MAXIMO CALALANG vs A. D. WILLIAMS, ET AL.

,
G.R. No. 47800 December 2, 1940
Doctrine: Social Justice
LAUREL, J.:
Facts:

The National Traffic Commission, in its resolution of July 17, 1940, resolved to recommend to
the Director of the Public Works and to the Secretary of Public Works and Communications
that animal-drawn vehicles be prohibited from passing along the following for a period of
one year from the date of the opening of the Colgante Bridge to traffic:
1) Rosario Street extending from Plaza Calderon de la Barca to Dasmarias
Street from 7:30Am to 12:30 pm and from 1:30 pm to 530 pm; and
2) along Rizal Avenue extending from the railroad crossing at Antipolo Street to
Echague Street from 7 am to 11pm
The Chairman of the National Traffic Commission on July 18, 1940 recommended to the
Director of Public Works with the approval of the Secretary of Public Works the adoption of
thethemeasure proposed in the resolution aforementioned in pursuance of the provisions of
theCommonwealth Act No. 548 which authorizes said Director with the approval from the
Secretary of the Public Works and Communication to promulgate rules and regulations to
regulate and control the use of and traffic on national roads.
On August 2, 1940, the Director recommended to the Secretary the approval of the
recommendations made by the Chairman of the National Traffic Commission with
modifications. The Secretary of Public Works approved the recommendations on August
10,1940. The Mayor of Manila and the Acting Chief of Police of Manila have enforced and
caused to be enforced the rules and regulation. As a consequence, all animal-drawn vehicles
are not allowed to pass and pick up passengers in the places above mentioned to the
detriment not only of their owners but of the riding public as well.
Issues:

1) Whether the rules and regulations promulgated by the respondents pursuant to the
provisions of Commonwealth Act NO. 548 constitute an unlawful inference with legitimate
business or trade and abridged the right to personal liberty and freedom of locomotion?
2) Whether the rules and regulations complained of infringe upon the constitutional
precept regarding the promotion of social justice to insure the well-being and economic
security of all the people?
Held:
1) No. The promulgation of the Act aims to promote safe transit upon and avoid obstructions
on national roads in the interest and convenience of the public. In enacting said law, the
National Assembly was prompted by considerations of public convenience and welfare. It
was inspired by the desire to relieve congestion of traffic, which is a menace to the public
safety. Public welfare lies at the bottom of the promulgation of the said law and the state in
order to promote the general welfare may interfere with personal liberty, with property, and
with business and occupations. Persons and property may be subject to all kinds of restraints
and burdens in order to secure the general comfort, health, and prosperity of the State. To
this fundamental aims of the government, the rights of the individual are subordinated.
Liberty is a blessing which should not be made to prevail over authority because society will
fall into anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The paradox lies in the fact that the apparent curtailment of
liberty is precisely the very means of insuring its preserving.
2) No. Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but
the humanization of laws and the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all the competent
elements of society, through the maintenance of a proper economic and social equilibrium in
the interrelations of the members of the community, constitutionally, through the adoption
of measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principles of salus populi
estsuprema lex.
Social justice must be founded on the recognition of the necessity of interdependence among divers and diverse
units of a society and of the protection that should be equally and evenly extended to all groups as a combined force
in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting
health, comfort and quiet of all persons, and of bringing about the greatest good to the greatest number.
PASEI vs TORRES

May an Executive Order (EO) 1 repeal a Letter of Instruction (LOI)? 2

Ordinarily, since both LOI and EO are presidential issuances, one may repeal or otherwise alter, modify
or amend the other, depending on which comes later. The case before us appears compounded by the
circumstance that the LOI in question was issued by former President Ferdinand E. Marcos when he
was clothed with legislative power, while the EO revoking the LOI was issued by then President
Corazon C. Aquino at a time when she had already lost her law-making power after Congress convened
on 27 July 1987. 3 Although the EO issued by President Aquino is undoubtedly not a law but a mere
administrative issuance, the parties here debate whether the LOI issued by President Marcos was a law
or simply an administrative rule in view of his dual position then as chief executive and as legislative
authority. Petitioners contend that the LOI is a law, hence, the EO cannot countermand it, while public
respondent claims that the LOI is only an administrative issuance which may be superseded by an EO.

In determining whether a presidential issuance under the 1973 Constitution may be considered a law,
we held in Garcia-Padilla v. Enrile 4 that "[t]o form part of the law of the land, the decree, order or LOI
must be issued by the President in the exercise of his extraordinary power of legislation as
contemplated in Section 6 of the 1976 Amendments to the Constitution, whenever in his judgment
there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasan
Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action . . . Verily, not all LOI issued by the President
should be dignified into forming part of the law of the land."

Article 25 of the Labor Code of the Philippines (P.D. 442, as amended) 5 encourages private sector
participation in recruitment and placement of workers under guidelines, rules and regulations to be
issued by the Secretary of Labor. On 20 January 1982, President Marcos issued LOI 1190 withholding
the grant of new licenses to operate agencies for overseas employment effective 1 January 1982
except as he may otherwise direct. 6 On 19 March 1991, President Aquino issued EO 450 lifting the ban
on new applications for licenses to operate recruitment agencies subject to guidelines and regulations
the Secretary of Labor may promulgate. 7 On 8 April 1991, respondent Secretary of Labor and
Employment promulgated Department Order (DO) No. 9, Series of 1991, entitled "Guidelines
Implementing Executive Order No. 450."

In this Petition for Prohibition with Preliminary Injunction/Restraining Order filed 14 May 1991
petitioners Philippine Association of Service Exporters, Inc. (PASEI), Philippine Entertainment Exporters
and Promoters Association (PEEPA), and Association of Filipino Overseas Workers, Inc. (AFOWI) pray
that EO 450 be declared invalid for being contrary to LOI 1190.

On 16 May 1991, we issued a temporary restraining order directing respondent Secretary of Labor and
Employment to cease and desist from enforcing EO 450 and DO 9 until further orders. 8 Thereafter,
three motions for intervention were filed, 9 which the Court eventually allowed. 10 Intervenors Joblink

International, Inc. (JOBLINK), Prospecs International Consultancy, Amader International, Inc. (AMADER),
IDG Trading & General Services, Philcango International Recruitment Services, Pan Asia Manpower
Placement, International Manpower Services, Lyka International Manpower Services, Mainline
Recruitment International, Inc., World Matrix Unlimited Services Consultancy & Trading Co., Nuba
International Manpower Services Corporation, El Bary Manpower Services, Social Services Cont. Int'l
Co., Ltd., CDD Enterprises and Velrey Recruitment Company, all applicants for new licenses, support
the position of respondent that LOI 1190 was not a law.

On the other hand, intervenor RP-Japan Entertainment Promoters Association, Inc. (REPA), a non-stock,
non-profit domestic corporation composed of private employment agencies authorized to recruit and
deploy contract workers abroad, prays for the modification of the restraining order we issued on 16
May 1991. We addressed this incident on 4 July 1991 when we explained that our temporary
restraining order did not comprehend renewal of existing licenses since EO 450 covered only new
applications. 11 The other pending issue relating to the lifting and modification of our Resolution of 16
May 1991 will accordingly be resolved in this decision.

First, on the challenge of intervenors AMADER, et al., that petitioners lack locus standi, we need only
reiterate that the "proper-party" requirement is satisfied if it is alleged that petitioners and intervenors
have sustained or are in danger of sustaining immediate injury resulting from the acts or measures
complained of. 12 Petitioners PASEI and PEEPA allege that their member agencies, which enjoy
protection against competition by new licensees pursuant to LOI 1190, will suffer irreparable injury
with the repeal of LOI 1190 by EO 450, considering further that there is no additional demand for
Filipino workers abroad. Hence, any gain made by the new agencies on the supposed exclusive
preserve of existing agencies necessarily results in the latter's loss.

But, as regards petitioner Association of Filipino Overseas Workers, Inc. (AFOWI), we are not persuaded
that the proliferation of recruitment agencies will necessarily result in exposure of workers to
exploitation by unscrupulous recruiters, for the stiffer competition may even compel these agencies to
seek better terms and conditions for overseas workers. Hence, the petition being founded on mere
speculation insofar as it affects AFOWI, the same should be dismissed for want of a valid cause of
action.

On the issue raised by intervenors that the petition can be decided without touching on the validity of
EO 450, we cannot find any other way but to meet the question squarely since petitioners' relief
depends on its validity.

The central thesis of the petition is that LOI 1190 was issued pursuant to the law-making power of the
President under Sec. 6 of the 1976 Amendments to the 1973 Constitution in response to "a grave
emergency which cried for immediate and decisive action," hence, should be considered part of the
law of the land. Petitioners argue that because of its repealing or modifying effect on Art. 25 of the

Labor Code, LOI 1190 could be valid only if treated as a law, and that a contrary interpretation that
would render LOI 1190 invalid could not have been intended by the then incumbent President.

As we view it, LOI 1190 13 simply imposes a presidential review of the authority of the Minister of
Labor and Employment to grant licenses, hence, directed to him alone. Since this is undoubtedly an
administrative action, LOI 1190 should properly be treated as an administrative issuance. Unlike
Presidential Decrees which by usage have gained acceptance as laws promulgated by the President,
Letters of Instruction are presumed to be mere administrative issuances except when the conditions
set out in Garcia-Padilla v. Enrile exist. Consequently, to be considered part of the law of the land,
petitioners must establish that LOI 1190 was issued in response to "a grave emergency or a threat or
imminence thereof, or whenever the interim Batasan Pambansa or the regular National Assembly fails
or is unable to act adequately on any matter." The conspicuous absence of any of these conditions
fortifies the opinion that LOI 1190 cannot be any more than a mere administrative issuance.

In arguing that LOI 1190 was issued to cope with "a grave emergency," petitioners point to the 3rd
"Whereas" clause which speaks of the concern of the state against cut-throat competition seriously
affecting the integrity and viability of the overseas recruitment industry, and the difficulty in the
regulation and supervision of agencies and the protection of the welfare of the workers. The
petitioners' appraisal that the 3rd "Whereas" clause manifests a grave emergency situation is as good
as anybody else's contrary view. Moreover, even if we treat as emergency the "situation which has
seriously affected the integrity and viability of the overseas employment industry," there is no
indication that in the judgment of the President it is grave.

Petitioners argue that since the repeal of Art. 25 of the Labor Code could not be done through an
administrative issuance, LOI 1190 must of necessity be a law. This reasoning is flawed.

There is nothing in the LOI which repeals or runs counter to Art. 25 of the Labor Code, as amended.
Instead, contrary to the perception of petitioners, LOI 1190 does not actually ban the grant of licenses
nor bar the entry of new licensees since anybody could still apply for license with the Minister of Labor
and Employment, although the grant thereof is subject to the prior authority of the President. In fact,
the LOI did not modify the rule-making power of the Minister of Labor and Employment under the
Labor Code; it only added another tier of review.

Neither can petitioners consider this additional review by the President as an amendment of Art. 25,
for this is within the scope of the exercise of his constitutionally sanctioned control over the executive
departments of government. 14 Implicit in that power of control is the President's "authority to go
over, confirm, modify or reverse the action taken by his department secretaries." 15 Moreover, if we
discern the intent of LOI 1190 from the manner it was enforced, the unrebutted allegation of
respondent - that 319 private employment agencies secured administrative presidential approval from
1982 to 1989 16 -- shows that then President Marcos merely intended to regulate, and not ban

altogether, new applications for licenses. For this reason, Marcos could not have contemplated
repealing Art. 25 of the Labor Code.

Petitioners advance a rather outrageous interpretation of LOI 1190 when they claim that "[t]he then
President was in effect saying that 'Art. 25 of the Labor Code is hereby repealed as regards overseas
workers until I otherwise direct.'" 17 By their nature, and their purpose to maintain stability in the
polity, laws have a certain degree of permanence such that they are not intended to be repealed one
hour after their enactment, then re-enacted the following hour, and so on. If the law has to be applied
on a case to case basis, as in the case of Art. 25 of the Labor Code, it does not have to undergo the
tedious process of repeal and re-enactment every time its application is warranted.

Petitioners would impress upon us the interpretation that LOI 1190 suspended the effectivity of Art. 25,
which could not be done because the chief executive is constitutionally bound to "ensure that the laws
be faithfully executed." 18 As we earlier stated, the LOI did not suspend the enforcement of Art. 25 of
the Labor Code; it merely added another level of administrative review.

The discussion on whether the word "I" in the phrase "except as I may otherwise direct" refers to the
President as chief executive or as a legislator is meaningless, for the correct interpretation would
ultimately depend on whether the LOI is a law or an administrative issuance.

Petitioners also contend that EO 450 cannot repeal LOI 1190 for Congress has not delegated that
power to the President. 19 We do not agree. There is no need for legislative delegation of power to the
President to revoke the LOI by way of an EO in view of our finding that LOI 1190 is a mere
administrative directive, 20 hence, may be repealed, altered or modified by EO 450, and DO 9 must
consequently be upheld.

Of the three (3) groups of intervenors, only AMADER, et al., pray for attorney's fees claiming that they
were compelled to hire counsel to enforce and protect their rights. However, in view of the complexity
of the legal issue involved, the Court resolves not to grant attorney's fees.

WHEREFORE, the instant petition is DISMISSED. The Temporary Restraining Order we issued on 16 May
1991 is accordingly LIFTED and SET ASIDE. Executive Order No. 450 and Department Order No. 9 of the
Department of Labor and Employment are SUSTAINED. Accordingly, Letter of Instruction No. 1190 is
declared REPEALED and SUPERSEDED by Executive Order No. 450.

JMM PROMOTION AND MANAGEMENT, INC. v. CA 260 SCRA 319 August 5, 1996
(CASE DIGEST)

CONSTITUTIONAL LAW II

FUNDAMENTAL POWERS OF THE STATE

POLICE POWER

JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL INC.,

petitioner, v. HONORABLE COURT OF APPEALS, HON. MA. NIEVES
CONFESSOR, then Secretary of the Department of Labor and Employment,
HON. JOSE BRILLANTES, in his capacity as acting Secretary of the
Department of Labor and Employment and HON. FELICISIMO JOSON, in his
capacity as Administrator of the Philippine Overseas Employment
Administration, respondents.

G.R. No. 120095. August 5, 1996

KAPUNAN, J.:

FACTS:

The Federation of Entertainment Talent Managers of the Philippines (FETMOP for

brevity) filed a class suit on January 27, 1995 assailing that the Department Order
No. 3 which establishes various procedures and requirements for screening
performing artists under a new system of training, testing, certification and
deployment of the former and other related issuance, principally contending that
the said orders, 1.)violated the constitutional right to travel; 2.) abridged existing
contracts for employment; and 3.) deprived individual artists of their licenses
without due process of law. FETMOP also averred that the issuance of the Artist
Record Book (ARB) was discriminatory and illegal and in gross violation of the
constitutional right to life liberty and property. FETMOP prayed for the issuance of
the writ of preliminary injunction against the orders.

JMM Promotion and Management, Inc. (JMM for brevity) and Kary International, Inc.
(Kary for brevity) filed a motion for intervention in the civil case which was granted
by the trial court on February 15, 1995. However, on February 21, 1995, the trial
court issued an order denying petitioner's prayer for writ of
preliminary injunction and dismissed the compliant. An appeal was made to the trial
court regarding its decision but it was also however, dismissed. As a consequences,
ARB requirement was issed. The Court of Appeals upheld the trial court's decision
and concluded that the said issuance constituted a valid exercise of Police power.

ISSUE:

Whether or not the the said issuance is a valid exercise of Police Power.

RULING:

Yes, the ARB requirement and questioned Department Order related to its issuance
were issued by the Secretary of Labor pursuant to a valid exercise of Police Power
by the State. The proper regulation of a profession, calling, business or trade has
always been upheld as a legitimate subject of a valid exercise of police power by
the state particularly when their conduct afffects either the execution of a
legitimate governmental functions, the preservation of the State, the public health
and welfare and public morals. According to the maxim sic utere tuo ut alienum non
laedas (use your property in such a fashion so as to not disturb others) it must of
course be within the legitimate range of legislative action to define the mode and
manner in which every one may so use his own property so as not to pose injury to
himself or others.

In any case, where the liberty curtailed affects at most the right of property, the
permissible scope of regulatory measures is certainly much wider. To pretend that
licensing or accreditation requirements violates due process clause is to ignore the
settled practice, under the mantle of the police power, of regulating entry to the
practice of various trades or profession. Professional leaving for abroad are required
to pass rigid written and practical exams before they are deemed fit to practice
their trade. It is not claimed that these requirements pose an unwarranted

deprivation of a property right under the due process clause. So long as

professionals and other workers meet reasonable regulatory standards no
such deprivation exists.
ROBLE ARRASTRE, INC., Petitioner,
vs.
HON. ALTAGRACIA VILLAFLOR and THE HONORABLE COURT OF
APPEALS, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari, assailing the 7 October 1996
Decision1 and the 13 February 1997 Resolution2 of the Court of Appeals in CA-G.R.
SP No. 40621, which reversed and set aside the 29 March 1995 Decision 3 of the
Regional Trial Court (RTC), Branch XVIII, Hilongos, Leyte, in Special Civil Action No.
H-237.
The Antecedents
Petitioner Roble Arrastre, Inc. is a cargo handling service operator, authorized by the
Philippine Ports Authority (PPA) through Permit No. M92-005 to provide and render
arrastre and stevedoring services at the Municipal Port of Hilongos, Leyte, and on all
vessels berthed thereat, from 7 September 1992 to 15 September 1993. 4 For the
years 1992 and 1993, petitioner was granted Business Permits No. 349 and No. 276,
respectively, by respondent Altagracia Villaflor as Municipal Mayor of Hilongos,
Leyte. On 14 December 1993, pending final consideration of petitioners application
for renewal with the PPA Office, Manila, the PPA through its Port Manager Salvador L.
Reyna of the Tacloban Port Management Office issued a 90-day hold-over authority
to petitioner. Stated therein was the proviso that notwithstanding the 90-day period
aforementioned, the authority shall be deemed ipso facto revoked if an earlier
permit/contract for cargo handling services is granted or sooner withdrawn or
cancelled for cause pursuant to PPA Administrative Order No. 10-81. On 27 January
1994, while the 90-day hold-over authority was in effect, petitioner filed with
respondent mayor an application for the renewal of its Business Permit No. 276.
However, the same was denied.
Aggrieved by the denial, petitioner filed with the RTC, a Petition for Mandamus with
Preliminary Mandatory Injunction5 against respondent mayor, raising the primary
ground that the refusal to issue the business license sought for was a neglect to
perform an act which the law enjoins her to do, by virtue of the office she occupies.
According to petitioner, the source of the power of the municipal mayor to issue
licenses is Section 444(b)(3)(iv)6 of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991, which is merely for the purpose of revenue
generation and not regulation, hence, the municipal mayor has no discretion to

refuse the issuance of a business license following the applicants payment or

satisfaction of the proper license fees. 7 Petitioner further alleged that it is the PPA
which is vested with the discretion to determine whether a party can render arrastre
service in a particular port area. 8
In answer thereto, respondent mayor averred, inter alia, that the remedy of
mandamus does not lie as the issuance of the permit sought is not a ministerial
function, but one that requires the exercise of sound judgment and discretion. 9 In
denying petitioners application, respondent mayor invoked Municipal Resolution
No. 93-27,10 passed by the Sangguniang Bayan of Hilongos, Leyte, on 17 March
1993, which prohibits any party which likewise operates shipping lines plying the
route of Cebu to Hilongos and vice versa, from engaging in arrastre and stevedoring
services at the port of Hilongos.11 Respondent mayor asserted that petitioner is
owned and operated by Roble Shipping Lines, a shipping company that operates
along the routes specified in Municipal Resolution No. 93-27; 12hence, effectively
rendering petitioner disqualified from operating an arrastre service therein. 13 Finally,
by way of counterclaim, respondent mayor sought moral and exemplary damages,
attorneys fees and expenses of litigation.14
On 16 May 1994, petitioner filed a Supplemental Petition, 15 contending that
subsequent to the filing of the Petition for Mandamus with the RTC, it was granted
by the PPA a five-year contract16 to provide cargo handling and other related
services at the Port of Hilongos, Leyte, effective 1 March 1994. The aforesaid
contract was indorsed by the District Manager for the Visayas to the Port Manager of
Tacloban. Moreover, petitioner sought to incorporate the five-year contract as an
integral part of its Petition. The Supplemental Petition was admitted by the RTC, in
the Order17 dated 19 July 1994.
On 19 September 1994, the RTC issued a Pre-Trial Order containing the following
admitted stipulations of facts, to wit:
1. That petitioner in 1993 was issued a Mayors Permit No. 276 on January 29, 1993,
[as] shown by Annex "B" of the petition;
2. [That petitioner paid] for Business and License Permit for the year 1994 in the
amount of P9,789.48 under Official Receipt No. 7534455-C;
3. [That petitioner procured a] Barangay Clearance. 18
In the same Order, the RTC denied the parties motion that the case be submitted
on the pleadings since no judgment on the pleadings could be had as there were
controverted issues material to the case.19
The Ruling of the RTC
The RTC opined that the PPA has the sole authority to grant permits in the operation
of cargo handling services in all Philippine ports, whether public or private.

Proceeding therefrom, it ruled that the refusal of respondent mayor to approve

petitioners application for renewal of the business permit was not based on law nor
upon her discretion.
The RTC ratiocinated in this wise, thus:
As can be read the resolution is to object to the approval of a five (5) year
management contract for Arrastre and Stevedoring Services in the port of Hilongos,
Leyte, applied by the Roble Arrastre, Inc. with the concomitant reason that the
Sangguniang Bayan finds it logical and ethical not to grant any permit to any group
or corporation in the municipal port of Hilongos who are operators of Shipping Lines
flying (sic) the route from Cebu to Hilongos and vice-versa to protect the business
interest of the shipping industry of the municipality. This resolution is signed by the
Municipal Vice Mayor as Presiding Officer of Sangguniang Bayan and approved by
the Mayor. To the mind of the court the approval of the Mayor in a resolution by the
Sangguniang Bayan is superfluous. This is not an ordinance that should be signed
by the mayor in order to become effective as a law but a resolution of that august
body. The above resolution was approved on March 17, 1993 not withstanding (sic)
the fact that as shown by the wordings thereat there was already a public hearing
conducted by PPA Manila on March 9, 1993 at the Municipal Multi[-] Purpose Center.
The Municipal Mayor was present and complaints were entertained by the Hearing
Officers from several shippers of Hilongos, Leyte. As appearing also in the lower
portion of the said resolution, the same was furnished PPA Manila and the
respondent admitted that she did not even know whether a copy had been sent by
the Sangguniang Bayan to the concerned offices. Granting that this resolution
reached the General Manager, PPA, Manila, she have (sic) not pursued any action on
the matter nor the Office of the Mayor and the Sangguniang Bayan received any
information of what proper action was taken therein. It is indeed unfortunate that
whatever nature of the complaints which was heard during the public hearing by the
representative of the PPA, it is not shown whether PPA lend (sic) an ear to it. The
fact remains that on March 1, 1994[,] nearly 1 year after this resolution and public
hearing, the petitioner, Roble Arrastre, Inc., was given a contract by PPA who has
the authority under P.D. 87520(sic) to issue the same.
xxxx
x x x The law is clear that under P.D. 875 the sole authority to authorize operation of
cargo handling services in all ports of the Philippines whether public or private is
lodge (sic) with the Philippine Ports Authority. Under the said law the granting of
permits is through the PPA Board carried out by the General Manager or his
assistant. This Court has taken noticed (sic) also that no ordinance had been passed
by the Sangguniang Bayan and approved by the Municipal Mayor of Hilongos, Leyte,
in accordance with the Local Government with regards to the port operation in the
port of Hilongos nor there was [a] showing that the Executive Officer of the
municipality has anything to say on the power and jurisdiction of the PPA in the port

of Hilongos, Leyte. This goes to show that even these public officers knows (sic) the
extent of their power as regards the authority of the PPA.
This Court is of the firmed (sic) belief and so holds that the refusal of the Municipal
Mayor to approve the application for renewal is not based on law nor upon her
discretion. Under the milieu of the case the PPA is authorized and have (sic) the
exclusive jurisdiction over all ports of the Philippines and they (sic) alone can issue
cargo handling contracts.21
Finding for petitioner, the court a quo disposed as follows:
PREMISES CONSIDERED, by preponderance of evidence, this Court give (sic) due
course to this petition of Mandamus in favor of the Roble Arrastre, Inc. and against
the respondent, the Honorable Municipal Mayor of Hilongos sued in her capacity as
a Public Officer and orders her forthwith:
a) To approve the application of Roble Arrastre, Inc. for the year 1994 as he has
already paid the necessary payments in connection therewith albeit the same
permit is now functous officio as this is now 1995. Nevertheless, this approved
permit to be issued by the Mayor shall be a basis for renewal of the said 1994
permit for the year 1995 after payment of due fees required by her office.
Without pronouncement as to costs. The counterclaim of respondent is hereby
dismissed.22
Respondent mayor filed a Motion for Reconsideration thereon, which was denied for
lack of merit by the RTC, in the Order23 dated 25 October 1995.
The Ruling of the Appellate Court
Upon elevation of the case to the Court of Appeals, the appellate court rendered a
Decision dated 7 October 1996, reversing and setting aside the RTC. Moreover, it
entered a new judgment dismissing Special Civil Action No. H-237.
The Court of Appeals ruled that the pursuit of the duty of respondent mayor under
Section 444(b)(3)(iv)24 of the Local Government Code necessarily entails the
exercise of official discretion. Hence, it held that mandamus will not lie to control or
review the exercise of her discretion. Moreover, the Court of Appeals declared that
petitioners main prayer, i.e., to compel respondent mayor to issue a business
license for the year 1994, by the passage of time had already become moot and
academic. On this score, the appellate court declared that the issue is academic.
Courts will not adjudicate moot cases nor hear a case when the object sought is no
longer attainable.
The appellate court pronounced, thus:

Under Section 444(b)(3)(iv), all local chief executive officer (sic) or municipal
mayors are vested with the authority to issue licenses and permits within their
jurisdiction. In the same provision, the mayor may likewise suspend or revoke a
permit for any violation of the conditions upon which the same had been issued,
pursuant to law or ordinance. In effect, under said Section 444(b)(3)(iv), the
municipal governments, thru its chief executive, are endowed with the authority to
exercise police power.
Evidently, the pursuit of its duty under the (sic) police power necessarily entails
exercise of official discretion in order for any local officials to ascertain which will
better serve their constituents who elected them into office. Full discretion must
necessarily be granted them to perform their functions and it will not be sound logic
to simply make them perform purely ministerial functions. And when the discharge
of an official duty requires the exercise of official discretion or judgment, it is never
a ministerial one (Mateo vs. CA, 196 SCRA 280 [1991]).
Furthermore, where the only power given to a municipal corporation or official is to
issue license, as in Section 444 of the Local Government Code, it is clearly
regulatory in nature rather than a revenue raising one. Conclusively, regulation
being the object of the power to issue license and permits the exercise of discretion
by the issuing authority becomes an inescapable prerogative. This could be the very
same reason why business permits and licenses are renewed almost annually in
order that the licensing officials in carrying out their functions could examine and
evaluate availing circumstances and conditions and with the exercise of discretion
determine whether to grant or deny the application or, to revoke a license or permit
already issued. It should also be understood that a municipal license is not a
property such that it is revocable when public interest so requires (Pedro vs.
Provincial Board of Rizal, 56 Phil. 126).25
The dispositive portion of the assailed Decision reads:
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby REVERSED AND
SET ASIDE and a new one entered dismissing Special Civil Action No. [H-]237. No
pronouncement as to costs.26
Petitioner filed a Motion for Reconsideration but the same was denied by the Court
of Appeals in its Resolution dated 13 February 1997.
Hence, the instant Petition.
The Issues
Petitioner, in its Memorandum, presented the following statement of issues, to wit:
I

Whether or not it was valid for the Court of Appeals to have relied on the cases of
Mateo v. Court of Appeals and Pedro v. Provincial Board of Rizal, in ruling that
respondent Mayor had full discretion in issuing or renewing the Business Permit
even after the petitioner duly complied with all documentary requirements and fully
paid the corresponding permit fees.
II
Whether or not the Court of Appeals validly interpreted Section 444, (3) (iv), R.A.
7160, otherwise known as the Local Government Code of 1991, as a grant of police
power and full discretion to the respondent mayor to refuse the issuance of the
permit despite due compliance of all documentary requirements and full payment of
the required permit fees by the petitioner.
III
Whether or not the Court of Appeals validly rendered its Decision when it refused to
apply the precedent in Symaco v. Aquino wherein this Honorable Supreme Court
held that even in the absence of any ordinance granting the respondent Mayor such
discretion, she cannot refuse issuance of the permit if there is prior compliance by
the petitioner with all documentary requirement and full payment of the required
permit fees.
IV
Whether or not the Court of Appeals validly rendered its Decision when it dismissed
the [Petition] allegedly on the ground that it became (sic) moot and academic. 27
The Ruling of the Court
At the outset, we state our concurrence with the Court of Appeals when it entered a
new judgment dismissing Special Civil Action No. H-237 on the ground of mootness.
The appellate court ratiocinated, to wit:
Lastly, it would seem that the main prayer of the complaint, that is, to compel the
respondent mayor to issue a business license for the year 1994, by the passage of
time during which this case pends, had already become moot and academic. A new
application is necessary for the year 1995 and the year 1996 which is about to end.
And in the grant or denial of such application for business permits or licenses, the
respondent mayor must examine closely the circumstances prevailing and again
use her discretion in the exercise of her official function. Accordingly, the issue at
hand is already academic and it is well established that courts will not adjudicate
moot cases nor hear a case when the object sought is not attainable (State vs.
Lambert, 52 W. Va. 248, 43 S. E. 176) and it will decline jurisdiction over moot cases
which must involve only actual interests. (In re: Estate of Caballos, 12 Phil. 271;
Beech vs. Crossfield, 12 Phil. 555).28

Indeed, Courts will not determine a moot question in a case in which no practical
relief can be granted. It is unnecessary to indulge in academic discussion of a case
presenting a moot question as a judgment thereon cannot have any practical legal
effect or, in the nature of things, cannot be enforced. 29 However, we are constrained
to render judgment herein pursuant to our symbolic function of educating the bench
and the bar.30 For another, this case comes within the rule that courts will decide a
question otherwise moot and academic if it is "capable of repetition yet evading
review."31
The crux of the instant controversy is whether respondent mayor can be compelled
by a writ of mandamus to grant petitioners application for a renewal of a business
permit to operate an arrastre service at the Municipal Port of Hilongos in Leyte.
Ostensibly, it is petitioners contention that respondent mayors power to issue
permits as contained in the aforesaid law is ministerial; hence, mandamus lies.
It bears to reiterate this Courts ruling on the nature of the writ of mandamus. The
writ of mandamus serves to compel a respondent who fails to perform a legal duty
or unlawfully excludes another from the enjoyment of an entitled right or office to
do the act required to be done to protect the rights of the petitioner. 32 Otherwise
stated, mandamus is issued to command the performance of a ministerial, but not a
discretionary duty.
With that settled, we make a determination of the nature of the power of
respondent mayor to grant petitioner a permit to operate an arrastre service.
Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of
the Local Government Code of 1991, which provides, thus:
SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this
Code, the Municipal mayor shall:
xxxx
(3) Initiate and maximize the generation of resources and revenues, and apply the
same to the implementation of development plans, program objectives and
priorities as provided for under Section 18 of this Code, particularly those resources
and revenues programmed for agro-industrial development and country-wide
growth and progress, and relative thereto, shall:
xxxx
(iv) Issue licenses and permits and suspend or revoke the same for any violation of
the conditions upon which said licenses or permits had been issued, pursuant to law
or ordinance. (Italics supplied.)

As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue

licenses is pursuant to Section 16 of the Local Government Code of 1991, which
declares:
SEC. 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and
social justice, promote full employment among their residents, maintain peace
and order, and preserve the comfort and convenience of their inhabitants.
Section 16, known as the general welfare clause, encapsulates the delegated police
power to local governments. Local government units exercise police power through
their respective legislative bodies.33 Evidently, the Local Government Code of 1991
is unequivocal that the municipal mayor has the power to issue licenses and permits
and suspend or revoke the same for any violation of the conditions upon which said
licenses or permits had been issued, pursuant to law or ordinance. On this matter,
petitioner maintains that under the Local Government Code of 1991, a suspension
or revocation of permits shall be premised on a finding of violation of the conditions
upon which the permits were issued pursuant to a law or ordinance, which is
independent of the Code itself. Petitioner asseverates further that there was no law
or ordinance that conferred upon the respondent mayor the power to refuse the
issuance of the permit despite compliance of petitioner with all documentary
requirements and payment of all the fees.
First. On petitioners assertion that the power to issue license should be pursuant to
law other than the Local Government Code of 1991, we so hold that the language of
the law did not find the need to distinguish between other laws and that of the Local
Government Code of 1991 itself. When the law does not distinguish, we must not
distinguish.34 Ubi lex non distinguit nec nos distinguere debemus. Hence, even the
Local Government Code of 1991, specifically Section 16 thereof, can be utilized to
determine the bounds of the exercise of the municipal mayor in issuing licenses and
permits.
Second. While we agree with petitioner that there is no ordinance conferring upon
the respondent mayor the power to refuse the issuance of the permit for the
operation of an arrastre service, we are, as yet, unprepared to declare that the
power of the municipal mayor as enunciated under Section 444(b)(3)(iv) is
ministerial. What can be deduced from the aforesaid section is that the limits in the
exercise of the power of a municipal mayor to issue licenses, and permits and

suspend or revoke the same can be contained in a law or an ordinance. Otherwise

stated, a law or an ordinance can provide the conditions upon which the power of
the municipal mayor under Section 444(b)(3)(iv) can be exercised. Section 444(b)(3)
(iv) of the Local Government Code of 1991 takes its cue from Section 16 thereof,
which is largely an exercise of delegated police power. We said:
The general welfare clause is the delegation in statutory form of the police power of
the State to LGUs. Through this, LGUs may prescribe regulations to protect the lives,
health, and property of their constituents and maintain peace and order within their
respective territorial jurisdictions. Accordingly, we have upheld enactments
providing, for instance, the regulation of gambling, the occupation of rig drivers, the
installation and operation of pinball machines, the maintenance and operation of
cockpits, the exhumation and transfer of corpses from public burial grounds, and
the operation of hotels, motels, and lodging houses as valid exercises by local
legislatures of the police power under the general welfare clause. 35
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of
the respondent mayor to issue license and permits is circumscribed, is a
manifestation of the delegated police power of a municipal
corporation.36Necessarily, the exercise thereof cannot be deemed ministerial. As to
the question of whether the power is validly exercised, the matter is within the
province of a writ of certiorari, but certainly, not of mandamus.
It may be true, as argued by petitioner, that Resolution No. 93-27, which was
enacted by the Sangguniang Bayan of Hilongos, is not an ordinance but merely a
resolution. A municipal ordinance is different from a resolution. An ordinance is a
law, but a resolution is merely a declaration of the sentiment or opinion of a
lawmaking body on a specific matter. An ordinance possesses a general and
permanent character, but a resolution is temporary in nature. Additionally, the two
are enacted differently - a third reading is necessary for an ordinance, but not for a
resolution, unless decided otherwise by a majority of all the Sanggunian members.37
However, the fact that Resolution No. 93-27 is a "mere" resolution can do nil to
support petitioners cause. As stated earlier, the proper action is certiorari to
determine whether grave abuse of discretion had been committed on the part of
respondent mayor in the refusal to grant petitioners application. Petitioners
petition for mandamus is incompetent against respondent mayors discretionary
power. Thus:
"Discretion," when applied to public functionaries, means a power or right conferred
upon them by law or acting officially, under certain circumstances, uncontrolled by
the judgment or conscience of others. A purely ministerial act or duty in
contradiction to a discretional act is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment upon the propriety

or impropriety of the act done. If the law imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the discharge of
the same requires neither the exercise of official discretion or judgment. 38
The Fallo
WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 40621, dated 7 October 1996 and 13 February
1997, respectively, dismissing Special Civil Action No. H-237 are AFFIRMED. Costs
against petitioner.
SO ORDERED.