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.

City  Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; CITY ORDINANCE; REGULATING THE

ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL
TYPE CEMETERIES; NOT JUSTIFIABLE; CASE AT BAR. — 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. There is nothing in the above
provision which authorizes confiscation."

2. ID.; ID.; NOT A VALID EXERCISE OF POLICE POWER. — 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. 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."

3. POLITICAL LAW; POLICE POWER; DEFINITION AND CONCEPT. — Police

power is defined by Freund as 'the power of promoting the public welfare
by restraining and regulating the use of liberty and property' (Quoted in
Political Law by 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.

4. ADMINISTRATIVE LAW; CITY ORDINANCE; LACK OF REASONABLE

RELATION BETWEEN SETTING ASIDE OF 6% OF THE TOTAL AREA OF ALL
PRIVATE CEMETERIES AND THE GENERAL WELFARE. — 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.

5. ID.; ID.; AUTHORITY OF CITY TO PROVIDE ITS OWN PUBLIC CEMETERIES;

LAW AND PRACTICE. — 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(g) 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 practice in the past. It continues to the present.

6. ID.; MUNICIPAL CORPORATION; GENERAL WELFARE CLAUSE; BROAD AND

LIBERAL INTERPRETATION; STRETCH INTERPRETATION NO LONGER
FEASIBLE IN THE CASE AT BAR. — 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.

DECISION

GUTIERREZ, JR., J  :
p
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:  LexLib

"RESOLVED by the council of Quezon assembled, to request, as it does hereby

request the City Engineer, Quezon City, to stop any further selling and/or
transaction of memorial park lots in Quezon City where the owners
thereof have failed to donate the required 6% space intended for paupers
burial."

Pursuant to this petition, the Quezon City Engineer notified respondent

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

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

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

A motion for reconsideration having been denied,

the City Government and City Council filed the instant petition.  cdlex

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. 
LexLib

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. 5371), 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 practiced 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 power 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 democratic framework where the demands of society and nations
have multiplied to almost unimaginable proportions. The field and scope
of police power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and have
transcended human foresight. Since the Courts cannot foresee the needs
and demands of public interest and welfare, they cannot delimit
beforehand the extent or scope of the police power by which and through
which the state seeks to attain or achieve public interest and welfare.
(Ichong vs. Hernandez, L-7995, May 31, 1957).
 "The police power being the most active power of the government and the
due process clause being the broadest limitation on governmental power,
the conflict between this power of government and the due process clause
of the Constitution is oftentimes inevitable.
"It will be seen from the foregoing authorities that police power is usually
exercised in the form of mere regulation or restriction in the use of liberty
or property for the promotion of the general welfare. It does not involve
the taking or confiscation of property with the exception of a few cases
where there is a necessity to confiscate private property in order to
destroy it for the purpose of protecting the peace and order and of
promoting the general welfare as for instance, the confiscation of an
illegally possessed article, such as opium and firearms.
"It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964
of Quezon City is not a mere police regulation but an outright confiscation.
It deprives a person of his private property without due process of law,
nay, even without compensation."

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 90, where the municipal corporation
asserts that the ordinance was enacted to promote the common good and
general welfare.  LLpr

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

Inc.  v.  City  Mayor of Manila (20 SCRA 849) the Court speaking through the then
Associate Justice and now Chief Justice Enrique M. Fernando stated:
"Primarily what calls for a reversal of such a decision is the absence of any
evidence to offset the presumption of validity that attaches to a
challenged statute or ordinance. As was expressed categorically by Justice
Malcolm: 'The presumption is all in favor of validity. . . . 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.  LLphil
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 practice 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, Melencio-Herrera, Plana, Vasquez  and Relova, JJ  ., concur.

  (City Government of Quezon City v. Ericta, G.R. No. L-34915, [June 24, 1983], 207 PHIL
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648-657)