a requirement which the law does not
prescribe.[20] Where a statute contains no limitations in its operation or scope, courts should not engraft any. [21] And where a provision
of law expressly limits its application to certain transactions, it cannot be extended to other transactions by interpretation. [22] To do any
of such things would be to do violence to the language of the law and to invade the legislative sphere. [23]
It should, furthermore, be borne in mind that cockfighting although authorized by law is still a form of gambling. Gambling is
essentially antagonistic to the aims of enhancing national productivity and self-reliance. [24] As has been previously said, a statute
which authorizes a gambling activity or business should be strictly construed, and every reasonable doubt resolved so as to limit rather
than expand the powers and rights claimed by franchise holders under its authority.[25]
WHEREFORE, in view of all the foregoing, the petition is hereby DENIED for lack of merit. The Decision of the Court of
Appeals dated June 3, 2002 in CA-G.R. SP No. 57797 is AFFIRMED in toto.
SO ORDERED.

[G. R. No. 131512. January 20, 2000]

LAND TRANSPORTATION OFFICE [LTO], represented by Assistant Secretary Manuel F. Bruan, LTO Regional Office,
Region X represented by its Regional Director, Timoteo A. Garcia; and LTO Butuan represented by Rosita G. Sadiaga, its
Registrar, petitioners, vs. CITY OF BUTUAN, represented in this case by Democrito D. Plaza II, City Mayor, respondents.
DECISION
VITUG, J.:
The 1987 Constitution enunciates the policy that the territorial and political subdivisions shall enjoy local autonomy.[1] In obedience to
that, mandate of the fundamental law, Republic Act ("R.A.") No.7160, otherwise known as the Local Government Code, [2] expresses
that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy in order to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals,
and that it is a basic aim of the State to 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.
While the Constitution seeks to strengthen local units and ensure their viability, clearly, however, it has never been the intention of that
organic law to create an imperium in imperio and install an intra sovereign political subdivision independent of a single sovereign
state.
The Court is asked in this instance to resolve the issue of whether under the present set up the power of the Land Registration Office
("LTO") to register, tricycles in particular, as well as to issue licenses for the driving thereof, has likewise devolved to local
government units.
The Regional Trial Court (Branch 2) of Butuan City held:[3] that the authority to register tricycles, the grant of the corresponding
franchise, the issuance of tricycle drivers' license, and the collection of fees therefor had all been vested in the Local Government
Units ("LGUs"). Accordingly, it decreed the issuance of a permanent writ of injunction against LTO, prohibiting and enjoining LTO, as
well as its employees and other persons acting in its behalf, from (a) registering tricycles and (b) issuing licenses to drivers of
tricycles. The Court of Appeals, on appeal to it, sustained the trial court. Maniks
The adverse rulings of both the court a quo and the appellate court prompted the LTO to file the instant petition for review
on certiorari to annul and set aside the decision,[4] dated 17 November 1997, of the Court of Appeals affirming the permanent
injunctive writ order of the Regional Trial Court (Branch 2) of Butuan City.
Respondent City of Butuan asserts that one of the salient provisions introduced by the Local Government Code is in the area of local
taxation which allows LGUs to collect registration fees or charges along with, in its view, the corresponding issuance of all kinds of
licenses or permits for the driving of tricycles.
The 1987 Constitution provides:
"Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and
charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments." [5]
Section 129 and Section 133 of the Local Government Code read:
"SEC. 129. Power to Create Sources of Revenue. - Each local government unit shall exercise its power to create its
own sources of revenue and to levy taxes, fees, and charges subject to the provisions herein, consistent with the
basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local government units."

"SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. - Unless otherwise provided
herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the
levy of the following:
"xxx.......xxx.......xxx.
"(I) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds of licenses or
permits for the driving thereof, except tricycles."
Relying on the foregoing provisions of the law, the Sangguniang Panglungsod ("SP") of Butuan, on 16 August 1992, passed SP
Ordinance No.916-92 entitled "An Ordinance Regulating the Operation of Tricycles-for-Hire, providing mechanism for the issuance
of Franchise, Registration and Permit, and Imposing Penalties for Violations thereof and for other Purposes." The ordinance provided
for, among other things, the payment of franchise fees for the grant of the franchise of tricycles-for-hire, fees for the registration of the
vehicle, and fees for the issuance of a permit for the driving thereof. Manikan
Petitioner LTO explains that one of the functions of the national government that, indeed, has been transferred to local government
units is the franchising authority over tricycles-for-hire of the Land Transportation Franchising and Regulatory Board ("LTFRB") but
not, it asseverates, the authority of LTO to register all motor vehicles and to issue to qualified persons of licenses to drive such
vehicles.
In order to settle the variant positions of the parties, the City of Butuan, represented by its City Mayor Democrito D. Plaza, filed on 28
June 1994 with the trial court a petition for "prohibition, mandamus, injunction with a prayer for preliminary restraining order exparte" seeking the declaration of the validity of SP Ordinance No.962-93 and the prohibition of the registration of tricycles-for-hire
and the issuance of licenses for the driving thereof by the LTO.
LTO opposed the prayer in the petition.
On 20 March 1995, the trial court rendered a resolution; the dispositive portion read:
"In view of the foregoing, let a permanent injunctive writ be issued against the respondent Land Transportation
Office and the other respondents, prohibiting and enjoining them, their employees, officers, attorney's or other
persons acting in their behalf from forcing or compelling Tricycles to be registered with, and drivers to secure their
licenses from respondent LTO or secure franchise from LTFRB and from collecting fees thereon. It should be
understood that the registration, franchise of tricycles and driver's license/permit granted or issued by the City of
Butuan are valid only within the territorial limits of Butuan City.
"No pronouncement as to costs."[6]
Petitioners timely moved for a reconsideration of the above resolution but it was to no avail. Petitioners then appealed to the Court of
Appeals. In its now assailed decision, the appellate court, on 17 November 1997, sustained the trial court. It ruled:
"WHEREFORE, the petition is hereby DISMISSED and the questioned permanent injunctive writ issued by the
court a quo dated March 20, 1995 AFFIRMED."[7]
Coming up to this Court, petitioners raise this sole assignment of error, to wit: Oldmis o
"The Court of Appeals [has] erred in sustaining the validity of the writ of injunction issued by the trial court which
enjoined LTO from (1) registering tricycles-for-hire and (2) issuing licenses for the driving thereof since the Local
Government Code devolved only the franchising authority of the LTFRB. Functions of the LTO were not devolved
to the LGU's."[8]
The petition is impressed with merit.

The Department of Transportation and Communications[9] ("DOTC"), through the LTO and the LTFRB, has since been tasked with
implementing laws pertaining to land transportation. The LTO is a line agency under the DOTC whose powers and functions, pursuant
to Article III, Section 4 (d) (1),[10] of R.A. No.4136, otherwise known as Land Transportation and Traffic Code, as amended, deal
primarily with the registration of all motor vehicles and the licensing of drivers thereof. The LTFRB, upon the other hand, is the
governing body tasked by E.O. No. 202, dated 19 June 1987, to regulate the operation of public utility or "for hire" vehicles and to
grant franchises or certificates of public convenience ("CPC"). [11] Finely put, registration and licensing functions are vested in the LTO
while franchising and regulatory responsibilities had been vested in the LTFRB.
Under the Local Government Code, certain functions of the DOTC were transferred to the LGUs, thusly:
"SEC. 458. Powers, Duties, Functions and Compensation. - Ncm
"xxx.......xxx.......xxx
"(3) Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the
issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare
of the inhabitants of the city and pursuant to this legislative authority shall:
"xxx.......xxx.......xxx.
"(VI) Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the
operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city."
(Emphasis supplied)
LGUs indubitably now have the power to regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof.
"To regulate" means to fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; or to
subject to governing principles or laws.[12] A franchise is defined to be a special privilege to do certain things conferred by government
on an individual or corporation, and which does not belong to citizens generally of common right.[13] On the other hand, "to register"
means to record formally and exactly, to enroll, or to enter precisely in a list or the like,[14] and a "driver's license" is the certificate or
license issued by the government which authorizes a person to operate a motor vehicle. [15] The devolution of the functions of the
DOTC, performed by the LTFRB, to the LGUs, as so aptly observed by the Solicitor General, is aimed at curbing the alarming
increase of accidents in national highways involving tricycles. It has been the perception that local governments are in good position
to achieve the end desired by the law-making body because of their proximity to the situation that can enable them to address that
serious concern better than the national government.
It may not be amiss to state, nevertheless, that under Article 458 (a)[3-VI] of the Local Government Code, the power of LGUs to
regulate the operation of tricycles and to grant franchises for the operation thereof is still subject to the guidelines prescribed by the
DOTC. In compliance therewith, the Department of Transportation and Communications ("DOTC") issued "Guidelines to Implement
the Devolution of LTFRBs Franchising Authority over Tricycles-For-Hire to Local Government units pursuant to the Local
Government Code." Pertinent provisions of the guidelines state:
"In lieu of the Land Transportation Franchising and Regulatory Board (LTFRB) in the DOTC, the Sangguniang
Bayan/Sangguniang Panglungsod (SB/SP) shall perform the following:
"(a) Issue, amend, revise, renew, suspend, or cancel MTOP and prescribe the appropriate terms and conditions
therefor; Ncmmis
"xxx.......xxx.......xxx.
"Operating Conditions:

"1. For safety reasons, no tricycles should operate on national highways utilized by 4 wheel vehicles greater than 4
tons and where normal speed exceed 40 KPH. However, the SB/SP may provide exceptions if there is no alternative
routs.
"2. Zones must be within the boundaries of the municipality/city. However, existing zones within more than one
municipality/city shall be maintained, provided that operators serving said zone shall secure MTOP's from each of
the municipalities/cities having jurisdiction over the areas covered by the zone.
"3. A common color for tricycles-for-hire operating in the same zone may be imposed. Each unit shall be assigned
and bear an identification number, aside from its LTO license plate number.
"4. An operator wishing to stop service completely, or to suspend service for more than one month, should report in
writing such termination or suspension to the SB/SP which originally granted the MTOP prior thereto. Transfer to
another zone may be permitted upon application.
"5. The MTOP shall be valid for three (3) years, renewable for the same period. Transfer to another zone, change of
ownership of unit or transfer of MTOP shall be construed as an amendment to an MTOP and shall require
appropriate approval of the SB/SP.
"6. Operators shall employ only drivers duly licensed by LTO for tricycles-for-hire.
"7. No tricycle-for-hire shall be allowed to carry more passengers and/or goods than it is designed for.
"8. A tricycle-for-hire shall be allowed to operate like a taxi service, i.e., service is rendered upon demand and
without a fixed route within a zone."[16]
Such as can be gleaned from the explicit language of the statute, as well as the corresponding guidelines issued by DOTC, the newly
delegated powers pertain to the franchising and regulatory powers theretofore exercised by the LTFRB and not to the
functions of the LTO relative to the registration of motor vehicles and issuance of licenses for the driving thereof. Clearly
unaffected by the Local Government Code are the powers of LTO under R.A. No.4136 requiring the registration of all kinds of motor
vehicles "used or operated on or upon any public highway" in the country. Thus "SEC. 5. All motor vehicles and other vehicles must be registered. - (a) No motor vehicle shall be used or operated
on or upon any public highway of the Philippines unless the same is properly registered for the current year in
accordance with the provisions of this Act (Article 1, Chapter II, R.A. No. 4136). Scnc m
The Commissioner of Land Transportation and his deputies are empowered at anytime to examine and inspect such motor vehicles to
determine whether said vehicles are registered, or are unsightly, unsafe, improperly marked or equipped, or otherwise unfit to be
operated on because of possible excessive damage to highways, bridges and other infrastructures. [17] The LTO is additionally charged
with being the central repository and custodian of all records of all motor vehicles.[18]
The Court shares the apprehension of the Solicitor General if the above functions were to likewise devolve to local government units;
he states:
"If the tricycle registration function of respondent LTO is decentralized, the incidence of theft of tricycles will most
certainly go up, and stolen tricycles registered in one local government could be registered in another with ease. The
determination of ownership thereof will also become very difficult.
"Fake driver's licenses will likewise proliferate. This likely scenario unfolds where a tricycle driver, not qualified by
petitioner LTO's testing, could secure a license from one municipality, and when the same is confiscated, could just
go another municipality to secure another license.

"Devolution will entail the hiring of additional personnel charged with inspecting tricycles for road worthiness,
testing drivers, and documentation. Revenues raised from tricycle registration may not be enough to meet salaries of
additional personnel and incidental costs for tools and equipment."[19]
The reliance made by respondents on the broad taxing power of local government units, specifically under Section 133 of the Local
Government Code, is tangential. Police power and taxation, along with eminent domain, are inherent powers of sovereignty which the
State might share with local government units by delegation given under a constitutional or a statutory fiat. All these inherent powers
are for a public purpose and legislative in nature but the similarities just about end there. The basic aim of police power is public good
and welfare. Taxation, in its case, focuses on the power of government to raise revenue in order to support its existence and carry out
its legitimate objectives. Although correlative to each other in many respects, the grant of one does not necessarily carry with it the
grant of the other. The two powers are, by tradition and jurisprudence, separate and distinct powers, varying in their respective
concepts, character, scopes and limitations. To construe the tax provisions of Section 133(1) indistinctively would result in the repeal
to that extent of LTO's regulatory power which evidently has not been intended. If it were otherwise, the law could have just said so in
Section 447 and 458 of Book III of the Local Government Code in the same manner that the specific devolution of LTFRB's power on
franchising of tricycles has been provided. Repeal by implication is not favored.[20] The power over tricycles granted under Section
458(a)(3)(VI) of the Local Government Code to LGUs is the power to regulate their operation and to grant franchises for the operation
thereof. The exclusionary clause contained in the tax provisions of Section 133(1) of the Local Government Code must not be held to
have had the effect of withdrawing the express power of LTO to cause the registration of all motor vehicles and the issuance of
licenses for the driving thereof. These functions of the LTO are essentially regulatory in nature, exercised pursuant to the police power
of the State, whose basic objectives are to achieve road safety by insuring the road worthiness of these motor vehicles and the
competence of drivers prescribed by R. A. 4136. Not insignificant is the rule that a statute must not be construed in isolation but must
be taken in harmony with the extant body of laws.[21] Sdaa miso
The Court cannot end this decision without expressing its own serious concern over the seeming laxity in the grant of
franchises for the operation of tricycles-for-hire and in allowing the indiscriminate use by such vehicles on public highways
and principal thoroughfares. Senator Aquilino C. Pimentel, Jr., the principal author, and sponsor of the bill that eventually has
become to be known as the Local Government Code, has aptly remarked:
"Tricycles are a popular means of transportation, specially in the countryside. They are, unfortunately, being
allowed to drive along highways and principal thoroughfares where they pose hazards to their passengers
arising from potential collisions with buses, cars and jeepneys.
"The operation of tricycles within a municipality may be regulated by the Sangguniang Bayan. In this
connection, the Sangguniang concerned would do well to consider prohibiting the operation of tricycles along
or across highways invite collisions with faster and bigger vehicles and impede the flow of traffic." [22]
The need for ensuring public safety and convenience to commuters and pedestrians alike is paramount. It might be well, indeed, for
public officials concerned to pay heed to a number of provisions in our laws that can warrant in appropriate cases an incurrence of
criminal and civil liabilities. Thus The Revised Penal Code "Art. 208. Prosecution of offenses; negligence and tolerance. - The penalty of prision correccional in its minimum
period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the
duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law,
or shall tolerate the commission of offenses." Sdaad
The Civil Code "Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects,
without just cause, to perform his official duty may file an action for damages and other relief against the latter,
without prejudice to any disciplinary administrative action that may be taken."

"Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person
in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or
municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of
any criminal, proceedings, and a preponderance of evidence shall suffice to support such action."
"Art. 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by,
any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works
under their control or supervision."
The Local Government Code "Sec. 24. Liability for Damages. - Local government units and their officials are not exempt from liability for death
or injury to persons or damage to property."
WHEREFORE, the assailed decision which enjoins the Land Transportation Office from requiring the due registration of tricycles
and a license for the driving thereof is REVERSED and SET ASIDE.
No pronouncements on costs.
Let copies of this decision be likewise furnished the Department of Interior and Local Governments, the Department of Public Works
and Highways and the Department of Transportation and Communication.
SO ORDERED.

[G.R. No. 127820. July 20, 1998]

MUNICIPALITY OF PARAAQUE, petitioner, vs. V.M. REALTY CORPORATION, respondent.
DECISION
PANGANIBAN, J.:
A local government unit (LGU), like the Municipality of Paraaque, cannot authorize an expropriation of private property through
a mere resolution of its lawmaking body. The Local Government Code expressly and clearly requires an ordinance or a local law for
the purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice. On the other hand,
the principle of res judicata does not bar subsequent proceedings for the expropriation of the same property when all the legal
requirements for its valid exercise are complied with.
Statement of the Case
These principles are applied by this Court in resolving this petition for review on certiorari of the July 22, 1996 Decision[1] of the
Court of Appeals[2] in CA GR CV No. 48048, which affirmed in toto[3] the Regional Trial Courts August 9, 1994 Resolution.[4] The trial
court dismissed the expropriation suit as follows:
The right of the plaintiff to exercise the power of eminent domain is not disputed. However, such right may be exercised only pursuant
to an Ordinance (Sec. 19, R.A. No. 7160). In the instant case, there is no such ordinance passed by the Municipal Council of Paraaque
enabling the Municipality, thru its Chief Executive, to exercise the power of eminent domain. The complaint, therefore, states no cause
of action.
Assuming that plaintiff has a cause of action, the same is barred by a prior judgment. On September 29, 1987, the plaintiff filed a
complaint for expropriation involving the same parcels of land which was docketed as Civil Case No. 17939 of this Court (page 26,
record). Said case was dismissed with prejudice on May 18, 1988 (page 39, record). The order of dismissal was not appealed, hence,
the same became final. The plaintiff can not be allowed to pursue the present action without violating the principle of [r]es
[j]udicata. While defendant in Civil Case No. 17939 was Limpan Investment Corporation, the doctrine of res judicata still applies
because the judgment in said case (C.C. No. 17939) is conclusive between the parties and their successors-in-interest (Vda. de Buncio
vs. Estate of the late Anita de Leon). The herein defendant is the successor-in-interest of Limpan Investment Corporation as shown by
the Deed of Assignment Exchange executed on June 13, 1990.
WHEREFORE, defendants motion for reconsideration is hereby granted. The order dated February 4, 1994 is vacated and set aside.
This case is hereby dismissed. No pronouncement as to costs.
SO ORDERED.[5]
Factual Antecedents
Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993,[6] the Municipality of Paraaque filed on September 20,
1993, a Complaint for expropriation[7] against Private Respondent V.M. Realty Corporation over two parcels of land (Lots 2-A-2 and
2-B-1 of Subdivision Plan Psd-17917), with a combined area of about 10,000 square meters, located at Wakas, San Dionisio,
Paraaque, Metro Manila, and covered by Torrens Certificate of Title No. 48700. Allegedly, the complaint was filed for the purpose of
alleviating the living conditions of the underprivileged by providing homes for the homeless through a socialized housing project.
[8]
Parenthetically, it was also for this stated purpose that petitioner, pursuant to its Sangguniang Bayan Resolution No. 577, Series of
1991,[9] previously made an offer to enter into a negotiated sale of the property with private respondent, which the latter did not accept.
[10]

Finding the Complaint sufficient in form and substance, the Regional Trial Court of Makati, Branch 134, issued an Order dated
January 10, 1994,[11] giving it due course. Acting on petitioners motion, said court issued an Order dated February 4, 1994,
[12]
authorizing petitioner to take possession of the subject property upon deposit with its clerk of court of an amount equivalent to 15
percent of its fair market value based on its current tax declaration.
On February 21, 1994, private respondent filed its Answer containing affirmative defenses and a counterclaim, [13] alleging in the
main that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as
required by RA 7160 (the Local Government Code); and (b) the cause of action, if any, was barred by a prior judgment or res
judicata. On private respondents motion, its Answer was treated as a motion to dismiss. [14] On March 24, 1994,[15] petitioner filed its
opposition, stressing that the trial courts Order dated February 4, 1994 was in accord with Section 19 of RA 7160, and that the
principle of res judicata was not applicable.
Thereafter, the trial court issued its August 9, 1994 Resolution [16] nullifying its February 4, 1994 Order and dismissing the
case. Petitioners motions for reconsideration and transfer of venue were denied by the trial court in a Resolution dated December 2,
1994.[17] Petitioner then appealed to Respondent Court, raising the following issues:
1. Whether or not the Resolution of the Paraaque Municipal Council No. 93-95, Series of 1993 is a substantial compliance
of the statutory requirement of Section 19, R.A. 7180 [sic] in the exercise of the power of eminent domain by the
plaintiff-appellant.
2. Whether or not the complaint in this case states no cause of action.
3. Whether or not the strict adherence to the literal observance to the rule of procedure resulted in technicality standing in
the way of substantial justice.
4. Whether or not the principle of res judicata is applicable to the present case.[18]
As previously mentioned, the Court of Appeals affirmed in toto the trial courts Decision. Respondent Court, in its assailed
Resolution promulgated on January 8, 1997,[19] denied petitioners Motion for Reconsideration for lack of merit.
Hence, this appeal.[20]
The Issues
Before this Court, petitioner posits two issues, viz.:
1. A resolution duly approved by the municipal council has the same force and effect of an ordinance and will not deprive an
expropriation case of a valid cause of action.
2. The principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily involved. [21]
The Courts Ruling
The petition is not meritorious.
First Issue:
Resolution Different from an Ordinance
Petitioner contends that a resolution approved by the municipal council for the purpose of initiating an expropriation case
substantially complies with the requirements of the law [22] because the terms ordinance and resolution are synonymous for the purpose
of bestowing authority [on] the local government unit through its chief executive to initiate the expropriation proceedings in court in
the exercise of the power of eminent domain.[23]Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the Rules and

Regulations Implementing the Local Government Code, which provides: If the LGU fails to acquire a private property for public use,
purpose, or welfare through purchase, the LGU may expropriate said property through a resolution of the Sanggunian authorizing its
chief executive to initiate expropriation proceedings.[24] (Italics supplied.)
The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate the
exercise thereof to LGUs, other public entities and public utilities. [25] An LGU may therefore exercise the power to expropriate private
property only when authorized by Congress and subject to the latters control and restraints, imposed through the law conferring the
power or in other legislations.[26] In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays
down the parameters for its exercise. It provides as follows:
Section 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise
the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of
the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for
the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the
property. (Emphasis supplied)
Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain:
1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to
exercise the power of eminent domain or pursue expropriation proceedings over a particular private property.
2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the
landless.
3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent
laws.
4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer
was not accepted.[27]
In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the
municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. Petitioner
cites Camarines Sur vs. Court of Appeals [28] to show that a resolution may suffice to support the exercise of eminent domain by an
LGU.[29] This case, however, is not in point because the applicable law at that time was BP 337, [30] the previous Local Government
Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160,[31] the
present Local Government Code which was already in force when the Complaint for expropriation was filed, explicitly required an
ordinance for this purpose.
We are not convinced by petitioners insistence that the terms resolution and ordinance are synonymous. A municipal ordinance is
different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking
body on a specific matter.[32] An ordinance possesses a general and permanent character, but a resolution is temporary in
nature. Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but not for a resolution, unless
decided otherwise by a majority of all the Sanggunian members.[33]
If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the
language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local Government
Code, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance. Indeed, [l]egislative
intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is
applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either

impossible or absurd or would lead to an injustice. [34] In the instant case, there is no reason to depart from this rule, since the law
requiring an ordinance is not at all impossible, absurd, or unjust.
Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people.
Accordingly, the manifest change in the legislative language -- from resolution under BP 337 to ordinance under RA 7160 -demands a strict construction. No species of property is held by individuals with greater tenacity, and is guarded by the Constitution
and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right and, for greater
public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by
doubtful interpretation.[36]
[35]

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to
exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said rule which
merely seeks to implement it.[37] It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere
administrative rule issued for its implementation.Besides, what the discrepancy seems to indicate is a mere oversight in the wording of
the implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent domain, the chief
executive of the LGU must act pursuant to an ordinance.
In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the Constitution, which provides that
territorial and political subdivisions shall enjoy local autonomy. It merely upholds the law as worded in RA 7160. We stress that an
LGU is created by law and all its powers and rights are sourced therefrom. It has therefore no power to amend or act beyond the
authority given and the limitations imposed on it by law. Strictly speaking, the power of eminent domain delegated to an LGU is in
reality not eminent but inferior domain, since it must conform to the limits imposed by the delegation, and thus partakes only of a
share in eminent domain.[38] Indeed, the national legislature is still the principal of the local government units, which cannot defy its
will or modify or violate it.[39]
Complaint Does Not State a Cause of Action
In its Brief filed before Respondent Court, petitioner argues that its Sanguniang Bayan passed an ordinance on October 11, 1994
which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation. [40]
This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it did not
present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was
mentioned by private respondent, and only in passing. [41] In any event, this allegation does not cure the inherent defect of petitioners
Complaint for expropriation filed on September 23, 1993.It is hornbook doctrine that:
x x x in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted before the
court for determination is the sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is beside
the point, for their truth is hypothetically admitted by the motion. The issue rather is: admitting them to be true, may the court render a
valid judgment in accordance with the prayer of the complaint? [42]
The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a mere
resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently, the Court of
Appeals committed no reversible error in affirming the trial courts Decision which dismissed the expropriation suit.
Second Issue:
Eminent Domain Not Barred by Res Judicata
As correctly found by the Court of Appeals [43] and the trial court,[44] all the requisites for the application of res judicata are
present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject
matter and cause of action, which has been rendered by a court having jurisdiction over it.

Be that as it may, the Court holds that the principle of res judicata, which finds application in generally all cases and
proceedings,[45] cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent domain, as an
inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res
judicata. The scope of eminent domain is plenary and, like police power, can reach every form of property which the State might need
for public use.[46] All separate interests of individuals in property are held of the government under this tacit agreement or implied
reservation.Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the
government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the
property whenever the public interest requires it. [47] Thus, the State or its authorized agent cannot be forever barred from exercising
said right by reason alone of previous non-compliance with any legal requirement.
While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific
issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior
offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this
requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. [48] By the same
token, our ruling that petitioner cannot exercise its delegated power of eminent domain through a mere resolution will not bar it from
reinstituting similar proceedings, once the said legal requirement and, for that matter, all others are properly complied with.
Parenthetically and by parity of reasoning, the same is also true of the principle of law of the case. In Republic vs De Knecht,[49] the
Court ruled that the power of the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final
judgment over the property to be expropriated has become the law of the case as to the parties. The State or its authorized agent may
still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule otherwise
will not only improperly diminish the power of eminent domain, but also clearly defeat social justice.
WHEREFORE, the petition is hereby DENIED without prejudice to petitioners proper exercise of its power of eminent domain
over subject property. Costs against petitioner.
SO ORDERED.

SANDOVAL GUTIERREZ, J.:

Where the taking by the State of private property is done for the benefit of a small community which seeks to have its own sports and
recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be
considered to be for public use. Its expropriation is not valid. In this case, the Court defines what constitutes a genuine necessity for
public use.
This petition for review on certiorari assails the Decision[1] of the Court of Appeals dated October 31, 1997 in CA-G.R. SP No. 41860
affirming the Order[2] of the Regional Trial Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A. No. 873. Likewise assailed is
the Resolution[3] of the same court dated November 20, 1998 denying petitioners Motion for Reconsideration.
The facts of the case are:
Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an area of 4,521 square meters located at PagAsa, Caniogan, Pasig City, Metro Manila.
In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig, respondent, notified petitioner of its intention to
expropriate a 1,500 square meter portion of her property to be used for the sports development and recreational activities of the
residents of Barangay Caniogan. This was pursuant to Ordinance No. 42, Series of 1993 enacted by the then Sangguniang Bayan of
Pasig.
Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the purpose was allegedly in line with the
program of the Municipal Government to provide land opportunities to deserving poor sectors of our community.
On May 2, 1994, petitioner sent a reply to respondent stating that the intended expropriation of her property is unconstitutional,
invalid, and oppressive, as the area of her lot is neither sufficient nor suitable to provide land opportunities to deserving poor sectors of
our community.
In its letter of December 20, 1994, respondent reiterated that the purpose of the expropriation of petitioners property is to provide
sports and recreational facilities to its poor residents.
Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for expropriation, docketed as SCA No. 873.
Respondent prayed that the trial court, after due notice and hearing, issue an order for the condemnation of the property; that
commissioners be appointed for the purpose of determining the just compensation; and that judgment be rendered based on the report
of the commissioners.
On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following grounds:
I
PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE OF THE POWER OF EMINENT
DOMAIN, CONSIDERING THAT:
(A) THERE IS NO GENUINE NECESSITY FOR THE TAKING OF THE PROPERTY
SOUGHT TO BE EXPROPRIATED.
(B) PLAINTIFF HAS ARBITRARILY AND CAPRICIOUSLY CHOSEN THE
PROPERTY SOUGHT TO BE EXPROPRIATED.
(C) EVEN ASSUMING ARGUENDO THAT DEFENDANTS PROPERTY MAY BE
EXPROPRIATED BY PLAINTIFF, THE FAIR MARKET VALUE OF THE PROPERTY

TO BE EXPROPRIATED FAR EXCEEDS SEVENTY-EIGHT THOUSAND PESOS

(P78,000.00)

II
PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM AND SUBSTANCE, CONSIDERING THAT:
(A) PLAINTIFF FAILS TO ALLEGE WITH CERTAINTY THE PURPOSE OF THE
EXPROPRIATION.
(B) PLAINTIFF HAS FAILED TO COMPLY WITH THE PREREQUISITES LAID
DOWN IN SECTION 34, RULE VI OF THE RULES AND REGULATIONS
IMPLEMENTING THE LOCAL GOVERNMENT CODE; THUS, THE INSTANT
EXPROPRIATION PROCEEDING IS PREMATURE.
III
THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE SECTION 261 (V) OF THE
OMNIBUS ELECTION CODE.
IV
PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT PROPERTY BY MERELY
DEPOSITING AN AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF THE VALUE OF THE
PROPERTY BASED ON THE CURRENT TAX DECLARATION OF THE SUBJECT PROPERTY.[4]

On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss, [5] on the ground that there is a genuine necessity to
expropriate the property for the sports and recreational activities of the residents of Pasig. As to the issue of just compensation,
the trial court held that the same is to be determined in accordance with the Revised Rules of Court.
Petitioner filed a motion for reconsideration but it was denied by the trial court in its Order of July 31, 1996. Forthwith, it appointed
the City Assessor and City Treasurer of Pasig City as commissioners to ascertain the just compensation. This prompted petitioner to
file with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 41860. On October 31, 1997, the
Appellate Court dismissed the petition for lack of merit. Petitioners Motion for Reconsideration was denied in a Resolution dated
November 20, 1998.
Hence, this petition anchored on the following grounds:
THE
QUESTIONED DECISION DATED
31
OCTOBER
1997
(ATTACHMENT
A)
AND RESOLUTION DATED 20 NOVEMBER 1998 (ATTACHMENT B) ARE CONTRARY TO LAW,
THE RULES OF COURT AND JURISPRUDENCE CONSIDERING THAT:
I
A. THERE IS NO EVIDENCE TO PROVE THAT THERE IS GENUINE NECESSITY
FOR THE TAKING OF THE PETITIONERS PROPERTY.
B. THERE IS NO EVIDENCE TO PROVE THAT THE PUBLIC USE REQUIREMENT
FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN HAS BEEN
COMPLIED WITH.
C. THERE IS NO EVIDENCE TO PROVE THAT RESPONDENT CITY OF PASIG
HAS COMPLIED WITH ALL CONDITIONS PRECEDENT FOR THE
EXERCISE OF THE POWER OF EMINENT DOMAIN.

THE COURT A QUOS ORDER DATED 07 MAY 1996 AND 31 JULY 1996, WHICH WERE AFFIRMED
BY THE COURT OF APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF PETITIONERS
PROPERTY WITHOUT DUE PROCESS OF LAW:

II
THE COURT OF APPEALS GRAVELY ERRED IN APPLYING OF RULE ON
ACTIONABLE DOCUMENTS TO THE DOCUMENTS ATTACHED TO
RESPONDENT CITY OF PASIGS COMPLAINT DATED 07 APRIL 1995 TO JUSTIFY
THE COURT A QUOS DENIAL OF PETITIONERS RESPONSIVE PLEADING TO
THE COMPLAINT FOR EXPROPRIATION (THE MOTION TO DISMISS DATED 21
APRIL 1995).
III
THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE RULE ON
HYPOTHETICAL ADMISSION OF FACTS ALLEGED IN A COMPLAINT
CONSIDERING THAT THE MOTION TO DISMISS FILED BY PETITIONER IN THE
EXPROPRIATION CASE BELOW WAS THE RESPONSIVE PLEADING REQUIRED
TO BE FILED UNDER THE THEN RULE 67 OF THE RULES OF COURT AND NOT
AN ORIDNARY MOTION TO DISMISS UNDER RULE 16 OF THE RULES OF
COURT.

The foregoing arguments may be synthesized into two main issues one substantive and one procedural. We will first address the
procedural issue.
Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It was denied by the trial court on May 7,
1996. At that time, the rule on expropriation was governed by Section 3, Rule 67 of the Revised Rules of Court which provides:
SEC. 3. Defenses and objections. Within the time specified in the summons, each defendant, in lieu of an answer,
shall present in a single motion to dismiss or for other appropriate relief, all his objections and defenses to the right
of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and
defenses not so presented are waived. A copy of the motion shall be served on the plaintiffs attorney of record and
filed with the court with proof of service.

The motion to dismiss contemplated in the above Rule clearly constitutes the responsive pleading which takes the place of an answer
to the complaint for expropriation. Such motion is the pleading that puts in issue the right of the plaintiff to expropriate the defendants
property for the use specified in the complaint. All that the law requires is that a copy of the said motion be served on plaintiffs
attorney of record. It is the court that at its convenience will set the case for trial after the filing of the said pleading. [6]
The Court of Appeals therefore erred in holding that the motion to dismiss filed by petitioner hypothetically admitted the truth of the
facts alleged in the complaint, specifically that there is a genuine necessity to expropriate petitioners property for public use. Pursuant
to the above Rule, the motion is a responsive pleading joining the issues. What the trial court should have done was to set the case for
the reception of evidence to determine whether there is indeed a genuine necessity for the taking of the property, instead of summarily
making a finding that the taking is for public use and appointing commissioners to fix just compensation. This is especially so
considering that the purpose of the expropriation was squarely challenged and put in issue by petitioner in her motion to dismiss.
Significantly, the above Rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an answer was
amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that
any objection or defense to the taking of the property of a defendant must be set forth in an answer.

The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on October 31, after the 1997 Rules of Civil
Procedure took effect, is of no moment. It is only fair that the Rule at the time petitioner filed her motion to dismiss should govern.
The new provision cannot be applied retroactively to her prejudice.
We now proceed to address the substantive issue.
In the early case of US v. Toribio,[7] this Court defined the power of eminent domain as the right of a government to take and
appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing
a reasonable compensation therefor. It has also been described as the power of the State or its instrumentalities to take private property
for public use and is inseparable from sovereignty and inherent in government.[8]
The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof to local
government units, other public entities and public utility corporations, [9] subject only to Constitutional limitations. Local governments
have no inherent power of eminent domain and may exercise it only when expressly authorized by statute. [10] Section 19 of the Local
Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power of eminent domain to local
government units and lays down the parameters for its exercise, thus:
SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and
the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent
laws: Provided, however, That, the power of eminent domain may not be exercised unless a valid and definite offer
has been previously made to the owner and such offer was not accepted: Provided, further, That, the local
government unit may immediately take possession of the property upon the filing of expropriation proceedings and
upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid
for expropriated property shall be determined by the proper court, based on the fair market value at the time of the
taking of the property.
Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation,
(b) the necessity of the taking, and (c) the public use character of the purpose of the taking.[11]
In this case, petitioner contends that respondent City of Pasig failed to establish a genuine necessity which justifies the condemnation
of her property. While she does not dispute the intended public purpose, nonetheless, she insists that there must be a genuine necessity
for the proposed use and purposes. According to petitioner, there is already an established sports development and recreational activity
center at Rainforest Park in Pasig City, fully operational and being utilized by its residents, including those from Barangay Caniogan.
Respondent does not dispute this. Evidently, there is no genuine necessity to justify the expropriation.
The right to take private property for public purposes necessarily originates from the necessity and the taking must be limited to such
necessity. In City of Manila v. Chinese Community of Manila,[12] we held that the very foundation of the right to exercise eminent
domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must
precede or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law College,[13] we ruled that necessity
within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or
practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the
condemning party and the property owner consistent with such benefit.
Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to
expropriate petitioners property. Our scrutiny of the records shows that the Certification [14] issued by the Caniogan Barangay Council
dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the
intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of

Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and
recreational facility. Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public.
The necessity has not been shown, especially considering that there exists an alternative facility for sports development and
community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan.
The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has been written
into organic law of every nation where the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of ones
property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. Important
as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the property of the individual
requires not only that the purpose for the taking of private property be specified. The genuine necessity for the taking, which must be
of a public character, must also be shown to exist.
WHEREFORE, the petition for review is GRANTED. The challenged Decision and Resolution of the Court of Appeals in
CA-G.R. SP No. 41860 are REVERSED. The complaint for expropriation filed before the trial court by respondent City of Pasig,
docketed as SCA No. 873, is ordered DISMISSED.

SO ORDERED.

[G.R. No. 132431. February 13, 2004]

ESTATE OR HEIRS OF THE LATE EX-JUSTICE JOSE B. L. REYES represented by their Administratrix and Attorney-InFact, Adoracion D. Reyes, and the ESTATE OR HEIRS OF THE LATE DR. EDMUNDO A. REYES, represented by
MARIA TERESA P. REYES and CARLOS P. REYES, petitioners, vs. CITY OF MANILA, respondent.
[G.R. No. 137146. February 13, 2004]
ESTATE OF HEIRS OF THE LATE EX-JUSTICE JOSE B.L. REYES and ESTATE OR HEIRS OF THE LATE DR.
EDMUNDO REYES, petitioners, vs. COURT OF APPEALS, DR. ROSARIO ABIOG, ANGELINA MAGLONSO and
SAMPAGUITA BISIG NG MAGKAKAPITBAHAY, INC. and the CITY OF MANILA, respondents.
DECISION
CORONA, J.:
Before us are the following consolidated petitions filed by petitioners Heirs of Jose B.L. Reyes and Edmundo Reyes: (1) a
petition for review[1] of the decision[2] of the Court of Appeals dated January 27, 1998 which ordered the condemnation of petitioners
properties and reversed the order[3] of the Regional Trial Court (RTC) of Manila, Branch 9, dated October 3, 1995 dismissing the
complaint of respondent City of Manila (City) for expropriation, and (2) a petition for certiorari [4] alleging that the Court of Appeals
committed grave abuse of discretion in rendering a resolution [5] dated August 19, 1998 which issued a temporary restraining order
against the Municipal Trial Court (MTC) of Manila, Branch 10, not to (disturb) the occupancy of Dr. Rosario Abiog, one of the
members of SBMI, until the Supreme Court has decided the Petition for Review on Certiorari and aresolution [6] dated December 16,
1998 enjoining petitioners from disturbing the physical possession of all the properties subject of the expropriation proceedings.
The undisputed facts follow.
The records show that Jose B. L. Reyes and petitioners Heirs of Edmundo Reyes are the pro-indiviso co-owners in equal
proportion of 11 parcels of land with a total area of 13,940 square meters situated at Sta. Cruz District, Manila and covered by
Transfer Certificate of Title No. 24359 issued by the Register of Deeds of Manila. These parcels of land are being occupied and leased
by different tenants, among whom are respondents Abiog, Maglonso and members of respondent Sampaguita Bisig ng
Magkakapitbahay, Incorporated (SBMI). Petitioners leased to respondent Abiog Lot 2-E, Block 3007 of the consolidated subdivision
plan (LRC) Psd- 328345, with an area of 191 square meters [7] and to respondent Maglonso, Lot 2-R, Block 2996 of the same
consolidation plan, with an area of 112 square meters.[8]
On November 9, 1993 and May 26, 1994, respectively, Jose B.L. Reyes and petitioners Heirs of Edmundo Reyes filed ejectment
complaints against respondents Rosario Abiog and Angelina Maglonso, among others. Upon his death, Jose B.L. Reyes was
substituted by his heirs. Petitioners obtained favorable judgments against said respondents. In Civil Case No. 142851-CV, the
Metropolitan Trial Court (MTC) of Manila, Branch 10, rendered a decision dated May 9, 1994 against respondent Abiog. In Civil Case
No. 144205-CV, the MTC of Manila, Branch 3, issued judgment dated May 4, 1995 against respondent Maglonso.
Respondents Abiog and Maglonso appealed the MTC decisions but the same were denied [9] by the RTC of Manila, Branch 28,
and the RTC of Manila, Branch 38, respectively. Their appeals to the Court of Appeals were likewise denied. [10] As no appeals were
further taken, the judgments of eviction against respondents Abiog and Maglonso became final and executory in 1998.
Meanwhile, during the pendency of the two ejectment cases against respondents Abiog and Maglonso, respondent City filed on
April 25, 1995 a complaint for eminent domain (expropriation) [11] of the properties of petitioners at the RTC of Manila, Branch 9. The
properties sought to be acquired by the City included parcels of land occupied by respondents Abiog, Maglonso and members of
respondent SBMI.
The complaint was based on Ordinance No. 7818 enacted on November 29, 1993 authorizing the City Mayor of Manila to
expropriate certain parcels of land with an aggregate area of 9,930 square meters, more or less, owned by Jose B.L. Reyes and

Edmundo Reyes situated along the streets of Rizal Avenue, Tecson, M. Natividad, Sampaguita, Oroquieta, M. Hizon, Felix Huertes,
Bulacan, Sulu, Aurora Boulevard, Pedro Guevarra and Kalimbas in the third district of Manila. These parcels of land are more
particularly described in the pertinent Cadastral Plan as Lot 3, Block 2995, Lot 2, Block 2996; Lot 2, Block 2999; Lot 5, Block 2999,
and Lot 2, Block 3007. According to the ordinance, the said properties were to be distributed to the intended beneficiaries, who were
the occupants of the said parcels of land who (had) been occupying the said lands as lessees or any term thereof for a period of at least
10 years.[12]
The complaint alleged that, on March 10, 1995, respondent City thru City Legal Officer Angel Aguirre, Jr. sent the petitioners a
written offer to purchase the subject properties for P10,285,293.38 but the same was rejected. Respondent City prayed that an order be
issued fixing the provisional value of the property in the amount of P9,684,380 based on the current tax declaration of the real
properties and that it be authorized to enter and take possession thereof upon the deposit with the trial court of the amount
of P1,452,657 or 15% of the aforesaid value.
On May 15, 1995, respondent SBMI, a registered non-stock corporation composed of the residents of the subject properties
(including as well as representing herein respondents Abiog and Maglonso), filed a motion for intervention and admission of their
attached complaint with prayer for injunction. Respondent SBMI alleged that it had a legal interest over the subject matter of the
litigation as its members were the lawful beneficiaries of the subject matter of the case. It prayed for the issuance of a temporary
restraining order to enjoin the petitioners from ousting the occupants of the subject properties. The trial court denied the motion for
intervention in an order dated June 2, 1995 on the ground that the movants interest (was) indirect, contingent, remote, conjectual (sic),
consequential (sic) and collateral. At the very least, it (was), if it (existed) at all, purely inchoate, or in sheer expectancy of a right that
may or may not be granted.[13]
On the day SBMIs motion for intervention was denied, petitioners filed a motion to dismiss the complaint for eminent domain
for lack of merit. Among the grounds alleged were the following:
xxx that the amount allegedly deposited by the plaintiff is based on an erroneous computation since Sec. 19 of the Local Government
Code of 1991 provides that in order for the plaintiff to take possession of the property, the deposit should be at least 15% of the fair
market value of the property based on the current tax declaration of the property to be expropriated which is P19,619,520.00, 15% of
which is P2,942,928.00; that since the subject property is allegedly being expropriated for socialized housing, the guidelines for their
equitable valuation shall be set by the Department of Finance on the basis of the market value reflected in the zonal valuation
conformably to Sec. 13 of R.A. No. 7279; that under Department Order No. 33-93 adopted by the Department of Finance, through the
Bureau of Internal Revenue, on 26 April 1992, the zonal valuation of the subject property is conservatively estimated at
approximately P76M; that the plaintiff has no savings or unappropriated funds to pay for the just compensation; that instead of
expropriating the subject property which enjoys the least priority in the acquisition by the City of Manila for socialized housing under
Sec. 9(t) of R.A. 7279, the money to be paid should be channeled to the development of 244 sites in Metro Manila designated as area
for priority development; that the City Ordinance was not properly adopted since there was no public hearing and neither were the
defendants notified; that the tenants occupying the subject property cannot be categorized as underprivileged and homeless citizens or
those whose income falls within the poverty threshold to be qualified as beneficiaries of the intended socialized housing; and that the
plaintiff failed to comply with Art. 34, Rule 6 of the Rules and Regulations Implementing the Local Government Code of 1991 which
requires the local government unit to first establish the suitability of the property to be acquired for the use intended and then proceed
to obtain from the proper authorities, like the National Housing Authority, the necessary locational clearance and other requirements
imposed under existing laws, rules and regulations.[14]
On June 6, 1995, the trial court allowed respondent City to take possession of the subject property upon deposit of the amount
of P1,542,793, based on the P10,285,293.38 offer by respondent City to petitioners which the trial court fixed as the provisional
amount of the subject properties. On June 14, 1995, respondent City filed an opposition to petitioners motion to dismiss.
On October 3, 1995, the Citys complaint for eminent domain was dismissed. [15] The trial court held that expropriation was
inappropriate because herein petitioners were in fact willing to sell the subject properties under terms acceptable to the
purchaser. Moreover, respondent City failed to show that its offer was rejected by petitioners. Respondent Citys motion for
reconsideration was denied.
On January 12, 1996, respondent City appealed the decision of the trial court to the Court of Appeals. Thereafter, several
motions[16] seeking the issuance of a temporary restraining order and preliminary injunction were filed by respondent City to prevent

petitioners from ejecting the occupants of the subject premises. On March 21, 1996, the Court of Appeals issued a
resolution[17] denying the motions for lack of merit. Respondent Citys motion for reconsideration was likewise denied.
Meanwhile, on January 27, 1997, in view of the finality of the judgment in the ejectment case against respondent Abiog, the
MTC of Manila, Branch 10, issued a writ of execution.
On January 31, 1997, respondent SBMI filed in the Court of Appeals a motion for leave to intervene with prayer for injunctive
relief praying that the ejectment cases be suspended or that the execution thereof be enjoined in view of the pendency of the
expropriation case filed by respondent City over the same parcels of land.
As a follow-up, respondent Abiog filed in the appellate court, on August 25, 1997, a reiteratory motion for issuance of temporary
restraining order and to stop the execution of the order dated June 27, 1997 of the Hon. Judge Tranquil P. Salvador, MTC of Manila,
Branch 10.
On August 26, 1997, the Court of Appeals issued a resolution [18] finding prima facie basis to grant SBMIs motions. It issued a
temporary restraining order to Judge Salvador, his employees and agents to maintain thestatus quo. After the hearing on the propriety
of the issuance of a writ of preliminary injunction, respondent SBMI filed a reiteratory motion for injunctive relief on December 11,
1997.
On January 27, 1998, the Court of Appeals rendered the assailed decision reversing the trial court judgment and upholding as
valid respondent Citys exercise of its power of eminent domain over petitioners properties. The dispositive portion of the decision
stated:
WHEREFORE, the Orders appealed from are hereby REVERSED and SET ASIDE. The case is remanded to the lower court to
determine specifically the amount of just compensation.
SO ORDERED.[19]
According to the Court of Appeals:
xxx there is no doubt as to the public purpose of the plaintiff-appellant in expropriating the property of the defendantsappellees. Ordinance No. 7818 expressly states that the subject parcels of land are to be distributed to the landless poor residents
therein who have been in possession of the said property for at least ten (10) years.
xxx xxx xxx
xxx In the absence of any law which expressly provides for a period for filing an expropriation proceeding, the lower court erred in
dismissing the complaint based on unsupported accusations and mere speculations, such as political motivation. The fact that the
expropriation proceeding was not immediately instituted does not negate the existence of the public purpose for which the ordinance
was enacted.
Another reason for the lower courts dismissal was its finding that there was no proof that the offer of the plaintiff-appellant, through
the City Legal Office, was not accepted. This conclusion by the lower court is belied by the letter of Adoracion D. Reyes, dated 17
March 1995, xxx.
xxx xxx xxx
There can be no interpretation of the letter of the defendant-appellee other than that the valid and definite offer of the plaintiffappellant to purchase the subject property was not accepted and, in the words of the defendant-appellee, was totally turned down.
The lower court in denying the plaintiff-appellants motion for reconsideration of the order of dismissal held that the defendantsappellees were actually willing to sell, in fact, some of the tenants have already purchased the land that they occupy. However, we
agree with the plaintiff-appellant that the contracts entered into by the defendants-appellees with some of the tenants do not affect the

offer it made. The plaintiff-appellant was not a party in those transactions and as pointed out, its concern is the majority of those who
have no means to provide themselves with decent homes to live on.[20]
From the aforementioned decision of the Court of Appeals, petitioners filed on March 19, 1998 the present petition for
review[21] before this Court. Alleging that respondent City cannot expropriate the subject parcels of land, petitioners assigned the
following as errors of the Court of Appeals:
The Court Appeals committed grave abuse and irreversible errors in holding that respondent City of Manila may expropriate
petitioners parcels of land considering that:
I. Respondent did not comply with Secs. 9 and 10 of P.D. (sic) No. 7279, otherwise known as the Urban Development and
Housing Act of 1992 and Sec. 34 of the Local Government Code of 1991 (sic).
II. Ordinance No. 7818 enacted by the City of Manila is violative of the equal protection clause.
III. There was no valid and definite offer by the respondent City of Manila to purchase subject parcels of land.
IV. Assuming there was a valid offer, the amount deposited for the payment of just compensation was insufficient.
V. Petitioners are not unwilling to sell the subject parcels of land.
VI. There was no pronouncement as to just compensation. [22]
What followed were incidents leading to the filing of the petition for certiorari against the resolutions of the Court of Appeals
which essentially sought to enjoin the petitioners from enforcing the final judgments against respondents Abiog, Maglonso and SBMI
(hereinafter, respondent occupants) in the ejectment cases.
On August 17, 1998, respondents Abiog and Maglonso filed in the Court of Appeals an urgent motion for protective order.
Meanwhile, on September 8, 1998, petitioners were able to secure from the MTC of Manila, Branch 3, a writ of execution of the
final judgment in the other ejectment case against respondent Maglonso.
On October 19, 1998, respondent SBMI filed in the CA a similar motion for protective order. In essence, the respondents motions
for protective order sought to stop the execution of the final and executory judgments in the ejectment cases against them.
On August 19, 1998, the Court of Appeals promulgated the first assailed resolution,[23] the dispositive portion of which read:
Considering that this case has been elevated to the Supreme Court, the Municipal Trial Court of Manila, Branch 10 and Sheriff Jess
Areola or any other sheriff of the City of Manila, are hereby TEMPORARILY RESTRAINED from disturbing the occupancy of Dr.
Rosario Abiog, one of the members of the SBMI until the Supreme Court has decided the Petition for Review on Certiorari.
On September 4, 1998, petitioners filed a motion to set aside as ineffective and/or null and void the said August 19, 1998
resolution. But the Court of Appeals denied the same in a resolution dated December 16, 1998, [24] the dispositive portion of which
read:
WHEREFORE, the Estate or heirs of J.B.L. Reyes and all persons acting in their behalf are hereby ENJOINED from disturbing the
physical possession of all the properties (sic) subject of the expropriation proceedings.
SO ORDERED.
In enjoining the petitioners from evicting respondent occupants and in effect suspending the execution of the MTC judgments,
the appellate court held that:

We do not agree with the contention of the defendants-appellees that we no longer have any jurisdiction to issue the subject resolution.
In spite of having rendered the decision on 27 January 1998, the appellate Court still has the inherent power and discretion to amend
whatever order or decision it had made before in order to render substantial justice.
xxx xxx xxx
There is no doubt that the members of SBMI have a personality to intervene before this Court. The plaintiff-appellant itself, in their
Comment to the defendants-appellees motion to set aside this Courts 19 August 1998 resolution, recognized Dr. Rosario Abiog, as one
of the intended beneficiaries of the expropriation case. The plaintiff-appellant also enumerated the ejectment cases pending before the
lower courts when it filed a motion for the issuance of temporary restraining order and/or writ of preliminary injunction upon appeal
to this Court. Moreover, the plaintiff-appellant also furnished this Court with a copy of the THIRD PARTY CLAIM it filed before the
City Sheriff Office and Sheriff Dante Lot to enjoin them from implementing and executing the Demolition Order issued by the
Metropolitan Trial Court of Manila (Branch 3) against Angelina Maglonso.
In their motion to set aside the 19 August 1998 resolution, the defendants-appellees, quoting the Order of the lower court denying the
motion for intervention stated that:
The petition of the plaintiff to expropriate the property does not ipso facto create any fiat that would give rise to the claim of the
movant of legal interest in the property. The petition could well be denied leaving any assertion of interest on the part of the movant
absolutely untenable. If the petition, on the other hand, is granted, that would be the time for the movant to intervene, to show that
they are the intended beneficiaries, and if the plaintiff would distribute the property to other persons, the remedy is to compel the
plaintiff to deliver the lot to them.
Having established that they are the intended beneficiaries, the intervenors then have the right to seek protection from this Court.
On 27 January 1998, we held that the plaintiff-appellant validly exercised its power of eminent domain and consequently may
expropriate the subject property upon payment of just compensation. The record before us shows that on 6 June 1995, the lower court
allowed the plaintiff-appellant to take possession of the subject property upon filing of P1,542,793.00 deposit. The property to be
expropriated includes the same properties subject of the ejectment cases against the intervenors. There is nothing in the record that
would show that the order of possession was ever set aside or the deposit returned to the plaintiff-appellant.
Based on the foregoing considerations, we find that the intervenors are entitled to the injunction that they prayed for.
To allow the demolition of the premises of the intervenors would defeat the very purpose of expropriation which is to distribute the
subject property to the intended beneficiaries who are the occupants of the said parcels of land who have been occupying the said
lands as lessees or any term thereof for a period of at least ten (10) years.
In the case of Lourdes Guardacasa Vda. De Legaspi vs. Hon. Herminion A. Avendano, et al., the Supreme Court ordered the
suspension of the enforcement and implementation of the writ of execution and order of demolition issued in the ejectment case until
after the final termination of the action for quieting of title because it is more equitable and just and less productive of confusion and
disturbance of physical possession with all its concomitant inconvenience and expenses.
As held in Wilmon Auto Supply Corp., et al. vs. Hon. Court of Appeals, et al., the exception to the rule in the case of Vda. De Legaspi
case, execution of the decision in the ejectment case would also have meant demolition of the premises, which is the situation in the
case at bar.[25]
Claiming that the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction, petitioners
filed the subject petition for certiorari[26] with the following assignments of error:
I
PUBLIC RESPONDENT COURT OF APPEALS HAS NO JURISDICTION IN ISSUING THE PROTECTIVE ORDER
ENJOINING THE EXECUTION OF THE FINAL AND EXECUTORY JUDGMENTS IN THE EJECTMENT CASES AGAINST

PRIVATE RESPONDENTS BECAUSE THE POWER TO ISSUE SUCH ORDER HAS BEEN LODGED WITH THE
HONORABLE COURT IN VIEW OF THE PENDENCY OF G.R. NO. 132431.
II
ASSUMING ARGUENDO THAT PUBLIC RESPONDENT COURT OF APPEALS COULD ISSUE SUCH ORDER, IT ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
PROTECTIVE ORDER IN FAVOR OF PRIVATE RESPONDENTS BECAUSE IT HAS LONG BEEN SETTLED THAT THEIR
INTERESTS IN THE PROPERTIES SUBJECT OF THE EXPROPRIATION CASE ARE NOT SUFFICIENT FOR THEM TO BE
DECLARED AS INTERVENORS.
III
THE SO-CALLED PROTECTIVE ORDER IS AN INJUNCTIVE RELIEF IN DISGUISE.
IV
PRIVATE RESPONDENTS ACT OF SEEKING THE PROTECTIVE ORDER FROM THE COURT OF APPEALS, DESPITE THE
FINALITY OF THE ORDER BY THE TRIAL COURT DISALLOWING INTERVENTION, CONSTITUTES FORUM SHOPPING.
V
THE ASSAILED RESOLUTIONS OF THE COURT OF APPEALS SHOULD BE SET ASIDE, FOLLOWING THE RULING
IN FILSTREAM INTERNATIONAL, INC. VS. CA, JUDGE TONGCO AND THE CITY OF MANILA (G.R. NO. 125218, JANUARY 23,
1998) AND FILSTREAM INTERNATIONAL, INC. VS. CA, MALIT ET AL. (G.R. NO. 128077, JANUARY 23, 1998).[27]
In G.R. No 132431, petitioners allege: (1) that Ordinance 7818 is unconstitutional for violating the equal protection clause of the
1987 Constitution and for abridging the contracts between petitioners and prospective buyers of the subject parcels of land; (2) that, in
expropriating the subject properties, respondent Citys act of expropriation is illegal because it did not comply with Sections 9 and 10
of Republic Act No. 7279 (The Urban Development and Housing Act of 1992); (3) that, prior to the filing of the eminent domain
complaint, respondent City did not make a valid and definite offer to purchase the subject properties, and (4) that, assuming the offer
as valid, the amount offered was insufficient.[28]
On the other hand, in insisting that its offer was valid and that the amount it deposited was sufficient, respondent City reiterates
the reasons cited by the Court of Appeals. According to respondent City, there is nothing in the Local Government Code of 1991
which requires the offer to be made before enacting an enabling ordinance. The actual exercise of the power of eminent domain begins
only upon the filing of the complaint for eminent domain with the RTC by the Chief Executive and not when an ordinance pursuant
thereto has been enacted. It is therefore safe to say that the offer to purchase can be made before the actual filing of the complaint,
whether that is before or after the ordinance is enacted.
On the sufficiency of the amount deposited, respondent City alleges that the determination of the provisional value of the
property was judicially determined by the trial court at P10,285,293.38 in its order dated June 6, 1995. On the basis of this order,
respondent City filed its compliance dated June 13, 1995 manifesting the deposit of the additional amount of P1,452,793 (15%
of P10,285,293.38).
Respondent City also claims that all along petitioners were not willing to sell the subject parcels of land as proved by the tenor of
the letter of petitioners agent, Adoracion Reyes, who wrote respondent City that it is the consensus of the heirs xxx to turn down as we
are totally turning down your offer to purchase the parcels of land subject matter of the aforesaid ordinance, or your offer is not
acceptable to us in every respect.
In G.R. No. 137146 (the petition for certiorari questioning the resolutions of the Court of Appeals which issued a temporary
restraining order and ordered the parties to maintain the status quo), petitioners assail the resolutions of the Court of Appeals which in
effect enjoined the MTC of Manila, Branches 9 and 10, from enforcing the final judgments in the ejectment cases while the appeal

from the decision involving the same parcels of land in the expropriation case remains pending before this Court. Petitioners maintain
that, first, only this Court and not the Court of Appeals has jurisdiction to enjoin the execution of the judgments in the ejectment cases
considering that the expropriating case is now being reviewed by this Court; second, the orders are void as they protect an alleged
right that does not belong to respondent City but to a non-party in the expropriation case; third, said orders deprive petitioners of their
property without due process of law because they amount to a second temporary restraining order which is expressly prohibited by
Section 5, Rule 58 of the Rules of Court [29]; last, petitioners brand respondent occupants act of seeking the assailed protective order,
despite the finality of the trial court order disallowing intervention, as forum-shopping.
To justify the propriety of their intervention and the legality of the assailed resolutions, respondent occupants aver the following:
first, Section 9(1)[30] of BP 129 (The Judiciary Reorganization Act of 1980) is broad enough to include protective orders. If the Court
of Appeals has the power to annul judgments of the RTC, with more reason does it have the power to annul judgments of the MTC.
second, as the undisputed rightful beneficiaries of the expropriation, they have the right to intervene.
third, their right to intervene has never been barred with finality. Due to the dismissal of the complaint for expropriation, their motion
for reconsideration of the trial court order denying their motion to intervene was never ruled upon as it became moot and academic.
The trial courts silence does not mean a denial of the intervention and injunction that respondent occupants prayed for.
fourth, it is more appropriate in the interest of equity and justice to preserve the status quo pending resolution by this Court of
petitioners appeal in the expropriation case because they are anyway the beneficiaries of the subject properties. The expropriation case
should be considered as a supervening event that necessitated a modification, suspension or abandonment of the MTC decisions.
fifth, respondents are not guilty of forum-shopping for the reason that the Court of Appeals never made a ruling or decision on
respondents motion to intervene. Moreover, the causes of action in the two cases were different and distinct from each other. In the
motion to intervene, respondent occupants sought to be recognized and included as parties to the expropriation case. On the other
hand, in the motion for protective order, respondents sought to enjoin the execution of the decisions in the ejectment cases against
them.
Before proceeding to the discussion of the issues, it would be best to first recapitulate the confusing maze of facts of this case.
It is not disputed that the petitioners acquired a favorable judgment of eviction against herein respondents Abiog and Maglonso.
In 1998, the said judgments became final and executory. Consequently, writs of execution were issued. During the pendency of the
complaints for unlawful detainer, respondent City filed a case for the expropriation of the same properties involved in the ejectment
cases. From thereon, numerous motions to intervene and motions for injunction were filed in the expropriation case by respondents.
The trial court allowed respondent City to take possession of the property; it denied the motions for intervention and injunction, and,
after allowing respondent City to oppose the motion to dismiss, dismissed the complaint for expropriation. On appeal, the Court of
Appeals reversed the trial court and found that respondent City properly exercised its right to expropriate the subject properties.
Petitioners appealed the CA decision to this Court. Thereafter, on motion of respondent occupants, the Court of Appeals issued
protective orders that required the parties to maintain the status quo (prohibiting any ejectment) pending this Courts resolution of the
appeal.
Petitioner is now before us questioning the legality of the CAs expropriation order and the propriety of its act enjoining the
execution of the final judgments in the ejectment cases.
With these given facts, it is imperative to first resolve the issue of whether the respondent City may legally expropriate the
subject properties, considering that a negative finding will necessarily moot the issue of the propriety of the protective orders of the
Court of Appeals.
Whether respondent City deprived petitioners of their property without due process of law depends on whether the City complied
with the legal requirements for expropriation. Before respondent City can exercise its power of eminent domain, the same must be
sanctioned and must not violate any law. Being a mere creation of the legislature, a local government unit can only exercise powers
granted to it by the legislature. Such is the nature of the constitutional power of control of Congress over local government units, the
latter being mere creations of the former.[31]

When it expropriated the subject properties, respondent City relied on its powers granted by Section 19 of the Local Government
Code of 1991[32] and RA 409 (The Revised Charter of the City of Manila). The latter specifically gives respondent City the power to
expropriate private property in the pursuit of its urban land reform and housing program. [33] Respondent City, however, is also
mandated to follow the conditions and standards prescribed by RA 7279 (the Urban Development and Housing Act of 1992), the law
governing the expropriation of property for urban land reform and housing. Sections 9 and 10 of RA 7279 specifically provide that:
Sec. 9. Priorities in the acquisition of Land Lands for socialized housing shall be acquired in the following order:
(a) Those owned by the Government or any of its sub-divisions, instrumentalities, or agencies, including governmentowned or controlled corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section
shall not apply. The local government units shall give budgetary priority to on-site development of government lands.
Sec. 10. Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include, among others, community
mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement,
negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of
acquisition have been exhausted: Provided further, That where expropriation is resorted to, parcels of land owned by small property
owners shall be exempted for purposes of this Act: Provided, finally, that abandoned property, as herein defined, shall be reverted and
escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court. [italics supplied]
In Filstream vs. Court of Appeals,[34] we held that the above-quoted provisions are limitations to the exercise of the power of
eminent domain, specially with respect to the order of priority in acquiring private lands and in resorting to expropriation proceedings
as a means to acquire the same. Private lands rank last in the order of priority for purposes of socialized housing. In the same
vein, expropriation proceedings are to be resorted to only after the other modes of acquisition have been exhausted .
Compliance with these conditions is mandatory because these are the only safeguards of oftentimes helpless owners of private
property against violation of due process when their property is forcibly taken from them for public use.
We find that herein respondent City failed to prove strict compliance with the requirements of Sections 9 and 10 of RA 7279.
Respondent City neither alleged in its complaint nor proved during the proceedings before the trial court that it complied with said
requirements. Even in the Court of Appeals, respondent City in its pleadings failed to show its compliance with the law. The Court of
Appeals was likewise silent on this specific jurisdictional issue. This is a clear violation of the right to due process of the petitioners.
We also take note of the fact that Filstream is substantially similar in facts and issues to the case at bar.
In that case, Filstream acquired a favorable judgment of eviction against the occupants of its properties in Tondo, Manila. But
prior thereto, on the strength of Ordinance 7818 (the same ordinance used by herein respondent City as basis to file the complaint for
eminent domain), respondent City initiated a complaint for expropriation of Filstreams properties in Tondo, Manila, for the benefit of
the residents thereof. Filstream filed a motion to dismiss and the City opposed the same. The trial court denied the motion. When the
judgment in the ejectment case became final, Filstream was able to obtain a writ of execution and demolition. It thereafter filed a
motion to dismiss the expropriation complaint but the trial court denied the same and ordered the condemnation of the subject

properties. On appeal, the Court of Appeals denied Filstreams petition on a technical ground. Thus, the case was elevated to this Court
for review of the power of the City to expropriate the Filstreams properties.
Meanwhile, the occupants and respondent City filed in separate branches of the RTC of Manila several petitions for certiorari
with prayer for injunction to prevent the execution of the judgments in the ejectment cases. After the consolidation of the petitions
for certiorari, the designated branch of RTC Manila dismissed the cases on the ground of forum-shopping. The dismissal was
appealed to the Court of Appeals which reversed the trial courts dismissal and granted respondents prayer for injunction. Filstream
appealed the same to this Court, which appeal was consolidated with the earlier petition for review of the decision of the Court of
Appeals in the main expropriation case.
Due to the substantial resemblance of the facts and issues of the case at bar to those in Filstream, we find no reason to depart
from our ruling in said case. To quote:
The propriety of the issuance of the restraining order and the writ of preliminary injunction is but a mere incident to the actual
controversy which is rooted in the assertion of the conflicting rights of the parties in this case over the disputed premises. In order to
determine whether private respondents are entitled to the injunctive reliefs granted by respondent CA, we deemed it proper to extract
the source of discord.
xxx xxx xxx
Proceeding from the parameters laid out in the above disquisitions, we now pose the crucial question: Did the city of Manila comply
with the abovementioned conditions when it expropriated petitioner Filstreams properties? We have carefully scrutinized the records
of this case and found nothing that would indicate the respondent City of Manila complied with Sec. 9 and Sec. 10 of R.A.
7279. Petitioners Filstreams properties were expropriated and ordered condemned in favor of the City of Manila sans any showing that
resort to the acquisition of other lands listed under Sec. 9 of RA 7279 have proved futile. Evidently, there was a violation of petitioner
Filstreams right to due process which must accordingly be rectified.
Indeed, it must be emphasized that the State has a paramount interest in exercising its power of eminent domain for the general good
considering that the right of the State to expropriate private property as long as it is for public use always takes precedence over the
interest of private property owners. However we must not lose sight of the fact that the individual rights affected by the exercise of
such right are also entitled to protection, bearing in mind that the exercise of this superior right cannot override the guarantee of due
process extended by the law to owners of the property to be expropriated. In this regard, vigilance over compliance with the due
process requirements is in order.[35]
Due to the fatal infirmity in the Citys exercise of the power of eminent domain, its complaint for expropriation must necessarily
fail. Considering that the consolidated cases before us can be completely resolved by the application of our Filstream ruling, it is
needless to discuss the constitutionality of Ordinance 7818. We herein apply the general precept that constitutional issues will not be
passed upon if the case can be decided on other grounds.[36]
In view of the dismissal of the complaint for expropriation and the favorable adjudication of petitioners appeal from the decision
of the Court of Appeals on the expropriation of the subject properties, the petition forcertiorari questioning the validity of the Court of
Appeals resolutions (allowing respondent occupants to intervene and granting their motion to enjoin the execution of the executory
judgments in the ejectment cases) becomes moot and academic.
WHEREFORE, the petitions are hereby GRANTED. In G.R. No. 132431, the decision of the Court of Appeals dated January
27, 1998 is hereby REVERSED and SET ASIDE. In G.R. No. 137146, the resolutions of the Court of Appeals dated August 19, 1998
and December 16, 1998 are hereby REVERSED and SET ASIDE.
SO ORDERED.