Pubcorp 2.docx

Magtajas v. Pryce Properties Corp. (G.R. No. 111097) Facts: PAGCOR decided to expand its operations to Cagayan de Oro City. It leased a portion of a building belonging to Pryce Properties Corporations, Inc., renovated & equipped the same, and prepared to inaugurate its casino during the Christmas season. Civil organizations angrily denounced the project. Petitioners opposed the casino’s opening and enacted Ordinance No. 3353, prohibiting the issuance of business permit and canceling existing business permit to the establishment for the operation of the casino, and Ordinance No. 3375-93, prohibiting the operation of the casino and providing a penalty for its violation. Respondents assailed the validity of the ordinances on the ground that they both violated Presidential Decree No. 1869. Petitioners contend that, pursuant to the Local Government Code, they have the police power authority to prohibit the operation of casino for the general welfare. Issue: Whether the Ordinances are valid. Ruling: No. Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows:Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. Local Government Code, local government units are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The tests of a valid ordinance are well established. A long line of decisions has held that to be valid, an ordinance must conform to the following substantive requirements: 1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy. 6) It must not be unreasonable. The rationale of the requirement that the ordinances should not contravene a statute is obvious.Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that

cannot be amended or nullified by a mere ordinance. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. Wherefore, the petition is denied. RUPERTO LUCERO vs. CITY GOVERNMENT OF PASIG CORONA, J.: In this petition for review on certiorari, petitioners seek the review and reversal of the Court of Appeals (CA) decision1 and resolution2 in CA-G.R. SP. No. 42131. Petitioners were granted lease contracts to occupy and operate stalls3 in the public market of Pasig by virtue of Municipal Ordinance No. 25, series of 1983. Sometime in 1993, the municipal government of Pasig renovated the market facilities and constructed annex buildings to the old public market. The Sangguniang Bayan of Pasig then enacted Municipal Ordinance No. 56, series of 1993, entitled "An Ordinance Prescribing the Rules and Regulations in Occupying and Using Market Stalls and Providing Penalties for Violations Thereof." The ordinance took effect 30 days after its enactment on October 20, 1993. Pursuant to the new ordinance, municipal officials urged all stall occupants to fill up and submit the necessary application forms. The application form contained the terms and conditions for the occupation and operation of the stalls. If approved, the application would serve as the lease contract. Petitioners, however, refused to apply for a new lease on their market stalls. They were given a deadline to comply with the new ordinance but petitioners were adamant. On November 14, 1995, the city government of Pasig4 filed a complaint for ejectment against petitioners in the Metropolitan Trial Court (MTC), Branch 68, Pasig City. The case was docketed as Civil Case No. 5043. In its complaint, the city government alleged that petitioners failed to pay the required ₱10,000 performance bond and their rental fees since January 1994 as required by the municipal ordinance. In their answer, petitioners claimed that they had faithfully complied with their obligations as set forth in their 1983 lease contracts. They alleged that it was the city government which refused to accept their rental payments from January 1994 onwards because of petitioners’ failure to submit new applications to lease their market stalls. They did not pay the performance bond because, as previous stall occupants, they were not required to do so. With due notice to the city treasurer, petitioners deposited their payments in a bank when their offer to pay was not acted upon. Finding the ejectment suit to be without merit, the MTC ruled in favor of petitioners and dismissed the complaint.5 Dissatisfied with the lower court’s decision, the city government appealed to the Regional Trial Court (RTC), Branch 162, Pasig City.6 The RTC reversed the MTC decision and decided in favor of the city government.

WHEREFORE, PREMISES CONSIDERED, this Court hereby renders judgment in this case in favor of [the City Government of Pasig] and against [petitioners] by: (1) Reversing, amending and/or modifying the decision of the trial court dated March 29, 1996 subject of this appeal, and entering a new judgment directing the herein [petitioners] and all persons claiming right under them to vacate the Market Stalls Nos. 28 and 29, Commercial Section, and Stall [Nos.] 456 and 457, Grocery Section, and to restore possession thereof to [the city government]; (2) Ordering the [petitioners] to pay the rent for the use and occupancy of the subject stalls, as follows: (a) Ruperto Lucero – the amount of ₱49,980.00 representing arrearages for the whole year of [January 1994 up to September 1995]; and the further sum in the same amount representing rents for the inclusive period of [October 1995 up to and until September 1996]; (b) Pablo Lucero – the amount of ₱20,050.00 representing arrearages from [February 1995 up to September 1995]; and the further sum in the same amount representing rents for the duration of October 1995 to September 1996; (c) Antonio Tenorio – the amount of ₱38,587.50 representing arrearages from January 1994 to September 1995; and the further sum in the same amount representing rents for the inclusive period [of] October 1995 to September 1996. (3) Ordering [petitioners] to pay jointly and severally the amount of ₱15,000.00 for and as attorney’s fees. With costs against [petitioners]. SO ORDERED.7 Petitioners appealed the RTC decision to the CA. The appeal was, however, dismissed for lack of merit.8 Their motion for reconsideration was similarly denied;9 hence, this petition. Petitioners mainly assail the non-renewal of their lease contracts on stalls in the public market when they did not comply with the requirements of Municipal Ordinance No. 56, series of 1993.10 They claim to have a vested right to the possession, use and enjoyment of the market stalls based on their 1983 lease contracts. This, they assert, could not be impaired by the enactment of Municipal Ordinance No. 56 in 1993. The only issue for our resolution is: can petitioners claim a vested right to the market stalls they were occupying by virtue of their lease contracts under Municipal Ordinance No. 25, series of 1983? They cannot. "A right is vested when the right to enjoyment has become the property of some particular person or persons as a present interest."11 It is unalterable, absolute, complete and unconditional.12 This right is perfect in itself; it is not dependent upon a contingency.13 The concept of "vested right" expresses a "present fixed interest which in right reason and natural justice is protected against arbitrary state action."14 It includes not only legal and equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested.15 Contrary to petitioners’ contention that they were no longer covered by the 1993 ordinance requiring payment of a performance bond and submission of new application forms, their 1983 lease contracts did not grant them irrefutable rights to the market stalls. They were mere grantees of a privilege to occupy and operate such booths. What petitioners had was a license to occupy and operate particular stalls over a period of time. Their possession and use of these facilities could not be characterized as fixed and absolute. Indeed, petitioners did not have any vested right to the stalls. It was within the ambit of the Sanggunian’s authority in the exercise of police power to regulate the enjoyment of the privilege to lease the market stalls. The enactment of the Municipal Ordinance No. 56, series of 1993 repealing Municipal Ordinance No. 25, series of 1983 (the basis of petitioners’ lease) was a valid exercise of such governmental authority to regulate the possession and use of the public market and its facilities.16

The lease (and occupation) of a stall in a public market is not a right but a purely statutory privilege governed by laws and ordinances.17 The operation of a market stall by virtue of a license is always subject to the police power of the city government.18 An application for this privilege may be granted or refused for reasons of public policy and sound public administration.19 The city government, through its market administrator, is not duty-bound to grant lease privileges to any applicant, least of all those who refuse to obey the new ordinance prescribing the rules and regulations for the market stalls. Moreover, a public market is one dedicated to the service of the general public and operated under government control and supervision as a public utility.20 Hence, the operation of a public market and its facilities is imbued with public interest. Petitioners’ 1983 lease contracts contained an implied reservation of the police power as a postulate of the existing legal order.21 This power could be exercised any time to change the provisions of the contracts or even abrogate them entirely, for the protection of the general welfare.22 Such an act did not violate the non-impairment clause which is anyway subject to and limited by the paramount police power. WHEREFORE, the petition is hereby DENIED. JAMAR KULAYAN, et al. v. GOV. ABDUSAKUR TAN, in his capacity as Governor of Sulu, et al. G.R. No. 187298, 03 July 2012, EN BANC (Sereno, J.) The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another of cial, even if he is the local chief executive, is ultra vires, and may not be justi ed by the invocation of Section 465 of the Local Government Code. Three members from the International Committee of the Red Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. Andres Notter, Eugenio Vagni, and Marie Jean Lacaba, were purportedly inspecting a water sanitation project for the Sulu Provincial Jail when they were seized by three armed men who were later confirmed to be members of the Abu Sayyaf Group (ASG). A Local Crisis Committee, later renamed Sulu Crisis Management Committee (Committee) was then formed to investigate the kidnapping incident. The Committee convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Governor Tan issued Proclamation No. 1, Series of 2009, declaring a state of emergency in the province of Sulu. The Proclamation cited the kidnapping incident as a ground for the said declaration, describing it as a terrorist act pursuant to the Human Security Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which bestows on the Provincial Governor the power to carry out emergency measures during man-made and natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to suppress disorder and lawless violence. In the Proclamation, Tan called upon the PNP and the Civilian Emergency Force (CEF) to set up checkpoints and chokepoints, conduct general search and seizures including arrests, and other actions necessary to ensure

public safety. Petitioners, Jamar Kulayan, et al. claimed that Proclamation No. 1-09 was issued ultra vires, and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution, which grants the President sole authority to exercise emergency powers and calling-out powers as the chief executive of the Republic and commander-in-chief of the armed forces. Issue: Can a governor exercise the calling-out of powers of a President? The provincial governor does not possess the same calling-out powers as the President Given the foregoing, respondent provincial governor is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code, as will be discussed subsequently. Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo, which dealt squarely with the issue of the declaration of a state of emergency, does it limit the said authority to the President alone. Respondents contend that the ruling in David expressly limits the authority to declare a national emergency, a condition which covers the entire country, and does not include emergency situations in local government units.54 This claim is belied by the clear intent of the framers that in all situations involving threats to security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the President who possesses the sole authority to exercise calling-out power. Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09 Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act, and used this incident to justify the exercise of the powers enumerated under Proclamation 1-09.56 He invokes Section 465, in relation to Section 16, of the Local Government Code, which purportedly allows the governor to carry out emergency measures and call upon the appropriate national law enforcement agencies for assistance. But a closer look at the said proclamation shows that there is no provision in the Local Government Code nor in any law on which the broad and unwarranted powers granted to the Governor may be based. Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters,"57 as being violative of the constitutional proscription on general search warrants and general seizures. Petitioners rightly assert that this alone would be sufficient to render the proclamation void, as general searches and seizures are proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.58 In fact, respondent governor has arrogated unto himself powers exceeding even the martial law powers of the President, because as the Constitution itself declares, "A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and

agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ."59 Second, there was no evidence or even an allegation on record that the local police forces were inadequate to cope with the situation or apprehend the violators. If they were inadequate, the recourse of the provincial governor was to ask the assistance of the Secretary of Interior and Local Government, or such other authorized officials, for the assistance of national law enforcement agencies. The Local Government Code does not involve the diminution of central powers inherently vested in the National Government, especially not the prerogatives solely granted by the Constitution to the President in matters of security and defense. The intent behind the powers granted to local government units is fiscal, economic, and administrative in nature.1âwphi1 The Code is concerned only with powers that would make the delivery of basic services more effective to the constituents,61 and should not be unduly stretched to confer calling-out powers on local executives. Ortigas V Feati Facts: On March 4, 1952, Ortigas sold Lot 5 and 6, Block 31 of the Highway Hills Subdivision at Mandaluyong to Augusto Padilla y Angeles and Natividad Angeles. The latter transferred their rights in favour of Emma Chavez, upon completion of payment a deed was executed with stipulations, one of which is that the use of the lots are to be exclusive for residential purposes only. This was annotated in the Transfer Certificate of Titles No. 101509 and 101511. Feati then acquired Lot 5 directly from Emma Chavez and Lot 6 from Republic Flour Mills. On May 5, 1963, Feati started construction of a building on both lots to be devoted for banking purposes but could also be for residential use. Ortigas sent a written demand to stop construction but Feati continued contending that the building was being constructed according to the zoning regulations as stated in Municipal Resolution 27 declaring the area along the West part of EDSA to be a commercial and industrial zone. Civil case No. 7706 was made and decided in favour of Feati. Issue: Whether or not Resolution number 27 declaring Lot 5 and 6 to be part of an industrial and commercial zone is valid considering the contract stipulation in the Transfer Certificate of Titles. Held: Resolution No. 27 prevails over the contract stipulations. Section 3 of RA 2264 of the Local Autonomy Act empowers a Municipal Council to adopt zoning and subdivision ordinances or regulations for the Municipality. Section 12 or RA 2264 states that implied power of the municipality should be “liberally construed in it’s favour”, “to give more power to the local government in promoting economic conditions, social welfare, and material progress in the community”. This is found in the General Welfare Clause of the said act. Although nonimpairment of contracts is constitutionally guaranteed, it is not absolute since it has to be reconciled with the legitimate exercise of police power, e.g. the power to promote health, morals, peace, education, good order or safety and general welfare of the people. Resolution No. 27 was obviously passed in exercise of police power to safeguard health, safety, peace and order and the general welfare of the people in the locality as it would not be a conducive

residential area considering the amount of traffic, pollution, and noise which results in the surrounding industrial and commercial establishments. Decision dismissing the complaint of Ortigas is AFFIRMED. Rimando v Naguillian Facts: Naguillian Emission Testing Center Inc., filed a petition for mandamus and damages against Abraham Rimando (petitioner), the municipal mayor of Naguilian, La Union. In its complaint, the company alleged that from 2005 to 2007 its business is located on a land formerly belonging to the national government which was later certified as an alienable and disposable land of the public domain by the DENR. On January 18, 2008, it applied for a renewal of its business permit and paid the corresponding fees, but the petitioner refused to issue a business permit, until such time that the company executes a contract of lease with the municipality; the respondent is amenable to signing the contract but with some revisions, which the petitioner did not accept; no common ground was reached among the parties, hence the company filed the petition. The RTC ruled in favour of the petitioner; ratiocinating that: (a) the Municipality of Naguiian is the declared owner of the subject parcel of land by virtue of Tax Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of Naguilian, the municipality has the right to require the petitioner to sign a contract of lease because its business operation is being conducted on a real property owned by the municipality; and (c) a mayor’s duty to issue business permits is discretionary in nature which may not be enforced by a mandamus writ. On appeal, the CA proceeded to discuss the merits of the case even though the petition itself is dismissible on the ground of mootness. It held that the factual milieu of the case justifies issuance of the writ; the tax declaration in the name of the municipality was insufficient basis to require the execution of a contract of lease as a condition sine qua non for the renewal of a business permit. The CA further observed that Sangguniang Bayan Resolution No. 2007-81, upon which the municipality anchored its imposition of rental fees, was void because it failed to comply with the requirements of the Local Government Code and its Implementing Rules and Regulations. It held the mayor not liable for damages since he acted in the performance of his duties which are legally protected by the presumption of regularity in the performance of official duty; the case against the mayor also was moot and academic since his term as mayor expired. Nevertheless, the CA reversed and set aside the RTC decision. The petitioner elevated the matter to the Supreme Court. The Issue: Whether or not the issue had become moot and academic; Whether or not the issuance of a business permit maybe compelled thru a petition for mandamus. The Ruling: We agree with the CA that the petition for mandamus has already become moot and academic owing to the expiration of the period intended to be covered by the business permit. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value1 or in the nature of things, cannot be enforced.2 In such cases, there is no actual substantial relief to which the applicant would be entitled to and which would be negated by the dismissal of the petition.3 As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness. The objective of the petition for mandamus to compel the petitioner to grant a business permit in favor of respondent corporation for the period 2008 to 2009 has already been superseded by

the passage of time and the expiration of the petitioner’s term as mayor. Verily then, the issue as to whether or not the petitioner, in his capacity as mayor, may be compelled by a writ of mandamus to release the respondent’s business permit ceased to present a justiciable controversy such that any ruling thereon would serve no practical value. Should the writ be issued, the petitioner can no longer abide thereby; also, the effectivity date of the business permit no longer subsists. While the CA is not precluded from proceeding to resolve the otherwise moot appeal of the respondent, we find that the decretal portion of its decision was erroneously couched. The CA’s conclusions on the issue of ownership over the subject land and the invalidity of Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by convincing evidence, can no longer be practically utilized in favor of the petitioner. Thus, the overriding and decisive factor in the final disposition of the appeal was its mootness and the CA should have dismissed the same along with the petition for mandamus that spawned it. More importantly, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature. This was the pronouncement of this Court inRoble Arrastre, Inc. v. Hon. Villaflor5 where a determination was made on the nature of the power of a mayor to grant business permits under the Local Government Code6, viz: Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local Government Code of 1991, which provides, thus: SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: x x x x 3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agroindustrial development and country-wide growth and progress, and relative thereto, shall: xxxx (iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to Section 16 of the Local Government Code of 1991, which declares: SEC. 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. Section 16, known as the general welfare clause, encapsulates the delegated police power to local governments. Local government units exercise police power through their respective legislative bodies. Evidently, the Local Government Code of 1991 is unequivocal that the municipal mayor has the power to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. x x x xxxx

Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.7 (Citations omitted) Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent is incompetent to compel the exercise of a mayor’s discretionary duty to issue business permits. WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009 of the Regional Trial Court of Bauang, La Union is REINSTATED.

AC Enterprises, Inc. vs. Frabelle Properties Corp. G.R. No. 166744. November 2, 2006. SCRA Citation: 506 SCRA 625 DOCTRINE: Private and public nuisance; definition – The term “nuisance” is so comprehensive that it has been applied to almost all ways which have interfered with the rights of the citizens, either in person, property, the enjoyment of property, or his comfort; A private nuisance is one which violates only private rights and produces damage to but one or a few persons while a nuisance is public when it interferes with the exercise of public right by directly encroaching on public property or by causing a common injury, an unreasonable interference with the right common to the general public. In this case, the noise generated by an air conditioning system is considered a private nuisance. Noise emanating from air-con units not nuisance per se – Noise becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener; Injury to a particular person in a peculiar position or of especially sensitive characteristics will not render the noise an actionable nuisance. Whether or not the noise is a nuisance is an issue to be resolved by the courts. Test to determine noise as a nuisance – The test is whether rights of property, of health or of comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss [i.e. Actual Physical Discomfort]which goes beyond the reasonable limit imposed upon him by the condition of living, or of holding property, in a particular locality in fact devoted to uses which involve the emission of noise although ordinary care is taken to confine it within reasonable bounds; or in the vicinity of property of another owner who, though creating a noise, is acting with reasonable regard for the rights of those affected by it. Action to abate private nuisance; incapable of pecuniary estimation – an action to abate private nuisance, even where the plaintiff asks for damages is one incapable of pecuniary estimation FACTS: AC enterprises (Petitioner) is a corporation owns a 10-storey building in Makati City. Frabelle (Respondent) is a condominium corporation who's condominium development is located behind petitioner. Respondent complained of the 'unbearable” noise emanating from the blower of the air-conditioning units of petitioner. ISSUES: (1) Is it a nuisance as to be resolved only by the courts in the due course of proceedings or a nuisance per se?

(2) Is an action for abatement of a private nuisance, more specifically noise generated by the blower of an air-conditioning system, even if the plaintiff prays for damages, one incapable of pecuniary estimation? (3) What is the determining factor when noise alone is the cause of complaint? HELD: (1) It is a nuisance to be resolved only by the courts in the due course of proceedings; the noise is not a nuisance per se. Noise becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener. Injury to a particular person in a peculiar position or of especially sensitive characteristics will not render the house an actionable nuisance–– in the conditions, of present living, noise seems inseparable from the conduct of many necessary occupations. (2) Yes, the action is one incapable of pecuniary estimation because the basic issue is something other than the right to recover a sum of money.

(3) The determining factor is not its intensity or volume; it is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities rendering adjacent property less comfortable and valuable.

G.R. No. 141010 February 7, 2007 UNITED BF HOMEOWNERS’ ASSOCIATIONS, INC. v. Paranaque The Case This is a petition for review1 of the 28 June 1999 Decision2 and the 16 November 1999 Resolution3 of the Court of Appeals in CA-G.R. SP No. 46624. The Court of Appeals held that Municipal Ordinance No. 97-08 is a valid exercise of police power by the Municipality of Parañaque. The Facts BF Homes Parañaque Subdivision (BF Homes Parañaque), with a land area straddling the cities of Parañaque, Las Piñas, and Muntinlupa, is the largest subdivision in the country. On 11 November 1997, the Municipal Council of Parañaque enacted Municipal Ordinance No. 97-085 entitled, "An Ordinance Prescribing the Comprehensive Land Use Plan & Zoning of the Municipality of Parañaque Pursuant to the Local Government Code of 1991 and Other Pertinent Laws." Sections 11.5 and 11.6 of Municipal Ordinance No. 97-08, reclassifying El Grande and Aguirre Avenues in BF Homes Parañaque from residential to commercial areas, read: 11.5 C-1 LOW INTENSITY COMMERCIAL ZONES xxxx BARANGAY BF HOMES Lot deep both side[s] along Aguirre Avenue from Governor A. Santos Street eastward to Gng. Elsie Gatches Street Lot deep both side[s] along El Grande Avenue from Lopez Avenue gate southward to corner Aguirre Avenue xxxx 11.6 C-2 MAJOR COMMERCIAL ZONES xxxx

BARANGAY BF HOMES Lot deep both side[s] along Aguirre Avenue from Dallas to El Grande Avenue Lot deep both side[s] along Aguirre Avenue from El Grande Avenue to Gov. A. Santos Street BF Parañaque Commercial Plaza Area bounded on the North - Pres. Quezon Street South - A. Aguirre Avenue East - President’s Avenue West - MMP, Creek along BF Homeowner’s Association clubhouse Lot deep east side along President’s Avenue from Mac Donald southward to M. Rufino Street Area bounded on the North - A. Aguirre Avenue South - A. Soriano Sr. & M. Rufino Street East - President’s Avenue West - Gng. Elsie Ga[t]ches Street x x x x6 On 27 January 1998, the United BF Homeowners’ Associations, Inc. (UBFHAI),7 several homeowners’ associations, and residents of BF Homes Parañaque (collectively petitioners) filed with the Court of Appeals a petition for prohibition with an application for temporary restraining order and preliminary injunction. Petitioners questioned the constitutionality of Sections 11.5, 11.6, 15,8 17,9 and 19.610 of Municipal Ordinance No. 97-08. Petitioners alleged that the reclassification of certain portions of BF Homes Parañaque from residential to commercial zone is unconstitutional because it amounts to impairment of the contracts between the developer of BF Homes Parañaque and the lot buyers. Petitioners cited the annotation on the lot buyers’ titles which provides that "the property shall be used for residential purposes only and for no other purpose." On the other hand, public respondents alleged that the passage of Municipal Ordinance No. 9708 is a valid exercise of police power by the Municipal Council of Parañaque and that such ordinance can nullify or supersede the contractual obligations entered into by the petitioners and the developer. Meanwhile, El Grande Aguirre Commerce and Trade Organization (EL ACTO), a non-stock, non-profit corporation, intervened as respondent. EL ACTO claimed that its members are lot owners, residents, and operators of commercial establishments along El Grande and Aguirre Avenues in BF Homes Parañaque, who will be affected if Municipal Ordinance No. 97-08 is declared unconstitutional. EL ACTO asserted that Municipal Ordinance No. 97-08 is a valid exercise of police power and that petitioners are guilty of estoppel since petitioners endorsed the opening of many of these commercial establishments in BF Homes Parañaque. EL ACTO further alleged that the instant petition should have been initially filed with the Regional Trial Court in accordance with the principle of hierarchy of courts.1awphi1.net On 28 June 1999, the Court of Appeals dismissed the petition. Petitioners moved for reconsideration, which the Court of Appeals denied. Hence, this petition The Ruling of the Court of Appeals Citing the General Welfare Clause11 of Republic Act No. 7160 (RA 7160), the Court of Appeals held that the enactment of Municipal Ordinance No. 97-08 which, among others, reclassified El Grande and Aguirre Avenues in BF Homes Parañaque as commercial zones, was a valid exercise of police power by the Municipality of Parañaque. The Court of Appeals took judicial notice of the fact that El Grande and Aguirre Avenues are main streets of BF Homes Parañaque which have long been commercialized, thus:

The declaration of El Grande and Aguirre Avenues as commercial zones through Municipal Ordinance No. 97-08 is an exercise of police power. Obviously, because of the rapid and tremendous increase in population, the needs of the homeowners in the BF Parañaque Subdivision grew. The commercial zones in the area proved inadequate to service the needs of its residents. There was therefore a need to open more commercial districts. In fact, records show that several homeowners along El Grande and Aguirre Avenues converted their residences into business establishments. El Acto’s members are among them. Aside from the increasing number of commercial establishments therein, judicial notice may be taken of the fact that El Grande and Aguirre Avenues are main thoroughfares of BF Homes Parañaque which have long been commercialized. The local government therefore responded to these changes in the community by enacting Ordinance No. 97-08 x x x The Issues Petitioners raise the following issues: 1. Whether R.A. 7160, the Local Government Code of 1991 has repealed PD 957, the Subdivision and Condominium Buyer’s Protective Decree; 2. Whether the power of local government units to enact comprehensive zoning ordinances has legal limitations; 3. Whether Municipal Ordinance No. 97-08 is a legitimate exercise of police power; 4. Whether Municipal Ordinance No. 97-08 is constitutional considering that it impairs a contractual obligation annotated in homeowners’ titles and violates the doctrine of separation of powers; 5. Whether Municipal Ordinance No. 97-08 is enforceable pending review by the MMDA, the Metro Manila Mayor’s Council and the HLURB.13 The resolution of these issues turns on the validity of Municipal Ordinance No. 97-08. The Ruling of the Court The petition is without merit. Power to Enact Zoning Ordinances The Municipal Council of Parañaque enacted Municipal Ordinance No. 97-08 pursuant to the provisions of RA 7160 and Executive Order No. 72.14 Under Section 447 of RA 7160, the Sangguniang Bayan or the Municipal Council, as the legislative body of the municipality, has the power to enact ordinances for the general welfare of the municipality and its inhabitants. Among the functions of the Sangguniang Bayan enumerated under Section 447 of RA 7160 are: (2) Generate and maximize the use of resources and revenues for the development plans, program objectives and priorities of the municipality as provided for under Section 18 of this Code with particular attention to agro-industrial development and countryside growth and progress, and relative thereto, shall: xxxx (vii) Adopt a comprehensive land use plan for the municipality: Provided, That the formulation, adoption, or modification of said plan shall be in coordination with the approved provincial comprehensive land use plan; (viii) Reclassify land within the jurisdiction of the municipality subject to the pertinent provision of this Code; (ix) Enact integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establish fire limits or zones, particularly in populous centers; and regulate the construction, repair or modification of buildings

within said fire limits or zones in accordance with the provisions of the Fire Code; (Emphasis supplied) On the other hand, Executive Order No. 72 provides: SECTION 1. Plan formulation or updating. – (a) Cities and municipalities shall continue to formulate or update their respective comprehensive land use plans, in conformity with the land use planning and zoning standards and guidelines prescribed by the HLURB pursuant to national policies. As a policy recommending body of the LGU, the city or municipal development council (CDC/MDC) shall initiate the formulation or updating of its land use plan, in consultation with the concerned sectors in the community. For this purpose, the CDC/MDC may seek the assistance of any local official or field officer of NGA’s operation in the LGU. The city or municipal planning and development coordinator (CPDC/MPDC) and/or the city or municipal agriculturist, if there is any, shall provide the technical support services and such other assistance as may be required by the CDC/MDC to effectively carry out this function. The comprehensive land use plan prepared by the CDC/MDC shall be submitted to the sangguniang panglungsod or sangguniang bayan, as the case may be, for enactment into a zoning ordinance. Such ordinance shall be enacted and approved in accordance with Articles 107 and 108 of the Implementing Rules and Regulations (IRR) of the LGC. (b) The comprehensive land use plans of component cities and municipalities shall be formulated, adopted, or modified in accordance with the approved provincial comprehensive land use plans. (c) Cities and municipalities of metropolitan Manila shall continue to formulate or update their respective comprehensive land use plans, in accordance with the land use planning and zoning standards and guidelines prescribed by the HLURB pursuant to EO 392, S. of 1990, and other pertinent national policies. x x x x (Emphasis supplied) Under Section 3(m), Rule 131 of the Rules of Court, there is a presumption that official duty has been regularly performed. Thus, in the absence of evidence to the contrary, there is a presumption that public officers performed their official duties regularly and legally and in compliance with applicable laws, in good faith, and in the exercise of sound judgment.15 We find no sufficient evidence disputing the regularity of the enactment of Municipal Ordinance No. 97-08. Before the Municipal Council of Parañaque passed Municipal Ordinance No. 9708,16 it has been the subject of barangay consultations and committee hearings in accordance with Executive Order No. 72. Reclassification of El Grande and Aguirre Avenues Contrary to petitioners’ allegations, we find Municipal Ordinance No. 97-08 reasonable and not discriminating or oppressive with respect to BF Homes Parañaque. As held by the Court of Appeals, the increasing number of homeowners in BF Homes Parañaque necessitated the addition of commercial areas in the subdivision to service the needs of the homeowners. In fact, several homeowners along El Grande and Aguirre Avenues already converted their residences into business establishments. Furthermore, as found by the Court of Appeals, El Grande and Aguirre Avenues are main thoroughfares in BF Homes Parañaque which have long been commercialized. Even petitioner UBFHAI, the recognized umbrella organization of all homeowners’ associations in BF Homes Parañaque, acknowledged the need for additional commercial area. Records reveal that as early as 30 July 1989, UBFHAI recommended for approval an "Amended Integrated Zoning Policies and Guidelines for BF Homes Parañaque."17 UBFHAI proposed another commercial zone in BF Homes Parañaque to accommodate the growing needs of the residents, thus: Subject to the approval of BF Homes, Inc., the Local Zoning Official/Planning Officer of Parañaque and the Metro Manila Commission and in recognition of the fact that the subdivision

has tremendously grown in size and population since 1983 when the above-mentioned guidelines of the MMC [Ordinance 81-01] were promulgated, such that one commercial zone for the entire subdivision is now inadequate vis-a-vis the needs of the residents, the UBFHAI is proposing another commercial zone in Phase III of the Subdivision, in the vicinity of the Parish of the Presentation of the Child Jesus as follows: One lot deep along Aguirre Avenue from Gov. Santos St., to the end of Aguirre Avenue and two lots deep along El Grande from where it intersects Aguirre Avenue. Pending approval of the aforesaid proposal, commercial buildings constructed and existing in the aforesaid area will be given temporary-use permits good for five (5) years from December 31, 1986 or until December 31, 1991, after which, the same must revert to residential status, unless, in the meantime the proposal is approved, provided all such buildings must comply with the set-back and parking provision of the Metro Manila Commission Ordinance 81-01; I.M. 0983. xxxx The term for temporary use permits of the designated commercial area shall be considered extended for 8 years from December 31, 1991 to December 31, 1998; without prejudice to the official conversion of the area under existing MMA/LGC guidelines to commercial.18 (Emphasis supplied) Thus, UBFHAI’s proposed new commercial area, encompassing El Grande and Aguirre Avenues, is substantially the same area, which Municipal Ordinance No. 97-08 later reclassified as a commercial zone. Furthermore, in the subsequent years, UBFHAI and its member homeowners’ associations endorsed the issuance of municipal and barangay permits for commercial establishments along El Grande and Aguirre Avenues. Contrary to petitioners’ allegations, the commercial establishments endorsed by UBFHAI were not mere convenience stores, which Metro Manila Commission Ordinance No. 81-0119 and Municipal Ordinance No. 97-08 allow in residential areas. Among the commercial establishments which UBFHAI endorsed were a trading business,20 electronics repair shop,21 mini-grocery store,22 beauty salon,23 school,24 dress shop,25 and consultancy or management services business.26 Clearly, the reclassification of El Grande and Aguirre Avenues in BF Homes Parañaque as commercial area was reasonable and justified under the circumstances. Non-Impairment of Contract Petitioners invoke Presidential Decree No. 957 (PD 957),27 otherwise known as the Subdivision and Condominium Buyers’ Protective Decree. Petitioners maintain that PD 957 is intended primarily to protect the buyers and to ensure that subdivision developers keep their promises and representations. Petitioners allege that one of the promises of the developer of BF Homes Parañaque is that the property shall be used for residential purposes only. Petitioners assert that the reclassification of certain portions of BF Homes Parañaque from residential to commercial zone is unconstitutional because it impairs the contracts between the developer of BF Homes Parañaque and the lot buyers. The Court has upheld in several cases the superiority of police power over the non-impairment clause.28 The constitutional guaranty of non-impairment of contracts is limited by the exercise of the police power of the State, in the interest of public health, safety, morals and general welfare.29 In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co.,30 the Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations. The Court held: With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee–referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee–it should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the

rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people." Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company v. City of Davao, et al., police power "is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life." We were even more emphatic inVda. De Genuino v. The Court of Agrarian Relations, et al., when We declared: "We do not see why the public welfare when clashing with the individual right to property should not be made to prevail through the state’s exercise of its police power." Resolution No. 27. s-1960 declaring the western part of Highway 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.31 (Emphasis supplied) Likewise, in Sangalang v. Intermediate Appellate Court,32 the Court upheld Metro Manila Commission Ordinance No. 81-01, which reclassified Jupiter Street in Makati into a high-density commercial zone, as a legitimate exercise of police power. The Court held that the power of the Metro Manila Commission and the Makati Municipal Council to enact zoning ordinances for the general welfare prevails over the deed restrictions on the lot owners in Bel-Air Village which restricted the use of the lots for residential purposes only. The Court held: It is not that we are saying that restrictive easements, especially the easements herein in question, are invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction guarantees sanctity of contract and is said to be the "law between the contracting parties," but while it is so, it cannot contravene "law, morals, good customs, public order, or public policy." Above all, it cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. x x x33 (Emphasis supplied) Similarly, in this case, Municipal Ordinance No. 97-08 is a legitimate exercise of police power and the reclassification of El Grande and Aguirre Avenues in BF Homes Parañaque is not arbitrary or unreasonable. WHEREFORE, we AFFIRM the Decision dated 28 June 1999 and the Resolution dated 16 November 1999 of the Court of Appeals in CA-G.R. SP No. 46624

CASE: Social Justice Society (SJS) Officers v. Mayor Alfredo S. Lim (G.R. Nos. 187836 and 187916) DATE: 25 November 2014 PONENTE: J. Perez FACTS • On 12 October 2001, a Memorandum of Agreement was entered into by oil companies (Chevron, Petron and Shell) and Department of Energy for the creation of a Master Plan to address and minimize the potential risks and hazards posed by the proximity of communities, business and offices to Pandacan oil terminals without affecting security and reliability of supply and distribution of petroleum products. • On 20 November 2001, the Sangguniang Panlungsod (SP) enacted Ordinance No. 8027 which reclassifies the land use of Pandacan, Sta. Ana, and its adjoining areas from Industrial II to Commercial I. • Owners and operators of the businesses affected by the reclassification were given six (6) months from the date of effectivity to stop the operation of their businesses. It was later extended until 30 April 2003. • On 4 December 2002, a petition for mandamus was filed before the Supreme Court (SC) to enforce Ordinance No. 8027. • Unknown to the SC, the oil companies filed before the Regional Trial Court of Manila an action to annul Ordinance No. 8027 with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction. The same was issued in favor of Chevron and Shell. Petron, on the other hand, obtained a status quo on 4 August 2004. • On 16 June 2006, Mayor Jose Atienza, Jr. approved Ordinance No. 8119 entitled “An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration, Enforcement and Amendment thereto”. This designates Pandacan oil depot area as a Planned Unit Development/Overlay Zone. • On 7 March 2007, the SC granted the petition for mandamus and directed Mayor Atienza to immediately enforce Ordinance No. 8027. It declared that the objective of the ordinance is to protect the residents of manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. • The oil companies filed a Motion for Reconsideration (MR) on the 7 March 2007 Decision. The SC later resolved that Ordinance No. 8027 is constitutional and that it was not impliedly repealed by Ordinance No. 8119 as there is no irreconcilable conflict between them. • SC later on denied with finality the second MR of the oil companies. • On 14 May 2009, during the incumbency of Mayor Alfredo Lim (Mayor Lim), the SP enacted Ordinance No. 8187. The Industrial Zone under Ordinance No. 8119 was limited to Light Industrial Zone, Ordinance No. 8187 appended to the list a Medium and a Heavy Industrial Zone where petroleum refineries and oil depots are expressly allowed. • Petitioners Social Justice Society Officers, Mayor Atienza, et.al. filed a petition for certiorari under Rule 65 assailing the validity of Ordinance No. 8187. Their contentions are as follows: - It is an invalid exercise of police power because it does not promote the general welfare of the people - It is violative of Section 15 and 16, Article II of the 1987 Constitution as well as health and environment related municipal laws and international conventions and treaties, such as: Clean Air Act; Environment Code; Toxic and Hazardous Wastes Law; Civil Code provisions on nuisance and human relations; Universal Declaration of Human Rights; and Convention on the Rights of the Child - The title of Ordinance No. 8187 purports to amend or repeal Ordinance No. 8119 when it actually intends to repeal Ordinance No. 8027

• On the other hand, the respondents Mayor Lim, et.al. and the intervenors oil companies contend that: - The petitioners have no legal standing to sue whether as citizens, taxpayers or legislators. They further failed to show that they have suffered any injury or threat of injury as a result of the act complained of - The petition should be dismissed outright for failure to properly apply the related provisions of the Constitution, the Rules of Court, and/or the Rules of Procedure for Environmental Cases relative to the appropriate remedy available - The principle of the hierarchy of courts is violated because the SC only exercises appellate jurisdiction over cases involving the constitutionality or validity of an ordinance under Section 5, Article VIII of the 1987 Constitution - It is the function of the SP to enact zoning ordinance without prior referral to the Manila Zoning Board of Adjustment and Appeals; thus, it may repeal all or part of zoning ordinance sought to be modified - There is a valid exercise of police power • On 28 August 2012, the SP enacted Ordinance No. 8283 which essentially amended the assailed Ordinance to exclude the area where petroleum refineries and oil depots are located from the Industrial Zone. The same was vetoed by Mayor Lim. ISSUES 1. WON there are violations of environmental laws 2. WON the principle of hierarchy of courts is violated 3. WON the petitioners have legal standing to sue 4. WON Ordinance No. 8187 is unconstitutional in relation to the Pandacan Terminals RULING 1. None. The scope of the Rules of Procedure for Environmental Cases is embodied in Section 2, Part I, Rule I thereof. It states that the Rules shall govern the procedure in civil, criminal and special civil actions before the MeTCs, MTCCs, MTCs and MCTCs, and the RTCs involving the enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to: R.A. No. 6969, Toxic Substances and Hazardous Waste Act; R.A. No. 8749, Clean Air Act; Provisions in C.A. No. 141; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. Notably, the aforesaid Rules are limited in scope. While, indeed, there are allegations of violations of environmental laws in the petitions, these only serve as collateral attacks that would support the other position of the petitioners – the protection of the right to life, security and safety. 2. No. The SC held that it is true that the petitions should have been filed with the RTC, it having concurrent jurisdiction with the SC over a special civil action for prohibition, and original jurisdiction over petitions for declaratory relief. However, the petitions at bar are of transcendental importance warranting a relaxation of the doctrine of hierarchy of courts. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Jaworski v. PAGCOR, 464 Phil. 375)

3. Yes. The SC referred to their Decision dated 7 March 2007 which ruled that the petitioners in that case have a legal right to seek the enforcement of Ordinance No. 8027 because the subject of the petition concerns a public right, and they, as residents of Manila, have a direct interest in the implementation of the ordinances of the city. No different are herein petitioners who seek to prohibit the enforcement of the assailed ordinance, and who deal with the same subject matter that concerns a public right. In like manner, the preservation of the life, security and safety of the people is indisputably a right of utmost importance to the public. Certainly, the petitioners, as residents of Manila, have the required personal interest to seek relief to protect such right. 4. Yes. In striking down the contrary provisions of the assailed Ordinance relative to the continued stay of the oil depots, the SC followed the same line of reasoning used in its 7 March 2007 decision, to wit: “Ordinance No. 8027 was enacted for the purpose of promoting a sound urban planning, ensuring health, public safety and general welfare of the residents of Manila. The Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from industrial to commercial. The following facts were found by the Committee on Housing, Resettlement and Urban Development of the City of Manila which recommended the approval of the ordinance: (1) The depot facilities contained 313.5 million liters of highly flammable and highly volatile products which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel oil among others; (2) The depot is open to attack through land, water and air; (3) It is situated in a densely populated place and near Malacañang Palace; and (4) In case of an explosion or conflagration in the depot, the fire could spread to the neighboring communities. The Ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as there is such a target in their midst, the residents of Manila are not safe. It therefore becomes necessary to remove these terminals to dissipate the threat.” The same best interest of the public guides the present decision. The Pandacan oil depot remains a terrorist target even if the contents have been lessened. In the absence of any convincing reason to persuade the Court that the life, security and safety of the inhabitants of Manila are no longer put at risk by the presence of the oil depots, the SC holds that the Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and unconstitutional. For, given that the threat sought to be prevented may strike at one point or another, no matter how remote it is as perceived by one or some, the SC cannot allow the right to life be dependent on the unlikelihood of an event. Statistics and theories of probability

have no place in situations where the very life of not just an individual but of residents of big neighbourhoods is at stake. DISPOSITIVE PORTION 1. Ordinance No. 8187 is declared unconstitutional and invalid with respect to the continued stay of the Pandacan Oil Terminals. 2. The incumbent mayor of the City of Manila is ordered to cease and desist from enforcing Ordinance No. 8187 and to oversee the relocation and transfer of the oil terminals out of the Pandacan area 3. The oil companies shall, within a non-extendible period of forty-five (45) days, submit to the RTC Manila, Branch 39 an updated comprehensive plan and relocation schedule, which relocation shall be completed not later than six (6) months from the date the required document is submitted. Ferrer v Mayor Bautista Facts: • • • • •

•

The City of Quezon passed two ordinances namely. The first one was the Socialized Housing Tax of QC allowing the imposition of special assessment (1/2 of the assessed valued of land in excess of P100k) The second one was Ordinance No. SP-2235, S-2013 on Garbage Collection Fees imposing fees depending on the amount of the land or floor area). Jose Ferrer, as a property in Quezon City questioned the validity of the city ordinances. According to Ferrer: ◦ The city has no power to impose the tax. ◦ The SHT violates the rule on equality because it burdens real property owners with expenses to provide funds for the housing of informal settlers. ◦ The SHT is confiscatory or oppressive. Also, he assails the validity of the garbage fees imposition because: ◦ It violates the rule on double taxation. ◦ It violates the rule on equality because the fees are collected from only domestic households and not from restaurants, food courts, fast food chains, and other commercial dining places that spew garbage much more than residential property owners.

Issue: WON the ordinances were valid. Held: 1st ordinance: Socialized Housing Tax of Quezon City is valid. Cities have the power to tax It must be noted that local government units such as cities has the power to tax. The collection for the socialized housing tax is valid. It must be noted that the collections were made to accrue to the socialized housing programs and projects of the city. The imposition was for a public purpose (exercise of power of taxation + police power) In this case, there was both an exercise of the power to tax (primary) and police power (incidental). Removing slum areas in Quezon City is not only beneficial to the underprivileged and homeless constituents but advantageous to the real property owners as well.

The situation will improve the value of the their property investments, fully enjoying the same in view of an orderly, secure, and safe community, and will enhance the quality of life of the poor, making them law-abiding constituents and better consumers of business products. There is no violation of the rule on equality Note: There is a substantial distinction between: real property owner and an informal settler. In fact, the Supreme Court said that the disparity is so obvious. It is inherent in the power to tax that a State is free to select the subjects of taxation. Inequities which result from a singling out of one particular class for taxation or exemption infringe no constitutional limitation. All these requisites are complied with: An ordinance based on reasonable classification does not violate the constitutional guaranty of the equal protection of the law. The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class. The ordinance is not oppressive or confiscatory The ordinance is also not oppressive since the tax rate being imposed is consistent with the UDHA (Urban Development and Housing Act of 1992). While the law authorizes LGUs to collect SHT on properties with an assessed value of more than P50,000.00, the questioned ordinance only covers properties with an assessed value exceeding P100,000.00. As well, the ordinance provides for a tax credit equivalent to the total amount of the special assessment paid by the property owner beginning in the sixth (6th) year of the effectivity of the ordinance. 2nd ordinance: The imposition of garbage fee is invalid. Note: There was no violation of double taxation but there was a violation of the rule on equity. There is no violation of double taxation: the garbage fees are not taxes In Progressive Development Corporation v. Quezon City, the Court declared that: "if the generating of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that incidentally revenue is also obtained does not make the imposition a tax." Contention of Ferrer: that the imposition of garbage fee is tantamount to double taxation because garbage collection is a basic and essential public service that should be paid out from property tax, business tax, transfer tax, amusement tax, community tax certificate, other taxes, and the IRA of the Quezon City Government. All these are valid taxes. The garbage fees are license fees Footnote: In order to constitute double taxation in the objectionable or prohibited sense the same property must be taxed twice when it should be taxed but once; both taxes must be imposed on the same property or subject-matter, for the same purpose, by the same State, Government, or taxing authority, within the same jurisdiction or taxing district, during the same taxing period, and they must be the same kind or character of tax. There is a violation of the rule on equality: no substantial distinction There is no substantial distinction between an occupant of a lot, on one hand, and an occupant of a unit in a condominium, socialized housing project or apartment, on the other hand. Most likely, garbage output produced by these types of occupants is uniform and does not vary to a large degree; thus, a similar schedule of fee is both just and equitable.

The garbage fees or rates are unjust and inequitable A resident of a 200 sq. m. unit in a condominium or socialized housing project has to pay twice the amount than a resident of a lot similar in size; unlike unit occupants, all occupants of a lot with an area of 200 sq. m. and less have to pay a fixed rate of Php100.00; and the same amount of garbage fee is imposed regardless of whether the resident is from a condominium or from a socialized housing project. The classifications are not germane to the purpose of the ordinance The declared purpose is: "promoting shared responsibility with the residents to attack their common mindless attitude in over-consuming the present resources and in generating waste." Instead of simplistically categorizing the payee into land or floor occupant of a lot or unit of a condominium, socialized housing project or apartment, respondent City Council should have considered factors that could truly measure the amount of wastes generated and the appropriate fee for its collection. Factors include, among others, household age and size, accessibility to waste collection, population density of the barangay or district, capacity to pay, and actual occupancy of the property. SC: → Validity of Socialized Housing Tax of Quezon City is upheld. → Ordinance No. SP-2235, S-2013, which collects an annual garbage fee on all domestic households in Quezon City, is unconstitutional and illegal. Gancayco v Quezon city and MMDA SERENO, J.: Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing the Decision[1] promulgated on 18 July 2006 and the Resolution[2] dated 10 May 2007 of the Court of Appeals in CA-G.R. SP No. 84648. The Facts In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of land located at 746 Epifanio delos Santos Avenue (EDSA),[3] Quezon City with an area of 375 square meters and covered by Transfer Certificate of Title (TCT) No. RT114558. On 27 March 1956, the Quezon City Council issued Ordinance No. 2904, entitled An Ordinance Requiring the Construction of Arcades, for Commercial Buildings to be Constructed in Zones Designated as Business Zones in the Zoning Plan of Quezon City, and Providing Penalties in Violation Thereof.[4] An arcade is defined as any portion of a building above the first floor projecting over the sidewalk beyond the first storey wall used as protection for pedestrians against rain or sun.[5] Ordinance No. 2904 required the relevant property owner to construct an arcade with a width of 4.50 meters and height of 5.00 meters along EDSA, from the north side of Santolan Road to one lot after Liberty Avenue, and from one lot before Central Boulevard to the Botocan transmission line. At the outset, it bears emphasis that at the time Ordinance No. 2904 was passed by the city council, there was yet no building code passed by the national legislature. Thus, the regulation of the construction of buildings was left to the discretion of local government units. Under this particular ordinance, the city council required that the arcade is to be created by constructing the wall of the ground floor facing the sidewalk a few meters away from the property line. Thus, the building owner is not allowed to construct his wall up to the edge of the property line, thereby creating a space or shelter under the first floor. In effect, property owners relinquish the use of the space for use as an arcade for pedestrians, instead of using it for their own purposes. The ordinance was amended several times. On 8 August 1960, properties located at the Quezon City-San Juan boundary were exempted by Ordinance No. 60-4477 from the construction of arcades. This ordinance was further amended by Ordinance No. 60-4513, extending the exemption to commercial buildings from Balete Street to Seattle Street. Ordinance No. 6603 dated 1 March 1966 meanwhile reduced the width of the arcades to three meters for buildings along V. Luna Road, Central District, Quezon City. The ordinance covered the property of Justice Gancayco. Subsequently, sometime in 1965, Justice Gancayco sought the exemption of a two-storey building being constructed on his

property from the application of Ordinance No. 2904 that he be exempted from constructing an arcade on his property. On 2 February 1966, the City Council acted favorably on Justice Gancaycos request and issued Resolution No. 7161, S-66, subject to the condition that upon notice by the City Engineer, the owner shall, within reasonable time, demolish the enclosure of said arcade at his own expense when public interest so demands.[6] Decades after, in March 2003, the Metropolitan Manila Development Authority (MMDA) conducted operations to clear obstructions along the sidewalk of EDSA in Quezon City pursuant to Metro Manila Councils (MMC) Resolution No. 02-28, Series of 2002.[7] The resolution authorized the MMDA and local government units to clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all illegal structures and obstructions.[8] On 28 April 2003, the MMDA sent a notice of demolition to Justice Gancayco alleging that a portion of his building violated the National Building Code of the Philippines (Building Code)[9] in relation to Ordinance No. 2904. The MMDA gave Justice Gancayco fifteen (15) days to clear the portion of the building that was supposed to be an arcade along EDSA.[10] Justice Gancayco did not comply with the notice. Soon after the lapse of the fifteen (15) days, the MMDA proceeded to demolish the party wall, or what was referred to as the wing walls, of the ground floor structure. The records of the present case are not entirely clear on the extent of the demolition; nevertheless, the fact of demolition was not disputed. At the time of the demolition, the affected portion of the building was being used as a restaurant. On 29 May 2003, Justice Gancayco filed a Petition[11] with prayer for a temporary restraining order and/or writ of preliminary injunction before the Regional Trial Court (RTC) of Quezon City, docketed as Civil Case No. Q03-49693, seeking to prohibit the MMDA and the City Government of Quezon City from demolishing his property. In his Petition,[12] he alleged that the ordinance authorized the taking of private property without due process of law and just compensation, because the construction of an arcade will require 67.5 square meters from the 375 square meter property. In addition, he claimed that the ordinance was selective and discriminatory in its scope and application when it allowed the owners of the buildings located in the Quezon City-San Juan boundary to Cubao Rotonda, and Balete to Seattle Streets to construct arcades at their option. He thus sought the declaration of nullity of Ordinance No. 2904 and the payment of damages. Alternately, he prayed for the payment of just compensation should the court hold the ordinance valid. The City Government of Quezon City claimed that the ordinance was a valid exercise of police power, regulating the use of property in a business zone. In addition, it pointed out that Justice Gancayco was already barred by estoppel, laches and prescription. Similarly, the MMDA alleged that Justice Gancayco could not seek the nullification of an ordinance that he had already violated, and that the ordinance enjoyed the presumption of constitutionality. It further stated that the questioned property was a public nuisance impeding the safe passage of pedestrians. Finally, the MMDA claimed that it was merely implementing the legal easement established by Ordinance No. 2904.[13] The RTC rendered its Decision on 30 September 2003 in favor of Justice Gancayco.[14] It held that the questioned ordinance was unconstitutional, ruling that it allowed the taking of private property for public use without just compensation. The RTC said that because 67.5 square meters out of Justice Gancaycos 375 square meters of property were being taken without compensation for the publics benefit, the ordinance was confiscatory and oppressive. It likewise held that the ordinance violated owners right to equal protection of laws. The dispositive portion thus states: WHEREFORE, the petition is hereby granted and the Court hereby declares Quezon City Ordinance No. 2094,[15] Series of 1956 to be unconstitutional, invalid and void ab initio. The respondents are hereby permanently enjoined from enforcing and implementing the said ordinance, and the respondent MMDA is hereby directed to immediately restore the portion of the party wall or wing wall of the building of the petitioner it destroyed to its original condition. IT IS SO ORDERED.

The MMDA thereafter appealed from the Decision of the trial court. On 18 July 2006, the Court of Appeals (CA) partly granted the appeal.[16] The CA upheld the validity of Ordinance No. 2904 and lifted the injunction against the enforcement and implementation of the ordinance. In so doing, it held that the ordinance was a valid exercise of the right of the local government unit to promote the general welfare of its constituents pursuant to its police powers. The CA also ruled that the ordinance established a valid classification of property owners with regard to the construction of arcades in their respective properties

depending on the location. The CA further stated that there was no taking of private property, since the owner still enjoyed the beneficial ownership of the property, to wit:

Even with the requirement of the construction of arcaded sidewalks within his commercial lot, appellee still retains the beneficial ownership of the said property. Thus, there is no taking for public use which must be subject to just compensation. While the arcaded sidewalks contribute to the public good, for providing safety and comfort to passersby, the ultimate benefit from the same still redounds to appellee, his commercial establishment being at the forefront of a busy thoroughfare like EDSA. The arcaded sidewalks, by their nature, assure clients of the commercial establishments thereat some kind of protection from accidents and other hazards. Without doubt, this sense of protection can be a boon to the business activity therein engaged. [17]Nevertheless, the CA held that the MMDA went beyond its powers when it demolished the subject property. It further found that Resolution No. 02-28 only refers to sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila, thus excluding Justice Gancaycos private property. Lastly, the CA stated that the MMDA is not clothed with the authority to declare, prevent or abate nuisances. Thus, the dispositive portion stated:

WHEREFORE, the appeals are PARTLY GRANTED. The Decision dated September 30, 2003 of the Regional Trial Court, Branch 224, Quezon City, is MODIFIED, as follows: 1) The validity and constitutionality of Ordinance No. 2094,[18] Series of 1956, issued by the City Council of Quezon City, is UPHELD; and 2) The injunction against the enforcement and implementation of the said Ordinance is LIFTED. SO ORDERED. This ruling prompted the MMDA and Justice Gancayco to file their respective Motions for Partial Reconsideration.[19] On 10 May 2007, the CA denied the motions stating that the parties did not present new issues nor offer grounds that would merit the reconsideration of the Court.[20] Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA filed their respective Petitions for Review before this Court. The issues raised by the parties are summarized as follows: I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED FROM ASSAILING THE VALIDITY OF ORDINANCE NO. 2904. II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL. III. WHETHER OR NOT THE WING WALL OF JUSTICE GANCAYCOS BUILDING IS A PUBLIC NUISANCE. IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE PROPERTY OF JUSTICE GANCAYCO. The Courts Ruling Estoppel The MMDA and the City Government of Quezon City both claim that Justice Gancayco was estopped from challenging the ordinance, because, in 1965, he asked for an exemption from the application of the ordinance. According to them, Justice Gancayco thereby recognized the power of the city government to regulate the construction of buildings. To recall, Justice Gancayco questioned the constitutionality of the ordinance on two grounds: (1) whether the ordinance takes private property without due process of law and just compensation; and (2) whether the ordinance violates the equal protection of rights because it allowed exemptions from its application. On the first ground, we find that Justice Gancayco may still question the constitutionality of the ordinance to determine whether or not the ordinance constitutes a taking of private property without due process of law and just compensation. It was only in 2003 when he was allegedly

deprived of his property when the MMDA demolished a portion of the building. Because he was granted an exemption in 1966, there was no taking yet to speak of. Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,[21] we held: It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced in the special conditions imposed by the City Mayor in subject business permit does not preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts which are clearly beyond the scope of one's authority are null and void and cannot be given any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void or ultra vires. (Emphasis supplied.)

Recently, in British American Tobacco v. Camacho,[22] we likewise held: We find that petitioner was not guilty of estoppel. When it made the undertaking to comply with all issuances of the BIR, which at that time it considered as valid, petitioner did not commit any false misrepresentation or misleading act. Indeed, petitioner cannot be faulted for initially undertaking to comply with, and subjecting itself to the operation of Section 145(C), and only later on filing the subject case praying for the declaration of its unconstitutionality when the circumstances change and the law results in what it perceives to be unlawful discrimination. The mere fact that a law has been relied upon in the past and all that time has not been attacked as unconstitutional is not a ground for considering petitioner estopped from assailing its validity. For courts will pass upon a constitutional question only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. (Emphasis supplied.

Anent the second ground, we find that Justice Gancayco may not question the ordinance on the ground of equal protection when he also benefited from the exemption. It bears emphasis that Justice Gancayco himself requested for an exemption from the application of the ordinance in 1965 and was eventually granted one. Moreover, he was still enjoying the exemption at the time of the demolition as there was yet no valid notice from the city engineer. Thus, while the ordinance may be attacked with regard to its different treatment of properties that appears to be similarly situated, Justice Gancayco is not the proper person to do so.Zoning and the regulation of theconstruction of buildings are valid

Zoning ang the consttructiin are valid exercises of police power . In MMDA v. Bel-Air Village Association,[23] we discussed the nature of police powers exercised by local government units, to wit: Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare.

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body.

To resolve the issue on the constitutionality of the ordinance, we must first determine whether there was a valid delegation of police power. Then we can determine whether the City Government of Quezon City acted within the limits of the delegation. It is clear that Congress expressly granted the city government, through the city council, police power by virtue of Section 12(oo) of Republic Act No. 537, or the Revised Charter of Quezon City,[24] which states: To make such further ordinances and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.

Specifically, on the powers of the city government to regulate the construction of buildings, the Charter also expressly provided that the city government had the power to regulate the kinds of buildings and structures that may be erected within fire limits and the manner of constructing and repairing them.[25] With regard meanwhile to the power of the local government units to issue zoning ordinances, we apply Social Justice Society v. Atienza.[26] In that case, the Sangguniang Panlungsod of Manila City enacted an ordinance on 28 November 2001 reclassifying certain areas of the city from industrial to commercial. As a result of the zoning ordinance, the oil terminals located in those areas were no longer allowed. Though the oil companies contended that they stood to lose billions of pesos, this Court upheld the power of the city government to pass the assailed ordinance, stating: In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to fulfil the objectives of the government. Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare. However, the interference must be reasonable and not arbitrary. And to forestall arbitrariness, the methods or means used to protect public health, morals, safety or welfare must have a reasonable relation to the end in view.

The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the area where the depot is situated from industrial to commercial. A zoning ordinance is defined as a local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs. As a result of the zoning, the continued operation of the businesses of the oil companies in their present

location will no longer be permitted. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality. Consequently, the enactment of Ordinance No. 8027 is within the power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those affected cannot be said to be unjust... (Emphasis supplied)

held:

In Carlos Superdrug v. Department of Social Welfare and Development,[27] we also For this reason, when the conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare.

Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect of the provision in question, there is no basis for its nullification in view of the presumption of validity which every law has in its favor. (Emphasis supplied.) In the case at bar, it is clear that the primary objectives of the city council of Quezon City when it issued the questioned ordinance ordering the construction of arcades were the health and safety of the city and its inhabitants; the promotion of their prosperity; and the improvement of their morals, peace, good order, comfort, and the convenience. These arcades provide safe and convenient passage along the sidewalk for commuters and pedestrians, not just the residents of Quezon City. More especially so because the contested portion of the building is located on a busy segment of the city, in a business zone along EDSA. Corollarily, the policy of the Building Code,[28] which was passed after the Quezon City Ordinance, supports the purpose for the enactment of Ordinance No. 2904. The Building Code states: Section 102. Declaration of Policy. It is hereby declared to be the policy of the State to safeguard life, health, property, and public welfare, consistent with the principles of sound environmental management and control; and to this end, make it the purpose of this Code to provide for all buildings and structures, a framework of minimum standards and requirements to regulate and control their location, site, design quality of materials, construction, occupancy, and maintenance.

Section 1004 likewise requires the construction of arcades whenever existing or zoning ordinances require it. Apparently, the law allows the local government units to determine whether arcades are necessary within their respective jurisdictions. Justice Gancayco argues that there is a three-meter sidewalk in front of his property line, and the arcade should be constructed above that sidewalk rather than within his property line. We do not need to address this argument inasmuch as it raises the issue of the wisdom of the city ordinance, a matter we will not and need not delve into. To reiterate, at the time that the ordinance was passed, there was no national building code enforced to guide the city council; thus, there was no law of national application that prohibited the city council from regulating the construction of buildings, arcades and sidewalks in their jurisdiction. The wing walls of the building are not

nuisances per se.The MMDA claims that the portion of the building in question is a nuisance per se.

We disagree. The fact that in 1966 the City Council gave Justice Gancayco an exemption from constructing an arcade is an indication that the wing walls of the building are not nuisances per se. The wing walls do not per se immediately and adversely affect the safety of persons and property. The fact that an ordinance may declare a structure illegal does not necessarily make that structure a nuisance. Article 694 of the Civil Code defines nuisance as any act, omission, establishment, business, condition or property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or, (5) hinders or impairs the use of property. A nuisance may be per se or per accidens. A nuisance per se is that which affects the immediate safety of persons and property and may summarily be abated under the undefined law of necessity.[29] Clearly, when Justice Gancayco was given a permit to construct the building, the city council or the city engineer did not consider the building, or its demolished portion, to be a threat to the safety of persons and property. This fact alone should have warned the MMDA against summarily demolishing the structure. Neither does the MMDA have the power to declare a thing a nuisance. Only courts of law have the power to determine whether a thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp.,[30] we held: We agree with petitioner's contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary courts of law. If a thing be in fact, a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan. (Emphasis supplied.)

MMDA illegally demolished

the property of Justice Gancayco.

MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of 2002, it is empowered to demolish Justice Gancaycos property. It insists that the Metro Manila Council authorized the MMDA and the local government units to clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all illegal structures and

obstructions. It further alleges that it demolished the property pursuant to the Building Code in relation to Ordinance No. 2904 as amended. However, the Building Code clearly provides the process by which a building may be demolished. The authority to order the demolition of any structure lies with the Building Official. The pertinent provisions of the Building Code provide: SECTION 205. Building Officials. Except as otherwise provided herein, the Building Official shall be responsible for carrying out the provisions of this Code in the field as well as the enforcement of orders and decisions made pursuant thereto.

Due to the exigencies of the service, the Secretary may designate incumbent Public Works District Engineers, City Engineers and Municipal Engineers act as Building Officials in their respective areas of jurisdiction.

The designation made by the Secretary under this Section shall continue until regular positions of Building Official are provided or unless sooner terminated for causes provided by law or decree.

xxx xxx xxx

SECTION 207. Duties of a Building Official. In his respective territorial jurisdiction, the Building Official shall be primarily responsible for the enforcement of the provisions of this Code as well as of the implementing rules and regulations issued therefor. He is the official charged with the duties of issuing building permits.

In the performance of his duties, a Building Official may enter any building or its premises at all reasonable times to inspect and determine compliance with the requirements of this Code, and the terms and conditions provided for in the building permit as issued.

When any building work is found to be contrary to the provisions of this Code, the Building Official may order the work stopped and prescribe the terms and/or conditions when the work will be allowed to resume. Likewise, the Building Official is authorized to order the discontinuance of the occupancy or use of any building or structure or portion thereof found to be occupied or used contrary to the provisions of this Code. xxx xxx xxx

SECTION 215. Abatement of Dangerous Buildings. When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the degree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines. (Emphasis supplied.)

MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions, Inc.[31] is applicable to the case at bar. In that case, MMDA, invoking its charter and the Building Code, summarily dismantled the advertising media installed on the Metro Rail Transit (MRT) 3. This Court held: It is futile for MMDA to simply invoke its legal mandate to justify the dismantling of Trackworks' billboards, signages and other advertising media. MMDA simply had no power on its own to dismantle, remove, or destroy the billboards, signages and other advertising media installed on the MRT3 structure by Trackworks. In Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., and Metropolitan Manila Development Authority v. Garin, the Court had the occasion to rule that MMDA's powers were limited to the formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installing a system, and administration. Nothing in Republic Act No. 7924 granted MMDA police power, let alone legislative power.

Clarifying the real nature of MMDA, the Court held:

...The MMDA is, as termed in the charter itself, a "development authority". It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, nongovernmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz:

Sec.2. Creation of the Metropolitan Manila Development Authority.- xxx. The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of local government units concerning purely local matters.

The Court also agrees with the CA's ruling that MMDA Regulation No. 96-009 and MMC Memorandum Circular No. 88-09 did not apply to Trackworks' billboards, signages and other advertising media. The prohibition against posting, installation and display of billboards, signages and other advertising media applied only to public areas, but MRT3, being private property pursuant to the BLT agreement between the Government and MRTC, was not one of the areas as to which the prohibition applied. Moreover, MMC Memorandum Circular No. 88-09 did not apply to Trackworks' billboards, signages and other advertising media in MRT3, because it did not specifically cover MRT3, and because it was issued a year prior to the construction of MRT3 on the center island of EDSA. Clearly, MMC Memorandum Circular No. 88-09 could not have included MRT3 in its prohibition.

MMDA's insistence that it was only implementing Presidential Decree No. 1096 (Building Code) and its implementing rules and regulations is not persuasive. The power to enforce the provisions of the Building Code was lodged in the Department of Public Works and Highways (DPWH), not in MMDA, considering the law's following provision, thus:

Sec.

201.

Responsibility for Administration and Enforcement. The administration and enforcement of the provisions of this Code including the imposition of penalties for administrative violations thereof is hereby vested in the Secretary of Public Works, Transportation and Communications, hereinafter referred to as the "Secretary."

There is also no evidence showing that MMDA had been delegated by DPWH to implement the Building Code. (Emphasis supplied.) Additionally, the penalty prescribed by Ordinance No. 2904 itself does not include the demolition of illegally constructed buildings in case of violations. Instead, it merely prescribes a punishment of a fine of not more than two hundred pesos (P200.00) or by imprisonment of not more than thirty (30) days, or by both such fine and imprisonment at the discretion of the Court, Provided, that if the violation is committed by a corporation, partnership, or any juridical entity, the Manager, managing partner, or any person charged with the management thereof shall be held responsible therefor. The ordinance itself also clearly states that it is the regular courts that will determine whether there was a violation of the ordinance.

As pointed out in Trackworks, the MMDA does not have the power to enact ordinances. Thus, it cannot supplement the provisions of Quezon City Ordinance No. 2904 merely through its Resolution No. 02-28. Lastly, the MMDA claims that the City Government of Quezon City may be considered to have approved the demolition of the structure, simply because then Quezon City Mayor Feliciano R. Belmonte signed MMDA Resolution No. 02-28. In effect, the city government delegated these powers to the MMDA. The powers referred to are those that include the power to declare, prevent and abate a nuisance[32] and to further impose the penalty of removal or demolition of the building or structure by the owner or by the city at the expense of the owner.[33] MMDAs argument does not hold water. There was no valid delegation of powers to the MMDA. Contrary to the claim of the MMDA, the City Government of Quezon City washed its hands off the acts of the former. In its Answer,[34] the city government stated that the demolition was undertaken by the MMDA only, without the participation and/or consent of Quezon City. Therefore, the MMDA acted on its own and should be held solely liable for the destruction of the portion of Justice Gancaycos building. WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 84648 is AFFIRMED. Acebedo Optical v CA At bar is a petition for review under Rule 45 of the Rules of Court seeking to nullify the dismissal by the Court of Appeals of the original petition for certiorari, prohibition and mandamus filed by the herein petitioner against the City Mayor and City Legal Officer of Iligan and the Samahang Optometrist sa Pilipinas — Iligan Chapter (SOPI, for brevity). The antecedent facts leading to the filing of the instant petition are as follows: Petitioner applied with the Office of the City Mayor of Iligan for a business permit. After consideration of petitioner's application and the opposition interposed thereto by local optometrists, respondent City Mayor issued Business Permit No. 5342 subject to the following conditions: 1. Since it is a corporation, Acebedo cannot put up an optical clinic but only a commercial store; 2. Acebedo cannot examine and/or prescribe reading and similar optical glasses for patients, because these are functions of optical clinics; 3. Acebedo cannot sell reading and similar eyeglasses without a prescription having first been made by an independent optometrist (not its employee) or independent optical clinic. Acebedo can only sell directly to the public, without need of a prescription, Ray-Ban and similar eyeglasses; 4. Acebedo cannot advertise optical lenses and eyeglasses, but can advertise Ray-Ban and similar glasses and frames; 5. Acebedo is allowed to grind lenses but only upon the prescription of an independent optometrist. 1 On December 5, 1988, private respondent Samahan ng Optometrist Sa Pilipinas (SOPI), Iligan Chapter, through its Acting President, Dr. Frances B. Apostol, lodged a complaint against the petitioner before the Office of the City Mayor, alleging that Acebedo had violated the conditions set forth in its business permit and requesting the cancellation and/or revocation of such permit. Acting on such complaint, then City Mayor Camilo P. Cabili designated City Legal Officer Leo T. Cahanap to conduct an investigation on the matter. On July 12, 1989, respondent City Legal Officer submitted a report to the City Mayor finding the herein petitioner guilty of violating all the conditions of its business permit and recommending the disqualification of petitioner from operating its business in Iligan City. The report further advised that no new permit shall be granted to petitioner for the year 1989 and should only be given time to wind up its affairs. On July 19, 1989, the City Mayor sent petitioner a Notice of Resolution and Cancellation of Business Permit effective as of said date and giving petitioner three (3) months to wind up its affairs. On October 17, 1989, petitioner brought a petition for certiorari, prohibition and mandamus with prayer for restraining order/preliminary injunction against the respondents, City Mayor, City

Legal Officer and Samahan ng Optometrists sa Pilipinas-Iligan City Chapter (SOPI), docketed as Civil Case No. 1497 before the Regional Trial Court of Iligan City, Branch I. Petitioner alleged that (1) it was denied due process because it was not given an opportunity to present its evidence during the investigation conducted by the City Legal Officer; (2) it was denied equal protection of the laws as the limitations imposed on its business permit were not imposed on similar businesses in Iligan City; (3) the City Mayor had no authority to impose the special conditions on its business permit; and (4) the City Legal Officer had no authority to conduct the investigation as the matter falls within the exclusive jurisdiction of the Professional Regulation Commission and the Board of Optometry. Respondent SOPI interposed a Motion to Dismiss the Petition on the ground of non-exhaustion of administrative remedies but on November 24, 1989, Presiding Judge Mamindiara P. Mangotara deferred resolution of such Motion to Dismiss until after trial of the case on the merits. However, the prayer for a writ of preliminary injunction was granted. Thereafter, respondent SOPI filed its answer.1âwphi1.nêt On May 30, 1990, the trial court dismissed the petition for failure to exhaust administrative remedies, and dissolved the writ of preliminary injunction it earlier issued. Petitioner's motion for reconsideration met the same fate. It was denied by an Order dated June 28, 1990. On October 3, 1990, instead of taking an appeal, petitioner filed a petition for certiorari, prohibition and mandamus with the Court of Appeals seeking to set aside the questioned Order of Dismissal, branding the same as tainted with grave abuse of discretion on the part of the trial court. On January 24, 1991, the Ninth Division 2 of the Court of Appeals dismissed the petition for lack of merit. Petitioner's motion reconsideration was also denied in the Resolution dated May 15, 1991. Undaunted, petitioner has come before this court via the present petition, theorizing that: A. THE RESPONDENT COURT, WHILE CORRECTLY HOLDING THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE PERMIT AS THEY HAD NO BASIS IN ANY LAW OR ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL CONDITIONS NEVERTHELESS BECAME BINDING ON PETITIONER UPON ITS ACCEPTANCE THEREOF AS A PRIVATE AGREEMENT OR CONTRACT. B. THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE CONTRACT BETWEEN PETITIONER AND THE CITY OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE PERFORMANCE OF ITS PROPRIETARY FUNCTIONS. The petition is impressed with merit. Although petitioner agrees with the finding of the Court of Appeals that respondent City Mayor acted beyond the scope of his authority in imposing the assailed conditions in subject business permit, it has excepted to the ruling of the Court of Appeals that the said conditions nonetheless became binding on petitioner, once accepted, as a private agreement or contract. Petitioner maintains that the said special conditions are null and void for being ultra vires and cannot be given effect; and therefore, the principle of estoppel cannot apply against it. On the other hand, the public respondents, City Mayor and City Legal Officer, private respondent SOPI and the Office of the Solicitor General contend that as a valid exercise of police power, respondent City Mayor has the authority to impose, as he did, special conditions in the grant of business permits. Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. 9 The State, through the legislature, has delegated the exercise of police power to local government units, as agencies of the State, in order to effectively accomplish and carry out the

declared objects of their creation. 4 This delegation of police power is embodied in the general welfare clause of the Local Government Code which provides: Sec. 6. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. 5 The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law. Section 171, paragraph 2 (n) of Batas Pambansa Bilang 337 otherwise known as the Local Government Code of 1983, reads: Sec. 171. The City Mayor shall: xxx xxx xxx n) Grant or refuse to grant, pursuant to law, city licenses or permits, and revoke the same for violation of law or ordinance or the conditions upon which they are granted. However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. Succinct and in point is the ruling of this Court, that: . . . While a business may be regulated, such regulation must, however, be within the bounds of reason, i.e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. . . . xxx xxx xxx . . . The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. 6 In the case under consideration, the business permit granted by respondent City Mayor to petitioner was burdened with several conditions. Petitioner agrees with the holding by the Court of Appeals that respondent City Mayor acted beyond his authority in imposing such special conditions in its permit as the same have no basis in the law or ordinance. Public respondents and private respondent SOPI, on the other hand, are one in saying that the imposition of said special conditions on petitioner's business permit is well within the authority of the City Mayor as a valid exercise of police power. As aptly discussed by the Solicitor General in his Comment, the power to issue licenses and permits necessarily includes the corollary power to revoke, withdraw or cancel the same. And the power to revoke or cancel, likewise includes the power to restrict through the imposition of certain conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals, 7 it was held that the power to license carries with it the authority to provide reasonable terms and conditions under which the licensed business shall be conducted. As the Solicitor General puts it:

If the City Mayor is empowered to grant or refuse to grant a license, which is a broader power, it stands to reason that he can also exercise a lesser power that is reasonably incidental to his express power, i.e. to restrict a license through the imposition of certain conditions, especially so that there is no positive prohibition to the exercise of such prerogative by the City Mayor, nor is there any particular official or body vested with such authority. 8 However, the present inquiry does not stop there, as the Solicitor General believes. The power or authority of the City Mayor to impose conditions or restrictions in the business permit is indisputable. What petitioner assails are the conditions imposed in its particular case which, it complains, amount to a confiscation of the business in which petitioner is engaged. Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession. In the case at bar, what is sought by petitioner from respondent City Mayor is a permit to engage in the business of running an optical shop. It does not purport to seek a license to engage in the practice of optometry as a corporate body or entity, although it does have in its employ, persons who are duly licensed to practice optometry by the Board of Examiners in Optometry. The case of Samahan ng Optometrists sa Pilipinas vs. Acebedo International Corporation, G.R. No. 117097, 9 promulgated by this Court on March 21, 1997, is in point. The factual antecedents of that case are similar to those of the case under consideration and the issue ultimately resolved therein is exactly the same issue posed for resolution by this Court en banc. In the said case, the Acebedo International Corporation filed with the Office of the Municipal Mayor an application for a business permit for the operation of a branch of Acebedo Optical in Candon, Ilocos Sur. The application was opposed by the Samahan ng Optometrists sa Pilipinas-Ilocos Sur Chapter, theorizing that Acebedo is a juridical entity not qualified to practice optometry. A committee was created by the Office of the Mayor to study private respondent's application. Upon recommendation of the said committee, Acebedo's application for a business permit was denied. Acebedo filed a petition with the Regional Trial Court but the same was dismissed. On appeal, however, the Court of Appeals reversed the trial court's disposition, prompting the Samahan ng Optometrists to elevate the matter to this Court. The First Division of this Court, then composed of Honorable Justice Teodoro Padilla, Josue Bellosillo, Jose Vitug and Santiago Kapunan, with Honorable Justice Regino Hermosisima, Jr. as ponente, denied the petition and ruled in favor of respondent Acebedo International Corporation, holding that "the fact that private respondent hires optometrists who practice their profession in the course of their employment in private respondent's optical shops, does not translate into a practice of optometry by private respondent itself," 10 The Court further elucidated that in both the old and new Optometry Law, R.A. No. 1998, superseded by R.A. No. 8050, it is significant to note that there is no prohibition against the hiring by corporations of optometrists. The Court concluded thus: All told, there is no law that prohibits the hiring by corporations of optometrists or considers the hiring by corporations of optometrists as a practice by the corporation itself of the profession of optometry. In the present case, the objective of the imposition of subject conditions on petitioner's business permit could be attained by requiring the optometrists in petitioner's employ to produce a valid certificate of registration as optometrist, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate the conduct of business and the City Mayor cannot, through the issuance of such permit, regulate the practice of a profession, like that of optometry.

Such a function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession, in this case the Professional Regulations Commission and the Board of Examiners in Optometry. It is significant to note that during the deliberations of the bicameral conference committee of the Senate and the House of Representatives on R.A. 8050 (Senate Bill No. 1998 and House Bill No. 14100), the committee failed to reach a consensus as to the prohibition on indirect practice of optometry by corporations. The proponent of the bill, former Senator Freddie Webb, admitted thus: Senator Webb: xxx xxx xxx The focus of contention remains to be the proposal of prohibiting the indirect practice of optometry by corporations.1âwphi1 We took a second look and even a third look at the issue in the bicameral conference, but a compromise remained elusive. 11 Former Senator Leticia Ramos-Shahani likewise voted her reservation in casting her vote: Senator Shahani: Mr. President. The optometry bills have evoked controversial views from the members of the panel. While we realize the need to uplift the standards of optometry as a profession, the consesnsus of both Houses was to avoid touching sensitive issues which properly belong to judicial determination. Thus, the bicameral conference committee decided to leave the issue of indirect practice of optometry and the use of trade names open to the wisdom of the Courts which are vested with the prerogative of interpreting the laws. 12 From the foregoing, it is thus evident that Congress has not adopted a unanimous position on the matter of prohibition of indirect practice of optometry by corporations, specifically on the hiring and employment of licensed optometrists by optical corporations. It is clear that Congress left the resolution of such issue for judicial determination, and it is therefore proper for this Court to resolve the issue. Even in the United States, jurisprudence varies and there is a conflict of opinions among the federal courts as to the right of a corporation or individual not himself licensed, to hire and employ licensed optometrists. 13 Courts have distinguished between optometry as a learned profession in the category of law and medicine, and optometry as a mechanical art. And, insofar as the courts regard optometry as merely a mechanical art, they have tended to find nothing objectionable in the making and selling of eyeglasses, spectacles and lenses by corporations so long as the patient is actually examined and prescribed for by a qualified practitioner. 14 The primary purpose of the statute regulating the practice of optometry is to insure that optometrical services are to be rendered by competent and licensed persons in order to protect the health and physical welfare of the people from the dangers engendered by unlicensed practice. Such purpose may be fully accomplished although the person rendering the service is employed by a corporation. 15 Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against public policy. 16 Unless prohibited by statutes, a corporation has all the contractual rights that an individual has 17 and it does not become the practice of medicine or optometry because of the presence of a physician or optometrist. 18 The manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of merchandise do not constitute the practice of optometry. 19 In the case of Dvorine vs. Castelberg Jewelry Corporation, 20 defendant corporation conducted as part of its business, a department for the sale of eyeglasses and the furnishing of optometrical services to its clients. It employed a registered optometrist who was compensated at a regular salary and commission and who was furnished instruments and appliances needed for the work, as well as an office. In holding that corporation was not engaged in the practice of optometry, the court ruled that there is no public policy forbidding the commercialization of optometry, as in law

and medicine, and recognized the general practice of making it a commercial business by advertising and selling eyeglasses. To accomplish the objective of the regulation, a state may provide by statute that corporations cannot sell eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly qualified optometrist is in charge of, and in personal attendance at the place where such articles are sold. 21 In such a case, the patient's primary and essential safeguard lies in the optometrist's control of the "treatment" by means of prescription and preliminary and final examination. 22 In analogy, it is noteworthy that private hospitals are maintained by corporations incorporated for the purpose of furnishing medical and surgical treatment. In the course of providing such treatments, these corporations employ physicians, surgeons and medical practitioners, in the same way that in the course of manufacturing and selling eyeglasses, eye frames and optical lenses, optical shops hire licensed optometrists to examine, prescribe and dispense ophthalmic lenses. No one has ever charged that these corporations are engaged in the practice of medicine. There is indeed no valid basis for treating corporations engaged in the business of running optical shops differently. It also bears stressing, as petitioner has pointed out, that the public and private respondents did not appeal from the ruling of the Court of Appeals. Consequently, the holding by the Court of Appeals that the act of respondent City Mayor in imposing the questioned special conditions on petitioner's business permit is ultra vires cannot be put into issue here by the respondents. It is well-settled that: A party who has not appealed from the decision may not obtain any affirmative relief from the appellate court other than what he had obtain from the lower court, if any, whose decision is brought up on appeal. 23 . . . an appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he cannot seek modification or reversal of the judgment or affirmative relief unless he has also appealed. 24 Thus, respondents' submission that the imposition of subject special conditions on petitioner's business permit is not ultra vires cannot prevail over the finding and ruling by the Court of Appeals from which they (respondents) did not appeal. Anent the second assigned error, petitioner maintains that its business permit issued by the City Mayor is not a contract entered into by Iligan City in the exercise of its proprietary functions, such that although petitioner agreed to such conditions, it cannot be held in estoppel since ultra vires acts cannot be given effect. Respondents, on the other hand, agree with the ruling of the Court of Appeals that the business permit in question is in the nature of a contract between Iligan City and the herein petitioner, the terms and conditions of which are binding upon agreement, and that petitioner is estopped from questioning the same. Moreover, in the Resolution denying petitioner's motion for reconsideration, the Court of Appeals held that the contract between the petitioner and the City of Iligan was entered into by the latter in the performance of its proprietary functions. This Court holds otherwise. It had occasion to rule that a license or permit is not in the nature of a contract but a special privilege. . . . a license or a permit is not a contract between the sovereignty and the licensee or permitee, and is not a property in the constitutional sense, as to which the constitutional proscription against impairment of the obligation of contracts may extend. A license is rather in the nature of a special privilege, of a permission or authority to do what is within its terms. It is not in any way vested, permanent or absolute. 25 It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced in the special conditions imposed by the City Mayor in subject business permit does not preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts which are clearly beyond the scope of

one's authority are null and void and cannot be given any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void or ultra vires. The Court of Appeals erred in adjudging subject business permit as having been issued by responded City Mayor in the performance of proprietary functions of Iligan City. As hereinabove elaborated upon, the issuance of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits, is essentially in the exercise of the police power of the State within the contemplation of the general welfare clause of the Local Government Code. WHEREFORE, the petition is GRANTED; the Decision of the Court of Appeals in CA-GR SP No. 22995 REVERSED: and the respondent City Mayor is hereby ordered to reissue petitioner's business permit in accordance with law and with this disposition. No pronouncement as to costs. City of Manila v Laguio Facts: The private respondent, Malate Tourist Development Corporation (MTOC) 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. March 30, 1993 - City Mayor Alfredo S. Lim approved an ordinance enacted which prohibited 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. The Ordinance prohibited the establishment of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, cabarets, motels, inns. Owners and operators of the enumerated establishments are given three months to wind up business operations or transfer to any place outside ErmitaMalate or convert said businesses to other kinds allowable within the area. The Ordinance also provided that in case of violation and conviction, the premises of the erring establishment shall be closed and padlocked permanently. June 28, 1993 - MTOC filed a Petition with the lower court, praying that the Ordinance, insofar as it included motels and inns as among its prohibited establishments, be declared invalid and unconstitutional for several reasons but mainly because it is not a valid exercise of police power and it constitutes a denial of equal protection under the law. Judge Laguio ruled for the petitioners. The case was elevated to the Supreme Court. Judge Laguio rendered the assailed Decision (in favour of respondent). 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. ISSUE: WON the ordinance is unconstitutional. HELD: 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 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. 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. This delegated police power is found in Section 16 of the LGC, known as the general welfare clause. The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. A. The Ordinance contravenes the Constitution The enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The police power granted to LGUs must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. 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.60 It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. 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 object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Council’s police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. The worthy aim of fostering public morals and the eradication of the community’s social ills can be achieved through means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses “allowed” under the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. 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 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. It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person’s fundamental right to liberty and property. Modality employed is unlawful taking It is an ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and violative of the private property rights of individuals. There are two different types of taking that can be identified. A “possessory” taking occurs when the government confiscates or physically occupies property. A “regulatory” taking occurs when the government’s regulation leaves no reasonable economically viable use of the property. 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. 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. 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. It is apparent that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses are confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a “taking” of private property. 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. Further, 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. 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. B. The Ordinance violates Equal Protection Clause In the Court’s view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. The standard “where women are used as tools for entertainment” is also discriminatory as prostitution one of the hinted ills the Ordinance aims to banish is not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. Thus, the discrimination is invalid. C. The Ordinance is repugnant to general laws; it is ultra vires The Ordinance is in contravention of the Code (Sec 458) as the latter merely empowers local government units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. 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 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. 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. Conclusion All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is

discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void. Petition Denied.