FIRST
DIVISION
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ROBLE ARRASTRE, INC., Petitioner, - versus
- HON. ALTAGRACIA VILLAFLOR and THE
HONORABLE COURT OF APPEALS, Respondents. |
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G.R. No. 128509 Present: PANGANIBAN, C.J. Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO,
SR., and CHICO-NAZARIO,
JJ. Promulgated: |
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Before Us is a Petition for Review on Certiorari, assailing the 7 October 1996 Decision[1]
and the 13 February 1997 Resolution[2] 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,
Aggrieved
by the denial, petitioner filed with the RTC, a Petition for Mandamus with Preliminary
Mandatory Injunction[5]
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 applicant’s 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 petitioner’s 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;[12]
hence, effectively rendering petitioner disqualified from operating an arrastre
service therein.[13] Finally, by way of counterclaim, respondent
mayor sought moral and exemplary damages, attorney’s fees and expenses of litigation.[14]
On
On
1. That petitioner in 1993 was issued
a Mayor’s Permit No. 276 on
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 petitioner’s 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,
x x x x
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
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 Order[23]
dated
The Ruling of the Appellate Court
Upon elevation of the case to the
Court of Appeals, the appellate court rendered a Decision dated
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
petitioner’s 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
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.
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
petitioner’s application for a renewal of a business permit to operate an
arrastre service at the Municipal Port of Hilongos in
Ostensibly,
it is petitioner’s contention that respondent mayor’s power to issue permits as
contained in the aforesaid law is ministerial; hence, mandamus lies.
It bears to reiterate this Court’s 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:
x x x x
(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:
x x x x
(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 petitioner’s 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.[36] Necessarily, 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 petitioner’s 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 petitioner’s application.
Petitioner’s petition for mandamus is incompetent against respondent
mayor’s 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
SO ORDERED.
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MINITA
V. CHICO-NAZARIO
Associate Justice |
WE CONCUR:
Chief Justice
Chairperson
Associate Justice
Associate Justice
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ROMEO J.
CALLEJO, SR. Associate Justice |
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Pursuant to Article VIII, Section 13
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.
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ARTEMIO V.
PANGANIBAN Chief Justice |
[1] Penned by Associate Justice
Conrado M. Vasquez, Jr. with Associate Justice
(now Supreme Court Associate Justice) Angelina Sandoval-Gutierrez and
Associate Justice Arturo B. Buena, concurring;
Rollo, pp. 25-30.
[2]
[3] Penned
by Judge Vicente M. Aujero; Records, pp. 439-444.
[4]
[5]
[6] SECTION 444. The Chief Executive: Powers, Duties, Functions and Compensation. –
x x x x
(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:
x x x x
(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:
x x x x
(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.
[7] Records, p. 11.
[8]
[9]
[10] Entitled, “Resolution Objecting the
Approval of a Five Year Management Contract for Arrastre and Stevedoring
Services in the
[11] Records, pp. 64-66.
[12] WHEREAS, the Roble Arrastre Inc. applied for a five year contract for arrastre and stevedoring services in the port of Hilongos, [Leyte] with the Philippine Ports Authority;
WHEREAS, a
public hearing had already been conducted by the representatives of PPA Manila
last March 9, 1993 at the
WHEREAS, during the said public hearing, the shippers were able to air their complaints to the hearing officers of the PPA Manila;
WHEREAS, one of the complaints is the bias (sic) services of Roble Arrastre Inc. to the Gabisan Shipping Lines, a competing shipping lines to Roble Shipping Lines serving the routes of Cebu to Hilongos and vice versa;
WHEREAS, Roble Arrastre Inc. and Roble Shipping Lines are owned and managed by the same family;
WHEREAS, the body finds it logical and ethical not to grant a permit to any group or corporation to engage in arrastre and stevedoring services in the municipal port who also have a shipping line flying (sic) the route of Cebu to Hilongos and Hilongos to Cebu in order to protect the business interests of the shipping industry of our municipality;
NOW, THEREFORE; be it
RESOLVED, as it is hereby resolved to object the approval of the
application of Roble Arrastre, Inc. for a five year management contract to
engage in arrastre and stevedoring services in the
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] Erroneously referred to by the RTC as P.D. 875. Should be Presidential Decree No. 857, otherwise known as the “Revised Charter of the Philippine Ports Authority.”
[21] Records, pp. 442-443.
[22]
[23] Penned by Judge Leandro T. Loyao,
Jr.;
[24] Supra note 6.
[25] CA rollo, p. 35.
[26] Rollo,
p. 29.
[27] CA rollo, pp. 100-101.
[28]
[29] Lanuza,
Jr. v. Yuchengco, G.R. No. 157033, 28 March 2005, 454 SCRA 130, 138; See also Gonzales v. Narvasa, 392
Phil. 518, 522 (2000); Villarico v. Court of Appeals, G.R. No. 132115, 4
January 2002, 373 SCRA 23; King v.
Court of Appeals, G.R. No. 158195,
[30] See
Salonga v. Cruz Paño, G.R. No. L-59524,
[31] See
Alunan III v. Mirasol, 342 Phil. 467, 476 (1997).
[32] Reliance
Surety & Insurance Co., Inc. v. Amante, Jr., G.R. No.150994, 30 June
2005, 462 SCRA 399, 415, citing Section 3, Rule 65, Rules of Civil Procedure.
[33] See
City of Manila v. Laguio, Jr., G.R.
No. 118127, 12 April 2005, 455 SCRA 308, 328; Metropolitan Manila Development Authority v. Garin, G.R. No.
130230, 15 April 2005, 456 SCRA 176, 186-187.
[34] Philippine
Telegraph & Telephone Corporation v.
National Labor Relations Commission, G.R. No. 147002, 15 April 2005, 456
SCRA 264, 279.
[35] Batangas
CATV, Inc. v. Court of Appeals, G.R. No. 138810, 29 September 2004, 439
SCRA 326, 338-339.
[36] Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code of 1991, in his annotations to the Local Government Code, p. 49, citing 62 Corpus Juris Secundum Sec. 128, wrote:
“The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals and the general welfare of the community, it is not limited thereto, but it is broadened to deal with conditions which exist so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation.”
[37] Heirs
of Alberto Suguitan v. City of
[38] F.D. Regalado, Remedial Law Compendium, Vol. I, p. 714
(1997), citing Samson v. Barrios, 63
Phil. 198; Lemi v.