VICENTE SAN BUENAVENTURA, PETITIONER AND APPELLEE, VS. MUNICIPALITY OF SAN JOSE, CAMARINES SUR, MAXIMINO ABRAGAN AND STANLEY PEÑA, RESPONDENTS AND APPELLANTS.

This is an appeal from the decision of the Court of First Instance of
Camarines Sur in its Civil Case No. 4860.

The petitioner-appellee, Vicente San Buenaventura, filed in the Court of
First Instance of Camarines Sur a petition for declaratory relief against the
respondents-appellants, Municipality of San Jose, Camarines Sur; Maximino
Abragan; and Stanley Pena; praying that Resolutions Nos. 75, 79 and 80, series
of 1959, of the Municipal Council of said municipality be declared null and void
and without legal effect.

On August 7, 1959 the Municipal Council of the respondent municipality held a
public bidding for the lease of the fishery zones in the municipal water of said
municipality. In that public bidding the respondent Maximino Abragan was
declared the highest bidder of the privilege to catch “bangus” fry in fishery
zones A, B and C, and forthwith he was awarded the lease of said fishery zones
on the basis of his bid of P550.00 for those three fishing zones. Maximino
Abragan immediately commenced to exercise his rights as lessee of the fishery
zones A, B and C. On November 17, 1950 the municipal council of the respondent
municipality of San Jose, acting on a letter of lessee Maximino Abrapan dated
September 10, 1959 requesting for the extension of the lease which was due to
expire on December 31, 1959, passed Resolution No. 75 extending the lease to
June 30, 1960, or an extension of six months. No public bidding of the privilege
to catch “bangus” fry in the fishing zones A, B and C was held before said
extension was granted. Having been elected municipal vice-mayor of the
municipality of San Jose in the elections held on November 10, 1959, Maximino
Abragan, on December 15, 1959, assigned his rights on the lease, as thus
extended by Resolution No. 75, to the respondent Stanley Peña for a
consideration of P550.00. On December 15, 1959 the municipal council of San Jose
passed Resolution No. 79 approving the assignment of the lease rights of
Maximino Abragan to Stanley Peña. On that same day, December 15, 1959, the
municipal council of San Jose approved Resolution No. 80 extending the lease of
the fishery zones A, B and C, then held by Stanley Peña, for a period of five
years beginning July 1, 1960 on a yearly rental of P 550.00 payable within the
first twenty-five days of July every fiscal year. On December 28, 1959 the
Provincial Board of Camarines Sur, by resolution No. 1262, approved Resolutions
Nos. 79 and 80 of the Municipal council of San Jose.

The petitioner-appellee, Vicente San Buenaventura, who ls a resident of San
Jose, Camarines Sur, and a person so interested in acquiring lease rights over
fishery zones A, B and C through a public bidding, considering himself
prejudiced because the lease on those fishing zones was by the respondent
Municipal Council of San Jose without first holding a public bidding, filed a
petition the Court of First Instance of Camarines Sur for declaratory
relief.

The petitioner-appellee maintains that Resolution No. 75 is illegal because
by that resolution the municipal council of San Jose granted an extension of the
lease of fishery zones A, B and C to the respondent Maximino Abragan without
first calling for a public bidding.

Likewise, petitioner-appellee contends that Resolution No. 79 is null and
void and of no legal effect because by that resolution the municipal council of
San Jose approved the assignment to Stanley Peña of the rights of Maximino
Abragan on the extended lease which was illegally granted under Resolution No.
75 above adverted to.

Finally, the petitioner-appellee contends that Resolution No. 80 is null and
void because by that resolution the ‘municipal council of San Jose granted an
extension of the lease of fishery zones A, B and C to the respondent-appellant
Stanly Pena for a period of five years “without public bidding” and without
prior authority from the Provincial Board as required by law.” Evidently the
petitioner had in mind the provisions of Sections 2323 and 2319 of the Revised
Administrative Code of 1917.

On the other hand, the respondents-appellants contend that Resolution No. 75
simply fixed the term of the lease t of fishery zones A, B, and C that was
awarded to Maximino Abragan “to a period not exceeding one year”. that
Resolution No. 79 simply confirmed or approved the assignment to Stanley Peña of
the lease right granted to Maximino Abragan under Resolution No. 75; and that
Resolution No. 80 simply extended the period of the lease ‘ already granted by
virtue of Resolution No. 75 to a period of five years; that Resolutions Nos. 79
and 80 were duly approved by the Provincial Board of Camarines Sur; and that it
was within the powers of the muncipal council of San Jose to adopt those three
resolutions.

The lower court, applying the provisions of Sections 2321, 2323 and 2319 of
the Revised Administrative Code of 1917 as amended, rendered a decision
declaring Resolutions Nos. 75 and 80, series of 1959, of the Municipal Council
of San Jose, Camarines Sur null and void. The lower court found that Resolution
No. 75 extended or prolonged the period of the lease of fishery zones A, B and C
to Maxr imino Abragan after its expiration on Pecember 31, 1959, and in passing
this resolution the municipal council of San Jose violated the provisions of
Sections 2319 of the Administrative Code of 1917. The lower court also declared
Resolution No. 80 of the Municipal Council of San Jose null and void because by
that resolution the municipal council had extended the lease for a period of
five years “without first the municipal council being authorized by the
Provincial Board to do so as required by the provision of Section 2319 of the
same Administrative Code.” The lower court ordered the respondent municipality
of San Jose to Place fishery zones A, B, and C to a new public bidding to
determine the highest bidder who may be awarded the lease of those fishery
zones. Resolution No. 79 was rendered of no legal effect upon the declaration
that Resolution No. 75 was null and void.

From the decision of the lower court the respondents appealed to this Court
and assigned three errors that were aUegedly committed by the lower court, as
follows:

I

THE COURT A QUO ERRED IN HOLDING THAT THE EXPIRATION DATE OF THE AWARD IN
FAVOR OF MAXIMINO ABRAGAN OF FISHERY ZONES A,B, AND C OF THE MUNICIPALITY OF SAN
JOSE FOR CATCHING BANGUS FRY IS DECEMBER 31, 1959.

II

THE COURT A QUO ERRED IN NOT DISMISSING THE PETITIONER’S PETITION FOR NOT
COMPLYING WITH THE PROVISIONS OF RULE 66, SECTION 5 OF THE RULES OF COURT.

III.

THE COURT A QUO ERRED IN NOT DISMISSING THE PETITIONER’ PETITION FOR NOT
COMPLYIMG WITH THE PROVISIONS OF RULE 66, SECTION 5 OF THE RULES OF COURT.

Resolution No. 75 reads as follows:

“RESOLUTION NO. 75

“The awardee, one Maximino Abragan of the fishery zones A, B, &. C,
solely for the purpose of catching bangus fry for propagation purposes, came and
presented to this Hon. Body in session assembled, a letter from him, thru the
kindness of his Attorney Armando B. Cledera, dated Sept. 10, 1959 and another
letter dated Sept. 9, 1959 to his Atty. Armando B. Cledcra, from the Director of
Fishery, Quezon City, confirmed by the District Fishery Officer, copies cf which
are hereto attached, requesting extension or prolongation of the expiration date
of the Awardee’s Fishery areas which is due Dec. 31, 1959, to June 30, I960, for
the catching of bangus fry for propagation purposes is out of season as covered
by the period of the lease awarded to one Maximino Abragan;

“Wherefore, on motion presented by councilor Marcelo Millon seconded by
councilor Doroteo Totanes;

“Resolve, as it is hereby Resolved, to extend or prolong the expiration date
of his lease, the fishing zones, A, B, & C which is due Dec. 31, 1959 to
June 30, 1960 for reasons stated in the awardec’s letter attached hereto;

“Resolved further, that certified copy of this resolution be furnished
Maximino Abragan, San Jose, Camarines Sur, and the Municipal Treasurer, San
Jose, Camarines Sur for their information and guidance.” (Italics
supplied)

It can be gathered from the wording of Resolution No. 75, above quoted, that
the lease right of Maximino Abragan on fishery zones A, B, and C which was
awarded to him on August 7, 1959 was due to expire on December 31. 1959, and
that without said Abragan being first declared the highest bidder in another
public bidding before the expiration of his lease on December 31, 1959 the
Municipal Council granted him an extension of the lease to June 30, 1960, or an
additional period of six months. Resolution No. 80 reads as follows:

RESOLUTION NO. 80

Whereas, prior to the bidding of the fishery zones A, B, & C, solely for
catching bangus fry for preparation purposes, one Stanley Peña has applied for
those areas mentioned above, to lease same from the Municipal Government of San
Jose;

Whereas, Stanley Peña is the present occupant of the above-mentioned zones
exclusively for catching bangus fry, for propagation purposes, evidence by a
certain public document executed by the awardee, Maximino Abragan, in favor of
Stanley Peña;

Whereas, as the present cccupant of the fishery zones A, B, & C, solely
for catching bangus fry, for propagation purposes, the said occupant is very
desirious to lease the above-mentioned for 25 years at P550.00 a year to
commence on July 1, 1960 and so on;

Whereas, it is the wise opinion of this Hon. Body to bolster always the
revenue of taxation for the upliftment of the Municipal Government of San Jose
in particular and the entire Municipality in general.

Wherefore, on motion of councilor Tomas O. Torres, seconded by councilor
Jovito P. Dizon;

Resolve, as it is hereby resolved, to grant the desire of the present
occupant, Stanley Pena, to lease the fishing zones A, B, & C, solely for
catching bangus fry, for propagation purposes for P550,00 yearly, for five (5)
years, payable on the first twenty days of July of every fiscal year.

Resolved further, that copies of this resolution be furnished Stanley Peña
and the Municipal Treasurer, San Jose, Camarines Sur, for their information and
guidance.”

We agree with the ruling of the trial court that Reso-Nos. 75 and 80, series
of 1959, of the Municipal Council of San Jose, Camarines Sur, are null and void
because they are not in accordance with law. The law applicable, (however, is
not the provisions of sections 2321, 2 and 2319 of the Revised Administrative
Code of , as construed by the lower court, but the provisions of Sections 67 and
69 of Oct No. 4003 (Fisheries Act) as amended by Commonwealth Acts Nos. 115 and
471. The three sections of the Revised Administrative Code ot 1917, herein
mentioned, have been modified or amended by the provisions of Sections 67 and 69
of Act 4003 as amended.

The pertinent provisions of sections 2321, 2323 and 2319, which were
construed and applied by the trial court in its decision, are as follows:

“Section 2321. Grant of Fishery.—A municipal council shall have
authority, for purposes of profit, to grant the exclusive privilege of fishery
or right to conduct a fish-breeding ground within any definite portion, or area,
of the municipal waters.

“Section 2323. Restriction upon letting of fisliery to private
party.—When fishery or fish-breeding ground is granted to a private party
as hereinabove authorized the same shall be to the highest bidder in the manner
and subject to the conditions prescribed in section two thousand three hundred
and nineteen hereof.”

“Section 2319. Letting of municipal ferry, market or slaughter’ house to
highest bidder.—When any ferry, market, or slaughterhouse belonging to a
municipality is to be let to a private party, the same shall, unless otherwise
directed by the Department Head, be let to the highest and best bidder for the
period of one year, or, upon the previous approval of the provincial board, for
a longer period not exceeding five years, under such conditions as shall be
prescribed by the Department Head.”

We agree with the finding of the lower court that the award of the lease of
fishery privilege to respondent Maximino Abragran on August 7, 1959 was for a
period that was fixed to terminate on December 31, 1959. It is clearly shown in
Resolution No. 75 that Maximino Abragan had asked for extension of the lease to
June 30, 1960 because the lease would terminate on December 31, 1959. We also
agree with the trial court in its ruling that upon the termination of the lease
on December 31, 1959, the municipal council of San Jose could not extend the
lease without first conducting a public bidding to determine the highest bidder
as required by law.

We, likewise agree with the ruling of the trial court that the respondent
municipal council could not extend the lease of fishery privileges to Stanley
Peña, who was the assignee of the lease rights of the original lessee, Maximino
Abragan, because the lease of fishery privileges for a period of five years must
also be based on a prior public bidding to determine the highest bidder. No
public bidding was held before the lease to Stanley Peña was extended for five
years by the municipal council of San Jose under its Resolution No. 80. The act
of the municipal council of San Jose in extending the lease to Stanley Peña for
five years was tantamount to granting a new lease for a period of five years.
Under the law, the municipal council may lease a fishery zone for a period not
exceeding five years without prior approval of the Provincial Board, but the
basis of said lease must be a public bidding and the fishery must be let to the
highest bidder.

As we have said, the law applicable is the provisions of Sections 67 and 69
of Act 4003 as amended by Commonwealth Acts Nos. 115 and 471, the pertinent
portions of which provisions are as follows:

“Sec. 67. Grant of fishery.—A municipal council shall have
authority, to grant the exclusive privilege of erecting: fish corrals, or
operating fishponds, or taking or catching ‘bangus’ fry, known as ‘kawag-kawag,’
or fry of other species for propagation, within any definite portion, or area,
of the municipal water.”

“Sec. 69. Restriction upon letting of fishery to private party.—
When the privilege to erect fish corrals, construct or operate fishponds, or
oyster culture beds, or take or catch ‘bangus’ fry, known as ‘kawag-kawag’ or of
other species is granted to a private party as hereinabove authorized, the same
shall be let to the highest bidder for a period not exceeding five years, or,
upon the previous approval of the provincial board, for a period not exceeding
ten years; or upon the previous approval of the Secretary of Agriculture and
(Commerce) Natural Resources for a longer period but not exceeding twenty years;
all these grants shall be under such conditions as shall be prescribed by the
Secretary of Agriculture and (Commerce) Natural Resources.”

It will thus be seen that pursuant to the above-quoted provisions of Section
69 of Act No. 4003, as amended, the Municipal Council, even without previous
approval of’ the Provincial Board, may lease the privilege to catch ‘bangus’ fry
for a period not exceeding five years, but this lease must be granted to the
highest bidder after a public bidding. The public bidding is necessarily called
for the purpose of determining the highest bidder of a specific fishery
privilege within a definite portion of the municipal waters, and within a
specific period, mentioned in the call for bids.

In the case now before Us, when the respondent Max-imino Abragan was declared
the highest bidder of fishing zones A, B, and C on August 7, 1959, the Municipal
Council of San Jose was perfectly within its power to lease to him the privilege
to catch ‘bangus’ fry within the said fishing zones for a period not exceeding
five years. Evidently the lease granted to Maximino Abragan was for a period
that would terminate on December 31, 1959. That must be the period of the lease
for which Maximino Abragan offered his bid. The action of the Municipal Council
in fixing the period of lease from August 7 to December 31, 1959, was within its
powers—that is, to grant a lease of fishery privilege for a period not exceeding
five years. Presumably the bidding that was held on August 7, 1959 was for a
privilege to catch ‘bangus’ fry only for a period from August 7, 1959, otherwise
the Council would have fixed a longer period if the bidding held on that day was
intended to lease the privilege for a period that would extend beyond December
31, 1959. Certainly the lessee, Maximino Abragan, would have insisted on a
period beyond December 31, 1959 at the time the lease was awarded to him if the
bidding was for a privilege that would cover a period beyond December 31, 1959.
When the Municipal Council passed Resolution No. 75 extending the period of the
lease for six months after the expiration of the period that was originally
fixed, the act of the Council was tantamount to a grant of a new lease for a
period that did not exceed five years, but this lease should have been made on
the basis of a public bidding first held, where that period was so specified in
the call for bids, and where Maximino Abragan was declared the highest
bidder.

The extension of six months of the lease to Maximinp Abragan under Resolution
No. 75 being null and void, it necessarily follows that Resolution No. 79 of the
municipal council approving the assignment of said lease by Maximino Abragan to
Stanley Peña was also null and void and of no effect.

Again, when the Municipal Council of San Jose approved Resolution No. 80
extending the lease to Stanley Pena for a period of five years without first
conducting a public bidding to determine the highest bidder, the municipal
council had violated the provisions of Section 69 of Act 4003 as amended by
Commonwealth Acts Nos. 115 and 471. It is true that under the provisions of Sec.
69 of Act 4003, as amended, the municipal council may lease fishery privileges
for a period not exceeding five years without the previous approval of the
Provincial Board, but this lease that the municipal council may grant must be
based on a prior public bidding, and the lease must be granted to the highest
bidder. The records show that before the Municipal Council of San Jose approved
Resolution No. 80, no public bidding for the lease of fishery zones A, B, and C
was held. As a matter of fact, Stanley Peña was not a bidder in the public
bidding of said fishery zones that was held on August 7, 1959. Resolution No. 80
simply states that Stanley Peña had applied to lease those three fishery
zones.

This Court had occasion to pass upon a question strikingly similar to the one
involved in the present case. In tne case of Bartolome San Diego vs. The
Municipality of Naujan, Province of Oriental Mindoro, 107 Phil., 118, the
Municipal Council of Naujan, after a public bidding, by Resolution No. 46,
series of 1947, awarded the lease of fishery privileges within its municipal
waters to Bartolome San Diego for a period of five years from January 1, 1948
to December 31, 1952. The lessee requested for a five-year extension of the
original lease period. On December 1, 1951 the Municipal Council of Naujan
adopted Resolution No. 222, series of 1951, extending the lease for another
period of five years beginning January 1, 1952, and the Provincial Board of
Mindoro approved said resolution. On December 29, 1951 the said Municipal
Council approved resolution No. 229 confirming the lease contract executed
pursuant to Resolution No. 222. Those resolution Nos. 222 and 229 were approved
by the members of the Municipal Council of Naujan whose term of office would
expire on December 31,1951. On January 2, 1952 the Municipal Council of Naujan,
composed of a new set of members, adopted Resolution No. 3, series of 1952,
revoking Resolution No. 222; and on the same date the said new Municipal Council
passed Resolution No. 11 revoking Resolution No. 229 of the old Municipal
Council. The lessee, Bartolome San Diego, requested for reconsideration and
recall of Resolution No. 3 on the ground, among others, that it violated the
contract executed between him and the municipality, and, therefore, it was
contrary to Article III, section 1, clause 10 of the Constitution. Upon refusal
of the Municipal Council of Naujan to reconsider its Resolution No. 3, Bartolome
San Diego brought an action in court to declare null and void, for being
unconstitutional said Resolution, No. 3. It was the contention of the Municipal
Council of Naujan that in passing Resolution No. 3 they sought to revoke
Resolution No. 222 which was illegal, because the latter resolution granted to
Bartolome San Diego an extension for a period of five years of the lease of
fishery privileges without first holding a public bidding as required by law.
This Court, in upholding the validity of Resolution No. 3 of the Municipality of
Naujan held:

“For clarity, we have to reiterate that Resolution 222, series of 1951, is an
approval of plaintiff-appellee’s petition for extension for another five year,
effective January 1, 1052, of his five-year lease concession granted under
Resolution 46, series of 1917. Said Resolution 222, however, was revoked by the
municipal council under a new set of members in its Resolution 3, series of
1952, for the reason, among others, that the extension was illegal it having
been granted without competitive public bidding. It is this last-mentioned
resolution that has been declared null and void by the trial court.             
               

“The law (Sec. 2323 of the Revised Administrative Code requires that when the
exclusive privilege of fishery or the right to conduct a fish-breeding ground is
granted to a private party, the same shall be let to the highest bidder in the
same manner as is being done in exploiting a ferry, a market or a slaughterhouse
belonging to the municipality (See Municipality of San Luis vs. Ventura, et al.,
56 Phil 329). The requirement of competitive bidding is for the purpose of
inviting competition and to guard against favoritism, fraud and corruption in
the letting of fishery privileges (See 3 McQuillin, Municipal Corporations, 2nd
Ed. p., 1170; Harles Caslight Co. vs. New York, 33 N.Y. 309; and 2 Dilion,
Municipal Corporations p. 1219).

“There is no doubt that the original lease contract in this case was awarded
to the highest bidder, but the reduction of the rental and the extension of the
term of the lease appear to have been granted without previous public bidding.
In the case of Caltex (Phil.), Inc., et al. vs. Delgado Bros. Inc., et al., 96
Phil. 368 December 29, 1954, the amendment to an arrastre contract was declared
null and void on the ground that it was made without previous public bidding. In
so declaring, this Ccuit has adopted the following opinion:

“* * * it is the opinion of the Court that the eaid agreement executed and
entered into without previous public bidding, is null and void, and cannot
adversely affect the rights of third parties * * * and of the public in general.
The Court agrees with the contention, of counsel for the plaintiffs that the due
execution of a contract after public bidding is a limitation upon the right of
the contracting parties to alter or amend it without another public bidding, for
otherwise what would a public bidding be good for if after the execution of a
contract after public bidding, the contracting parties may alter or amend the
contract or even cancel is, at their will? Public biddings are held for the
protection of the public, and to give the public the best possible advantages by
means of open, competition between the bidders, He who bids or offers the best
terms is awarded the contract subject of the bid, and it is obvious that such
protection and best possible advantages to the public will disappear if the
parties to a contract executed after public bidding may alter or amend it
without another previous public bidding.’

“While in that case we ruled that although the ‘arrastre contract’ therein
questioned authorized the parties to alter or amend any of the terms thereof,
such authority must be considered as being subject to the requirement of
previous public bidding, a formality observed before the original contract was
awarded, with more reason should the rule requiring such public bidding be
strictly applied in the instant case where no such authority to alter or amend
the terms of the contract was reserved.

“Furthermore, it has beon ruled that statutes requiring public bidding apply
to amendments of any contract already executed in compliance with the law where
such amendments alter the original contract in some vital and essential
particular (See More vs. Boston, 148 N. E. 813; 253 Mass. 247). Inasmuch as the
period in the lease is a vital and essential particular to the contract, we
believe that the extension of the lease period in this case, which was granted
without the essential requisite of public bidding, is not in accordance with
law. And it follows that Resolution 222, series of 1051, and the contract
authorized thereby, extending the original five-year lease to another five years
are null and void as contrary to law and public policy.”

It may be noted that this Court applied the provisions of Section 2323 of the
Revised Administrative Code of 1917 in the foregoing decision. We believe,
however, that the requirement of public bidding as contemplated in said Section
2323 of the Revised Administrative Code is tho same as the one contemplated in
Section 69 of Act 4003 as amended by Commonwealth Acts Nos. 115 and 471.

It may thus be restated that the law that governs the award of fishery
privileges in municipal waters is the provisions of Section 67 and 69 of Act No.
4003, as amended by Commonwealth Acts Nos. 115 and 471. The provisions of
Sections 2321, 2323 and 2319 of the Revised Administrative Code of 1917 have
thereby been modified by Act 4003, as amended. Under the applicable law the
Municipal Council may lease fishery privileges for a period not exceeding five
years to the highest bidder in a public bidding held, where the call for bid had
specified the period for the lease. The Municipal Council cannot extend the
period of lease once it had been fixed on the basis of the period provided in
the call for bids. In the lease of fishery privileges for a period not exceeding
five years the previous approval of the provincial Board is not necessary. If
the lease is for a period of more than five years, but not exceeding ten years,
the previous approval of the Provincial Board is necessary. If the lease is for
a period exceeding ten years, but not more than twenty years, the prior approval
of the Secretary of Agriculture and Natural Resources is necessary. In all cases
the lease must be based on a competitive public bidding.

In their third assignment of error the respondent-appellants contend that the
lower court erred in not dismissing the petitioner’s petition for not complying
with the provisions of Section 5, Rule 66, of the Rules of Court, which provides
as follows:

“Sec. 5. Municipal ordinance.—In any action involving the validity
of a municipal ordinance the provincial fiscal shall be similarly notified and
entitled to be heard; and if the ordinance is alleged to be unconstitutional the
Solicitor-General shall also be notified and entitled to be
heard.”

The respondents-appellants point out that the petitioner did not notify the
Provincial Fiscal about the Petition that he filed in the present case,
questioning the validity of Resolutions Nos. 75, 79 and 86 of the Municipal
Council of San Jose. Camarines Sur, and the petitioner-appellee, therefore, had
not complied with the provision of Sec. 5 of Rule 66 of the Rules of Court (now
Sec. 4 of Rule 64 of the Revised Rules of Court). It is the contention of the
respondents-appellants that the lower court should have dismissed the petition
because of the failure of the petitioner-appellee to comply with the
above-quoted provision of Sec 5 of Rule 66 of the Rules of Court.

The respondent-appellants are raising this question for the first time in the
present appeal. In the court below they filed a motion to dismiss the petition,
but this failure on the part of the petitioner to comply with the above-quoted
provision of Sec. 5 of Rule 66 was not made a ground for the dismissal of the
petition. It is too late now to raise this question at the present stage of the
proceedings. We believe that the requirement regarding notification to the
Provincial Fiscal of the pendency of an action involving the validity of a
municipal ordinance, as provided in Sec. 5, Rule 66 of the Rules of Court (now
Sec. 4 of Rule 64 of the Revised Rules of Court), is not jurisdictional; and
failure on the part of the petitioner to so notify the Provincial Fiscal will
not be a sufficient ground to throw the case out of court. We believe that the
purpose of the above-quoted rule is simply to give the Provincial Fiscal, who is
the legal oflicer of the local governments, a chance to participate in the
deliberation to determine the validity of a questioned municipal ordinance
before the competent court. If it appears, however, that the ordinance in
question is patently illegal, as in the present case, and the matter had already
been passed upon by a competent court, the requirements of Section 5 of Rule 66
of the Rules of Court (now Section 4 of Rule 64 of the Revised Rules of Court)
may be dispensed with.

In view of the foregoing, the decision of the lower court, declaring
Resolutions Nos. 75 and 80, series of 1959, of the Municipal Council of San
Jose, Camarines Sur, null and void, is affirmed. Resolution No. 79, series of
1959, of said Municipal Council is likewise declared null and void and of no
legal effect. The respondents-appellants must pay the costs of these
proceedings.

Bautista Angelo, Reyes, J. B. L., Barrera, Paredes, Dizon, Regala,
Makalintal and Bengzon, J. P., JJ., concur.