DOJ Opinion No. 070, s. 1994

DOJ OPINION NO. 070 , s. 1994 May 5, 1994 The Provincial Prosecutor Surigao del Norte Surigao City Sir : This refers to your request for legal opinion on the sharing of the occupational tax. LLjur The query, it appears has arisen in view of the provisions of Section 3 of Article VIII on Occupational Tax of Provincial Tax Ordinance No. 007, s. 1993 of the Sangguniang Panlalawigan of Surigao del Norte, which state: '"Sec 3. The tax collected under this Article shall be shared as follows: (a) 40% to province (b) 40% to the municipality (c) 20% to the barangay where the mining area is located. You state that the sharing provided for in the above-stated Ordinance is different from the provisions of Section 292 of R.A. 7160 which read as follows: "Sec. 292. Allocation of Shares The share in the preceding Section shall redistributed in the following manner: a) Where natural resources are located in the province: 1) Province twenty percent (20%) 2) Component city (municipality) forty five percent (45%) 3) Barangay thirty five percent (35%) You now inquire as to which of the above-quoted provisions shall be followed by the Municipal Treasurer and the Provincial Treasurer in the allocation of the Occupational Tax. Please be informed that the Secretary of Justice, by established practice and precedents, does not render opinion on queries posed or indorsed by prosecutors in connection with the performance of their duties as legal advisers of the province of city and its officials as the case may be (DOJ Op. No. 56, s. 1974; No. 59, s. 1973; No. 191, s. 1971; No. 73, s. 1984; and No. 227, s. 1988). The instant matter must be properly resolved by your office. Moreover, in expressing our views on the aforesaid request, we will inevitably be passing upon the validity of the Ordinance in question of the Sangguniang Panlalawigan of Surigao del Norte, an issue which the Secretary of Justice invariably refrains from acting upon since its resolution properly belongs to the court (Id., No. 20, s. 1961; No. 13, s. 1977; No. 181, s. 1984; No. 123, s. 1985). An ordinance carries with it the presumption of validity although the question of its reasonableness is open to judicial inquiry (Id., No. 123, s. 1985, supra, citing Victorias Milling Co. vs. Mun. of Victorias, Negros Occidental, 25 SCRA 192). The only instance wherein the Secretary of Justice can review ordinances is when a question regarding constitutionality or legality of local tax ordinances or revenue measures is raised on appeal pursuant to Section 187, Chapter 5 of the Local Government Code of 1991. cdlex Nonetheless, for your information only, we would like to point out that as a rule. Municipal legislations, in order to be valid, must not contravene national laws (Secretary of Justice Opns. No. 187, s. 1961, and No. 23, s. 1973). It is a well-established principle in the law of municipal corporations that the legislative bodies of the municipal corporations, which are mere creations of Congress, may not enact municipal legislations invading or intruding into an area already covered by a statute, or contravening provisions of the same ( Ibid ., No. 77, s. 1971). Very truly yours, (SGD.) FRANKLIN M. DRILON Secretary