G.R. No. L-36049 May 31, 1976

CITY OF NAGA, VICENTE P. SIBULO, as Mayor, and JOAQUIN C. CLEOPE, as Treasurer of the City of Naga, petitioners, vs.CATALINO AGNA, FELIPE AGNA and SALUD VELASCO, respondents.

Ernesto A. Miguel for petitioners.

Bonot, Cledera & Associates for respondents.

 

MARTIN, J.:

Petition for review on certiorari, which We treat as special civil action, of the decision of the Court of First Instance of Camarines Sur in Civil Case No. 7084, entitled Agna, et al. versus City of Naga, et al., declaring Ordinance No. 360 of the City of Naga enforceable in 1971 the year following its approval and requiring petitioners to pay to private respondents the amounts sought for in their complaint plus attorney's fees and costs. Included in the present controversy as proper parties are Vicente P. Sibulo and Joaquin C. Cleope, the City Mayor and City Treasurer of the City of Naga, respectively.

On June 15, 1970, the City of Naga enacted Ordinance No. 360 changing and amending the graduated tax on quarterly gross sales of merchants prescribed in Section 3 of Ordinance No. 4 of the City of Naga to percentage tax on gross sales provided for in Section 2 thereof. Pursuant to said ordinance, private respondents paid to the City of Naga the following taxes on their gross sales for the quarter from July 1, 1970 to September 30, 1970, as follows:

Catalino Agna paid P1,805.17 as per Official Receipt No. 1826591;

Felipe Agna paid P625.00 as per Official Receipt No. 1826594; and

Salud Velasco paid P129.81 as per Official Receipt No. 1820339.

On February 13, 1971, private respondents filed with the City Treasurer of the City of Naga a claim for refund of the following amounts, together with interests thereon from the date of payments: To Catalino Agna, P1,555.17; to Felipe Agna, P560.00; and to Salud Velasco, P127.81, representing the difference between the amounts they paid under Section 3, Ordinance No. 4 of the City of Naga, i.e., P250.00; P65.00 and P12.00 respectively. They alleged that under existing law, Ordinance No. 360, which amended Section 3, Ordinance No. 4 of the City of Naga, did not take effect in 1970, the year it was approved but in the next succeeding year after the year of its approval, or in 1971, and that therefore, the taxes they paid in 1970 on their gross sales for the quarter from July 1, 1970 to September 30, 1970 were illegal and should be refunded to them by the petitioners.

The City Treasurer denied the claim for refund of the amounts in question. So private respondents filed a complaint with the Court of First Instance of Naga (Civil Case No. 7084), seeking to have Ordinance No. 360 declared effective only in the year following the year of its approval, that is, in 1971; to have Sections 4, 6 and 8 of Ordinance No. 360 declared unjust, oppressive and arbitrary, and therefore, null and void; and to require petitioners to refund the sums being claimed with interests thereon from the date the taxes complained of were paid and to pay all legal costs and attorney's fees in the sum of P1,000.00. Private respondents further prayed that the petitioners be enjoined from enforcing Ordinance No. 360.

In their answer, the petitioners among other things, claimed that private respondents were not "compelled" but voluntarily made the payments of their taxes under Ordinance No. 360; that the said ordinance was published in accordance with law; that in accordance with Republic Act No. 305 (Charter of the City of Naga) an ordinance takes effect after the tenth day following its passage unless otherwise stated in said ordinance; that under existing law the City of Naga is authorized to impose certain conditions to secure and accomplish the collection of sales taxes in the most effective manner. As special and affirmative defenses, the petitioners allege that the private respondents have no cause of action against them; that granting that the collection of taxes can be enjoined. the complaint does not allege facts sufficient to justify the issuance of a writ of preliminary injunction; that the refund prayed for by the private respondents is untenable; that petitioners Vicente P. Sibulo and Joaquin C. Cleope, the City Mayor and Treasurer of the City of Naga, respectively are not proper parties in interest; that the private respondents are estopped from questioning the validity and/or constitutionality of the provisions of Ordinance No. 360. Petitioners counterclaimed for P20,000.00 as exemplary damages, for the alleged unlawful and malicious filing of the claim against them, in such amount as the court may determine.

During the hearing of the petition for the issuance of a writ of preliminary injunction and at the pre-trial conference as well as at the trial on the merits of the case, the parties agreed on the following stipulation of facts: That on June 15, 1970, the City Board of the City of Naga enacted Ordinance No. 360 entitled "An ordinance repealing Ordinance No. 4, as amended, imposing a sales tax on the quarterly sales or receipts on all businesses in the City of Naga," which ordinance was transmitted to the City Mayor for approval or veto on June 25, 1970; that the ordinance was duly posted in the designated places by the Secretary of the Municipal Board; that private respondents voluntarily paid the gross sales tax, pursuant to Ordinance No. 360, but that on February 15, 1971, they filed a claim for refund with the City Treasurer who denied the same.

On October 9, 1971, the respondent Judge rendered judgment holding that Ordinance No. 360, series of 1970 of the City of Naga was enforceable in the year following the date of its approval, that is, in 1971 and required the petitioners to reimburse the following sums, from the date they paid their taxes to the City of Naga: to Catalino Agna, the sum of P1,555.17; to Felipe Agna, P560.00; and to

Salud Velasco, P127.81 and the corresponding interests from the filing of the complaint up to the reimbursement of the amounts plus the sum of P500.00 as attorney's fees and the costs of the proceedings.

Petitioners' submit that Ordinance No. 360, series of 1970 of the City of Naga, took effect in the quarter of the year of its approval, that is in July 1970, invoking Section 14 of Republic Act No. 305, 1 as amended, otherwise known as the Charter of the City of Naga, which, among others, provides that "Each approved ordinance ... shall take effect and be enforced on and after the 10th day following its passage unless otherwise stated in said ordinance ... ". They contend that Ordinance No. 360 was enacted by the Municipal Board of the City of Naga on June 15, 1970 2 and was transmitted to the City Mayor for his approval or veto on June 25, 1970 3 but it was not acted upon by the City Mayor until August 4, 1970. Ordinarily, pursuant to Section 14 of Republic Act No. 305, said ordinance should have taken effect after the 10th day following its passage on June 15, 1970, or on June 25, 1970. But because the ordinance itself provides that it shall take effect upon its approval, it becomes necessary to determine when Ordinance No. 360 was deemed approved. According to the same Section 14 of Republic Act No. 305, "if within 10 days after receipt of the ordinance the Mayor does not return it with his veto or approval 4 the ordinance is deemed approved." Since the ordinance in question was not returned by the City Mayor with his veto or approval within 10 days after he received it on June 25, 1970, the same was deemed approved after the lapse of ten (10) days from June 25, 1970 or on July 6, 1970. On this date, the petitioners claim that Ordinance No. 360 became effective. They further contend that even under Section 2, of Republic Act No. 2264 (Local Autonomy Acts) 5 which expressly provides: "A tax ordinance shall go into effect on the fifteenth day after its passage unless the ordinance shall provide otherwise', Ordinance No. 360 could have taken effect on June 30, 1970, which is the fifteenth day after its passage by the Municipal Board of the City of Naga on June 15, 1970, or as earlier explained, it could have taken effect on July 6, 1970, the date the ordinance was deemed approved because the ordinance itself provides that it shall take effect upon its approval. Of the two provisions invoked by petitioners to support their stand that the ordinance in question took effect in the year of its approval, it is Section 2 of Republic Act No. 2264 (Local Autonomy Act) that is more relevant because it is the provision that specifically refers to effectivity of a tax ordinance and being a provision of much later law it is deemed to have superseded Section 14 of Republic Act No. 305 (Charter of the City of Naga) in so far as effectivity of a tax ordinance is concerned.

On the other hand, private respondents contend that Ordinance No. 360 became effective and enforceable in 1971, the year following the year of its approval, invoking Section 2309 of the Revised Administrative Code which provides:

Section 2309. Imposition of tax and duration of license.—A municipal license tax already in existence shall be subject to change only by ordinance enacted prior to the 15th day of December of any year after the next succeeding year, but an entirely new tax may be created by any ordinance enacted during the quarter year effective at the beginning of any subsequent quarter.

They submit that since Ordinance No. 360, series of 1970 of the City of Naga, is one which changes the existing graduated sales tax on gross sales or receipts of dealers of merchandise and sari-sari merchants provided for in Ordinance No. 4 of the City of Naga to a percentage tax on their gross sales prescribed in the questioned ordinance, the same should take effect in the next succeeding year after the year of its approval or in 1971.

Evidently, the divergence of opinion as to when Ordinance No. 360 took effect and became enforceable is mainly due to the seemingly apparent conflict between Section 2309 of the Revised Administrative Code and Section 2 of Republic Act No. 2264 (Local Autonomy Act). Is there really such a conflict in the above-mentioned provisions? It will be easily noted that Section 2309 of the Revised Administrative Code contemplates of two types of municipal ordinances, namely: (1) a municipal ordinance which changes a municipal license tax already in existence and (2) an ordinance which creates an entirely new tax. Under the first type, a municipal license tax already in existence shall be subject to change only by an ordinance enacted prior to the 15th day of December of any year after the next succeeding year. This means that the ordinance enacted prior to the 15th day of December changing or repealing a municipal license tax already in existence will have to take effect in next succeeding year. The evident purpose of the provision is to enable the taxpayers to adjust themselves to the new charge or burden brought about by the new ordinance. This is different from the second type of a municipal ordinance where an entirely new tax may be created by any ordinance enacted during the quarter year to be effective at the beginning of any subsequent quarter. We do not find any such distinction between an ordinance which changes a municipal license tax already in existence and an ordinance creating an entirely new tax in Section 2 of Republic Act No. 2264 (Local Autonomy Act) which merely refers to a "tax ordinance" without any qualification whatsoever.

Now to the meat of the problem in this petition. Is not Section 2309 of the Revised Administrative Code deemed repealed or abrogated by Section 2 of Republic Act No. 2264 (Local Autonomy Act) in so far as effectivity of a tax ordinance is concerned? An examination of Republic Act No. 2264 (Local Autonomy Act) fails to show any provision expressly repealing Section 2309 of the Revised Administrative Code. All that is mentioned therein is Section 9 which reads:

Section 9 — All acts, executive orders, administrative orders, proclamations or parts thereof, inconsistent with any of the provisions of this Act are hereby repealed and modified accordingly.

The foregoing provision does not amount to an express repeal of Section 2309 of the Revised Administrative Code. It is a well established principle in statutory construction that a statute will not be construed as repealing prior acts on the same subject in the absence of words to that effect unless there is an irreconcilable repugnancy between them, or unless the new law is evidently intended to supersede all prior acts on the matter in hand and to comprise itself the sole and complete system of legislation on that subject. Every new statute should be construed in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together, if they can be done by any fair and reasonable interpretation ... . 6 It will also be noted that Section 2309 of the Revised Administrative Code and Section 2 of Republic Act No. 2264 (Local Autonomy Act) refer to the same subject matter-enactment and effectivity of a tax ordinance. In this respect they can be considered in pari materia. Statutes are said to be in pari materia when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object. 7 When statutes are in pari materia, the rule of statutory construction dictates that they should be construed together. This is because enactments of the same legislature on the same subject matter are supposed to form part of one uniform system; that later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislation on the same subject and to have enacted its new act with reference

thereto. 8 Having thus in mind the previous statutes relating to the same subject matter, whenever the legislature enacts a new law, it is deemed to have enacted the new provision in accordance with the legislative policy embodied in those prior statutes unless there is an express repeal of the old and they all should be construed together. 9 In construing them the old statutes relating to the same subject matter should be compared with the new provisions and if possible by reasonable construction, both should be so construed that effect may be given to every provision of each. However, when the new provision and the old relating to the same subject cannot be reconciled the former shall prevail as it is the latter expression of the legislative will. 10 Actually we do not see any conflict between Section 2309 of the Revised Administrative Code and Section 2 of the Republic Act No. 2264 (Local Autonomy Act). The conflict, if any, is more apparent than real. It is one that is not incapable of reconciliation. And the two provisions can be reconciled by applying the first clause of Section 2309 of the Revised Administrative Code when the problem refers to the effectivity of an ordinance changing or repealing a municipal license tax already in existence. But where the problem refers to effectivity of an ordinance creating an entirely new tax, let Section 2 of Republic Act No. 2264 (Local Autonomy Act) govern.

In the case before Us, the ordinance in question is one which changes the graduated sales tax on gross sales or receipts of dealers of merchandise and sari-sari merchants prescribed in Section 3 of Ordinance No. 4 of the City of Naga to percentage tax on their gross sale-an ordinance which definitely falls within the clause of Section 2309 of the Revised Administrative Code. Accordingly it should be effective and enforceable in the next succeeding year after the year of its approval or in 1971 and private respondents should be refunded of the taxes they have paid to the petitioners on their gross sales for the quarter from July 1, 1970 to September 30, 1970 plus the corresponding interests from the filing of the complaint until reimbursement of the amount.

IN VIEW OF THE FOREGOING, the instant petition is hereby dismissed.

SO ORDERED.

G.R. No. L-55230 November 8, 1988

HON. RICHARD J. GORDON, in his capacity as City Mayor of Olongapo, petitioner, vs.JUDGE REGINO T. VERIDIANO II and Spouses EDUARDO and ROSALINDA YAMBAO, respondents.

 

CRUZ, J.:

The issue before the Court is the conflict between the Food and Drug Administration and the mayor of Olongapo City over the power to grant and revoke licenses for the operation of drug stores in the said city. While conceding that the FDA possesses such power, the mayor claims he may nevertheless, in the exercise of his own power, prevent the operation of drug stores previously permitted by the former.

There are two drug stores involved in this dispute, to wit, the San Sebastian Drug Store and the Olongapo City Drug Store, both owned by private respondent Rosalinda Yambao. 1 They are located a few meters from each other in the same building on Hospital Road, Olongapo City. 2 They were covered by Mayor's Permits Nos. 1954 and 1955, respectively, issued for the year 1980, 3 and licenses to operate issued by the FDA for the same year. 4

This case arose when on March 21, 1980, at about 5:00 o'clock in the afternoon, a joint team composed of agents from the FDA and narcotics agents from the Philippine Constabulary conducted a "test buy" at San Sebastian Drug Store and was sold 200 tablets of Valium 10 mg. worth P410.00 without a doctor's prescription.. 5

A report on the operation was submitted to the petitioner, as mayor of Olongapo City, on April 9, 1980. 6 On April 17, 1980, he issued a letter summarily revoking Mayor's Permit No. 1954, effective April 18, 1980, "for rampant violation of R.A. 5921, otherwise known as the Pharmacy Law and R.A. 6425 or the Dangerous Drugs Act of 1972." 7 Later, when the petitioner went to Singapore, Vice-Mayor Alfredo T. de Perio, Jr. caused the posting of a signboard at the San Sebastian Drug Store announcing its permanent closure. 8

Acting on the same investigation report of the "test-buy," and after hearing, FDA Administrator Arsenio Regala, on April 25, 1980, directed the closure of the drug store for three days and its payment of a P100.00 fine for violation of R.A. No. 3720. He also issued a stern warning to Yambao against a repetition of the infraction. 9 On April 29, 1980, the FDA lifted its closure order after noting that the penalties imposed had already been discharged and allowed the drug store to resume operations. 10

On April 30, 1980, Yambao, through her counsel, wrote a letter to the petitioner seeking reconsideration of the revoca tion of Mayor's Permit No. 1954. 11 On May 7, 1980, having received no reply, she and her husband filed with the Regional Trial Court of Olongapo City a complaint for mandamus and damages, with a prayer for a writ of preliminary injunction, against the petitioner and Vice-Mayor de Perio. 12

On the same date, Yambao requested permission from the FDA to exchange the locations of the San Sebastian Drug Store and the Olongapo City Drug Store for reasons of "business preference." 13

The request was granted. 14 But when informed of this action, the petitioner, in a letter to the private respondent dated May 13, 1980, disapproved the transfers and suspended Mayor's Permit No. 1955 for the Olongapo City Drug Store. 15

The Yambaos then filed on May 15, 1980, a supplemental complaint questioning the said suspension and praying for the issuance of a preliminary writ of prohibitory injunction. 16 On the same day, the respondent judge issued an order directing the maintenance of the status quo with respect to the Olongapo City Drug Store pending resolution of the issues. 17

On May 21, 1980, the petitioner wrote the FDA requesting reconsideration of its order of April 29, 1980, allowing resumption of the operation of the San Sebastian Drug Store. 18 The request was denied by the FDA in its reply dated May 27, 1980. 19

A motion for reconsideration of the status quo order had earlier been filed on May 1, 1980 by the petitioner. After a joint hearing and an exchange of memoranda thereon, the respondent judge issued an order on July 16, 1980, 20 the dispositive portion of which read as follows:

WHEREFORE, the defendants' motion for reconsideration of the status quo order dated May 15, 1980, is hereby DENIED and the letter of the defendant city mayor dated April 17, 1980, for the revocation of Mayor's Permit No. 1954 for the San Sebastian Drug Store is declared null and void.

Accordingly, a writ of preliminary prohibitory injunction is heretofore issued enjoining defendants from doing acts directed towards the closure of the San Sebastian Drug Store and the suspension of the Olongapo City Drug Store

both situated at Hospital Road, Olongapo City. Further, the signboard posted at San Sebastian Drug Store by the defendants is ordered removed in order that the said drug store will resume its normal business operation.

The hearing of the main petition for damages is set on August 14, 1980, at 1:30 o'clock in the afternoon.

The petitioner's motion for reconsideration of the above stated order was denied in an order dated September 4, 1980. 21 The petitioner thereupon came to this Court in this petition for certiorari and prohibition with preliminary, injunction, to challenge the aforesaid orders.

We issued a temporary restraining order against the respondent judge on October 2 7, 1980, 22 but lifted it on December 10, 1980, for failure of the petitioner to file his comment on the private respondents' motion to lift the said order and/or for issuance of a counter restraining order. 23

First, let us compare the bases of the powers and functions respectively claimed by the FDA and the petitioner as mayor of Olongapo City.

The task of drug inspection was originally lodged with the Board of Pharmaceutical Examiners pursuant to Act 2762, as amended by Act 4162. By virtue of Executive Order No. 392 dated January 1, 1951 (mandating reorganization of various departments and agencies), this was assumed by the Department of Health and exercised through an office in the Bureau of Health known as the Drug Inspection Section. This section was empowered "to authorize the opening of pharmacies, drug stores and dispensaries, and similar establishments after inspection by persons authorized by law."

The Food and Drug Administration was created under R.A. No. 3720 (otherwise known as the Food, Drug and Cosmetic Act), approved on June 22, 1963, and vested with all drug inspection functions in line with "the policy of the State to insure safe and good quality supply of food, drug and cosmetics, and to regulate the production, sale and traffic of the same to protect the health of the people." Section 5 of this Act specifically empowers it:

(e) to issue certificates of compliance with technical requirements to serve as basis for the issuance of license and spotcheck for compliance with regulations regarding operation of food, drug and cosmetic manufacturers and establishments.

For a more effective exercise of this function, the Department of Health issued on March 5, 1968, Administrative Order No. 60, series of 1968, laying down the requirements for the application to be filed with the FDA for authorization to operate or establish a drug establishment. The order provides that upon approval of the application, the FDA shall issue to the owner or administrator of the drug store or similar establishment a "License to Operate" which "shall be renewed within the first 3 months of each year upon payment of the required fees." This license contains the following reservation:

However, should during the period of issue, a violation of any provisions of the Food, Drug and Cosmetic Act and/or the regulations issued thereunder be committed, this License shall be subject to suspension or revocation.

When the drug addiction problem continued to aggravate, P.D. No. 280 was promulgated on August 27, 1973, to give more teeth to the powers of the FDA, thus:

Section 1. Any provision of law to the contrary notwithstanding, the Food and Drug Administrator is hereby authorized to order the closure, or suspend or revoke the license of any drug establishment which after administrative investigation is found guilty of selling or dispensing drugs medicines and other similar substances in violation of the Food, Drug and Cosmetic Act, and Dangerous Drugs Act of 1972, or other laws regulating the sale or dispensation of drugs, or rules and regulations issued pursuant thereto.

Sec. 2. The administrative investigation shall be summary in character. The owner of the drug store shall be given an opportunity to be heard. (P.D. 280, emphasis supplied.)

For his part, the petitioner, traces his authority to the charter of Olongapo City, R.A. No. 4645, which inter alia empowers the city mayor under Section 10 thereof:

k. to grant or refuse municipal licenses to operate or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or city ordinances are being committed under protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other good reason of general interest.

The charter also provides, in connection with the powers of the city health officer, that:

Sec. 6 (k). He and his representatives shall have the power to arrest violators of health laws, ordinances, rules and regulations and to recommend the revocation or suspension of the permits of the different establishments to the City Mayor for violation of health laws, ordinances, rules and regulations. (Emphasis supplied.)

An application to establish a drug store in Olongapo City must be filed with the Office of the Mayor and must show that the applicant has complied with the existing ordinances on health and sanitation, location or zoning, fire or building, and other local requirements.

If the application is approved, the applicant is granted what is denominated a "Mayor's Permit" providing inter alia that it "is valid only at the place stated above and until (date), unless sooner revoked for cause." 24

Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the same instead of declaring outright the invalidity of one as against the other. Such alacrity should be avoided. The wise policy is for the judge to harmonize them if this is possible, bearing in mind that they are equally the handiwork of the same legislature, and so give effect to both while at the same time also according due respect to a coordinate department of the government. It is this policy the Court will apply in arriving at the interpretation of the laws above-cited and the conclusions that should follow therefrom.

A study of the said laws will show that the authorization to operate issued by the FDA is a condition precedent to the grant of a mayor's permit to the drug store seeking to operate within the limits of the city. This requirement is imperative. The power to determine if the opening of the drug store is conformable to the national policy and the laws on the regulation of drug sales belongs to the FDA. Hence, a permit issued by the mayor to a drug store not previously cleared with and licensed by the said agency will be a nullity.

This is not to say, however, that the issuance of the mayor's permit is mandatory once it is shown that the FDA has licensed the operation of the applicant drug store. This is not a necessary consequence. For while it may appear that the applicant has complied with the pertinent national laws and policies, this fact alone will not signify compliance with the particular conditions laid down by the local authorities like zoning, building, health, sanitation, and safety regulations, and other municipal ordinances enacted under the general welfare clause. This compliance still has to be ascertained by the mayor if the permit is to be issued by his office. Should he find that the local requirements have not been observed, the mayor must then, in the exercise of his own authority under the charter, refuse to grant the permit sought.

The power to approve a license includes by implication,. even if not expressly granted, the power to revoke it. By extension, the power to revoke is limited by the authority to grant the license, from which it is derived in the first place. Thus, if the FDA grants a license upon its finding that the applicant drug store has complied with the requirements of the general laws and the implementing administrative rules and regulations, it is only for their violation that the FDA may revoke the said license. By the same token, having granted the permit upon his ascertainment that the conditions thereof as applied particularly to Olongapo City have been complied with, it is only for the violation of such conditions that the mayor may revoke the said permit.

Conversely, the mayor may not revoke his own permit on the ground that the compliance with the conditions laid down and found satisfactory by the FDA when it issued its license is in his own view not acceptable. This very same principle also operates on the FDA. The FDA may not revoke its license on the ground that the conditions laid down in the mayor's permit have been violated notwithstanding that no such finding has been made by the mayor.

In the present case, the closure of the San Sebastian Drug Store was ordered by the FDA for violation of its own conditions, which it certainly had the primary power to enforce. By revoking the mayor's permit on the same ground for which the San Sebastian Drug Store had already been penalized by the FDA, the mayor was in effect reversing the derision of the latter on a matter that came under its jurisdiction. As the infraction involved the pharmacy and drug laws which the FDA had the direct responsibility to execute, the mayor had no authority to interpose his own findings on the matter and substitute them for the decision already made by the FDA.

It would have been different if the offense condoned by the FDA was a violation of, say, a city ordinance requiring buildings to be provided with safety devices or equipment, like fire extinguishers. The city executive may ignore such condonation and revoke the mayor's permit just the same. In this situation, he would be acting properly because the enforcement of the city ordinance is his own prerogative. In the present case, however, the condition allegedly violated related to a national law, not to a matter of merely local concern, and so came under the 'jurisdiction of the FDA.

Settled is the rule that the factual findings of administrative authorities are accorded great respect because of their acknowledged expertise in the fields of specialization to which they are assigned. 25 Even the courts of justice, including this Court, are concluded by such findings in the absence of a clear showing of a grave abuse of discretion, which is not present in the case at bar. For all his experience in the enforcement of city ordinances, the petitioner cannot claim the superior aptitudes of the FDA in the enforcement of the pharmacy and drug addiction laws. He should therefore also be prepared, like the courts of justice themselves, to accept its decisions on this matter.

The petitioner magnifies the infraction committed by the San Sebastian Drug Store but the FDA minimizes it. According to the FDA Administrator, Valium is not even a prohibited drug, which is why the penalty imposed was only a 3-day closure of the drug store and a fine of P100.00. 26 Notably, the criminal charges filed against the private respondent for the questioned transaction were dismissed by the fiscal's office. 27

It is also worth noting that the San Sebastian Drug Store was penalized by the FDA only after a hearing held on April 25, 1980, at which private respondent Yambao, assisted by her lawyer-husband, appeared and testified. 28 By contrast, the revocation of the mayor's permit was communicated to her in a letter 29 reading simply as follows:

Rosalinda Yambaoc/o San Sebastian Drug StoreHospital Road, Olongapo City

Madame:

Based on a report submitted by PC Major Virtus V. Gil, Chief 3 RFO, Dis. B, Task Force "Bagong Buhay," "you are rampantly violating the provisions of Republic Act 5921 otherwise known as the 'Pharmacy Law."

Aside from this, there is evidence that you are dispensing regulated drugs contrary to the provisions of R.A. 6425 otherwise known as the Dangerous Drugs Act of 1972.

In view of the above, Mayors Permit No. 1954 heretofore issued in your name for the operation of a drug store (San Sebastian) at the Annex Building of the Fil-Am (IYC), along Hospital Road, this City, is REVOKED effective April 18, 1980.

PLEASE BE GUIDED ACCORDINGLY.

Very truly yours,

(SGD.) RICHARD J. GORDONCity Mayor

If only for the violation of due process which is manifest from this letter, the mayor's arbitrary action can be annulled.

The indefinite suspension of the mayor's permit for Olongapo City Drug Store was based on the transfer thereof to the site of the San Sebastian Drug Store as approved by the FDA but without permission from the petitioner. On this matter, the Court believes that the final decision rested with the mayor. The condition violated related more to the location in Olongapo City of business establishments in general than to the regulation of drug stores in particular. It therefore came under the petitioner's jurisdiction.

The FDA would have the right to disapprove the site of the drug store only if it would impair the health or other interests of the customers in contravention of the national laws or policies, as where the drug store is located in an unsanitary site. But the local executive would have reason to object to the location, even if approved by the FDA, where it does not conform to, say, a zoning ordinance intended to promote the comfort and convenience of the city residents.

The reason given by the petitioner in disapproving the transfer was violation of Mayor's Permit No. 1955, which by its terms was valid only at the place stated therein. In the letter of May 13, 1980 30 the private respondent was clearly informed that for violation of the condition of Mayor's Permit No. 1955 granting her the of operating the Olongapo City Drug Store at No. 1-B Fil-Am Bldg., Hospital Road, the said permit was "hereby suspended." We find that that reason was valid enough. The permit clearly allowed the drug store to operate in the address given and not elsewhere. No hearing was necessary because the transfer without the mayor's permission is not disputed and was in fact impliedly admitted by the private respondent.

If the private respondent wanted to transfer her drug store, what she should have done was to secure the approval not only of the FDA but also, and especially, of the mayor. Merely notifying the petitioner of the change in the location of her drug stores as allowed by the FDA was not enough. The FDA had no authority to revoke that particular condition of the mayor's permits indicating the sites of the two drug stores as approved by the mayor in the light of the needs of the city. Only the mayor could.

We assume that Mayor's Permit No. 1954 could also have been validly suspended for the same reason (as the sites of the two drug stores were exchanged without amendment of their respective permits) were it not for the fact that such permit was revoked by the petitioner on the more serious ground of violation of the Pharmacy Law and the Dangerous Drugs Act of 1972.

It is understood, however, that the suspension should be deemed valid only as the two drug stores have not returned to their original sites as specified in their respective permits. Indefinite suspension will amount to a permanent revocation, which will not be a commensurate penalty with the degree of the violation being penalized.

The Court adds that denial of the request for transfer, if properly made by the private respondents, may not be validly denied by the judge in the absence of a clear showing that the transfer sought will prejudice the residents of the city. As the two drug stores are only a few meters from each other, and in the same building, there would seem to be no reason why the mere exchange of their locations should not be permitted. Notably, the location of the two drug stores had previously been approved in Mayor's Permit Nos. 1954 and 1955.

Our holding is that the petitioner acted invalidly in revoking Mayor's Permit No. 1954 after the FDA had authorized the resumption of operations of the San Sebastian Drug Store following the enforcement of the penalties imposed upon it. However, it was competent for the petitioner to suspend Mayor's Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the said permit. Such suspension should nevertheless be effective only pending the return of the drug store to its authorized original site or the eventual approval by the mayor of the requested transfer if found to be warranted.

The petitioner is to be commended for his zeal in the promotion of the campaign against drug addiction, which has sapped the vigor and blighted the future of many of our people, especially the youth. The legal presumption is that he acted in good faith and was motivated only by his concern for the residents of Olongapo City when he directed the closure of the first drug store and the suspension of the permit of the other drug store. It appears, though, that he may have overreacted and was for this reason properly restrained by the respondent judge.

WHEREFORE, the challenged Orders of July 6, 1980 and September 4, 1980, are MODIFIED in the sense that the suspension of Mayor's Permit No. 1955 shall be considered valid but only until the San Sebastian Drug Store and the Olongapo City Drug Store return to their original sites as specified in the FDA licenses and the mayor's permits or until the request for transfer, if made by the private respondents, is approved by the petitioner. The rest of the said Orders are AFFIRMED, with costs against the petitioner.

SO ORDERED.

G.R. No. L-32979-81 February 29, 1972 NAPOLEON LECHOCO,pet it ion er , vs. CIVIL AERONAUTIC BOARD, PHILIPPINE AIR LINES, INC., FILIPINAS ORIENT AIRWAYS, INC., AND AIR MANILA, INC.,r es pon dent s . REYES, J.B.L.,J.:p

Original petition forcerti orari with preliminary injunction to annul and set aside Civil Aeronautics Board resolutions Nos. 165 (70), 321

(70) and 330 (70), fixing temporary and permanent rate or fare adjustments of three domestic air carriers, Philippine Air Lines (PAL),

Filipinas Orient Airways (FOA) and Air Manila, and dismissing petitioner's objections thereto, based on alleged lack of jurisdiction.

The issue submitted for Our decision is whether authority to fix air carrier's rates is vested in the Civil Aeronautics Board (CAB) or in the Public Service Commission (PSC).

Petitioner Lechoco contends that by the enactment of Republic Act No. 2677 (on 18 June 1960)

amending sections 13 (a) and 14 of Commonwealth Act No. 146 (the original PSC Act), jurisdiction to

control rates of airships was taken away from the Civil Aeronautics Board and revested in the PSC,

since Republic Act 2677 impliedly repealed section 10(c) (2) of Republic Act No. 776, passed on 20

June 1952, conferring control over air rates fares on the CAB.

Respondents aver, on the other hand, that, at the least, jurisdiction over air fares and rates was,

under statutes, exercisable concurrently by the CAB and the PSC, and that following the rule on

concurrent jurisdictions of judicial bodies, the first to exercise or take jurisdiction (CAB in this case)

should retain it to the exclusion of the other body.

In resolving the issue posed, it is apposite to review various laws enacted on the matter. In 1932, the Philippine (pre Commonwealth) Legislature provided by Public Law No. 3996, in its section 15, that any —Person or persons engaged in air commerce shall submit for approval to the Public Service Commission or its authorized representative uniform charges applied to merchandise and passengers per kilometer or over specified distances ... . In consonance with said law, the legislative franchise granted in November of 1935 to the Philippine Aerial Taxi Company, Inc. (Act No. 4271) specified that (section 3) —

The grantee shall fix just, reasonable and uniform rates for the transportation of

passengers and freight, subject to the supervision and approval of the Public Service

Commission ... .

The following year the PSC was reorganized by Commonwealth Act No. 146, enacted 7 November 1936. Section 13 thereof granted

PSC "general supervision and regulation of, jurisdiction and control over, all public services..." except as otherwise provided. The

same section, however contained the following reservation:

... Provided further, That the Commission shall not exercise any control or supervision over aircraft in the Philippines, except with

regard to the fixing of maximum passenger and freight rates ... .

In the aftermath of World War II the Legislature of independent Republic of the Philippines passed

Republic Act No. 51, on 4 October 1946, authorizing the Chief Executive to reorganize within one year

the different executive departments, bureaus, offices agencies and other instrumentalities of the

government, including corporations owned or controlled by it. In the exercise of the broad powers thus

conferred, the President of the Philippines, by Executive Order No. 94, of 4 October 1947, in its

section 149, abolished the Civil Aeronautics Commission and transferred its functions and duties to the

Civil Aeronautics Board created by said Order No. 94, with the following provision:

The ... functions provided in section 13 of Commonwealth Act No. 146, pertaining to the power of the Public Service Commission to fix

the maximum passenger and freight rates that may be charged by airlines ... are hereby transferred to and consolidated in the Civil

Aeronautics Administration and/or Civil Aeronautics Board.

The foregoing transfer of functions was virtually ratified by Republic Act No. 776, effective on 20 June

1952, entitled "An Act to Reorganize the Civil Aeronautics Board and the Civil Aeronautics

Administration, to provide for the regulation of civil aeronautics in the Philippines ..." that delimited

the powers of the Board. Section 10 of Act 776 prescribed, inter alia, the following:

SEC. 10. Powers and duties of the Board. — (A) Except as otherwise provided herein, the

Board shall have the power to regulate the economic aspect of air transportation, and

shall have the general supervision and regulation of, and jurisdiction and control over, air

carriers as well as their property, property rights, equipment, facilities, and franchise, in

so far as may be necessary for the purpose of carrying out the provisions of this Act.

xxx xxx xxx

(C) The Board shall have the following specific powers and duties:

(2) To fix and determine reasonable individual, joint, or special rates, charges or fares

which an air carrier may demand, collect or receive for any service in connection with

air commerce. The Board may adopt any original, amended, or new individual, joint or

special rates, charges or fares proposed by an air carrier if the proposed individual,

joint, or special rates, charges or fares are not unduly preferential or unduly

discriminatory or unreasonable. The burden of proof to show that the proposed

individual, joint or special rates, charges or fares are just and reasonable shall be upon

the air carrier proposing the same.

Latest enactment of the series was Republic Act No. 2677, in effect on 18 June 1960, that amended various sections of

Commonwealth Act No. 146, the basic Public Service Act. Among those amended was section 14, which was made to read:

SEC. 14. — The following are exempted from the provision of the preceding section:1

xxx xxx xxx (c) Airships within the Philippines except as regards the fixing of their maximum rates on freight and passengers. (Emphasis supplied)

Contrary to the views of petitioner Lechoco, there is nothing in Republic Act 2677 that expressly

repeals Republic Act No. 776. While section 3 of Republic Act 2677 provides that "All Acts or parts of

Acts inconsistent with the provisions of this Act are hereby repealed", the fact is that the derogation

was thereby made dependent upon actual inconsistency with previous laws. This is the very foundation

of the rule of implied repeal. However, there is nothing in Act 2677 that evidences an intent on the

part of the Legislature to set aside the carefully detailed regulation of civil air transport as set forth in

Act 776. Said Act in itself constitutes a recognition of the need of entrusting regulation, supervision

and control of civil aviation to a specialized body.

We find no irreconcilable inconsistency between section 14 of the Public Service Act, as amended by

Republic Act 2677, and section 10(c) (2) of the prior Republic Act 776, above quoted, except for the

fact that power over rates to be charged by air carriers on passengers and freight are vested in

different entities, the CAB and the PSC. Even that will result in no more than a concurrent jurisdiction

in both supervisory entities, and not in the divesting of the power of one in favor of the other.

The absence of intent to repeal Republic Act No. 776 by the enactment of Act 2677 is also evidenced by the explanatory note to

House Bill 4030 (that later became Act 2677). It expressly stated the desire to broaden the jurisdiction of the PSC "by vesting it with

the power to supervise and control maritime transportation ... except air transportation and warehouses which are now subject to

regulation and supervision by the Civil Aeronautics Board and the Bureau of Commerce respectively."2

The same legislative intent to maintain the jurisdiction and powers of the CAB appears from a

consideration of the legislation subsequent to the enactment of Republic Act 2677. Thus, Republic Act

No. 4147, enacted 20 June 1964 (granting an air transportation franchise to Filipinas Orient Airways),

and Republic Act No. 4501, passed in 19 June 1965 (granting a similar franchise to Air Manila, Inc.),

both uniformly require (in their section 3) that the franchise grantee —

shall fix just and reasonable and uniform rates for the transportation of passengers and freight, subject to the regulations and

approval of the Civil Aeronautics Board or such other regulatory agencies as the Government may designate for this purpose.

(Emphasis supplied)

Such references to the Civil Aeronautics Board after the enactment of Republic Act No. 2677 would be

difficult to explain if said law had already repealed the power of the CAB over fares or rates, as

contended by petitioner Lechoco.

Be that as it may, the well-established principle is that implied repeals are not favored and

consequently statutes must be so construed as to harmonize all apparent conflicts and give effect to

all the provisions whenever possible.3 This rule makes it imperative to reconcile both section 14 of the

Public Service Act as amended by Republic Act No. 2677, and section 10(c) (2) of Republic Act No. 776,

recognizing the power of the Civil Aeronautics Board "fix and determine reasonable individual, joint or

special rates, charges or fares" for air carriers (under Republic Act 776) but subject to the "maximum

rates on freight and passengers" that may be set by the Public Service Commission (as per Republic Act

2677); so that the rates, charges or fares allowed or fixed by CAB may in no case exceed the maxima

prescribed now or to be prescribed in the future by the PSC.

The respondents have suggested that the retention in Republic Act 2677 of the power of the PSC to fix

maximum rates on air freight and passengers was the result of legislative inadvertence, considering

that in House Bill No. 4030 the phrase conferring such power on the PSC appeared in brackets,

indicating that said passage was to be eliminated. But however plausible the suggestion should be, this

Court is powerless to ignore the express grant of the authority in question in the wording of Republic

Act 2677 as finally approved. The elimination of the words "except as regards the fixing of their

maximum rates on freight and passengers" from section 14(c) of the Public Service Act, as amended by

Republic Act 2677, in order to avoid conflict with Republic Act 776, and to unify jurisdiction and

control over civil aviation in the Philippines, can only be obtained from the Legislature itself.

PREMISES CONSIDERED, the questioned order of the Civil Aeronautics Board, asserting its jurisdiction to fix the reasonable fares that

air carriers may demand, are in accord with law, there being no showing that the Public Service Commission has fixed any maximum

rates therefor.

WHEREFORE, the writ ofcerti orari with preliminary injunction applied for is hereby denied. Costs against petitioner Napoleon Lechoco

SITCHON V. AQUINO

98 PHIL 720

FACTS:

Petitioners constructed houses on a public road. They were made to pay concession fees and were issued receipts for the same. Thereafter, they were being ordered by the city engineer to vacate. Failure to obey, there was an order for demolition.

HELD:

Houses constructed without governmental authority, on public streets and roads, obstruct at all times the free use of the public of said places and accordingly, constitute nuisance per se aside from being public nuisance

G.R. No. L-23052           January 29, 1968

CITY OF MANILA, petitioner, vs.GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

          Appeal by certiorari from a decision of the Court of Appeals.

          On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P. Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As he stepped down from the curb to board the jeepney, and took a few steps, he fell inside an uncovered and unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of the manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were treated, after which he was taken home. In addition to the lacerated wound in his left upper eyelid, Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus injections administered to him in the hospital, required further medical treatment by a private practitioner who charged therefor P1,400.00.

          As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a complaint — which was, subsequently, amended — for damages against the City of Manila, its mayor, city engineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial court, and quoted with approval by the Court of Appeals,

          At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the University of the East. He held responsible positions in various business firms like the Philippine Merchandising Co., the A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere Packing Corporation. He was also associated with several civic organizations such as the Wack Wack Golf Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of the incident, plaintiff was prevented from engaging in his customary occupation for twenty days. Plaintiff has lost a daily income of about P50.00 during his incapacity to work. Because of the incident, he was subjected to humiliation and ridicule by his business associates and friends. During the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of P2,000.00.

          On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered on the same day (Exhibit 4); that again the iron cover of the same catch basin was reported missing on January 30, 1958, but the said cover was replaced the next day (Exhibit 5); that the Office of the City Engineer never received any report to the effect that the catchbasin in question was not covered between January 25 and 29, 1968; that it has always been a policy of the said office, which is charged with the duty of installation, repair and care of storm drains in the City of Manila, that whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by immediately replacing the missing cover or covering the catchbasin with steel matting that because of the lucrative scrap iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office of the City Engineer has filed complaints in court resulting from theft of said iron covers; that in order to prevent such thefts, the city government has changed the position and layout of catchbasins in the City by constructing them under the sidewalks with concrete cement covers and openings on the side of the gutter; and that these changes had been undertaken by the city from time to time whenever funds were available.

          After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining the theory of the defendants and dismissing the amended complaint, without costs.

          On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of Manila.

          The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act No. 409 (Charter of the City of Manila) reading:

          The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions.

          or by Article 2189 of the Civil Code of the Philippines which provides:

          Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or supervision.

          Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

          The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for: "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by any person by reason" — specifically — "of the defective condition of roads, streets, bridges, public buildings, and other-public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.

          It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident involving him took place in a national highway; and 2) because the City of Manila has not been negligent in connection therewith.

          As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the defective condition of a street which is "under the supervision and control" of the City. In its answer to the amended complaint, the City, in turn, alleged that "the streets aforementioned were and have been constantly kept in good condition and regularly inspected and the storm drains and manholes thereof covered by the defendant City and the officers concerned" who "have been ever vigilant and zealous in the

performance of their respective functions and duties as imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and is under its control and supervision.

          Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of fact, which had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof.

          At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a national highway, this circumstance would not necessarily detract from its "control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

          Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

x x x           x x x           x x x

          (x) Subject to the provisions of existing law to provide for the laying out, construction and improvement, and to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires therein; to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the streets and other public places; to provide for the abatement of nuisances in the same and punish the authors or owners thereof; to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other amusements which may annoy persons using the streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their property, or any part thereof, to provide suitable protection against injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and under their tracks, so that the natural drainage of the streets and adjacent property shall not be obstructed.

          This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway funds and the giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets within their respective boundaries, and Executive Order No. 113 merely implements the provisions of said Republic Act No. 917, concerning the disposition and appropriation of the highway funds. Moreover, it provides that "the construction, maintenance and improvement of national primary, national secondary and national aid provincial and city roads shall be accomplished by the Highway District Engineers and Highway City Engineers under the supervision of the Commissioner of Public Highways and shall be financed from such appropriations as may be authorized by the Republic of the Philippines in annual or special appropriation Acts."

          Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not subject to our review.

          WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila. It is so ordered.1äwphï1.ñët

G.R. No. 83558 February 27, 1989

NATIONAL POWER CORPORATION, petitioner, vs.HONORABLE ABRAHAM P. VERA, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 90, Quezon City and SEA LION INTERNATIONAL PORT TERMINAL SERVICES, INC., respondents.

The Solicitor General for petitioner.

C.L. Cinco & Associates for private respondent.

R E S O L U T I O N

CORTES, J.:

Petitioner, National Power Corporation (NPC), seeks to annul the order of respondent judge dated June 8, 1988 issuing a writ of preliminary injunction which enjoined NPC from further undertaking stevedoring and arrastre services in its pier located at the Batangas Coal-Fired Thermal Power Plant at Calaca, Batangas and directing it either to enter into a contract for stevedoring and arrastre services or to conduct a public bidding therefor. Private respondent was also allowed to continue stevedoring and arrastre services at the pier.

The instant petition arose from a complaint for prohibition and mandamus with damages filed by private respondent against NPC and Philippine Ports Authority (PPA), wherein private respondent alleged that NPC had acted in bad faith and with grave abuse of discretion in not renewing its Contract for Stevedoring Services for Coal-Handling Operations at NPC's plant, and in taking over its stevedoring services.

Soon after the filing of private respondent's complaint, respondent judge issued a restraining order against NPC enjoining the latter from undertaking stevedoring services at its pier. Consequently, NPC filed an "Urgent Motion" to dissolve the restraining order, asserting, inter alia: (1) that by virtue of Presidential Decree No. 1818, respondent judge had no jurisdiction to issue the order; and (2) that private respondent, whose contract with NPC had expired prior to the commencement of the suit, failed to establish a cause of action for a writ of preliminary injunction.

Respondent judge issued the assailed Order denying NPC's motion and issuing a writ of preliminary injunction, after finding that NPC was not empowered by its Charter, Republic Act No. 6395, as amended, to engage in stevedoring and arrastre services. Hence, the instant petition.

On June 15, 1988, the Court issued a temporary restraining order. After private respondent filed its comment to the petition, and petitioner filed its reply, the Court considered the issues joined and the case submitted for decision.

After a careful study of the various allegations and issues raised in the pleadings, the Court finds merit in the petition. Indeed, the assailed Order suffers from infirmities which must be rectified by the grant of a writ of certiorari in favor of the petitioner.

A. Firstly, respondent judge acted without jurisdiction when he issued the writ of preliminary injunction against NPC.

Presidential Decree No. 1818 explicitly provides:

SECTION 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

Undeniably, NPC is a public utility, created under special legislation engaged in the generation and distribution of electric power and energy. It, therefore, enjoys the protective mantle of the above decree.

Moreover, respondent judge's finding that NPC is not empowered by its Charter to undertake stevedoring services in its pier is erroneous.

To carry out the national policy of total electrification of the country, specifically the development of hydroelectric generation of power and the production of electricity from nuclear, geothermal and other sources to meet the needs of industrial development and dispersal and the needs of rural electrification [Secs. 1 and 2, Rep. Act No. 6395, as amended], the NPC was created and empowered not only to construct, operate and maintain power plants, reservoirs, transmission lines, and other works, but also:

xxx xxx xxx

... To exercise such powers and do such things as may be reasonably necessary to carry out the business and purposes for which it was organized, or which, from time to time, may be declared by the Board to be necessary, useful, incidental or auxiliary to accomplish said purpose, . . . [Sec. 3 (1) of Rep. Act No. 6395, as amended.]

In determining whether or not an NPC act falls within the purview of the above provision, the Court must decide whether or not a logical and necessary relation exists between the act questioned and the corporate purpose expressed in the NPC charter. For if that act is one which is lawful in itself and not otherwise prohibited, and is done for the purpose of serving corporate ends, and reasonably contributes to the promotion of those ends in a substantial and not in a remote and fanciful sense, it may be fairly considered within the corporation's charter powers [Montelibano v. Bacolod-Murcia Milling Co., Inc., G.R. No. L-15092, May 18, 1962, 5 SCRA 36.]

This Court is, guided by jurisprudence in the application of the above standard. In the 1963 case of Republic of the Philippines v. Acoje Mining Company, Inc. [G.R. No. L-18062, February 28, 1963, 7 SCRA 3611 the Court affirmed the rule that a corporation is not restricted to the exercise of powers expressly conferred upon it by its charter, but has the power to do what is reasonably necessary or proper to promote the interest or welfare of the corporation. Thus, the Court, finding that a "post office is a vital improvement in the living condition of its employees and laborers who came to settle in its mining camp which is far removed from the postal facilities or means of communication accorded to people living in a city or municipality" [Id., at P. 365], held that respondent mining corporation was empowered to operate and maintain postal facilities servicing its employees and their families at its mining camp in Sta. Cruz, Zambales despite absence of a provision in the company's charter authorizing the former to do so.

The Court in the case of Teresa Electric & Power Co., Inc. v. Public Service Commission and Filipinos Cement Corporation [G.R. No. L-21804, September 25, 1967, 21 SCRA 198] in interpreting a provision found in respondent corporations articles of incorporation authorizing the corporation to perform any and all acts connected with the business of manufacturing portland cement or arising therefrom or incidental thereto, concluded that the corporation must be deemed authorized to operate and maintain an electric power plant exclusively for its own use in connection with the operation of its cement factory in a remote barrio. The Court found that the operation of such plant was necessarily connected with the business of manufacturing cement.

In the instant case, it is an undisputed fact that the pier located at Calaca, Batangas, which is owned by NPC, receives the various shipments of coal which is used exclusively to fuel the Batangas Coal-Fired Thermal Power Plant of the NPC for the generation of electric power. The stevedoring services which involve the unloading of the coal shipments into the NPC pier for its eventual conveyance to the power plant are incidental and indispensable to the operation of the plant The Court holds that NPC is empowered under its Charter to undertake such services, it being reasonably necessary to the operation and maintenance of the power plant.

B. Secondly, the assailed Order was issued in grave abuse of discretion, considering: (1) that private respondent had failed to establish a right to the issuance of a writ of preliminary injunction; and (2) that the court cannot direct the exercise of a corporate prerogative.

Before a writ of preliminary injunction may be issued, there must be a clear showing by the complainant that there exists a right to be protected and that the acts against which the writ is to be directed are violative of the said right [Araneta v. Gatmaitan, 101 Phil. 328 (1957); Buayan Cattle Co., Inc. v. Quintillan, G.R. No. L-26970, March 19, 1984, 128 SCRA 276.]

In the instant case, it is an undisputed fact that private respondent's contract for stevedoring services with NPC bad already expired. Admittedly, there is no existing contractual relationship between the parties. Moreover, private respondent's PPA permit for cargo handling services; at the NPC Calaca pier had expired as well. On the other hand, NPC, which was under no legal obligation to renew the contract for stevedoring services with private respondent, was granted authority by the PPA to provide cargo handling services in its pier. Consequently, there was no right of private respondent that needed to be protected or preserved by a writ of preliminary injunction.

Furthermore, respondent judge's directive ordering NPC to enter into a contract for stevedoring and arrastre services or to conduct a public bidding therefor amounted to a writ of mandamus. But it is a settled rule that mandamus will lie only to compel the performance of a ministerial duty; it does not lie to require anyone to fulfill contractual obligations or compel a course of conduct, nor to control or review the exercise of discretion Sy Ha v. Galang, G.R. No. L-18513, April 27, 1963, 7 SCRA 797; Aprueba, et al. v. Ganzon, G.R. No. L-20867, September 3, 1966, 18 SCRA 8; Avenue Arrastre & Stevedoring Corporation v. Commissioner of Customs, et al., G.R. No. L-44674, February 28, 1983, 120 SCRA 878; Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137 SCRA 245.] As far back as 1910, in the case of Tabigue v. Duvall [16 Phil. 324], the Court laid the fundamental principle governing the issuance of a writ of mandamus that the duties to be enforced thereby must be such as are clearly and peremptorily enjoined by law or by reason of official station.

Whether NPC will enter into a contract for stevedoring and arrastre services to handle its coal shipments to its pier, or undertake the services itself, is entirely and exclusively within its corporate discretion. It does not involve a duty the performance of which is enjoined by law. Thus, the courts cannot direct the NPC in the exercise of this prerogative.

WHEREFORE, in view of the foregoing, the Court having considered the Petition, private respondents Comment, and the Reply thereto, Resolved to GRANT the petition. The respondent Judge's Order dated June 8, 1988 is SET ASIDE and the temporary restraining order issued by the Court on June 15, 1988 is made PERMANENT.

SO ORDERED.

G.R. No. L-21516             April 29, 1966

BUTUAN SAWMILL, INC., petitioner-appellee, vs.CITY OF BUTUAN, ET AL., respondents-appellants.

Ricardo S. Castillo, for respondents-appellants.David G. Nitafan, for petitioner-appellee.

REYES, J.B.L., J.:

Direct appeal on questions of law from a decision of the Court of First Instance of Agusan, in its Special Civil Case No. 152, declaring as unconstitutional and ultra vires Ordinances Nos. 7, 11, 131, and 148 of the herein respondent-appellant City of Butuan "in so far as they impose a 2% tax on the gross sales or receipts of the business of electric light, heat and power of the petitioner (appellee) Butuan Sawmill, Inc." and annulling Ordinance No. 104, also of the said city, as unconstitutional, arbitrary, unreasonable and oppressive. The decision was rendered on a petition for declaratory relief.

The petitioner-appellee, Butuan Sawmill, Inc. was granted a legislative franchise, Republic Act No. 399, approved on 18 June 1949, for an electric light, heat and power system at Butuan and Cabadbaran, Agusan, subject to the terms and conditions established in Act 3636, as amended by Commonwealth Act No. 132 and the Constitution. It was also issued a certificate of public convenience and necessity by the Public Service Commission on 18 March 1954.

Ordinance No. 7, which took effect on 1 October 1950, imposes a tax of 2% on the gross sales or receipts of any business operated in the city, payable monthly within the first 20 days of the following month, and provides penalties for violation thereof. This ordinance was amended on 14 December 1950 by Ordinance No. 11, by enumerating the kinds of businesses required to pay the tax, and further amended by Ordinance No. 131, enacted on 16 May 1961, by modifying the penal provision, and still further amended by Ordinance No. 148, approved on 11 June 1962, by including within the coverage of taxable businesses "Those engaged in the business of electric light, heat and power (sic) ... " (Rec. on Appeal, pp. 116-131).

Ordinance No. 104, enacted on 13 April 1960, makes it unlawful, and provides a penalty of fine and imprisonment —

for any person, firm or entity to cut or disconnect electric wire or wires connecting the electric power plant of any franchise holder or electricity supplying current with any consumer in the City of Butuan without the consent of the said consumer except in cases of fire and/or when there is a clear and positive danger to the lives and properties of the residents of the community, or upon order by the proper authorities. (Rec. on App., pp. 133-134).

The stand of the respondents-appellants is that the franchise of the petitioner-appellee is subject to "amendment, alteration or repeal by the National Assembly ...", as per Section 12 of Act 3636, as amended; that the city is empowered under its charter (Republic Act 523, approved on 15 June 1950) to "provide for the levy and collection of taxes for general and special purposes"; and that its taxing power was enlarged and extended by the Local Autonomy Law, Republic Act 2264, which was approved on 19 June 1959; and that all said statutory enactments gave the city the authority to impose the 2% tax on the gross sales or receipts of the business of electric light, heat and power of the Butuan Sawmill, Inc.

The petitioner-appellee, Butuan Sawmill, Inc., on the other hand, disputes the constitutionality of the taxing ordinance, as amended, as one that impairs the obligation of contract, its franchise being a contract, and deprives it of property without due process of law; it maintains that the said ordinances are ultra vires and void.1äwphï1.ñët

Examination of the laws involved shows that the inclusion of the franchised business of the Butuan Sawmill, Inc. by the City of Butuan within the coverage of the questioned taxing ordinances is beyond the broad power of taxation of the city under its charter; nor can the power therein granted be taken as an authority delegated to the city to amend or alter the franchise, since its charter did not expressly nor specifically provide any such power. Be it noted that the franchise was granted by act of the legislature on 18 June 1949 while the city's charter was approved on 15 June 1950.

Where there are two statutes, the earlier special and the later general — the terms of the general broad enough to include the matter provided for in the special — the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, one as a general law of the land, the other as the law of a particular case. (State vs. Stoll, 17 Wall. [U.S.], 425) (Manila Railroad Co. vs. Rafferty, 40 Phil. 224)

The Local Autonomy Act did not authorize the City of Butuan to tax the franchised business of the petitioner-appellee. Its pertinent provision states:

Any provision of law to the contrary notwithstanding, all chartered cities ... shall have authority to impose municipal license taxes or fees upon persons engaged in any occupation or business ... Provided, however, That no city, municipality or municipal district may levy or impose any of the following:

x x x           x x x           x x x

(d) Taxes on persons operating waterworks, irrigation and other public utilities except electric light, heat and power.

x x x           x x x           x x x

(j) Taxes of any kind on banks, insurance companies, and persons paying franchise tax.

x x x           x x x           x x x

(Sec. 2, Republic Act 2264) (Emphasis supplied)

The argument of the appellant city is that, under subparagraph (d) of the above-quoted provision, the business of electric light, heat and power, being an exception to those which it cannot tax (like waterworks and irrigation), is within the city's taxing power. This argument is untenable, because (1) subparagraph (j) of the same section specifically withholds the imposition of taxes on persons paying franchise tax (like appellee herein), and (2) the city's interpretation of the provision would result in double taxation against the business of the appellee because the internal revenue code already imposes a franchise tax. The logical construction of section 2(d) of Republic Act 2264, that would not nullify section 2(j) of the same Act, is that the local government may only tax electric light and power utilities that are not subject to franchise taxes, unless the franchise itself authorizes additional taxation by cities or municipalities.

The passage of ordinance No. 104, which prohibits the disconnection of any electrical wire connected to any consumer's building with the power plant, without the consent of the consumer; except in case of fire, clear and positive danger to the residents, or order of the authorities, is an unwarranted exercise of power for the general welfare. In effect, the ordinance compels the electric company to keep supplying electric current to a customer even if the latter does not pay the bills therefor, and to that extent deprives the company of its property without due process. It is no answer to the objection that the company is not prevented from resorting to the courts for the collection of unpaid bills; for unless the supply of electricity is stopped, the bills will keep mounting during the pendency of the case, and the company will be unable to stop litigating. How the general welfare would be promoted under the ordinance has neither been explained nor justified; in fact, the respondents spare no bones in asserting that the ordinance was directed against the petitioner in protest against its allegedly inefficient service. But the general welfare clause was not intended to vent the ire of the complaining consumers against the franchise holder, because the legislature has specifically lodged jurisdiction, supervision and control over public services and their franchise in the Public Service Commission and not in the City of Butuan.

G.R. No. 14205           September 30, 1919

THE MANILA RAILROAD COMPANY, plaintiff-appellee, vs.JAMES J. RAFFERTY, as COLLECTOR OF INTERNAL REVENUE, defendant-appellant.

Attorney-General Paredes for appellant.Orense and Vera for appellee.

JOHNSON, J.:

This action was commenced in the Court of First Instance of the city of Manila on the 20th day of December, 1916. Its purpose was to recover of the defendant the sum of P83,159.63 which the plaintiff had paid to the defendant as internal-revenue tax, under protest.

The plaintiff alleged that the said sum had been illegally assessed and collected by the defendant as internal-revenue tax during the years 1915 and 1916; that by virtue of its charter, subsection 12 of section 1, in relation with subsection 10 of Act No. 1510, it was relieved from all taxes of every name and nature — municipal, provincial or central — upon its capital stock, franchise, right of way, earnings, or other property owned or operated by it, except those mentioned in said charter (Act No. 1510); that the amount which the defendant collected and for which the present action was brought was not included as a part of the taxes which the plaintiff was required to pay under its charter. The defendant admitted that the amount collected was collected as internal-revenue tax upon certain oil and coal which the plaintiff had imported into the Philippine Islands, for its use.

All of the facts alleged by the plaintiff were, by stipulation of the parties, admitted to be true. The defendant, however, alleged as a special defense, in justification of his collection of said sum, that "during the period covered by the complaint the plaintiff imported into the Philippine Islands at various times, various quantities of coal and oil, which, by virtue of the provisions of subdivision C of section 4 of the Act of Congress of October 3, 1913, became subject, upon importation into the Philippine Islands, to the payment of

the internal-revenue tax imposed by the Philippine Government upon like articles manufactured and consumed in the Philippine Islands."

Upon the issue thus presented the Honorable James A. Ostrand, judge, in a carefully prepared opinion, held that, notwithstanding the provisions of said Act of Congress invoked by the defendant, subsection 12 of section 1 of Act No. 1510 of the Philippine Legislature is in full force and effect, and, upon that theory, rendered a judgment in favor of the plaintiff and against the defendant for the sum of P83,159.63, without any finding as to costs. From that judgment the defendant appealed.

The appellant alleges that the lower court committed an error in holding that subsection 12 of section 1 of Act No. 1510 of the Philippine Legislature is still in full force and effect and in not holding that section 4, subdivision C, of the Act of Congress of October 3, 1913, did apply to coal and oil imported into the Philippine Islands by the plaintiff for the use in the operation of its lines.

On the 7th day of July, 1906, by an Act of the Philippine Legislature, a special charter was granted to the Manila Railroad Company. Subsection 12 of section 1 of said Act (No. 1510) provides that:

In consideration of the premises and of the granting of this concession or franchise, there shall be paid by the grantee to the Philippine Government, annually, for the period of thirty (30) years from the date hereof, an amount equal to one-half (½) of one per cent of the gross earnings of the grantee in respect of the lines covered hereby for the preceding year; after said period of thirty (30) years, and for the fifty (50) years thereafter, the amount so to be paid annually shall be an amount equal to one and one-half (1 ½) per cent of such gross earnings for the preceding year; and after such period of eight (80) years the percentage and amount so to be paid annually by the grantee shall be fixed by the Philippine Government.

Such annual payments, when promptly and fully made by the grantee, shall be in lieu of all taxes of every name and nature. — municipal, provincial, or central — upon its capital stock, franchises, right of way, earnings, and all other property owned or operated by the grantee under this concession or franchise.

Subsection 16 of section 1 of said charter (Act No. 1510) provided that: "This franchise or concession is subject to amendment, alternation, or repeal by the Congress of the United States. . . .

On the 5th day of August, 1909, the Congress of the United States passed an Act entitled "An Act to raise revenue for the Philippine Islands, and for other purposes." Section 24 of said Act of Congress provides:

That in addition to the taxes imposed by this Act there shall be levied and collected on goods, wares, or merchandise when imported into the Philippine Islands from countries other than the United States the internal revenue tax imposed by the Philippine Government on like articles manufactured and consumed in the Philippine Islands or shipped thereto, for consumption therein, from the United States. (Vol. 7, Pub. Laws of the P. I., p. 416)

On the 3d day of October, 1913, the Congress of the United States passed an Act entitled "An Act to reduce tariff duties and to provide revenues for the Government and for other purposes." In subsection C of section IV of said Act there is found the following provision:

That in addition to the customs taxes imposed in the Philippine Islands, there shall be levied, collected, and paid therein upon articles, goods, wares, or merchandise imported into the Philippine Islands from countries other than the United States, the internal-revenue tax imposed by the Philippine Government on like articles manufactured and consumed in the Philippine Islands or shipped thereto for consumption therein, from the United States. (Vol. 38, Pub. Laws of the U.S., p. 193.)

In pursuance of the above-quoted provisions of the said Acts of Congress, the Philippine Legislature enacted Act No. 2432 and subsequent Acts amendatory thereof and supplementary thereto, which placed an internal-revenue tax upon coal and oil imported into the Philippine Islands, and by virtue of said laws the defendant collected from the plaintiff, as internal-revenue tax upon coal and oil, the amount in question, which was paid under protest.

In view of the foregoing quoted provision of the charter of the plaintiff in relation with said Acts of Congress, the question is whether or not said Acts of Congress can be regarded as an amendment alteration, or repeal of subsection 12, section 1, of Act No. 1510 above-quoted.

It will be noted that Act No. 1510 is a private charter granted to the plaintiff; that said Acts of Congress are general laws. A careful reading of said Acts of Congress fails to disclose any reference to, or any attempt to amend, alter, or repeal, said special charter (Act No. 1510); and no other Act of Congress has been called to our attention, which in any way attempts to amend, alter, or repeal said Act (No. 1510). And it must be borne in mind that said charter (Act No. 1510) is subject to amendment, alteration, or repeal only by an Act of the Congress of the United States.

In view of the foregoing facts, the question presented above may be stated more concretely: May a special law or charter be amended, altered or repealed by a general law, by implication?

That question has been answered in the negative so many times that, except for the fact that it has not been raised here before, it would scarcely be necessary to cite authorities.

Repeals of laws by implication are not favored; and the mere repugnance between two statutes should be very clear in order to warrant the court in holding that the later in time repeals the other, when it does not in terms purport to do so. (Cooley's

Constitutional Limitations [6th Ed.], p. 182, and cases cited; Sutherland Stat. Construction, Vol. 1, p. 465 [2d Ed.]; Kinney vs. Mallory, 3 Ala., 626; Banks vs. Yolo County, 104 Cal., 258; People vs. Pacific Import Co., 130 Cal., 442; Reese vs. Western Union etc. Co., 123 Ind., 294; 7 L.R.A., 583; Cope vs. Cope, 137 U.S., 682.)

In the case of McKenna vs. Edmundstone (91 N.Y., 231) the court said: "It is well settled that a special and local statute, providing for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law." That rule is but the application of the larger rule that a statute is not to be deemed repealed, by implication, by a subsequent Act upon the same subject unless the two are manifestly inconsistent with, and repugnant to, each other, or unless a clear intention is disclosed on the face of the later statute to repeal the former one.

It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. (Steamboat Company vs. Collector, 18 Wall. [U.S.], 478; Cass County vs. Gillett, 100 U. S., 585; Minnesota vs. Hitchcock, 185 U.S., 373, 396.)

Where there are two statutes, the earlier special and the later general — the terms of the general broad enough to include the matter provided for in the special — the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, one as a general law of the land, the other as the law of a particular case. (State vs. Stoll, 17 Wall. [U.S.], 425.)

Said Act No. 1510 is a charter granted to the plaintiff company by the Government of the Philippine Islands. It is in the nature of a private contract. It is not a law constituting a part of the machinery of the general government. It was adopted after careful consideration of the private rights of the plaintiff in relation with the resultant benefits to the State. It stands upon a different footing from the general law. When a charter is granted, it constitutes a certain property right. Charters or special laws, such as Act No. 1510, stand upon a different footing from general laws. Once granted, a charter becomes a private contract and cannot be altered nor amended except by consent of all concerned, unless that right is expressly reserved. (Dartmouth College vs. Woodword, 4 Wheat., 578.) The reason for the rule is clear. The Legislature, in passing a special charter, have their attention directed to the special facts and circumstances which the Act or charter is intended to meet. The Legislature consider and make provision for all the circumstances of the particular case. The Legislature having specially considered all of the facts and circumstances in the particular case in granting a special charter, it will not be considered that the Legislature, by adopting a general law containing provisions repugnant to the provisions of the charter, and without making any mention of its intention to amend or modify the special act. (Lewis vs. Cook County, 74 Ill. App., 151; Philippine Railway Co. vs. Nolting, 34 Phil., 401.)

While the Acts of Congress referred to above contain a provision that all laws inconsistent with their provisions are repealed, yet they expressly provide that they shall not affect any accrued right. The plaintiff had enjoyed the rights granted under Act No. 1510 for a number of years. Such rights were accrued rights. An examination of said Acts of Congress not only fails to disclose any express intention to amend, alter, or repeal Act No. 1510, or any of its provisions, but upon the contrary, we find that the said Acts of Congress expressly protect all rights theretofore accrued. From all of the foregoing we have reached the following conclusions:

1. That Act No. 1510 has not been amended, altered, or repealed by any Act of Congress;

2. That the plaintiff was relieved by Act No. 1510 from the payment of the internal-revenue tax collected by the defendant in the present case;

3. The amount in question was, therefore, illegally collected; and

4. That the taxes in question were paid under protest. Therefore, and for the reason given, the judgment of the lower court is hereby affirmed, with costs. So ordered.

Bagatsing vs. Ramirez [G.R. No. L-41631.  December 17, 1976.]En Banc, Martin (J): 7 concurring, 1 qualified his concurrence, 1 reserved his vote

Facts: On 12 June 1974, the Municipal Board of Manila enacted Ordinance 7522, “An ordinance regulating the operation of public markets and prescribing fees for the rentals of stalls and providing penalties for violation thereof and for other purposes.” The City Mayor, Ramon D. Bagatsing, approved the ordinance on 15 June 1974. On 17 February 1975, the Federation of Manila Market Vendors Inc. commenced Civil Case 96787 before the CFI Manila (Branch XXX, presided over by Judge Pedro Ramirez), seeking the declaration of nullity of Ordinance 7522 for the reason that (a) the publication requirement under the Revised Charter of the City of Manila has not been complied with; (b) the Market Committee was not given any participation in the enactment of the ordinance, as envisioned by RA 6039; (c) Section 3 (e) of the Anti-Graft and Corrupt Practices Act has been violated; and (d) the ordinance would violate PD 7 of 30 September 1972 prescribing the collection of fees and charges on livestock and animal products.  Resolving the accompanying prayer for the issuance of a writ of preliminary injunction, the Judge issued an order on 1 March 1975, denying the plea for failure of the Federation to exhaust the administrative remedies outlined in the Local Tax Code. After due hearing on the merits, the Judge rendered its decision on 29 August 1975, declaring the nullity of Ordinance 7522 of the City of Manila on the primary ground of non-compliance with the requirement of publication under the Revised City Charter.

Mayor Bagatsing, the Secretary to the Mayor (Roman G. Gargantiel), the Market Administrator and the Municipal Board of Manila moved for reconsideration of the adverse decision, stressing that (a) only a post-publication is required by the Local Tax Code; and (b) the Federation failed to exhaust all administrative remedies before instituting an action in court. On 26 September 1975, the Judge denied the motion. Forthwith, Mayor Bagatsing, et. al. brought the matter to the Supreme Court through the present petition for review on certiorari.

The Supreme Court reversed and set aside the decision of the lower court, and holding that Ordinance 7522 of the City of Manila, dated 15 June 1975 to have been validly enacted; without costs.

1.    Section 17 of the Revised Charter of Manila (RA 409, as amended)Section 17 of the Revised Charter of Manila provides: “Each proposed ordinance shall be published in two daily newspapers of general circulation in the city, and shall not be discussed or enacted by the Board until after the third day following such publication. . . . Each approved ordinance . . . shall be published in two daily newspapers of general circulation in the city, within ten days after its approval; and shall take effect and be in force on and after the twentieth day following its publication, if no date is fixed in the ordinance.”

2.    Section 43 of the Local Tax Code (PD 231)Section 43 of the Local Tax Code directs “Within ten days after their approval, certified true copies of all provincial, city, municipal and barrio ordinances levying or imposing taxes, fees or other charges shall be published for three consecutive days in a newspaper or publication widely circulated within the jurisdiction of the local government, or posted in the local legislative hall or premises and in two other conspicuous places within the territorial jurisdiction of the local government. In either case, copies of all provincial, city, municipal and barrio ordinances shall be furnished the treasurers of the respective component and mother units of a local government for dissemination.”

3.    Comparison of the laws as to the issue of publicationWhile the Revised Charter of the City of Manila requires publication before the enactment of the ordinance and after the approval thereof in two daily newspapers of general circulation in the city, the Local Tax Code only prescribes for publication after the approval of “ordinances levying or imposing taxes, fees or other charges” either in a newspaper or publication widely circulated within the jurisdiction of the local government or by posting the ordinance in the local legislative hall or premises and in two other conspicuous places within the territorial jurisdiction of the local government.

4.    General and special laws definedThe Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class.

5.    Special law not ordinarily repealed by subsequent general law; Rule yields if special statute refers to a subject in general which the general statute treats in particularA prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. The exactly is the circumstance obtaining in the present case. Section 17 of the Revised Charter of the City of Manila speaks of “ordinance” in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to “ordinances levying or imposing taxes, fees or other charges” in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of “ordinances levying or imposing taxes, fees or other charges” in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. Special provision governs. This is especially true where the law containing the particular provision was enacted later than the one containing the general provision. The City Charter of Manila was promulgated on 18 June 1949 as against the Local Tax Code which was decreed on 1 June 1973.

6.    Law making power does not intend establishment of conflicting and hostile systems upon same subjectThe law-making power cannot be said to have intended the establishment of conflicting and hostile systems upon the same subject, or to leave in force provisions of a prior law by which the new will of the legislating power may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony, and subject the law to the reproach of uncertainty and unintelligibility.

7.    Case of City of Manila vs. Teotico is opposite of present case; Facts and rulingThe case of City of Manila v. Teotico  is opposite. In that case, Teotico sued the City of Manila for damages arising from the injuries he suffered when he fell inside an uncovered and unlighted catchbasin or manhole on P. Burgos Avenue. The City of Manila denied liability on the basis of the City Charter (RA 409) exempting the City of Manila from any liability for damages or injury to persons or property arising from the failure of the city officers to enforce the provisions of the charter or any other law or ordinance, or from negligence of the City Mayor, Municipal Board, or other officers while enforcing or attempting to enforce the provisions of the charter or of any other law or ordinance. Upon the other hand, Article 2189 of the Civil Code makes cities liable for damages for the death of, or injury suffered by any persons by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. On review, the Court held the Civil Code controlling. It is true that, insofar as its territorial application is concerned, the Revised City Charter is a special law and the subject matter of the two laws, the Revised City Charter establishes a general rule of liability arising from negligence in general, regardless of the object thereof, whereas the Civil Code constitutes a particular prescription for liability due to defective streets in particular. In the same manner, the Revised Charter of the City prescribes a rule for the publication of “ordinance” in general, while the Local Tax Code establishes a rule for the publication of “ordinance levying or imposing taxes fees or other charges in particular.

8.    Implied repealThere is no rule which prohibits the repeal even by implication of a special or specific act by a general or broad one. A charter provision may be impliedly modified or superseded by a later statute, and where a statute is controlling, it must be read into the charter notwithstanding any particular charter provision.

9.    Subsequent general law must be consistent with general laws and public policy of the StateA subsequent general law similarly applicable to all cities prevails over any conflicting charter provision, for the reason that a charter must not be inconsistent with the general laws and public policy of the state. A chartered city is not an independent sovereignty. The state remains supreme in all matters not purely local. Otherwise stated, a charter must yield to the constitution and general laws of

the state, it is to have read into it that general law which governs the municipal corporation and which the corporation cannot set aside but to which it must yield. When a city adopts a charter, it in effect adopts as part of its charter general law of such character.

10.    Principle of exhaustion of administrative remediesSection 47 of the Local Tax Code provides that any question or issue raised against the legality of any tax ordinance, or portion thereof, shall be referred for opinion to the city fiscal in the case of tax ordinance of a city. The opinion of the city fiscal is appealable to the Secretary of Justice, whose decision shall be final and executory unless contested before a competent court within thirty (30) days.

11.    Principle of exhaustion of administrative remedies not absolute; Pure questions of lawExhaustion of administrative remedies before resort to judicial bodies is not an absolute rule. It admits of exceptions. Where the question litigated upon is purely a legal one, the rule does not apply. The principle may also be disregarded when it does not provide a plain, speedy and adequate remedy. It may and should be relaxed when its application may cause great and irreparable damage. Hence, in the present case, the controversy between the parties is deeply rooted in a pure question of law: whether it is the Revised Charter of the City of Manila or the Local Tax Code that should govern the publication of the tax ordinance. In other words, the dispute is sharply focused on the applicability of the Revised City Charter or the Local Tax Code on the point at issue, and not on the legality of the imposition of the tax.

12.    Raising of revenues is the principal object of taxationRaising of revenues is the principal object of taxation. Under Section 5, Article XI of the New Constitution, “Each local government unit shall have the power to create its own sources of revenue and to levy taxes, subject to such provisions as may be provided by law.” And one of those sources of revenue is what the Local Tax Code points to in particular: “Local governments may collect fees or rentals for the occupancy or use of public markets and premises . . .” They can provide for and regulate market stands, stalls and privileges, and, also, the sale, lease or occupancy thereof. They can license, or permit the use of, lease, sell or otherwise dispose of stands, stalls or marketing privileges.

13.    Ordinance does not violate PD 8 insofar as it affects livestock and animal productsThe ordinance does not violate PD 7, dated 30 September 1972, insofar as it affects livestock and animal products, because the said decree prescribes the collection of other fees and charges thereon “with the exception of ante-mortem and post-mortem inspection fees, as well as the delivery, stockyard and slaughter fees as may be authorized by the Secretary of Agriculture and Natural Resources.” Clearly, even the exception clause of the decree itself permits the collection of the proper fees for livestock. And the Local Tax Code (PD 231, 1 July 1973) authorizes in its Section 31: “Local governments may collect fees for the slaughter of animals and the use of corrals . . .”

14.    Non-participation of the Market Committee does not render ordinance invalid; Committee merely recommendatory; Potestas delegata non delegare potestThe non-participation of the Market Committee in the enactment of Ordinance 7522 supposedly in accordance with RA 6039, an amendment to the City Charter of Manila, providing that “the market committee shall formulate, recommend and adopt, subject to the ratification of the municipal board, and approval of the mayor, policies and rules or regulation repealing or amending existing provisions of the market code” does not infect the ordinance with any germ of invalidity. The function of the committee is purely recommendatory as the underscored phrase suggests, its recommendation is without binding effect on the Municipal Board and the City Mayor. Its prior acquiescence of an intended or proposed city ordinance is not a condition sine qua non before the Municipal Board could enact such ordinance. The native power of the Municipal Board to legislate remains undisturbed even in the slightest degree. It can move in its own initiative and the Market Committee cannot demur. At most, the Market Committee may serve as a legislative aide of the Municipal Board in the enactment of city ordinances affecting the city markets or, in plain words, in the gathering of the necessary data, studies and the collection of consensus for the proposal of ordinances regarding city markets. Much less could it be said that RA 6039 intended to delegate to the Market Committee the adoption of regulatory measures for the operation and administration of the city markets. Potestas delegata non delegare potest.

15.    Entrusting the collection of fees to a private entity does not destroy the public purpose of the ordinanceThe fees collected in the ordinance do not go direct to the private coffers of the Asiatic Integrated Corporation. Ordinance 7522 was not made for the corporation but for the purpose of raising revenues for the city. That is the object it serves. The entrusting of the collection of the fees does not destroy the public purpose of the ordinance. So long as the purpose is public, it does not matter whether the agency through which the money is dispensed is public or private. The right to tax depends upon the ultimate use, purpose and object for which the fund is raised. It is not dependent on the nature or character of the person or corporation whose intermediate agency is to be used in applying it. The people may be taxed for a public purpose, although it be under the direction of an individual or private corporation.

16.    Ordinance not violative of Section 3 (e) of the Anti-Graft and Corrupt Practices ActNor can the ordinance be stricken down as violative of Section 3(e) of the Anti-Graft and Corrupt Practices Act because the increased rates of market stall fees as levied by the ordinance will necessarily inure to the unwarranted benefit and advantage of the corporation. The measure may not be invalidated just because of consequences that may arise from its enforcement.

[1976V360E] HON. RAMON D. BAGATSING, as Mayor of the City of Manila; ROMAN G. GARGANTIEL, as Secretary to the Mayor; THE MARKET ADMINISTRATOR; and THE MUNICIPAL BOARD OF MANILA, petitioners, vs. HON. PEDRO A. RAMIREZ, in his capacity as Presiding Judge of the Court

1976 Dec 17En BancG.R. No. L-41631

D E C I S I O N

MARTIN, J:

The chief question to be decided in this case is what law shall govern the publication of a tax ordinance enacted by the Municipal Board of Manila, the Revised City Charter (R.A. 409, as amended), which requires publication of the ordinance before its enactment and after its approval, or the Local Tax Code (P.D. No. 231), which only demands publication after approval.

On June 12, 1974, the Municipal Board of Manila enacted Ordinance No. 7522, “AN ORDINANCE REGULATING THE OPERATION OF PUBLIC MARKETS AND PRESCRIBING FEES FOR THE RENTALS OF STALLS AND PROVIDING PENALTIES FOR VIOLATION THEREOF AND FOR OTHER PURPOSES.” The petitioner City Mayor, Ramon D. Bagatsing, approved the ordinance on June 15, 1974.

On February 17, 1975, respondent Federation of Manila Market Vendors, Inc. commenced Civil Case 96787 before the Court of First Instance of Manila, presided over by respondent Judge, seeking the declaration of nullity of Ordinance No. 7522 for the reason that (a) the publication requirement under the Revised Charter of the City of Manila has not been complied with; (b) the Market Committee was not given any participation in the enactment of the ordinance, as envisioned by Republic Act 6039; (c) Section 3 (e) of the Anti-Graft and Corrupt Practices Act has been violated; and (d) the ordinance would violate Presidential Decree No. 7 of September 30, 1972 prescribing the collection of fees and charges on livestock and animal products.

Resolving the accompanying prayer for the issuance of a writ of preliminary injunction, respondent Judge issued an order on March 1, 1975, denying the plea for failure of the respondent Federation of Manila Market Vendors, Inc. to exhaust the administrative remedies outlined in the Local Tax Code.

After due hearing on the merits, respondent Judge rendered its decision on August 29, 1975, declaring the nullity of Ordinance No. 7522 of the City of Manila on the primary ground of non-compliance with the requirement of publication under the Revised City Charter. Respondent Judge ruled:

“There is, therefore, no question that the ordinance in question was not published at all in two daily newspapers of general circulation in the City of Manila before its enactment. Neither was it published in the same manner after approval, although it was posted in the legislative hall and in all city public markets and city public libraries. There being no compliance with the mandatory requirement of publication before and after approval, the ordinance in question is invalid and, therefore, null and void.”

Petitioners moved for reconsideration of the adverse decision, stressing that (a) only a post-publication is required by the Local Tax Code; and (b) private respondent failed to exhaust all administrative remedies before instituting an action in court.

On September 26, 1975, respondent Judge denied the motion.  Forthwith, petitioners brought the matter to Us through the present petition for review on certiorari.We find the petition impressed with merits.

1. The nexus of the present controversy is the apparent conflict between the Revised Charter of the City of Manila and the Local Tax Code on the manner of publishing a tax ordinance enacted by the Municipal Board of Manila. For, while Section 17 of the Revised Charter provides:

“Each proposed ordinance shall be published in two daily newspapers of general circulation in the city, and shall not be discussed or enacted by the Board until after the third day following such publication. . . . Each approved ordinance . . . shall be published in two daily newspapers of general circulation in the city, within ten days after its approval; and shall take effect and be in force on and after the twentieth day following its publication, if no date is fixed in the ordinance.”Section 43 of the Local Tax Code directs:

“Within ten days after their approval, certified true copies of all provincial, city, municipal and barrio ordinances levying or imposing taxes, fees or other charges shall be published for three consecutive days in a newspaper or publication widely circulated within the jurisdiction of the local government, or posted in the local legislative hall or premises and in two other conspicuous places within the territorial jurisdiction of the local government. In either case, copies of all provincial, city, municipal and barrio ordinances shall be furnished the treasurers of the respective component and mother units of a local government for dissemination.”

In other words, while the Revised Charter of the City of Manila requires publication before the enactment of the ordinance and after the approval thereof in two daily newspapers of general circulation in the city, the Local Tax Code only prescribes for publication after the approval of “ordinances levying or imposing taxes, fees or other charges” either in a newspaper or publication widely circulated within the jurisdiction of the local government or by posting the ordinance in the local legislative hall or premises and in two other conspicuous places within the territorial jurisdiction of the local government. Petitioners’ compliance with the Local Tax Code rather than with the Revised Charter of the City spawned this litigation.

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class. 1 And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. 2 However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. The exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks of “ordinance” in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to “ordinances levying or imposing taxes, fees or other charges” in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that

dominant force loses its continuity when it approaches the realm of “ordinances levying or imposing taxes, fees or other charges” in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. 3 Special provision governs. 4 This is especially true where the law containing the particular provision was enacted later than the one containing the general provision. The City Charter of Manila was promulgated on June 18, 1949 as against the Local Tax Code which was decreed on June 1, 1973. The law-making power cannot be said to have intended the establishment of conflicting and hostile systems upon the same subject, or to leave in force provisions of a prior law by which the new will of the legislating power may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony, and subject the law to the reproach of uncertainty and unintelligibility. 5

The case of City of Manila v. Teotico 6 is opposite. In that case, Teotico sued the City of Manila for damages arising from the injuries he suffered when he fell inside an uncovered and unlighted catchbasin or manhole on P. Burgos Avenue. The City of Manila denied liability on the basis of the City Charter (R.A. 409) exempting the City of Manila from any liability for damages or injury to persons or property arising from the failure of the city officers to enforce the provisions of the charter or any other law or ordinance, or from negligence of the City Mayor, Municipal Board, or other officers while enforcing or attempting to enforce the provisions of the charter or of any other law or ordinance. Upon the other hand, Article 2189 of the Civil Code makes cities liable for damages for the death of, or injury suffered by any persons by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. On review, the Court held the Civil Code controlling. It is true that, insofar as its territorial application is concerned, the Revised City Charter is a special law and the subject matter of the two laws, the Revised City Charter establishes a general rule of liability arising from negligence in general, regardless of the object thereof, whereas the Civil Code constitutes a particular prescription for liability due to defective streets in particular. In the same manner, the Revised Charter of the City prescribes a rule for the publication of “ordinance” in general, while the Local Tax Code establishes a rule for the publication of “ordinance levying or imposing taxes fees or other charges in particular.In fact, there is no rule which prohibits the repeal even by implication of a special or specific act by a general or broad one. 7 A charter provision may be impliedly modified or superseded by a later statute, and where a statute is controlling, it must be read into the charter notwithstanding any particular charter provision. 8 A subsequent general law similarly applicable to all cities prevails over any conflicting charter provision, for the reason that a charter must not be inconsistent with the general laws and public policy of the state. 9 A chartered city is not an independent sovereignty. The state remains supreme in all matters not purely local. Otherwise stated, a charter must yield to the constitution and general laws of the state, it is to have read into it that general law which governs the municipal corporation and which the corporation cannot set aside but to which it must yield. When a city adopts a charter, it in effect adopts as part of its charter general law of such character.  10

2. The principle of exhaustion of administrative remedies is strongly asserted by petitioners as having been violated by private respondent in bringing a direct suit in court. This is because Section 47 of the Local Tax Code provides that any question or issue raised against the legality of any tax ordinance, or portion thereof, shall be referred for opinion to the city fiscal in the case of tax ordinance of a city. The opinion of the city fiscal is appealable to the Secretary of Justice, whose decision shall be final and executory unless contested before a competent court within thirty (30) days. But, the petition below plainly shows that the controversy between the parties is deeply rooted in a pure question of law: whether it is the Revised Charter of the City of Manila or the Local Tax Code that should govern the publication of the tax ordinance. In other words, the dispute is sharply focused on the applicability of the Revised City Charter or the Local Tax Code on the point at issue, and not on the legality of the imposition of the tax. Exhaustion of administrative remedies before resort to judicial bodies is not an absolute rule. It admits of exceptions. Where the question litigated upon is purely a legal one, the rule does not apply.  11 The principle may also be disregarded when it does not provide a plain, speedy and adequate remedy. It may and should be relaxed when its application may cause great and irreparable damage.  12

3. It is maintained by private respondent that the subject ordinance is not a “tax ordinance,” because the imposition of rentals, permit fees, tolls and other fees is not strictly a taxing power but a revenue-raising function, so that the procedure for publication under the Local Tax Code finds no application. The pretense bears its own marks of fallacy. Precisely, the raising of revenues is the principal object of taxation. Under Section 5, Article XI of the New Constitution, “Each local government unit shall have the power to create its own sources of revenue and to levy taxes, subject to such provisions as may be provided by law.”  13 And one of those sources of revenue is what the Local Tax Code points to in particular: “Local governments may collect fees or rentals for the occupancy or use of public markets and premises . . .”  14 They can provide for and regulate market stands, stalls and privileges, and, also, the sale, lease or occupancy thereof. They can license, or permit the use of, lease, sell or otherwise dispose of stands, stalls or marketing privileges.  15

It is a feeble attempt to argue that the ordinance violates Presidential Decree No. 7, dated September 30, 1972, insofar as it affects livestock and animal products, because the said decree prescribes the collection of other fees and charges thereon “with the exception of ante-mortem and post-mortem inspection fees, as well as the delivery, stockyard and slaughter fees as may be authorized by the Secretary of Agriculture and Natural Resources.”  16 Clearly, even the exception clause of the decree itself permits the collection of the proper fees for livestock. And the Local Tax Code (P.D. 231, July 1, 1973) authorizes in its Section 31: “Local governments may collect fees for the slaughter of animals and the use of corrals . . .”

4. The non-participation of the Market Committee in the enactment of Ordinance No. 7522 supposedly in accordance with Republic Act No. 6039, an amendment to the City Charter of Manila, providing that “the market committee shall formulate, recommend and adopt, subject to the ratification of the municipal board, and approval of the mayor, policies and rules or regulation repealing or maneding existing provisions of the market code” does not infect the ordinance with any germ of invalidity.  17 The function of the committee is purely recommendatory as the underscored phrase suggests, its recommendation is without binding effect on the Municipal Board and the City Mayor. Its prior acquiescence of an intended or proposed city ordinance is not a condition sine qua non before the Municipal Board could enact such ordinance. The native power of the Municipal Board to legislate remains undisturbed even in the slightest degree. It can move in its own initiative and the Market Committee cannot demur. At most, the Market Committee may serve as a legislative aide of the Municipal Board in the enactment of city ordinances affecting the city markets or, in plain words, in the gathering of the necessary data, studies and the collection of consensus for the proposal of ordinances regarding city markets. Much less could it be said that Republic Act 6039 intended to delegate to the Market Committee the adoption of regulatory measures for the operation and administration of the city markets. Potestas delegare non delegare potest.

5. Private respondent bewails that the market stall fees imposed in the disputed ordinance are diverted to the exclusive private use of the Asiatic Integrated Corporation since the collection of said fees had been let by the City of Manila to the said corporation in a “Management and Operating Contract.” The assumption is of course saddled on erroneous premise. The fees collected do not go direct to the private coffers of the corporation. Ordinance No. 7522 was not made for the corporation but for the purpose of raising revenues for the city. That is the object it serves. The entrusting of the collection of the fees does not destroy the public purpose of the ordinance. So long as the purpose is public, it does not matter whether the agency through which the money is dispensed is public or private. The right to tax depends upon the ultimate use, purpose and object for which the fund is raised. It is not dependent on the nature or character of the person or corporation whose intermediate agency is to be used in applying it. The people may be taxed for a public purpose, although it be under the direction of an individual or private corporation.  18

Nor can the ordinance be stricken down as violative of Section 3(e) of the Anti-Graft and Corrupt Practices Act because the increased rates of market stall fees as levied by the ordinance will necessarily inure to the unwarranted benefit and advantage of the corporation.  19 We are concerned only with the issue whether the ordinance in question is intra vires. Once determined in the affirmative, the measure may not be invalidated because of consequences that may arise from its enforcement.  20

ACCORDINGLY, the decision of the court below is hereby reversed and set aside. Ordinance No. 7522 of the City of Manila, dated June 15, 1975, is hereby held to have been validly enacted. No. costs.

SO ORDERED.