Can the mayor be compelled by writ of mandamus to perform discretionary function?

The crux of the instant controversy is whether respondent mayor can be compelled by a writ of mandamus to grant petitioners application for a renewal of a business permit to operate an arrastre service at the Municipal Port of Hilongos in Leyte.

Ostensibly, it is petitioners contention that respondent mayors power to issue permits as contained in the aforesaid law is ministerial; hence, mandamus lies. 

It bears to reiterate this Courts ruling on the nature of the writ of mandamus. The writ of mandamus serves to compel a respondent who fails to perform a legal duty or unlawfully excludes another from the enjoyment of an entitled right or office to do the act required to be done to protect the rights of the petitioner.[32] Otherwise stated, mandamus is issued to command the performance of a ministerial, but not a discretionary duty.

With that settled, we make a determination of the nature of the power of respondent mayor to grant petitioner a permit to operate an arrastre service. Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local Government Code of 1991, which provides, thus:

SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the Municipal mayor shall:

x x x x

(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall:

x x x x

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. (Italics supplied.)

As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to Section 16 of the Local Government Code of 1991, which declares:

SEC. 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance  the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological  capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

Section 16, known as the general welfare clause, encapsulates the delegated police power to local governments. Local government units exercise police power through their respective legislative bodies.[33] Evidently, the Local Government Code of 1991 is unequivocal that the municipal mayor has the power to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. On this matter, petitioner maintains that under the Local Government Code of 1991, a suspension or revocation of permits shall be premised on a finding of violation of the conditions upon which the permits were issued pursuant to a law or ordinance, which is independent of the Code itself. Petitioner asseverates further that there was no law or ordinance that conferred upon the respondent mayor the power to refuse the issuance of the permit despite compliance of petitioner with all documentary requirements and payment of all the fees.

First. On petitioners assertion that the power to issue license should be pursuant to law other than the Local Government Code of 1991, we so hold that the language of the law did not find the need to distinguish between other laws and that of the Local Government Code of 1991 itself. When the law does not distinguish, we must not distinguish.[34] Ubi lex non distinguit nec nos distinguere debemus. Hence, even the Local Government Code of 1991, specifically Section 16 thereof, can be utilized to determine the bounds of the exercise of the municipal mayor in issuing licenses and permits.

Second. While we agree with petitioner that there is no ordinance conferring upon the respondent mayor the power to refuse the issuance of the permit for the operation of an arrastre service, we are, as yet, unprepared to declare that the power of the municipal mayor as enunciated under Section 444(b)(3)(iv) is ministerial. What can be deduced from the aforesaid section is that the limits in the exercise of the power of a municipal mayor to issue licenses, and permits and suspend or revoke the same can be contained in a law or an ordinance. Otherwise stated, a law or an ordinance can provide the conditions upon which the power of the municipal mayor under Section 444(b)(3)(iv) can be exercised. Section 444(b)(3)(iv) of the Local Government Code of 1991 takes its cue from Section 16 thereof, which is largely an exercise of delegated police power. We said:

The general welfare clause is the delegation in statutory form of the police power of the State to LGUs. Through this, LGUs may prescribe regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions. Accordingly, we have upheld enactments providing, for instance, the regulation of gambling, the occupation of rig drivers, the installation and operation of pinball machines, the maintenance and operation of cockpits, the exhumation and transfer of corpses from public burial grounds, and the operation of hotels, motels, and lodging houses as valid exercises by local legislatures of the police power under the general welfare clause.[35]

Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation.[36] Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.

It may be true, as argued by petitioner, that Resolution No. 93-27, which was enacted by the Sangguniang Bayan of Hilongos, is not an ordinance but merely a resolution. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently – a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.[37]

However, the fact that Resolution No. 93-27 is a mere resolution can do nil to support petitioners cause. As stated earlier, the proper action is certiorari to determine whether grave abuse of discretion had been committed on the part of respondent mayor in the refusal to grant petitioners application. Petitioners petition for mandamus is incompetent against respondent mayors discretionary power. Thus:

Discretion, when applied to public functionaries, means a power or right conferred upon them by law or acting officially, under certain circumstances, uncontrolled by the judgment or conscience of others. A purely ministerial act or duty in contradiction to a discretional act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[38]

 G.R. No. 182065, EVELYN ONGSUCO and ANTONIA SALAYA, Petitioners, – versus – HON. MARIANO M. MALONES, both in his private and official capacity as Mayor of the Municipality of Maasin, Iloilo, Respondent.

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Definitions, Distinction, Distretionary Duties, LGC, LGU, Mayor, Miinisterial Duties, Ordinance, Permit, Question and Answers, Resolutions, Sangguniang Panlalawigan, Writ of Mandamus and tagged , , , , . Bookmark the permalink.

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