G.R. No.

L-34915 June 24, 1983 For several years, the aforequoted section of the Ordinance was not
enforced by city authorities but seven years after the enactment of the
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF ordinance, the Quezon City Council passed the following resolution:
QUEZON CITY, petitioners,
vs. RESOLVED by the council of Quezon assembled, to
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First request, as it does hereby request the City Engineer,
Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, Quezon City, to stop any further selling and/or transaction
INC., respondents. of memorial park lots in Quezon City where the owners
thereof have failed to donate the required 6% space
City Fiscal for petitioners. intended for paupers burial.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents. 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

GUTIERREZ, JR., J.:
Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory
relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No.
This is a petition for review which seeks the reversal of the decision of the Q-16002) seeking to annul Section 9 of the Ordinance in question The
Court of First Instance of Rizal, Branch XVIII declaring Section 9 of respondent alleged that the same is contrary to the Constitution, the
Ordinance No. 6118, S-64, of the Quezon City Council null and void. Quezon City Charter, the Local Autonomy Act, and the Revised
Administrative Code.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE
REGULATING THE ESTABLISHMENT, MAINTENANCE AND There being no issue of fact and the questions raised being purely legal
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL both petitioners and respondent agreed to the rendition of a judgment on
GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND the pleadings. The respondent court, therefore, rendered the decision
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides: declaring Section 9 of Ordinance No. 6118, S-64 null and void.

Sec. 9. At least six (6) percent of the total area of the A motion for reconsideration having been denied, the City Government
memorial park cemetery shall be set aside for charity and City Council filed the instant petition.
burial of deceased persons who are paupers and have
been residents of Quezon City for at least 5 years prior to
Petitioners argue that the taking of the respondent's property is a valid and
their death, to be determined by competent City
reasonable exercise of police power and that the land is taken for a public
Authorities. The area so designated shall immediately be
use as it is intended for the burial ground of paupers. They further argue
developed and should be open for operation not later than
that the Quezon City Council is authorized under its charter, in the
six months from the date of approval of the application.
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 The power to regulate does not include the power to
shall deem necessary and proper to provide for the health and safety, prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs.
promote the prosperity, improve the morals, peace, good order, comfort Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J.
and convenience of the city and the inhabitants thereof, and for the Law, 70, Mich. 396). A fortiori, the power to regulate does
protection of property therein." not include the power to confiscate. The ordinance in
question not only confiscates but also prohibits the
On the other hand, respondent Himlayang Pilipino, Inc. contends that the operation of a memorial park cemetery, because under
taking or confiscation of property is obvious because the questioned Section 13 of said ordinance, 'Violation of the provision
ordinance permanently restricts the use of the property such that it cannot thereof is punishable with a fine and/or imprisonment and
be used for any reasonable purpose and deprives the owner of all that upon conviction thereof the permit to operate and
beneficial use of his property. maintain a private cemetery shall be revoked or
cancelled.' The confiscatory clause and the penal
provision in effect deter one from operating a memorial
The respondent also stresses that the general welfare clause is not
park cemetery. Neither can the ordinance in question be
available as a source of power for the taking of the property in this case
justified under sub- section "t", Section 12 of Republic Act
because it refers to "the power of promoting the public welfare by
537 which authorizes the City Council to-
restraining and regulating the use of liberty and property." The respondent
points out that if an owner is deprived of his property outright under the
State's police power, the property is generally not taken for public use but 'prohibit the burial of the dead within the
is urgently and summarily destroyed in order to promote the general center of population of the city and
welfare. The respondent cites the case of a nuisance per se or the provide for their burial in such proper
destruction of a house to prevent the spread of a conflagration. place and in such manner as the council
may determine, subject to the provisions
We find the stand of the private respondent as well as the decision of the of the general law regulating burial
grounds and cemeteries and governing
respondent Judge to be well-founded. We quote with approval the lower
funerals and disposal of the dead.' (Sub-
court's ruling which declared null and void Section 9 of the questioned city
sec. (t), Sec. 12, Rep. Act No. 537).
ordinance:

There is nothing in the above provision which authorizes

The issue is: Is Section 9 of the ordinance in question a
confiscation or as euphemistically termed by the
valid exercise of the police power?
respondents, 'donation'
An examination of the Charter of Quezon City (Rep. Act
We now come to the question whether or not Section 9 of
No. 537), does not reveal any provision that would justify
the ordinance in question is a valid exercise of police
the ordinance in question except the provision granting
power. The police power of Quezon City is defined in sub-
police power to the City. Section 9 cannot be justified
section 00, Sec. 12, Rep. Act 537 which reads as follows:
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.' (00) To make such further ordinance and
(Subsections 'C', Sec. 12, R.A. 537). regulations not repugnant to law as may
 be necessary to carry into effect and always one of the least limitable of the powers of
discharge the powers and duties government (Ruby vs. Provincial Board, 39 PhiL 660;
conferred by this act and such as it shall Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
deem necessary and proper to provide for embraces the whole system of public regulation (U.S. vs.
the health and safety, promote, the Linsuya Fan, 10 PhiL 104). The Supreme Court has said
prosperity, improve the morals, peace, that police power is so far-reaching in scope that it has
good order, comfort and convenience of almost become impossible to limit its sweep. As it derives
the city and the inhabitants thereof, and its existence from the very existence of the state itself, it
for the protection of property therein; and does not need to be expressed or defined in its scope.
enforce obedience thereto with such Being coextensive with self-preservation and survival
lawful fines or penalties as the City itself, it is the most positive and active of all governmental
Council may prescribe under the processes, the most essential insistent and illimitable
provisions of subsection (jj) of this section. Especially it is so under the modern democratic framework
where the demands of society and nations have multiplied
We start the discussion with a restatement of certain basic to almost unimaginable proportions. The field and scope
principles. Occupying the forefront in the bill of rights is the of police power have become almost boundless, just as
provision which states that 'no person shall be deprived of the fields of public interest and public welfare have
life, liberty or property without due process of law' (Art. Ill, become almost all embracing and have transcended
Section 1 subparagraph 1, Constitution). 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
On the other hand, there are three inherent powers of
police power by which and through which the state seeks
government by which the state interferes with the property
rights, namely-. (1) police power, (2) eminent domain, (3) to attain or achieve public interest and welfare. (Ichong vs.
Hernandez, L-7995, May 31, 1957).
taxation. These are said to exist independently of the
Constitution as necessary attributes of sovereignty.
The police power being the most active power of the
government and the due process clause being the
Police power is defined by Freund as 'the power of
broadest station on governmental power, the conflict
promoting the public welfare by restraining and regulating
between this power of government and the due process
the use of liberty and property' (Quoted in Political Law by
clause of the Constitution is oftentimes inevitable.
Tanada and Carreon, V-11, p. 50). It is usually exerted in
order to merely regulate the use and enjoyment of
property of the owner. If he is deprived of his property It will be seen from the foregoing authorities that police
outright, it is not taken for public use but rather to destroy power is usually exercised in the form of mere regulation
in order to promote the general welfare. In police power, or restriction in the use of liberty or property for the
the owner does not recover from the government for injury promotion of the general welfare. It does not involve the
sustained in consequence thereof (12 C.J. 623). It has taking or confiscation of property with the exception of a
been said that police power is the most essential of few cases where there is a necessity to confiscate private
government powers, at times the most insistent, and property in order to destroy it for the purpose of protecting
 the peace and order and of promoting the general welfare regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p.
as for instance, the confiscation of an illegally possessed 111. There was an affirmation of the presumption of
article, such as opium and firearms. validity of municipal ordinance as announced in the
leading Salaveria decision in Ebona v. Daet, [1950]85
It seems to the court that Section 9 of Ordinance No. Phil. 369.)
6118, Series of 1964 of Quezon City is not a mere police
regulation but an outright confiscation. It deprives a We have likewise considered the principles earlier stated
person of his private property without due process of law, in Case v. Board of Health supra :
nay, even without compensation.
... Under the provisions of municipal charters which are
In sustaining the decision of the respondent court, we are not unmindful of known as the general welfare clauses, a city, by virtue of
the heavy burden shouldered by whoever challenges the validity of duly its police power, may adopt ordinances to the peace,
enacted legislation whether national or local As early as 1913, this Court safety, health, morals and the best and highest interests of
ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve the municipality. It is a well-settled principle, growing out
every presumption in favor of validity and, more so, where the ma of the nature of well-ordered and society, that every holder
corporation asserts that the ordinance was enacted to promote the of property, however absolute and may be his title, holds it
common good and general welfare. under the implied liability that his use of it shall not be
injurious to the equal enjoyment of others having an equal
In the leading case of Ermita-Malate Hotel and Motel Operators right to the enjoyment of their property, nor injurious to the
Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court rights of the community. An property in the state is held
speaking through the then Associate Justice and now Chief Justice subject to its general regulations, which are necessary to
Enrique M. Fernando stated 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
Primarily what calls for a reversal of such a decision is the
prevent them from being injurious, and to such reasonable
a of any evidence to offset the presumption of validity that
restraints and regulations, established by law, as the
attaches to a statute or ordinance. As was expressed
legislature, under the governing and controlling power
categorically by Justice Malcolm 'The presumption is all in
vested in them by the constitution, may think necessary
favor of validity. ... The action of the elected
and expedient. The state, under the police power, is
representatives of the people cannot be lightly set aside.
possessed with plenary power to deal with all matters
The councilors must, in the very nature of things, be
relating to the general health, morals, and safety of the
familiar with the necessities of their particular ...
people, so long as it does not contravene any positive
municipality and with all the facts and lances which
inhibition of the organic law and providing that such power
surround the subject and necessitate action. The local
is not exercised in such a manner as to justify the
legislative body, by enacting the ordinance, has in effect
interference of the courts to prevent positive wrong and
given notice that the regulations are essential to the well-
oppression.
being of the people. ... The Judiciary should not lightly set
aside legislative action when there is not a clear invasion
of personal or property rights under the guise of police 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 cemetery cannot even be considered as having been
percent of the total area of an private cemeteries for charity burial grounds impliedly acknowledged by the private respondent when it accepted the
of deceased paupers and the promotion of health, morals, good order, permits to commence operations.
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 WHEREFORE, the petition for review is hereby DISMISSED. The decision
benefit paupers who are charges of the municipal corporation. Instead of of the respondent court is affirmed.
building or maintaining a public cemetery for this purpose, the city passes
the burden to private cemeteries. SO ORDERED.

The expropriation without compensation of a portion of private cemeteries

is not covered by Section 12(t) of Republic Act 537, the Revised Charter of
Quezon City which empowers the city council to prohibit the burial of the
dead within the center of population of the city and to provide for their
burial in a proper place subject to the provisions of general law regulating
burial grounds and cemeteries. When the Local Government Code, Batas
Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang
panlungsod may "provide for the burial of the dead in such place and in
such manner as prescribed by law or ordinance" it simply authorizes the
city to provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law and
practise in the past. It continues to the present. Expropriation, however,
requires payment of just compensation. The questioned ordinance is
different from laws and regulations requiring owners of subdivisions to set
aside certain areas for streets, parks, playgrounds, and other public
facilities from the land they sell to buyers of subdivision lots. The
necessities of public safety, health, and convenience are very clear from
said requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the subdivision
developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause
or on implied powers of the municipal corporation, not on any express
provision of law as statutory basis of their exercise of power. The clause
has always received broad and liberal interpretation but we cannot stretch
it to cover this particular taking. Moreover, the questioned ordinance was
passed after Himlayang Pilipino, Inc. had incorporated. received necessary
licenses and permits and commenced operating. The sequestration of six
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 newspaper, magazine or periodical is circulated to enable
members, represented by its President, Amado P. Macasaet and its the candidates to make known their qualifications, their
Executive Director Ermin F. Garcia, Jr., petitioner, stand on public issues and their platforms and programs
vs. of government.
COMMISSION ON ELECTIONS, respondent.
"Comelec Space" shall also be used by the Commission
RESOLUTION for dissemination of vital election information.

  Sec. 4. Allocation of Comelec Space. — (a) "Comelec

Space" shall also be available to all candidates  during the
FELICIANO, J.: periods stated in Section 2 hereof. Its allocation shall be
equal and impartial among all candidates for the same
office. All candidates concerned shall be furnished a copy
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the
of the allocation of "Comelec Space" for their information,
constitutional validity of Resolution No. 2772 issued by respondent
guidance and compliance.
Commission on Elections ("Comelec") and its corresponding Comelec
directive dated 22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit organization of (b) Any candidate desiring to avail himself of "Comelec
newspaper and magazine publishers. Space" from newspapers or publications based in the
Metropolitan Manila Area shall submit an application
therefor, in writing, to the Committee on Mass Media of
On 2 March 1995, Comelec promulgated Resolution No. 2772, which
the Commission. Any candidate desiring to avail himself of
reads in part:
"Comelec Space" in newspapers or publications based in
the provinces shall submit his application therefor, in
xxx xxx xxx writing, to the Provincial Election Supervisor concerned.
Applications for availment of "Comelec Space" maybe
Sec. 2. Comelec Space. — The Commission shall procure filed at any time from the date of effectivity of this
free print space of not less than one half (1/2) page in at Resolution.
least one newspaper of general circulation in every
province or city for use as "Comelec Space" from March (c) The Committee on Mass Media and the Provincial
6, 1995 in the case of candidates for senator and from Election Supervisors shall allocate available  "Comelec
March 21, 1995 until May 12, 1995. In the absence of said Space" among the candidates concerned by lottery  of
newspaper, "Comelec Space" shall be obtained from any which said candidates shall be notified in advance, in
magazine or periodical of said province or city. writing, to be present personally or by representative to
witness the lottery at the date, time and place specified in
Sec. 3. Uses of Comelec Space. — "Comelec the notice. Any party objecting to the result of the lottery
Space" shall be allocated by the Commission,  free of may appeal to the Commission.
charge, among all candidates  within the area in which the
 (d) The candidates concerned shall be notified by the qualifications, their stand on public issues and their
Committee on Mass Media or the Provincial Election platforms and programs of government.
Supervisor, as the case maybe, sufficiently in advance
and in writing of the date of issue and the newspaper or We shall be informing the  political parties and candidates
publication allocated to him, and the time within which he to submit directly to you their pictures, biographical data,
must submit the written material for publication in the stand on key public issues  and platforms of
"Comelec Space". government either as raw data or in the form of positives
or camera-ready materials.
xxx xxx xxx
Please be reminded that the political parties/candidates
Sec. 8. Undue Reference to Candidates/Political Parties may be accommodated in your publication any day upon
in Newspapers. — No newspaper or publication shall receipt of their materials until May 6, 1995 which is the last
allow to be printed or published in the news, opinion, day for campaigning.
features, or other sections of the newspaper or publication
accounts or comments which manifestly favor or oppose We trust you to extend your full support and cooperation in
any candidate or political party by unduly or repeatedly this regard. (Emphasis supplied)
referring to or including therein said candidate or political
party. However, unless the facts and circumstances In this Petition for Certiorari  and Prohibition with prayer for the issuance of
clearly indicate otherwise, the Commission will respect the a Temporary Restraining Order, PPI asks us to declare Comelec
determination by the publisher and/or editors of the Resolution No. 2772 unconstitutional and void on the ground that it
newspapers or publications that the accounts or views violates the prohibition imposed by the Constitution upon the government,
published are significant, newsworthy and of public and any of its agencies, against the taking of private property for public
interest. (Emphasis supplied) use without just compensation. Petitioner also contends that the 22 March
1995 letter directives of Comelec requiring publishers to give free
Apparently in implementation of this Resolution, Comelec through "Comelec Space" and at the same time process raw data to make it
Commissioner Regalado E. Maambong sent identical letters, dated 22 camera-ready, constitute impositions of involuntary servitude, contrary to
March 1995, to various publishers of newspapers like the Business World, the provisions of Section 18 (2), Article III of the 1987 Constitution. Finally,
the Philippine Star, the Malaya and the Philippine Times Journal, all PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of
members of PPI. These letters read as follows: the constitutionally guaranteed freedom of speech, of the press and of
expression.1
This is to advise you that pursuant to Resolution No. 2772
of the Commission on Elections, you are directed to On 20 April 1995, this Court issued a Temporary Restraining Order
provide free print space of not less than one half (1/2) enjoining Comelec from enforcing and implementing Section 2 of
page for use as "Comelec Space" or similar to the print Resolution No. 2772, as well as the Comelec directives addressed to
support which you have extended during the May 11, various print media enterprises all dated 22 March 1995. The Court also
1992 synchronized elections which was 2 full pages for required the respondent to file a Comment on the Petition.
each political party fielding senatorial candidates, from
March 6, 1995 to May 6, 1995, to make known their
The Office of the Solicitor General filed its Comment on behalf of NOW THEREFORE, pursuant to the powers vested in it
respondent Comelec alleging that Comelec Resolution No. 2772 by the Constitution, the Omnibus Election Code, Republic
does not  impose upon the publishers any obligation to provide free print Acts No. 6646 and 7166 and other election laws, the
space in the newspapers as it does not  provide any criminal or Commission on Elections RESOLVED to clarify Sections 2
administrative sanction for non-compliance with that Resolution. According and 8 of Res. No. 2772 as follows:
to the Solicitor General, the questioned Resolution merely established
guidelines to be followed in connection with the procurement of "Comelec 1. Section 2 of Res. No.
space," the procedure for and mode of allocation of such space to 2772 shall not be
candidates and the conditions or requirements for the candidate's construed to mean as
utilization of the "Comelec space" procured. At the same time, however, requiring publishers of the
the Solicitor General argues that even if the questioned Resolution and its different mass media print
implementing letter directives are viewed as  mandatory, the same would publications to provide
nevertheless be valid as an exercise of the police power of the State. The print space under pain of
Solicitor General also maintains that Section 8 of Resolution No. 2772 is a prosecution, whether
permissible exercise of the power of supervision or regulation of the administrative, civil or
Comelec over the communication and information operations of print criminal, there being no
media enterprises during the election period to safeguard and ensure a sanction or penalty for
fair, impartial and credible election.2 violation of said Section
provided for either in said
At the oral hearing of this case held on 28 April 1995, respondent Comelec Resolution or in Section
through its Chairman, Hon. Bernardo Pardo, in response to inquiries from 90 of Batas Pambansa
the Chief Justice and other Members of the Court, stated that Resolution Blg. 881, otherwise
No. 2772, particularly Section 2 thereof and the 22 March 1995 letters known as the Omnibus
dispatched to various members of petitioner PPI, were not  intended to Election Code, on the
compel those members to supply Comelec with free print space. Chairman grant of "Comelec
Pardo represented to the Court that Resolution and the related letter- space."
directives were merely designed to solicit from the publishers the same
free print space which many publishers had voluntarily given to Comelec 2. Section 8 of Res. No.
during the election period relating to the 11 May 1992 elections. Indeed, 2772 shall not be
the Chairman stated that the Comelec would, that very afternoon, meet construed to mean as
and adopt an appropriate amending or clarifying resolution, a certified true constituting prior restraint
copy of which would forthwith be filed with the Court. on the part of publishers
with respect to the
On 5 May 1995, the Court received from the Office of the Solicitor General printing or publication of
a manifestation which attached a copy of Comelec Resolution No. 2772-A materials in the news,
dated 4 May 1995. The operative portion of this Resolution follows: opinion, features or other
sections of their
respective publications or
 other accounts or from publishers. A written communication officially directing a print media
comments, it being clear company to supply free print space, dispatched by a government (here a
from the last sentence of constitutional) agency and signed by a member of the Commission
said Section 8 that the presumably legally authorized to do so, is bound to produce a coercive
Commission shall, effect upon the company so addressed. That the agency may not be
"unless the facts and legally authorized to impose, or cause the imposition of, criminal or other
circumstances clearly sanctions for disregard of such directions, only aggravates the
indicate constitutional difficulties inhearing in the present situation. The enactment
otherwise  . . . respect the or addition of such sanctions by the legislative authority itself would be
determination by the open to serious constitutional objection.
publisher and/or editors
of the newspapers or To compel print media companies to donate "Comelec-space" of the
publications that the dimensions specified in Section 2 of Resolution No. 2772 (not less than
accounts or views one-half page), amounts to "taking" of private personal property for public
published are significant, use or purposes. Section 2 failed to specify the intended frequency  of
newsworthy and of public such compulsory "donation:" only once during the period from 6 March
interest." 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week?
or as often as Comelec may direct during the same period? The extent of
This Resolution shall take effect upon approval. the taking or deprivation is not insubstantial; this is not a case of a de
(Emphasis in the original) minimis temporary limitation or restraint upon the use of private property.
The monetary value of the compulsory "donation," measured by the
While, at this point, the Court could perhaps simply dismiss the Petition advertising rates ordinarily charged by newspaper publishers whether in
for Certiorari and Prohibition as having become moot and academic, we cities or in non-urban areas, may be very substantial indeed.
consider it not inappropriate to pass upon the first constitutional issue
raised in this case. Our hope is to put this issue to rest and prevent its The taking of print space here sought to be effected may first be appraised
resurrection. under the rubric of expropriation of private personal property for public use.
The threshold requisites for a lawful taking of private property for public
Section 2 of Resolution No. 2772 is not a model of clarity in expression. use need to be examined here: one is the necessity for the taking; another
Section 1 of Resolution No. 2772-A did not try to redraft Section 2; is the legal authority to effect the taking. The element of necessity for the
accordingly, Section 2 of Resolution No. 2772 persists in its original form. taking has not been shown by respondent Comelec. It has not been
Thus, we must point out that, as presently worded, and in particular as suggested that the members of PPI are unwilling to sell print space at their
interpreted and applied by the Comelec itself in its 22 March 1995 letter- normal rates to Comelec for election purposes. Indeed, the unwillingness
directives to newspaper publishers, Section 2 of Resolution No. 2772 is or reluctance of Comelec to buy print space lies at the heart of the
clearly susceptible of the reading that petitioner PPI has given it. That problem. 3 Similarly, it has not been suggested, let alone demonstrated,
Resolution No. 2772 does not, in express terms, threaten publishers who that Comelec has been granted the power of eminent domain either by the
would disregard it or its implementing letters with some criminal or other Constitution or by the legislative authority. A reasonable relationship
sanction, does not by itself demonstrate that the Comelec's original between that power and the enforcement and administration of election
intention was simply to solicit or request voluntary donations of print space laws by Comelec must be shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not contested by process are commonly thought to be community-wide; the burdens should
petitioner PPI. We note only that, under Section 3 of Resolution No. 2772, be allocated on the same basis.
the free "Comelec space" sought by the respondent Commission would be
used not only for informing the public about the identities, qualifications As earlier noted, the Solicitor General also contended that Section 2 of
and programs of government of candidates for elective office but also for Resolution No. 2772, even if read as compelling publishers to "donate"
"dissemination of vital election information" (including, presumably, "Comelec space, " may be sustained as a valid exercise of the police
circulars, regulations, notices, directives, etc. issued by Comelec). It power of the state. This argument was, however, made too casually to
seems to the Court a matter of judicial notice that government offices and require prolonged consideration on our part. Firstly, there was no effort
agencies (including the Supreme Court) simply purchase print space, in (and apparently no inclination on the part of Comelec) to show that the
the ordinary course of events, when their rules and regulations, circulars, police power — essentially a power of legislation — has been
notices and so forth need officially to be brought to the attention of the constitutionally delegated to respondent Commission. 4 Secondly, while
general public. private property may indeed be validly taken in the legitimate exercise of
the police power of the state, there was no attempt to show compliance in
The taking of private property for public use is, of course, authorized by the the instant case with the requisites of a lawful taking under the police
Constitution, but not without payment of "just compensation" (Article III, power. 5
Section 9). And apparently the necessity of paying compensation for
"Comelec space" is precisely what is sought to be avoided by respondent Section 2 of Resolution No. 2772 is a blunt and heavy instrument that
Commission, whether Section 2 of Resolution No. 2772 is read as purports, without a showing of existence of a national emergency or other
petitioner PPI reads it, as an assertion of authority to require newspaper imperious public necessity, indiscriminately and without regard to the
publishers to "donate" free print space for Comelec purposes, or as an individual business condition of particular newspapers or magazines
exhortation, or perhaps an appeal, to publishers to donate free print space, located in differing parts of the country, to take private property of
as Section 1 of Resolution No. 2772-A attempts to suggest. There is newspaper or magazine publishers. No attempt was made to demonstrate
nothing at all to prevent newspaper and magazine publishers from that a real and palpable or urgent necessity for the taking of print space
voluntarily giving free print space to Comelec for the purposes confronted the Comelec and that Section 2 of Resolution No. 2772 was
contemplated in Resolution No. 2772. Section 2 of Resolution No. 2772 itself the only reasonable and calibrated response to such necessity
does not, however, provide a constitutional basis for compelling available to the Comelec. Section 2 does not constitute a valid exercise of
publishers, against their will, in the kind of factual context here present, to the police power of the State.
provide free print space for Comelec purposes. Section 2 does not
constitute a valid exercise of the power of eminent domain. We turn to Section 8 of Resolution No. 2772, which needs to be quoted in
full again:
We would note that the ruling here laid down by the Court is entirely in line
with the theory of democratic representative government. The economic Sec. 8. Undue Reference to Candidates/Political Parties
costs of informing the general public about the qualifications and programs in Newspapers. — No newspaper or publication shall
of those seeking elective office are most appropriately distributed as widely allow to be printed or published in the news, opinion,
as possible throughout our society by the utilization of public funds, features, or other sections of the newspaper or publication
especially funds raised by taxation, rather than cast solely on one small accounts or comments which manifestly favor or oppose
sector of society, i.e., print media enterprises. The benefits which flow from any candidate or political party by unduly or repeatedly
a heightened level of information on and the awareness of the electoral referring to or including therein said candidate or political
 party. However, unless the facts and circumstances In sum, Section 11 (b) is not to be read as reaching any
clearly indicate otherwise, the Commission will respect the report or commentary or other coverage that, in
determination by the publisher and/or editors of the responsible media, is not paid for by candidates for
newspapers or publications that the accounts or views political office. We read Section 11 (b) as designed to
published are significant, newsworthy and of public cover only paid political advertisements of particular
interest. candidates.

It is not easy to understand why Section 8 was included at all in Resolution The above limitation in scope of application of Section 11
No. 2772. In any case, Section 8 should be viewed in the context of our (b) — that it does not restrict either the reporting of or the
decision in National Press Club v. Commission on Elections. 6 There the expression of belief or opinion or comment upon the
Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646, qualifications and programs and activities of any and all
known as the Electoral Reforms Law of 1987, which prohibits the sale or candidates for office — constitutes the critical distinction
donation of print space and airtime for campaign or other political which must be made between the instant case and that
purposes, except to the Comelec. In doing so, the Court carefully of Sanidad v. Commission on Elections. . . . 7 (Citations
distinguished (a)  paid political advertisements  which are reached by the omitted; emphasis supplied)
prohibition of Section 11 (b), from (b) the reporting of news, commentaries
and expressions of belief or opinion  by reporters, broadcasters, editors, Section 8 of Resolution No. 2772 appears to represent the effort of the
commentators or columnists which  fall outside the scope of Section 11 (b) Comelec to establish a guideline for implementation of the above-quoted
and which are protected by the constitutional guarantees of freedom of distinction and doctrine in National Press Club an effort not blessed with
speech and of the press: evident success. Section 2 of Resolution No. 2772-A while possibly
helpful, does not add substantially to the utility of Section 8 of Resolution
Secondly, and more importantly, Section 11 (b) is limited No. 2772. The distinction between paid political advertisements on the one
in its scope of application. Analysis of Section 11 hand and news reports, commentaries and expressions of belief or opinion
(b) shows that it  purports to apply only to the purchase by reporters, broadcasters, editors, etc. on the other hand, can realistically
and sale,  including purchase and sale disguised as a be given operative meaning only in actual cases or controversies, on a
donation, of print space and air time for campaign or other case-to-case basis, in terms of very specific sets of facts.
political purposes. Section 11 (b) does not purport in any
way to restrict  the reporting by At all events, the Court is bound to note that PPI has failed to allege any
newspapers  or radio  or television stations of news or specific affirmative action on the part of Comelec designed to enforce or
news-worthy events relating to candidates, their implement Section 8. PPI has not claimed that it or any of its members has
qualifications, political parties and programs of sustained actual or imminent injury by reason of Comelec action under
government. Moreover, Section 11 (b) does not reach Section 8. Put a little differently, the Court considers that the precise
commentaries and expressions of belief or opinion by constitutional issue here sought to be raised — whether or not Section 8 of
reporters or broadcaster or editors or commentators or Resolution No. 2772 constitutes a permissible exercise of the Comelec's
columnists in respect of candidates, their qualifications, power under Article IX, Section 4 of the Constitution to
and programs and so forth, so long at least as such
comments, opinions and beliefs are not in fact supervise or regulate the enjoyment or utilization of all
advertisements for particular candidates covertly paid for. franchise or permits for the operation of — media of
 communication or information — [for the purpose of
ensuring] equal opportunity, time and space, and the right
of reply, including reasonable, equal rates therefore, for
public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly honest, peaceful and credible elections —

is not ripe for judicial review for lack of an actual case or controversy
involving, as the very lis mota  thereof, the constitutionality of Section 8.

Summarizing our conclusions:

1. Section 2 of Resolution No. 2772, in its present form and as interpreted

by Comelec in its 22 March 1995 letter directives, purports to require print
media enterprises to "donate" free print space to Comelec. As such,
Section 2 suffers from a fatal constitutional vice and must be set aside and
nullified.

2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition

for Certiorari and Prohibition must be dismissed for lack of an actual,
justiciable case or controversy.

WHEREFORE, for all the foregoing, the Petition for Certiorari  and

Prohibition is GRANTED in part and Section 2 of Resolution No. 2772 in its
present form and the related letter-directives dated 22 March 1995 are
hereby SET ASIDE as null and void, and the Temporary Restraining Order
is hereby MADE PERMANENT. The Petition is DISMISSED in part, to the
extent it relates to Section 8 of Resolution No. 2772. No pronouncement
as to costs.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,

Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Quiason, J., is on leave.

G.R. No. 177056               September 18, 2009 are solely devoted for use as parking spaces. Respondents Ayala Land,
Robinsons, and SM Prime spent for the construction of their own parking
THE OFFICE OF THE SOLICITOR GENERAL, Petitioner, facilities. Respondent Shangri-la is renting its parking facilities, consisting
vs. of land and building specifically used as parking spaces, which were
AYALA LAND INCORPORATED, ROBINSON'S LAND CORPORATION, constructed for the lessor’s account.
SHANGRI-LA PLAZA CORPORATION and SM PRIME HOLDINGS,
INC., Respondents. Respondents expend for the maintenance and administration of their
respective parking facilities. They provide security personnel to protect the
DECISION vehicles parked in their parking facilities and maintain order within the
area. In turn, they collect the following parking fees from the persons
making use of their parking facilities, regardless of whether said persons
CHICO-NAZARIO, J.:
are mall patrons or not:
Before this Court is a Petition for Review on Certiorari, 1 under Rule 45 of
the Revised Rules of Court, filed by petitioner Office of the Solicitor Respondent Parking Fees
General (OSG), seeking the reversal and setting aside of the Ayala Land On weekdays, ₱25.00 for the first four hours and ₱10.00
Decision2 dated 25 January 2007 of the Court of Appeals in CA-G.R. CV for every succeeding hour; on weekends, flat rate o
No. 76298, which affirmed in toto the Joint Decision 3 dated 29 May 2002 of ₱25.00 per day
the Regional Trial Court (RTC) of Makati City, Branch 138, in Civil Cases
No. 00-1208 and No. 00-1210; and (2) the Resolution 4 dated 14 March Robinsons ₱20.00 for the first three hours and ₱10.00 for every
2007 of the appellate court in the same case which denied the Motion for succeeding hour
Reconsideration of the OSG. The RTC adjudged that respondents Ayala Shangri-la Flat rate of ₱30.00 per day
Land Incorporated (Ayala Land), Robinsons Land Corporation
(Robinsons), Shangri-la Plaza Corporation (Shangri-la), and SM Prime SM Prime ₱10.00 to ₱20.00 (depending on whether the parking
Holdings, Inc. (SM Prime) could not be obliged to provide free parking space is outdoors or indoors) for the first three hours and
spaces in their malls to their patrons and the general public. 59 minutes, and ₱10.00 for every succeeding hour o
fraction thereof
Respondents Ayala Land, Robinsons, and Shangri-la maintain and
operate shopping malls in various locations in Metro Manila. Respondent The parking tickets or cards issued by respondents to vehicle owners
SM Prime constructs, operates, and leases out commercial buildings and contain the stipulation that respondents shall not be responsible for any
other structures, among which, are SM City, Manila; SM Centerpoint, Sta. loss or damage to the vehicles parked in respondents’ parking facilities.
Mesa, Manila; SM City, North Avenue, Quezon City; and SM Southmall,
Las Piñas. In 1999, the Senate Committees on Trade and Commerce and on Justice
and Human Rights conducted a joint investigation for the following
The shopping malls operated or leased out by respondents have parking purposes: (1) to inquire into the legality of the prevalent practice of
facilities for all kinds of motor vehicles, either by way of parking spaces shopping malls of charging parking fees; (2) assuming arguendo that the
inside the mall buildings or in separate buildings and/or adjacent lots that collection of parking fees was legally authorized, to find out the basis and
reasonableness of the parking rates charged by shopping malls; and (3) to the imposition of penalties for administrative violations thereof to the
determine the legality of the policy of shopping malls of denying liability in Secretary of Public Works. This set up, however, is not being carried out in
cases of theft, robbery, or carnapping, by invoking the waiver clause at the reality.
back of the parking tickets. Said Senate Committees invited the top
executives of respondents, who operate the major malls in the country; the In the position paper submitted by the Metropolitan Manila Development
officials from the Department of Trade and Industry (DTI), Department of Authority (MMDA), its chairman, Jejomar C. Binay, accurately pointed out
Public Works and Highways (DPWH), Metro Manila Development Authority that the Secretary of the DPWH is responsible for the
(MMDA), and other local government officials; and the Philippine Motorists implementation/enforcement of the National Building Code. After the
Association (PMA) as representative of the consumers’ group. enactment of the Local Government Code of 1991, the local government
units (LGU’s) were tasked to discharge the regulatory powers of the
After three public hearings held on 30 September, 3 November, and 1 DPWH. Hence, in the local level, the Building Officials enforce all rules/
December 1999, the afore-mentioned Senate Committees jointly issued regulations formulated by the DPWH relative to all building plans,
Senate Committee Report No. 225 5 on 2 May 2000, in which they specifications and designs including parking space requirements. There is,
concluded: however, no single national department or agency directly tasked to
supervise the enforcement of the provisions of the Code on parking,
In view of the foregoing, the Committees find that the collection of parking notwithstanding the national character of the law. 6
fees by shopping malls is contrary to the National Building Code and is
therefor [sic] illegal. While it is true that the Code merely requires malls to Senate Committee Report No. 225, thus, contained the following
provide parking spaces, without specifying whether it is free or not, both recommendations:
Committees believe that the reasonable and logical interpretation of the
Code is that the parking spaces are for free. This interpretation is not only In light of the foregoing, the Committees on Trade and Commerce and
reasonable and logical but finds support in the actual practice in other Justice and Human Rights hereby recommend the following:
countries like the United States of America where parking spaces owned
and operated by mall owners are free of charge. 1. The Office of the Solicitor General should institute the
necessary action to enjoin the collection of parking fees as well as
Figuratively speaking, the Code has "expropriated" the land for parking – to enforce the penal sanction provisions of the National Building
something similar to the subdivision law which require developers to Code. The Office of the Solicitor General should likewise study
devote so much of the land area for parks. how refund can be exacted from mall owners who continue to
collect parking fees.
Moreover, Article II of R.A. No. 9734 (Consumer Act of the Philippines)
provides that "it is the policy of the State to protect the interest of the 2. The Department of Trade and Industry pursuant to the
consumers, promote the general welfare and establish standards of provisions of R.A. No. 7394, otherwise known as the Consumer
conduct for business and industry." Obviously, a contrary interpretation Act of the Philippines should enforce the provisions of the Code
(i.e., justifying the collection of parking fees) would be going against the relative to parking. Towards this end, the DTI should formulate the
declared policy of R.A. 7394. necessary implementing rules and regulations on parking in
shopping malls, with prior consultations with the local government
Section 201 of the National Building Code gives the responsibility for the units where these are located. Furthermore, the DTI, in
administration and enforcement of the provisions of the Code, including coordination with the DPWH, should be empowered to regulate
 and supervise the construction and maintenance of parking [Respondent SM Prime] further prays for such other reliefs as may be
establishments. deemed just and equitable under the premises. 9

3. Finally, Congress should amend and update the National The very next day, 4 October 2000, the OSG filed a Petition for
Building Code to expressly prohibit shopping malls from collecting Declaratory Relief and Injunction (with Prayer for Temporary Restraining
parking fees by at the same time, prohibit them from invoking the Order and Writ of Preliminary Injunction) 10 against respondents. This
waiver of liability.7 Petition was docketed as Civil Case No. 00-1210 and raffled to the RTC of
Makati, Branch 135, presided over by Judge Francisco B. Ibay (Judge
Respondent SM Prime thereafter received information that, pursuant to Ibay). Petitioner prayed that the RTC:
Senate Committee Report No. 225, the DPWH Secretary and the local
building officials of Manila, Quezon City, and Las Piñas intended to 1. After summary hearing, a temporary restraining order and a writ
institute, through the OSG, an action to enjoin respondent SM Prime and of preliminary injunction be issued restraining respondents from
similar establishments from collecting parking fees, and to impose upon collecting parking fees from their customers; and
said establishments penal sanctions under Presidential Decree No. 1096,
otherwise known as the National Building Code of the Philippines (National 2. After hearing, judgment be rendered declaring that the practice
Building Code), and its Implementing Rules and Regulations (IRR). With of respondents in charging parking fees is violative of the National
the threatened action against it, respondent SM Prime filed, on 3 October Building Code and its Implementing Rules and Regulations and is
2000, a Petition for Declaratory Relief8 under Rule 63 of the Revised Rules therefore invalid, and making permanent any injunctive writ issued
of Court, against the DPWH Secretary and local building officials of Manila, in this case.
Quezon City, and Las Piñas. Said Petition was docketed as Civil Case No.
00-1208 and assigned to the RTC of Makati City, Branch 138, presided Other reliefs just and equitable under the premises are likewise prayed
over by Judge Sixto Marella, Jr. (Judge Marella). In its Petition, respondent for.11
SM Prime prayed for judgment:
On 23 October 2000, Judge Ibay of the RTC of Makati City, Branch 135,
a) Declaring Rule XIX of the Implementing Rules and Regulations issued an Order consolidating Civil Case No. 00-1210 with Civil Case No.
of the National Building Code as ultra vires, hence, 00-1208 pending before Judge Marella of RTC of Makati, Branch 138.
unconstitutional and void;
As a result of the pre-trial conference held on the morning of 8 August
b) Declaring [herein respondent SM Prime]’s clear legal right to 2001, the RTC issued a Pre-Trial Order 12 of even date which limited the
lease parking spaces appurtenant to its department stores, malls, issues to be resolved in Civil Cases No. 00-1208 and No. 00-1210 to the
shopping centers and other commercial establishments; and following:

c) Declaring the National Building Code of the Philippines 1. Capacity of the plaintiff [OSG] in Civil Case No. 00-1210 to
Implementing Rules and Regulations as ineffective, not having institute the present proceedings and relative thereto whether the
been published once a week for three (3) consecutive weeks in a controversy in the collection of parking fees by mall owners is a
newspaper of general circulation, as prescribed by Section 211 of matter of public welfare.
Presidential Decree No. 1096.
 2. Whether declaratory relief is proper. Robinsons, Shangri-la and SM [Prime] are under no obligation to provide
them for free. Article 1158 of the Civil Code is clear:
3. Whether respondent Ayala Land, Robinsons, Shangri-La and
SM Prime are obligated to provide parking spaces in their malls for "Obligations derived from law are not presumed. Only those expressly
the use of their patrons or the public in general, free of charge. determined in this Code or in special laws are demandable and shall be
regulated by the precepts of the law which establishes them; and as to
4. Entitlement of the parties of [sic] award of damages. 13 what has not been foreseen, by the provisions of this Book (1090).["]

On 29 May 2002, the RTC rendered its Joint Decision in Civil Cases No. xxxx
00-1208 and No. 00-1210.
The provision on ratios of parking slots to several variables, like shopping
The RTC resolved the first two issues affirmatively. It ruled that the OSG floor area or customer area found in Rule XIX of the Implementing Rules
can initiate Civil Case No. 00-1210 under Presidential Decree No. 478 and and Regulations cannot be construed as a directive to provide free parking
the Administrative Code of 1987. 14 It also found that all the requisites for spaces, because the enabling law, the Building Code does not so provide.
an action for declaratory relief were present, to wit: x x x.

The requisites for an action for declaratory relief are: (a) there is a To compel Ayala Land, Robinsons, Shangri-La and SM [Prime] to provide
justiciable controversy; (b) the controversy is between persons whose parking spaces for free can be considered as an unlawful taking of
interests are adverse; (c) the party seeking the relief has a legal interest in property right without just compensation.
the controversy; and (d) the issue involved is ripe for judicial determination.
Parking spaces in shopping malls are privately owned and for their use,
SM, the petitioner in Civil Case No. 001-1208 [sic] is a mall operator who the mall operators collect fees. The legal relationship could be either lease
stands to be affected directly by the position taken by the government or deposit. In either case[,] the mall owners have the right to collect money
officials sued namely the Secretary of Public Highways and the Building which translates into income. Should parking spaces be made free, this
Officials of the local government units where it operates shopping malls. right of mall owners shall be gone. This, without just compensation.
The OSG on the other hand acts on a matter of public interest and has Further, loss of effective control over their property will ensue which is
taken a position adverse to that of the mall owners whom it sued. The frowned upon by law.
construction of new and bigger malls has been announced, a matter which
the Court can take judicial notice and the unsettled issue of whether mall The presence of parking spaces can be viewed in another light. They can
operators should provide parking facilities, free of charge needs to be be looked at as necessary facilities to entice the public to increase
resolved.15 patronage of their malls because without parking spaces, going to their
malls will be inconvenient. These are[,] however[,] business considerations
As to the third and most contentious issue, the RTC pronounced that: which mall operators will have to decide for themselves. They are not
sufficient to justify a legal conclusion, as the OSG would like the Court to
adopt that it is the obligation of the mall owners to provide parking spaces
The Building Code, which is the enabling law and the Implementing Rules
for free.16
and Regulations do not impose that parking spaces shall be provided by
the mall owners free of charge. Absent such directive[,] Ayala Land,
The RTC then held that there was no sufficient evidence to justify any THE TRIAL COURT ERRED IN FAILING TO DECLARE THE
award for damages. IMPLEMENTING RULES INEFFECTIVE FOR NOT HAVING BEEN
PUBLISHED AS REQUIRED BY LAW.
The RTC finally decreed in its 29 May 2002 Joint Decision in Civil Cases
No. 00-1208 and No. 00-1210 that: III

FOR THE REASONS GIVEN, the Court declares that Ayala Land[,] Inc., THE TRIAL COURT ERRED IN FAILING TO DISMISS THE OSG’S
Robinsons Land Corporation, Shangri-la Plaza Corporation and SM Prime PETITION FOR DECLARATORY RELIEF AND INJUNCTION FOR
Holdings[,] Inc. are not obligated to provide parking spaces in their malls FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.
for the use of their patrons or public in general, free of charge.
IV
All counterclaims in Civil Case No. 00-1210 are dismissed.
THE TRIAL COURT ERRED IN FAILING TO DECLARE THAT THE OSG
No pronouncement as to costs.17 HAS NO LEGAL CAPACITY TO SUE AND/OR THAT IT IS NOT A REAL
PARTY-IN-INTEREST IN THE INSTANT CASE.21
CA-G.R. CV No. 76298 involved the separate appeals of the OSG 18 and
respondent SM Prime19 filed with the Court of Appeals. The sole Respondent Robinsons filed a Motion to Dismiss Appeal of the OSG on
assignment of error of the OSG in its Appellant’s Brief was: the ground that the lone issue raised therein involved a pure question of
law, not reviewable by the Court of Appeals.
THE TRIAL COURT ERRED IN HOLDING THAT THE NATIONAL
BUILDING CODE DID NOT INTEND MALL PARKING SPACES TO BE The Court of Appeals promulgated its Decision in CA-G.R. CV No. 76298
FREE OF CHARGE[;]20 on 25 January 2007. The appellate court agreed with respondent
Robinsons that the appeal of the OSG should suffer the fate of dismissal,
while the four errors assigned by respondent SM Prime in its Appellant’s since "the issue on whether or not the National Building Code and its
Brief were: implementing rules require shopping mall operators to provide parking
facilities to the public for free" was evidently a question of law. Even so,
since CA-G.R. CV No. 76298 also included the appeal of respondent SM
I
Prime, which raised issues worthy of consideration, and in order to satisfy
the demands of substantial justice, the Court of Appeals proceeded to rule
THE TRIAL COURT ERRED IN FAILING TO DECLARE RULE XIX OF on the merits of the case.
THE IMPLEMENTING RULES AS HAVING BEEN ENACTED ULTRA
VIRES, HENCE, UNCONSTITUTIONAL AND VOID.
In its Decision, the Court of Appeals affirmed the capacity of the OSG to
initiate Civil Case No. 00-1210 before the RTC as the legal representative
II of the government,22 and as the one deputized by the Senate of the
Republic of the Philippines through Senate Committee Report No. 225.
The Court of Appeals rejected the contention of respondent SM Prime that The OSG now comes before this Court, via the instant Petition for Review,
the OSG failed to exhaust administrative remedies. The appellate court with a single assignment of error:
explained that an administrative review is not a condition precedent to
judicial relief where the question in dispute is purely a legal one, and THE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE
nothing of an administrative nature is to be or can be done. RULING OF THE LOWER COURT THAT RESPONDENTS ARE NOT
OBLIGED TO PROVIDE FREE PARKING SPACES TO THEIR
The Court of Appeals likewise refused to rule on the validity of the IRR of CUSTOMERS OR THE PUBLIC.24
the National Building Code, as such issue was not among those the
parties had agreed to be resolved by the RTC during the pre-trial The OSG argues that respondents are mandated to provide free parking
conference for Civil Cases No. 00-1208 and No. 00-1210. Issues cannot by Section 803 of the National Building Code and Rule XIX of the IRR.
be raised for the first time on appeal. Furthermore, the appellate court
found that the controversy could be settled on other grounds, without According to Section 803 of the National Building Code:
touching on the issue of the validity of the IRR. It referred to the settled
rule that courts should refrain from passing upon the constitutionality of a
law or implementing rules, because of the principle that bars judicial SECTION 803. Percentage of Site Occupancy
inquiry into a constitutional question, unless the resolution thereof is
indispensable to the determination of the case. (a) Maximum site occupancy shall be governed by the use, type of
construction, and height of the building and the use, area, nature,
Lastly, the Court of Appeals declared that Section 803 of the National and location of the site; and subject to the provisions of the local
Building Code and Rule XIX of the IRR were clear and needed no further zoning requirements and in accordance with the rules and
construction. Said provisions were only intended to control the occupancy regulations promulgated by the Secretary.
or congestion of areas and structures. In the absence of any express and
clear provision of law, respondents could not be obliged and expected to In connection therewith, Rule XIX of the old IRR, 25 provides:
provide parking slots free of charge.
RULE XIX – PARKING AND LOADING SPACE REQUIREMENTS
The fallo of the 25 January 2007 Decision of the Court of Appeals reads:
Pursuant to Section 803 of the National Building Code (PD 1096) providing
WHEREFORE, premises considered, the instant appeals are DENIED. for maximum site occupancy, the following provisions on parking and
Accordingly, appealed Decision is hereby AFFIRMED in toto. 23 loading space requirements shall be observed:

In its Resolution issued on 14 March 2007, the Court of Appeals denied 1. The parking space ratings listed below are minimum off-street
the Motion for Reconsideration of the OSG, finding that the grounds relied requirements for specific uses/occupancies for buildings/structures:
upon by the latter had already been carefully considered, evaluated, and
passed upon by the appellate court, and there was no strong and cogent 1.1 The size of an average automobile parking slot shall be computed as
reason to modify much less reverse the assailed judgment. 2.4 meters by 5.00 meters for perpendicular or diagonal parking, 2.00
meters by 6.00 meters for parallel parking. A truck or bus parking/loading
slot shall be computed at a minimum of 3.60 meters by 12.00 meters. The
parking slot shall be drawn to scale and the total number of which shall be
indicated on the plans and specified whether or not parking operators/lessors of neighborhood shopping centers, should provide
accommodations, are attendant-managed. (See Section 2 for computation parking and loading spaces, in accordance with the minimum ratio of one
of parking requirements). slot per 100 square meters of shopping floor area. There is nothing therein
pertaining to the collection (or non-collection) of parking fees by
xxxx respondents. In fact, the term "parking fees" cannot even be found at all in
the entire National Building Code and its IRR.
1.7 Neighborhood shopping center – 1 slot/100 sq. m. of shopping floor
area Statutory construction has it that if a statute is clear and unequivocal, it
must be given its literal meaning and applied without any attempt at
interpretation.26 Since Section 803 of the National Building Code and Rule
The OSG avers that the aforequoted provisions should be read together
XIX of its IRR do not mention parking fees, then simply, said provisions do
with Section 102 of the National Building Code, which declares:
not regulate the collection of the same. The RTC and the Court of Appeals
correctly applied Article 1158 of the New Civil Code, which states:
SECTION 102. Declaration of Policy
Art. 1158. Obligations derived from law are not presumed. Only those
It is hereby declared to be the policy of the State to safeguard life, health, expressly determined in this Code or in special laws are demandable, and
property, and public welfare, consistent with the principles of sound shall be regulated by the precepts of the law which establishes them; and
environmental management and control; and to this end, make it the as to what has not been foreseen, by the provisions of this Book.
purpose of this Code to provide for all buildings and structures, a (Emphasis ours.)
framework of minimum standards and requirements to regulate and control
their location, site, design, quality of materials, construction, use,
Hence, in order to bring the matter of parking fees within the ambit of the
occupancy, and maintenance.
National Building Code and its IRR, the OSG had to resort to specious and
feeble argumentation, in which the Court cannot concur.
The requirement of free-of-charge parking, the OSG argues, greatly
contributes to the aim of safeguarding "life, health, property, and public
The OSG cannot rely on Section 102 of the National Building Code to
welfare, consistent with the principles of sound environmental
expand the coverage of Section 803 of the same Code and Rule XIX of the
management and control." Adequate parking spaces would contribute
IRR, so as to include the regulation of parking fees. The OSG limits its
greatly to alleviating traffic congestion when complemented by quick and
citation to the first part of Section 102 of the National Building Code
easy access thereto because of free-charge parking. Moreover, the power
declaring the policy of the State "to safeguard life, health, property, and
to regulate and control the use, occupancy, and maintenance of buildings
public welfare, consistent with the principles of sound environmental
and structures carries with it the power to impose fees and, conversely, to
management and control"; but totally ignores the second part of said
control -- partially or, as in this case, absolutely -- the imposition of such
provision, which reads, "and to this end, make it the purpose of this Code
fees.
to provide for all buildings and structures, a framework of minimum
standards and requirements to regulate and control their location, site,
The Court finds no merit in the present Petition. design, quality of materials, construction, use, occupancy, and
maintenance." While the first part of Section 102 of the National Building
The explicit directive of the afore-quoted statutory and regulatory Code lays down the State policy, it is the second part thereof that explains
provisions, garnered from a plain reading thereof, is that respondents, as how said policy shall be carried out in the Code. Section 102 of the
National Building Code is not an all-encompassing grant of regulatory substantially relieved by widening streets and providing adequate parking
power to the DPWH Secretary and local building officials in the name of areas.
life, health, property, and public welfare. On the contrary, it limits the
regulatory power of said officials to ensuring that the minimum standards The Court, in City of Ozamis, declared that the City had been clothed with
and requirements for all buildings and structures, as set forth in the full power to control and regulate its streets for the purpose of promoting
National Building Code, are complied with. public health, safety and welfare. The City can regulate the time, place,
and manner of parking in the streets and public places; and charge
Consequently, the OSG cannot claim that in addition to fixing the minimum minimal fees for the street parking to cover the expenses for supervision,
requirements for parking spaces for buildings, Rule XIX of the IRR also inspection and control, to ensure the smooth flow of traffic in the environs
mandates that such parking spaces be provided by building owners free of of the public market, and for the safety and convenience of the public.
charge. If Rule XIX is not covered by the enabling law, then it cannot be
added to or included in the implementing rules. The rule-making power of Republic and City of Ozamis involved parking in the local streets; in
administrative agencies must be confined to details for regulating the contrast, the present case deals with privately owned parking facilities
mode or proceedings to carry into effect the law as it has been enacted, available for use by the general public. In Republic and City of Ozamis, the
and it cannot be extended to amend or expand the statutory requirements concerned local governments regulated parking pursuant to their power to
or to embrace matters not covered by the statute. Administrative control and regulate their streets; in the instant case, the DPWH Secretary
regulations must always be in harmony with the provisions of the law and local building officials regulate parking pursuant to their authority to
because any resulting discrepancy between the two will always be ensure compliance with the minimum standards and requirements under
resolved in favor of the basic law.27 the National Building Code and its IRR. With the difference in subject
matters and the bases for the regulatory powers being invoked, Republic
From the RTC all the way to this Court, the OSG repeatedly referred to and City of Ozamis do not constitute precedents for this case.
Republic v. Gonzales28 and City of Ozamis v. Lumapas29 to support its
position that the State has the power to regulate parking spaces to Indeed, Republic and City of Ozamis both contain pronouncements that
promote the health, safety, and welfare of the public; and it is by virtue of weaken the position of the OSG in the case at bar. In Republic, the Court,
said power that respondents may be required to provide free parking instead of placing the burden on private persons to provide parking
facilities. The OSG, though, failed to consider the substantial differences in facilities to the general public, mentioned the trend in other jurisdictions
the factual and legal backgrounds of these two cases from those of the wherein the municipal governments themselves took the initiative to make
Petition at bar. more parking spaces available so as to alleviate the traffic problems, thus:

In Republic, the Municipality of Malabon sought to eject the occupants of Under the Land Transportation and Traffic Code, parking in designated
two parcels of land of the public domain to give way to a road-widening areas along public streets or highways is allowed which clearly indicates
project. It was in this context that the Court pronounced: that provision for parking spaces serves a useful purpose. In other
jurisdictions where traffic is at least as voluminous as here, the provision
Indiscriminate parking along F. Sevilla Boulevard and other main by municipal governments of parking space is not limited to parking along
thoroughfares was prevalent; this, of course, caused the build up of traffic public streets or highways. There has been a marked trend to build off-
in the surrounding area to the great discomfort and inconvenience of the street parking facilities with the view to removing parked cars from the
public who use the streets. Traffic congestion constitutes a threat to the streets. While the provision of off-street parking facilities or carparks has
health, welfare, safety and convenience of the people and it can only be been commonly undertaken by private enterprise, municipal governments
have been constrained to put up carparks in response to public necessity Keeping in mind the aforementioned test of reasonableness and propriety
where private enterprise had failed to keep up with the growing public of measures or means, the Court notes that Section 803 of the National
demand. American courts have upheld the right of municipal governments Building Code falls under Chapter 8 on Light and Ventilation. Evidently, the
to construct off-street parking facilities as clearly redounding to the public Code deems it necessary to regulate site occupancy to ensure that there is
benefit.30 proper lighting and ventilation in every building. Pursuant thereto, Rule XIX
of the IRR requires that a building, depending on its specific use and/or
In City of Ozamis, the Court authorized the collection by the City of floor area, should provide a minimum number of parking spaces. The
minimal fees for the parking of vehicles along the streets: so why then Court, however, fails to see the connection between regulating site
should the Court now preclude respondents from collecting from the public occupancy to ensure proper light and ventilation in every building vis-à-vis
a fee for the use of the mall parking facilities? Undoubtedly, respondents regulating the collection by building owners of fees for the use of their
also incur expenses in the maintenance and operation of the mall parking parking spaces. Contrary to the averment of the OSG, the former does not
facilities, such as electric consumption, compensation for parking necessarily include or imply the latter. It totally escapes this Court how
attendants and security, and upkeep of the physical structures. lighting and ventilation conditions at the malls could be affected by the fact
that parking facilities thereat are free or paid for.
It is not sufficient for the OSG to claim that "the power to regulate and
control the use, occupancy, and maintenance of buildings and structures The OSG attempts to provide the missing link by arguing that:
carries with it the power to impose fees and, conversely, to control,
partially or, as in this case, absolutely, the imposition of such fees." Firstly, Under Section 803 of the National Building Code, complimentary parking
the fees within the power of regulatory agencies to impose are regulatory spaces are required to enhance light and ventilation, that is, to avoid traffic
fees. It has been settled law in this jurisdiction that this broad and all- congestion in areas surrounding the building, which certainly affects the
compassing governmental competence to restrict rights of liberty and ventilation within the building itself, which otherwise, the annexed parking
property carries with it the undeniable power to collect a regulatory fee. It spaces would have served. Free-of-charge parking avoids traffic
looks to the enactment of specific measures that govern the relations not congestion by ensuring quick and easy access of legitimate shoppers to
only as between individuals but also as between private parties and the off-street parking spaces annexed to the malls, and thereby removing the
political society.31 True, if the regulatory agencies have the power to vehicles of these legitimate shoppers off the busy streets near the
impose regulatory fees, then conversely, they also have the power to commercial establishments.33
remove the same. Even so, it is worthy to note that the present case does
not involve the imposition by the DPWH Secretary and local building The Court is unconvinced. The National Building Code regulates buildings,
officials of regulatory fees upon respondents; but the collection by by setting the minimum specifications and requirements for the same. It
respondents of parking fees from persons who use the mall parking does not concern itself with traffic congestion in areas surrounding the
facilities. Secondly, assuming arguendo that the DPWH Secretary and building. It is already a stretch to say that the National Building Code and
local building officials do have regulatory powers over the collection of its IRR also intend to solve the problem of traffic congestion around the
parking fees for the use of privately owned parking facilities, they cannot buildings so as to ensure that the said buildings shall have adequate
allow or prohibit such collection arbitrarily or whimsically. Whether allowing lighting and ventilation. Moreover, the Court cannot simply assume, as the
or prohibiting the collection of such parking fees, the action of the DPWH OSG has apparently done, that the traffic congestion in areas around the
Secretary and local building officials must pass the test of classic malls is due to the fact that respondents charge for their parking facilities,
reasonableness and propriety of the measures or means in the promotion thus, forcing vehicle owners to just park in the streets. The Court notes
of the ends sought to be accomplished.32 that despite the fees charged by respondents, vehicle owners still use the
mall parking facilities, which are even fully occupied on some days. Normally, of course, the power of eminent domain results in the taking or
Vehicle owners may be parking in the streets only because there are not appropriation of title to, and possession of, the expropriated property; but
enough parking spaces in the malls, and not because they are deterred by no cogent reason appears why the said power may not be availed of only
the parking fees charged by respondents. Free parking spaces at the malls to impose a burden upon the owner of condemned property, without loss
may even have the opposite effect from what the OSG envisioned: more of title and possession.36 It is a settled rule that neither acquisition of title
people may be encouraged by the free parking to bring their own vehicles, nor total destruction of value is essential to taking. It is usually in cases
instead of taking public transport, to the malls; as a result, the parking where title remains with the private owner that inquiry should be made to
facilities would become full sooner, leaving more vehicles without parking determine whether the impairment of a property is merely regulated or
spaces in the malls and parked in the streets instead, causing even more amounts to a compensable taking. A regulation that deprives any person
traffic congestion. of the profitable use of his property constitutes a taking and entitles him to
compensation, unless the invasion of rights is so slight as to permit the
Without using the term outright, the OSG is actually invoking police power regulation to be justified under the police power. Similarly, a police
to justify the regulation by the State, through the DPWH Secretary and regulation that unreasonably restricts the right to use business property for
local building officials, of privately owned parking facilities, including the business purposes amounts to a taking of private property, and the owner
collection by the owners/operators of such facilities of parking fees from may recover therefor.371avvphi1
the public for the use thereof. The Court finds, however, that in totally
prohibiting respondents from collecting parking fees from the public for the Although in the present case, title to and/or possession of the parking
use of the mall parking facilities, the State would be acting beyond the facilities remain/s with respondents, the prohibition against their collection
bounds of police power. of parking fees from the public, for the use of said facilities, is already
tantamount to a taking or confiscation of their properties. The State is not
Police power is the power of promoting the public welfare by restraining only requiring that respondents devote a portion of the latter’s properties
and regulating the use of liberty and property. It is usually exerted in order for use as parking spaces, but is also mandating that they give the public
to merely regulate the use and enjoyment of the property of the owner. access to said parking spaces for free. Such is already an excessive
The power to regulate, however, does not include the power to prohibit. A intrusion into the property rights of respondents. Not only are they being
fortiori, the power to regulate does not include the power to confiscate. deprived of the right to use a portion of their properties as they wish, they
Police power does not involve the taking or confiscation of property, with are further prohibited from profiting from its use or even just recovering
the exception of a few cases where there is a necessity to confiscate therefrom the expenses for the maintenance and operation of the required
private property in order to destroy it for the purpose of protecting peace parking facilities.
and order and of promoting the general welfare; for instance, the
confiscation of an illegally possessed article, such as opium and The ruling of this Court in City Government of Quezon City v. Judge
firearms. 34 Ericta38 is edifying. Therein, the City Government of Quezon City passed
an ordinance obliging private cemeteries within its jurisdiction to set aside
When there is a taking or confiscation of private property for public use, at least six percent of their total area for charity, that is, for burial grounds
the State is no longer exercising police power, but another of its inherent of deceased paupers. According to the Court, the ordinance in question
powers, namely, eminent domain. Eminent domain enables the State to was null and void, for it authorized the taking of private property without
forcibly acquire private lands intended for public use upon payment of just just compensation:
compensation to the owner.35
There is no reasonable relation between the setting aside of at least six (6) Given the foregoing, the Court finds no more need to address the issue
percent of the total area of all private cemeteries for charity burial grounds persistently raised by respondent SM Prime concerning the
of deceased paupers and the promotion of' health, morals, good order, unconstitutionality of Rule XIX of the IRR. In addition, the said issue was
safety, or the general welfare of the people. The ordinance is actually a not among those that the parties, during the pre-trial conference for Civil
taking without compensation of a certain area from a private cemetery to Cases No. 12-08 and No. 00-1210, agreed to submit for resolution of the
benefit paupers who are charges of the municipal corporation. Instead of' RTC. It is likewise axiomatic that the constitutionality of a law, a regulation,
building or maintaining a public cemetery for this purpose, the city passes an ordinance or an act will not be resolved by courts if the controversy can
the burden to private cemeteries. be, as in this case it has been, settled on other grounds. 39

'The expropriation without compensation of a portion of private cemeteries WHEREFORE, the instant Petition for Review on Certiorari is hereby
is not covered by Section 12(t) of Republic Act 537, the Revised Charter of DENIED. The Decision dated 25 January 2007 and Resolution dated 14
Quezon City which empowers the city council to prohibit the burial of the March 2007 of the Court of Appeals in CA-G.R. CV No. 76298, affirming in
dead within the center of population of the city and to provide for their toto the Joint Decision dated 29 May 2002 of the Regional Trial Court of
burial in a proper place subject to the provisions of general law regulating Makati City, Branch 138, in Civil Cases No. 00-1208 and No. 00-1210 are
burial grounds and cemeteries. When the Local Government Code, Batas hereby AFFIRMED. No costs.
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 SO ORDERED.
such manner as prescribed by law or ordinance" it simply authorizes the
city to provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law, and
practise in the past. It continues to the present. Expropriation, however,
requires payment of just compensation. The questioned ordinance is
different from laws and regulations requiring owners of subdivisions to set
aside certain areas for streets, parks, playgrounds, and other public
facilities from the land they sell to buyers of subdivision lots. The
necessities of public safety, health, and convenience are very clear from
said requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the subdivision
developer when individual lots are sold to homeowners.

In conclusion, the total prohibition against the collection by respondents of

parking fees from persons who use the mall parking facilities has no basis
in the National Building Code or its IRR. The State also cannot impose the
same prohibition by generally invoking police power, since said prohibition
amounts to a taking of respondents’ property without payment of just
compensation.