G.R. No.

L-42571-72 - VICENTE DE LA
CRUZ, ET AL. vs. EDGARDO L. PARAS,
ET AL.

EN BANC

G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO

CORPUZ, TERESITA CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO,
NANETTE VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE
CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA,
ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA
ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES
SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO
GABRIEL, Petitioners, vs. THE HONORABLE EDGARDO L. PARAS, MATIAS
RAMIREZ as the Municipal Mayor, MARIO MENDOZA as the Municipal Vice-
Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, Respondents.

Federico N. Alday for petitioners.chanrobles virtual law library

Dakila F. Castro for respondents.

FERNANDO, C.J.:chanrobles virtual law library

The crucial question posed by this certiorari proceeding is whether or not a

municipal corporation, Bocaue, Bulacan, represented by respondents, 1can,
prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit
of a lawful occupation, such clubs employing hostesses. It is contended that the
ordinance assailed as invalid is tainted with nullity, the municipality being devoid
of power to prohibit a lawful business, occupation or calling, petitioners at the
same time alleging that their rights to due process and equal protection of the laws
were violated as the licenses previously given to them was in effect withdrawn
without judicial hearing. 2 chanrobles virtual law library

The assailed ordinance 3 is worded as follows: "Section 1.- Title of Ordinance.- This
Ordinance shall be known and may be cited as the [Prohibition and Closure
Ordinance] of Bocaue, Bulacan. Section 2. - Definitions of Terms - (a) 'Night Club'
shall include any place or establishment selling to the public food or drinks where
customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall include any place
or establishment where dancing is permitted to the public and where professional
hostesses or hospitality girls and professional dancers are employed. (c)
'Professional hostesses' or 'hospitality girls' shall include any woman employed by
any of the establishments herein defined to entertain guests and customers at their
table or to dance with them. (d) 'Professional dancer' shall include any woman who
dances at any of the establishments herein defined for a fee or remuneration paid
directly or indirectly by the operator or by the persons she dances with. (e)
'Operator' shall include the owner, manager, administrator or any person who
operates and is responsible for the operation of any night club, cabaret or dance
hall. Section 3. - Prohibition in the Issuance and Renewal of Licenses, Permits. - Being
the principal cause in the decadence of morality and because of their other adverse
effects on this community as explained above, no operator of night clubs, cabarets
or dance halls shall henceforth be issued permits/licenses to operate within the
jurisdiction of the municipality and no license/permit shall be issued to any
professional hostess, hospitality girls and professional dancer for employment in
any of the aforementioned establishments. The prohibition in the issuance of
licenses/permits to said persons and operators of said establishments shall include
prohibition in the renewal thereof. Section 4.- Revocation of Permits and Licenses.-
The licenses and permits issued to operators of night clubs, cabarets or dance halls
which are now in operation including permits issued to professional hostesses,
hospitality girls and professional dancers are hereby revoked upon the expiration
of the thirty-day period given them as provided in Section 8 hereof and
thenceforth, the operation of these establishments within the jurisdiction of the
municipality shall be illegal. Section 5.- Penalty in case of violation. - Violation of any
of the provisions of this Ordinance shall be punishable by imprisonment not
exceeding three (3) months or a fine not exceeding P200.00 or both at the discretion
of the Court. If the offense is committed by a juridical entity, the person charged
with the management and/or operation thereof shall be liable for the penalty
provided herein. Section 6. - Separability Clause.- If, for any reason, any section or
provision of this Ordinance is held unconstitutional or invalid, no other section or
provision hereof shall be affected thereby. Section 7.- Repealing Clause.- All
ordinance, resolutions, circulars, memoranda or parts thereof that are inconsistent
with the provisions of this Ordinance are hereby repealed. Section 8.- Effectivity.-
This Ordinance shall take effect immediately upon its approval; provided, however,
that operators of night clubs, cabarets and dance halls now in operation including
professional hostesses, hospitality girls and professional dancers are given a period
of thirty days from the approval hereof within which to wind up their businesses
and comply with the provisions of this Ordinance." 4chanrobles virtual law library

On November 5, 1975, two cases for prohibition with preliminary injunction were
filed with the Court of First Instance of Bulacan. 5 The grounds alleged follow:
chanrobles virtual law library

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a

lawful business, occupation or calling.chanroblesvirtualawlibrary chanrobles
virtual law library

2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal
protection of the law, as the license previously given to petitioners was in effect
withdrawn without judicial hearing. 3. That under Presidential Decree No. 189, as
amended, by Presidential Decree No. 259, the power to license and regulate tourist-
oriented businesses including night clubs, has been transferred to the Department
of Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice
Paras of the Intermediate Appellate Court, who issued a restraining order on
November 7, 1975. The answers were thereafter filed. It was therein alleged: " 1. That
the Municipal Council is authorized by law not only to regulate but to prohibit the
establishment, maintenance and operation of night clubs invoking Section 2243 of
the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is
not violative of petitioners' right to due process and the equal protection of the law,
since property rights are subordinate to public interests. 3. That Presidential Decree
No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to
regulate or prohibit night clubs." 7 There was the admission of the following facts
as having been established: "l. That petitioners Vicente de la Cruz, et al. in Civil
Case No. 4755-M had been previously issued licenses by the Municipal Mayor of
Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since
1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972;
2. That petitioners had invested large sums of money in their businesses; 3. That
the night clubs are well-lighted and have no partitions, the tables being near each
other; 4. That the petitioners owners/operators of these clubs do not allow the
hospitality girls therein to engage in immoral acts and to go out with customers; 5.
That these hospitality girls are made to go through periodic medical check-ups and
not one of them is suffering from any venereal disease and that those who fail to
submit to a medical check-up or those who are found to be infected with venereal
disease are not allowed to work; 6. That the crime rate there is better than in other
parts of Bocaue or in other towns of Bulacan." 8 Then came on January 15, 1976 the
decision upholding the constitutionality and validity of Ordinance No. 84 and
dismissing the cases. Hence this petition for certiorari by way of
appeal.chanroblesvirtualawlibrary chanrobles virtual law library

In an exhaustive as well as scholarly opinion, the lower court dismissed the

petitions. Its rationale is set forth in the opening paragraph thus: "Those who lust
cannot last. This in essence is why the Municipality of Bocaue, Province of Bulacan,
stigmatized as it has been by innuendos of sexual titillation and fearful of what the
awesome future holds for it, had no alternative except to order thru its legislative
machinery, and even at the risk of partial economic dislocation, the closure of its
night clubs and/or cabarets. This in essence is also why this Court, obedient to the
mandates of good government, and cognizant of the categorical imperatives of the
current legal and social revolution, hereby [upholds] in the name of police power
the validity and constitutionality of Ordinance No. 84, Series of 1975, of the
Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in
these two cases are therefore hereby rifted, effective the first day of February, 1976,
the purpose of the grace period being to enable the petitioners herein to apply to
the proper appellate tribunals for any contemplated redress." 9 This Court is,
however, unable to agree with such a conclusion and for reasons herein set forth,
holds that reliance on the police power is insufficient to justify the enactment of
the assailed ordinance. It must be declared null and
void.chanroblesvirtualawlibrary chanrobles virtual law library

1. Police power is granted to municipal corporations in general terms as follows:

"General power of council to enact ordinances and make regulations. - The municipal
council shall enact such ordinances and make such regulations, not repugnant to
law, as may be necessary to carry into effect and discharge the powers and duties
conferred upon it by law and such as shall seem necessary and proper to provide
for the health and safety, promote the prosperity, improve the morals, peace, good
order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein." 10 It is practically a reproduction of the
former Section 39 of Municipal Code. 11 An ordinance enacted by virtue thereof,
according to Justice Moreland, speaking for the Court in the leading case of United
States v. Abendan 12 "is valid, unless it contravenes the fundamental law of the
Philippine Islands, or an Act of the Philippine Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in
derogation of common right. Where the power to legislate upon a given subject,
and the mode of its exercise and the details of such legislation are not prescribed,
the ordinance passed pursuant thereto must be a reasonable exercise of the power,
or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present
Administrative Code provision was applied, it was stated by this Court: "The
general welfare clause has two branches: One branch attaches itself to the main
trunk of municipal authority, and relates to such ordinances and regulations as
may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. With this class we are not here
directly concerned. The second branch of the clause is much more independent of
the specific functions of the council which are enumerated by law. It authorizes
such ordinances as shall seem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants thereof, and for the protection
of property therein.' It is a general rule that ordinances passed by virtue of the
implied power found in the general welfare clause must be reasonable, consonant
with the general powersand purposes of the corporation, and not inconsistent with
the laws or policy of the State." 15If night clubs were merely then regulated and not
prohibited, certainly the assailed ordinance would pass the test of validity. In the
two leading cases above set forth, this Court had stressed reasonableness,
consonant with the general powers and purposes of municipal corporations, as
well as consistency with the laws or policy of the State. It cannot be said that such a
sweeping exercise of a lawmaking power by Bocaue could qualify under the term
reasonable. The objective of fostering public morals, a worthy and desirable end
can be attained by a measure that does not encompass too wide a field. Certainly
the ordinance on its face is characterized by overbreadth. The purpose sought to be
achieved could have been attained by reasonable restrictions rather than by an
absolute prohibition. The admonition in Salaveria should be heeded: "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." 16 It is
clear that in the guise of a police regulation, there was in this instance a clear
invasion of personal or property rights, personal in the case of those individuals
desirous of patronizing those night clubs and property in terms of the investments
made and salaries to be earned by those therein
employed.chanroblesvirtualawlibrary chanrobles virtual law library

2. The decision now under review refers to Republic Act No. 938 as amended. 17 It
was originally enacted on June 20, 1953. It is entitled: "AN ACT GRANTING
MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO REGULATE
THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN
PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL
JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or
city board or council of each chartered city shall have the power to regulate by
ordinance the establishment, maintenance and operation of night clubs, cabarets,
dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools,
and other similar places of amusement within its territorial jurisdiction: ... " 19 Then
on May 21, 1954, the first section was amended to include not merely "the power to
regulate, but likewise "Prohibit ... " 20 The title, however, remained the same. It is
worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if
only the above portion of the Act were considered, a municipal council may go as
far as to prohibit the operation of night clubs. If that were all, then the appealed
decision is not devoid of support in law. That is not all, however. The title was not
in any way altered. It was not changed one whit. The exact wording was followed.
The power granted remains that of regulation, not prohibition. There is thus support
for the view advanced by petitioners that to construe Republic Act No. 938 as
allowing the prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall embrace only
one subject which shall be expressed in the title thereof. " 21 Since there is no
dispute as the title limits the power to regulating, not prohibiting, it would result in
the statute being invalid if, as was done by the Municipality of Bocaue, the
operation of a night club was prohibited. There is a wide gap between the exercise
of a regulatory power "to provide for the health and safety, promote the prosperity,
improve the morals, 22 in the language of the Administrative Code, such
competence extending to all "the great public needs, 23 to quote from Holmes, and
to interdict any calling, occupation, or enterprise. In accordance with the well-
settled principle of constitutional construction that between two possible
interpretations by one of which it will be free from constitutional infirmity and by
the other tainted by such grave defect, the former is to be preferred. A construction
that would save rather than one that would affix the seal of doom certainly
commends itself. We have done so before We do so again. 24 chanrobles virtual law
library
3. There is reinforcement to the conclusion reached by virtue of a specific provision
of the recently-enacted Local Government Code. 25 The general welfare clause, a
reiteration of the Administrative Code provision, is set forth in the first paragraph
of Section 149 defining the powers and duties of the sangguniang bayan. It read as
follows: "(a) Enact such ordinances and issue such regulations as may be necessary
to carry out and discharge the responsibilities conferred upon it by law, and such as
shall be necessary and proper to provide for the health, safety, comfort and
convenience, maintain peace and order, improve public morals, promote the
prosperity and general welfare of the municipality and the inhabitants thereof, and
insure the protection of property therein; ..." 26 There are in addition provisions that
may have a bearing on the question now before this Court. Thus the sangguniang
bayan shall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns,
pension houses and lodging houses, except travel agencies, tourist guides, tourist
transports, hotels, resorts, de luxe restaurants, and tourist inns of international
standards which shall remain under the licensing and regulatory power of the
Ministry of Tourism which shall exercise such authority without infringing on the
taxing or regulatory powers of the municipality; (ss) Regulate public dancing
schools, public dance halls, and sauna baths or massage parlors; (tt) Regulate the
establishment and operation of billiard pools, theatrical performances, circuses
and other forms of entertainment; ..." 27 It is clear that municipal corporations
cannot prohibit the operation of night clubs. They may be regulated, but not
prevented from carrying on their business. It would be, therefore, an exercise in
futility if the decision under review were sustained. All that petitioners would have
to do is to apply once more for licenses to operate night clubs. A refusal to grant
licenses, because no such businesses could legally open, would be subject to
judicial correction. That is to comply with the legislative will to allow the operation
and continued existence of night clubs subject to appropriate regulations. In the
meanwhile, to compel petitioners to close their establishments, the necessary
result of an affirmance, would amount to no more than a temporary termination of
their business. During such time, their employees would undergo a period of
deprivation. Certainly, if such an undesirable outcome can be avoided, it should be.
The law should not be susceptible to the reproach that it displays less than
sympathetic concern for the plight of those who, under a mistaken appreciation of
a municipal power, were thus left without employment. Such a deplorable
consequence is to be avoided. If it were not thus, then the element of arbitrariness
enters the picture. That is to pay less, very much less, than full deference to the due
process clause with its mandate of fairness and
reasonableness.chanroblesvirtualawlibrary chanrobles virtual law library

4. The conclusion reached by this Court is not to be interpreted as a retreat from its
resolute stand sustaining police power legislation to promote public morals. The
commitment to such an Ideal forbids such a backward step. Legislation of that
character is deserving of the fullest sympathy from the judiciary. Accordingly, the
judiciary has not been hesitant to lend the weight of its support to measures that
can be characterized as falling within that aspect of the police power. Reference is
made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila. 28 There is a misapprehension as to what was decided by this
Court. That was a regulatory measure. Necessarily, there was no valid objection on
due process or equal protection grounds. It did not prohibit motels. It merely
regulated the mode in which it may conduct business in order precisely to put an
end to practices which could encourage vice and immorality. This is an entirely
different case. What was involved is a measure not embraced within the regulatory
power but an exercise of an assumed power to prohibit. Moreover, while it was
pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators Association,
Inc. decision that there must be a factual foundation of invalidity, it was likewise
made clear that there is no need to satisfy such a requirement if a statute were void
on its face. That it certainly is if the power to enact such ordinance is at the most
dubious and under the present Local Government Code non-
existent.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the writ of certiorari is granted and the decision of the lower court
dated January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of
1975 of the Municipality of Bocaue is declared void and unconstitutional. The
temporary restraining order issued by this Court is hereby made permanent. No
costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and
Gutierrez, Jr., JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Makasiar, J, reserves his right to file a dissent.chanroblesvirtualawlibrary chanrobles

virtual law library

De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.

Endnotes:

1 Municipal Mayor Matias Ramirez and Municipal Vice-Mayor Mario

Mendoza.chanrobles virtual law library

2 Petition, 7. The other question raised was the jurisdiction of a municipal

council to prohibit the operation of nightclubs, it being alleged that the power
of regulating tourist-oriented businesses being granted to the then Department,
now Ministry, of Tourism.chanrobles virtual law library

3 Ordinance No. 84, Series of 1975.chanrobles virtual law library

4 Ibid.chanrobles virtual law library

5 Vicente de la Cruz, et al. v. Matias Ramirez, et al., and Teresita Calot, et al. v.
The Municipal Mayor, docketed as Civil Cases Nos. 4755-M and 4756-M,
respectively. On November 21, 1975, the petition in one of the above cases was
amended to raise the further issue of lack of authority of respondent Municipal
Officials to pass the ordinance in question, since the power to license, supervise
and regulate night clubs has been transferred to the Department of Tourism by
virtue of Presidential Decree No. 189, as amended.chanrobles virtual law library

6 Petition, 7.chanrobles virtual law library

7 Ibid, 8.chanrobles virtual law library

8 Ibid, 8-9.chanrobles virtual law library

9 Decision, Annex A to Petition 1.chanrobles virtual law library

10 Section 2238, Revised Administrative Code of the Philippines

(1917).chanrobles virtual law library

11 Act No. 82 (1901).chanrobles virtual law library

12 24 Phil. 165 (1913). Abendan is followed in United States v. Tamparong, 31 Phil.

321 (1915); United States v. Gaspay, 33 Phil. 96 (1915) and Sarmiento v. Balderol, 112
Phil. 394 (1961).chanrobles virtual law library

13 Ibid, 168. Cf. United States v. Ten Yu, 24 Phil. 1 (1912); Case v. Board of Health,
24 Phil. 250 (1913).chanrobles virtual law library

14 39 Phil. 102 (1918).chanrobles virtual law library

15 Ibid, 109-110.chanrobles virtual law library

16 Ibid, 111. In Salaveria though the ordinance penalizing the playing of

panguingue on days not Sundays or legal holidays was declared as
valid.chanrobles virtual law library

17 It was amended by Republic Act No. 979 and Republic Act No.
1224.chanrobles virtual law library

18 Title of Republic Act No. 938 as amended.chanrobles virtual law library

19 Republic Act No. 938, Section 1.chanrobles virtual law library

20 Republic Act No. 979, Section 1.chanrobles virtual law library

21 Article VIII, Section 19, par. 1 of the Constitution.chanrobles virtual law

library

22 Section 2238.chanrobles virtual law library

23 Otis v. Parker, 187 US 606 (1902).chanrobles virtual law library

24 Cf. Nuñez v. Sandiganbayan, G.R. Nos. 50581-50617, January 30, 1982, 111 SCRA
433. Separate opinion of Justice Makasiar. De la Llana v. Alba, G.R. No. 57883,
March 12,1982,112 SCRA 294.chanrobles virtual law library

25 Batas Pambansa Blg. 337 (1983). Under Section 234 of the Code it took effect
one month after its publication in the Official Gazette. It was published in the
issue of February 14,1983.chanrobles virtual law library

26 Ibid, Section 149 (1) (a).chanrobles virtual law library

27 Ibid, Section 149 (1) (rr, ss and tt ).chanrobles virtual law library

28 L-24693, 20 SCRA 849, July 31, 1967.