SAN MIGUEL CORPORATION, PETITIONER, VS. HON. CELSO AVELINO, PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU, BRANCH XIII, AND THE CITY OF MANDAUE, RESPONDENTS.

It is understandable for petitioner San Miguel Corporation to
expect the speedy determination of its claim that the challenged ordinance of
respondent City of Mandaue^[1]
imposing a specific tax should be nullified. 
Hence its concern at the failure of respondent Judge Celso
Avelino of the Court of First Instance of Cebu, Branch XIII, to grant its motion to dismiss on the
ground of lack of jurisdiction a complaint for the collection of such tax filed
by respondent City.  The challenged order
reads as follows:  “Acting on the
[motion to dismiss] filed by the defendant through counsel on October 11, 1974
and the [opposition] thereto filed by the plaintiff through counsel on October
17, 1974, the Court finds no justifiable reason in dismissing the Complaint at
this stage of the proceedings and hereby denies said motion.”^[2]
Offhand, it would not be easy to assail its correctness, manifesting as it does
caution and care in ascertaining the principal question involved in the suit
for the collection of the specific tax, which is its validity.  It is undoubted that under the Constitution,
even the legislative body cannot deprive this Court of its appellate
jurisdiction over all cases coming from inferior courts where the constitutionality
or validity of an ordinance or the legality of any tax, impost, assessment, or
toll is in question.^[3]
Since it is likewise expressly provided in Section 43 of the Judiciary Act that
the original jurisdiction over all civil actions involving the legality of any
tax, impost or assessment appertains to the Court of First Instance,^[4]
it takes a certain degree of ingenuity to allege that the lower court was
bereft of such authority.  Counsel for
petitioner, Attorney Demosthenes B. Gadioma, both in
the petition and in his scholarly and exhaustive memorandum, did seek to impart
plausibility to a suit of this character by relying not so much on the alleged ultra
vires or constitutional infirmity of the
ordinance but rather on the failure of respondent City to follow the procedure
set forth in the Local Tax Code.^[5]
It was contended that there was a finding of invalidity by the then Acting
Secretary of Justice, at present the Acting Minister of Justice, Catalino Macaraig, Jr.  There is inaccuracy in such a
characterization as the actual phrase used by such dignitary is that it
“is of doubtful validity.”^[6]
The argument pressed is that a suit for collection is not the appeal provided
for in the last sentence of Section 47: 
“The decision of the Secretary of Justice shall be final and executory unless, within thirty days upon receipt thereof,
the aggrieved party contests the same in a court of competent
jurisdiction.”^[7] Respondent
City disagrees.  It is its submission that the suit for
collection cannot be viewed other than as an appeal.  The aggrieved party, here respondent City, in
the suit for collection, did definitely contest the correctness of the decision
of the Secretary of Justice in a court of competent jurisdiction – this, even
on the assumption that there was a finding of invalidity.  The statutory purpose is thus satisfied.  Such an action is in accordance with the
traditional and appropriate procedure to test the legality of a statute,
decree, or ordinance.

This Court finds such an approach persuasive.  It conforms to the authoritative principle
that the question of validity is for the judiciary to decide.  As far back as the leading case of Marbury v.  Madison,^[8]
where the American Supreme Court enunciated the principle of judicial review,
Chief Justice Marshall stressed: 
“It is emphatically the province and duty of the judicial
department to say what the law is.”^[9]
That was precisely what was done by respondent City.  It has likewise in its favor the fact that
even the very decision of the Acting Secretary of Justice relied upon did not
squarely rule on the validity of the ordinance but only on its “doubtful
character.” The writs prayed for, certiorari and prohibition,
cannot issue.

The facts are undisputed.  Respondent
City, in accordance with
Presidential Decree No. 231, enacted in 1973, to take effect on January 1, 1974, the challenged
ordinance, otherwise known as the Mandaue City Tax
Code.  The City Treasurer, on April 1, 1974, demanded from
petitioner payment of the said specific tax on the total volume of beer it
produced in the City of Mandaue.  Petitioner, on April 8, 1974, contested the collection of said specific
tax “on the ground that Section 12 (e) (7) in relation to Section 12 (e)
(1) and (2), Mandaue City Ordinance No. 97, is
illegal and void because it imposed a specific tax beyond its territorial
jurisdiction.” The matter was then referred by respondent City to its City
Fiscal, pursuant to such Presidential Decree. 
Its validity was sustained.  Then
came the appeal to the Secretary of Justice, with the then Acting Secretary of
Justice Macaraig, as noted, rendering the opinion
that it is “of doubtful validity.” A suit for collection was there­after
filed by the City where it squarely put in issue the validity of such
ordinance, thus contesting the opinion of the Acting Secretary of Justice.

The crucial issue from the petitioner’s standpoint is whether the
filing of such action after such opinion was rendered may be considered
“an appeal” under the Presidential Decree.  Hence the motion to dismiss by petitioner,
which was denied, respondent Judge finding “no justifiable reason at
[that] stage of the proceedings, “^[10]
resulting in this petition for certiorari and prohibition.

To repeat, the petition must fail.  The writs prayed for cannot be granted.

1. Tersely and bluntly put, petitioner would deny the jurisdiction
of respondent Judge to pass upon the validity of a challenged ordinance in an
appropriate action.  To say the least,
there is unorthodoxy in such an approach. 
What immediately calls attention is its novelty.  It is opposed to and is not in conformity
with the accepted juridical norm that the validity of a statute, an executive
order or ordinance is a matter for the judiciary to decide and that whenever in
the disposition of a pending case such a question becomes unavoidable, then it is
not only the power but the duty of the Court to resolve such a question.  In the pending suit by respondent City,
sought to be dismissed by petitioner corpo­ration, it specifically prayed
“that Ordinance No. 97, Series of 1973, of the herein plaintiff is valid,
legal, and enforceable in accordance with law; * * *.”^[11]
Since both under the Constitution and the Judiciary Act, respondent Judge is
vested with jurisdiction to make such a declaration, it would be, at the very
least, premature for the corrective power of this Tribunal to be interposed,
just because he did not, “at [that] stage of the proceedings,” grant
the motion to dismiss on the allegation that there was lack of
jurisdiction.  The authorities support
squarely the procedure followed by respondent City to remove doubts as to the
validity of the ordinance in question.^[12]
Even more in point are these two decisions with reference to the municipal
power to impose specific taxes on beverages manufactured within its territorial
boundaries, City of Bacolod
v. Gruet,^[13]
and City of Naga
v. Court of Appeals.^[14]
It is worth mentioning that in the first case cited, the entity involved is
petitioner corporation, then known as San Miguel Brewery, Inc., defendant and
appellant Gruet being sued in his capacity as manager
of its Coca-Cola Plant in Bacolod
City.

2. There is this reinforcement to the conclusion reached.  To so construe Section 47 would be to raise a
serious constitutional question.  For it
would in effect bar what otherwise would be a proper case cognizable by a court
precisely in the exercise of the conceded power of judicial review just because
the procedure contended for which is that of an “appeal,” under the
circumstances a term vague and ambiguous, was not followed.  Petitioner may not be sufficiently aware of
the implications of such a proposition. 
It would run counter to the well-settled doctrine that between two
possible modes of construction, the one which would not be in conflict with
what is ordained by the Constitution is to be preferred.  Every intendment of the law should lean
towards its validity, not its invalidity.^[15]
The judiciary, as noted by Justice Douglas, should favor “that
interpretation of legislation which gives it the greater chance of surviving
the test of constitutionality.”^[16]

3. The inherent weakness of this suit for certiorari and
prohibition is likewise discernible from the fact that the then Acting
Secretary of Justice Macaraig limited him­self to a
finding that the ordinance in question was “of doubtful validity.”^[17]
That is far from a categorical declaration of its being repugnant to the
Constitution or its being ultra vires.  That betrays a realization that unless and
until the judiciary speaks in no uncertain terms, the presumption of validity
continues.  Misgivings as to the likelihood
of an alleged infringement of any binding norm do not suffice.  There is this aphorism from Justice
Malcolm:  “To doubt is to
sustain.”^[18]
That is merely to accord recognition to the well-settled and binding doctrine
that only in a very clear case is the judiciary justified in nullifying a
statute, decree, or ordinance.

4. One last word.  The
decision certainly does not extend to any determination by this Court as to the
validity, or lack of it, of the assailed ordinance.  To do so would be, at the very least,
premature.  That is a function for the
lower court to perform.

WHEREFORE, the petition is dismissed.  The hearing of the case before respondent
Judge should be conducted as speedily as circumstances permit.  Costs against petitioner.

Barredo, Antonio, Aquino,
Concepcion, Jr., Santos, and Abad Santos, JJ., concur.

^[1]
Ordinance No. 97, Section 12 (1973).

^[2]
Petition, Annex H.

^[3]
According to Article X, Section 5, par. (2) of the Constitution:  “The Supreme Court shall have the
following powers:  * * * (2) Review and
revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and decrees of
inferior courts in – (a) all cases in which the constitutionality or validity
of any treaty, executive agreement, law, ordinance, or executive order or regu­lation
is in question. (b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto.” Under
the 1935 Constitution, the equivalent provision is found in Article VIII,
Section 2, pars. (1) and (2).

^[4]
Republic Act No. 296, Section 43 (1948).

^[5]
Presidential Decree No. 231, Section 47 (1973).

^[6]
Petition, par. 7 and Annex E.

^[7]
Last sentence of PD 231, Section 47.

^[8] 1
Cranch 137 (1803).

^[9] Ibid,
175.

^[10]
Petition, Annex H.

^[11]
Petition, Annex F.

^[12]
To speak of recent cases alone, the following may be cited:  Yu King v. City of Zamboanga,
L-20406, Dec. 29, 1966, 18 SCRA 1241; Ormoc Sugar
Co., Inc. v. Municipal Board of Ormoc City,
L-24322, July 21, 1967, 20 SCRA 739; Villanueva v. City of Iloilo,
L-26521, Dec. 28, 1968, 26 SCRA 578; Serafica v. Treasurer
or Ormoc City, L-24813, April 28, 1969, 27 SCRA 1108;
Procter and Gamble Trading Co. v. Municipality of Medina, L-29125, Jan.
31, 1972, 43 SCRA 130; City of Bacolod v. Enriquez,
L-27408, July 25, 1975, 65 SCRA 381.

^[13]
117 Phil. 181 (1963).

^[14]
L-24954, August 14, 1968,
24 SCRA 594.

^[15]
Cf. In re Guariña, 24 Phil. 37 (1913); Radiowealth v. Agregardo,
86 Phil. 429 (1950); Sanchez v. Lyon
Construction, 87 Phil. 309 (1950); Uy v. Genato, L-37399, May
29, 1974, 57 SCRA 123.

^[16]
Ex parte Endo, 323 US
283, 300 (1944).

^[17]
Petition, par. 7 and Annex E.

^[18]
Yu Gong Eng v. Trinidad, 47 Phil. 385, 414
(1925).