Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46455 October 31, 1939
EUSEBIO PELINO, plaintiff-appellee,
vs.
JOSE ICHON, ET AL., defendants.
JOSE ICHON, appellant.
P. Salazar and F. Montejo for appellant.
Mateo Canonoy for appellee.
AVANCEÑA, C.J.:
The plaintiff is operating a cockpit in the municipality of Tanauan, under a license issued in accordance with municipal ordinance No. 20 of 1935 authorizing the establishment of a single cockpit in the municipality.
On March 15, 1938, the municipal council of Tanauan approved another ordinance No. 8 authorizing as many cockpits as are applied for. The Municipal President vetoed this ordinance . The municipal council, however, composed of six councilors, kept Ordinance No. 8 in being over the veto of the president by a two-thirds vote of its members.
The defendant, in turn, obtained a license, pursuant to this ordinance No. 8, to operate another cockpit in the same municipality.
On June 8, 1938, the plaintiff Eusebio Peliño brought this action against the municipal council of Tanauan, asking that municipal ordinance No. 8 be declared null and void and that the defendant Ichon be ordered to pay him, by way of damages, the amount of P2,000.
Upon petition of the plaintiff, the court, on April 9th of the same year, issued a writ of preliminary injunction against the defendants, which writ was lifted by the filing of a bond put up by the defendant Ichon.
The court declared ordinance No. 8 null and void, revived the writ of injunction issued against the defendants and ordered the defendant Inchon to pay the plaintiff the sum of P2,000 by way of damages. The defendants appealed form this decision.
The only ground of the appealed decision is annulling ordinance No. 8 is that the same is contrary to the spirit of section 2338 of the Revised Administrative Code and is beyond the powers granted to the municipal council by section 2243 of the same code.
The portion of ordinance No. 8 which led the court to declare it null and void is that one authorizing as many cockpits in the municipality as there are applicants therefor. However, the municipal council acted within its powers in enacting this ordinance. It is granted discretion by law to regulate or prohibit cockpits (section 2243 of the Revised Administrative Code). While, according to this, the municipal council may absolutely prohibit cockpits, nevertheless, when it does not so prohibit, they are deemed to be authorized subject to its regulation. This power to regulate includes the power to fix its number, inasmuch as the law neither fixes it nor limits it to one.
The court sentenced the defendant to pay the plaintiff P2,000 by way of damages on the theory that the plaintiff suffered damages because of the establishment of defendant's cockpit. It is clearly seen from the facts set out that no cause of action exists against the defendant. he operated his cockpit pursuant to a license issued under ordinance No. 8, in the enactment of which he had absolutely nothing to do.lâwphi1.nêt
The appealed judgment is reversed,, ordinance No. 8 of the municipality of Tanauan, Leyte, is declared valid, and the defendant, is absolved from the sentence to pay damages without special pronouncement as to the costs. So ordered.
Villa-Real, Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.
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