TEODORA LOPERA, PETITIONER AND APPELLEE VS. SEVERINO E. VICENTE, AS MUNICIPAL MAYOR OF PUERTO PRINCESA, PALAWAN, ET AL., RESPONDENTS. SEVERINO E. VICENTE, RESPONDENT AND APPELLANT.

From the order of the Court of First Instance of Palawan (in Special
Civil Action No, 380, for mandamus with preliminary injunction),
declaring illegal Ordinance No. 6, series of 1960, of the Municipal
Council of Puerto, Princesa, Palawan, and ordering them to reopen the
cabaret of petitioner Teodora Lopera which they ordered closed,
respondents Severino Vicente and Cayetano Valones (municipal Mayor and
municipal treasurer, respectively, of Puerto Princesa), interposed this
appeal.

The facts of the case, which are uncontroverted, are stated in the order (dated December 13, 1960) of the trial court, to wit:

“The petitioner Teodora Lopera is the operator of
the cabaret, located in Calero St., Puerto Princesa. Acting on the
provisions of Ordinance No. 6, series 1960, the municipal Mayor ordered
said cabaret closed on December 4, 1960. Said Ordinance No. 6, series 1960, requires that no cabaret should be located within a distance of
500 meters from the nearest public building:, market or hospital. Upon
report by the Engineer’s Office, it is alleged that the cabaret is
located at a distance of 476 meters from the Provincial Hospital. This
action was presented to contest the legality of said Ordinance, as it
is claimed to contradict the provision of Republic Act No. 1234,
Section 1 thereof, which only requires a radius of 200 meters in case
of cabaret, from the nearest public building.

“Ordinance No.
10, series 1958, as amended by Ordinance No. 5, series 1959, was
repealed by Ordinance No. 21 and 22, on November 9, 1959, by action of
the Municipal Council of Puerto Princesa. The original ordinance
allowed the operation of cabarets in Puerto Princesa. The repealing
ordinance prohibits their operation. Ordinance No. 6, series 1960,
allowed the operation again of cabarets. It was under the provision of
this Ordinance No. 6, that the petitioner was operating her cabaret.
Her license does not expire until the end of December, 1960. Issuance
of said license was made possible, by virtue of a temporary permit
given her by the Acting Municipal Mayor.”

On the basis of the above-stated facts, the trial court issued the order above adverted to, stating:

“The question now is: Is Ordinance No. 6, series
1960 valid? Republic Act No. 1224 fixed a distance of 200 meters from
any public building, inside of which no cabaret may be operated.
Ordinance No. 6, extended this distance to 500 meters. There is,
therefore, a conflict between the Ordinance and Republic Act No. 1224.
Municipal corporations are creations of Legislature. All governmental
powers are derived from Congress. Only such powers as are granted (to)
the municipal government, can be exercised by the latter. Those not
expressly granted can not also be exercised. Municipal governments are
allowed, either to prohibit, or regulate the operation of the cabarets.
The law, provides that no such cabaret may operate within the radius of
200 meters from the nearest public building. In implementing this
statute, the Municipal Council of Puerto Princesa chose not to abide by
this limit fixed by Congress, but decided to extend it to 500 meters,
making it, therefore, a violation to establish and operate a cabaret
inside the radius of 500 meters.

“This can not be done.
Congress has fixed the legal distance of 200 meters. No Municipal
Council may, either decrease that distance, or increase it. Only
Congress, by a legislative enactment can do that. What the Municipal
Council in Puerto Princesa, in effect, was trying to do, was to amend
the Act of Congress, by changing the distance of 200 meters to 500
meters. This is beyond the powers of the Municipal Council. The
provisions, therefore, of Ordinance No. 6, series 1960, is illegal, and
the action of the Municipal Mayor, the Municipal Treasurer, and their
Agencies in closing petitioner’s cabaret, was unjustified.

“The
Court, therefore, renders judgment, declaring Ordinance No. 6, series
1960 illegal, and the preliminary mandatory injunction issued in the
interlocutory order, is hereby made permanent. No pronouncement as to
cost of damages. “So ordered.”

Dissatisfied from said order, respondents appealed to us.

The only issue to be resolved in this case is, whether Ordinance No.
6, series of 1960, of the municipal council of Puerto Princesa,
Palawan, which prohibits the establishment, maintenance, and operation
of cabarets within a radius of 500 lineal meters from any public
building, school, hospital, or church, contravenes Section 1 of
Republic Act No. 1224,^[1] which insofar as pertinent reads.:

“SECTION 1. * * * the municipal council of each
municipality * * * shall have the power to regulate or prohibit by
ordinance the establishment, maintenance and operation of * * *
cabarets, * * * and other similar places of amusement within its
territorial jurisdiction: Provided, however, That no such
places of amusement mentioned herein shall be established, maintained,
and/or operated within a radius of two hundred lineal meters in the
case of * * *cabarets, * * * from any public building, schools,
hospitals and churches: Provided, further, That no municipal* * *
ordinance fixing distances at which such places of amusements may be
established or operated shall apply to those already licensed and
operating at the time of the enactment of such municipal * * *
ordinance, nor will the subsequent opening of any public building or
other premises from which distances shall be measured prejudice any
place of amusement already then licensed and operating, * * *: Provided, furthermore, That no minor shall be admitted to any * * * cabaret * * * employing hostesses: And, provided, finally,
That this Act shall not apply to establishments, operating by virtue of
Commonwealth Act Numbered Four hundred eighty-five nor to any
establishment already in operation when Republic Act Numbered Nine
hundred seventy-nine took effect.” (Italic supplied.)

This provision empowers the municipal council of a municipality to
regulate or prohibit, by ordinance, the establishment, maintenance, and
operation, among others, of cabarets within its territorial
jurisdiction. Such power to regulate and prohibit includes the power to
fix the distance of said cabarets from any public building, schools,
hospitals, and churches, provided that the distance so fixed by it, is
not less than 200 lineal meters in radius from said public buildings,
schools, hospitals, and churches. In fine, the municipal council may,
by ordinance, fix a distance over the 200 lineal meter minimum
requirement above provided, but it may not do so below said minimum.
The statute is not intended to fix a definite distance at which
cabarets, if allowed should be established, but leaves to the municipal
council the discretion to fix whatever distance (above the required 200
lineal meters) it may deem best for the welfare of its inhabitants.
This is because, the matter being peculiarly local in nature, the
municipal council alone is in a better position to know the appropriate
distance at which said cabarets should be located from any public
building, school, hospital, and church. Such delegation to the
municipal council of a municipality of the power to fix said distance
is in line with the general welfare clause (Section 2238, Rev. Adm.
Code) which grants to a municipal council the power to enact such
ordinances as it shall seem necessary and proper to provide for the
health and safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and the
inhabitants thereof.

Since the ordinance in question fixes a distance (500 lineal meters)
above the 200 lineal-meter minimum required under the above-quoted
provision of Republic Act No. 1224, its validity can not be questioned.
And, considering that petitioner-appellee’s cabaret is located at less
than 500 meters from the provincial hospital (see paragraph 5 of the
stipulation of facts), respondents-appellants were justified in
ordering the closure thereof. Petitioner-appellee claims that the
ordinance in question is inapplicable to her cabaret, because the same
had been in operation since 1958. While there is an avernment in the
complaint to this effect, no evidence was presented in the court below
to prove such fact. Indeed, the answer of the defendants-appellants
specifically denies this allegation, stating that appellee’s cabaret
was not in operation prior to May 18, 1960. The order of the trial
court appealed from contains no finding that said cabaret was in
operation since 1958. It did find that the operation was in virtue of a
temporary permit which, according to the stipulation of facts submitted
by the parties at the hearing of the case, was effective for six months
from June 2, 1960. In fact, prior to March 1, I960 when the questioned
ordinance was adopted, operation of cabarets in Puerto Princesa was
prohibited under Ordinances 21 and 22, series 1959.

Wherefore, the order appealed from is reversed, and the writ of
mandatory preliminary injunction issued by the court a quo set aside,
without pronouncement as to costs. So ordered.

Bengzon, CJ., Bautista Angelo, Labrador, Concepcion, Paredes, Dizon, Regala, and Makalintal, JJ. concur.