Balacuit v. CFI

9/17/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 163
182 SUPREME COURT REPORTS ANNOTATED

Balacuit vs. CFI ofAgusan del Norte
*
No. L-38429. June 30,1988.
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU

CARCEL, petitioners-appellants, vs. COURT OF FIRST
INSTANCE OF AGUSAN DEL NORTE AND BUTUAN
CITY, Branch II, and the CITY OF BUTUAN, respondents-
appellees.
Constitutional Law; Police Power; Rule that the operation of

theaters, cinematographs and other places of public exhibition are
subject to regulation by the municipal council in the exercise of
delegated police power by local government.—In this jurisdiction,
it is already settled that the operation of theaters,
cinematographs and
________________
* EN BANC.
183
VOL. 163, JUNE 30, 1988 183
other places of public exhibition are subject to regulation by the

municipal council in the exercise of delegated police power by the
local government. Thus, in People v. Chari, an ordinance of the
City of Manila prohibiting first run cinematographs from selling
tickets beyond their seating capacity was upheld as constitutional
for being a valid exercise of police power. Still in another case, the
validity of an ordinance of the City of Bacolod prohibiting
admission of two or more persons in moviehouses and other
amusement places with the use of only one ticket was sustained
as a valid regulatory police measure not only in the interest of
http://www.central.com.ph/sfsreader/session/00000165e3312d3e0a7e3be7003600fb002c009e/t/?o=False 1/25
preventing fraud in so far as municipal taxes are concerned but

also in accordance with public health, public safety, and the
general welfare.
Same; Same; Same; Requirements in the exercise ofpolice
power; Determinatiqn ofproper exercise ofpolice power; Subject to
the super vision of courts.—To invoke the exercise of police power,
not only must it appear that the interest of the public generally
requires an interference with private rights, but the means
adopted must be reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon individuals. The
legislature may not, under the guise of protecting the public
interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In
other words, the determination as to what is a proper exercise of
its police power is not final or conclusive, but is subject to the
supervision of the courts.
Same; Same; Same; Ordinance No. 640 penalizing any person,
group ofpersons, entity or corporations engaged in busifiess
ofselling admission tickets to any movie or other public exhibitions,
games, contest to require children between seven (7) and twelve
(12) topayfull payment oftickets intendedfor adults but should
charge only one-half ofthe said ticket, held unreasonable and
notjustified by any necessity for public interest; Reasons.—We
agree with petitioners that the ordinance is not justified by any
necessity for the public interest. The police power legislation must
be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. The
evident purpose of the ordinance is to help ease the burden of cost
on the part of parents who have to shell out the same amount of
money for the admission of their children, as they would for
themselves. A reduction in the price of admission would mean
corresponding savings for the parents; however, the petitioners
are the ones made to bear the cost of these savings. The ordinance
does not only make petitioners suffer the loss of earnings but it
likewise penalizes them for failure to comply with it.
Furthennore, as peti-
184
tioners point out, there will be difficulty in its implementation

because as already experienced by petitioners since the effectivity
of the ordinance, children over 12 years of age tried to pass
offtheir age as below 12 years in order to avail of the benefit of the

ordinance. The ordinance does not provide a safeguard against
this undesirable practice and as such, the respondent City of
Butuan now suggests that birth certificates be exhibited by movie
house patrons to prove the age of children. This is, however, not
at all practicable. We can see that the ordinance is clearly
unreasonable if not unduly oppressive upon the business of
petitioners. Moreover, there is no discernible relation between the
ordinance and the promotion of public health, safety, morals and
the general welfare.
Same; Same; Same; Same; Theater ticket, described and
defined; Right ofthe proprietor of theater to fix the price
ofadmission ticket upheld as against the right ofthe state to
interfere with it.—There are a number of cases decided by the
Supreme Court and the various state courts of the United States
which upheld the right of the proprietor of a theater to fix the
price of an admission ticket as against the right of the state to
interfere in this regard and which We consider applicable to the
case at bar. A theater ticket has been described to be either a
mere license, revocable at the will of the proprietor of the theater
or it may be evidence of a contract whereby, for a valuable
consideration, the purchaser has acquired the right to enter the
theater and observe the performance on condition that he behaves
properly. Such ticket, therefore, represents a right, positive or
conditional, as the case may be, according to the terms of the
original contract of sale. This right is clearly a right of property.
The ticket which represents that right is also, necessarily, a
species of property. As such, the owner thereof, in the absence of
any condition to the contrary in the contract by which he obtained
it, has the clear right to dispose of it, to sell it to whom he pleases
and at such price as he can obtain. So that an act prohibiting the
sale of tickets to theaters or other places of amusement at more
than the regular price was held invalid as conflicting with the
state constitution securing the right of property.
Same; Same; Same; Same; Ordinance No. 640, not a valid
exercise ofpolicepower; Reasons.—Nonetheless, as to the question
of the subject ordinance being a valid exercise of police power, the
same must be resolved in the negative. While it is true that a
business may be regulated, it is equally true that such regulation
must be within the bounds of reason, that is, the regulatory
ordinance must be reasonable, and its provisions cannot be
oppressive amounting to an arbitrary interference with the
business or calling subject of regula-
185
VOL. 163, JUNE 30, 1988 185
tion. A lawful business or calling may not, under the guise of

regulation, be unreasonable interfered with even by the exercise
of police power. A police ineasure for the regulation of the
conduct, control and operation of a business should not encroach
upon the legitimate and lawful exercise by the citizens of their
property rights. The right of the owner to fix a price at which his
property shall be sold or used is an inherent attribute of the
property itself and, as such, within the protection of the due
process clause. Hence, the proprietors of a theater have a right to
manage their property in their own way, to fix what prices of
admission they think most for their own advantage, and that any
person who did not approve could stay away.
Same; Same; Same; Same; Although the presumption is
always in favor ofthe validity ofthe ordinance, such presumption
must be set aside when the invalidity or unreasonablcness appears
on the face of the ordinance itself.—Respondent City of Butuan
argues that the presumption is always in favor of the validity of
the ordinance. This may be the rule but it has already been held
that although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness
appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of
the land, or an act of the legislature, or unless it is against public
policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right. Ordinance No. 640 clearly invades
the personal and property rights of petitioners for even if We
could assume that, on its face, the interference was reasonable,
from the foregoing considerations, it has been fully shown that it
is an unwarranted and unlawful curtailment of the property and
personal rights of citizens. For being unreasonable and an undue
restraint of trade, it cannot, under the guise of exercising police
power, be upheld as valid.
GUTIERREZ, J., concurring:
Constitutional Law; Police Power; Definition ofPolice Power.

—The City of Butuan tries to justify the challenged ordinance by
invoking police 'power. The invocation is improper. The defmitions
of police power, including its exercise based on the general welfare
clause, are emphasized to show that the respondents' arguments
have no merit—"Police power is inherent in the State but not in
municipal corporations. For a municipal corporation to exercise
police power, there must be a legislative grant which necessarily

also sets the limits for the exercise of the power. In the
Philippines, the grant of
186
authority to the municipality to exercise police power is embodied

in Section 2238 of the Revised Administrative Code, otherwise
known as the General Welfare Clause. Chartered cities are
granted similar authority in their respective charters. The
general welfare clause has two branches. The first authorizes the
municipal council to enact such ordinances and make such
regulations not repugnant to law, as may be necessary to carry
into efifect and discharge the powers and duties conferred upon
the municipal council by law. The second branch authorizes the
municipality to enact such ordinances as may be necessary and
proper for the health and safety, promote the prosperity, improve
the morals, peace, good order, comfort, and convenience of the
municipality and inhabitants thereof, and for the protection of
property therein. (U.S. v. Salaveria, 39 Phil. 103)."
Same; Same; Same; No rational basis for classifying children
as a distinct group insofar as paying for admission into a
movichouse is concerned.—I find no rational basis fer classifying
children as a distinct group insofar as paying for admission into a
moviehouse is concerned. There is absolutely no pretense that the
municipal ordinance is intended.to protect children, enhance their
morals, promote their health, safeguard their safety, improve
their education, or otherwise promote the general welfare. In fact,
the effect of the ordinance may be the opposite. With the price of
movie tickets suddenly within the reach of many children, they
may neglect their studies or use money intended for food or school
supplies to enter moviehouses. Movie owners who are compelled
to accept half prices for a newly increased group of young patrons
will be tempted to allow them to enter moviehouses
indiscriminately, including those where scenes of violence, crime,
or even sex are portrayed. Addiction of the young to movie going
is difmitely injurious to their health, The avowed purpose of the
ordinance—to ease the burden of costs for parents who have to
shell out the same amount of money for the admission of their
children as they would for themselves—is not covered by police
power. If the city cannot compel refreshment parlors to charge
half-prices for hamburgers, soft drinks, pizzas, or cakes consumed
by children by what authority can it impose the obligation of
similarly easing parents' burdens upon the owners of

moviehouses?
PETITION for review from the decision of the Court of

First Instance of Agusan del Norte and Butuan City, Br. II.
The facts are stated in the opinion of the Court.

Romeo B. Sanchez, Eduardo Deza Mercado and
Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appellees.
187
VOL. 163, JUNE 30, 1988 187

GANCAYCO, J.:
At issue in the petition for review before Us is the validity

and constitutionality of Ordinance No. 640 passed by the
Municipal Board of the City of Butuan on April 21,1969,
the title and text of which are reproduced below:
"ORDINANCE-640
ORDINANCE PENALIZING ANY PERSON, GROUP OF

PERSONS, ENTITY OR CORPORATION ENGAGED IN THE
BUSINESS OF SELLING ADMISSION TICKETS TO ANY
MOVIE OR OTHER PUBUC EXHIBITIONS, GAMES,
CONTESTS OR OTHER PERFORMANCES TO REQUIRE
CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS
OF AGE TO PAY FULL PAYMENT FOR TICKETSINTENDED
FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF
THE SAID TICKET
xxxx
Be it ordained by the Municipal Board ofthe City ofButuan in
session assembled, that:
SECTION 1—It shall be unlawful for any person, group of
persons, entity, or corporation engaged in the business of selling
admission tickets to any movie or other public exhibitions, games,
contests, or other performances to require children between seven
(7) and twelve (12) years of age to pay full payment for admission
tickets intended for adults but should charge only one-half of the
value of the said tickets.
SECTION 2—Any person violating the proyisions of this
Ordinance shall upon conviction be punished by a fine of not less
than TWO HUNDRED PESOS (P200.00) but not more than SIX
HUNDRED PESOS (P600.00) or an imprisonment of not less than
TWO (2) MONTHS or not more than SIX (6) MONTHS or both
such fme and imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be
imposed upon the Manager, Agent or Representative of such firm
or corporation.
SECTION 3—This ordinance shall take effect upon its
approval."
Petitioners are Carlos Balacuit, Lamberto Tan, and Sergio

Yu Carcel, managers of the Maya and Dalisay Theaters,
the Crown Theater, and the Diamond Theater,
respectively. Ag-
188

grieved by the effect of Ordinance No. 640, they filed a

complaint before the Court of First Instance of Agusan del
Norte and Butuan City docketed as Special Civil Case No.
237 on June 30,1969 praying, interalia, that the subject
ordinance be declared1
unconstitutional and, therefore, void
and unenforceable. 2
Upon motion of the petitioners, a temporary restraining
order was issued on July 14, 1969 by the court a quo
enjoining the respondent City of Butuan 3
and its officials
from enforcing Ordinance No. 640. On July 29,1969,
respondents filed
4
their answer sustaining the validity of
the ordinance.
On January
5
30, 1973, the litigants filed their stipulation
of facts. On6 June 4, 1973, the respondent court rendered
its decision, the dispositive part of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Court hereby

adjudges in favor of the respondents and against the petitioners,
as follows:
1. Declaring Ordinance No. 640 of the City of Butuan

constitutional and valid: Provided, however, that the fine
for a single offense shall not exceed TWO HUNDRED
PESOS, as prescribed in the aforequoted Section 15 (nn) of
Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and
3. Dismissing the complaint, with costs against the
petitioners.
7
SO ORDERED."
8
8
Petitioners filed their motion for reconsideration of the
decision of the court a quo which was denied
9
in a resolution
of the said court dated November 10,1973.
Hence, this petition.
Petitioners attack the validity and constitutionality of
Ordinance No. 640 on the grounds that it is ultra vires and
an
________________
1 Pages 1-8, Record on Appeal.

2 Pages 11-17, supra.
3 Pagesl7-18, supra.
6 Pages 18-28, Rollo.
7 Penned by Judge Vicente B. Echaves, Jr.
8 Pages 35-41, Record on Appeal.
189
VOL. 163, JUNE 30, 1988 189

invalid exercise of police power.

Petitioners contend that Ordinance No. 640 is not within
the power of the Municipal Board to enact as provided for
in Section 15(n) of Republic Act No. 523, the Charter of the
City of Butuan, which states:
"Sec. 15. General powers and duties of the Board.—Except as

otherwise provided by law, and subject to the conditions and
limitations thereof, the Municipal Board shall have the following
legislative powers:
xxxxx
"(n) To regulate and fix the amount of the license fees for the
following; x x x theaters, theatrical performances,
cinematographs, public exhibitions and all other performances
and places of amusements x x x.
"x x x x."
Respondent City of Butuan, on the other hand, attempts to

justify the enactment of the ordinance by invoking the
general welfare clause embodied in Section 15 (nn) of the
cited law, which provides:
"(nn) To enact all ordinances it may deem necessary and proper

for the sanitation and safety, the furtherance of the prosperity,
and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants,
and such others as inay be necessary to carry into effect and
discharge the powers and duties conferred by this Act, and to fix
the penalties for the violation of the ordinances, which shall not
exceed a two hundred peso fine or six months imprisonment, or
both such fine and imprisonment, for a single offense."
We can see from the aforecited Section 15(n) that the power
to regulate and fix the amount of license fees for theaters,
theatrical performances, cinematographs, public
exhibitions and other places of amusement has been
expressly granted to the City of Butuan under its charter.
But the question which needs to be resolved is this: does
this power to regulate include the authority to interfere in
the fixing of prices of admission to these places of
exhibition and amusement whether under its general grant
of power or under the general welfare clause as invoked by
the City?
190

This is the first time this Court is confronted with the

question of direct interference by the local government with
the operation of theaters, cinematographs and the like to
the extent of fixing the prices of admission to these places.
Previous decisions of this Court involved the power to
impose license fees upon businesses of this nature as a
corollary to the power of the local government to regulate
them. Ordinances which required moviehouses or theaters
to increase the price of their admission tickets supposedly
to cover the license fees have been held to be invalid for
these impositions were considered as not merely license
fees but taxes for purposes of revenue and 10
not regulation
which the cities have 11no power to exact, unless expressly
granted by its charter. 12
Applying the ruling in Kwong Sing v. City of Manila,
where the word "regulate" was interpreted to include the
power to control, to govern and to restrain, it would seem
that under its power to regulate places of exhibitions and
amusement, the Municipal Board of the City of Butuan
could make proper police regulations as to the mode in
which the business shall be exercised.
13
13
While in a New York case, an ordinance which
regulates the business of selling admission tickets to public
exhibitions or performances by virtue of the power of cities
under the General City Law "to maintain order, enforce the
laws, protect property and preserve and care for the safety,
health, comfort and general welfare of the inhabitants of
the city and visitors thereto; and for any of said purposes,
to regulate and license occupations" was considered not to
be within the scope of any duty or power implied in the
charter. It was held therein that the power of regulation of
public exhibitions and places of amusement within the city
granted by the charter does not
________________
10 Lacson v. Bacolod City, 4 SCRA 1001; Arong v. Raffman, 98 Phil.

422, citing City of Baguio v. Jose de la Rosa, et al., G.R. No. L8268-70.
11 Eastern Theatrical Company, Inc. v. Victor Antonio, et al., 46 O.G.
(supp.) 30, cited in Arong v. Raffman, supra.
12 41 Phil. 103. See also Samson v. Mayor of Bacolod City, 60 SCRA
267.
13 In re Gilchrist, 181 N.Y.S. 245,110 Misc. Rep. 362.
191
VOL. 163, JUNE 30, 1988 191

carry with it any authority to interfere with the price of

admission to such places or the resale of tickets or tokens of
admission.
In this jurisdiction, it is already settled that the
operation of theaters, cinematographs and other places of
public exhibition are subject to regulation by the municipal
council in the14 exercise of delegated police
15
power by the local
government. Thus, in People v. Chan, an ordinance of the
City of Manila prohibiting first run cinematographs from
selling tickets beyond their seating capacity was upheld as
constitutional for being 16
a valid exercise of police power.
Still in another case, the validity of an ordinance of the
City of Bacolod prohibiting adinission of two or more
persons in moviehouses and other amusement places with
the use of only one ticket was sustained as a valid
regulatory police measure not only in the interest of
preventing fraud in so far as municipal taxes are concerned
but also in accordance with public health, public safety,
and the general welfare.
The City of Butuan, apparently realizing that it has no

authority to enact the ordinance in question under its
power to regulate embodied in Section 15(n), now invokes
the police power as delegated to it under the general
welfare clause to justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it
appear that the interest of the public generally requires an
interference with private rights, but the means adopted
must be reasonably necessary for the accomplishment of 17
the purpose and not unduly oppressive upon individuals.
The legislature may not, under the guise of protecting the
public interest, arbitrarily interfere with private business,
or impose unusual and unnecessary restrictions upon
lawful occupations. In other words, the determination as to
what is a proper exercise of its
_________________
14 Sec. 2238 of the Revised Administrative Code of 1917, as amended,

now found in Sec. 149(a) and Sec. 177(a) of the Local Government Code.
The general welfare clause has been similarly set forth in various city
charters.
15 65 Phil. 611.
16 Samson v. Mayor of Bacolod City, supra.
17 U.S. v. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486;
Kwong Sing v. City of Manila, supra.
192

police power is not final or

18
conclusive, but is subject to the
supervision of the courts.
Petitioners maintain that Ordinance No. 640 violates
the due process clause of the Constitution for being
oppressive, unfair, unjust, confiscatory, and an undue
restraint of trade, and violative of the right of persons to
enter into contracts, considering that the theater owners
are bound under a contract with the film owners for just
admission prices for general admission, balcony and lodge.
In Homeowners' Association of the 19
Philippines, Inc. v.
Municipal Board ofthe City ofManila, this Court held:
'The authority of municipal corporations to regulate is essentially

police power. Inasmuch as the same generally entails a
curtailment of the liberty, the rights and/or the property of
persons, which are protected and even guaranteed by the
Constitution, the exercise of police power is necessarily subject to

a qualification, limitation or restriction demanded by the regard,
the respect and the obedience due to the prescriptions of the
fundamental law, particularly those forming part of the
Constitution of Liberty, otherwise known as the Bill of Rights—
the police power measure must be reasonable. In other words,
individual rights may be adversely affected by the exercise of
police power to the extent only—and only to the extent—that may
be fairly required by the legitimate demands of public interest or
public welfare."
What is the reason behind the enactment of Ordinance No.

640?
A reading of the minutes of the regular session of the
Municipal Board when the ordinance in question was
passed shows that a certain Councilor Calo, the proponent
of the measure, had taken into account the complaints of
parents that for them to pay the full price of admission for
their children is too financially burdensome.
The trial court advances the view that "even if the
subject ordinance does not spell out its raison d'etre, in all
probability the respondents were impelled by the
awareness that children are entitled to share in the joys of
their elders, but that
________________
18 Fabie v. City of Manila, supra.

19 24 SCRA 856.
193
VOL. 163, JUNE 30, 1988 193

considering that, apart from size, children between the

ages of seven and twelve cannot fully grasp the nuance of
movies or other public exhibitions, games, contests or other
performances, the admission
19a
prices with respect to them
ought to be reduced."
We must bear in mind that there must be public
necessity which demands the adoption of proper measures
to secure the ends sought to be attained by the enactment
of the ordinance, and the large discretion is necessarily
vested in the legislative authority to determine not only
what the interests of the public require, but what measures
20
are necessary for the protection of such interests. The
methods or means used to protect the public health,
morals, safety or welfare, must have some relation to the

end in view, for under the guise of the police power,
personal rights and those pertaining to private property
will not be permitted21 to be arbitrarily invaded by the
legislative department.
We agree with petitioners that the ordinance is not
justified by any necessity for the public interest. The police
power legislation must be firmly grounded on public
interest and welfare, and a reasonable
22
relation must exist
between purposes and means. The evident purpose of the
ordinance is to help ease the burden of cost on the part of
parents who have to shell out the same amount of money
for the admission of their children, as they would for
themselves. A reduction in the price of admission would
mean corresponding savings for the parents; however, the
petitioners are the ones made to bear the cost of these
savings. The ordinance does not only make the petitioners
suffer the loss of earnings but it likewise penalizes them for
failure to comply with it. Furthermore, as petitioners point
out, there will be difficulty in its implementation because
as already experienced by petitioners since the effectivity of
the ordinance, children over 12 years of age tried to pass off
their age as below 12 years in order to avail of the benefit
of the ordinance. The ordinance does not provide a
safeguard against this undesirable practice and as such,
the respondent City of
________________
19a Page 25, Rollo.

20 Fabie v. City of Manila, supra.
21 Kirtley v. State, 84 N.E. 2d. 712.
22 Ichong v. Hernandez, 101 Phil. 1151.
194

Butuan now suggests that birth certificates be exhibited by

movie house patrons to prove the age of children. This is,
however, not at all practicable. We can see that the
ordinance is clearly unreasonable if not unduly oppressive
upon the business of petitioners. Moreover, there is no
discernible relation between the ordinance and the
promotion of public health, safety, morals and the general
welfare.
Respondent City of Butuan claims that it was impelled

to protect the youth from the pernicious practice of movie
operators and other public exhibitions promoters or the like
of demanding equal price for their admission tickets along
with the adults. This practice is allegedly repugnant and
unconscionable to the interest of the City in the
furtherance of the prosperity, peace, good order, comfort,
convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for
both children and adults. The petitioners are merely
conducting their legitimate businesses. The object of every
business entrepreneur is to make a profit out of his
venture. There is nothing immoral or injurious in charging
the same price for both children and adults. In fact, no
person is under compulsion to purchase a ticket. It is a
totally voluntary act on the part of the purchaser if he buys
a ticket to such performances.
Respondent City of Butuan claims that Ordinance No.
640 is reasonable and necessary to lessen the economic
burden of parents whose minor children are lured by the
attractive nuisance being maintained by the petitioners.
Respondent further alleges that by charging the full price,
the children are being exploited by movie house operators.
We fail to see how the children are exploited if they pay the
full price of admission. They are treated with the same
quality of entertainment as the adults. The supposition of
the trial court that because of their age children cannot
fully grasp the nuances of such entertainment as adults do
fails to convince Us that the reduction in admission ticket
price is justifiable. In fact, by the very claim of respondent
that movies and the like are attractive nuisances, it is
difficult to comprehend why the municipal board passed
the subject ordinance. How can the municipal authorities
consider the movies an attractive nuisance and yet
encourage parents and children to patronize them by
lowering
195
VOL. 163, JUNE 30, 1988 195

the price of admission for children? Perhaps, there is some

truth to the argument of petitioners that Ordinance No.
640 is detrimental to the public good and the general
welfare of society for it encourages children of tender age to
frequent the movies, rather than attend to their studies in
school or be in their homes.
Moreover, as a logical consequence of the ordinance,

movie house and theater operators will be discouraged from
exhibiting wholesome movies for general patronge, much
less children's pictures if only to avoid compliance with the
ordinance and still earn profits for themselves. For after
all, these movie house and theater operators cannot be
compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and
those which are restricted by censorship laws. So instead of
children being able to share in the joys of their elders as
envisioned by the trial court, there will be a dearth of
wholesome ahd educational movies for them to enjoy.
There are a number of cases decided by the Supreme
Court and the various state courts of the United States
which upheld the right of the proprietor of a theater to fix
the price of an admission ticket as against the right of the
state to interfere in this regard and which We consider
applicable to the case at bar.
A theater ticket has been described to be either a mere
license, revocable at the will of the proprietor of the theater
or it may be evidence of a contract whereby, for a valuable
consideration, the purchaser has acquired the right to
enter the theater and observe the23
performance on condition
that he behaves properly. Such ticket, therefore,
represents a right, positive or conditional, as the case may
be, according to the terms of the original contract of sale.
This right is clearly a right of property. The ticket which
represents that right is also, necessarily, a species of
property. As such, the owner thereof, in the absence of any
condition to the contrary in the contract by which he
obtained it, has the clear right to dispose of it, to sell it to
whom he pleases and at such price as he can
________________
23 Law of the Stage, Screen and Radio by Marchetti, 1939 ed., page 268.
196

24
obtain. So that an act prohibiting the sale of tickets to
theaters or other places of amusement at more than the
regular price was held invalid as conflicting
25
with the state
constitution securing the right
26
of property.
In Collister vs. Hayman, it was held:
"The defendants were conducting a private business, which, even

if clothed with a public interest, was without a franchise to
accommodate the public, and they had the right to control it, the
same as the proprietors of any other business, subject to such
qbligations as were placed upon them by statute. Unlike a carrier
of passengers, for instance, with a franchise from the state, and
hence under obligation to transport anyone who applies and to
continue the business year in and year out, the proprietors of a
theater can open and close their place at will, and no one can
make a lawful complaint. They can charge what they choose for
admission to their theater. They can limit the number admitted.
They can refuse to sell tickets and collect the price of admission at
the door. They can preserve order and enforce quiet while the
performance is going on. They can make it a part of the contract
and condition of admission, by giving due notice and printing the
condition in the ticket that no one shall be admitted under 21
years of age, or that men only or women only shall be admitted, or
that a woman cannot enter unless she is accompanied by a male
escort, and the like. The proprietors, in the control of their
business, may regulate the terms of admission in any reasonable
way. If those terms are not satisfactory, no one is obliged to buy a
ticket or make the contract. If the tenns are satisfactory, and the
contract is made, the minds of the parties meet upon the
condition, and the purchaser impliedly promises to perform it."
In Tyson27 and Bro.—United Theater Ticket Officers, Inc. vs.

Banton, the United States Supreme Court held:
________________
24 Ibid, citing Ex-parte Quarg, 84 Pac. 766, 149 Cal. 79, 80, 5 L.R.A.
(N.S.) 183,117 Am. St. Rep. 115, 9 Ann. Ca. 747; Also, People v. Steele,
231111. 340,344,14 L.RA. (N.S.) 361,121 Am. St. Rep. 321, 83 N.E. 236.
25 Ex-Parte Quarg, supra.
26 76 N.E. 20,183 N.Y. 250,253,1 L.R.A. (N.S.) 1188,11 Am. St. Rep.
740, An. Cas. 344.
27 273 U.S. 418-456.
197
VOL. 163, JUNE 30, 1988 197

Balacuit vs. CFI of Agusan del Norte
"x x x x And certainly a place of entertainment is in no legal sense

a public utility; and quite as certainly, its activities are not such
that their enjoyment can be regarded under any conditions from
the point of view of an emergency.
"The interest of the public in theaters and other places of

entertainment may be more nearly, and with better reason,
assimilated to the like interest in provision stores and markets
and in the rental of houses and apartments for residence
purposes; although in importance it fails below such an interest in
the proportion that food and shelter are of more moment than
amusement or instruction. As we have shown there is no
legislative power to fix the prices of provisions or clothing, or the
rental charges for houses and apartments, in the absence of some
controlling emergency; and we are unable to perceive any
dissimilarities of such quality or degree as to justify a different
rule in respect of amusements and entertainment x x x."
We are in consonance with the foregoing observations and

conclusions of American courts. In this jurisdiction,
legislation had been passed controlling the prices of goods 28
commodities and drugs during periods of29 emergency,
limiting the net profits of public utility as well as
regulating
30
rentals of residential apartments for a limited
period, as a matter of national policy in the interest of
public health and safety, economic security and the general
welfare of the people. And these laws cannot be impugned
as unconstitutional for being violative of the due process
clause.
However, the same could not be said of theaters,
cinematographs and other exhibitions. In no sense could
these businesses be considered public utilities. The State
has not found it appropriate as a national policy to
interfere with the admission prices to these performances.
This does not mean however, that theaters and exhibitions
are not affected with public interest even to a certain
degree. Motion pictures have been considered important
both as a medium for the communication of ideas and
expression of the artistic impulse. Their effects on the
perceptions by our people of issues and public officials or
________________
28 People v. Chuchi, 92 Phil. 977; People v. Dela Cruz, 92 Phil. 906.

29 Alalayan v. National Power Corporation, 24 SCRA 172.
30 B.P. Blg. 877. See also Homeowners' Association of the Philippines,
Inc. v. Municipal Board of Manila, supra.
198
198 SUPREME COURT REBQRTS ANNOTATED

public figures31 as well as the prevailing cultural traits are

considerable. People of all ages flock to movie houses,
games and other public exhibitions for recreation and
relaxation. The government realizing their importance has
seen it fit32 to enact censorship laws to regulate the movie
industry. Their aesthetic entertainment and even
educational values cannot be underestimated. Even police
measures regulating the operation of these businesses have
been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance
being a valid exercise of police power, the same must be
resolved in the negative. While it is true that a business
may be regulated, it is equally true that such regulation
must be within the bounds of reason, that is, the regulatory
ordinance must be reasonable, and its provisions cannot be
oppressive amounting to an arbitrary interferen<?e with
the business or calling subject of regulation. A lawful
business or calling may not, under the guise of regulation,
be unreasonably 33
interfered with even by the exercise of
police power. A police measure for the regulation of the
conduct, control and operation of a business should not
encroach upon the legitimate and 34
lawful exercise by the
citizens of their property rights. The right of the owner to
fix a price at which his property shall be sold or used is an
inherent attribute of the property itself and, 35
as such,
within the protection of the due process clause. Hence, the
proprietors of a theater have a right to manage their
property in their own way, to fix what prices of admission
they think most for their own advantage, 36and that any
person who did not approve could stay away.
Respondent City of Butuan argues that the presumption
is always in favor of the validity of the ordinance. This
maybe the rule but it has already been held that although
the presump-
_________________
31 Gonzales v. Kalaw-Katigbak, 137 SCRA 717.

32 P.D. No. 1986, amending R.A. 3060.
33 Ogden City v. Leo, 54 Utah 556,182 P. 530.
34 Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3 SCRA 816.
35 Tyson and Bro.—United Theater Ticket Officers Inc. v. Banton,
supra.
36 Ibid, citing Cliffbrd v. Brandon, 2 Campb. 358, 368.
199
VOL. 163, JUNE 30, 1988 199
tion is always in favor of the validity or reasonableness of

the ordinance, such presumption must nevertheless be set
aside when the invalidity or unreasonableness appears on
the face of
37
the ordinance itself or is established by proper
evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental
law of the land, or an act of the legislature, or unless it is
against public policy or is unreasonable, oppressive, 38
partial, discriminating or in derogation of a common right.
Ordinance No. 640 clearly invades the personal and
property rights of petitioners for even if We could assume
that, on its face, the interference was reasonable, from the
foregoing considerations, it has been fully shown that it is
an unwarranted and unlawful curtailment of the property
and personal rights of citizens. For being unreasonable and
an undue restraint of trade, it cannot, under the guise of
exercising police poweiybe upheld as valid.
WHEREFORE, the decision of the trial court in Special
Civil Case No. 237 is hereby REVERSED and SET ASIDE
and a new judgment is hereby rendered declaring
Ordinance No. 640 unconstitutional and, therefore, null
and void. This decision is immediately executory.
SO ORDERED.
Yap (C.J.,) Narvasa, Cruz, Paras, Padilla, Bidin,

Sarmiento and Grino-Aquino, JJ., concur.
Fernan, Melencio-Herrera, Feliciano and Cortes,
JJ., in the result.
Gutierrez, Jr., J., separate concurring opinion.
Medialdea, J., no part.
GUTIERREZ, JR., J.: Separate opinion
I concur with the majority opinion insofar as it sets aside

and nullifies the questioned ordinance of Butuan City.
________________
37 Morcoin Co. Ltd. v. City of Manila, 1 SCRA 310.

38 Dela Cruz v. Paras, 123 SCRA 569; U.S. v. Salaveria, 39 Phil. 102.
200

The issue before the Court is a simple one. Does Butuan

City have the power to compel theatre owners to charge
only half fares for children below twelve even as they
charge all other moviegoers full prices for admission into
moviehouses?
Instead of nullifying the municipal ordinance through a
broad and sweeping justification of property rights, I
believe, however, that we should do so on a more limited
ground directly bearing on the issue.
I find no rational basis for classifying children as a
distinct group insofar as paying for admission into a
moviehouse is concerned. There is absolutely no pretense
that the municipal ordinance is intended to protect
children, enhance their morals, promote their health,
safeguard their safety, improve their education, or
otherwise promote the general welfare. In fact, the effect of
the ordinance may be the opposite.
With the price of movie tickets suddenly within the
reach of many children, they may neglect their studies or
use money intended for food or school supplies to enter
moviehouses. Movie owners who are compelled to accept
half prices for a newly increased group of young patrons
will be tempted to allow them to enter moviehouses
indiscriminately, including those where scenes of violence,
crime, or even sex are portrayed. Addiction of the young to
movie going is definitely injurious to their health.
The avowed purpose of the ordinance—to ease the
burden of costs for parents who have to shell out the same
amount of money for the admission of their children as
they would for themselves—is not covered by police power.
If the city cannot compel refreshment parlors to charge
half-prices for hamburgers, soft drinks, pizzas, or cakes
consumed by children by what authority can it impose the
obligation of similarly easing parents' burdens upon the
owners of moviehouses?
As discussed by the majority opinion, the legislature
may not, under the guise of protecting the public interest,
arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful
occupations. The imposition enacted by the municipal
board of Butuan City has not been justified by its
proponents as a restriction necessary for public health or
public welfare. No reasonable relationship has been shown
between a valid purpose and the proper means to
201
VOL. 163, JUNE 30, 1988 201
accomplish it.
I hesitate, however, to make a brief for owners of
theatres and expound a laissez faire approach insofar as
their businesses are concerned. Moviehouses may not be
public utilities but as places of entertainment affected with
a certain degree of public interest, they are subject to
reasonable regulation. That regulation is stronger and
more restrictive than that of regular or ordinary
businesses.
The following citation for instance, is pure obiter insofar
as half-prices for minors are concerned:
"x x x lT]he proprietors of a theater can open and close their place
at will, and no one can make lawful complaint. They can charge
what they choose for admission to their theater. They can limit
the number admitted. They can refuse to sell tickets and collect
the price of admission at the door. They can preserve order and
enforce quiet while the performance is going on. They can make it
a part of the contract and a condition of admission, by giving due
notice and printing the condition in the ticket that no one shall be
admitted under 21 years of age, or that men only or women only
shall be admitted, or that a woman cannot enter unless she is
accompanied by a male escort, and the like. The proprietors, in
the control of their business, may regulate the terms of admission
in any reasonable way. If those terms are not satisfactory, no one
is obliged to buy a ticket or make the contract. If the terms are
satisfactory, and the contract is made, the minds of the parties
meet upon the condition, and the purchaser impliedly promises to
perform it." (Collister v. Hayman, 76 N.E. 20,183 N.Y. 250, 253,1
L.R.A. [N.S.] 1188,11 Am. St. Rep. 740, An. Cas. 344).
I see no reason at this time why we should pass upon

situations that are not before us or warn municipal
governments beforehand to avoid enacting certain
regulations when nobody knows exactly what
circumstances may call for those regulations.
For instance,
"A theater ticket has been described to be either a mere license,

revocable at the will of the proprietor of the theater or it may be
evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe
the performance on condition that he behaves properly (Law of
the State.
202

Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket,
therefore, represents a right, positive or conditional, as the case
may be, according to the terms of the original contract of sale.
This right is clearly a right of property. The ticket which
represerjts that right is also, necessarily, a species of property. As
such, the owner thereof, in the absence of any condition to the
contrary in the contract by which he obtained it, has the clear
right to dispose of it, to sell it to whom he pleases and at such
price as he can obtain (Ibids, citing Ex-parte Quarg, 84 Pac.,
766,149 Cal. 79, 80, 5 L.R.A. |N.S. 1,183,117 Am. St. Rep. 115, 9
Ann. Ca. 747; Also People v. Steele, 231,111. 340, 344,14 RA.
[N.S.] 361,121 Am. St. Rep. 321, 83 N.E. 236). x x x."
xxx xxx xxx
"x x x A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the exercise
of police power. (Ogden City v. Leo, 54 Utah 556, 182 P. 530) A
police measure for the regulation of the conduct, control and
operation of a business should not encroach upon the legitimate
and lawful exercise by the citizens of their property rights
(Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3 SCRA 816).
The right of the owner to fix a price at which his property shall be
sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause (Tyson and
Bro.—United Theater Ticket Officers, Inc. v. Banton, supra).
Hence the proprietors of a theater have a right to manage their
property in their own vvay, to fix what prices of admission they
think most for their own advantage, and that any person who did
not approve could stay away (Ibid, citing Clifford v. Brandon, 2
Campb. 358, 368.)."
may be interpreted as carte blanche for movie owners to

practically ignore municipal regulatioii and do as they
please.
More appropriate to my mind is to state that while the
Butuan City ordinance is invalid, it does not necessarily
follow that all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
"In the first place, it must be noted that there can be no doubt
that the City of Manila exercises police power by delegation and
that in the exercise of that power, it is authorized to enact
ordinances for the regulation of the operation of theatres and
cinematographs (sec. 2444(m) and (ee) of the Revised
Administrative Code; U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v.
Pompeya, 31 Phil. 245).
"On April 17,1935, Ordinance No. 2347 was approved. In

section 1 it provides that all first run theatres or cinematographs
should
203
VOL. 163, JUNE 30, 1988 203

register their seating capacity with the City Treasurer, and in

section 1 it prohibits the sale of tickets in said theatres or
cinematographs in excess of their registered seating capacity.
"Before the approval of Ordinance No. 2347, Ordinance No.
2188, approved on July 22, 1933, was in force, section 1 of which
divides cinematographs into three different classes: first, second
and third. The first class includes those located on certain and
specified streets like Rosario, Escolta, etc., which exhibit films for
the first time; those belonging to the second class are those which,
not being located on said streets, also exhibit films for the first
time, and those which, being located on said streets, regularly
show films for the second time or which have the exclusive right
to show secondhand films; and the third class comprehends all
those which are not included in the first and second classes.
x x x x x x x x x
"To the foregoing must be added, and this is of common
knowledge, that the films which are shown for the first time
attract a large attendance, and the theatre or cinematograph,
whether it is first or seeond class, presenting shows for the first
time, would be suffocatingly overcrowded if the number of tickets
were not limited. This is the reason for the prohibition of the sale
of tickets in excess of the seating capacity. The prohibition applies
with equal force wherever the same reason exists, that is, to flrst
and second class theatres which show films for the first time." (at
pp. 612-613)
There being a rational basis for the restriction of sales of

tickets beyond seating capacity, the ordinance is perfectly
valid.
The same is true for the situation found in Samson v.
Mayor ofBacolod City (60 SCRA 274):
"When it is further remembered that insofar as movie houses and

other places of amusement are concerned. (According to Section
17[1] of the City Charter of Bacolod, Commonwealth Act No. 326
[1938]: To regulate and fix the amount of the fees for the
following: xxx theatres, theatrical performances, cinematographs,
public exhibitions, circuses and all other performances and places
of amusements x x x.') the least doubt cannot be entertained as to
the validity of a measure prohibiting a proprietor, lessee or

operator of an amusement place to admit two or more persons
with only one admission ticket, not only in the interest of
preventing fraud insofar as municipal taxes are concerned but
also in accordance with public health, public safety and the
general welfare. (Cf. People v. Chan, 65 Phil.
204

611 [1938]). An American Supreme Court decision, Western Turf

Association v. Greenberg, (204 US 359 [1907] the opinion being
penned by Justice Harlan, is equally illuminating: The statute is
only a regulation of places of public entertainment and
amusement upon terms of equal and exact justice to everyone
holding a tickjet of admission, and who is not, at the time, under
the influence of liquor, or boisterous in conduct, or of lewd and
immoral character. x x x Such a regulation, in itself just, is
likewise promotive of peace and good order among those who
attend places of public entertainment and amusement. It is
neither an arbitrary exertion of the state's inherent or
governmental power, nor a violation of any right secured by the
constitution of the United States." (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance

by invoking police power. The invocation is improper. The
definitions of police power, including its exercise based on
the general welfare clause, are emphasized to show that
the respondents' arguments have no merit—
"Police power is inherent in the State but not in municipal

corporations. For a municipal corporation to exercise police power,
there must be a legislative grant which necessarily also sets the
limits for the exercise of the power.
"In the Philippines, the grant of authority to the municipality
to exercise police power is embodied in Section 2238 of the
Revised Administrative Code, otherwise known as the General
Welfare Clause. Chartered cities are granted similar authority in
their respective charters.
"The general welfare clause has two branches. The first
authorizes the municipal council to enact such ordinances and
make such regulations not repugnant to law, as may be necessary
to carry into effect and discharge the powers and duties conferred
upon the municipal council by law. The second branch authorizes
the municipality to enact such ordinances as may be necessary
and proper for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and convenience

of the municipality and inhabitants therjeof, and for the
protection of property therein. (U.S. v. Salaveria, 39 Phil. 103)."
This Court has generally been liberal in sustaining

municipal action based on the general welfare clause. In
the case before us, however, there appears to be no basis
for sustaining the ordinance even on a generous
interpretation of the general
205
VOL. 163, JUNE 30, 1988 205

Tan Boon Bee & Co., Inc. vs. Jarencio
welfare clause.
Decision reversed and set aside.
Note.—The law authorizing the Philippine Ports

Authority to take over arrastre and stevedoring services in
governmentowned ports and cancel permits issued to
private operators is a valid exercise of police power.
(Pernito Arrastre Services, Inc. vs. Mendoza, 146 SCRA
430.)
——oOo——
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9/17/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 163

182 SUPREME COURT REPORTS ANNOTATED

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU

Constitutional Law; Police Power; Rule that the operation of

VOL. 163, JUNE 30, 1988 183

Balacuit vs. CFI ofAgusan del Norte

other places of public exhibition are subject to regulation by the

preventing fraud in so far as municipal taxes are concerned but

184 SUPREME COURT REPORTS ANNOTATED

Balacuit vs. CFI ofAgusan del Norte

tioners point out, there will be difficulty in its implementation

offtheir age as below 12 years in order to avail of the benefit of the

VOL. 163, JUNE 30, 1988 185

Balacuit vs. CFI ofAgusan del Norte

tion. A lawful business or calling may not, under the guise of

GUTIERREZ, J., concurring:

Constitutional Law; Police Power; Definition ofPolice Power.

police power, there must be a legislative grant which necessarily

186 SUPREME COURT REPORTS ANNOTATED

Balacuit vs. CFI ofAgusan del Norte

authority to the municipality to exercise police power is embodied

similarly easing parents' burdens upon the owners of

PETITION for review from the decision of the Court of

The facts are stated in the opinion of the Court.

VOL. 163, JUNE 30, 1988 187

At issue in the petition for review before Us is the validity

ORDINANCE PENALIZING ANY PERSON, GROUP OF

Petitioners are Carlos Balacuit, Lamberto Tan, and Sergio

188 SUPREME COURT REPORTS ANNOTATED

grieved by the effect of Ordinance No. 640, they filed a

"IN THE LIGHT OF ALL THE FOREGOING, the Court hereby

1. Declaring Ordinance No. 640 of the City of Butuan

1 Pages 1-8, Record on Appeal.

VOL. 163, JUNE 30, 1988 189

invalid exercise of police power.

"Sec. 15. General powers and duties of the Board.—Except as

Respondent City of Butuan, on the other hand, attempts to

"(nn) To enact all ordinances it may deem necessary and proper

190 SUPREME COURT REPORTS ANNOTATED

This is the first time this Court is confronted with the

10 Lacson v. Bacolod City, 4 SCRA 1001; Arong v. Raffman, 98 Phil.

VOL. 163, JUNE 30, 1988 191

carry with it any authority to interfere with the price of

The City of Butuan, apparently realizing that it has no

14 Sec. 2238 of the Revised Administrative Code of 1917, as amended,

192 SUPREME COURT REPORTS ANNOTATED

police power is not final or

'The authority of municipal corporations to regulate is essentially

Constitution, the exercise of police power is necessarily subject to

What is the reason behind the enactment of Ordinance No.

18 Fabie v. City of Manila, supra.

VOL. 163, JUNE 30, 1988 193

considering that, apart from size, children between the

morals, safety or welfare, must have some relation to the

19a Page 25, Rollo.

194 SUPREME COURT REPORTS ANNOTATED

Butuan now suggests that birth certificates be exhibited by

Respondent City of Butuan claims that it was impelled

VOL. 163, JUNE 30, 1988 195