This appeal stems from a decision rendered in two cases which were jointly tried  by the Court of First Instanee of Cebu.   In one Pedro P. Arong, as owner of Liberty Theater operated in the City of Cebu, impleaded  the mayor and treasurer of said city to recover the sum of P11,021:22 paid under protest as license  fee collected under Ordinance No. 43, series of  1947, on the ground that said ordinances are illegal and oppressive and were enacted in violation of the City Charter (Case  No.  R-728).  In  the other, John D. Young arid six other  owners and, operators of theaters in the  city likewise impleaded  the same  city officials to recover the amounts they had paid  under protest which were collected as license fees under  the same ordinances on the  same ground that they are illegal  and ultra, vires and  were enacted in violation  of the City Charter  (Case No, R-1113).

Defendants alleged as special defense that  the  amounts collected from the plaintiffs  are not taxes but license fees and  so the enactment of the aforesaid  ordinances comes within  the power  granted  to the City of   Cebu by  its charter and are not ultra vires.  They Arther averred that the amounts collected were merely for regulation and not for revenue and if the amounts are little  excessive the excess,was merely  incidental which cannot invalidate the ordinances.

Because the issues raised  in the two  eases are common both to plaintiffs and defendants, it was agreed that after, the parties submitted a stipulation of facts  without prejudice of presenting  additional evidence if they  deem it necessary and, on March 6,1953, the court rendered decision declaring the  two ordinances valid  and  absolving  the defendants  from  the  complaint.  From this decision  the plaintiffs have appealed.

The amounts which plaintiffs seek to recover were  collected under the provisions of Ordinance No. 25, approved on February 10, 1947.  Section 1  of the latter ordinance provides:

"Section 1. In addition to  the  fees  paid by cinematographs,

theaters,  vaudeville companies, theatrical shows and boxing exhibitions, as  provided for in Chapter Fifty-one of Ordinance. Numbered

Seventeen, entitled An Ordinance prescribing rules and regulations and fixing license fees  and  other  revenues;  revised, amends  and supersedes all previous ordinances  on  imposition  and collection of municipal and other revenues; also  rules and regulations  governing the same, there  shall be collected  from the  places of amusement, which are specifically mentioned above, the following fees on1 the price of every admission  ticket sold by  such enterprises:

(a) For every ticket sold the price of which is up to P0.99  ..........................................................................   P0.025

(b) For  every ticket sold the  price of which is from P1.00 to P1.99 .................................................,..............    0.05

(c) For  every ticket sold the  price of which is from P2.00 to P2.99 ................................................................   0.075

(d) For  every ticket sold, the  price of which is from P3.00 to P4.99 ................................................................    0.10

(e) For  every ticket sold the  price of which is from P5.00 to P9.99 ...................................................................   0.125

(f) For  every ticket sold the  price of which Is from P10.00 to 14.99 ...............................................................   0.175

(g) For  every ticket gold the  price of which is from P15 or more...................................................................    0.25"

Has the City of Cebu  the power  to  approve the above ordinances?  This would  require an inquiry into the  legislative  power granted to said city by its charter.   The pertinent provisions  are embodied in  section  17  (1)  of Commonwealth Act No. 58,  which we  quote:

"Sec,  17. General powers and duties of the Board. Except as otherwise provided by law, and subject to the conditions and limitation thereof the Municipal Board shall liave the following legislative powers:

(1)  To regulate and fix the  amount of the  license fees for  the following:  Hawkers, peddlers,  hucksters, not  including hucksters or peddlers who sell  only native vegetables,  fruits, or foods, personally carried by  the  hucksters  or  peddlers; auctioneers, plumbers, barbers or embalmers, collecting  agencies,  mercantile  agencies, shipping and intelligence  offices, private  detective agencies, advertising agencies, massagists, tattooexs, jugglers acrobats, hotels, clubs, restaurants,  cafes, slodging houses,  boarding houses, livery garages, livery stables, boarding stables, dealers in large cattle, public billiard tables, laundries, cleaning and dyeing establishments, public  warehouses, dance  halls,  cabarets, circus, and  other  similar parades, public  vehicles,  race tracks, horse races, bowling alley's; shooting galleries, slot machines,  merry-go-rounds,  pawn-shops,  dealers  in second-hand merchandise,  junk dealers, brewers,, distillers, rectifiers, money' changers  and brokers,  public ferries,  theaters,  theatrical performances, cinematographs;  public exhibitions, circuses,  and  all other performances and  places of amusements,  and  the keeping, preparation and  sale of  meat,  poultry, fish, game,, butter, cheese, lard, vegetable,  bread,  and other  provisions.  (Italics supplied).

It should be  noted  that  with regard to  the  business of theatres, theatrical performances, cinematographs, and other  places  of  amusements,  the power that the charter gives  to  the  City  of Cebu  is  merely "to regulate and fix the amount of  the license fees."  It does not include the power to tax as is  the  case with regard to other businesses and occupations.   This can be clearly  seen from a cursory reading of the  law.  When it desires to grant the power to tax it expressly so provides, otherwise it  merely employs the words  "to regulate" or "fix the  license  fees."  The i  question  therefore, that now arises is:   Do the ordinances in question impose a tax for purposes of revenue or merely fix a license fee for purposes  of regulations?

The City of Cebu contends  that they merely impose  an additional license fee in order to raise funds to cover the expenses that  are  entailed by the city in. carrying out its duty to supervise  and protect the  theaters and different places of amusements that  are operated  within its limits against  fire  hazards  and  other  risk  incidental to  their business:  Plaintiffs, on the other hand, contend that they were enacted to impose a tax to create a source of revenue for the city.

The issue raised  is not new as.  it has  already been decided in at least  two cases  in this jurisdiction.  The first is the  Eastern  Theatrical  Company,  Inc., vs. Victor Alfonso, et al., 46, Off. Gaz. (supplement)  p. 30, wherein a similar ordinance was  enacted by the City of Manila which impose a  fee on every price of admission tickets sold by cinematographs, theaters, vaudeville companies, theatrical shows and boxing exhibitions, in addition to other license fees paid  by the same  enterprises under another ordinance of the  same city.  This Court held that said  ordinance imposes a tax  on business and is not merely regulatory, although  its enactment  was within the grant of  power vested in the City of Manila  by its charter.   The other case is City of Baguio vs.  Jose  Y. de la Rosa,  et al., G. R. No.  L-8268-70, wherein the City of Baguio  enacted an ordinance which  required every movie house  or theater operated within the city  to increase the price of its  admission tickets  as  follows: for every ticket sold for the main floor, there was added  an increase of P0.05, for  every ticket sold for the balcony P0.10, and for every ticket sold fol the lodge  P0.20.  This Court also held that said ordinance imposes not merely  a license fee but a tax for purposes of revenue.   Indeed, it cannot be pretended that the  fees exacted the ordinance in question are merely  for regulation for under Ordinance No. 25, series of 1946,  of the City of Cebu, the  theaters and other places of entertainment  within its limits are already charged the corresponding license fees for  their operation depending upon their  classification,. Thus, for a first class  theater or cinematograph an  annual fee of  P300 is charged and for those belonging  to  the second class an annual fee  of P300.  It is therefore evident that under its charter the  City of Cebu does not have the power to enact the ordinances in question  and, therefore, are ultra vires.

The next question to be determined is:   Are the plaintiffs entitled to recover the fees they had paid  Under said ordinances ?

We are constrained to hold that they are prevented from recovering them it appearing that  these fees are paid not by the plaintiffs but by' the public.  If any body has the right to claim them, it  is those who paid  them.  This is what we held in the case  of Esteban Medina, et al., vs. City  of  Baguio,  (91  Phil., 854).  In  this, respect  the decision of the lower court  is correct.

Wherefore, we hereby modify the decision of the lower court in  the sense that, while the ordinances in question are ultra vires, plaintiffs cannot collect the fees they had paid  thereunder and,  therefore, this  case  should  be dismissed, without" pronouncement as to costs.

Parás, C. J., Padilla,  Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes,  J.  B.   L., and  Endencia, JJ.,concur.