POLICARPIO VIRAY, ET AL., PLAINTIFFS-APPELLANTS, VS. CITY OF CALOOCAN, ET AL., DEFENDANTS-APPELLEES.

From the adverse decision of the Court of First Instance of Rizal (in Civ. Case No. 9-C),
therein plaintiffs instituted the present ap­peal, questioning the authority of
the City of Caloocan to impose a fee of P10.00 or
P5,00 as the case may be, for every cadaver coming from other places and buried
in private cemeteries within that city.

Policarpio Viray,
Antonio Cajote and Leopoldo
Prieto, all residents of the City of Manila who were
charged by, and actually paid to, the City Treasurer of Caloocan
“entrance fees” for the burial of their re­spective relatives in the
La Loma cemetery, allegedly pursuant to Or­dinance No. 94, series of 1962,
filed the action in the Court of First Instance of Caloocan
against the city government, its Mayor and Treasurer (Civ.
Case No. 9-C), contesting the legality of the afore­mentioned city ordinance, on
the ground that it was a revenue-raising measure which is beyond the taxing
authority of the defendant city government to enact, and praying that it be
declared ultra vires and void ab initio, and that
the fees they paid to defendants be returned to them.

After the defendants had filed their answer, the case was sub­mitted
for decision on the following stipulation of facts:

“x              x                      x

“2. The parties agree that, on September 18, 1962, the Municipal
Board of the defendant City of Caloocan enacted Ordinance
No. 94, series of 1962 which among others imposes an entrance fee on cadavers
coming from places outside the territorial jurisdiction of the City of Caloocan, ought to be buried in private cemeteries, in­cluding
the La Loma Cemetery, within the City of Caloocan;
the parties also agree that the entrance fee imposed by Ordinance No. 94,
series of 1962 for each cadaver is P5.00 if the deceased is below fourteen (14)
years old and P10.00 if the deceased is fourteen (14) years old or above; xxx    xxx       xxx;

“3. The parties agree that defendant Macario
Asistio, as Mayor of the City of Caloocan, approved Ordinance No.
94, series of 1962 on September 22,
1962;

“4. The parties agree that on March 8, 1963, de­fendant Amado Oliveros, as Treasurer of
the City of Ca­loocan, through his deputy and in
pursuance of Ordinance No. 94, series of 1962, collected the corresponding en­trance
fee from plaintiffs Policarpio Viray
and Antonio Cajote in the amount of P5.00 each, and
from plaintiff Leopoldo Prieto
in the amount of P10.00 for the burial of their respective relatives at the La
Loma Cemetery; such collections are evidenced by official receipts which have
been attached as Annexes ‘B’ , ‘B-1’ and ‘B-2’ to the com­plaint and are hereby
incorporated by way of reference in this stipulation of facts;

“5. The parties agree that, on March 28, 1963, plain­tiffs Policarpio Viray, Antonio Cajote and Leopoldo Prieto, demanded from the defendant City Treasurer Amado Oliveros, the refund of the
corresponding entrance fees paid by them under Ordinance No. 94, series of 1962
by means of a
formal letter of demand; copy of said letter has been attached as Annex
‘C’ to the complaint and is hereby in­corporated by way of reference in this
stipulation of facts;

“6. The parties agree that despite such demand, de­fendant City
Treasurer Amado Oliveros,
has refused to re­fund to the plaintiffs the entrance fees paid by them and has
continued to refuse to refund up to the present;

“7. The parties likewise agree that the issue to be resolved in this
case is solely a question of law, namely, whether the City of Caloocan is empowered by Rep. Act 3278, otherwise known as
the Charter of the City of Ca­loocan or by such other
pertinent laws, to enact that portion of Ordinance No. 94, series of 1962 imposing
the entrance fee in question”.

Based on those facts, the court dismissed
the case, on the ground that the questioned ordinance was authorized under the
charter of the City of Caloocan
and other pertinent laws.

It appears from the records that in addition to a burial permit
costing P0.50, each of herein plaintiffs-appellants was required to pay, and in fact did pay, so-called entrance fee
for the burial of his relative at the La Loma cemetery, a burial place not
owned by the city government of Caloocan, allegedly
pursuant to Ordinance No. 94, series of 1962,
which reads:

“ORDINANCE No. 94

“AN ORDINANCE AMENDING
ORDINANCE NO. 5 SERIES OF 1961 PROVIDING FOR ADDITIONAL FEES IN PRIVATE
CEMETERIES.

xxx                               xxx                               xxx

“Section 1 – xxx

“A – 266 CEMETERY – PRIVATE
CEMETERY

PROVIDED,
that the term ‘private cemetery’ herein used shall be construed to mean as
the cemetery owned and operated
by private persons, interest, and associa­tions, no matter how organized, and
to include for purposes of this ordinance, the La Loma cemetery located within the jurisdictional
boundary of the City of Caloocan.

PROVIDED, that the following fees shall be

collected:

FOR EACH PERMIT for the exhumation of

the remains  ————————————————————————
P 1.00

FOR EACH CADAVER sought to be buried in
private cemeteries within Caloocan
com­ing from other places, the following fees shall be collected:

FOR
EACH TRANSFER PERMIT for Adult, 14

yrs. old and above
————————————————————– P 10. 00

FOR EACH TRANSFER PERMIT for Child,

below 14 yrs. old
—————————————————————-       5.00″

Defendants-appellees, answering
plaintiffs-appellants’ conten­tion that the collection of the amounts involved
in this appeal was unauthorized, claim that it was justified by the general
grant of taxation to chartered cities by Republic Act 2264, otherwise known as
the Local Autonomy Act and as a valid exercise of police power.

The issue in this case
calls for the determination of the validity of the aforequoted
Ordinance No. 94, series of 1962, and of the col­lection from
plaintiffs-appellants of the so-called entrance fees, al­legedly made pursuant
to said ordinance.

It may be pointed out that the disputed ordinance speaks of two
kinds of fees:  one, in connection with
the exhumation of the remains (of a dead person), for P1.00, and the other,
imposed whenever a ca­daver is sought to be buried in that city coming from
other places, in the sum of P10.00 for an adult’s, and P5.00 for a
child’s.  Taken in its entirety, it is
clear that what is being regulated through this ordinance is not the burying of
the mortal remains of a person, but the exhuma­tion and transfer of a cadaver –
activities affecting corpses that had previously been buried.  In other
words, the term “transfer” used in the ordinance does not refer to
the conducting or conveying of an un­buried dead body from one place – let is
say, the funeral parlor or site where the vigil was held – to the burial
grounds.  Rather, the transfer permit
mentioned in the ordinance is required whenever a ca­daver, previously interred
in a burial place, is removed therefrom for transfer
to a private cemetery in Caloocan.  That the permit called for under the
ordinance is not for the burying of the dead may even be de­duced from the fact
that a “burial permit” is also being admittedly is­sued by defendant
municipal corporation for a fee of P0.50. 
Further­more, it is noteworthy that while Ordinance No. 94 refers to a
“trans­fer permit”, the
amounts collected from plaintiffs-appellees were re­ceipted
for as “entrance fees” thereby giving rise to the presumption that
the defendants-appellees must have been aware that
the impos­ition of such transfer fees in the cases involved herein was indeed
unauthorized.

The inescapable conclusion is that, although the ordinance which
regulates the exhumation and/or transfer of corpses from other burial grounds to
those located in the City of Caloocan is within the
legis­lative power of the respondent city government to enact,1 the imposition
of the transfer fees under Ordinance
No.94, on the interment of the respective dead relatives of herein
appellants in the La Loma cemetery, was not justified.  Appellants’ prayer, therefore, for the return
by defendant City Treasurer of the alleged entrance fees, must
be granted.

With regard to the defenses interposed on behalf of the respon­dent
City, premised upon the provisions of the Local Autonomy Act, suffice it to
observe that, while section 2 (on Taxation) of Republic Act 2264 confers on
chartered cities and municipalities -?

“authority to impose municipal license
taxes or fees upon  persons engaged in
any occupation or business, or exercising privileges in chartered cities or
municipal­ities x x
x by requiring them to secure licenses at
rates fixed by the municipal board or city council”,

respondents
have failed to show that the persons merely burying a cadaver in a private
cemetery constitutes either an occupation or business or the exercise of
privileges that would justify the imposition of taxes thereon within the terms
and intent of the enabling act, the
terms em­ployed by the statute in themselves denoting habituality or a repetition of
acts, and not a solitary act.

Respondent City also endeavors to justify the fees prescribed by
the ordinance in question as a proper exercise of the police power, claiming
that it -?

“involves the assignment of police
officers to insure that the funeral procession x x x is
orderly so as not to cause great and serious inconvenience to the public.  During the procession traffic has to be
re-routed at times; policemen have to use the city’s motorcycles or cars; the
streets and other City property have to suf­fer certain degree of
depreciation.”  (Brief for Appel­lees, pp. 24-25).

While undeniably the above-described activity of city officers is
called for by every funeral procession, yet
we are left without ex­planation why the Ordinance should collect the
prescribed fees sole­ly in the case of cadavers coming from places outside
the territory of Caloocan City for burial in private
cemeteries within the City.  Surely,
whether the corpse comes from without or within the City limits, and whether
interment is to be made in private or public cemeteries, the City police must
regulate traffic, and must use their City cars or motorcycles to maintain
order; and the City streets must suffer some degree of erosion.  Clearly, then, the ordinance in question does
unjustifiably discriminate against private cemeteries, in violation of the
equal protection clause of the Constitution, a defect adequate to invalidate the questioned portion of the
measure.

WHEREFORE, the decision appealed from is reversed and the
questioned portion of Ordinance No. 94, series of 1962 of the City of Caloocan, is declared ultra
vires and void.  Costs against the respondents.

SO ORDERED.

Bengzon, JP, Zaldivar,
Sanchez, Ruiz Castro, Angeles, and Fernando,
JJ., concur.

Concepcion,
(C.J), Dizon, and Makalintal, JJ., did not
take part.

1 “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:

xxx    xxx       xxx

“(cc) Subject to the provisions of existing law, to
provide for the laying out, construction and improvement, and to re­gulate
the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries,
and other public places:”

(Underscoring supplied;
Rep. Act 3278).