ERMITA-MALATE HOTEL AND MOTEL

OPERATORS ASSOCIATION, INC., HOTEL

DEL MAR INC. and GO CHIU, petitionersappellees,
vs.
THE HONORABLE CITY MAYOR OF
MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office
for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for
intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a
judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of
the City of Manila is violative of the due process
clause. The lower court held that it is and
adjudged it "unconstitutional, and, therefore,
null and void." For reasons to be more

specifically set forth, such judgment must be

reversed, there being a failure of the requisite
showing to sustain an attack against its validity.
The petition for prohibition against Ordinance
No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel
Operators Association, one of its members,
Hotel del Mar Inc., and a certain Go Chiu, who
is "the president and general manager of the
second petitioner" against the respondent
Mayor of the City of Manila who was sued in his
capacity as such "charged with the general
power and duty to enforce ordinances of the
City of Manila and to give the necessary orders
for the faithful execution and enforcement of
such ordinances." (par. 1). It was alleged that
the petitioner non-stock corporation is
dedicated to the promotion and protection of the
interest of its eighteen (18) members "operating
hotels and motels, characterized as legitimate
businesses duly licensed by both national and

city authorities, regularly paying taxes,

employing and giving livelihood to not less than
2,500 person and representing an investment of
more than P3 million."1 (par. 2). It was then
alleged that on June 13, 1963, the Municipal
Board of the City of Manila enacted Ordinance
No. 4760, approved on June 14, 1963 by the
then Vice-Mayor Herminio Astorga, who was at
the time acting as Mayor of the City of Manila.
(par. 3).
After which the alleged grievances against the
ordinance were set forth in detail. There was
the assertion of its being beyond the powers of
the Municipal Board of the City of Manila to
enact insofar as it would regulate motels, on the
ground that in the revised charter of the City of
Manila or in any other law, no reference is
made to motels; that Section 1 of the
challenged ordinance is unconstitutional and
void for being unreasonable and violative of due
process insofar as it would impose P6,000.00

fee per annum for first class motels and

P4,500.00 for second class motels; that the
provision in the same section which would
require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or
lodging house to refrain from entertaining or
accepting any guest or customer or letting any
room or other quarter to any person or persons
without his filling up the prescribed form in a
lobby open to public view at all times and in his
presence, wherein the surname, given name
and middle name, the date of birth, the address,
the occupation, the sex, the nationality, the
length of stay and the number of companions in
the room, if any, with the name, relationship,
age and sex would be specified, with data
furnished as to his residence certificate as well
as his passport number, if any, coupled with a
certification that a person signing such form has
personally filled it up and affixed his signature in
the presence of such owner, manager, keeper
or duly authorized representative, with such

registration forms and records kept and bound

together, it also being provided that the
premises and facilities of such hotels, motels
and lodging houses would be open for
inspection either by the City Mayor, or the Chief
of Police, or their duly authorized
representatives is unconstitutional and void
again on due process grounds, not only for
being arbitrary, unreasonable or oppressive but
also for being vague, indefinite and uncertain,
and likewise for the alleged invasion of the right
to privacy and the guaranty against selfincrimination; that Section 2 of the challenged
ordinance classifying motels into two classes
and requiring the maintenance of certain
minimum facilities in first class motels such as a
telephone in each room, a dining room or,
restaurant and laundry similarly offends against
the due process clause for being arbitrary,
unreasonable and oppressive, a conclusion
which applies to the portion of the ordinance
requiring second class motels to have a dining

room; that the provision of Section 2 of the

challenged ordinance prohibiting a person less
than 18 years old from being accepted in such
hotels, motels, lodging houses, tavern or
common inn unless accompanied by parents or
a lawful guardian and making it unlawful for the
owner, manager, keeper or duly authorized
representative of such establishments to lease
any room or portion thereof more than twice
every 24 hours, runs counter to the due process
guaranty for lack of certainty and for its
unreasonable, arbitrary and oppressive
character; and that insofar as the penalty
provided for in Section 4 of the challenged
ordinance for a subsequent conviction would,
cause the automatic cancellation of the license
of the offended party, in effect causing the
destruction of the business and loss of its
investments, there is once again a
transgression of the due process clause.

There was a plea for the issuance of

preliminary injunction and for a final judgment
declaring the above ordinance null and void and
unenforceable. The lower court on July 6, 1963
issued a writ of preliminary injunction ordering
respondent Mayor to refrain from enforcing said
Ordinance No. 4760 from and after July 8,
1963.
In the a answer filed on August 3, 1963, there
was an admission of the personal
circumstances regarding the respondent Mayor
and of the fact that petitioners are licensed to
engage in the hotel or motel business in the
City of Manila, of the provisions of the cited
Ordinance but a denial of its alleged nullity,
whether on statutory or constitutional grounds.
After setting forth that the petition did fail to
state a cause of action and that the challenged
ordinance bears a reasonable relation, to a
proper purpose, which is to curb immorality, a
valid and proper exercise of the police power

and that only the guests or customers not

before the court could complain of the alleged
invasion of the right to privacy and the guaranty
against self incrimination, with the assertion that
the issuance of the preliminary injunction ex
parte was contrary to law, respondent Mayor
prayed for, its dissolution and the dismissal of
the petition.
Instead of evidence being offered by both
parties, there was submitted a stipulation of
facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel
and Motel Operators Association, Inc. and
Hotel del Mar Inc. are duly organized and
existing under the laws of the Philippines,
both with offices in the City of Manila, while
the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and
the intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity to sue
and be sued;

2. That the respondent Mayor is the duly

elected and incumbent City Mayor and chief
executive of the City of Manila charged with
the general power and duty to enforce
ordinances of the City of Manila and to give
the necessary orders for the faithful
execution and enforcement of such
ordinances;
3. That the petitioners are duly licensed to
engage in the business of operating hotels
and motels in Malate and Ermita districts in
Manila;
4. That on June 13, 1963, the Municipal
Board of the City of Manila enacted
Ordinance No. 4760, which was approved
on June 14, 1963, by Vice-Mayor Herminio
Astorga, then the acting City Mayor of
Manila, in the absence of the respondent
regular City Mayor, amending sections 661,
662, 668-a, 668-b and 669 of the
compilation of the ordinances of the City of

Manila besides inserting therein three new

sections. This ordinance is similar to the
one vetoed by the respondent Mayor
(Annex A) for the reasons stated in its 4th
Indorsement dated February 15, 1963
(Annex B);
5. That the explanatory note signed by then
Councilor Herminio Astorga was submitted
with the proposed ordinance (now
Ordinance 4760) to the Municipal Board,
copy of which is attached hereto as Annex
C;
6. That the City of Manila derived in 1963 an
annual income of P101,904.05 from license
fees paid by the 105 hotels and motels
(including herein petitioners) operating in
the City of Manila.
1wph1.t

Thereafter came a memorandum for

respondent on January 22, 1965, wherein
stress was laid on the presumption of the

validity of the challenged ordinance, the burden

of showing its lack of conformity to the
Constitution resting on the party who assails it,
citing not only U.S. v. Salaveria, but likewise
applicable American authorities. Such a
memorandum likewise refuted point by point the
arguments advanced by petitioners against its
validity. Then barely two weeks later, on
February 4, 1965, the memorandum for
petitioners was filed reiterating in detail what
was set forth in the petition, with citations of
what they considered to be applicable American
authorities and praying for a judgment declaring
the challenged ordinance "null and void and
unenforceable" and making permanent the writ
of preliminary injunction issued.
After referring to the motels and hotels, which
are members of the petitioners association, and
referring to the alleged constitutional questions
raised by the party, the lower court observed:
"The only remaining issue here being purely a

question of law, the parties, with the nod of the

Court, agreed to file memoranda and thereafter,
to submit the case for decision of the Court." It
does appear obvious then that without any
evidence submitted by the parties, the decision
passed upon the alleged infirmity on
constitutional grounds of the challenged
ordinance, dismissing as is undoubtedly right
and proper the untenable objection on the
alleged lack of authority of the City of Manila to
regulate motels, and came to the conclusion
that "the challenged Ordinance No. 4760 of the
City of Manila, would be unconstitutional and,
therefore, null and void." It made permanent the
preliminary injunction issued against
respondent Mayor and his agents "to restrain
him from enforcing the ordinance in question."
Hence this appeal.
As noted at the outset, the judgment must be
reversed. A decent regard for constitutional
doctrines of a fundamental character ought to

have admonished the lower court against such

a sweeping condemnation of the challenged
ordinance. Its decision cannot be allowed to
stand, consistently with what has hitherto been
the accepted standards of constitutional
adjudication, in both procedural and substantive
aspects.
Primarily what calls for a reversal of such a
decision is the absence of any evidence to
offset the presumption of validity that attaches
to a challenged statute or ordinance. As was
expressed categorically by Justice Malcolm:
"The presumption is all in favor of validity x x x .
The action of the elected representatives of the
people cannot be lightly set aside. The
councilors must, in the very nature of things, be
familiar with the necessities of their particular
municipality and with all the facts and
circumstances which surround the subject and
necessitate action. The local legislative body, by
enacting the ordinance, has in effect given

notice that the regulations are essential to the

well being of the people x x x . The Judiciary
should not lightly set aside legislative action
when there is not a clear invasion of personal or
property rights under the guise of police
regulation.2
It admits of no doubt therefore that there being
a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the
statute or ordinance is void on its face which is
not the case here. The principle has been
nowhere better expressed than in the leading
case of O'Gorman & Young v. Hartford Fire
Insurance Co.,3 where the American Supreme
Court through Justice Brandeis tersely and
succinctly summed up the matter thus: The
statute here questioned deals with a subject
clearly within the scope of the police power. We
are asked to declare it void on the ground that
the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of

due process of law. As underlying questions of

fact may condition the constitutionality of
legislation of this character, the resumption of
constitutionality must prevail in the absence of
some factual foundation of record for
overthrowing the statute." No such factual
foundation being laid in the present case, the
lower court deciding the matter on the
pleadings and the stipulation of facts, the
presumption of validity must prevail and the
judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that
on its face the ordinance is fatally defective as
being repugnant to the due process clause of
the Constitution. The mantle of protection
associated with the due process guaranty does
not cover petitioners. This particular
manifestation of a police power measure being
specifically aimed to safeguard public morals is
immune from such imputation of nullity resting
purely on conjecture and unsupported by

anything of substance. To hold otherwise would

be to unduly restrict and narrow the scope of
police power which has been properly
characterized as the most essential, insistent
and the least limitable of powers,4extending as
it does "to all the great public needs."5 It would
be, to paraphrase another leading decision, to
destroy the very purpose of the state if it could
be deprived or allowed itself to be deprived of
its competence to promote public health, public
morals, public safety and the genera
welfare.6 Negatively put, police power is "that
inherent and plenary power in the State which
enables it to prohibit all that is hurt full to the
comfort, safety, and welfare of society.7
There is no question but that the challenged
ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The
explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of
facts, speaks of the alarming increase in the

rate of prostitution, adultery and fornication in

Manila traceable in great part to the existence
of motels, which "provide a necessary
atmosphere for clandestine entry, presence and
exit" and thus become the "ideal haven for
prostitutes and thrill-seekers." The challenged
ordinance then proposes to check the
clandestine harboring of transients and guests
of these establishments by requiring these
transients and guests to fill up a registration
form, prepared for the purpose, in a lobby open
to public view at all times, and by introducing
several other amendatory provisions calculated
to shatter the privacy that characterizes the
registration of transients and guests." Moreover,
the increase in the licensed fees was intended
to discourage "establishments of the kind from
operating for purpose other than legal" and at
the same time, to increase "the income of the
city government." It would appear therefore that
the stipulation of facts, far from sustaining any

attack against the validity of the ordinance,

argues eloquently for it.
It is a fact worth noting that this Court has
invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying
a pimp or procurer as a vagrant;8 provide a
license tax for and regulating the maintenance
or operation of public dance halls;9 prohibiting
gambling;10 prohibiting jueteng;11 and
monte;12prohibiting playing of panguingui on
days other than Sundays or legal
holidays;13 prohibiting the operation of pinball
machines;14 and prohibiting any person from
keeping, conducting or maintaining an opium
joint or visiting a place where opium is smoked
or otherwise used,15 all of which are intended to
protect public morals.
On the legislative organs of the government,
whether national or local, primarily rest the
exercise of the police power, which, it cannot be
too often emphasized, is the power to prescribe

regulations to promote the health, morals,

peace, good order, safety and general welfare
of the people. In view of the requirements of
due process, equal protection and other
applicable constitutional guaranties however,
the exercise of such police power insofar as it
may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such
exercise of police power may be considered as
either capricious, whimsical, unjust or
unreasonable, a denial of due process or a
violation of any other applicable constitutional
guaranty may call for correction by the courts.
We are thus led to considering the insistent,
almost shrill tone, in which the objection is
raised to the question of due process.16 There is
no controlling and precise definition of due
process. It furnishes though a standard to which
the governmental action should conform in
order that deprivation of life, liberty or property,
in each appropriate case, be valid. What then is

the standard of due process which must exist

both as a procedural and a substantive
requisite to free the challenged ordinance, or
any governmental action for that matter, from
the imputation of legal infirmity sufficient to spell
its doom? It is responsiveness to the
supremacy of reason, obedience to the dictates
of justice. Negatively put, arbitrariness is ruled
out and unfairness avoided. To satisfy the due
process requirement, official action, to
paraphrase Cardozo, must not outrun the
bounds of reason and result in sheer
oppression. Due process is thus hostile to any
official action marred by lack of
reasonableness. Correctly it has been identified
as freedom from arbitrariness. It is the
embodiment of the sporting idea of fair play.17 It
exacts fealty "to those strivings for justice" and
judges the act of officialdom of whatever branch
"in the light of reason drawn from
considerations of fairness that reflect
[democratic] traditions of legal and political

thought."18 It is not a narrow or "technical

conception with fixed content unrelated to time,
place and circumstances,"19 decisions based on
such a clause requiring a "close and perceptive
inquiry into fundamental principles of our
society."20 Questions of due process are not to
be treated narrowly or pedantically in slavery to
form or phrases.21
It would thus be an affront to reason to
stigmatize an ordinance enacted precisely to
meet what a municipal lawmaking body
considers an evil of rather serious proportion an
arbitrary and capricious exercise of authority. It
would seem that what should be deemed
unreasonable and what would amount to an
abdication of the power to govern is inaction in
the face of an admitted deterioration of the state
of public morals. To be more specific, the
Municipal Board of the City of Manila felt the
need for a remedial measure. It provided it with
the enactment of the challenged ordinance. A

strong case must be found in the records, and,

as has been set forth, none is even attempted
here to attach to an ordinance of such character
the taint of nullity for an alleged failure to meet
the due process requirement. Nor does it lend
any semblance even of deceptive plausibility to
petitioners' indictment of Ordinance No. 4760
on due process grounds to single out such
features as the increased fees for motels and
hotels, the curtailment of the area of freedom to
contract, and, in certain particulars, its alleged
vagueness.
Admittedly there was a decided increase of the
annual license fees provided for by the
challenged ordinance for hotels and motels,
150% for the former and over 200% for the
latter, first-class motels being required to pay a
P6,000 annual fee and second-class motels,
P4,500 yearly. It has been the settled law
however, as far back as 1922 that municipal
license fees could be classified into those

imposed for regulating occupations or regular

enterprises, for the regulation or restriction of
non-useful occupations or enterprises and for
revenue purposes only.22 As was explained
more in detail in the above Cu Unjieng case: (2)
Licenses for non-useful occupations are also
incidental to the police power and the right to
exact a fee may be implied from the power to
license and regulate, but in fixing amount of the
license fees the municipal corporations are
allowed a much wider discretion in this class of
cases than in the former, and aside from
applying the well-known legal principle that
municipal ordinances must not be
unreasonable, oppressive, or tyrannical, courts
have, as a general rule, declined to interfere
with such discretion. The desirability of
imposing restraint upon the number of persons
who might otherwise engage in non-useful
enterprises is, of course, generally an important
factor in the determination of the amount of this
kind of license fee. Hence license fees clearly in

the nature of privilege taxes for revenue have

frequently been upheld, especially in of licenses
for the sale of liquors. In fact, in the latter cases
the fees have rarely been declared
unreasonable.23
Moreover in the equally leading case of Lutz v.
Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court
that taxation may be made to implement the
state's police power. Only the other day, this
Court had occasion to affirm that the broad
taxing authority conferred by the Local
Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a
wide range of subjects with the only limitation
that the tax so levied is for public purposes, just
and uniform.25
As a matter of fact, even without reference to
the wide latitude enjoyed by the City of Manila
in imposing licenses for revenue, it has been
explicitly held in one case that "much discretion

is given to municipal corporations in

determining the amount," here the license fee of
the operator of a massage clinic, even if it were
viewed purely as a police power measure.26 The
discussion of this particular matter may fitly
close with this pertinent citation from another
decision of significance: "It is urged on behalf of
the plaintiffs-appellees that the enforcement of
the ordinance could deprive them of their lawful
occupation and means of livelihood because
they can not rent stalls in the public markets.
But it appears that plaintiffs are also dealers in
refrigerated or cold storage meat, the sale of
which outside the city markets under certain
conditions is permitted x x x . And surely, the
mere fact, that some individuals in the
community may be deprived of their present
business or a particular mode of earning a living
cannot prevent the exercise of the police power.
As was said in a case, persons licensed to
pursue occupations which may in the public
need and interest be affected by the exercise of

the police power embark in these occupations

subject to the disadvantages which may result
from the legal exercise of that power."27
Nor does the restriction on the freedom to
contract, insofar as the challenged ordinance
makes it unlawful for the owner, manager,
keeper or duly authorized representative of any
hotel, motel, lodging house, tavern, common
inn or the like, to lease or rent room or portion
thereof more than twice every 24 hours, with a
proviso that in all cases full payment shall be
charged, call for a different conclusion. Again,
such a limitation cannot be viewed as a
transgression against the command of due
process. It is neither unreasonable nor arbitrary.
Precisely it was intended to curb the opportunity
for the immoral or illegitimate use to which such
premises could be, and, according to the
explanatory note, are being devoted. How could
it then be arbitrary or oppressive when there
appears a correspondence between the

undeniable existence of an undesirable

situation and the legislative attempt at
correction. Moreover, petitioners cannot be
unaware that every regulation of conduct
amounts to curtailment of liberty which as
pointed out by Justice Malcolm cannot be
absolute. Thus: "One thought which runs
through all these different conceptions of liberty
is plainly apparent. It is this: 'Liberty' as
understood in democracies, is not license; it is
'liberty regulated by law.' Implied in the term is
restraint by law for the good of the individual
and for the greater good of the peace and order
of society and the general well-being. No man
can do exactly as he pleases. Every man must
renounce unbridled license. The right of the
individual is necessarily subject to reasonable
restraint by general law for the common good x
x x The liberty of the citizen may be restrained
in the interest of the public health, or of the
public order and safety, or otherwise within the
proper scope of the police power."28

A similar observation was made by Justice

Laurel: "Public welfare, then, lies at the bottom
of the enactment of 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 subjected to all kinds of
restraints and burdens, in order to secure the
general comfort, health, and prosperity of the
state x x x To this fundamental aim of our
Government the rights of the individual are
subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be
made to prevail over authority because then
society will fall into anarchy. Neither should
authority be made to prevail over liberty
because then the individual will fall into slavery.
The citizen should achieve the required balance
of liberty and authority in his mind through
education and personal discipline, so that there
may be established the resultant equilibrium,

which means peace and order and happiness

for all.29
It is noteworthy that the only decision of this
Court nullifying legislation because of undue
deprivation of freedom to contract, People v.
Pomar,30 no longer "retains its virtuality as a
living principle. The policy of laissez faire has to
some extent given way to the assumption by
the government of the right of intervention even
in contractual relations affected with public
interest.31 What may be stressed sufficiently is
that if the liberty involved were freedom of the
mind or the person, the standard for the validity
of governmental acts is much more rigorous
and exacting, but where the liberty curtailed
affects at the most rights of property, the
permissible scope of regulatory measure is
wider.32 How justify then the allegation of a
denial of due process?
Lastly, there is the attempt to impugn the
ordinance on another due process ground by

invoking the principles of vagueness or

uncertainty. It would appear from a recital in the
petition itself that what seems to be the
gravamen of the alleged grievance is that the
provisions are too detailed and specific rather
than vague or uncertain. Petitioners, however,
point to the requirement that a guest should
give the name, relationship, age and sex of the
companion or companions as indefinite and
uncertain in view of the necessity for
determining whether the companion or
companions referred to are those arriving with
the customer or guest at the time of the registry
or entering the room With him at about the
same time or coming at any indefinite time later
to join him; a proviso in one of its sections
which cast doubt as to whether the
maintenance of a restaurant in a motel is
dependent upon the discretion of its owners or
operators; another proviso which from their
standpoint would require a guess as to whether
the "full rate of payment" to be charged for

every such lease thereof means a full day's or

merely a half-day's rate. It may be asked, do
these allegations suffice to render the ordinance
void on its face for alleged vagueness or
uncertainty? To ask the question is to answer it.
From Connally v. General Construction
Co.33 to Adderley v. Florida,34 the principle has
been consistently upheld that what makes a
statute susceptible to such a charge is an
enactment either forbidding or requiring the
doing of an act that men of common intelligence
must necessarily guess at its meaning and
differ as to its application. Is this the situation
before us? A citation from Justice Holmes would
prove illuminating: "We agree to all the
generalities about not supplying criminal laws
with what they omit but there is no canon
against using common sense in construing laws
as saying what they obviously mean."35
That is all then that this case presents. As it
stands, with all due allowance for the

arguments pressed with such vigor and

determination, the attack against the validity of
the challenged ordinance cannot be considered
a success. Far from it. Respect for
constitutional law principles so uniformly held
and so uninterruptedly adhered to by this Court
compels a reversal of the appealed decision.
Wherefore, the judgment of the lower court is
reversed and the injunction issued lifted
forthwith. With costs.