207 Phil.

648

FIRST DIVISION
G.R. No. L-34915, June 24, 1983

CITY GOVERNMENT OF QUEZON CITY AND CITY

COUNCIL OF QUEZON CITY, PETITIONERS, VS. HON.
JUDGE VICENTE G. ERICTA AS JUDGE OF THE COURT
OF FIRST INSTANCE OF RIZAL, QUEZON CITY, BRANCH
XVIII; HIMLAYANG PILIPINO, INC., RESPONDENTS.

DE CIS ION

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the
Court of First Instance of Rizal, Branch XVIII declaring Section 9 of
Ordinance No. 6118, S-64, of the Quezon City Council null and void.

Section 9 of ordinance No. 6118, S-64, entitled "ORDINANCE

REGULATING THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR
BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY
AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF"
provides:

"Sec. 9. At least six (6) percent of the total area of the memorial
park cemetery shall be set aside for charity burial of deceased
persons who are paupers and have been residents of Quezon City
for at least 5 years prior to their death, to be determined by
competent City Authorities. The area so designated shall
immediately be developed and should be open for operation not
later than six months from the date of approval of the application."

For several years, the aforequoted section of the Ordinance was not enforced
by city authorities but seven years after the enactment of the ordinance, the
Quezon City Council passed the following resolution:
 "RESOLVED by the council of Quezon assembled, to request, as
it does hereby request the City Engineer, Quezon City, to stop any
further selling and/or transaction of memorial park lots in Quezon
City where the owners thereof have failed to donate the required
6% space intended for paupers burial."

Pursuant to this resolution, the Quezon City Engineer notified respondent

Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-
64 would be enforced.

Respondent Himlayang Pilipino reacted by filing with the Court of First

Instance of Rizal, Branch XVIII at Quezon City, a petition for declaratory
relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No.
Q-16002) seeking to annul Section 9 of the ordinance in question. The
respondent alleged that the same is contrary to the Constitution, the Quezon
City Charter, the Local Autonomy Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal, both
petitioners and respondent agreed to the rendition of a judgment on the
pleadings. The respondent court, therefore, rendered the decision declaring
Section 9 of ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and
City Council filed the instant petition.

Petitioners argue that the taking of the respondent's property is a valid and
reasonable exercise of police power and that the land is taken for a public use
as it is intended for the burial ground of paupers. They further argue that the
Quezon City Council is authorized under its charter, in the exercise of local
police power, "to make such further ordinances and resolutions not repugnant
to law as may be necessary to carry into effect and discharge the powers and
duties conferred by this Act and such as it shall deem necessary and proper to
provide for the health and safety, promote the prosperity, improve the morals,
peace, good order, comfort and convenience of the city and the inhabitants
thereof, and for the protection of property therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the
taking or confiscation of property is obvious because the questioned
ordinance permanently restricts the use of the property such that it cannot be
used for any reasonable purpose and deprives the owner of all beneficial use
of his property.
The respondent also stresses that the general welfare clause is not available as
a source of power for the taking of the property in this case because it refers
to "the power of promoting the public welfare by restraining and regulating
the use of liberty and property." The respondent points out that if an owner is
deprived of his property outright under the State's police power, the property
is generally not taken for public use but is urgently and summarily destroyed
in order to promote the general welfare. The respondent cites the case of a
nuisance per se or the destruction of a house to prevent the spread of a
conflagration.

We find the stand of the private respondent as well as the decision of the
respondent Judge to be well-founded. We quote with approval the lower
court's ruling which declared null and void Section 9 of the questioned city
ordinance:

"The issue is: Is Section 9 of the ordinance in question a valid

exercise of the police power?

"An examination of the Charter of Quezon City (Rep. Act No.

537), does not reveal any provision that would justify the
ordinance in question except the provision granting police power to
the City. Section 9 cannot be justified under the power granted to
Quezon City to tax, fix the license fee, and regulate such other
business, trades, and occupation as may be established or
practised in the City (Sub-sections 'C', Sec. 12, R.A. 537).

"The power to regulate does not include the power to prohibit

(People vs. Esguerra, 81 Phil. 33, Vega vs. Municipal Board of
Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A
fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but also
prohibits the operation of a memorial park cemetery, because
under Section 13 of said ordinance, 'Violation of the provision
thereof is punishable with a fine and/or imprisonment and that
upon conviction thereof the permit to operate and maintain a
private cemetery shall be revoked or cancelled.' The confiscatory
clause and the penal provision in effect deter one from operating a
memorial park cemetery. Neither can the ordinance in question be
justified under sub-section 't', Section 12 of Republic Act 537
which authorizes the City Council to—
 "'prohibit the burial of the dead within the center of
population of the city and provide for their burial in
such proper place and in such manner as the council
may determine, subject to the provisions of the general
law regulating burial grounds and cemeteries and
governing funerals and disposal of the dead.' (Sub-sec.
(t), Sec. 12, Rep. Act. No. 537)

There is nothing in the above provision which authorizes

confiscation or as euphemistically termed by the respondents,
'donation.'

We now come to the question whether or not Section 9 of the

ordinance in question is a valid exercise of police power. The
police power of Quezon City is defined in sub-section 00, Sec. 12,
Rep. Act 537 which reads as follows:

"'(00) To make such further ordinance and regulations

not repugnant to law as may be necessary to carry into
effect and discharge the powers and duties conferred
by this act and such as it shall deem necessary and
proper to provide for the health and safety, promote,
the prosperity, improve the morals, peace, good order,
comfort and convenience of the city and the inhabitants
thereof, and for the protection of property therein; and
enforce obedience thereto with such lawful fines or
penalties as the City Council may prescribe under the
provisions of subsection (jj) of this section.'

"We start the discussion with a restatement of certain basic

principles. Occupying the forefront in the bill of rights is the
provision which states that 'no person shall be deprived of life,
liberty or property without due process of law' (Art. III, Section 1
subparagraph 1, Constitution).

"On the other hand, there are three inherent powers of

government by which the state interferes with the property rights,
namely: (1) police power, (2) eminent domain, (3) taxation. These
are said to exist independently of the Constitution as necessary
attributes of sovereignty.
"Police power is defined by Freund as 'the powers of promoting
the public welfare by restraining and regulating the use of liberty
and property' (Quoted in Political Law by Tañada and Carreon, V-
II, p. 50). It is usually exerted in order to merely regulate the use
and enjoyment of property of the owner. If he is deprived of his
property outright, it is not taken for public use but rather to
destroy in order to promote the general welfare. In police power,
the owner does not recover from the government for injury
sustained in consequence thereof. (12 C.J. 623). It has been said
that police power is the most essential of government powers, at
times the most insistent, and always one of the least limitable of
the powers of government (Ruby vs. Provincial Board, 39 Phil.
660; Ichong vs. Hernandez, L-7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya
Fan, 10 Phil. 104). The Supreme Court has said that police power
is so far-reaching in scope that it has almost become impossible to
limit its sweep. As it derives its existence from the very existence
of the state itself, it does not need to be expressed or defined in its
scope. Being coextensive with self-preservation and survival itself,
it is the most positive and active of all governmental processes, the
most essential, insistent and illimitable. Especially it is so under the
modern democractic framework where the demands of society
and nations have multiplied to almost unimaginable proportions.
The field and scope of police power have become almost
boundless, just as the fields of public interest and public welfare
have become almost all embracing and have transcended human
foresight. Since the Courts cannot foresee the needs and demands
of public interest and welfare, they cannot delimit beforehand the
extent or scope of the, police power by which and through which
the state seeks to attain or achieve public interest and welfare.
(Ichong vs. Hernandez, L-7995, May 31, 1957)

"The police power being the most active power of the government
and the due process clause being the broadest limitation on
governmental power, the conflict between this power of
government and the due process clause of the Constitution is
oftentimes inevitable.

"It will be seen from the foregoing authorities that police power is
usually exercised in the form of mere regulation or restriction in
the use of liberty or property for the promotion of the general
 welfare. It does not involve the taking or confiscation of property
with the exception of a few cases where there is a necessity to
confiscate private property in order to destroy it for the purpose of
protecting the peace and order and of promoting the general
welfare as for instance, the confiscation of an illegally possessed
article, such as opium and firearms.

"It seems to the court that Section 9 of Ordinance No. 6118,

Series of 1964 of Quezon City is not a mere police regulation but
an outright confiscation. It deprives a person of his private
property without due process of law, nay, even without
compensation."

In sustaining the decision of the respondent court, we are not unmindful of

the heavy burden shouldered by whoever challenges the validity of duly
enacted legislation, whether national or local. As early as 1913, this Court
ruled in Case v. Board of Health (24 Phil. 250) that the courts resolve every
presumption in favor of validity and, more so, where the municipal
corporation asserts that the ordinance was enacted to promote the common
good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association

Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the
then Associate Justice and now Chief Justice Enrique M. Fernando stated:

"Primarily what calls for a reversal of such a decision is the

absence of any evidence to offset the presumption of validity that
attaches to a challenged statute or ordinance. As was express
categorically by Justice Malcolm: 'The presumption is all in favor
of validity. . . . The action of the elected representatives of the
people cannot be lightly set aside. The councilors must, in the very
nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which
surround the subject and necessitate action. The local legislative
body, by enacting the ordinance, has in effect given notice that the
regulations are essential to the well-being of the people. . . . The
Judiciary should not lightly set aside legislative action when there
is not a clear invasion of personal or property rights under the
guise of police regulation.' (U.S. v. Salaveria [1918], 39 Phil. 102,
at p. 111. There was an affirmation of the presumption of validity
 of municipal ordinance as announced in the leading Salaveria
decision in Eboña v. Daet, [1950] 85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of

Health, supra:

". . . Under the provisions of municipal charters which are known

as the general welfare clauses, a city, by virtue of its police power,
may adopt ordinances to secure the peace, safety, health, morals
and the best and highest interests of the municipality. It is a well-
settled principle, growing out of the nature of well-ordered and
civilized society, that every holder of property, however absolute
and unqualified may be his title, holds it under the implied liability
that his use of it shall not be injurious to the equal enjoyment of
others having an equal right to the enjoyment of their property,
nor injurious to the rights of the community. All property in the
state is held subject to its general regulations, which are necessary
to the common good and general welfare. Rights of property, like
all other social and conventional rights, are subject to such
reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restraints and
regulations, established by law, as the legislature, under the
governing and controlling power vested in them by the
constitution, may think necessary and expedient. The state, under
the police power, is possessed with plenary power to deal with all
matters relating to the general health, morals, and safety of the
people, so long as it does not contravene any positive inhibition of
the organic law and providing that such power is not exercised in
such a manner as to justify the interference of the courts to
prevent positive wrong and oppression."

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6)
percent of the total area of all private cemeteries for charity burial grounds of
deceased paupers and the promotion of health, morals, good order, safety, or
the general welfare of the people. The ordinance is actually a taking without
compensation of a certain area from a private cemetery to benefit paupers
who are charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the burden to
private cemeteries.
The expropriation without compensation of a portion of private cemeteries is
not covered by Section 12(t) of Republic Act 537, the Revised Charter of
Quezon City which empowers the city council to prohibit the burial of the
dead within the center of population of the city and to provide for their burial
in a proper place subject to the provisions of general law regulating burial
grounds and cemeteries. When the Local Government Code, Batas
Pambansa Blg. 337 provides in Section 177 (q) that a sangguniang
panlungsod may "provide for the burial of the dead in such place and in such
manner as prescribed by law or ordinance" it simply authorizes the city to
provide its own city owned land or to buy or expropriate private properties to
construct public cemeteries. This has been the law and practise in the past. It
continues to the present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws and
regulations requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the land they sell
to buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to
insure the development of communities with salubrious and wholesome
environments. The beneficiaries of the regulation, in turn, are made to pay by
the subdivision developer when individual lots are sold to homeowners.

As a matter of fact, the petitioners rely solely on the general welfare clause or
on implied powers of the municipal corporation, not on any express provision
of law as statutory basis of their exercise of power. The clause has always
received broad and liberal interpretation but we cannot stretch it to cover this
particular taking. Moreover, the questioned ordinance was passed after
Himlayang Pilipino, Inc. had incorporated, received necessary licenses and
permits, and commenced operating. The sequestration of six percent of the
cemetery cannot even be considered as having been impliedly acknowledged
by the private respondent when it accepted the permits to commence
operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision

of the respondent court is affirmed.

SO ORDERED.

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

JJ., concur.