Police Power

 The most pervasive and the least limitable of the inherent powers of the State.

• Taxing Power

• Eminent Domain

• Police Power

Answer explanation

Police power is the least limitable of the inherent powers because it enables the state to prohibit all things hurtful to the comfort, safety and welfare of society. The State may interfere with personal liberty, with property, and with business and occupation.

Permanent Closure of roads, alleys, parks or squares falling within the jurisdiction of a local government unit is valid when approved by:

• Majority of all the Sanggunian members

• At least ⅔ of all the Sanggunian members

• More than ⅔ of all the Sanggunian members

• ½ of all the Sanngunian members

Answer explanation

A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of the Sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure is provided. (Sec. 21 (a), LGC).

Case law provides that to be considered as a valid police power measure, an ordinance must pass the two-pronged test. Which of the following correctly refers to the two-pronged test?

• Formal test and informal test

• Procedural test and substantive test

• Formal test and substantive test

• Procedural test and informal test

Answer explanation

As jurisprudence indicates, the tests are divided into the formal (i.e., whether the ordinance was enacted within the corporate powers of the LGU, and whether it was passed in accordance with the procedure prescribed by law), and the substantive (i.e.,involving inherent merit, like the conformity of the ordinance with the limitations under the Constitution and the statutes, as well as with the requirements of fairness and reason, and its consistency with public policy). (Legaspi v City of Cebu)

Various jurisprudence provide that the following are the two tests that are usually applied to police power ordinances: 

• Availability Test and Absence Test of Less Restrictive Measures

• Rational Relation Test and Strict Scrutiny Test

• Governmental Interest Test and Less Restrictive Test

•  Any of those listed

Answer explanation

 To successfully invoke the exercise of police power as the rationale for the enactment of an ordinance and to free it from the imputation of constitutional infirmity, two tests have been used by the Court – the rational relationship test and the strict scrutiny test. (Fernando v. St. Scholastica’s College)

A was applying for a business permit in the Municipality of B. However, the permit application was not granted by Mayor C. According to the Mayor, A was in violation of a policy in subleasing. Aggrieved, A filed a complaint and prayed for the issuance of mandamus to compel the Mayor to issue the business permit. Is Mandamus a proper remedy to compel the Municipal Mayor to issue a business permit?

• No, Mandamus is not the proper remedy because granting business permits is discretionary to the Sangguniang Bayan

• No, Mandamus is not the proper remedy because the acts sought to be done is discretionary in nature being a delegated police power.

• Yes, Mandamus is the proper remedy because the duty to grant a business permit is ministerial in nature since the discharge of the same requires neither official discretion nor judgment.

• No, Mandamus is not the proper remedy because A failed to prove that Mayor C acted wantonly, arbitrarily, fraudulently, and against the interest of the public when he chose to cancel the lease contract of petitioners.

Answer explanation

The exercise of the power to issue business permits is also discretionary in nature being a delegated police power. A mayor cannot, therefore, be compelled by mandamus to issue business permits. (Roble Arrastre Inc. vs Villaflor).

The following are the requisites for permanent closure of any local road, alley, park, or square, except:

• Via ordinance approved by at least 2/3 of all the members of the Sanggunian.

• When necessary, an adequate substitute for the public facility that is subject to closure should be provided.

• Such ordinance must have provisions for compensation. 

• If a freedom park is permanently closed, there must be a provision for its transfer or relocation to a new site. 

Answer explanation

 Such ordinance must have provisions for the maintenance of public safety therein (Sec. 21(b), LGC).

The following statements are true, except:

• Local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress.

• Property withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed.

• A public road may not be the subject of lease or contract, as public roads are properties for public use outside the commerce of man.

• National or local road, alley, park, or square may set temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the local government unit concerned.

Answer explanation

No national or local road, alley, park, or square shall “set” temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the local government unit concerned. (Section 21 (c), LGC).

Which of the following statements is true:

• The exercise of police power is ministerial in nature thus, it can be compelled by mandamus. 

• For the preservation of public health, the municipality is granted police power beyond its boundaries.

• The general rule is that one whose property does not abut (touch or lean) on the closed section of a street has the right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets.

• The exercise of the power to issue business permits is also ministerial in nature being a delegated police power.

Answer explanation

B is true. The corporation boundaries usually mark the limit for the exercise of the police power of the municipality. But in many instances, for the preservation of  public health especially, the municipality is granted police power beyond its boundaries. (Chicago Packing and Provision Co v. City of Chicago)

A is false. The exercise of police power is discretionary in nature thus, it cannot be compelled by mandamus. 

C is false.  The general rule is that one whose property does not abut (touch or lean) on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. (Cabrera v. CA)

D is false. The exercise of the power to issue business permits is also discretionary in nature being a delegated police power.

Which of the following statements is false:

• General welfare ordinances enjoy the presumption of constitutionality.

• Before a law may be struck down as unconstitutional, courts must be certain that there exists a clear and unequivocal breach of the constitution, and not one that is speculative or argumentative.

• The LGUs have the power to grant franchises to operate CATV or Cable Antenna Television systems.

• The general welfare provisions of the Local Government Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community.

Answer explanation

No law specifically authorizing the LGUs to grant franchises to operate CATV or Cable Antenna Television system. Pursuant to Section 3 of E.O. No. 436, "only persons, associations, partnerships, corporations or cooperatives granted a Provisional Authority or Certificate of Authority by the NTC may install, operate and maintain a cable television system or render cable television service within a service area.” (Zoomzat Inc. v People).

Which of the following is not a requisite for a valid municipal ordinance:

• Must not contravene the Constitution or any statute

• Must not be unfair or oppressive

• Must be specific and consistent with public policy

• Must not be unreasonable

Answer explanation

Must be general and consistent with public policy.