THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. RUPERTO SORIA, DEFENDANT AND APPELLANT.

Ruperto Soria was charged with a violation of Municipal Ordinance
No. 119, series of 1949, of the Municipality of Pagadian , Zamboanga
del Sur, for having constructed a house without first securing the
necessary permit from the authorities concerned. He was found guilty by
the justice of the peace court of said municipality. On appeal the
court of first instance sentenced him to pay a fine of P50.00, with
subsidiary imprisonment in case of insolvency, as well as to remove at
his expense within 30 days from the promulgation of the decision the
house he has constructed in violation of the ordinance, failure of
which the government may cause the removal thereof also at his expense,
with costs. He appealed to the Court of Appeals which later certified
the case to this Court on the ground that the questions raised are
purely of law.

Ruperto Soria is the owner of a house located at the corner of the
national highway and Mabini Street of Pagadian, Zamboanga del Sur.
Sometime in June, 1958, he started making repairs on his house, but in
doing so he has not secured the necessary permit from the municipal
mayor as required by Ordinance No. 119, series of 1949, of said
municipality. This ordinance provides that any person who desires to
make any construction or repairs on any building must first file an
application for a permit which must show a sketch of the proposed
construction or repairs and the materials to be used and must be
favorably endorsed by the local health officer and the assistant
engineer.

It appears that Soria, after he began making the repairs, took
steps to secure the necessary permit from the mayor’s office but was
advised by the latter’s secretary to first get the favorable
recommendation of the two officials. Soria then went to the local
health officer but the latter informed him that he could not act on his
application unless he secures the approval of the assistant engineer.
And having apparently been irked by this attitude, he abandoned
altogether the idea of securing the permit from the mayor’s office.
Hence, his prosecution.

The authority of the municipal council to prescribe the kind of
buildings that may be constructed or repairs that may be made on the
construction is expressly provided for in Section 2243(c) of the
Revised Administrative Code, and in order that such power may be
properly exercised, the council is likewise given the authority to
impose fine or imprisonment, or both, within certain limits provided
the penalty shall not exceed P200.00 fine or six (6) months
imprisonment. This authority is expressly conferred by Section 2239 of
the same Code, and it is in’ pursuance of this authority that the
municipal council of Pagadian approved the ordinance in question which
requires the issuance of a permit before the construction or repairs of
a building may be made and imposes a penalty if such requirement is not
complied with. The authority, therefore, of the Municipal Council of
Pagadian to approve said ordinance cannot be disputed, nor can it be
contended that the same is ultra vires.

It is true that, besides imposing fine and imprisonment, the
ordinance likewise requires the removal of the illegal construction at
the expense of the person who constructed it within 30 days from the
date of the court’s decision and that if he fails to do so the removal
may be undertaken by the government also at his expense, but such
requirement cannot be considered a penalty in its technical sense that
may place it beyond the scope of the power of the municipal council for
the same is but a necessary consequence of the infringement of the
ordinance. It is an unavoidable measure intended to prevent those who
undertake the illegal construction from making a mockery of the
ordinance or profiting from the effects of their illegal act. Without
such coercive measure any person who may desire to flout the ordinance
may easily do so by paying a fine or undergoing a short term of
imprisonment thereby flooding the town with many illegal constructions
in open, defiance of the local authorities. Such pretense cannot be
entertained for it leads to mockery and subversion.

Moreover, the power to require the removal of illegal constructions
may also be justified under the general welfare clause applicable to
municipalities which, among other things, gives to a municipal council
the authority to approve such ordinance and regulation as may be
necessary to provide for the health and safety of the municipality and
its inhabitants. It is to promote this end that the ordinance in
question was approved, including the removal of illegal constructions.

We notice, however, that the accused was prosecuted not because of
an illegal construction but merely for having undertaken the repairs of
his house without first securing, the required permit and yet the court
a quo ordered him to remove the house at his own expense. We
believe that this directive is too severe, it being sufficient that he
be ordered to remove the illegal repairs re has made. In this sense,
the sentence should be modified.

Wherefore, with the modification that the accused should not be
required to remove his house but only the illegal repairs he has made,
the decision appealed from is affirmed, without pronouncement as to
costs.

Bengzon, C.J., Padilla, Labrador , Concepcion , Reyes, J. B. L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.