G.R. No.

L-34915 June 24, 1983 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
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON transaction of memorial park lots in Quezon City where the owners thereof
CITY, petitioners,  have failed to donate the required 6% space intended for paupers burial.
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Pursuant to this petition, the Quezon City Engineer notified respondent
Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents. Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64
would be enforced
City Fiscal for petitioners.
Respondent Himlayang Pilipino reacted by filing with the Court of First
Manuel Villaruel, Jr. and Feliciano Tumale for respondents. 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
GUTIERREZ, JR., J.: respondent alleged that the same is contrary to the Constitution, the
Quezon City Charter, the Local Autonomy Act, and the Revised
This is a petition for review which seeks the reversal of the decision of the
Administrative Code.
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. 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
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING
pleadings. The respondent court, therefore, rendered the decision declaring
THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE
Section 9 of Ordinance No. 6118, S-64 null and void.
MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE
JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE A motion for reconsideration having been denied, the City Government and
VIOLATION THEREOF" provides: City Council filed the instant petition.

Sec. 9. At least six (6) percent of the total area of the memorial park Petitioners argue that the taking of the respondent's property is a valid and
cemetery shall be set aside for charity burial of deceased persons who are reasonable exercise of police power and that the land is taken for a public
paupers and have been residents of Quezon City for at least 5 years prior to use as it is intended for the burial ground of paupers. They further argue
their death, to be determined by competent City Authorities. The area so that the Quezon City Council is authorized under its charter, in the exercise
designated shall immediately be developed and should be open for of local police power, " to make such further ordinances and resolutions not
operation not later than six months from the date of approval of the repugnant to law as may be necessary to carry into effect and discharge the
application. 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,
For several years, the aforequoted section of the Ordinance was not
improve the morals, peace, good order, comfort and convenience of the city
enforced by city authorities but seven years after the enactment of the
and the inhabitants thereof, and for the protection of property therein."
ordinance, the Quezon City Council passed the following resolution:
On the other hand, respondent Himlayang Pilipino, Inc. contends that the because under Section 13 of said ordinance, 'Violation of the provision
taking or confiscation of property is obvious because the questioned thereof is punishable with a fine and/or imprisonment and that upon
ordinance permanently restricts the use of the property such that it cannot conviction thereof the permit to operate and maintain a private cemetery
be used for any reasonable purpose and deprives the owner of all beneficial shall be revoked or cancelled.' The confiscatory clause and the penal
use of his property. provision in effect deter one from operating a memorial park cemetery.
Neither can the ordinance in question be justified under sub- section "t",
The respondent also stresses that the general welfare clause is not available Section 12 of Republic Act 537 which authorizes the City Council to-
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 'prohibit the burial of the dead within the center of population of the city
regulating the use of liberty and property." The respondent points out that and provide for their burial in such proper place and in such manner as the
if an owner is deprived of his property outright under the State's police council may determine, subject to the provisions of the general law
power, the property is generally not taken for public use but is urgently and regulating burial grounds and cemeteries and governing funerals and
summarily destroyed in order to promote the general welfare. The disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).
respondent cites the case of a nuisance per se or the destruction of a house
There is nothing in the above provision which authorizes confiscation or as
to prevent the spread of a conflagration.
euphemistically termed by the respondents, 'donation'
We find the stand of the private respondent as well as the decision of the
We now come to the question whether or not Section 9 of the ordinance in
respondent Judge to be well-founded. We quote with approval the lower
court's ruling which declared null and void Section 9 of the questioned city 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:
ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the (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
police power?
duties conferred by this act and such as it shall deem necessary and proper
An examination of the Charter of Quezon City (Rep. Act No. 537), does not to provide for the health and safety, promote, the prosperity, improve the
reveal any provision that would justify the ordinance in question except the morals, peace, good order, comfort and convenience of the city and the
provision granting police power to the City. Section 9 cannot be justified inhabitants thereof, and for the protection of property therein; and enforce
under the power granted to Quezon City to tax, fix the license fee, obedience thereto with such lawful fines or penalties as the City Council
and regulate such other business, trades, and occupation as may be may prescribe under the provisions of subsection (jj) of this section.
established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).
We start the discussion with a restatement of certain basic principles.
The power to regulate does not include the power to prohibit (People vs. Occupying the forefront in the bill of rights is the provision which states that
Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 'no person shall be deprived of life, liberty or property without due process
1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not of law' (Art. Ill, Section 1 subparagraph 1, Constitution).
include the power to confiscate. The ordinance in question not only
confiscates but also prohibits the operation of a memorial park cemetery, 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 It will be seen from the foregoing authorities that police power is usually
independently of the Constitution as necessary attributes of sovereignty. 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
Police power is defined by Freund as 'the power of promoting the public taking or confiscation of property with the exception of a few cases where
welfare by restraining and regulating the use of liberty and property' there is a necessity to confiscate private property in order to destroy it for
(Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually the purpose of protecting the peace and order and of promoting the general
exerted in order to merely regulate the use and enjoyment of property of welfare as for instance, the confiscation of an illegally possessed article,
the owner. If he is deprived of his property outright, it is not taken for public such as opium and firearms.
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 It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of
sustained in consequence thereof (12 C.J. 623). It has been said that police Quezon City is not a mere police regulation but an outright confiscation. It
power is the most essential of government powers, at times the most deprives a person of his private property without due process of law, nay,
insistent, and always one of the least limitable of the powers of government even without compensation.
(Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May
In sustaining the decision of the respondent court, we are not unmindful of
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 the heavy burden shouldered by whoever challenges the validity of duly
enacted legislation whether national or local As early as 1913, this Court
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, ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
presumption in favor of validity and, more so, where the ma corporation
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 asserts that the ordinance was enacted to promote the common good and
general welfare.
all governmental processes, the most essential insistent and illimitable
Especially it is so under the modern democratic framework where the In the leading case of Ermita-Malate Hotel and Motel Operators Association
demands of society and nations have multiplied to almost unimaginable Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the
proportions. The field and scope of police power have become almost then Associate Justice and now Chief Justice Enrique M. Fernando stated
boundless, just as the fields of public interest and public welfare have
become almost all embracing and have transcended human foresight. Since Primarily what calls for a reversal of such a decision is the a of any evidence
the Courts cannot foresee the needs and demands of public interest and to offset the presumption of validity that attaches to a statute or ordinance.
welfare, they cannot delimit beforehand the extent or scope of the police As was expressed categorically by Justice Malcolm 'The presumption is all in
power by which and through which the state seeks to attain or achieve favor of validity. ... The action of the elected representatives of the people
public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957). 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
The police power being the most active power of the government and the all the facts and lances which surround the subject and necessitate action.
due process clause being the broadest station on governmental power, the The local legislative body, by enacting the ordinance, has in effect given
conflict between this power of government and the due process clause of notice that the regulations are essential to the well-being of the people. ...
the Constitution is oftentimes inevitable. 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 safety, or the general welfare of the people. The ordinance is actually a
regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an taking without compensation of a certain area from a private cemetery to
affirmation of the presumption of validity of municipal ordinance as benefit paupers who are charges of the municipal corporation. Instead of
announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. building or maintaining a public cemetery for this purpose, the city passes
369.) the burden to private cemeteries.

We have likewise considered the principles earlier stated in Case v. Board of The expropriation without compensation of a portion of private cemeteries
Health supra : 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
... Under the provisions of municipal charters which are known as the dead within the center of population of the city and to provide for their
general welfare clauses, a city, by virtue of its police power, may adopt burial in a proper place subject to the provisions of general law regulating
ordinances to the peace, safety, health, morals and the best and highest burial grounds and cemeteries. When the Local Government Code, Batas
interests of the municipality. It is a well-settled principle, growing out of the Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang
nature of well-ordered and society, that every holder of property, however panlungsod may "provide for the burial of the dead in such place and in
absolute and may be his title, holds it under the implied liability that his use such manner as prescribed by law or ordinance" it simply authorizes the city
of it shall not be injurious to the equal enjoyment of others having an equal to provide its own city owned land or to buy or expropriate private
right to the enjoyment of their property, nor injurious to the rights of the properties to construct public cemeteries. This has been the law and
community. An property in the state is held subject to its general practise in the past. It continues to the present. Expropriation, however,
regulations, which are necessary to the common good and general welfare. requires payment of just compensation. The questioned ordinance is
Rights of property, like all other social and conventional rights, are subject different from laws and regulations requiring owners of subdivisions to set
to such reasonable limitations in their enjoyment as shall prevent them aside certain areas for streets, parks, playgrounds, and other public facilities
from being injurious, and to such reasonable restraints and regulations, from the land they sell to buyers of subdivision lots. The necessities of
established by law, as the legislature, under the governing and controlling public safety, health, and convenience are very clear from said
power vested in them by the constitution, may think necessary and requirements which are intended to insure the development of
expedient. The state, under the police power, is possessed with plenary communities with salubrious and wholesome environments. The
power to deal with all matters relating to the general health, morals, and beneficiaries of the regulation, in turn, are made to pay by the subdivision
safety of the people, so long as it does not contravene any positive developer when individual lots are sold to home-owners.
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 As a matter of fact, the petitioners rely solely on the general welfare clause
positive wrong and oppression. 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
but find them not applicable to the facts of this case. always received broad and liberal interpretation but we cannot stretch it to
There is no reasonable relation between the setting aside of at least six (6) cover this particular taking. Moreover, the questioned ordinance was
percent of the total area of an private cemeteries for charity burial grounds passed after Himlayang Pilipino, Inc. had incorporated. received necessary
of deceased paupers and the promotion of health, morals, good order, 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

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ.,