EN BANC G.R. No. L-33885 March 3, 1931 EMILIANO ORTIZ, plaintiff-appellant, vs. JUAN POSADAS, Jr.

, Collector of Internal Revenue, ET AL.,defendants-appellees. Calleja and Sierra for appellant. Attorney-General Jaranilla for appellees. MALCOLM, J.: Seven of the thirteen members present, including the president, of the municipal council of Tabaco, Albay, voted in favor of Ordinance No. 25, concerning cockpits, and six members voted against the ordinance, with three members absent. Is the ordinance valid? One judge of first instance of the province held that it was valid, while another judge of first instance of the province held an ordinance enacted under similar circumstances invalid. Section 224 of the Administrative Code reads as follows: SEC. 2224. Journal of Proceedings Majorities necessary for transaction of business. The council shall keep a journal of its own proceedings. The ayes and noes shall be taken upon the passage of all ordinances, upon all propositions to create any liability against the municipality, and upon any other proposition, upon the request of any member, and they shall be entered upon the journal. The affirmative vote of a majority of all the members of the municipal council shall be necessary to the passage of any ordinance or of any proposition creating indebtedness; but other measures, except as otherwise specially provided, shall prevail upon the majority vote of the members present at any meeting duly called and held. The law is clear. It needs only application, not interpretation. While the Spanish text may be ambiguous, the English text which governs is not. The law is entirely consistent in context. The ayes and noes are taken upon (1) the passage of all ordinances, (2) all propositions to create any liability against the municipality, and (3) any other proposition, upon the request of any member. The same idea is carried into the succeeding sentence. For the passage of (1) any ordinance or (2) any proposition creating indebtedness , the affirmative vote of a majority of all the members of the municipal council shall be necessary. Other measures prevail upon the majority vote of the members present "Creating indebtedness" refers to "proposition" and not to "ordinance." The contention that only ordinances creating indebtedness require the approval of a majority of all the members of the municipal council, is devoid of merit. Corroborative authority is really superfluous. Nevertheless we would invite attention to the case of McLean vs. City of East St. Louis ([1906], 222 Ill., 510). Section 13 of the Act for the incorporation of cities and villages in the State of Illinois provided: "The yeas and nays shall be taken upon the passage of all ordinances and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, and in all other cases at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: Provided, it shall require two-thirds of all the aldermen elect to sell any city or school property" Commenting on this provision of law, the Supreme Court of Illinois, through Justice Cartwright, observed:

Some of the counsel for appellee argue that section 13 relates only to ordinances and propositions creating a liability against a city or providing for the expenditure or appropriation of its money, and that all other ordinances may be passed by a majority of a quorum. They say that it is not unusual for courts, in the construction of statutes, to substitute one word for another where the plain meaning of the statute will justify it, and that by eliminating some words and substituting others this section will express what they think was the intention of the legislature. It is the rule that where the intention of the legislature is ascertained with reasonable certainty and it appears that words have been used inconsistent with such intention, a word erroneously used for another may be eliminated and the proper word substituted. Where the context affords the means of correcting a mistake in the use of language, the correction may be made for the purpose of giving effect to the intention plainly manifested in the act as a whole. But we do not agree with the theory that the legislature, in this instance, intended to limit the requirement of a majority vote to ordinances creating a liability or appropriating money. In our opinion, to make the changes suggested would be merely juggling with the words of the statute to give it a different meaning from that which was intended. The law requires that the yeas and nays shall be taken upon the passage of all ordinances, and the concurrence of a majority of the legislative body is necessary to their passage. We recognized that construction of the statute in Hibbard & Co.vs. City of Chicago, 173 Ill., 91. If a proposition not in the form of an ordinance creates any liability or provides for the expenditure or appropriation of money, the requirement is the same, while as to other propositions, whether the yeas and nays are entered upon the journal or not, the majority of a quorum is sufficient. The basic idea of the legislative body to make impossible the approval of ordinances or of propositions creating indebtedness by minority votes of municipal councils, at meetings hastily called is wise. Legislative intention should be effectuated. Section 2224 of the Administrative Code, requiring in mandatory language the affirmative vote of a majority of all the members of the municipal council for the passage of any ordinance, whether or not an ordinance creating indebtedness, an ordinance passed by less than that majority is invalid. Ordinance No. 25 of Tabaco, Albay, is void. Agreeable to the foregoing, the judgment appealed from will be reversed and in the court of origin another judgment will issue in favor of the plaintiff and against the defendants for the sum of P400, with the costs of both instances against the municipality of Tabaco, Albay. Avancea, C.J., Johnson, Street, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

EN BANC [G.R. No. 118127. April 12, 2005] CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as ViceMayor of the City of Manila and Presiding Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C.

OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of Manila, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, respondents. DECISION TINGA, J.: I know only that what is moral is what you feel good after and what is immoral is what you feel bad after. Ernest Hermingway Death in the Afternoon, Ch. 1 It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if performed by someone else, who would be well-intentioned in his dishonesty. J. Christopher Gerald Bonaparte in Egypt, Ch. I The Courts commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not hesitate to make the hammer fall, and heavily in the words of Justice Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the test of constitutionality. The pivotal issue in this Petition under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court), is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila. The antecedents are as follows: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a hotel. On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order (RTC Petition)with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. Enacted by the City Council on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the said Ordinance is entitled

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. The Ordinance is reproduced in full, hereunder: SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to: 1. Sauna Parlors 2. Massage Parlors 3. Karaoke Bars 4. Beerhouses 5. Night Clubs 6. Day Clubs 7. Super Clubs 8. Discotheques 9. Cabarets 10. Dance Halls 11. Motels 12. Inns SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of business enumerated in the preceding section. SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area, such as but not limited to: 1. Curio or antique shop 2. Souvenir Shops 3. Handicrafts display centers 4. Art galleries 5. Records and music shops 6. Restaurants 7. Coffee shops 8. Flower shops 9. Music lounge and sing-along restaurants, with welldefined activities for wholesome family entertainment that cater to both local and foreign clientele. 10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like. 11. Businesses allowable within the law and medium intensity districts as provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral establishments. SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by imprisonment

of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-incharge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises of the erring establishment shall be closed and padlocked permanently. SEC. 5. This ordinance shall take effect upon approval. Enacted by the City Council of Manila at its regular session today, March 9, 1993. Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied) In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments, motels and inns such as MTDCs Victoria Court considering that these were not establishments for amusement or entertainment and they were not services or facilities for entertainment, nor did they use women as tools for entertainment, and neither did they disturb the community, annoy the inhabitants or adversely affect the social and moral welfare of the community. MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv) of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.) No. 499 which specifically declared portions of the Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of police power as the compulsory closure of the motel business has no reasonable relation to the legitimate municipal interests sought to be protected; (4) TheOrdinance constitutes an ex post facto law by punishing the operation of Victoria Court which was a legitimate business prior to its enactment; (5) The Ordinanceviolates MTDCs constitutional rights in that: (a) it is confiscatory and constitutes an invasion of plaintiffs property rights; (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area but not outside of this area. In their Answer dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the power to prohibit certain forms of entertainment in order to protect the social and moral welfare of the community as provided for in Section 458 (a) 4 (vii) of the Local Government Code, which reads, thus: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: ....

(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: .... (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Citing Kwong Sing v. City of Manila, petitioners insisted that the power of regulation spoken of in the above-quoted provision included the power to control, to govern and to restrain places of exhibition and amusement. Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of Republic Act No. 409, otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila) which reads, thus: ARTICLE III THE MUNICIPAL BOARD . . . Section 18. Legislative powers. The Municipal Board shall have the following legislative powers: . . . (kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment, for a single offense. Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the burden to prove its illegality or unconstitutionality. Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the ErmitaMalate area to remain a commercial zone. The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in operation. The Ordinance also did not infringe the equal protection clause and cannot be denounced as class legislation as there existed substantial and real differences between the Ermita-Malate area and other places in the City of Manila. On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance. And on 16 July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC. After trial, on 25 November 1994, Judge Laguio rendered the assailedDecision, enjoining the petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this Court against the defendant. No costs. SO ORDERED. Petitioners filed with the lower court a Notice of Appeal on 12 December 1994, manifesting that they are elevating the case to this Court under then Rule 42 on pure questions of law. On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding that the questioned Ordinance contravenes P.D. 499 which allows operators of all kinds of commercial establishments, except those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional. In the Petition and in its Memorandum, petitioners in essence repeat the assertions they made before the lower court. They contend that the assailedOrdinance was enacted in the exercise of the inherent and plenary power of the State and the general welfare clause exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. They allege that the Ordinanceis a valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity. In its Memorandum dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid exercise of police power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions. This is an opportune time to express the Courts deep sentiment and tenderness for the Ermita-Malate area being its home for several decades. A long-time resident, the Court witnessed the areas many turn of events. It relished its glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore null and void. The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless. The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but

may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the laws. The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. This relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation. This delegated police power is found in Section 16 of the Code, known as the general welfare clause, viz: SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and selfreliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. Local government units exercise police power through their respective legislative bodies; in this case, the sangguniang panlungsod or the city council. The Code empowers the legislative bodies to enact ordinances, approve resolutions and appropriate funds for the general welfare of the province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the province/city/ municipality provided under the Code. The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. The Ordinance contravenes the Constitution The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good. In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The relevant constitutional provisions are the following: SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general

welfare are essential for the enjoyment by all the people of the blessings of democracy. SEC. 14. The State recognizes the role of women in nationbuilding, and shall ensure the fundamental equality before the law of women and men. SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws. Sec. 9. Private property shall not be taken for public use without just compensation. A. The Ordinance infringes the Due Process Clause The constitutional safeguard of due process is embodied in the fiat (N)o person shall be deprived of life, liberty or property without due process of law. . . . There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice, and as such it is a limitation upon the exercise of the police power. The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit of the general law. The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are persons within the scope of the guaranty insofar as their property is concerned. This clause has been interpreted as imposing two separate limits on government, usually called procedural due process and substantive due process. Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action. Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a persons life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the governments action. Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used. For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose. The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically

as its exercise is subject to a qualification, limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property. Requisites for the valid exercise of Police Power are not met To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights a violation of the due process clause. The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the ErmitaMalate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila had already taken judicial notice of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrillseekers. The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Councils police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals and the eradication of the communitys social ills can be achieved through means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses allowed under theOrdinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.

Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like which the City Council may lawfully prohibit, it is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply because there are no pure places where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence and universality of sin in mans history. The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only be purged of its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the authorities. The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. While petitioners earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of wholesome, innocent establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. Means employed are constitutionally infirm

The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area. Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the premises of the erring establishment shall be closed and padlocked permanently. It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a persons fundamental right to liberty and property. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare. In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty. The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of liberty. It said: While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognizedas essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of liberty must be broad indeed. In another case, it also confirmed that liberty protected by the due process clause includes personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court explained: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define ones own concept of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under compulsion of the State. Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of the Ordinance may seek autonomy for these purposes. Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premisesbe it stressed that

their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception. Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedomit is the most comprehensive of rights and the right most valued by civilized men. The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc,borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized inMorfe, the invasion of which should be justified by a compelling state interest.Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen. There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their choice. Modality employed is unlawful taking In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property. The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation. It is intrusive and violative of the private property rights of individuals. The Constitution expressly provides in Article III, Section 9, that private property shall not be taken for public use without

just compensation. The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a persons property to benefit society, then society should pay. The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. There are two different types of taking that can be identified. A possessory taking occurs when the government confiscates or physically occupies property. A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property. In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also could be found if government regulation of the use of property went too far. When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to support the act. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was a question of degree and therefore cannot be disposed of by general propositions. On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness require that the economic loss caused by public action must be compensated by the government and thus borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action. What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. A regulation that permanently denies all economically beneficial or productive use of land is, from the owners point of view, equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking. A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulations economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A restriction on use of property may also constitute a taking if not reasonably necessary to the effectuation of a

substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner. The Ordinance gives the owners and operators of the prohibited establishments three (3) months from its approval within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area. The directive to wind up business operations amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to accommodate an allowed business, the structure which housed the previous business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire establishment idle. Consideration must be given to the substantial amount of money invested to build the edifices which the owner reasonably expects to be returned within a period of time. It is apparent that theOrdinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a taking of private property. The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. The proffered solution does not put an end to the problem, it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation. The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole. Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of justice as we know them. The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking. Distinction should be made between destruction from necessity and eminent domain. It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome. If it be of public benefit that a wholesome property remain unused or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private property for public use.

Further, the Ordinance fails to set up any standard to guide or limit the petitioners actions. It in no way controls or guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured. Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions. Thus, in Coates v. City of Cincinnati, as cited in People v. Nazario, the U.S. Supreme Court struck down an ordinance that had made it illegal for three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by. The ordinance was nullified as it imposed no standard at all because one may never know in advance what annoys some people but does not annoy others. Similarly, the Ordinance does not specify the standards to ascertain which establishments tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community. The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out its provisions. Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property. Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the illconsidered Ordinance enacted by the City Council. In FW/PBS, INC. v. Dallas, the city of Dallas adopted a comprehensive ordinance regulating sexually oriented businesses, which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance required that such businesses be licensed. A group of motel owners were among the three groups of businesses that filed separate suits challenging the ordinance. The motel owners asserted that the city violated the due process clause by failing to produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted in increased crime and other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered, was adequate to support the citys determination that motels

permitting room rentals for fewer than ten (10 ) hours should be included within the licensing scheme. As regards the second point, the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs. The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable restrictions; hence, its validity was upheld. The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, it needs pointing out, is also different from this case in that what was involved therein was a measure which regulated the mode in which motels may conduct business in order to put an end to practices which could encourage vice and immorality. Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not prohibit motels. TheOrdinance in this case however is not a regulatory measure but is an exercise of an assumed power to prohibit. The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising police power, be upheld as valid. B. The Ordinance violates Equal Protection Clause Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. The equal protection of the laws is a pledge of the protection of equal laws. It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned. The Court has explained the scope of the equal protection clause in this wise: What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: The ideal situation is for the laws benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the idea of law. There is recognition, however, in the opinion that what in fact exists cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew that the laws operate equally and uniformly on all persons under similar

circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: 1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class. In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. The standard where women are used as tools for entertainment is also discriminatory as prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to important government objectives. Thus, the discrimination is invalid. Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws. C. The Ordinance is repugnant to general laws; it is ultra vires The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate

powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports . . . . While its power to regulate the establishment, operation and maintenance of any entertainment or amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court in Kwong Sing v. City of Manila that: The word regulate, as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to control, to govern, and to restrain; but regulate should not be construed as synonymous with suppress or prohibit. Consequently, under the power to regulate laundries, the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised. And in People v. Esguerra, wherein the Court nullified an ordinance of the Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to regulate the same and not prohibit. The Court therein declared that: (A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.

These doctrines still hold contrary to petitioners assertion that they were modified by the Code vesting upon City Councils prohibitory powers. Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants and to prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community are stated in the second and third clauses, respectively of the same Section. The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph. These powers, therefore, should not be confused, commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and prohibition. The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend, suppress or prohibit. The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council. Moreover, it is a general rule in statutory construction that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or punishments, or otherwise come under the rule of strict construction. The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the ruling of the Court in People v. Esguerra, is instructive. It held that: The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the provision of section

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2242 (g), would be to make the latter superfluous and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors. On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will. If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter, which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the legislative will which must prevail and override the earlier. Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes: those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefor. The validity of such a repeal is sustained on the ground that the latest expression of the legislative will should prevail. In addition, Section 534(f) of the Code states that All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Thus, submitting to petitioners interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at variance with the latters provisions granting the City Council mere regulatory powers. It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention. Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in another section of the Code which is reproduced as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: . . . (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public

places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; . . . If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and expand the City Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only be regulated in their establishment, operation and maintenance. It is important to distinguish the punishable activities from the establishments themselves. That these establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the contractors defined in paragraph (h) thereof. The same Section also defined amusement as a pleasurable diversion and entertainment, synonymous to relaxation, avocation, pastime or fun; and amusement places to include theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances. Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which means that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place, its proper force and effect, and, if possible, rendering none of them useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where words under consideration appear in different sections or are widely dispersed throughout an act the same principle applies. Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law. As succinctly illustrated in Solicitor General v. Metropolitan Manila Authority: The requirement that the enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is

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called the power of subordinate legislation. As delegates of the Congress, the local government units cannot contravene but must obey at all times the will of their principal. In the case before us, the enactment in question, which are merely local in origin cannot prevail against the decree, which has the force and effect of a statute. Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. Conclusion All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is constitutionally infirm. TheOrdinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void. Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the full endorsement of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their transfer or conversion without infringing the constitutional guarantees of due process and equal protection of laws not even under the guise of police power. WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring the Ordinance void is AFFIRMED. Costs against petitioners. SO ORDERED. Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario andGarcia, JJ., concur Panganiban, J., in the result. Ynares- Santiago, J., concur in the result only.

EN BANC G.R. No. L-29458 March 28, 1969 VIRGINIA F. PEREZ petitioner, vs. HON. RAFAEL DE LA CRUZ, REYNALDO BORJA, ROBERTO RUELO, FELICISIMO DE ASIS and CARLOS DEL CASTILLO, respondents. Salonga, Ordoez, Yap, Sicat and Associates for petitioner. Reynaldo P. Borja for and in his own behalf as respondent. CASTRO, J.: This is an original petition for certiorari and prohibition with preliminary injunction filed by Virginia F. Perez, as vice mayor of Naga City, to enjoin the enforcement of a writ of prohibitory injunction dated January 22, 1968 issued by the respondent judge

Rafael de la Cruz of the Court First Instance of Camarines Sur in civil case 6504. The essential determinative facts are not disputed. On January 8, 1968, in a private conference held at the Office of the petitioner Perez, with the seven city councilors and the vice-mayor of Naga present, the latter presiding thereat, the matter of selecting the secretary of the municipal board of the said city as well as the chairmen of the various standing committees of the said board came up for discussion. At the indication by the four Nacionalista Party councilors (the herein private, respondents Reynaldo P. Borja, Roberto R. Ruelo, Carlos G. del Castillo and Felicisimo G. de Asis) of their desire to vote for a particular person as secretary of the board and to hold the chairmanship of the committee on markets for one of them, vicemayor Perez expressed her intention to vote, in the deliberation on such matters, to create a tie vote and thereafter to exercise her 1 power as presiding officer to break such deadlock. On January 10, 1968, in another conference held at the residence of the petitioner Perez, the latter reiterated the same intention to vote twice, and such statement was radiocast on January 13, 1968. On January 15, 1968 the four aforesaid councilors filed with the Court of First Instance of Camarines Sur a petition for prohibition with writ of preliminary injunction, docketed as civil case 6504, to prevent Perez from casting her vote in the selection of the secretary of the municipal board and in the choice of chairmen and members of the different standing committees thereof, except in the event of a tie vote, and from voting on any legislative proposal or measure or in any proceeding of the said board except when the members thereof are equally divided. In their petition, the herein respondents alleged that the vice-mayor of Naga City is not a member of the municipal board but only its presiding officer; that pursuant to par. "g" of Rule III of the Rules of Procedure of the said board, the chairman of the board cannot vote except in case of a tie that in the choice of secretary of the board, the vice-mayor as presiding officer of the board cannot vote except when the members of the board are equally divided; that the vice-mayor had threatened to participate in the election of the board secretary, in the choice of the chairmen of the various committees of the board and in other legislative matters, proposals and proceedings, other than to break a tie vote. The respondents claimed that they are entitled to the relief of restraining the vice-mayor from voting on legislative matters and acts and proceedings of the municipal board, because such proposed actuations, unless restrained, would engender an anomalous situation which could cause great and irreparable damage work injustice, and transgress upon the rights, privileges and prerogatives of the said respondents, as well as confuse the proceedings and complicate public records to the detriment of public service. They, therefore, prayed for the issuance of a writ of preliminary injunction against the vice-mayor.lawphi1.et On the same day, January 15, 1968, the respondent judge issued an order directing the vice-mayor to show cause within 10 days why the writ should not issue, at the same setting the hearing on the petition for preliminary injunction for January 18, 1968. On January 18, 1968 Perez moved for time to file a motion to dismiss and an opposition to the issuance of a writ of preliminary injunction but her motion was denied orally in open court by the respondent judge. On January 19, 1968 the respondent judge issued an order granting the prayer for a preliminary injunction upon the

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application posting a bond of P1,000. The writ of preliminary injunction issued on January 22, 1968 recites: WHEREFORE, You, the City Sheriff of Naga City or any of your lawful deputies is hereby commanded to restrain the respondent from casting her vote in the selection of the Secretary of the Board, the chairmanship and members of the different standing committees of the Board except when there is a tie and from voting and participating now and henceforth, in any legislative proposal measure or proceedings of the Municipal Board of the City of Naga, except when the members thereof are equally divided and upon order of this Court. LIKEWISE, you respondent VIRGINIA F. PEREZ, desist and refrain from casting your vote in the selection of the secretary of the board, the chairmanship and membership of the different standing committees of the Board, except when there is a tie, and from voting and participating now and henceforth in any legislative proposal, measure or proceedings of the Municipal Board of the City of Naga, except when the members thereat are equally divided, and upon order of this court. On January 22, 1968 Perez filed a motion to dismiss and/or dissolve the writ of preliminary injunction, assailing the jurisdiction of the court over the subject-matter of the action or the nature of the suit, and alleging that complaint stated no cause of action. She further assailed the issuance of the writ as undue interference in matters purely legislative in character, at the same time that she denied the existence of a threatened invasion of the rights of the four councilors; she finally prayed for the immediate dissolution of the writ of prohibitory injunction. On February 1, 1968 the respondent judge issued an order denying the motion to dismiss the petition and requiring the vicemayor to answer within three days from receipt of his order, thereby maintaining the injunction. As the respondent judge had intimated to Perez that he would not reconsider his order, Perez did not move to reconsider. Instead she filed on February 15, 1968 a petition for certiorari and prohibition with preliminary injunction with the Court of Appeals, docketed thereat as G.R. 40789-R, naming the trial judge and the four councilors as respondents. On February 20, 1968 the appellate court issued, thru its Second Division, a restraining order enjoining the enforcement of the writ of prohibitory injunction issued by the respondent court on January 22, 1968. On March 5, 1968, taking the cue from the issuance of the said restraining order against the four respondents councilors, Perez and the Liberal councilors in the Naga municipal board (with the four respondents councilors walking out of the session hall) passed an amendment to the Rules of Procedure of the Naga municipal board granting the chairman thereof the right to vote as a member, and as presiding officer the right to vote again in case of a tie vote. On July 12, 1968 the Court of Appeals rendered a decision dismissing Perez' petition for certiorari and dissolving the restraining order issued by it, on the ground that the said appellate court had no jurisdiction to entertain the same, there being no factual issues involved in the main case. On September 3, 1968 Perez filed the present petition for certiorari and prohibition. We gave due course, and issued a writ of preliminary injunction, upon the posting of a bond of P200, on September 11, 1968. As matters now stand, the enforcement of the writ of prohibitory injunction by the respondent judge in civil case 6504

has been stayed; consequently, Perez has been allowed to sit in the municipal board both as a constituent member and as presiding officer thereof. The two issues dividing the parties are: (1) Is the vice-mayor of Naga city, besides being the presiding officer of the municipal board, also a member thereof? Corollary thereto, can she vote twice: to create a deadlock and then to break it? (2) Did the respondent judge have jurisdiction to issue the writ of prohibitory injunction against Perez? I. Is the vice-mayor of the City of Naga who is presiding officer of the municipal board also a member thereof? To start with, we have the charter of the City of Naga, Republic Act 305, section 11 of which provides in part as follows: Constitution and organization of the Municipal Board; Compensation of Members thereof . The Municipal Board shall be the legislative body of the city and shall be composed of the Mayor who shall be its presiding officer, the city treasurer, the city engineer and five councilors elected at large by popular vote during every election for provincial and municipal officials in conformity with the provisions of the Election Code. (emphasis supplied) Remarkably, the charter did not at all provide for the position of vice-mayor; indeed, it explicitly provided that "the City Treasurer shall perform the duties of the Mayor" "in the event of 2 sickness, absence or other temporary incapacity of the Mayor." On June 19, 1959 upon approval of Republic Act 3 2259 making elective the offices of mayor, vice-mayor and councilors in chartered cities, the position of vice-mayor, among others was created. Thus section 3 of said law provides: The position of Vice-Mayor is hereby created in chartered cities which at present have no position for Vice-Mayor by provision of their corporate charters: Provided, That the Vice-Mayor shall be the presiding officer of the City Council or Municipal Board in all chartered cities. Perez now contends that since under the Naga City charter the mayor was the presiding officer of the municipal board, and since under Republic Act 2259 creating the position of vice-mayor who was made the presiding officer, the vice-mayor simply replaced the mayor as "presiding officer" of the municipal board, the vice-mayor acquired all the rights and prerogatives of the presiding officer under the charter, one of which is "membership in the municipal board." To fortify her claim, Perez adverts to sec. 4 11 of Republic Act 537, as amended by Republic Act 1575, as well 5 as to Bagasao et al. vs. Tumangan et al., where this Court held that "the presiding officer of the Municipal Board of the City of Cabanatuan is a member thereof." The petitioner's contention suffers from several grave infirmities. 1. There is absolutely nothing in Republic Act 305, also known as the charter of the City of Naga, which provides that the vice-mayor of the said city is a member of the municipal board thereof. For sooth, the position of vice-mayor was not even provided for, as the "acting mayor" designated to take over in case of sickness, absence or other temporary incapacity of the Mayor was 6 the "City Treasurer."

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True it is that upon the passage of Republic Act 2259, the position of vice-mayor in Naga City, and in all other chartered cities whose corporate charters did not provide for the position of vice-mayor, was created, but section 3 thereof simply provides that "the Vice-Mayor shall be the presiding officer of the City Council or 7 Municipal Board in all chartered cities." It does not decree that the vice-mayor is a member of the city council or municipal board. 8 2. Quiem v. Seria et al. is cited, where this Court held that the silence of Rep. Act 2259 on whether the vice-mayor, the presiding officer, is a member of the board, was not enough ground for excluding the vicemayor from membership in the board. But the legal setting and premises in Quiem are widely disparate from those in the case at bar. In the first place, in Quiem we found that "by express legal mandate, the vice-mayor of Cagayan de Oro City is a member of the board" because "that city's 9 original charters calls for an appointive Vice-Mayor who 'shall be a member of the Municipal Board'." In the case at bar, however, in contrast with sec. 11 of Republic Act 521 creating the city of Cagayan de Oro which explicitly made the vice-mayor a member of the municipal board, section 11 of Republic Act 305 creating the City of Naga failed to provide even for the position of vice-mayor. In the second place, Republic Act 10 1325, particularly section 1 thereof, amending the Cagayan de Oro charter, expressly reiterated that the vice-mayor "shall be a member of the Municipal Board;" as such similar statutory basis can be cogently invoked for the petitioner Perez. 3. Bagasao, et al. vs. Tumangan, supra, which was decided before the enactment of Republic Act 2259 furnishes no prop to the petitioner's position. There we held that the vice-mayor "as the presiding officer of the Municipal Board of the City of Cabanatuan is a member thereof" and "he may exercise his right to vote as a member on any proposed ordinance, resolution or motion." But we so held because "both the unamended and amended provisions of section 11 of the Charter of the City of Cabanatuan provide that the presiding officer of the Municipal Board is a memberthereof. And as we have re repeatedly stated, there is no provision whatever in Republic Act 305 creating the City of Naga that provides for the position of vice-mayor; and the amendatory provisions of Republic Act 2259 making the vice-mayor the presiding officer of the municipal board does not make him a constituent member thereof. To paraphrase Quiem, in the absence of any statutory authority constituting the vice-mayor as a member of the municipal board, in addition to being the presiding officer thereof, we cannot read in the law 11 something which is not there. For, as aptly put, 12 differences in law beget differences in legal effects. 13 4. Resort to the charter of Quezon City would avail the petitioner none. For under section 9 of the said charter, as amended, the vice-mayor is explicitly made "a member of the City Council," and section 11 of the same law expressly states that "there shall be City Council composed of the Mayor as Chairman, ViceMayor and eight other members." Clearly, then, the vice-

mayor of Quezon City is a member of the city council and, as such, is entitled to vote as a constituent member thereof. II. Rules of Procedure of the 4th & 5th Municipal Boards of Naga City exclude chairman from voting except in case of a tie vote. Further cutting the ground from under the petitioner's pretension is paragraph (g) of Rule III of the Rules of Procedure adopted by the municipal board of Naga City, which recites: (g) The chairman cannot vote, except in case of a tie. However, a member of the Board acting as chairman may vote as a member and as chairman to break a tie. The petitioner insists, however, that the above provision was amended by the 6th municipal board, headed by her, to read as follows: (g) The Chairman, as member of the Board can vote and as a Presiding Officer may vote again in case of a tie. In the same manner, a member of the Board acting as chairman, may vote as a member and as Chairman, to break the tie. Such insistence is a sheer exercise in futility because (1) the amended rule presupposes that the chairman is a "member of the Board" an assumption that is without legal basis; (2) the said amendatory rule was passed on March 5, 1968, almost two months after the filing on January 15, 1968, by the private respondents of their petition in civil case 6504, that is, pendente lite; and (3) although on the date the said amendment was passed, that restraining order dated February 20, 1968 of the Court of 14 Appeals was in force, there was no quorum in the board, as the four respondents councilors had walked out of the session hall, leaving only the three Liberal Party councilors and the petitioner. The proposed amendment was, therefore, a complete nullity. III. The Vice-Mayor replaced the Mayor of Naga City as presiding officer of the Municipal Board but did not replace him as a member thereof. The petitioner deposits the theory that since the mayor of Naga City, who was a member of the municipal board under Rep. Act 305, was replaced by the vice-mayor as presiding officer thereof, the vice-mayor must, perforce, be deemed a member of the municipal board. Pressing her bid, she asserts that Republic Act 2259 effected a mere change in the officer who will preside the meetings of the board, and since the vice-mayor replaced the mayor as "presiding officer" thereof, the vice-mayor acquired all the rights and prerogatives of the presiding officer, one of which is membership in the board. This contention finds no support either in law or logic. For, section 3 of Rep. Act 2259 simply installs the vice-mayor as the presiding officer of the board in all chartered cities. It does not install the vice-mayor as a member thereof. This is especially true in the case of Naga where the position of vice-mayor (whether appointive or elective) was originally not even provided for in its charter the official next-in-rank to the mayor being the city treasurer. In no manner does the law, either in its original form under Rep. Act 305, or in its amendatory shape under Rep. Act 2259, constitute the vice-mayor as a member of the municipal board. It simply says that "the vice-mayor shall be presiding officer of the City Council or Municipal Board." Nothing more. In this connection, American Jurisprudence has this to 15 say:

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When the statutes provide that the mayor shall preside at meetings of the municipal council, he is a constituent part of the council for certain purposes, and he sits and acts therein, but he is not in any proper sense a member of the council, unless the statutes expressly so provide. This brings back to mind the ruling of this Court in Rivera, 16 et al. vs. Villegas: It is our considered view, however, that the ViceMayor of Manila is not identically situated as the ViceMayor of Cabanatuan City, except insofar as each forms part of the respective municipal board and presides the same. The former is an integral part of the Municipal Board of Manila, but only 'as presiding officer' thereof. Hence, unlike the Vice-Mayor of Cabanatuan City, that of Manila does not have either the status of a regular member of its municipal board or the powers and attributes of a municipal councilor. In short, the Vicemayor of Manila possesses in the Municipal Board of Manila no more than the prerogatives and authority of a "presiding officer" as such, and those specified by law (to vote in case of tie and to sign all ordinances or resolutions and measures directing the payment of money or creating liability enacted or adopted by the Board.) The mere fact, therefore, that the vice-mayor was made the "presiding officer" of the board did not ipso jure make him a member thereof; and even if he "is an integral part of the Municipal Board" such fact does not necessarily confer on him "either the status of a regular member of its municipal board or the powers and attributes of a municipal councilor." In sum, the vice-mayor of Naga possesses in the municipal board of Naga no more than the prerogatives and authority of a "presiding officer" as such, and no more. It is not amiss to note that the Rules of Procedure of the 4th and 5th municipal boards of Naga City which were then in force prior to the start of the present controversy explicitly provide that: (g) The chairman cannot vote, except in case of tie. However, a member of the Board acting as chairman may vote as a member, and as chairman to break a tie. (Rule III) Note that the petitioner was elected along with the four respondents councilors in the local elections of November 14, 1967, and all of them began to exercise their functions in January 1968. The vice-mayor, prior to the petitioner's term, had been presiding officer and chairman of the municipal board since 1959, upon the passage of Republic Act No. 2259, and by the terms of the board's rules of procedure, the vice-mayor as "chairman cannot vote, except in case of tie." The chairman of the board the vice-mayor was, therefore, bereft of a casting vote such as would empower him to vote to create a tie then vote again to break such tie. In Bagasao, supra, this Court quoted McQuillin as 17 follows: McQuillin in his treatise "The Law of Municipal Corporations" says: The presiding officer is not entitled to vote by virtue of his office, but of course if he is a member of the body he may vote as such member and he may also vote the second time in case of a tie if the charter confers this privilege. (emphasis supplied)

And this Court proceeded to recognize the right of the vice-mayor of Cabanatuan City to vote as a member of the board precisely because "both the unamended and amended provisions of section 11 of the Charter of the City of Cabanatuan provide that the presiding officer of the Municipal Board is a member 18 thereof ." Needless to emphasize is the fact that neither the Naga City charter nor Rep. Act 2259 provides that the presiding officer of the Naga municipal board is a member thereof. It is true that in the later case of Quiem, we upheld the right of the vice-mayor of Cagayan de Oro City to vote as a member of the municipal board, underscoring the observations that the charter of the city of Manila "in language indubitable, withheld from the Vice-Mayor the right to vote 'except in case of a tie'" and that "no such delimitation of powers appears in the Cagayan de Oro charter." It is likewise true that no explicit delimitation of powers appears in the Naga City charter expressly withholding the right to vote from the vice mayor. But it is just as cogent that no explicit legal mandate, either in the Naga City charter or in the amendatory law, Rep. Act 2259, makes the vicemayor a member of the board, unlike in the case of the vice-mayor of Cagayan de Oro who by express legal mandate is a member of the board, under that city's original and amended charters. Absent such explicit legal mandate making the vice-mayor of Naga City a member of the board, we cannot import therein the assumption that he is. 19 McQuillin pertinently writes: Casting vote by presiding officer. Where the presiding officer or mayor is a member of the council or governing body, unless expressly forbidden by law, it is generally held that he may not only vote on all questions as a constituent member, but where the charter gives him a casting vote in event of a tie may vote the second time. However, he may be without vote except in the case of a tie as where he is merely the executive or presiding officer and not a member. In such case, his vote cannot be counted in determining whether or not there is a majority vote, nor can he vote so as to make a tie and then give the casting vote. He gives the casting vote, where he is empowered to do so, only in the event of a tie vote. Thus for example, in the election of officers, the casting vote may be given only where there is an equal division of votes between the candidates. It cannot be given to make a majority in favor of one candidate, when the other votes are scattered among other candidates. Hence where three vote year two do not vote and one votes for another, the latter three being recorded as voting no, and the mayor declares a tie and casts his vote with the three yea votes, there is 20 no election. In a case of more recent vintage, the State Supreme Court 21 of Georgia ruled: The sole remaining issue of law is: Did the mayor have the right, after announcing that a majority of council had voted for the relator to vote for the respondent and thereby create a tie vote, and again vote for the respondent to break the tie? Unlike the charters involved in the cases of Gostin v. Brooks, 89 Ga. 244, 15 S.E. 361, and Johnson v. Arnold, 176 Ga. 910, 160 S.E. 505, the charter of the Town of Kite is silent as to when the mayor can vote in the election of officers and the enactment of ordinances. We are of the opinion that the provision of the charter that the "clerk shall be elected

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by the mayor and council" has reference to the name and style of the corporate governing body. Gostin v. Brooks, supra; Akerman v. Ford, 116 Ga. 473(3), 42 S.W. 777. Under the charter the office of mayor is separate and distinct from the office of councilman.... So, the mayor is not a member of the council, he does so as mayor and not as a member of council.... But where he [the mayor] is merely an executive or presiding officer and not a member of the council, his vote cannot be counted in determining whether or not there is a majority vote, nor can he vote so as to make a tie and then give the casting vote. Thus, for example, in the election of officers the casting vote may be given only where there is an equal division of votes between the candidates. IV. Assuming that the Vice-Mayor acquired all the rights, prerogatives and privileges of the Mayor as presiding officer of the Council she cannot vote as a member except to break a tie. 22 The petitioner points to the congressional record, to buttress her claim that she is a constituent member of the board entitled to vote twice, because it was there observed that "even under the present law, the vice-mayor is a member of the municipal council." Indeed, the vice-mayor of a municipality under the Rev. Administrative Code was "an ex officio member of the 23 council with all the rights and duties of any other member," but at that time, the vice-mayor was not the presiding officer of the board. The presiding officer was the mayor who, by express legal 24 mandate had "no right to vote, except in case of tie." The petitioner now argues that as vice-mayor she merely stepped into the shoes of the mayor as presiding officer of the board, and since the mayor was considered a member thereof, she too became a member entitled to the same rights, powers and prerogatives of voting as the mayor. There is no gainsaying the fact that prior, to the approval of Rep. Act 2259, the mayor of a 25 municipality was a member of the municipal council, besides being the presiding officer thereof, but his right to vote could be 26 exercised only in "case of a tie." Certainly, the vice-mayor who merely stepped into the shoes of the mayor could have no greater power than that possessed by the mayor who could not create a tie vote and then break it. A stream, as the aphorism goes, cannot rise higher than its source. Moreover, the observation made by then Sen. Dioscorro Rosales, as bill sponsor of Senate bill 2 (which later became Rep. Act 2259), that "under the present law, the vice-mayor is a member of the municipal council," could have no reference to the petitioner's position as vice-mayor of Naga City because when the said remark was made, the Naga City charter, Rep. Act 305, did not even provide for the position of vice-mayor. V. The Petitioner Cannot Vote Twice to Elect City Secretary of the Board. The law provides that "the city secretary shall be elected by majority vote of the elective city council or municipal 27 board." The majority of the council elected shall constitute a 28 quorum to do business. "Majority" means the number greater 29 than half or more than half of any total. There are seven (7) 30 councilors in the municipal board of Naga City. Four councilors, therefore, would constitute a majority who, voting together for a single person could elect a secretary of the municipal board.

In the light of the manifestation made by the four respondents councilors belonging to the Nacionalista Party of "their desire to vote for a particular person as secretary of the Board" which the petitioner does not traverse and considering that there are only three other councilors left, a tie vote is out of the question. A four-to-three (4-3) vote creates no tie and, in the light of the conclusions we have above made, 31 furnishes no occasion for the petitioner to vote. We hold that the four concurring votes of the four respondents councilors will carry the day for their candidate. There is no dispute as to the power of the municipal board 32 to adopt its own rules of procedure. To this end, par. "g" of Rule III of the Rules of Procedure of the municipal board of Naga provides: (g) The Chairman cannot vote, except in case of a tie. However, a member of the Board acting as chairman may vote as a member, and as chairman to break the tie. It is not here urged that the petitioner is a member of the board acting as chairman. Her claim is that she is the presiding officer and also a member of the board. But as we said, she is not both the presiding officer and a constituent member of the board. She cannot, therefore, vote twice once to create a tie as a constituent member, and, the second time around, to break such 33 tie with another vote. VI. Did the respondent Judge have Jurisdiction over the case? The petitioner's final contention is that as a legislative official, performing legislative functions, she is not subject to any prohibitory process by the courts. She invokes Vera, et al. vs. Avelino, et al. (77 Phil. 192) where we held: Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to proceedings of any tribunal, corporation, board or person exercising functions, judicial or ministerial. As respondents do not exercise such kind of functions, theirs being legislative, it is clear that the dispute falls beyond the scope of such special remedy. Invocation of this ruling is completely inapposite. The doctrine therein laid down is based on the principle of separation of powers and cheeks and balances and is not applicable to local 34 governments. Moreover, executives at the local or municipal level are vested with both legislative and sometimes judicial 35 functions, in addition to their purely executive duties. By explicit statutory command, courts are given authority 36 to determine the validity of municipal proceedings. It is not disputed that the present proceeding for prohibition has for its objective to prevent the petitioner from "participating in the election of Secretary of the Board, chairmanship of different committees and in voting in other legislative matters, proposals and proceedings, other than to break a tie." It is our view that the petitioner, in insisting to exercise the right to vote twice in the municipal board, acted without jurisdiction and power to do so, and may be validly prevented and restrained by a writ of 37 prohibition. In reply to the petitioner's assertion that the acts sought to be restrained are mere "probable individual actuations" beyond the reach of a prohibitory writ, suffice it to state that prohibition is essentially a "preventive remedy" and is "not intended to provide 38 for a remedy for acts already accomplished." Withal, petitioner's threat of voting twice in the municipal board was not an empty or meaningless gesture, for the record shows that on March 5, 1968, soon after the writ complained of was lifted by the Court of

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Appeals through the latter's restraining order of February 20, 1968, the petitioner proceeded to act by voting twice for the approval of an alleged amendment to the rules of procedure of the municipal board. ACCORDINGLY, the present petition is hereby denied, and the preliminary injunction heretofore issued is dissolved, at petitioner's cost. Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Fernando, Capistrano, Teehankee and Barredo, JJ., concur. Makalintal, J., took no part.

EN BANC G.R. No. L-23979 August 30, 1968 HOMEOWNERS' ASSOCIATION OF THE PHILIPPINES, INC. and VICENTE A. RUFINO, petitioners-appellees, vs. THE MUNICIPAL BOARD OF THE CITY OF MANILA, ET AL.,respondents, ANTONIO J. VILLEGAS, Mayor of the City of Manila, respondentappellant. Ambrosio Padilla Law Offices for petitioners-appellees. Gregorio A. Ejercito and Felix C. Chavez for respondent respondentappellant. CONCEPCION, C.J.: This is an action, against the Municipal Board and the Mayor of the City of Manila, for a declaratory relief. It was brought by the Homeowners' Association of the Philippines, Inc. and its President, Vicente A. Rufino, to nullify Municipal Ordinance No. 4841 of the City of Manila, approved on December 31, 1963, to take effect on January 1, 1964. After appropriate proceedings, the Court of First Instance of Manila rendered judgment declaring said ordinance "ultra vires,unconstitutional, illegal and void ab initio without pronouncement as to costs. Hence, this appeal by the Mayor of Manila Said Ordinance reads: AN ORDINANCE REGULATING RENTALS OF LOTS AND BUILDING FOR RESIDENTIAL PURPOSES. WHEREAS, in view of the prevailing scarcity of lands and buildings for residential purposes in the City of Manila and the present high cost of living, a state of emergency in the the matter of providing housing accommodations especially for poor at reasonable rates is hereby declared to exist: Now, therefore. SECTION 1. Lessors or sublessors of lands, or parts thereof, primarily devoted to residential purposes, and persons claiming title or color of title thereto from such lessors or sublessors, are hereby prohibited from increasing the rental to an amount in excess of the proportion, percentage wise, in the increase of the assessed value of the land leased or subleased. If only a portion of the land is leased or subleased, the proportionate value of the leased premises shall be the basis for determining the maximum rental to which the same may be increased. SEC. 2. Lessors or sublessors of buildings, or parts thereof, primarily devoted to residential purposes, and persons claiming title or color of title thereto from such lessors or sublessors, are hereby prohibited from increasing the rentals to an amount in excess of ten (10) percentum per annum of the assessed value of the building leased or subleased and of the land on which

the building stands. If only a portion of the building is leased or subleased, the proportionate assessed value of the building and the land on which the building stands shall be the basis for determining the maximum rental to which the same may be increased. SEC. 3. This Ordinance shall not apply to contracts of lease or sublease existing upon its approval and to lands used by, or to rooms of, boarding house, and lodging houses; PROVIDED, HOWEVER, That renewals or modifications of such contracts made on or after the approval of this Ordinance shall be governed by the provisions hereof. SEC. 4. Any person violating the provisions of this Ordinance shall, upon conviction, be punished by a fine of not less than one hundred (P100.00) pesos nor more than two hundred (P200.00) pesos and imprisonment for not less than one (1) month nor more than six (6) months. In the case of juridical persons, the general manager, director, or any other person in control thereof shall be liable. SEC. 5. This Ordinance shall take effect on January 1, 1964.1wph1.t The lower court struck down the questioned ordinance upon the ground that the power to "declare a state of emergency ... exclusively pertains to Congress"; that "there is no longer any state of emergency" which may justify the regulation of house rentals; that said ordinance disconstitutes an unreasonable and unjustified limitation on the use of private properties and arbitrarily encroaches on the constitutional rights of property owners"; that the power of the City of Manila to "regulate the business of ... letting or subletting of lands and buildings" does not include the authority to prohibit what is forbidden in said ordinance; and that the same cannot be deemed sanctioned by the general welfare clause in the City Charter. Although some members of the Court are not prepared either to concede the alleged power of the City of Manila to declare a state of emergency or to acknowledge the existence thereof, as a fact, we do not deem it necessary to pass upon these questions or upon the soundness of the other points relied upon by His Honor, the trial Judge, on which we express here no opinion whatsoever. Even if the City had said power and a state of emergency really existed, the ordinance under consideration would still be illegal and unconstitutional, for the reasons presently to be stated. 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 fairly be required by the legitimate demands of public interest or public welfare. If such demands are brought about by a state of emergency, the interference upon individual rights, resulting from the regulations adopted to meet the situation, must be, by and large, co-extensive, co-equal or co-terminous with the existence thereof. And, since an emergency is by nature temporary in

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character, so must the regulations promulgated therefor be. In the 1 language of Justice Holmes, "circumstances may so change in 2 time or differ in space as to clothe with such an interest what at other times or in other places would be a matter of purely private concern." Or, as the American Jurisprudence puts it, "a limit in time to tide over a passing trouble may justify a law that could not 3 be upheld as a permanent change." As a consequence a law or ordinance affecting the rights of individuals, as a means to tide over a critical condition, to be valid and legal, must be for a "definite" period of time, the length of which must be "reasonable", in relation to the nature and duration of the crisis it seeks to overcome or surmount. Hence, inRutter v. 4 Esteban we declared, on May 18, 1953, that a moratorium of eight (8) years, given by Republic Act No. 342 to war damage claimants, from and after the settlement of their war damage 5 claims, for the payment of their pre-war obligations is "unreasonable, if not oppressive", in the light of "the conditions" then "prevailing in our country", and that, accordingly said Act was "null and void and without effect". We further held that "what we say here with respect to said Act holds true as regards Executive 6 7 Orders Nos. 25 and 32, perhaps with greater force and reason as to the latter, considering that said Orders contain no limitation whatsoever in point of time as regards the suspension of the enforcement and effectivity of monetary obligations". This ruling, it should be noted, was made deliberately and does not constitute an obiter dictum, for, in the language of the Court, "there is need to make this pronouncement in view of the revival clause embodied in said Act if and when it is declared unconstitutional or 8 invalid". The practical reason for the requirement that a statute passed to meet a given emergency, should limit the period of its effectivity, is that, otherwise, a new and different law would be necessary to repeal it, and said period would, accordingly, be "unlimited, indefinite, negative and uncertain", so that "that which was intended to meet a temporary emergency may become a 9 permanent law", because "Congress might not enact the repeal, and, even if it would, the repeal might not meet with the approval of the President, and the Congress might not be able to override the veto". In line with the basic philosophy underlying the authority to affect individual rights, this Court felt that Commonwealth Act No. 671, otherwise known as the Emergency Powers Act, was meant to be and "became inoperative when Congress met in regular session on May 25, 1946," and that Executive Orders Nos. 62, 192, 225 and 226 promulgated subsequently thereto "were issued without authority of law", because, otherwise, said emergency regulations would purport to be in force for an indefinite and unlimited period of time, and, 10 hence, would be unconstitutional. The same considerations impelled the Court to invalidate Executive Order Nos. 545 and 546, issued on November 10, 1952. Indeed, otherwise "the result would be obvious unconstitutionality", by making permanent a law intended to afford a relief for a temporary emergency, the length of which should be "fixed in the law itself and not dependent upon the 11 arbitrary or elastic will of either Congress or the President". We have not overlooked the fact that the cases adverted to 12 refer particularly to the constitutional provision authorizing Congress, "in times of war or other national emergency", to delegate to the President, "for a limited period", and subject to specified "restrictions", the power "to promulgate rules and regulations to carry out a declared national policy". We are inclined to believe, however, that in providing that the lifetime of

the authority given must be "for a limited period", the framers of our Charter were influenced by the fact that powers were being delegated to the Executive, as much as by the circumstance that, since the cause for the grant of power was temporary, so should the grant be, for the effect cannot remain in existence upon the removal of its cause. In fact, Congress has, in actual practice, accepted this limitation upon its exercise of police power to meet a condition of emergency. Thus, Commonwealth Act No. 13 499 regulated the transfer of vessels and of shipping facilities, effective until adjournment of the next regular session of the National Assembly. This was followed by Commonwealth Act No. 14 689 which penalized speculation on rents of buildings destined for dwelling purposes, but only "for a period of two (2) years after its approval." This Act was amended by Republic Act No. 15 66 which, inter alia,extended its period of effectivity to "four (4) years after it approval." Needless to say, the powers of municipal corporations delegated thereto by the National Government cannot escape the inherent limitations to which the latter as the source of said powers is subject. Then, again, since our law on municipal corporations is, in principle, patterned after that of the United States, the rule therein, to the effect that "in a proper case, emergency legislation, limited in time, may be enacted under the 16 police power" of a municipal corporation, should be considered a part of our legal system. Appellant assails the validity of the proceedings in the lower court upon the round that, although petitioners herein had assailed Municipal Ordinance No. 4841, not merely as ultra vires, but, also, as unconstitutional, the Solicitor General had been neither heard nor notified in connection therewith, in violation of 17 Section 4 of Rule 64 of the Rules of Court. It should be noted, however, that appellant did not raise this question or invoke said Section 4, either in his answer or in a motion to dismiss in the lower court. Upon the other hand, the City Fiscal of Manila was notified therein. In fact, he filed a memorandum, apart from the memorandum submitted by counsel for appellant herein. Neither did his motion for reconsideration of the appealed decision touch upon said question, which was raised, for the first time, in a "supplement" to said motion for reconsideration. At any rate, the determination of the question whether or not the Solicitor General should be required to appear "in any action involving the validity of any treaty, law, ordinance or executive order, rules or regulation" is a matter left to the "discretion" of the Court, pursuant to Section 23 of Rule 3 of the 18 Rules of Court. Inasmuch as said requirement is not mandatory, but discretionary,non-compliance therewith and with Section 4 of Rule 64 the interpretation of which should be harmonized with said Section 23 of Rule 3 affected neither the jurisdiction of the trial court nor the validity of the proceedings therein, in connection with the present case. Thus, in San Buenaventura vs. 19 Municipality of San Jose, we held: ... that the requirement regarding notification to the Provincial Fiscal of the pendency of an action involving the validity of a municipal ordinance, as provided in Sec. 5, Rule 66 of the Rules of Court (now See. 4, Rule 64 of the Revised Rules of Court), is not jurisdictional; and failure on the part of petitioner to notify the Provincial Fiscal will not be a sufficient ground to throw the case out of court. We believe the purpose of the above-quoted rule is simply to give the Provincial Fiscal, who is the legal officer of the local governments, a

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chance to participate in the deliberation to determine the validity of a questioned municipal ordinance before the competent court. If it appears, however, that the ordinance in question is patently illegal, as in the present case, and the matter had already been passed upon by a competent court, the requirements of Sec. 5 of Rule 66 of the Rules of Court (now See. 4 of Rule 64 of the Revised Rules of Court) may be dispensed with. WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the appellant. It is so ordered. 1wph1.t Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

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