DOJ Opinion No. 040, s. 1980

DOJ OPINION NO. 040 , s. 1980 March 13, 1980 Maj. Gen. Fabian C. Ver Director General National Intelligence and Security Authority Quezon City Sir : This has reference to your request for opinion on the "validity/legality" of a 1967 municipal ordinance of Torrijos, Marinduque regulating the exportation of large cattle outside the jurisdiction of said municipality, of a 1977 ordinance of the said municipality prohibiting for three years the shipping or carrying of cows, carabaos and pigs or piglets out of the municipality for the purpose of carrying such animals out of the Province of Marinduque and of an Executive Order issued in 1974 by the Provincial Governor of Marinduque declaring a "state of crisis" in the supply of carabaos, cows and pigs in Marinduque and temporarily banning the shipment of said animals outside the province. Although the Ministry of Justice, in line with established precedents, does not opine on the validity of duly enacted legislative acts of local governments which are presumed valid and enforceable until declared otherwise by the appropriate court/s or until superseded or repealed by the enacting authority (Ops. of the Secretary of Justice No. 302, s. 1956; Nos. 20 and 193, s. 1961), we wish to cite precedents on the matter and pertinent provision of law which might help guide you in the course of action you may decide to take in the premises. Regarding the first above-cited ordinance which imposes "a fee of P2.00 for every head of large cattles that will be exported" or shipped out of said municipality, to be paid to the municipal treasurer or his authorized representative, we are inviting attention to the case of Panaligan, et al. vs. City of Tacloban, 102 Phil. 1162, [1957],. involving certain ordinances of the City of Tacloban "imposing inspection fees of two pesos for each hog, ten pesos for each cattle and twenty pesos for each carabao transported to other places and penalties for the violation therefore". In declaring the said ordinances null and void, the Supreme Court held: ". . . a close scrutiny of the ordinances complained of reveals that the fees therein imposed are not, by reason of the services performed by the Mayor or the Veterinary Officer, but is an imposition on every head of the specified animals to be transported . The fact that the ordinance in question make no reference to the purpose for which they were enacted, and that such purpose was to preserve the public health or welfare of the residents and people of the City of Tacloban is a clear indication that leads us to believe that the fees exacted were not as a regulatory measure in the exercise of its police power, but for the purpose of raising revenue under the guise of license or inspection fees. cdll "In order that an act or ordinance imposing an excise or license tax may be sustained as a valid exercise of the police power, it must be intended to promote or be sufficiently related to the public health, morals, safety or welfare. An act or ordinance imposing a license or license tax under the police power as a means of regulation is valid only when it is within the limits or such power and is intended for regulation, otherwise, it is invalid as where the license or tax is unnecessarily imposed on an occupation or business not inherently subject to police regulation (Southwest Utility Ice Co. vs. Liebmann, 52 F. 2d 349), for an act or ordinance imposing a license or license tax for revenue purposes, under the guise of a police or regulatory measure, is invalid (Southern Fruit Co. vs. Porter, 199 S.E. 537)." Again the case of Saldaa vs. City of Iloilo, 104 Phil. 28 [1956] involves an ordinance of the City of Iloilo regulating, during the state of the emergency, the exit from the city of food supply and labor animals in order to avert shortage of the same therein and strictly prohibiting the exportation therefrom of large cattles without paying to the City Treasurer a license fee in the amount of P10 per head. In declaring the said ordinance invalid the Supreme Court held: "In conclusion, we find that the ordinance in question as amended, is ultra vires , enacted beyond the general powers of a municipal corporation and not authorized by the defendant-appellee's charter, and consequently null and void; that the prohibition against taking animals . . . of the City of Iloilo without permit of the Mayor . . . is in restraint of trade and a curtailment of the rights of the owners of said animals to fully sell and of prospective buyers to buy and dispose of them without the city limits in the ordinary course by commerce and trade; that the fees imposed in the said ordinances are in fact taxes not only unauthorized by law . . ., but also in contravention of the provisions of Sections 2287 and 2629 of the Revised Administrative Code which prohibits municipal corporations from imposing any tax in any form upon goods and merchandise carried into or out of the town or city". In this connection, it is noted that the Local Tax Code (P.D. 231) provides in section 5(j) that the exercise of the taxing powers of provinces, cities, municipalities . . . shall not extend to the imposition of " taxes and other impositions upon goods carried into or out of , or passing through, the territorial jurisdictions of local governments in the guise of unreasonable charges for wharfage; use of bridges, or otherwise, or other taxes in any form whatever upon such goods or merchandise ." Regarding subject 1977 municipal ordinance, suffice it to observe that the said ordinance by its express terms was to "remain effective only until December 31, 1979 ." As to subject Executive Order of the Provincial Governor or Marinduque, attention is invited to the general welfare clause found in Section 23 of R.A. No. 5185 (the Decentralization Act of 1967) and in Section 12 of R.A. No. 2264 (the Local Autonomy Act) pursuant to which the local government may exercise its police power to promote the economic condition, social welfare and material progress of the people in the community. Anent your doubt regarding the authority of municipal corporations to enact the ordinances in question in view of the provisions of Republic Act No. 11 already prohibiting the slaughtering of male and female carabaos, horses, mares and cows, it should be observed that R.A. No. 11 prohibits the "slaughtering" of cattle while subject ordinances prohibit the "shipping or carrying" of cattles outside of Torrijos, Marinduque. We might also cite established precedents to the effect that municipal corporations may adopt ordinances upon subjects already covered by general law/s, as long as the former is/are not repugnant to nor in conflict with the latter. Thus, in U.S. vs. Chan Freico, 26 Phil. 89 [1913] an ordinance prohibiting the slaughtering of large cattle without a permit from the mayor, was held valid even if Act No. 1147 of the Philippine Legislature already provided punishment for slaughtering of large cattle without permit; and in U.S. vs. Espiritusanto, 23 Phil. 610 [1912], an ordinance prohibiting the game of jueteng within the territorial limits of the municipality was held valid even if Act No. 1757 of the Philippine Legislature already prohibited the playing of said game. From the foregoing discussion, you may be guided accordingly. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice