G.R. No. L-34915
June 24, 1983
Facts
The Quezon City government enforced Section 9 of Ordinance No. 6118, S-64 which provides that 6% of the total memorial park cemetery be set aside as charity burials for paupers. Respondent Himalayang Pilipino, Inc. filed a petition seeking to annul Section 9 of the ordinance. The CFI granted the petition. Hence, this appeal.
Petitioners contend that the ordinance is a valid exercise of the police power which is provided for by the general welfare clause under the Charter of Quezon City (RA 5371), to wit:
“to make such further ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein.”
On the other hand, respondent stressed that the general welfare clause is not available as a source of power for the taking of the property in this case because it refers to “the power of promoting the public welfare by restraining and regulating the use of liberty and property.
Issue
Whether or not the ordinance in question is a valid exercise of police power?
Held
No. The power to regulate does not include the power to prohibit and the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery since its violation will result to imprisonment and/or fine as well as revocation of the permit to operate. The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery.
There is no reasonable relation between the setting aside of at least six (6) percent of the total area of all private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. In other words, there is no relation between the ordinance and the general welfare clause. The ordinance is actually a taking without compensation of a certain area from a private cemetery. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.
Hence, petition is DISMISSED.