Petition for review of the decision of the CFI of Rizal
VOL. 122, JUNE 24, 1983
759
City Government of Quezon City vs. Ericta
No. L-34915. June 24, 1983.*
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners, vs. HON. JUDGE
VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII;
HIMLAYANG PILIPINO, INC., respondents.
Local Governments; Constitutional Law; An ordinance of Quezon City requiring memorial park operators
to set aside at least six percent (6%) of their cemetery for charity burial of deceased persons is not a
valid exercise of police power, and one that constitute taking of property without just compensation.
There is no reasonable relation between the setting aside of at least six (6) percent of the total area of
all private cemeteries for charity burial grounds of deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking
without compensation of a certain area from a private cemetery to benefit paupers who are charges of
the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city
passes the burden to private cemeteries.
Same; Same; Same.The expropriation without compensation of a portion of private cemeteries is not
covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the
city council to prohibit the burial of the dead within the center of population of the city and to provide
for their burial in a proper place subject to the provisions of general law regulating burial grounds and
cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that
a Sangguniang Panlungsod may provide for the burial of the dead in such place and in such manner as
prescribed by law or ordinance it simply authorizes the city to provide its own city owned land or to
buy or expropriate private properties to construct public cemeteries. This has been the law and practise
in the past. It continues to the present. Expropriation, however, requires payment of just compensation.
The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set
aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to
buyers of subdivision lots. The necessities of
________________
* FIRST DIVISION.
760
760
SUPREME COURT REPORTS ANNOTATED
City Government of Quezon City vs. Ericta
public safety, health, and convenience are very clear from said requirements which are intended to
insure the development of communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual
lots are sold to homeowners.
PETITION for review of the decision of the Court of First Instance of Rizal, Br. XVIII.
The facts are stated in the opinion of the Court.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.
GUTIERREZ, JR., J.:
This is a petition for review which seeks the reversal of the decision of the Court of First Instance of
Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and
void.
Section 9 of Ordinance No. 6118, S-64, entitled ORDINANCE REGULATING THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN
THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF
provides:
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for
charity burial of deceased persons who are paupers and have been residents of Quezon City for at least
5 years prior to their death, to be determined by competent City Authorities. The area so designated
shall immediately be developed and should be open for operation not later than six months from the
date of approval of the application.
For several years, the aforequoted section of the Ordinance was not enforced by city authorities but
seven years after the enactment of the ordinance, the Quezon City Council passed the following
resolution:
761
VOL. 122, JUNE 24, 1983
761
City Government of Quezon City vs. Ericta
RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer,
Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon City where
the owners thereof have failed to donate the required 6% space intended for paupers burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in
writing that Section 9 of Ordinance No. 6118, S-64 would be enforced.
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at
Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp.
Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question. The respondent alleged that
the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the
Revised Administrative Code.
There being no issue of fact and the questions raised being purely legal both petitioners and respondent
agreed to the rendition of a judgment on the pleadings. The respondent court, therefore, rendered the
decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and City Council filed the instant
petition.
Petitioners argue that the taking of the respondents property is a valid and reasonable exercise of
police power and that the land is taken for a public use as it is intended for the burial ground of paupers.
They further argue that the Quezon City Council is authorized under its charter, in the exercise of local
police power, to make such further ordinances and resolutions not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it
shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve
the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for
the protection of property therein.
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of
property is obvious
762
762
SUPREME COURT REPORTS ANNOTATED
City Government of Quezon City vs. Ericta
because the questioned ordinance permanently restricts the use of the property such that it cannot be
used for any reasonable purpose and deprives the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not available as a source of power for the
taking of the property in this case because it refers to the power of promoting the public welfare by
restraining and regulating the use of liberty and property. The respondent points out that if an owner is
deprived of his property outright under the States police power, the property is generally not taken for
public use but is urgently and summarily destroyed in order to promote the general welfare. The
respondent cites the case of a nuisance per se or the destruction of a house to prevent the spread of a
conflagration.
We find the stand of the private respondent as well as the decision of the respondent Judge to be well-
founded. We quote with approval the lower courts ruling which declared null and void Section 9 of the
questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that
would justify the ordinance in question except the provision granting police power to the City. Section 9
cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulate such
other business, trades, and occupation as may be established or practised in the City. (Subsections C,
Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 Phil. 33, Vega vs.
Municipal Board of Iloilo L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to
regulate does not include the power to confiscate. The ordinance in question not only confiscates but
also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance,
Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon
conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled.
The confiscatory clause and the penal provision in effect deter one from operating a memorial park
cemetery. Neither can the ordinance in question be justified under sub-section t,
763
VOL. 122, JUNE 24, 1983
763
City Government of Quezon City vs. Ericta
Section 12 of Republic Act 537 which authorizes the City Council to
prohibit the burial of the dead within the center of population of the city and provide for their burial
in such proper place and in such manner as the council may determine, subject to the provisions of the
general law regulating burial grounds and cemeteries and governing funerals and disposal of the dead.
(Sub-sec. (t), Sec. 12. Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as euphemistically termed by
the respondents, donation.
We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise
of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537
which reads as follows:
(00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry
into effect and discharge the powers and duties conferred by this act and such as it shall deem
necessary and proper to provide for the health and safety, promote, the prosperity, improve the morals,
peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the
City Council may prescribe under the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles. Occupying the forefront in the
bill of rights is the provision which states that no person shall be deprived of life, liberty or property
without due process of law (Art. III, Section 1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which the state interferes with
the property rights, namely: (1) police power, (2) eminent domain, (3) taxation. These are said to exist
independently of the Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as the power of promoting the public welfare by restraining and
regulating the use of liberty and property (Quoted in Political Law by Taada and Carreon, V-II, p. 50). It
is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is
deprived of his property
764
764
SUPREME COURT REPORTS ANNOTATED
City Government of Quezon City vs. Ericta
outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In
police power, the owner does not recover from the government for injury sustained in consequence
thereof. (12 C.J. 623). It has been said that police power is the most essential of government powers, at
times the most insistent, and always one of the least limitable of the powers of government (Ruby vs.
Provincial Board, 39 Phil. 660; Ichong vs. Hernandez, L-7995, May 31, 1957). This power embraces the
whole system of public regulation (U.S. vs. Linsuya Fan, 10 Phil. 104). The Supreme Court has said that
police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it
derives its existence from the very existence of the state itself, it does not need to be expressed or
defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive
and active of all governmental processes, the most essential, insistent and illimitable. Especially it is so
under the modern democratic framework where the demands of society and nations have multiplied to
almost unimaginable proportions. The field and scope of police power have become almost boundless,
just as the fields of public interest and public welfare have become almost all embracing and have
transcended human foresight. Since the Courts cannot foresee the needs and demands of public interest
and welfare, they cannot delimit beforehand the extent or scope of the police power by which and
through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-
7995, May 31, 1957).
The police power being the most active power of the government and the due process clause being the
broadest limitation on governmental power, the conflict between this power of government and the
due process clause of the Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is usually exercised in the form of mere
regulation or restriction in the use of liberty or property for the promotion of the general welfare. It
does not involve the taking or confiscation of property with the exception of a few cases where there is
a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace
and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed
article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere
police regulation but an outright confiscation. It deprives a person of his private property without due
process of law, nay, even without compensation.
765
VOL. 122, JUNE 24, 1983
765
City Government of Quezon City vs. Ericta
In sustaining the decision of the respondent court, we are not unmindful of the heavy burden
shouldered by whoever challenges the validity of duly enacted legislation, whether national or local. As
early as 1913, this Court ruled in Case v. Board of Health (24 Phil. 250) that the courts resolve every
presumption in favor of validity and, more so, where the municipal corporation asserts that the
ordinance was enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila
(20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M.
Fernando stated:
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: The presumption is all in favor of validity. x x x The action of the
elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature
of things, be familiar with the necessities of their particular municipality and with all the facts and
circumstances which surround the subject and necessitate action. The local legislative body, by enacting
the ordinance, has in effect given notice that the regulations are essential to the well-being of the
people. x x x The Judiciary should not lightly set aside legislative action when there is not a clear invasion
of personal or property rights under the guise of police regulation. (U.S. v. Salaveria [1918], 39 Phil. 102,
at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced
in the leading Salaveria decision in Eboa v. Daet, [1950] 85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v. Board of Health supra:
x x x Under the provisions of municipal charters which are known as the general welfare clauses, a city,
by virtue of its police power, may adopt ordinances to secure the peace, safety, health, morals and the
best and highest interests of the municipality. It is a well-settled principle, growing out of the nature of
well-ordered and civilized society, that every holder of property, however absolute and unqualified may
be his title, holds it under the implied liability that his use of it shall not be injurious to the equal
enjoyment of others
766
766
SUPREME COURT REPORTS ANNOTATED
City Government of Quezon City vs. Ericta
having an equal right to the enjoyment of their property, nor injurious to the rights of the community.
All property in the state is held subject to its general regulations, which are necessary to the common
good and general welfare. Rights of property, like all other social and conventional rights, are subject to
such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such
reasonable restraints and regulations, established by law, as the legislature, under the governing and
controlling power vested in them by the constitution, may think necessary and expedient. The state,
under the police power, is possessed with plenary power to deal with all matters relating to the general
health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the
organic law and providing that such power is not exercised in such a manner as to justify the
interference of the courts to prevent positive wrong and oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6) percent of the total area of
all private cemeteries for charity burial grounds of deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking
without compensation of a certain area from a private cemetery to benefit paupers who are charges of
the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city
passes the burden to private cemeteries.
The expropriation without compensation of a portion of private cemeteries is not covered by Section
12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the city and to provide for their burial
in a proper place subject to the provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a
Sangguniang panlungsod may provide for the burial of the dead in such place and in such manner as
prescribed by law or ordinance it simply authorizes the city to provide its own city owned land or to
buy or expropriate private properties to construct public cemeteries. This has been the law and practise
in the past. It continues to the
767
VOL. 122, JUNE 24, 1983
767
City Government of Quezon City vs. Ericta
present. Expropriation, however, requires payment of just compensation. The questioned ordinance is
different from laws and regulations requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision
lots. The necessities of public safety, health, and convenience are very clear from said requirements
which are intended to insure the development of communities with salubrious and wholesome
environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer
when individual lots are sold to homeowners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the
municipal corporation, not on any express provision of law as statutory basis of their exercise of power.
The clause has always received broad and liberal interpretation but we cannot stretch it to cover this
particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had
incorporated, received necessary licenses and permits, and commenced operating. The sequestration of
six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the
private respondent when it accepted the permits to commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is
affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.
Petition dismissed. Decision affirmed.
Notes.Under the new Constitution, property, ownership is deemed impressed with a social function.
(Laurel vs. Court of Appeals, 78 SCRA 194.)
The holder of a contract to sell a portion of the Tatalon Estate in Quezon City is entitled to just
compensation in case
768
768
SUPREME COURT REPORTS ANNOTATED
City Government of Quezon City vs. Ericta
of condemnation proceedings. (Adlawan vs. Lustre, 81 SCRA 582.)
The owner of the building is equitably entitled to reimbursement of the cost of improvements made on
a public land lot granted to another. (Manila Pencil Co., Inc. vs. Teazao, 77 SCRA 181.
A city ordinance which does not lay down any standard to guide the city mayor in the issuance of
permits is null and void. (Villegas vs. Hiu Chiong Tsai Pao Ho, 86 SCRA 270.)
In the absence of a statutory law, municipal corporation are not liable for damages for acts done in the
performance of governmental functions. (Torio vs. Fontanilla, 85 SCRA 599.) [City Government of
Quezon City vs. Ericta, 122 SCRA 759(1983)]
