TABLE OF CONTENTS

1.

CASE LIST
INHERENT POWERS OF STATE a. POLICE POWER i. Definition, Nature and Function 1. US vs Jesus Gomez, 31 Phil 218 2. Rubi vs Provincial Board, 39 Phil 660 3. Binay vs Domingo, 201 SCRA 508 4. Agustin vs Edu, 88 SCRA 195 ii. Scope 5. 6. iii. US vs Gomez, supra. Ichong vs Hernandez, 101 Phil 1155 Lawrence vs Texas, 539 US 558 (2003)

CASE 1: G.R. No. L-9651 ................................................................................... 2 CASE 2: G.R. No. L-14078 ................................................................................. 7 CASE 3: G.R. No. 92389 .................................................................................. 28 CASE 4: G.R. No. L-49112 ............................................................................... 30 CASE 5: G.R. No. L-7995 ................................................................................. 36 CASE 6: LAWRENCE et al. v. TEXAS ................................................................ 49 CASE 7: G.R. No. L-5060 ................................................................................. 62 CASE 8: G.R. No. L-10572 ............................................................................... 66 CASE 9: G.R. No. 135962 ................................................................................ 76 CASE 10: G.R. No. L-43634 ............................................................................. 84 CASE 11: G.R. No. 89572 ................................................................................ 88 CASE 12: G.R. No. L-45435 ............................................................................. 90 CASE 13: G.R. No. 88265 ................................................................................ 91 CASE 14: G.R. No. L-24693 ............................................................................. 94 CASE 15: G.R. No. 122846 .............................................................................. 98

iv.

Elements for Valid Exercise 7. US vs Toribio, 15 Phil 85 8. Churchill vs Rafferty, 32 Phil 580 9. MMDA vs Bel-Air, 328 SCRA 836 10. Javier vs Earnshaw, 64 Phil 626 11. DECS vs San Diego, 180 SCRA 533 12. People vs Chan, 65 Phil 611 13. Del Rosario vs Bengzon, 180 SCRA 525 14. Ermita-Malate Hotel and Motel Operators Assoc. vs City Mayor, L-24693 July 31 1967 Judicial Review 15. White Light Corp vs City of Manila, GR. No. 122846, Jan 20, 2009

CASE 1: G.R. No. L-9651

August 4, 1915 THE UNITED STATES, plaintiff-appellee, vs. DOMINADOR GOMEZ JESUS, defendant-appellant. Recarado Ma. Calvo for appellant. Office of the Solicitor-General Corpus for appellee. JOHNSON, J.: On the 17th day of July, 1913, C.A. Sobral, assistant prosecuting attorney of the city of Manila, presented a complaint in the Court of First Instance of said city, charging the defendant with the crime of practicing medicine without a license, in violation of section 8 of Act No. 310 of the Philippine Commission. The complaint alleged: That in, during, and between the months of January, 1911 and June, 1913, in the city of Manila, Philippine Islands, the said Dominador Gomez Jesus having been suspended from the practice of medicine on or about August 28, 1909, by the Board of Medical Examiners, in accordance with the provisions of section 8 of said Act No. 310, and while his license as a physician and surgeon was revoked by the said Board of Medical Examiners, did then and there willfully, unlawfully, and feloniously treat, operate upon, prescribe, and advise for the physical ailments of one Margarita Dolores and other persons, for a fee, and presented himself by means of signs, cards, advertisements, and otherwise as a physician and surgeon, duly admitted, empowered, and allowed to practice medicine, in the city of Manila, Philippine Islands, when in truth and in fact as the said Dominador Gomez Jesus well knew, he was not allowed to practice medicine in any way in the city of Manila, or anywhere in the Philippine Islands, for a fee, and when, as he well knew, the rendering of medical and surgical services by him to the said Margarita Dolores and other persons in the city of Manila was for a fee, and not in a case of emergency, or in the administration of family remedies, or through a call in consultation with other duly admitted physicians or surgeons." On the 22nd day of July, 1913, the defendant appeared and demurred to the complaint, upon the following grounds: (1) That the complaint was not in the form required by law; (2) that the facts in said complaint did not constitute a crime; (3) that the complaint itself contains allegations which in truth would constitute a justification or legal exemption for the accused." After hearing the arguments for the defense and the prosecution on said demurrer, the Honorable Jose C. Abreu, in very interesting opinion in which he discusses fully said demurrer, reached the conclusion that the complaint was sufficient, and overruled said demurrer. On the 26th day of August, 1913, the defendant was duly arraigned and pleaded not guilty. The cause was brought on for trial before the Honorable George N. Hurd, on the 9th of September, 1913. After hearing the evidence, the said judge, in a very interesting and well-reasoned opinion, found the defendant guilty as charged in the complaint, and sentenced him to pay a fine of P200, with subsidiary imprisonment in case of failure to pay the same or any part thereof, and

to pay the costs. From that sentence the defendant appealed to this court and made the following assignments of error: I. The court erred in declaring that the provisions of section 8 of Act No. 310 are not in conflict with the provisions of the Philippine Bill enacted by the Congress of the United States on July 1, 1902. II. The court likewise erred in declaring to be valid and effective that portion of section 8 of Act No. 310 which empowers the Board of Medical Examiners to revoke the certificate of a physician who may have been convicted of any offense involving immoral or dishonorable conduct or for unprofessional conduct. III. The court likewise erred in considering to be final the decision of the Board of Medical Examiners revoking the certificate of the herein defendant, notwithstanding the appeal carried to the Board of Health and not yet heard and finally decided thereby as section 8 of Act No. 310 provides. IV. The court also erred in sustaining the objection of the prosecution to the evidence adduced by the defense tending to demonstrate that the defendant's certificate as doctor of medicine represents a value greater than P600. V. The court likewise erred in holding that the "Hotel Quirurgico" is Doctor Gomez himself and that such institution exists only to cloak the violation of the law by the defendant. VI. The court erred, finally, in sentencing the defendant to pay a fine of P200 or, in default thereof, to suffer subsidiary imprisonment and to pay the costs of the trial. The facts disclosed by the record are as follows: 1. That some time prior to the 28th day of August, 1909, the defendant had been admitted, or had been licensed to practiced medicine in the Philippine Islands. 2. That some time prior to the said 28th day of August, 1909, the defendant had been accused, arrested, tried, and found guilty of a violation of the Opium Law. 3. That in the month of August, 1909, the defendant was cited to appear before the "Board of Medical Examiners for the Philippine Islands," to show cause why his license to practice medicine should not be revoked, in accordance with the provisions of section 8 of Act No. 310. 4. That on the date set, the Board proceeded to make an investigation of the question of the revocation of the license of the defendant to practice medicine, based upon the fact that he had been theretofore convicted of an "offense involving immoral or dishonorable conduct." 5. That after the conclusion of said investigation, the Board reached the conclusion (a) that the defendant had been guilty of an "offensive involving immoral or dishonorable conduct;" and (b) adopted a resolution revoking his license to practice medicine. 6. That the defendant was duly notified of the action of said Board. 7. That later the defendant appealed to the Director of Health, which appeal was finally withdrawn by him. 2

8. That later, and after the license of the defendant to practice medicine had been revoked, he did practice medicine in the Philippine Islands by treating, operating upon, prescribing he charged a fee, and that said treating, operating, and prescribing medicine for said various persons were not in cases of emergency, or in the administration of family remedies. 9. That the defendant is not a medical officer of the United States Army, the United States Navy, the United States Marine Hospital Service, nor a physician or surgeon from other countries called in consultation, nor a medical student, practicing medicine under the direct supervision of a preceptor who is a registered doctor of medicine. Upon the foregoing facts, the lower court imposed the fine indicated above. The appellant, in support of his first assignment of error, argues that section 8 of said Act No. 310 is in conflict with the provisions of the Philippine Bill (Act of Congress of July 1, 1902), and is, therefore, void. Act No. 310, among other things, provides: 1. (a) For the creation of "A Board of Medical Examiners for the Philippine Islands." (b) That said Board shall examine candidates desiring to practice medicine in the Philippine Islands, and to issue a certificate of registration to such persons who are found to be qualified, in accordance with the provisions of said law, to practice medicine, etc. 2. That after the 1st of March, 1902, it shall be unlawful for any person to practice medicine, surgery, etc., in any of its branches in the Philippine Islands, unless he hold such certificate of registration. 3. That said Board of Medical Examiners may refuse to issue such certificate of registration to any individual convicted by a court of competent jurisdiction of any offense involving immoral or dishonorable conduct. 4. That said Board might revoke any certificate of registration theretofore granted to any person in case he should be convicted of any offense involving immoral or dishonorable conduct, or for unprofessional conduct. 5. That any person shall be regarded as practicing medicine, who shall treat, operate upon, prescribe, or advise for any physical ailment of another for a fee, or who shall represent himself, by means of signs, cards, advertisements, or otherwise, as a physician or surgeon. 6. That said law did not apply to the rendering of services in case of emergency or the administration of family remedies, or to medical officers of the United States Army, of the United States Navy, or of the United States Marine Hospital Service, or to a physician or surgeon of other countries called in consultation, or to a medical student, practicing under the supervision of a preceptor who is a registered doctor of medicine. It is the power of the Board of Medical Examiners to revoke a license, once granted, to which the appellant especially directs his argument, in support of his contention that said Act is in conflict with the said Act of Congress. Section 8 of Act No. 310 provides: "The Board of Medical Examiners may refuse to issue any of the certificates provided for therein [in this Act] to an individual convicted by a court of competent jurisdiction of any offense involving immoral or dishonorable conduct. In case of

such refusal, the reason therefor shall be stated to the applicant in writing. The Board may also revoke any such certificate for like cause, or for unprofessional conduct, after due notice to the person holding the certificate, and a hearing, subject to an appeal to the Board of Health for the Philippine Islands, the decision of which shall be final." That part of the Act of Congress upon which the appellant relies to show that Act No. 310 is void is paragraph 1 of section 5. Said paragraph reads as follows: "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." The appellants gives three reasons why section 8 of Act No. 310 is void. They are: (a) That the provisions of section 8 of Act No. 310 deprive the herein defendant of his rights or property without due process of law. (b) That the power to revoke the certificate of a doctor of medicine resides solely in the Courts of First Instance and the Supreme Court of the Philippine Islands. (c) That the power granted to the Board of Medical Examiners to revoke the certificate of a physician has been repealed by section 88 of the Philippine Bill. While the assignments of error present various questions, the real questions presented are three: 1. The right of the state to require of those who desire to practice medicine and surgery, etc., certain standards of morality and general and special scholarship, as a prerequisite said professions. 2. The right of the state to revoke such a license, once granted; and 3. The right of the state to punish, by fine or imprisonment, or both, those attempt to practice the professions of medicine, surgery, etc., without a license, and in violation of the law. The appellant argues, in support of his right assignment of error: 1. That section 8 of Act No. 310 is null and void because it deprives him of a right or of property, without due process of law; 2. That the Board of Medical Examiners had no authority or right to revoke his license; that right, if any exists of all, belongs to the courts, and 3. That said section 8 has been repealed by section 88 of the Act of Congress of July 1, 1902 (The Philippine Bill). Generally speaking, with reference to the general and inherent power of the state, we think the following propositions are so well established that they no longer admit of dispute or discussion: 1. The state has general power to enact such laws, in relation to persons and property within its borders, as may promote public health, public morals, public safety, and the general prosperity and welfare of its inhabitants. (New York City vs. Miln, 11 Pet. (U.S.), 102, 139; Passenger Cases, 7 How. (U.S.), 283, 423; Slaughterhouse House Cases, 16 Wall., 36, 62; Beer Co. vs. Mass., 97 U.S., 25; Mugler vs. Kansas, 123 U.S., 623; Dent vs. W. Virginia, 129 U.S., 114 (25 W. Va., 1); Hawker vs. N.Y., 170 U.S., 189; Case vs. .Board of Health, 24 Phil. Rep., 250.)

2. To make reasonable provision for determining the qualifications of those engaging in the practice of medicine and surgery, and punishing those who attempt to engage therein in defiance of such provisions. (Dent vs. W. Virginia, 129 U.S., 114 (25 W. Va., 1); Hawker vs. N.Y., 170 U.S., 189; Reetz vs. Michigan, 188 U.S., 505; State vs. Webster, 150 Ind., 607.) This power of the state is generally denominated the police power. It has been held that the state cannot be deprived of its right to exercise this power. The police power and the right to exercise its constitute the very foundation, or at least one of the corner stones, of the state. For the state to deprive itself or permit itself to be deprived of the right to enact laws to promote the general prosperity and welfare of its inhabitants, and promote public health, public morals, and public safety, would be to destroy the very purpose and objects of the state. No legislature can bargain away the public health, public safety, or the public morals. The people themselves cannot do it, much less their servants. Governments are organized with a view to the preservation of these things. They cannot deprive themselves of the power to provide for them. (Stone vs. Mississippi, 101 U.S., 814, 816.) It has been held that a constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, public morals, or public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense and to the same extent as are all contracts and all property, whether owned by natural persons or corporations. (New Orleans Gas Light Co. Louisiana Light Co., 115 U.S., 650, 672.) In order to enforce the police power of the state, it may, under certain conditions, become necessary to deprive its citizens of property and of a right providing for the continuance of property, when the property or the exercise of the right may tend to destroy the public health, the public morals, the public safety, and the general welfare and prosperity of its inhabitants. For example, a tannery, a slaughterhouse, or a fertilizing establishment may be located in such proximity to the residence portion of a city as to become a menace to the public health and the welfare of the inhabitants. In such a case the discontinuance or the removal of such institutions may be ordered, under the police power of the state, even though it amounts to depriving persons of their private property. (Slaughter House Cases, 16 Wal., 36, 62; Fertilizing co. vs. Hyde Park, 97 U.S., 659.) Mr. Chancellor Kent, in his valuable commentaries, in discussing the police power (2 Kent's Commentaries, 340) says: "Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to the propelling of cars, the building with combustible materials, and the burial of the dead may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interest of the community." This power is called the police power of the state. (Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 84.) The police power is so extensive and so comprehensive that the courts have refused to give it an exact definition; neither have they attempted to define its limitations. Upon the police power of the state depends the security of social order, the life and health of the citizens, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. It extends to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state. Persons and property are subjected to all kinds of restraints and burdens, in order to secure the general

comfort, health, and prosperity of the state. (Thorpe vs. Rutland & B.R. Co., 27 Vt., 140, 149; New York City vs. Miln, 11 Pet. (U.S.), 102; Slaughter House Cases, 16, Wall., 36, 62.) Neither will it be denied that the owner of a building, which, by reason of its decayed condition, becomes a menace to public safety, may be ordered to destroy the same, and thus be deprived of his property. He may be ordered to repair or destroy it. Private property, under the police power, may be destroyed to prevent the spread of a conflagration in order to save lives and property. The existence of bawdy houses which tends to greatly affect the morals of the people of a community may be destroyed or may be removed. A manufacturing plant, so located in a thickly settled community as to greatly disturb the peace and comfort of the inhabitants, may be ordered closed or removed. The state, under its police power, may regulate or prohibit the manufacture and sale of intoxicating liquors as a beverage within its borders. Such a law may destroy the established business of thousands of its inhabitants. (Mugler vs. Kansas, 123 U.S., 623; License Cases, 5 How., 504.) If any state deems that the retailing or trafficking in ardent spirits is injurious to its citizens and calculated to produce idleness, vice, or debauchery, there is nothing in the Constitution of the United States to prevent it from regulating and restricting such traffic, or from prohibiting it altogether, if it think proper. The state may even declare that buildings where intoxicating liquors are distilled or sold shall be a nuisance and ordered destroyed. (Mugler vs. Kansas, 123 U.S., 623.) The state may regulate its domestic commerce, contracts, the transmission of estates, real and personal, and act upon all internal matters which relate to its moral and political welfare. Over these subjects federal governments exercise no power. The acknowledged police power of the state extends even to the destruction of property. A nuisance may be abated. Everything prejudicial to the health or morals of a city may be removed. (Licenses Cases, 5 How., 504; Beer Co. vs. Mass., 97 U.S., 25, 33; Foster vs. Kansas, 112 U.S., 201, 206; Case vs. Board of Health, 24 Phil. Rep., 250; Mugler vs. Kansas, 123 U.S., 623.) The police power of state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within its borders. Under the general police power of the state, persons and property are subjected to all kinds of restrictions and burdens in order to secure the general health, comfort, and prosperity of all. This power, or the right to exercise it, as need may require, cannot be bargained away by the state. (Case vs. Board of Health, supra.) Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the quiet enjoyment of the same right by others. (Case vs. Board of Health, supra; Holden vs. Hardy, 169 U.S., 366, 395.) It is as much for the interest of the state that public health should be preserved as that life should be made secure. With this end in view, quarantine laws have been enacted in most, if not all, civilized states. Insane asylums, public hospitals, institutions for the care and education of the blind have been established, and special measures taken for the exclusion of infected cattle, rags, and decayed fruit. States have enacted laws limiting the hours during which women and children shall be employed in factories. (Case vs. Board of Health, supra.) The present is not the first case which has been presented to the courts relating to the right of the state to regulate the practice of medicine and surgery, and to define the conditions under which such practice may be continued and to revoke the license granted to exercise such professions. Legislation or statutory regulations, similar to the one which we are now discussing, have been adopted in practically every one of the States of the Union. The constitutionality of such legislation has been questioned in practically all of States where such legislation exists. Such statutes have been uniformly sustained. (State vs. Webster, 150 Ind., 607, 616; Dent vs. W. 4

Virginia, 25 W .Va., 1 (129 U.S., 114); Ex parte Frazer, 54 Cal., 94; Harding vs. People, 10 Colo., 387; People vs. Blue Mountain Joe, 129 Ill., 370; State vs. Mosher, 78 Iowa, 321; Iowa Eclectic Medical College vs. Schrader, 87 Iowa, 659 (20 L.R.A., 355); Driscoll vs. Commonwealth, 93 Ky., 393; Hewitt vs. Charier, 16 Pick. (Mass.), 353; Reetz vs. Michigan, 188 U.S., 505; People vs. Phippin, 70 Mich., 6; State vs. State Medical Examining Board, 32 Minn., 324; State vs. Fleischer, 41 Minn., 69; State vs. District Court, 13 Mont., 370; Gee Wo vs. State, 36 Neb., 241; State vs. Van Doran, 109 N.C., 864; State vs. Randolph, 23 Ore., 74.) The constitutionality of similar legislation, regulating the practice of dentistry, has been presented in many of the States, and has been sustained. (Wilkins vs. State, 113 Ind., 514; Gosnel vs. State, 52 Ark., 228; State vs. Vanderluis, 42 Minn., 129; State vs. Creditor, 44 Kansas, 565.) So also have similar statutory regulations been sustained affecting the practice of pharmacy. (Hildreth vs. Crawford, 65 Iowa, 339; People vs. Moorman, 86 Mich., 433; State vs. Forcier, 65 N.H., 42.) Various States have attempted to regulate by statute the trade of plumbing, of horseshoeing, as well as that of engineering. Even the trade of barbering is subject to statutory regulation in some States, because it has relation to the health of the people. (Singer vs. State, 72 Md., 464; People vs. Warden, 144 N.Y., 529; Smith vs. Alabama, 124 U.S., 465.) Legislation analogous to that under discussion has also been adopted in various States relating to the practice of the profession of law. The constitutionality of such legislation has been uniformly sustained. (State vs. Gazlay, 5 Ohio, 14; Goldwaite vs. City Council, 50 Ala., 486; Cohen vs. Wright, 22 Cal., 293; Ex parte Yale, 24 Cal., 241.) In every case where the constitutionality of similar statutes has been questioned, it has been held that it is within the power of the legislature to prescribe the qualifications for the practice of professions or trades which affect the public welfare, the public health, the public morals, and the public safety, and to regulate or control such professions or trades, even to the point of revoking such right altogether. The trade of plumbing vitally affects the health of the people. The lives of thousands of people may depend upon the result of the work of an engineer. The property and life of citizens of the state may depend upon the advice of a lawyer, and no profession or trade is more directly connected with the health and comfort of the people than that of a physician and surgeon. The practice of medicine and surgery is a vocation which very nearly concerns the comfort, health, and life of every person in the land. Physicians and surgeons have committed to their care most important interests, and it is of almost imperious necessity that only persons possessing skill and knowledge shall be permitted to practice medicine and surgery. For centuries the law has required physicians to possess and exercise skill and learning. Courts have not hesitated to punish those who have caused damages for lack of such skill and learning. The requirement of the Philippine Legislature that those who may engage in such professions shall be possessed of both knowledge and skill before entering the same is no new principle of law. It is an exercise of the right of the state, under its police power, which has been recognized for centuries. No one can doubt the great importance to the community that health, life, and limb should be protected and not be left in the hands of ignorant pretenders, and that the services of reputable, skilled and learned men should be secured to them.

In the case of Dent vs. W. Virginia (129 U.S., 114), the late Mr. Justice Field, speaking for the court, said: "It is undoubtedly the right of every citizen [of the United States] to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and conditions. This right may in many aspects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to everyone on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them that is, the right to continue their prosecution is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right when its exercise is not permitted because of a failure to comply with conditions imposed by the state for the prosecution of society. The power (police power) of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure, or tend to secure, them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end, it has been the practice of different States, from the time immemorial, to exact in many pursuits (professions or trades) a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institutions established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. ... Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend and requires not only a knowledge of the properties of vegetables and mineral substances, but of the human body in all its complicated parts and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Everyone may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the state to exclude from practice those who have not such a license, or who are found, upon examination, not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetables and mineral substances, or a more accurate knowledge is acquired of the human system, and of the agencies by which it is affected. ... We perceive nothing in the statute which indicates an intentions of the legislature to deprive one of any of his rights. No one has a right to practice medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the state as competent to judge of his qualifications." The appellant contends, however, that the Legislature exceeded its authority in conferring upon the Board of Medical Examiners the right to revoke his license. He contends that the right to revoke it rests in the judicial department of the Government; that the courts only are possessed of the right, if the right exists, to revoke his license and to deprive him of his right to practice his profession of medicine and surgery. It will be remembered that the law conferred upon the Board the right to grant the certificate, as well sa the right to revoke it, subject to the right of appeal to the Director of Health. While, in some respects, the power exercised by the Board is quasi judicial, the action of the Board is not judicial, any more than the action of a board 5

appointed to determine the qualifications of applicants for admission to the bar, nor that of a board appointed to pass upon the qualifications of applicants to be admitted to the profession of teaching. In many of the States of the Union, no one can engage in the trade of barbering, or horseshoeing, without passing an examination before a board specially appointed for that purpose. States have deemed it wiser to place such power and discretion in boards composed of men especially qualified, by reason of their learning and scientific knowledge, rather than in the courts. It is contended that the law provides no appeal from the decision of the board to the courts, and is, for that reason, null and void. A law is not necessarily invalid, if it provides a remedy for those affected thereby, simply because it does not provides for an appeal to the courts. Due process of law is not necessarily judicial process. (Murray's Lessee vs. Hoboken Land etc. Co., 18 How. (U.S.), 372; Davidson vs. New Orleans, 96 U.S., 97; Ex parte Wall, 107 U.S., 265, 289; Dreyer vs. Illinois, 187 U.S., 71, 83; Reetz vs. Michigan, 188 U.S., 505.) Indeed, it not infrequently happens that a full discharge of the duties conferred upon boards and commissions or officers of a purely ministerial character requires them to consider and to finally determine questions of a purely legal character. The legislature may confer upon persons, boards, officers, and commissions the right to finally decide may questions affecting various interest of the people of the state. If a remedy is granted, the law will be valid, even though no appeal to the courts is provided. The right of appeal is a purely statutory right; it is not an inherent right. The right to appeal was not at common law, and it is not now, a necessary element of due process of law. (McKane vs. Durston, 153 U.S., 684, 687; Reetz vs. Michigan, 188 U.S., 505, 508.) The objection that the statute confers judicial power upon the Board of Medical Examiners is not well founded. The law provided for an appeal to the Director of Health. Many executive officers, even those who are are regarded as purely ministerial officers, act judicially in the determination of facts in the performance of their duties, and in so doing "they do not exercise judicial power," as that phrase is commonly used, and as it is used in the Organic Act in conferring judicial power upon specified courts. The powers conferred upon the Board of Medical Examiners are in no wise different in character, in this respect, from those exercised by those of examiners of candidates to teach in our public schools, or by tax assessors, or boards of equalization, in the determination for the purposes of taxation, the value of property. The ascertainment and determination of the qualifications to practice medicine, by a board appointed for that purpose, composed of experts, is not the exercise of a power which appropriately belongs to the judicial department of the Government. The same is true with reference to the power conferred upon such a board to revoke a license, for the reasons given in the law. (People vs. Hasbrouck, 11 Utah, 291; Reetz vs. Michigan 188 U.S., 505, 507.) The appellant further argues and contends that the present law is repealed by section 88 of the Act of Congress of July 1, 1902. We think from the foregoing argument we have shown that there is nothing in said Act of Congress which is inconsistent with the provisions of Act No. 310, under consideration, and that it is not repealed. What has been said, we think also answers the argument of the appellant in support of his second, third, and fourth assignments of error. It may be well, however, to observe in relation to the third assignment that the appellant cannot object to the decision of the Board, when he himself, after his appeal, voluntarily withdrew it. With reference to the fifth assignment of error, the record shows, beyond question, that the appellant had personally engaged in the practice of medicine and surgery, in clear contravention of the law, without being authorized so to do. It is a matter of little importance whether the

appellant practiced medicine and surgery as the "Hotel Quirurgico" or not. The record shows that he personally and illegally engaged in the practice of medicine. The poor sick patients who called him for medical assistance certainly did not believe or think that they were calling the "Hotel Quirurgico." They believed that they were being treated by the appellant. So ordered. For all of the foregoing reasons the sentence of the lower court is hereby affirmed, with costs. Arellano, C.J., Torres, Carson, Trent, and Araullo, JJ., concur.

CASE 2: G.R. No. L-14078

March 7, 1919 RUBI, ET AL. (manguianes), plaintiffs, vs. THE PROVINCIAL BOARD OF MINDORO, defendant. D. R. Williams & Filemon Sotto for plaintiff. Office of the Solicitor-General Paredes for defendant. MALCOLM, J.: In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative power of state, the controlling power of the constitution and laws, the rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now to be considered. To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues, next to give a history of the so called "non-Christians," next to compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the constitutional questions presented. I. INTRODUCTION. This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away form the reservation. The return of the Solicitor-General alleges: 1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows: The provincial governor, Hon. Juan Morente, Jr., presented the following resolution: "Whereas several attempts and schemes have been made for the advancement of the nonChristian people of Mindoro, which were all a failure, "Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work of this province, no successful result will be obtained toward educating these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent settlement, "Whereas the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. "Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it "Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and "Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor." 2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the Interior of February 21, 1917. 3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says: "Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. "Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on February 21, 1917. "Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of section 2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917. "Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed in sixty days, in accordance with section 2759 of the revised Administrative Code." 4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. 5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711. 6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711. 7

It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved by the provincial board. The action was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount question which the court is called upon the decide. Section 2145 of the Administrative Code of 1917 reads as follows: SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an approved by the provincial board. In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as follows: SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any non-Christian who shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisonment for a period not exceeding sixty days. The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387. Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities towards these "non-Christians," with particular regard for the legislation on the subject. II. HISTORY. A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20, 1578, THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES). In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to use all the means most convenient to the attainment of these purposes. To carry out this work with success, our Council of the Indies and other religious persons met at various times; the prelates of new Spain assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six all of which meetings were actuated with a desire to serve God an our Kingdom. At these meetings it was resolved that indios be made to live in communities, and not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of all spiritual and temporal benefits and wherein they cannot profit from the aid of our ministers and from that which gives rise to those human necessities which men are obliged to give one another. Having realized that convenience of this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys, presidents, and governors to execute with great care and moderation the concentration of the indios into reducciones; and to deal with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would not presently settle and who would see the good treatment and the protection of those already in settlements would, of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the same be complied with in all the remaining parts of the Indies, and the encomederos shall entreat compliance thereof in the manner and form prescribed by the laws of this title. xxx LAW VIII. Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618. THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW. The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands, and mountains, ingress and egress, husbandry and passageway of one league long, wherein the indios can have their live stock that they may not be mixed with those of the Spaniards. LAW IX. Philip II at Toledo, on February 19, 1956. THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM. With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change shall be made in this respect, and that they be allowed 8 xxx xxx

The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the following language. LAW I. The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on

to retain the lands held by them previously so that they may cultivate them and profit therefrom. xxx LAW XIII. THE SAME AS ABOVE. THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT. No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove the pueblos or the reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by offering or giving information to that en. And, because these claims are often made for private interests and not for those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the judge or encomendero who should violate this law. LAW XV. Philip III at Madrid, on October 10, 1618. THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS." We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more than two mayors and four aldermen, If there be less than eighty indios but not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine others, in the presence of the priests , as is the practice in town inhabited by Spaniards and indios. LAW XXI. Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7. THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES. We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in the reducciones and towns and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders and vices which may corrupt and pervert the goal xxx xxx

which we desire to reach with regard to their salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon the commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses and haciendas, they all not be affected by this law, it appearing to be a harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.) A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows: It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a nation should respect and obey the laws in force therein; while, on other hand, it is the duty to conscience and to humanity for all governments to civilize those backward races that might exist in the nation, and which living in the obscurity of ignorance, lack of all the nations which enable them to grasp the moral and material advantages that may be acquired in those towns under the protection and vigilance afforded them by the same laws. It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the non-Christian races from the social life of the civilized and Christian towns; to allow any longer the commission of depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of the, metropolis. It is but just to admit the fact that all the governments have occupied themselves with this most important question, and that much has been heretofore accomplished with the help and selfdenial of the missionary fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but the means and the preaching employed to allure them have been insufficient to complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded against, thus giving and customs of isolation. As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige which the country demands and the inevitable duty which every government has in enforcing respect and obedience to the national laws on the part of all who reside within the territory under its control, I have proceeded in the premises by giving the most careful study of this serious question which involves important interests for civilization, from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and the only form of accomplishing such a task. For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following: 9

DECREE. 1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the common law, save those exceptions prescribed in this decree which are bases upon the differences of instructions, of the customs, and of the necessities of the different pagan races which occupy a part of its territory. 2. The diverse rules which should be promulgated for each of these races which may be divided into three classes; one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These rules shall have executive character, beginning with the first day of next April, and, as to their compliance, they must be observed in the manner prescribed below. 3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlement already subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as regards the administrative organization of the said towns or settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to render personal services other than those previously indicated. 4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the inhabitants thereof shall not be obliged to move their dwellinghouses; and only in case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the least their interest; and, in either of these cases, an effort must be made to establish their homes with the reach of the sound of the bell. 5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of native Christian, the organization and service of which shall be determined in a regulations based upon that of the abolished Tercios de Policia (division of the Guardia Civil). 6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting them and the liberty which they have as to where and now they shall till their lands and sell the products thereof, with the only exception of the tobacco which shall be bought by the Hacienda at the same price and conditions allowed other producers, and with the prohibition against these new towns as well as the others from engaging in commerce of any other transaction with the rebellious indios, the violation of which shall be punished with deportation. 7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indios shall be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all by this fact along be exempt for eight years from rendering personal labor. 9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains igorrots the following advantages in returns for their voluntary submission: to live in towns; unity among their families; concession of good lands and the right to cultivate them in the manner they wish and in the way them deem most productive; support during a year, and clothes upon effecting submission; respect for their habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as the ones who elect such officials under the direct charge of the authorities of the province or district. 10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place them in communication with one another and with the Christians; provided, the location of these towns be distant from their actual residences, when the latter do not have the good conditions of location and cultivations, and provided further the putting of families in a place so selected by them be authorized in the towns already constituted. 11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing from now on the crimes and vexations against the Christian towns; and for the this purposes, the Captain General's Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a detachment of the military staff to study the zones where such operations shall take place and everything conducive to the successful accomplishment of the same. 12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my authorities, local authorities, and other subordinates to may authority, civil as well as military authorities, shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each. 13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them. 14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent commission which shall attend to and decide all the questions relative to the application of the foregoing regulations that may be brought to it for consultations by the chiefs of provinces and priests and missionaries.

10

15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about due compliance with this decree, shall be promulgated by the respective official centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.) B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. 1. Organic law.

Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 an d1917. Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547: No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO. By authority of the United States, be it enacted by the Philippine Commission, that: SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government, the provincial governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their designations and badges of office, and to prescribe their powers and duties: Provided, That the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act Numbered Three hundred and eighty-seven entitled "An Act providing for the establishment of local civil Governments in the townships and settlements of Nueva Vizcaya." SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who refuse to comply with such directions shall upon conviction be imprisonment for a period not exceeding sixty days. SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and experience necessary for successful local popular government, and his supervision and control over them shall be exercised to this end, an to the end that law and order and individual freedom shall be maintained. SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such township shall be fixed by the provincial board. 11

The first order of an organic character after the inauguration of the American Government in the Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely: In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs. Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes. The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision over the public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22). Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian tribes, and the territory which is inhabited by Moros or other non-Christian tribes. 2. Statute law.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of laws,' passed September twenty-sixth, nineteen hundred. SEC. 6. This Act shall take effect on its passage.

Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.) Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning. In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other nonChristian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes. Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical description. It is well-known that within the specially organized provinces, there live persons some of who are Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.) If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The reason it that the motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants. At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future political status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.) The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative, judicial, and executive authority. The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing about their advancement in civilization and material property prosperity."

Enacted, December 4, 1902. All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions in questions. These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the methods to be followed for their advancement. C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms. "Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission. The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the Philippines Commission, establishing a Bureau of nonChristian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551. "Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission. The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.) D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited section 2576 of the last Administrative Code and certain well-known authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M.

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As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage in connection with article 423 of the Penal code concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following language: . . . we are not advised of any provision of law which recognizes as legal a tribal marriage of socalled non-Christians or members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by General Orders no. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked extenuating circumstance. Of much more moment is the uniform construction of execution officials who have been called upon to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all governor of provinces, organized under the Special Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows: Sir: Within the past few months, the question has arisen as to whether people who were originally non-Christian but have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered Christian or non-Christians. It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people having any particular religious belief as for those lacking sufficient advancement so that they could, to their own advantage, be brought under the Provincial Government Act and the Municipal Code. The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of so-called "wild tribes" of your province the benefit of the doubt even though they may recently have embraced Christianity. The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly organized municipalities or what form of government shall be afforded to them should be the degree of civilization to which they have attained and you are requested to govern yourself accordingly. I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed and who will have the necessary instructions given to the governors of the provinces organized under the Provincial Government Act. (Internal Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject: As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as yet been made the present classification should be allowed to stand . . . I believe the term carries the same meaning as the expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for the hold that it is indicative of religious denomination will make the law invalid as against that Constitutional guaranty of religious freedom. Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214): The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of Christian worship are alone subject to the cedula tax, and that all other person are exempt; he has interpreted it to mean that all persons preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are therefore being collected by this Office in all parts of these Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto. (Sgd.) JNO. S. HORD, Collector of Internal Revenue. On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads: In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from members of non-Christian tribes when they come in from the hills for the purposes of settling down and becoming members of the body politic of the Philippine Islands,

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the following clarification of the laws governing such questions and digest of rulings thereunder is hereby published for the information of all concerned: Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the Philippine Islands classed as members of non-Christian tribes may be divided into three classes in so far as the cedula tax law is concerned . . . Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal relations he may have had and attaches himself civilized community, belonging a member of the body politic, he thereby makes himself subject to precisely the same law that governs the other members of that community and from and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to pay the tax for former years. In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of advancement in civilization and connection or lack of connection with some civilized community. For this reason so called "Remontados" and "Montescos" will be classed by this office as members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of other recognized non-Christina tribes. Very respectfully, (Sgd.) ELLIS CROMWELL, Collector of Internal Revenue, Approved: (Sgd.) GREGORIO ARANETA, Secretary of Finance and Justice. The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327. The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion of the Attorney-General as to the status of a non-Christian who has been baptized by a minister of the Gospel. The precise questions were these: "Does he remain nonChristian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same authorities hereinbefore set out, concludes:

In conformity with the above quoted constructions, it is probable that is probable that the person in question remains a non-Christian, so that, in purchasing intoxicating liquors both he and the person selling the same make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions place upon the law until a court shall hold otherwise. Solicitor-General Paredes in his brief in this case says: With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative code which we are studying, we submit that said phrase does not have its natural meaning which would include all non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in the mountains, beyond the reach of law and order . . . The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life, did not intended to establish a distinction based on the religious beliefs of the individual, but, without dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the Philippines. The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because this is the evident intention of the law, but because to give it its lateral meaning would make the law null and unconstitutional as making distinctions base the religion of the individual. The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division under the title nonChristian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to religion. In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart from settled communities. E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro.

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Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de Filipinas, says: In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that the use of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it to-day, but its employed in three Filipino languages shows that the radical ngian had in all these languages a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the modern invaders, in whose language they were called the "ancients." The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, seminomadic people. They number approximately 15,000. The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.) III. COMPARATIVE THE AMERICAN INDIANS.

The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one and of a complex character. Following the policy of the European Governments in the discovery of American towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its lands, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relation are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. The opinion then continues: It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of the nation. The are communities dependent on the United States. dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from the no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen . . . The power of the General Government over these remnants of race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the reports of the different superintendent charged with guarding their interests and founds that these Indians are dependent upon the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection, where subjected to restraints and official supervisions in the alienation of their property." And finally, we not the following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state." 15

Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists." A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows:

The reasoning advanced in support of my views, leads me to conclude: With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.) All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions. The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits of the Indian Territory had departed therefrom without permission from the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory. The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The decision concluded as follows: 1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States. 2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws therefore. 3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do. 4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And, 5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered. As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide. As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservation, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the segregation of the different Indian tribes in the United States. IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER. The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full responsibility. That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An understanding of the rule will, however, disclose that it has not bee violated in his instance.

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The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of case, namely: "The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments of subordinate official thereof, to whom t has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to the "necessity" of the case. Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this "necessary"? The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out to the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.) There is another aspect of the question, which once accepted, is decisive. An exception to the general rule. sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board. Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to judge "when such as course is deemed necessary in the interest of law and order?" As officials charged with the administration of the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state? Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial official and a department head. B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional." Counsel's premise once being conceded, his arguments is answerable the Legislature must be understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals an account of religious differences. C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then as much for the non-Christian as for the Christian. The conception of civil liberty has been variously expressed thus: Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.) Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II Webster's Works, p. 393.) Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do desire. (Montesque, spirit of the Laws.) Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.) Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not 17

exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human government especially of any free government existing under a written Constitution to interfere with the exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.) Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual. (Apolinario Mabini.) Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion. In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.) One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.) None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of

law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.) The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature. We break off with the foregoing statement, leaving the logical deductions to be made later on. D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.) So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a description of the police power under which the State must act if section 2145 is to be held valid. E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching scope of the power, that it has become almost possible to limit its weep, and that among its purposes is the power to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to is wealth and prosperity. (See Barbier 18

vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the exercise of the police power. "The police power of the State," one court has said, . . . "is a power coextensive with selfprotection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental principles which lie at the foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.) With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated. F. LEGISLATIVE INTENT.

"It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade the influence of civilization. The Government will follow its policy to organize them into political communities and to educate their children with the object of making them useful citizens of this country. To permit them to live a wayfaring life will ultimately result in a burden to the state and on account of their ignorance, they will commit crimes and make depredation, or if not they will be subject to involuntary servitude by those who may want to abuse them." The Secretary of the Interior, who is the official charged with the supervision of all the nonChristian people, has adopted as the polaris of his administration "the advancement of the non-Christian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures: (a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities. (b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people. (c) The extention of public works throughout the Mohammedan regions to facilitate their development and the extention of government control. (d) Construction of roads and trials between one place and another among nonChristians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people. (e) Pursuance of the development of natural economic resources, especially agriculture.

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the non-Christian people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes. The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following: To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during the period of less than one year since the beginning of the institution definitely justify its continuance and development. Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the press:

(f) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu. The Secretary adds: To attain the end desired, work of a civilizing influence have been continued among the nonChristian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and per manent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and political equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for 1917.) The fundamental objective of governmental policy is to establish friendly relations with the socalled non-Christians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in the following unequivocal terms: 19

It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and complete manner the moral, material, economic, social, and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and nonChristian elements populating the provinces of the Archipelago. (Sec. 3.) May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these people? In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the same class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection for the manguianes. Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State but instead injuring and damaging its interests, what will ultimately become of these people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let along in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will become useful citizens. In the light of what has already been accomplished which has been winning the gratitude of most of the backward people, shall we give up the noble work simply because a certain element, believing that their personal interests would be injured by such a measure has come forward and challenged the authority of the Government to lead this people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus left in a permanent state 20

of savagery and become a vulnerable point to attack by those who doubt, nay challenge, the ability of the nation to deal with our backward brothers. The manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to improve their living conditions. They are being made to understand that they object of the government is to organize them politically into fixed and permanent communities. They are being aided to live and work. Their children are being educated in a school especially established for them. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a condition compelled to do services for another. They do not work for anybody but for themselves. There is, therefore, no involuntary servitude. But they are compelled to live there and prohibited from emigrating to some other places under penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life, do not have permanent individual property. They move from one place to another as the conditions of living warrants, and the entire space where they are roving about is the property of the nation, the greater part being lands of public domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire territory? This measure is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. G. APPLICATION AND CONCLUSION.

The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the individual members of society be subordinated to the will of the Government? It is a question which has assailed the very existence of government from the beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government renders imperatives a power to restrain the individual to some extent, dependent, of course, on the necessities of the class attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a along time to come will be, impossible for the courts to determine. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown as widespread belief in the amplest possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trial after the other two branches of the government in this progressive march. Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy. Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the law, there exists a law ; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that section 2145 is valid. it the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes: We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice may dictate." Our attempt at giving a brief history of the Philippines with reference to the so-called nonChristians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental 21

Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion. In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not, however, be kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and followed time and again without question. It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally be that the official into whose hands are given the enforcement of the law would have little or not motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression is called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose.

policy, must be confined for a time, as we have said, for their own good and the good of the country. Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered case is toward non-interference on the part of the courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case presents, the courts must take "a chance," it should be with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are the other departments of the Government. We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional. Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered. Arellano, C.J., Torres and Avancea, JJ., concur.

in the Philippine statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it is feasible and practicable to extend to, and enforce upon its membership the general laws and regulations, administrative, legislative, and judicial, which control the conduct of the admitted civilized inhabitants of the Islands; a made of life, furthermore, which does not find expression in tribal customs or practices which tend to brutalize or debauch the members of the tribe indulging in such customs or practices, or to expose to loss or peril the lives or property of those who may be brought in contact with members of the tribe. So the standard of civilization to which any given number or group of inhabitants of particular province in these Islands, or any individual member of such a group, must be found to have advanced, in order to remove such group or individual from the class embraced within the statutory description of "non-Christian," is that degree of civilization which would naturally and normally result in the withdrawal by such persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at any time adhered to or maintained allegiance to such a tribe; and which would qualify them whether they reside within or beyond the habitat of a "nonChristian" tribe, not only to maintain a mode of life independent of a apart from that maintain by such tribe, but a mode of life as would not be inimical to the lives or property or general welfare of the civilized inhabitants of the Islands with whom they are brought in contact. The contention that, in this particular case, and without challenging the validity of the statute, the writ should issue because of the failure to give these petitioners, as well as the rest of the fifteen thousand Manguianes affected by the reconcentration order, an opportunity to be heard before any attempt was made to enforce it, begs the question and is, of course, tantamount to a contention that there is no authority in law for the issuance of such an order. If the fifteen thousand manguianes affected by the order complained of had attained that degree of civilization which would have made it practicable to serve notice upon, and give an opportunity for a real hearing, to all the members of the tribe affected by the order, it may well be doubted whether the provincial board and the Secretary of the Interior would have been justified in its enforcement By what proceeding known to the law, or to be specially adopted in a particular case, could the offices of any province provide for a genuine hearing upon a proposal to issue a reconcentration order upon a head-hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes whose habitat is in the mountain fastnesses of Mindanao, and whose individual members have no fixed or known place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of Mindoro. Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in the United States when tribes or groups of American Indians have been placed upon reservations; but since non-Christian head men and chiefs in the Philippines have no lawful authority to bind their acts or their consent, the objection based on lack of a hearing, would have the same force whether the issuance of a reconcentration order was or was not preceded by a pow-wow of this kind. The truth of the mater is that the power to provide for the issuance of such orders rests upon analogous principles to those upon which the liberty and freedom or action of children and persons of unsound minds is restrained, without consulting their wishes, but for their own good and the general welfare. The power rests upon necessity, that "great master of all things," and is properly exercised only where certain individuals or groups of individual are found to be of such a low grade of civilization that their own wishes cannot be permitted to determine their mode of life or place of residence.

Separate Opinions CARSON, J., concurring: I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing, opinion. The words "non-Christian' have a clear, definite and well settled signification when used in the Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants," dwelling in more or less remote districts and provinces throughout the Islands. Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statute-book, denote the 'low grace of civilization" of the individuals included in the class to which they are applied. To this I would add that the tests for the determination of the fact that an individual or tribes is, or is not of the "non-Christian" are, and throughout the period of American occupation always have been, "the mode of life, the degree of advancement in civilization, and connection or lack of connection with some civilized community." (Cf. letter of Collector of Internal Revenue dated September 17, 1910, and set out in the principal opinion.) The legislative and administrative history of the Philippine Islands clearly discloses that the standard of civilization to which a specific tribe must be found to have advanced, to justify its removal from the class embraces with the descriptive term "non-Christian," as that term is used

22

The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal attitude assume toward them by the Insular Government is well illustrated by the following provisions found in the Administrative Code of 1917: SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). It shall be the duty of the Bureau of non-Christian tribes to continue the work for advancement and liberty in favor of the regions inhabited by non-Christian Filipinos and to foster by all adequate means and in a systematic, rapid, and completely manner the moral, material, economic, social and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between and complete fusion of all the Christian and non-Christian elements populating the provinces of the Archipelago. SEC. 2116. Township and settlement fund. There shall be maintained in the provincial treasuries of the respective specially organized provinces a special fund to be known as the township and settlement fund, which shall be available, exclusively, for expenditures for the benefit of the townships and settlements of the province, and non-Christian inhabitants of the province, upon approval of the Secretary of the Interior. As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts of these Islands in habeas corpus proceedings, to review the action of the administrative authorities in the enforcement of reconcentration orders issued, under authority of section 2145 of the Administrative Code, against a petitioner challenging the alleged fact that he is a "non-Christian" as that term is used in the statute. I, therefore, express no opinion on that question at this time.

sheriff and placed in prision at Calapan, solely because he escaped from the reservation. The Manguianes used out a writ of habeas corpus in this court, alleging that they are deprived of their liberty in violation of law. The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion which states that the provincial governor of Mindoro with the prior approval of his act by the Department Secretary ordered the placing of the petitioners and others on a reservation. The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are peaceful, timid, primitive, seminomadic people. They number approximately 15,000 (?). The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have no progressed sufficiently in civilization to make it practicable to bring them under any for of municipal government." It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles and a populations of 28, 361 of which 7, 369 are wild or uncivilized tribes (Manguianes). This appears to be the total Mangyan population of the province. The total population was less than seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407). The Island is fertile, heavily wooded and well watered. It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by Manguianes. The Manguianes roamed its mountains and valleys, fishing and hunting at will long before Magallanes [Magellan] anchored his boats in the water of Cebu. They have made little or no progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic people," whom the Government of the Philippines Islands would bring under the beneficient influence of civilization and progress. The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do not take kindly to the ways provided for civilizing them section 2759 provides the punishment. The attorney for the petitioners has raised various constitutional questions, but only the fundamental one will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759, quoted in the majority opinion, are in violation of the first paragraph of section 3 of the Act of Congress of August 29, 1916, which reads as follows: That no law shall be enacted in said Islands which shall deprive any person of life, liberty or property without due process of law, or deny to any person therein the equal protection of the laws. It is not necessary to argue that a Mangyan is one of the persons protected by that provision. The Attorney-General argues that the treatment provided for the Manguianes is similar to that accorded the Indians in the United States, and reference is made all through the court's decision to the decisions of the United States Supreme Court with reference to the Indians. It is not considered necessary to go into these cases for the simple reason that all the Indians nations in 23

JOHNSON, J., dissenting: I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I cannot give my consent to any act which deprives the humblest citizen of his just liberty without a hearing, whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled to a hearing, at least, before they are deprived of their liberty.

MOIR, J., dissenting: I dissent. I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to let this decision go on record without expressing may strong dissent from the opinion of Justice Malcolm, concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go into the question in detail. I shall simply state, as briefly as may be, the legal and human side of the case as it presents itself to my mind. The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered by the Provincial governor of Mindoro to remove their residence from their native habitat and to establish themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or be punished by imprisonment if they escaped. This reservation, as appears from the resolution of the provincial board, extends over an area of 800 hectares of land, which is approximately 2,000 acres, on which about three hundred manguianes are confined. One of the Manguianes, Dabalos, escaped from the reservation and was taken in hand by the provincial

the United States were considered as separate nations and all acts taken in regard to them were the result of separate treaties made by the United States Government with the Indian nations, and, incompliance with these treaties, reservations were set apart for them on which they lived and were protected form intrusion and molestation by white men. Some these reservations were larger than the Islands of Luzon, and they were not measured in hectares but in thousands of square miles. The Manguianes are not a separate state. They have no treaty with the Government of the Philippine Islands by which they have agreed to live within a certain district where they are accorded exclusive rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are entitled to all the rights and privileges of any other citizen of this country. And when the provincial governor of the Province of Mindoro attempted to take them from their native habitat and to hold them on the little reservation of about 800 hectares, he deprived them of their rights and their liberty without due process of law, and they were denied the equal protection of the law. The majority opinion says "they are restrained for their own good and the general good of the Philippines." They are to be made to accept the civilization of the more advanced Filipinos whether they want it or not. They are backward and deficient in culture and must be moved from their homes, however humble they may be and "bought under the bells" and made to stay on a reservation. Are these petitioners charged with any crime? There is no mention in the return of the SolicitorGeneral of the Philippine Islands of any crime having been committed by these "peacefully, timid, primitive, semi-nomadic people." A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the majority opinion, and from it I gather the nature of their offense which is that Living a nomadic and wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. No bringing any benefit to the State but, instead, injuring and damaging its interests, what will ultimately become of those people with the sort of liberty they wish to preserve and for which they are not fighting in court? They will ultimately become a heavy burden to the State and, on account of their ignorance, they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people has not a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they are being deprived thereof without due process of law? xxx xxx xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without due process of law" apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people be let alone in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. There appear to be two intimations or charges in this memorandum; one is that the Manguianes destroy the forest by making a caigin. What is a "caigin?" Simply this. These people move their camp or place of abode frequently and when they do move to a new place, it is necessary to clear the land in order to plant corn and camotes (sweet potatoes) and they cut down the smaller trees and burn these around the larger ones, killing them, so that they can plant their crops. The fires never spread in the tropical undergrowth of an island like Mindoro, but the trees within the caigin are killed and crops are planted and harvested. This land may be abandoned later on due to superstition, to a lack of game in the neighborhood, to poor crops from exhausted fertility, or to a natural desire to move on. Granting that the Manguianes do make caigins or clear lands in spots and then abandon them for the more fertile lands, which every man knows to be just over the hills, we cannot see that they are committing such a great abuse as to justify incarcerating them on a small tract of land for incarceration it is and nothing less. The second intimation or charge is that "they will become a heavy burden to the state and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who want to abuse them." They have never been a burden to the state and never will be. They have not committed crimes and, when they do, let the law punish them." The authorities are anticipating too much from these "peaceful, timid, primitive, semi-nomadic people." Their history does not demonstrate that we must expect them to commit crimes and jail them to prevent the possibility. But the Secretary says "they will be subjected to involuntary servitude by those want to abuse them." Are they more liable to be subjected to involuntary servitude when left free to roam their native hills and gain a livelihood as they have been accustomed to for hundreds of years, than they will be if closely confined on a narrow reservation from which they may not escape without facing a term in jail? Is not more likely that they will be glad to exchange their "freedom" on a small reservation for the great boon of binding themselves and their children to the more fortunate Christian Filipinos who will feed them and clothe them in return of their services.?

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It think it not only probable but almost a certainty that they will be all be subjected to involuntary personal servitude if their freedom is limited as it has been. How will they live? There may be persons who are willing to lend them money with which to buy food on the promise that they will work for them. And if they accept the loan and do not work for the lender we have another law on the statute books, Act No. 2098, into whose noose they run their necks, and they may be fined not more than two hundred pesos or imprisonment for not exceeding six months or both, and when the sentence expires they must again go into debt or starve, and if they do not work will again go to jail, and this maybe repeated till they are too old to work and are cast adrift. The manguianes have committed no offenses and are charged with none. It does not appear they were ever consulted about their reconcentration. It does not appear that they had any hearing or were allowed to make any defense. It seems they were gathered here and there whenever found by the authorities of the law and forcibly placed upon the reservation, because they are "non-Christian," and because the provincial governor ordered it. Let it be clear there is no discrimination because of religion. The term "non-Christian" means one who is not a Christian Filipino, but it also means any of the so-called "wild" or backward tribes of the Philippines. These non-Christian tribes are Moros, Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together. Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. The have beautiful fields reclaimed by hard labor they have herds of cattle and horses and some few of them are well educated. Some of the non-Christians, like the Aetas and the Negritos, are very low in the scale of civilization, but they are one and all "non-Christians," as the term is used and understood in law and in fact. All of them, according to the court's opinion under the present law, may be taken from their homes and herded on a reservation at the instance of the provincial governor, with the prior approval of the department head. To state such a monstrous proposition is to show the wickedness and illegality of the section of the law under which these people are restrained of their liberty. But it is argued that there is no probability of the department head ever giving his approval to such a crime, but the fact that he can do it and has done it in the present case in what makes the law unconstitutional. The arbitrary and unrestricted power to do harm should be the measure by which a law's legality is tested and not the probability of doing harm. It has been said that this is a government of laws and not of men; that there is no arbitrary body of individuals; that the constitutional principles upon which our government and its institutions rest do not leave room for the play and action of purely personal and arbitrary power, but that all in authority are guided and limited by these provisions which the people have, the through the organic law, declared shall be the measure and scope of all control exercised over them. In particular the fourteenth amendment, and especially the equal protection clause, thereof, forbids that the individual shall be subjected to any arbitrary exercise of the powers of government; it was intended to prohibit, and does prohibit, any arbitrary deprivation of life or liberty, or arbitrary spoliation of property. As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or which singles out any particular individuals or class as the subject of hostile and discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth amendment and especially to the equal protection clause thereof. This is a plain case, and requires no further discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for its is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and, in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of Massachusetts Bill of Rights, the Government of Commonwealth "may be a government of law and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. (Yick Wo vs. Hopkins, 118 U.S., 374.) It is said that the present law is an old Act being substance Act No. 547 of the Philippine Commission. But it has never been brought before this court for determination of its constitutionality. No matter how beneficient the motives of the lawmakers if the lawmakers if the law tends to deprive any man of life, liberty, or property without due process law, it is void. In may opinion the acts complained of which were taken in conformity with section 2145 of the Administrative Code not only deprive these Manguianes of their liberty, without due process of law, but will in all probability deprive them of their life, without due process of law. History teaches that to take a semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of a reservation is to invite disease an suffering and death. From my long experience in the Islands, I should say that it would be a crime of title less magnitude to take the Ifugaos from their mountain homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon from their fields than it would be to order their decapitation en masse. There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the same category as the Manguianes. If the Manguianes may be so taken from their native habitat and reconcentrated on a reservation in effect an open air jail then so may the Ifugaos, so may the Tinguianes, who have made more progress than the Ifugaos, and so may the Moros. There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine governors upon the prior approval of the head of the department, have the power under this law to take the non-Christian inhabitants of their different provinces form their homes and put them on a reservation for "their own good and the general good of the Philippines," and the court will grant them no relief. These unfortunate citizens of the Philippine Islands would hold their liberty, and their lives, may be, subject to the unregulated discretion of the provincial governor. And who would be safe? 25

After the reservation is once established might not a provincial governor decide that some political enemy was a non-Christian, and that he would be safer on the reservation. No matter what his education and culture, he could have no trial, he could make no defense, the judge of the court might be in a distant province and not within reach, and the provincial governor's fiat is final. The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should be quoted at length. District Judge Dundy said: During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration. On the one side, we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and generally despised race; and the other, we have the representative of one of the most powerful, most enlightened, and most christianized nations of modern times. On the one side, we have the representatives of this wasted race coming into this national tribunal of ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to pursue the arts of peace, which have made us great and happy as a nation; on the other side, we have this magnificent, if not magnanimous, government, resisting this application with the determination of sending these people back to the country which is to them less desirable perpetual imprisonment in their own native land. But I think it is creditable to the heart and mind of the brave and distinguished officer who is made respondent herein to say that he has no sort of sympathy in the business in which he is forced by his position to bear a part so conspicuous; and, so far as I am individually concerned, I think it not improper to say that, if the strongest possible sympathy could give the relators title to freedom, they would have been restored to liberty the moment the arguments in their behalf were closed. no examination or further thought would then have been necessary or expedient. But in a country where liberty is regulated by law, something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that this case must be examined and decided on principles of law, and that unless the relators are entitled to their discharge under the constitution or laws of the United States, or some treaty, they must be remanded to the custody of the officer who caused their arrest, to be returned to the Indian Territory which they left without the consent of the government. On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the session of the court held at that time of Lincoln, presented their petition, duly verified, praying for the allowance of a writ of habeas corpus and their final discharged from custody thereunder. The petition alleges, in substance, that the relators are Indians who have formerly belonged to the Ponca tribe of Indians now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The writ was issued and served on the respondent on the 8th day of April, and, the distance between the place where the writ was made returnable and the place where the relators were confined being more than twenty miles, ten days were alloted in which to make return.

On the 18th of April the writ was returned, and the authority for the arrest and detention is therein shown. The substance of the return to the writ, and the additional statement since filed, is that the relators are individual members of, and connected with, the Ponca Tribe of Indians; that they had fled or escaped from a reservation situated in some place within the limits of the indian Territory had departed therefrom without permission from the government; and, at the request of the secretary of the interior, the general of the army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian reservation, and that they were in his custody for the purpose of being returned to the Indian Territory. It is claimed upon the one side, and denied upon the other, that the relators had withdrawn and severed, for all time, their connection with the tribe to which they belonged; and upon this point alone was there any testimony produced by either party hereto. The other matter stated in the petition and the return to the writ are conceded to be true; so that the questions to be determined are purely questions of law. On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of Indians, by which a certain tract of country, north of the Niobrara river and west of the Missouri, was set apart for the permanent home of the aid Indians, in which the government agreed to protect them during their good behaviour. But just when or how, or why, or under what circumstances, the Indians left their reservation in Dakota and went to the Indian Territory does not appear. xxx xxx xxx

A question of much greater importance remains for consideration, which, when determined, will be decisive of this whole controversy. This relates to the right of the government to arrest and hold the relators for a time, for the purpose of being returned to a point in the Indian Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can do full justice to a question like the one under consideration. But, as the mater furnishes so much valuable material for discussion, and so much food for reflection, I shall try to present it as viewed from my own standpoint, without reference to consequences or criticisms, which, though not specially invited, will be sure to follow. xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and in it we find a provision authorizing the secretary of the interior to use $25,000 for the removal of the Poncas to the Indian Territory, and providing them a home therein, with consent of the tribe. (19 Sta., 192.) xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the same, until two or three years ago, when they removed therefrom, but whether by force or otherwise does not appear. At all event, we find a portion of them, including the relators, located at some point in the Indian Territory. There, the testimony seems to show, is where the trouble commenced. Standing Bear, the principal witness, states that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick 26

and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his old home, where, to use his own language, "he might live and die in peace, and be buried with his fathers." He also stated that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully, and forever severed his and their connection with the Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were able to do so went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have long continued to intermarry, gave them employment and ground to cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus employed, that they were arrested by order of the government, for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, of removing them by force from their own native plains and blood relations to a far-off country, in which they can see little but new-made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live and die where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved and protected and formed a part of what was to them melancholy procession homeward. Such instances of parental affections, and such love home and native land, may be heathen in origin, but it seems to that they are not unlike Christian in principle. And the court declared that the Indians were illegally held by authority of the United States and in violation of their right to life, liberty, and the pursuit of happiness, and ordered their release from custody. This case is very similarly to the case of Standing Bear and others. I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that they have been denied the equal protection of the law, and order the respondents immediately to liberate all of the petitioners.

Footnotes 1 218 U.S., 302; 54 L. ed., 1049.

27

CASE 3: G.R. No. 92389

September 11, 1991 HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners, vs. HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents. Jejomar C. Binay for himself and for his co-petitioner. Manuel D. Tamase and Rafael C. Marquez for respondents.

1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the intended disbursements fall within the twin principles of 'police power and parens patriae and 2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5, 1989, has already appropriated the amount of P400,000.00 to implement the Id resolution, and the only function of COA on the matter is to allow the financial assistance in question. The first contention is believed untenable. Suffice it to state that: a statute or ordinance must have a real substantial, or rational relation to the public safety, health, morals, or general welfare to be sustained as a legitimate exercise of the police power. The mere assertion by the legislature that a statute relates to the public health, safety, or welfare does not in itself bring the statute within the police power of a state for there must always be an obvious and real connection between the actual provisions of a police regulations and its avowed purpose, and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. 16 Am. Jur 2d, pp. 542-543; emphasis supplied). Here, we see no perceptible connection or relation between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general welfare, etc. of the inhabitants of Makati. Anent the second contention, let it be stressed that Resolution No. 60 is still subject to the limitation that the expenditure covered thereby should be for a public purpose, i.e., that the disbursement of the amount of P500.00 as burial assistance to a bereaved family of the Municipality of Makati, or a total of P400,000.00 appropriated under the Resolution, should be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of only a few individuals as in the present case. On this point government funds or property shall be spent or used solely for public purposes. (Cf. Section 4[2], P.D. 1445). (pp. 50-51, Rollo) Bent on pursuing the Burial Assistance Program the Municipality of Makati, through its Council, passed Resolution No. 243, re-affirming Resolution No. 60 (Rollo, Annex "H", p. 52). However, the Burial Assistance Program has been stayed by COA Decision No. 1159. Petitioner, through its Mayor, was constrained to file this special civil action of certiorari praying that COA Decision No. 1159 be set aside as null and void. The police power is a governmental function, an inherent attribute of sovereignty, which was born with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort and convenience of the people. Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to 28

PARAS, J.:p The only pivotal issue before Us is whether or not Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a valid exercise of police power under the general welfare clause. The pertinent facts are: On September 27, 1988, petitioner Municipality, through its Council, approved Resolution No. 60 which reads: A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL ASSISTANCE PROGRAM INITIATED BY THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO A BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE MUNICIPAL TREASURY. (Rollo, Annnex "A" p. 39) Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of Makati whose gross family income does not exceed two thousand pesos (P2,000.00) a month. The beneficiaries, upon fulfillment of other requirements, would receive the amount of five hundred pesos (P500.00) cash relief from the Municipality of Makati. (Reno, Annex "13", p. 41) Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified a disbursement fired of four hundred thousand pesos (P400,000.00) for the implementation of the Burial Assistance Program. (Rollo, Annex "C", p. 43). Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected allowance in audit. Based on its preliminary findings, respondent COA disapproved Resolution No. 60 and disallowed in audit the disbursement of finds for the implementation thereof. (Rollo, Annex "D", P. 44) Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48, respectively) filed by petitioners Mayor Jejomar Binay, were denied by respondent in its Decision No. 1159, in the following manner: Your request for reconsideration is predicated on the following grounds, to wit:

do the things essential to the enjoyment of life and desirable for the safety of the people. (62 C.J.S., p. 277). The so-called inferred police powers of such corporations are as much delegated powers as are those conferred in express terms, the inference of their delegation growing out of the fact of the creation of the municipal corporation and the additional fact that the corporation can only fully accomplish the objects of its creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore, municipal corporations, as governmental agencies, must have such measures of the power as are necessary to enable them to perform their governmental functions. The power is a continuing one, founded on public necessity. (62 C.J.S. p. 273) Thus, not only does the State effectuate its purposes through the exercise of the police power but the municipality does also. (U.S. v. Salaveria, 39 Phil. 102). Municipal governments exercise this power under the general welfare clause: pursuant thereto they are clothed with authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." (Sections 91, 149, 177 and 208, BP 337). And under Section 7 of BP 337, "every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the local government unit, and preserve the comfort and convenience of the inhabitants therein." Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. It is elastic and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests. (16 C.J.S., P. 896) However, it is not confined within narrow circumstances of precedents resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang, et al. vs. IAC, supra). In the case at bar, COA is of the position that there is "no perceptible connection or relation between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general welfare. etc. of the inhabitants of Makati." (Rollo, Annex "G", p. 51). Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public safety, general welfare, etc. of the inhabitants of Makati." In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all comprehensiveness. Its scope, over-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all

the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128). Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power. COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the limitation that the expenditure covered thereby should be for a public purpose, ... should be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of only a few individuals as in the present case." (Rollo, Annex "G", p. 51). COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for human rights. (Section 11, Ibid." (Comment, p. 12) The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good. There is no violation of the equal protection clause in classifying paupers as subject of legislation. Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer from the bondage of the soil, housing the urban poor, etc. Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete. The loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life, should have more in law." This decision, however must not be taken as a precedent, or as an official go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise. PREMISES CONSIDERED, and with the afore-mentioned caveat, this petition is hereby GRANTED and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Gutierrez, Jr. and Feliciano, JJ., are on leave.

29

CASE 4: G.R. No. L-49112

February 2, 1979 LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents. Leovillo C. Agustin Law Office for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J.: The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its implementation are concerned, for transgressing the fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed. The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30)

minutes or more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations as are appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications. 10 Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who could very well provide a practical alternative road safety device, or a better 30

substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile. A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16 Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied. This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from meritorious and must be dismissed. 1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the police power which was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading

decision after the Constitution came into force, Calalang v. Williams, Identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare." 24 2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its being nonexistent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of public safety. 3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even more apparent considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in ErmitaMalate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute. 29 4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his Answer "The President certainly had in his possession the necessary statistical information and data at the time he issued said letter of 31

instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well known penchant for exaggeration. 5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,' 2) "batterypowered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular early seaming device installed on the roads, highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31 6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where, as in the instant case,

the challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it. 32 7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33 8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came into force and effect that the principle of non-delegation "has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and 32

toward the approval of the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is delegated is authority non-legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34 9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. 10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that. WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs. Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, concur. Makasiar, J, reserves the right to file a separate opinion. Aquino J., took no part. Concepcion J., is on leave. Castro, C.J., certifies that Justice Concepcion concurs in their decision.

I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the 33

Separate Opinions

TEEHANKEE, J., dissenting:

"all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry. #Footnotes 1 (1976). 2 Aquino. 3 4 Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 479

# Separate Opinions TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and

He was assisted by Assistant Solicitor Ruben E. Agpalo and Solicitor Amado D.

Petition, par. III. Ibid, par. IV. Ibid, par. V. Ibid, par. VIII. No. 716. Petition, par. VII. Ibid, par. VIII. Ibid. Ibid, par. IX. Ibid, par. X. Ibid, par. XI. Ibid, par. X. Ibid, par. XI. Resolution of the Court dated October 19, 1978.

5 6 7 8 9 10 11 12 13 14 15 16

34

17 18 19 20

Answer, pars. 1-6. Ibid, par. 8.

34 SCRA 481, 497-498. The following cases were also cited. People v. Exconde, 101 Phil. 1125 (1957), and People v. Jolliffe, 105 Phil. 677 (1959). 35 Petition, par. III.

70 Phil. 726 (1940). The opinion was penned by Justice Laurel. L-20387, January 31, 1968; 22 SCRA 424. The writer of this opinion is the ponente. 36 Article 11, Section 3 of the Constitution reads in full "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the Policy of peace, equality, justice, freedom, cooperation, and amity with all nations. 37 73 Phil. 408 (1941). Ibid, 412.

21 L-32096, October 24, 1970, 35 SCRA 481. The writer of this opinion was likewise the ponente. 22 23 Answer, par. 18 (a) and (b).

38 License Cases, 5 How. 504, 583.

24 35 SCRA 481, 487-488. There is no need to repeat where Calalang and Morfe are reported. Primicias v. Fugoso is reported in 80 Phil. 71; Rubi v. Provincial Board, where the first quotation from Justice Malcolm came, in 39 Phil. 660, 708 (1919); and Smith Bell and Co. v. Natividad, his other decision cited, in 40 Phil. 136 (1919); Helvering v. Davis, with Justice Cardozo writing the opinion, in 301 US 619 (1937). 25 26 Republic Act No. 5715 (1969). Commonwealth Act No. 548 (1940).

27 Cf. People v. Lagman 66 Phil. 13 (1938). Even earlier in United States v. Pompeya, 31 Phil. 245 (1915), this Court, by virtue of the police power, held valid a provision of the then Municipal Code requiring " able-bodied" males in the vicinity between ages to perform patrol duty not ex one day each week. 28 L-24693, July 31, 1967, 20 SCRA 849.

29 Ibid. 867. The excerpt came from O'Gorman and Young v. Hartford Fire Insurance Co., 282 US 251, 328 (1931). 30 Answer, par. 18 (a). The excerpt came from Samson v. Mayor of Bacolod City, L28745; October 23, 1974; 60 SCRA 267; 270. 31 32 Ibid, par. 18 (c). Ibid, par. 18 (d) and (e),

33 Morfe v. Mutuc, 22 SCRA 424, 450-451. The citation from Justice Laurel may be traced to Angara v. Electoral Commission, 63 Phil. 139, 160 (1936); from Justice Laurel to People v. Carlos, 78 Phil. 535, 548 (1947); from Justice Montemayor to Quintos v. Lacson, 97 Phil. 290, 293 (1955); and from Justice Labrador to Ichong v. Hernandez, 101 Phil. 1155, 1166 (1957). Chief Justice Concepcion's reiteration of the doctrine, paraphrased in the quoted opinion, was made by him in Gonzales v. Commission on Elections, L-28196, November 9, 1967, 21 SCRA 774. Cf. Province of Pangasinan v. Secretary of Public Works, 27861, October 3l,1969, 30 SCRA 134.

35

CASE 5: G.R. No. L-7995

May 31, 1957 LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected. by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents. Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance. City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. Dionisio Reyes as Amicus Curiae. Marcial G. Mendiola as Amicus Curiae. Emiliano R. Navarro as Amicus Curiae. LABRADOR, J.: I. The case and issue, in general This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment? II. Pertinent provisions of Republic Act No. 1180 Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, control

weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. III. Grounds upon which petition is based-Answer thereto Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution. In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of statutory origin. IV. Preliminary consideration of legal principles involved a. The police power. There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws. What is the scope of police power, and how are the due process and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and the issue accordingly resolved. It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it is the most positive and active of all governmental 36

processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause. b. Limitations on police power. The basic limitations of due process and equal protection are found in the following provisions of our Constitution: SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution) These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.) c. The, equal protection clause. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.) d. The due process clause. The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process test is applied. The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the

guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction. e. Legislative discretion not subject to judicial review. Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first place, that the legislature, which is the constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the wisdom of the law. V. Economic problems sought to be remedied With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade or occupation, as old as society itself, which from the immemorial has always been open to residents, irrespective of race, color or citizenship. a. Importance of retail trade in the economy of the nation. In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is unknown. But as group life develops and families begin to live in communities producing more than what they consume and needing an infinite number of things they do not produce, the dealer comes into existence. As villages develop into big communities and specialization in production begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food and supplies are ministered to members of the communities comprising the nation. There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily needs, food in all its increasing forms, and the various little 37

gadgets and things needed for home and daily life. He provides his customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-day existence. b. The alien retailer's trait. The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded towns and villages; now he predominates in the cities and big centers of population. He even pioneers, in far away nooks where the beginnings of community life appear, ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a slave. Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of illbred and insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives. The community takes note of him, as he appears to be harmless and extremely useful. c. Alleged alien control and dominance. There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of population he has acquired not only predominance, but apparent control over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal foods and products would easily become full and complete. Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business make control virtually impossible. The first argument which brings up an issue of fact merits serious consideration. The others are matters of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide. The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional convention year (1935), when the fear of alien domination and control of the retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade, as witness the following tables:

Gross Sales Year and Retailers Nationality No.-Establishments Pesos Per cent Distribution Pesos Per cent Distribution 1941: Filipino .......... 106,671 200,323,138 55.82 174,181,924 51.74 Chinese ........... 15,356 118,348,692 32.98 148,813,239 44.21 Others ............ 1,646 40,187,090 11.20

Assets

13,630,239 38

67.30 4.05 467,161,667 1947: 60.51 Filipino .......... Chinese .......... 111,107 12,087 208,658,946 93,155,459 65.05 29.38 279,583,333 294,894,227 57.03 38.20 Chinese ........... Others .......... 13,774 422 106,156,218 10,514,675 33.56 3.32 205,701,134 9,995,402 41.96 1.29 Others ........... 1949: 354 Filipino .......... 8,761,260 113,659 .49 213,451,602 4,927,168 60.89 1.01 462,532,901 1948: 53.47 (Census) Chinese .......... Filipino .......... 16,248 113,631 125,223,336 213,342,264 35.72 39

7,645,327 392,414,875 87 45.36 Others .......... 486 12,056,365 3.39 10,078,364 1.17 1951: 1941: Filipino ......... Filipino ............................................. 119,352 1,878 224,053,620 1,633 61.09 Chinese .............................................. 466,058,052 7,707 53.07 9,691 Chinese .......... Others ............................................... 17,429 24,415 134,325,303 8,281 36.60 1947: 404,481,384 Filipino ............................................. 46.06 1,878 Others .......... 2,516 347 Chinese ........................................... 8,614,025 7,707 2.31 14,934 40 Year and Retailer's Nationality Item Assets (Pesos) Gross Sales (Pesos) AVERAGE ASSETS AND GROSS SALES PER ESTABLISHMENT

Filipino ............................................. Others .............................................. 1,877 24,749 3,905 13,919 Chinese ............................................. 1948: 7,707 (Census) 33,207 Filipino ............................................. Others ............................................... 1,878 24,824 4,111 22,033 Chinese ............................................. 7,707 24,398 Others .............................................. 24,916 23,686 1949: Filipino ............................................. 1,878 4,069 d. Alien control and threat, subject of apprehension in Constitutional convention. Chinese .............................................. 7,707 24,152 Others .............................................. 24,807 20,737 1951: It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the enactment of the disputed nationalization would never have been adopted. The framers of our Constitution also believed in the existence of this alien dominance and control when they approved a resolution categorically declaring among other things, that "it is the sense of the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include mere market vendors, whose capital is necessarily small.. The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the numerical gap through their assests and gross sales which average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much more. The same official report, pointing out to the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply. (Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.)

41

concern of the members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he says: But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a situation should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the Constitution) envisages an organized movement for the protection of the nation not only against the possibilities of armed invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.) Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen, manufacturers and producers believe so; they fear the dangers coming from alien control, and they express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that compose the Filipino community. e. Dangers of alien control and dominance in retail. But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national economy and of the complete subservience of national economy and of the consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or because a new competing article offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed. We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable

practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above practices. The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the State. f. Law enacted in interest of national economic survival and security. We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the people, thru their authorized representatives, to free the nation from the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and indisputably falls within the scope of police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens. VI. The Equal Protection Limitation a. Objections to alien participation in retail trade. The next question that now poses solution is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from taking advantage of their weakness and exploiting them. The faster he makes 42

his pile, the earlier can the alien go back to his beloved country and his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such utter disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem. Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not invested in industries that would help the country's economy and increase national wealth. The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands. The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of the nation of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of real and actual, positive and fundamental differences between an alien and a national which fully justify the legislative classification adopted in the retail trade measure. These differences are certainly a valid reason for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a legitimate distinction can be found between one and the other. b. Difference in alien aims and purposes sufficient basis for distinction. The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the prerogative of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and it can not declare that the act transcends the limit of equal protection established by the Constitution. Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection clause to a law sought to be voided as contrary thereto: . . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the

classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary." c. Authorities recognizing citizenship as basis for classification. The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows: "Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected." The rule in general is as follows: Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes than for similar classes of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.) In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to become a citizen of the United States, was held valid, for the following reason: It may seem wise to the legislature to limit the business of those who are supposed to have regard for the welfare, good order and happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose 43

to discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted classification, and that it could not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the court's findings that the exercise of the business by the aliens does not in any way affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void, because the law conflicts with Federal power over immigration, and because there is no public interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the discrimination. It further added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreignborn unnaturalized male persons over 21 years of age, was declared void because the court found that there was no reason for the classification and the tax was an arbitrary deduction from the daily wage of an employee. d. Authorities contra explained. It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public benefit would be derived from the operations of the law and on the other hand it would deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold

consent in the operation of laundries both as to persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the administration and implementation of the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act in respect to which the classification was proposed. The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the sympathetic consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the alien and the national, thus: . . . . It may be judicially known, however, that alien coming into this country are without the intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals of governmental environment and control have been engendered and formed under entirely different regimes and political systems, have not the same inspiration for the public weal, nor are they as well disposed toward the United States, as those who by citizenship, are a part of the government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence that the Legislature was without plausible reason for making the classification, and therefore appropriate discriminations against aliens as it relates to the subject of legislation. . . . . VII. The Due Process of Law Limitation. a. Reasonability, the test of the limitation; determination by legislature decisive. We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the United States that: . . . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the subject sought to be attained. . . . . xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)

44

Another authority states the principle thus: . . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police power in a constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . . xxx xxx xxx

about the desired legislative objective, i.e., to free national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness. The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into law: This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters of our destiny. All aspects of our life, even our national security, will be at the mercy of other people. In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our national security it respects existing rights. The approval of this bill is necessary for our national survival.

. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.) In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held: . . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. . . . Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality: In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a business, is or is not constitutional, one of the first questions to be considered by the court is whether the power as exercised has a sufficient foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the health, safety, morals, comfort, and general welfare of the public. b. Petitioner's argument considered. Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency. The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed absolutely necessary to bring

If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of their own race or country. The removal and eradication of the shackles of foreign economic control and domination, is one of the noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative authority. c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the attainment of such a noble motive as freedom from economic control and domination, thru the exercise of the police power. The fathers of the Constitution must have given to the legislature full authority and power to enact legislation that would promote the supreme happiness of the people, their freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the legislation in question is within the scope of the legislative power. Thus they declared the their Resolution: That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits to Filipino and American citizens the

45

privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.) It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of authorization for the operation of the public utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional? The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the country and its people would it view the sorry plight of the nationals with the complacency and refuse or neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and meet, through adequate measures, the danger and threat that alien domination of retail trade poses to national economy. d. Provisions of law not unreasonable. A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These principles also answer various other arguments raised against the law, some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity. VIII. Alleged defect in the title of the law A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to

nationalize the retail business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads: No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the title of the bill. What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of these have always been included within the term regulation. Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.) Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.) The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in delegating police power in connection with a thing the best or only efficacious regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.) The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling within the scope of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general term should be adopted in the title, which would include all other provisions found in the body of the Act. One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have received the notice, action and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature of the law, especially the nationalization and the prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a campaign against its approval. It 46

cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must therefore, be overruled. IX. Alleged violation of international treaties and obligations Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.) X. Conclusion Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement. Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law for the liquidation of existing businesses when the time comes for

them to close. Our legal duty, however, is merely to determine if the law falls within the scope of legislative authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction. The petition is hereby denied, with costs against petitioner. Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions PADILLA, J., concurring and dissenting: I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the Congress and duly approved by the President of the Republic. But the rule does not preclude courts from inquiring and determining whether the Act offends against a provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the laws clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnership or corporations, the capital of which is not wholly owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it does not violate said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who are and have heretofore been engaged in said business. When they did engage in the retail business there was no prohibition on or against them to engage in it. They assumed and believed in good faith they were entitled to engaged in the business. The Act allows aliens to continue in business until their death or voluntary retirement from the business or forfeiture of their license; and corporations, associations or partnership, the capital of which is not wholly owned by the citizens of the Philippines to continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or corporation, whichever event comes first. The prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than ten years from the date of the approval of the Act or beyond the term of their corporate existence, whichever event comes first, is valid and lawful, because the continuance of the existence of such corporations is subject to whatever the Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the approval of the Act, even before the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom the retail business is transmitted by the death of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of their property without due process of law. To my mind, the ten-year period from the date of the approval of the Act or until the expiration of the term of the existence of the association and partnership, whichever event comes first, and the six-month period granted to alien heirs of a deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the prohibition is to compel them to sell or dispose of their business. The price obtainable at such forced sale of the business would be inadequate to reimburse and compensate the associates or partners of the associations or partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The stock of merchandise bought and sold at retail does not alone constitute the 47

business. The goodwill that the association, partnership and the alien had built up during a long period of effort, patience and perseverance forms part of such business. The constitutional provisions that no person shall be deprived of his property without due process of law2 and that no person shall be denied the equal protection of the laws3 would have no meaning as applied to associations or partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business within ten years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnership as agreed upon by the associations and partners and within six months after the death of their predecessor-in-interest. The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands which together with the lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and their heirs of such lands.4 For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership referred to therein to wind up their retail business within ten years from the date of the approval of the Act even before the expiry of the term of their existence as agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for they violate the due process of law and the equal protection of the laws clauses of the Constitution.

Footnotes 1 Section 76, Act No. 1459.. 2 Section 1 (1), Article III, of the Constitution.. 3 Ibid. 4 Section 5, Article XIII, of the Constitution.

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CASE 6: LAWRENCE et al. v. TEXAS

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT No. 02-102. Argued March 26, 2003--Decided June 26, 2003 Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U. S. 186, controlling on that point. Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18. (a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190--discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more farreaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6. (b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., American laws targeting samesex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by

Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 6-12. (c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851--which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education--and Romer v. Evans, 517 U. S. 620, 624--which struck down class-based legislation directed at homosexuals--cast Bowers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12-17. (d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 17-18. 41 S. W. 3d 349, reversed and remanded.

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Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion. JOHN GEDDES LAWRENCE and TYRON GARNER, PETITIONERS v. TEXAS on writ of certiorari to the court of appeals of texas, fourteenth district [June 26, 2003] Justice Kennedy delivered the opinion of the Court. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. I

The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (Tex. App. 2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. We granted certiorari, 537 U. S. 1044 (2002), to consider three questions: "1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law-which criminalizes sexual intimacy by same-sex couples, but not identical behavior by differentsex couples--violate the Fourteenth Amendment guarantee of equal protection of laws? "2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? "3. Whether Bowers v. Hardwick, 478 U. S. 186 (1986), should be overruled?" Pet. for Cert. i. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. II

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows: "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or "(B) the penetration of the genitals or the anus of another person with an object." 21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965). In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: "It is true that in Griswold the right of privacy in question inhered in the marital relationship... . If the right of privacy means anything, it is the right of the individual, married or single, to be 50

free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick. The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (" The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations

51

between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18. It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to differentsex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. 201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do

not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 1516. In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct"). The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, 1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) 52

;52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: " These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made

criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. __ (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann., 15:540-15:549 (West 2003); Miss. Code Ann. 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. 23-3-400 to 23-3490 (West 2002)). This underscores the consequential nature of the punishment and the statesponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992). To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision' ") (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or 53

societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions: "Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted). Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

JOHN GEDDES LAWRENCE and TYRON GARNER, PETITIONERS v. TEXAS on writ of certiorari to the court of appeals of texas, fourteenth district [June 26, 2003] Justice O'Connor, concurring in the judgment. The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992). Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to " 'discriminate against hippies.' " 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences--like fraternity houses and apartment buildings--did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a 54

broad and undifferentiated disability on a single named group"--specifically, homosexuals. 517 U. S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17-18 (opinion of Scalia, J.). The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by 21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. As the Court notes, see ante, at 15, petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e.g., Tex. Occ. Code Ann. 164.051(a)(2)(B) (2003 Pamphlet) (physician); 451.251 (a)(1) (athletic trainer); 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e.g., Idaho Code 18-8304 (Cum. Supp. 2002); La. Stat. Ann. 15:542 (West Cum. Supp. 2003); Miss. Code Ann. 45-33-25 (West 2003); S. C. Code Ann. 23-3-430 (West Cum. Supp. 2002); cf. ante, at 15. And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992). Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished. This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare

desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, supra, at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634. Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause " 'neither knows nor tolerates classes among citizens.' " Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J. dissenting)). A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass ... cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).

55

Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. In the words of Justice Jackson: "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion). That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional. JOHN GEDDES LAWRENCE and TYRON GARNER, PETITIONERS v. TEXAS on writ of certiorari to the court of appeals of texas, fourteenth district [June 26, 2003] Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier. Most of the rest of today's opinion has no relevance to its actual holding--that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgia's anti-sodomy statute under the rational-basis test). Though there is discussion of "fundamental

proposition[s]," ante, at 4, and "fundamental decisions," ibid. nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"--which it undoubtedly is--and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3. I I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it: " Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] ... its decision has a dimension that the resolution of the normal case does not carry... . [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867. Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15-16. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven 'unworkable,' " Casey, supra, at 855. Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante, at 15; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 16. The problem is that Roe itself--which today's majority surely has no disposition to overrule--satisfies these conditions to at least the same degree as Bowers. (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 10. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (" 'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life' "): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into

56

question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law. I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting).) But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are " 'deeply rooted in this Nation's history and tradition' " qualify for anything other than rational basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition. (2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 15. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).1 Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe ... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]"). (3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding ... ." Ante, at 16. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality ... indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in

deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.2 What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State. To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is. II Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional. Texas Penal Code Ann. 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 6 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 13 (" ' These matters ... are central to the liberty protected by the Fourteenth Amendment' "); ante, at 17 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided: "No state shall ... deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added). Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection--that is, rights which are " 'deeply rooted in this Nation's history and tradition,' " ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and 57

conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a 'liberty' be 'fundamental' ... but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not " 'deeply rooted in this Nation's history and tradition,' " id., at 192. The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is " 'deeply rooted in this Nation's history and tradition,' " the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 18. I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"--even though, as I have said, the Court does not have the boldness to reverse that conclusion. III The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 5. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold--a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right. Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was " 'deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty ...

is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that anti-abortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)--and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 (joint opinion of O'Connor, Kennedy, and Souter, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest"). After discussing the history of antisodomy laws, ante, at 7-10, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, at 7. This observation in no way casts into doubt the "definitive [historical] conclusion," id., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general--regardless of whether it was performed by same-sex or opposite-sex couples: "It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added). It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized--which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied. Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 8. The key qualifier here is "acting in private"--since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequent," ante, at 9). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system 58

and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable. Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 11 (emphasis added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize " 'consensual sexual relations conducted in private,' " ante, at 11, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159. In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 16, but rather rejected the claimed right to sodomy on the ground that such a right was not " 'deeply rooted in this Nation's history and tradition,' " 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court ... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari). IV I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion. The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of

majoritarian sexual morality is not even a legitimate state interest, none of the abovementioned laws can survive rational-basis review. V Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex. The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers--society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner-for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage. Justice O'Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor. "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." Ante, at 5. Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality. Justice O'Connor simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See 59

Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does Justice O'Connor explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting " 'a ... desire to harm a politically unpopular group,' " ante, at 2, are invalid even though there may be a conceivable rational basis to support them. This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence Justice O'Connor has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad). *** Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653. One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-antihomosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000). Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of

such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so. The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent. JOHN GEDDES LAWRENCE and TYRON GARNER, PETITIONERS v. TEXAS

60

on writ of certiorari to the court of appeals of texas, fourteenth district [June 26, 2003] Justice Thomas, dissenting. I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.

of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearance).

Footnote 3 The Court is quite right that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry," ante, at 11. An asserted "fundamental liberty interest" must not only be "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [it] were sacrificed," ibid. Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

FOOTNOTES Footnote 1 This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.

Footnote 2 While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. 654(b)(1) ("A member of the armed forces shall be separated from the armed forces ... if ... the member has engaged in ... a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting--on the basis of the rational-basis standard--an equal-protection challenge to the Defense Department's policy 61

CASE 7: G.R. No. L-5060

January 26, 1910 THE UNITED STATES, plaintiff-appellee, vs. LUIS TORIBIO, defendant-appellant. Rodriguez & Del Rosario, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence of record fully sustains the findings of the trial court that the appellant slaughtered or caused to be slaughtered for human consumption, the carabao described in the information, without a permit from the municipal treasure of the municipality wherein it was slaughtered, in violation of the provisions of sections 30 and 33 of Act No. 1147, an Act regulating the registration, branding, and slaughter of large cattle. It appears that in the town of Carmen, in the Province of Bohol, wherein the animal was slaughtered there is no municipal slaughterhouse, and counsel for appellant contends that under such circumstances the provisions of Act No. 1147 do not prohibit nor penalize the slaughter of large cattle without a permit of the municipal treasure. Sections 30, 31, 32, and 33 of the Act are as follows: SEC. 30. No large cattle shall be slaughtered or killed for food at the municipal slaughterhouse except upon permit secured from the municipal treasure. Before issuing the permit for the slaughter of large cattle for human consumption, the municipal treasurer shall require for branded cattle the production of the original certificate of ownership and certificates of transfer showing title in the person applying for the permit, and for unbranded cattle such evidence as may satisfy said treasurer as to the ownership of the animals for which permit to slaughter has been requested. SEC. 31. No permit to slaughter has been carabaos shall be granted by the municipal treasurer unless such animals are unfit for agricultural work or for draft purposes, and in no event shall a permit be given to slaughter for food any animal of any kind which is not fit for human consumption. SEC. 32. The municipal treasurer shall keep a record of all permits for slaughter issued by him, and such record shall show the name and residence of the owner, and the class, sex, age, brands, knots of radiated hair commonly know as remolinos or cowlicks, and other marks of identification of the animal for the slaughter of which permit is issued and the date on which such permit is issued. Names of owners shall be alphabetically arranged in the record, together with date of permit. A copy of the record of permits granted for slaughter shall be forwarded monthly to the provincial treasurer, who shall file and properly index the same under the name of the owner, together with date of permit.

SEC. 33. Any person slaughtering or causing to be slaughtered for human consumption or killing for food at the municipal slaughterhouse any large cattle except upon permit duly secured from the municipal treasurer, shall be punished by a fine of not less than ten nor more than five hundred pesos, Philippine currency, or by imprisonment for not less than one month nor more than six months, or by both such fine and imprisonment, in the discretion of the court. It is contended that the proper construction of the language of these provisions limits the prohibition contained in section 30 and the penalty imposed in section 33 to cases (1) of slaughter of large cattle for human consumption in a municipal slaughter without a permit duly secured from the municipal treasurer, and (2) cases of killing of large cattle for food in a municipal slaughterhouse without a permit duly secured from the municipal treasurer; and it is urged that the municipality of Carmen not being provided with a municipal slaughterhouse, neither the prohibition nor the penalty is applicable to cases of slaughter of large cattle without a permit in that municipality. We are of opinion, however, that the prohibition contained in section 30 refers (1) to the slaughter of large cattle for human consumption, anywhere, without a permit duly secured from the municipal treasurer, and (2) expressly and specifically to the killing for food of large cattle at a municipal slaughterhouse without such permit; and that the penalty provided in section 33 applies generally to the slaughter of large cattle for human consumption, anywhere, without a permit duly secured from the municipal treasurer, and specifically to the killing for food of large cattle at a municipal slaughterhouse without such permit. It may be admitted at once, that the pertinent language of those sections taken by itself and examined apart from the context fairly admits of two constructions: one whereby the phrase "at the municipal slaughterhouse" may be taken as limiting and restricting both the word "slaughtered" and the words "killed for food" in section 30, and the words "slaughtering or causing to be slaughtered for human consumption" and the words "killing for food" in section 33; and the other whereby the phrase "at the municipal slaughterhouse" may be taken as limiting and restricting merely the words "killed for food" and "killing for food" as used in those sections. But upon a reading of the whole Act, and keeping in mind the manifest and expressed purpose and object of its enactment, it is very clear that the latter construction is that which should be adopted. The Act primarily seeks to protect the "large cattle" of the Philippine Islands against theft and to make easy the recovery and return of such cattle to their proper owners when lost, strayed, or stolen. To this end it provides an elaborate and compulsory system for the separate branding and registry of ownership of all such cattle throughout the Islands, whereby owners are enabled readily and easily to establish their title; it prohibits and invalidates all transfers of large cattle unaccompanied by certificates of transfer issued by the proper officer in the municipality where the contract of sale is made; and it provides also for the disposition of thieves or persons unlawfully in possession, so as to protect the rights of the true owners. All this, manifestly, in order to make it difficult for any one but the rightful owner of such cattle to retain them in his possession or to dispose of them to others. But the usefulness of this elaborate and compulsory system of identification, resting as it does on the official registry of the brands and marks on each separate animal throughout the Islands, would be largely impaired, if not totally destroyed, if such animals were requiring proof of ownership and the production of certificates of registry by the person slaughtering or causing them to be slaughtered, and this especially if the animals were slaughtered privately or in a clandestine manner outside of a municipal slaughterhouse. Hence, as it would appear, sections 30 and 33 prohibit and penalize the slaughter for human consumption or killing for food at a municipal slaughterhouse of such animals without a permit 62

issued by the municipal treasurer, and section 32 provides for the keeping of detailed records of all such permits in the office of the municipal and also of the provincial treasurer. If, however, the construction be placed on these sections which is contended for by the appellant, it will readily be seen that all these carefully worked out provisions for the registry and record of the brands and marks of identification of all large cattle in the Islands would prove in large part abortion, since thieves and persons unlawfully in possession of such cattle, and naturally would, evade the provisions of the law by slaughtering them outside of municipal slaughterhouses, and thus enjoy the fruits of their wrongdoing without exposing themselves to the danger of detection incident to the bringing of the animals to the public slaughterhouse, where the brands and other identification marks might be scrutinized and proof of ownership required. Where the language of a statute is fairly susceptible of two or more constructions, that construction should be adopted which will most tend to give effect to the manifest intent of the lawmaker and promote the object for which the statute was enacted, and a construction should be rejected which would tend to render abortive other provisions of the statute and to defeat the object which the legislator sought to attain by its enactment. We are of opinion, therefore, that sections 30 and 33 of the Act prohibit and penalize the slaughtering or causing to be slaughtered for human consumption of large cattle at any place without the permit provided for in section 30. It is not essential that an explanation be found for the express prohibition in these sections of the "killing for food at a municipal slaughterhouse" of such animals, despite the fact that this prohibition is clearly included in the general prohibition of the slaughter of such animals for human consumption anywhere; but it is not improbable that the requirement for the issue of a permit in such cases was expressly and specifically mentioned out of superabundance of precaution, and to avoid all possibility of misunderstanding in the event that some of the municipalities should be disposed to modify or vary the general provisions of the law by the passage of local ordinances or regulations for the control of municipal slaughterhouse. Similar reasoning applied to the specific provisions of section 31 of the Act leads to the same conclusion. One of the secondary purposes of the law, as set out in that section, is to prevent the slaughter for food of carabaos fit for agricultural and draft purposes, and of all animals unfit for human consumption. A construction which would limit the prohibitions and penalties prescribed in the statute to the killing of such animals in municipal slaughterhouses, leaving unprohibited and unpenalized their slaughter outside of such establishments, so manifestly tends to defeat the purpose and object of the legislator, that unless imperatively demanded by the language of the statute it should be rejected; and, as we have already indicated, the language of the statute is clearly susceptible of the construction which we have placed upon it, which tends to make effective the provisions of this as well as all the other sections of the Act. It appears that the defendant did in fact apply for a permit to slaughter his carabao, and that it was denied him on the ground that the animal was not unfit "for agricultural work or for draft purposes." Counsel for appellant contends that the statute, in so far as it undertakes to penalize the slaughter of carabaos for human consumption as food, without first obtaining a permit which can not be procured in the event that the animal is not unfit "for agricultural work or draft purposes," is unconstitutional and in violation of the terms of section 5 of the Philippine Bill (Act of Congress, July 1, 1902), which provides that "no law shall be enacted which shall deprive any person of life, liberty, or property without due process of law."

It is not quite clear from the argument of counsel whether his contention is that this provision of the statute constitutes a taking of property for public use in the exercise of the right of eminent domain without providing for the compensation of the owners, or that it is an undue and unauthorized exercise of the police power of the State. But whatever may be the basis of his contention, we are of opinion, appropriating, with necessary modifications understood, the language of that great jurist, Chief Justice Shaw (in the case of Com. vs. Tewksbury, 11 Met., 55, where the question involved was the constitutionality of a statute prohibiting and penalizing the taking or carrying away by any person, including the owner, of any stones, gravel, or sand, from any of the beaches in the town of Chesea,) that the law in question "is not a taking of the property for public use, within the meaning of the constitution, but is a just and legitimate exercise of the power of the legislature to regulate and restrain such particular use of the property as would be inconsistent with or injurious to the rights of the public. All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others or greatly impair the public rights and interest of the community." It may be conceded that the benificial use and exclusive enjoyment of the property of all carabao owners in these Islands is to a greater or less degree interfered with by the provisions of the statute; and that, without inquiring what quantum of interest thus passes from the owners of such cattle, it is an interest the deprivation of which detracts from their right and authority, and in some degree interferes with their exclusive possession and control of their property, so that if the regulations in question were enacted for purely private purpose, the statute, in so far as these regulations are concerned, would be a violation of the provisions of the Philippine Bill relied on be appellant; but we are satisfied that it is not such a taking, such an interference with the right and title of the owners, as is involved in the exercise by the State of the right of eminent domain, so as to entitle these owners to compensation, and that it is no more than "a just restrain of an injurious private use of the property, which the legislature had authority to impose." In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid down in Com. vs. Tewksbury (supra) was reviewed and affirmed, the same eminent jurist who wrote the former opinion, in distinguishing the exercise of the right of eminent domain from the exercise of the sovereign police powers of the State, said: We think it is settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that is shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. . . . Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restrain and regulations establish by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

63

It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise. Applying these principles, we are opinion that the restrain placed by the law on the slaughter for human consumption of carabaos fit for agricultural work and draft purpose is not an appropriation of property interests to a "public use," and is not, therefore, within the principle of the exercise by the State of the right of eminent domain. It is fact a mere restriction or limitation upon a private use, which the legislature deemed to be determental to the public welfare. And we think that an examination of the general provisions of the statute in relation to the public interest which it seeks to safeguard and the public necessities for which it provides, leaves no room for doubt that the limitations and restraints imposed upon the exercise of rights of ownership by the particular provisions of the statute under consideration were imposed not for private purposes but, strictly, in the promotion of the "general welfare" and "the public interest" in the exercise of the sovereign police power which every State possesses for the general public welfare and which "reaches to every species of property within the commonwealth." For several years prior to the enactment of the statute a virulent contagious or infectious disease had threatened the total extinction of carabaos in these Islands, in many sections sweeping away seventy, eighty, and in some cases as much as ninety and even one hundred per cent of these animals. Agriculture being the principal occupation of the people, and the carabao being the work animal almost exclusively in use in the fields as well as for draft purposes, the ravages of the disease with which they were infected struck an almost vital blow at the material welfare of the country. large areas of productive land lay waste for years, and the production of rice, the staple food of the inhabitants of the Islands, fell off to such an extent that the impoverished people were compelled to spend many millions of pesos in its importation, notwithstanding the fact that with sufficient work animals to cultivate the fields the arable rice lands of the country could easily be made to produce a supply more that sufficient for its own needs. The drain upon the resources of the Islands was such that famine soon began to make itself felt, hope sank in the breast of the people, and in many provinces the energies of the breadwinners seemed to be paralyzed by the apparently hopeless struggle for existence with which they were confronted. To meet these conditions, large sums of money were expended by the Government in relieving the immediate needs of the starving people, three millions of dollars were voted by the Congress of the United States as a relief or famine fund, public works were undertaken to furnish employment in the provinces where the need was most pressing, and every effort made to alleviate the suffering incident to the widespread failure of the crops throughout the Islands, due in large measure to the lack of animals fit for agricultural work and draft purposes. Such measures, however, could only temporarily relieve the situation, because in an agricultural community material progress and permanent prosperity could hardly be hoped for in the absence of the work animals upon which such a community must necessarily rely for the cultivation of the fields and the transportation of the products of the fields to market. Accordingly efforts were made by the Government to increase the supply of these animals by importation, but, as appears from the official reports on this subject, hope for the future depended largely on the conservation of those animals which had been spared from the ravages of the diseased, and their redistribution throughout the Islands where the need for them was greatest.

At large expense, the services of experts were employed, with a view to the discovery and applications of preventive and curative remedies, and it is hoped that these measures have proved in some degree successful in protecting the present inadequate supply of large cattle, and that the gradual increase and redistribution of these animals throughout the Archipelago, in response to the operation of the laws of supply and demand, will ultimately results in practically relieving those sections which suffered most by the loss of their work animals. As was to be expected under such conditions, the price of carabaos rapidly increase from the three to five fold or more, and it may fairly be presumed that even if the conservative measures now adopted prove entirely successful, the scant supply will keep the price of these animals at a high figure until the natural increase shall have more nearly equalized the supply to the demand. Coincident with and probably intimately connected with this sudden rise in the price of cattle, the crime of cattle stealing became extremely prevalent throughout the Islands, necessitating the enactment of a special law penalizing with the severest penalties the theft of carabaos and other personal property by roving bands; and it must be assumed from the legislative authority found that the general welfare of the Islands necessitated the enactment of special and somewhat burdensome provisions for the branding and registration of large cattle, and supervision and restriction of their slaughter for food. It will hardly be questioned that the provisions of the statute touching the branding and registration of such cattle, and prohibiting and penalizing the slaughter of diseased cattle for food were enacted in the due and proper exercise of the police power of the State; and we are of opinion that, under all the circumstances, the provision of the statute prohibiting and penalizing the slaughter for human consumption of carabaos fit for work were in like manner enacted in the due and proper exercise of that power, justified by the exigent necessities of existing conditions, and the right of the State to protect itself against the overwhelming disaster incident to the further reduction of the supply of animals fit for agricultural work or draft purposes. It is, we think, a fact of common knowledge in these Islands, and disclosed by the official reports and records of the administrative and legislative departments of the Government, that not merely the material welfare and future prosperity of this agricultural community were threatened by the ravages of the disease which swept away the work animals during the years prior to the enactment of the law under consideration, but that the very life and existence of the inhabitants of these Islands as a civilized people would be more or less imperiled by the continued destruction of large cattle by disease or otherwise. Confronted by such conditions, there can be no doubt of the right of the Legislature to adopt reasonable measures for the preservation of work animals, even to the extent of prohibiting and penalizing what would, under ordinary conditions, be a perfectly legitimate and proper exercise of rights of ownership and control of the private property of the citizen. The police power rests upon necessity and the right of self-protection and if ever the invasion of private property by police regulation can be justified, we think that the reasonable restriction placed upon the use of carabaos by the provision of the law under discussion must be held to be authorized as a reasonable and proper exercise of that power. As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152 U.S., 133, 136): The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every State in the Union. It is universally conceded to include everything essential to the public safely, health, and morals, and to justify the 64

destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsary vaccination of children; the confinement of the insane or those afficted with contagious deceases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. (Barbier vs. Connolly, 113 U. S., 27; Kidd vs. Pearson, 128 U. S., 1.) To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court. From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class;" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140), said (p. 149) that by this "general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right in the legislature to do which no question ever was, or, upon acknowledge and general principles, ever can be made, so far as natural persons are concerned." And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says: It would be quite impossible to enumerate all the instances in which the police power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in number and in variety. And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the State, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity. Here

the individual is in no degree in fault, but his interest must yield to that "necessity" which "knows no law." The establishment of limits within the denser portions of cities and villages within which buildings constructed of inflammable materials shall not be erected or repaired may also, in some cases, be equivalent to a destruction of private property; but regulations for this purpose have been sustained notwithstanding this result. Wharf lines may also be established for the general good, even though they prevent the owners of water-fronts from building out on soil which constitutes private property. And, whenever the legislature deem it necessary to the protection of a harbor to forbid the removal of stones, gravel, or sand from the beach, they may establish regulations to that effect under penalties, and make them applicable to the owners of the soil equally with other persons. Such regulations are only "a just restraint of an injurious use of property, which the legislature have authority" to impose. So a particular use of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the power, that which was once lawful, proper, and unobjectionable has now become a public nuisance, endangering the public health or the public safety. Milldams are sometimes destroyed upon this grounds; and churchyards which prove, in the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposes. These citations from some of the highest judicial and text-book authorities in the United States clearly indicate the wide scope and extent which has there been given to the doctrine us in our opinion that the provision of the statute in question being a proper exercise of that power is not in violation of the terms of section 5 of the Philippine Bill, which provide that "no law shall be enacted which shall deprive any person of life, liberty, or property without due process of law," a provision which itself is adopted from the Constitution of the United States, and is found in substance in the constitution of most if not all of the States of the Union. The judgment of conviction and the sentence imposed by the trial court should be affirmed with the costs of this instance against the appellant. So ordered. Arellano, C.J., Torres, Johnson, Moreland and Elliott, JJ., concur.

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CASE 8: G.R. No. L-10572

December 21, 1915 FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees, vs. JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-appellant. Attorney-General Avancea for appellant. Aitken and DeSelms for appellees.

attempt to diminish the jurisdiction of the courts, as conferred upon them by Acts Nos. 136 and 190, which jurisdiction was ratified and confirmed by the Act of Congress of July 1, 1902. In the first place, it has been suggested that section 139 does not apply to the tax in question because the section, in speaking of a "tax," means only legal taxes; and that an illegal tax (the one complained of) is not a tax, and, therefore, does not fall within the inhibition of the section, and may be restrained by injunction. There is no force in this suggestion. The inhibition applies to all internal revenue taxes imposes, or authorized to be imposed, by Act No. 2339. (Snyder vs. Marks, 109 U.S., 189.) And, furthermore, the mere fact that a tax is illegal, or that the law, by virtue of which it is imposed, is unconstitutional, does not authorize a court of equity to restrain its collection by injunction. There must be a further showing that there are special circumstances which bring the case under some well recognized head of equity jurisprudence, such as that irreparable injury, multiplicity of suits, or a cloud upon title to real estate will result, and also that there is, as we have indicated, no adequate remedy at law. This is the settled law in the United States, even in the absence of statutory enactments such as sections 139 and 140. (Hannewinkle vs. Mayor, etc., of Georgetown, 82 U.S., 547; Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases, 232 U. S., 576, 587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S., 32; Shelton vs. Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.) Therefore, this branch of the case must be controlled by sections 139 and 140, unless the same be held unconstitutional, and consequently, null and void. The right and power of judicial tribunals to declare whether enactments of the legislature exceed the constitutional limitations and are invalid has always been considered a grave responsibility, as well as a solemn duty. The courts invariably give the most careful consideration to questions involving the interpretation and application of the Constitution, and approach constitutional questions with great deliberation, exercising their power in this respect with the greatest possible caution and even reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state constitution to be in contravention of the Constitution of the United States, the case must be so clear to be free from doubt, and the conflict of the statute with the constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary to the constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its validity. (6 Ruling Case Law, secs. 71, 72, and 73, and cases cited therein.) It is also the settled law in the United States that "due process of law" does not always require, in respect to the Government, the same process that is required between citizens, though it generally implies and includes regular allegations, opportunity to answer, and a trial according to some well settled course of judicial proceedings. The case with which we are dealing is in point. A citizen's property, both real and personal, may be taken, and usually is taken, by the government in payment of its taxes without any judicial proceedings whatever. In this country, as well as in the United States, the officer charged with the collection of taxes is authorized to seize and sell the property of delinquent taxpayers without applying to the courts for assistance, and the constitutionality of the law authorizing this procedure never has been seriously questioned. (City of Philadelphia vs. [Diehl] The Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This must necessarily be the course, because it is upon taxation that the Government chiefly relies to obtain the means to carry on its operations, and it is of the utmost importance that the modes adopted to enforce the collection of the taxes levied should be summary and interfered with as little as possible. No government could exist if every litigious 66

TRENT, J.: The judgment appealed from in this case perpetually restrains and prohibits the defendant and his deputies from collecting and enforcing against the plaintiffs and their property the annual tax mentioned and described in subsection (b) of section 100 of Act No. 2339, effective July 1, 1914, and from destroying or removing any sign, signboard, or billboard, the property of the plaintiffs, for the sole reason that such sign, signboard, or billboard is, or may be, offensive to the sight; and decrees the cancellation of the bond given by the plaintiffs to secure the issuance of the preliminary injunction granted soon after the commencement of this action. This case divides itself into two parts and gives rise to two main questions; (1) that relating to the power of the court to restrain by injunction the collection of the tax complained of, and (2) that relating to the validity of those provisions of subsection (b) of section 100 of Act No. 2339, conferring power upon the Collector of Internal Revenue to remove any sign, signboard, or billboard upon the ground that the same is offensive to the sight or is otherwise a nuisance. The first question is one of the jurisdiction and is of vital importance to the Government. The sections of Act No. 2339, which bear directly upon the subject, are 139 and 140. The first expressly forbids the use of an injunction to stay the collection of any internal revenue tax; the second provides a remedy for any wrong in connection with such taxes, and this remedy was intended to be exclusive, thereby precluding the remedy by injunction, which remedy is claimed to be constitutional. The two sections, then, involve the right of a dissatisfied taxpayers to use an exceptional remedy to test the validity of any tax or to determine any other question connected therewith, and the question whether the remedy by injunction is exceptional. Preventive remedies of the courts are extraordinary and are not the usual remedies. The origin and history of the writ of injunction show that it has always been regarded as an extraordinary, preventive remedy, as distinguished from the common course of the law to redress evils after they have been consummated. No injunction issues as of course, but is granted only upon the oath of a party and when there is no adequate remedy at law. The Government does, by section 139 and 140, take away the preventive remedy of injunction, if it ever existed, and leaves the taxpayer, in a contest with it, the same ordinary remedial actions which prevail between citizen and citizen. The Attorney-General, on behalf of the defendant, contends that there is no provisions of the paramount law which prohibits such a course. While, on the other hand, counsel for plaintiffs urge that the two sections are unconstitutional because (a) they attempt to deprive aggrieved taxpayers of all substantial remedy for the protection of their property, thereby, in effect, depriving them of their property without due process of law, and (b) they

man were permitted to delay the collection of its taxes. This principle of public policy must be constantly borne in mind in determining cases such as the one under consideration. With these principles to guide us, we will proceed to inquire whether there is any merit in the two propositions insisted upon by counsel for the plaintiffs. Section 5 of the Philippine Bill provides: "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the law." The origin and history of these provisions are well-known. They are found in substance in the Constitution of the United States and in that of ever state in the Union. Section 3224 of the Revised Statutes of the United States, effective since 1867, provides that: "No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." Section 139, with which we have been dealing, reads: "No court shall have authority to grant an injunction to restrain the collection of any internal-revenue tax." A comparison of these two sections show that they are essentially the same. Both expressly prohibit the restraining of taxes by injunction. If the Supreme Court of the United States has clearly and definitely held that the provisions of section 3224 do not violate the "due process of law" and "equal protection of the law" clauses in the Constitution, we would be going too far to hold that section 139 violates those same provisions in the Philippine Bill. That the Supreme Court of the United States has so held, cannot be doubted. In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of an income tax levied by an act of Congress prior to the one in issue in the case of Pollock vs. Farmers' Loan & Trust Co. (157 U.S., 429) the court, through Mr. Justice Miller, said: "If there existed in the courts, state or National, any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary. (Dows vs. The City of Chicago, 11 Wall., 108.) While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the General Government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. In the internal revenue branch it has further prescribed that no such suit shall be brought until the remedy by appeal has been tried; and, if brought after this, it must be within six months after the decision on the appeal. We regard this as a condition on which alone the government consents to litigate the lawfulness of the original tax. It is not a hard condition. Few governments have conceded such a right on any condition. If the compliance with this condition requires the party aggrieved to pay the money, he must do it." Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: "That there might be no misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." (Rev, Stat., sec. 3224.) And though this was intended to apply alone to taxes levied by the United States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting taxes on which the government depends for its continued existence. It is a wise policy. It is founded in the simple philosophy derived from the experience of ages, that the payment of taxes has to be enforced by summary

and stringent means against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalities and other modes of procedure are necessary, than those which belong to courts of justice." And again, in Snyder vs. Marks (109 U.S., 189), the court said: "The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the current of decisions in the Circuit Courts of the United States, and we are satisfied it is a correct view of the law."itc-a1f In the consideration of the plaintiffs' second proposition, we will attempt to show (1) that the Philippine courts never have had, since the American occupation, the power to restrain by injunction the collection of any tax imposed by the Insular Government for its own purpose and benefit, and (2) that assuming that our courts had or have such power, this power has not been diminished or curtailed by sections 139 and 140. We will first review briefly the former and present systems of taxation. Upon the American occupation of the Philippine, there was found a fairly complete system of taxation. This system was continued in force by the military authorities, with but few changes, until the Civil Government assumed charge of the subject. The principal sources of revenue under the Spanish regime were derived from customs receipts, the so-called industrial taxes, the urbana taxes, the stamp tax, the personal cedula tax, and the sale of the public domain. The industrial and urbana taxes constituted practically an income tax of some 5 per cent on the net income of persons engaged in industrial and commercial pursuits and on the income of owners of improved city property. The sale of stamped paper and adhesive stamp tax. The cedula tax was a graduated tax, ranging from nothing up to P37.50. The revenue derived from the sale of the public domain was not considered a tax. The American authorities at once abolished the cedula tax, but later restored it in a modified form, charging for each cedula twenty centavos, an amount which was supposed to be just sufficient to cover the cost of issuance. The urbana tax was abolished by Act No. 223, effective September 6, 1901. The "Municipal Code" (Act No. 82) and the Provincial Government Act (No. 83), both enacted in 1901, authorize municipal councils and provincial boards to impose an ad valorem tax on real estate. The Municipal Code did not apply to the city of Manila. This city was given a special charter (Act No. 183), effective August 30, 1901; Under this charter the Municipal Board of Manila is authorized and empowered to impose taxes upon real estate and, like municipal councils, to license and regulate certain occupations. Customs matters were completely reorganized by Act No. 355, effective at the port of Manila on February 7, 1902, and at other ports in the Philippine Islands the day after the receipt of a certified copy of the Act. The Internal Revenue Law of 1904 (Act No. 1189), repealed all existing laws, ordinances, etc., imposing taxes upon the persons, objects, or occupations taxed under that act, and all industrial taxes and stamp taxes imposed under the Spanish regime were eliminated, but the industrial tax was continued in force until January 1, 1905. This Internal Revenue Law did not take away from municipal councils, provincial boards, and the Municipal Board of the city of Manila the power to impose taxes upon real estate. This Act (No. 1189), with its amendments, was repealed by Act No. 2339, an act "revising and consolidating the laws relative to internal revenue." Section 84 of Act No. 82 provides that "No court shall entertain any suit assailing the validity of a tax assessed under this act until the taxpayer shall have paid, under protest, the taxes assessed against him, . . . ."

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This inhibition was inserted in section 17 of Act No. 83 and applies to taxes imposed by provincial boards. The inhibition was not inserted in the Manila Charter until the passage of Act No. 1793, effective October 12, 1907. Act No. 355 expressly makes the payment of the exactions claimed a condition precedent to a resort to the courts by dissatisfied importers. Section 52 of Act No. 1189 provides "That no courts shall have authority to grant an injunction restraining the collection of any taxes imposed by virtue of the provisions of this Act, but the remedy of the taxpayer who claims that he is unjustly assessed or taxed shall be by payment under protest of the sum claimed from him by the Collector of Internal Revenue and by action to recover back the sum claimed to have been illegally collected." Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the same prohibition and remedy. The result is that the courts have been expressly forbidden, in every act creating or imposing taxes or imposts enacted by the legislative body of the Philippines since the American occupation, to entertain any suit assailing the validity of any tax or impost thus imposed until the tax shall have been paid under protest. The only taxes which have not been brought within the express inhibition were those included in that part of the old Spanish system which completely disappeared on or before January 1, 1905, and possibly the old customs duties which disappeared in February, 1902. Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides that "Courts of First Instance shall have original jurisdiction:

complete remedy at law,"which will not be granted while the rights between the parties are undetermined, except in extraordinary cases where material and irreparable injury will be done,"which cannot be compensated in damages . . . By paragraph 2 of section 56 of Act No. 136, supra, and the provisions of the various subsequent Acts heretofore mentioned, the Insular Government has consented to litigate with aggrieved persons the validity of any original tax or impost imposed by it on condition that this be done in ordinary civil actions after the taxes or exactions shall have been paid. But it is said that paragraph 2 confers original jurisdiction upon Courts of First Instance to hear and determine "all civil actions" which involve the validity of any tax, impost or assessment, and that if the allinclusive words "all" and "any" be given their natural and unrestricted meaning, no action wherein that question is involved can arise over which such courts do not have jurisdiction. (Barrameda vs. Moir, 25 Phil. Rep., 44.) This is true. But the term "civil actions" had its well defined meaning at the time the paragraph was enacted. The same legislative body which enacted paragraph 2 on June 16, 1901, had, just a few months prior to that time, defined the only kind of action in which the legality of any tax imposed by it might be assailed. (Sec. 84, Act 82, enacted January 31, 1901, and sec. 17, Act No. 83, enacted February 6, 1901.) That kind of action being payment of the tax under protest and an ordinary suit to recover and no other, there can be no doubt that Courts of First Instance have jurisdiction over all such actions. The subsequent legislation on the same subject shows clearly that the Commission, in enacting paragraph 2, supra, did not intend to change or modify in any way section 84 of Act No. 82 and section 17 of Act No. 83, but, on the contrary, it was intended that "civil actions," mentioned in said paragraph, should be understood to mean, in so far as testing the legality of taxes were concerned, only those of the kind and character provided for in the two sections above mentioned. It is also urged that the power to restrain by injunction the collection of taxes or imposts is conferred upon Courts of First Instance by paragraph 7 of section 56, supra. This paragraph does empower those courts to grant injunctions, both preliminary and final, in any civil action pending in their districts, provided always, that the complaint shows facts entitling the plaintiff to the relief demanded. Injunction suits, such as the one at bar, are "civil actions," but of a special or extraordinary character. It cannot be said that the Commission intended to give a broader or different meaning to the word "action," used in Chapter 9 of the Code of Civil Procedure in connection with injunctions, than it gave to the same word found in paragraph 2 of section 56 of the Organic Act. The Insular Government, in exercising the power conferred upon it by the Congress of the United States, has declared that the citizens and residents of this country shall pay certain specified taxes and imposts. The power to tax necessarily carries with it the power to collect the taxes. This being true, the weight of authority supports the proposition that the Government may fix the conditions upon which it will consent to litigate the validity of its original taxes. (Tennessee vs. Sneed, 96 U.S., 69.) We must, therefore, conclude that paragraph 2 and 7 of section 56 of Act No. 136, construed in the light of the prior and subsequent legislation to which we have referred, and the legislative and judicial history of the same subject in the United States with which the Commission was familiar, do not empower Courts of firs Instance to interfere by injunction with the collection of the taxes in question in this case.1awphil.net If we are in error as to the scope of paragraph 2 and 7, supra, and the Commission did intend to confer the power upon the courts to restrain the collection of taxes, it does not necessarily follow that this power or jurisdiction has been taken away by section 139 of Act No. 2339, for the reason that all agree that an injunction will not issue in any case if there is an adequate remedy at law. The very nature of the writ itself prevents its issuance under such circumstances. Legislation forbidding the issuing of injunctions in such cases is unnecessary. So the only 68

2.

In all civil actions which involve the ... legality of any tax, impost, or assessment, . . . .

7. Said courts and their judges, or any of them, shall have power to issue writs of injunction, mandamus, certiorari, prohibition, quo warranto, and habeas corpus in their respective provinces and districts, in the manner provided in the Code of Civil Procedure. The provisions of the Code of Civil Procedure (Act No. 190), effective October 1, 1901, which deals with the subject of injunctions, are sections 162 to 172, inclusive. Injunctions, as here defined, are of two kinds; preliminary and final. The former may be granted at any time after the commencement of the action and before final judgment, and the latter at the termination of the trial as the relief or part of the relief prayed for (sec. 162). Any judge of the Supreme Court may grant a preliminary injunction in any action pending in that court or in any Court of First Instance. A preliminary injunction may also be granted by a judge of the Court of First Instance in actions pending in his district in which he has original jurisdiction (sec. 163). But such injunctions may be granted only when the complaint shows facts entitling the plaintiff to the relief demanded (sec. 166), and before a final or permanent injunction can be granted, it must appear upon the trial of the action that the plaintiff is entitled to have commission or continuance of the acts complained of perpetually restrained (sec. 171). These provisions authorize the institution in Courts of First Instance of what are known as "injunction suits," the sole object of which is to obtain the issuance of a final injunction. They also authorize the granting of injunctions as aiders in ordinary civil actions. We have defined in Davesa vs. Arbes (13 Phil. Rep., 273), an injunction to be "A "special remedy" adopted in that code (Act 190) from American practice, and originally borrowed from English legal procedure, which was there issued by the authority and under the seal of a court of equity, and limited, as in other cases where equitable relief is sought, to those cases where there is no "plain, adequate, and

question to be here determined is whether the remedy provided for in section 140 of Act No. 2339 is adequate. If it is, the writs which form the basis of this appeal should not have been issued. If this is the correct view, the authority to issue injunctions will not have been taken away by section 139, but rendered inoperative only by reason of an adequate remedy having been made available. The legislative body of the Philippine Islands has declared from the beginning (Act No. 82) that payment under protest and suit to recover is an adequate remedy to test the legality of any tax or impost, and that this remedy is exclusive. Can we say that the remedy is not adequate or that it is not exclusive, or both? The plaintiffs in the case at bar are the first, in so far as we are aware, to question either the adequacy or exclusiveness of this remedy. We will refer to a few cases in the United States where statutes similar to sections 139 and 140 have been construed and applied. In May, 1874, one Bloomstein presented a petition to the circuit court sitting in Nashville, Tennessee, stating that his real and personal property had been assessed for state taxes in the year 1872 to the amount of $132.60; that he tendered to the collector this amount in "funds receivable by law for such purposes;" and that the collector refused to receive the same. He prayed for an alternative writ of mandamus to compel the collector to receive the bills in payment for such taxes, or to show cause to the contrary. To this petition the collector, in his answer, set up the defense that the petitioner's suit was expressly prohibited by the Act of the General Assembly of the State of Tennessee, passed in 1873. The petition was dismissed and the relief prayed for refused. An appeal to the supreme court of the State resulted in the affirmance of the judgment of the lower court. The case was then carried to the Supreme Court of the United States (Tennessee vs. Sneed, 96 U. S., 69), where the judgment was again affirmed. The two sections of the Act of [March 21,] 1873, drawn in question in that cases, read as follows: 1. That in all cases in which an officer, charged by law with the collection of revenue due the State, shall institute any proceeding, or take any steps for the collection of the same, alleged or claimed to be due by said officer from any citizen, the party against whom the proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or against any statute or clause of the Constitution of the State, pay the same under protest; and, upon his making said payment, the officer or collector shall pay such revenue into the State Treasury, giving notice at the time of payment to the Comptroller that the same was paid under protest; and the party paying said revenue may, at any time within thirty days after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof. And the same may be tried in any court having the jurisdiction of the amount and parties; and, if it be determined that the same was wrongfully collected, as not being due from said party to the State, for any reason going to the merits of the same, then the court trying the case may certify of record that the same was wrongfully paid and ought to be refunded; and thereupon the Comptroller shall issue his warrant for the same, which shall be paid in preference to other claims on the Treasury. 2. That there shall be no other remedy, in any case of the collection of revenue, or attempt to collect revenue illegally, or attempt to collect revenue in funds only receivable by said officer under the law, the same being other or different funds than such as the tax payer may tender, or claim the right to pay, than that above provided; and no writ for the prevention of the collection of any revenue claimed, or to hinder or delay the collection of the same, shall in anywise issue, either injunction, supersedeas, prohibition, or any other writ or process

whatever; but in all cases in which, for any reason, any person shall claim that the tax so collected was wrongfully or illegally collected, the remedy for said party shall be as above provided, and in no other manner." In discussing the adequacy of the remedy provided by the Tennessee Legislature, as above set forth, the Supreme Court of the United States, in the case just cited, said: "This remedy is simple and effective. A suit at law to recover money unlawfully exacted is as speedy, as easily tried, and less complicated than a proceeding by mandamus. ... In revenue cases, whether arising upon its (United States) Internal Revenue Laws or those providing for the collection of duties upon foreign imports, it (United States) adopts the rule prescribed by the State of Tennessee. It requires the contestant to pay the amount as fixed by the Government, and gives him power to sue the collector, and in such suit to test the legality of the tax. There is nothing illegal or even harsh in this. It is a wise and reasonable precaution for the security of the Government." Thomas C. Platt commenced an action in the Circuit Court of the United States for the Eastern District of Tennessee to restrain the collection of a license tax from the company which he represented. The defense was that sections 1 and 2 of the Act of 1873, supra, prohibited the bringing of that suit. This case also reached the Supreme Court of the United States. (Shelton vs. Platt, 139 U. 591.) In speaking of the inhibitory provisions of sections 1 and 2 of the Act of 1873, the court said: "This Act has been sanctioned and applied by the Courts of Tennessee. (Nashville vs. Smith, 86 Tenn., 213; Louisville & N. R. Co. vs. State, 8 Heisk., 663, 804.) It is, as counsel observe, similar to the Act of Congress forbidding suit for the purpose of restraining the assessment or collection of taxes under the Internal Revenue Laws, in respect to which this court held that the remedy by suit to recover back the tax after payment, provided for by the Statute, was exclusive. (Snyder vs. Marks, of this character has been called for by the embarrassments resulting from the improvident employment of the writ of injunction in arresting the collection of the public revenue; and, even in its absence, the strong arm of the court of chancery ought not to be interposed in that direction except where resort to that court is grounded upon the settled principles which govern its jurisdiction." In Louisville & N.R. Co. vs. State (8 Heisk. [64 Tenn.], 663, 804), cited by the Supreme Court of the United States in Shelton vs. Platt, supra, the court said: "It was urged that this statute (sections 1 and 2 of the Act of 1873, supra) is unconstitutional and void, as it deprives the citizen of the remedy by certiorari, guaranteed by the organic law." By the 10th section of the sixth article of the Constitution, [Tennessee] it is provided that: "The judges or justices of inferior courts of law and equity shall have power in all civil cases to issue writs of certiorari, to remove any cause, or the transcript of the record thereof, from any inferior jurisdiction into such court of law, on sufficient cause, supported by oath or affirmation." The court held the act valid as not being in conflict with these provisions of the State constitution. In Eddy vs. The Township of Lee (73 Mich., 123), the complainants sought to enjoin the collection of certain taxes for the year 1886. The defendants, in support of their demurrer, insisted that the remedy by injunction had been taken away by section 107 of the Act of 1885, which section reads as follows: "No injunction shall issue to stay proceedings for the assessment or collection of taxes under this Act."

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It was claimed by the complainants that the above quoted provisions of the Act of 1885 were unconstitutional and void as being in conflict with article 6, sec. 8, of the Constitution, which provides that: "The circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution, and not prohibited by law. ... They shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs necessary to carry into effect their orders, judgments, and decrees." Mr. Justice Champlin, speaking for the court, said: "I have no doubt that the Legislature has the constitutional authority, where it has provided a plain, adequate, and complete remedy at law to recover back taxes illegally assessed and collected, to take away the remedy by injunction to restrain their collection." Section 9 of the Philippine Bill reads in part as follows: "That the Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the Government of said Islands, subject to the power of said Government to change the practice and method of procedure." It will be seen that this section has not taken away from the Philippine Government the power to change the practice and method of procedure. If sections 139 and 140, considered together, and this must always be done, are nothing more than a mode of procedure, then it would seem that the Legislature did not exceed its constitutional authority in enacting them. Conceding for the moment that the duly authorized procedure for the determination of the validity of any tax, impost, or assessment was by injunction suits and that this method was available to aggrieved taxpayers prior to the passage of Act No. 2339, may the Legislature change this method of procedure? That the Legislature has the power to do this, there can be no doubt, provided some other adequate remedy is substituted in lieu thereof. In speaking of the modes of enforcing rights created by contracts, the Supreme Court of the United States, in Tennessee vs. Sneed, supra, said: "The rule seems to be that in modes of proceedings and of forms to enforce the contract the Legislature has the control, and may enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the value of the right." In that case the petitioner urged that the Acts of 1873 were laws impairing the obligation of the contract contained in the charter of the Bank of Tennessee, which contract was entered into with the State in 1838. It was claimed that this was done by placing such impediments and obstructions in the way of its enforcement, thereby so impairing the remedies as practically to render the obligation of no value. In disposing of this contention, the court said: "If we assume that prior to 1873 the relator had authority to prosecute his claim against the State by mandamus, and that by the statutes of that year the further use of that form was prohibited to him, the question remains. whether an effectual remedy was left to him or provided for him. We think the regulation of the statute gave him an abundant means of enforcing such right as he possessed. It provided that he might pay his claim to the collector under protest, giving notice thereof to the Comptroller of the Treasury; that at any time within thirty days thereafter he might sue the officer making the collection; that the case should be tried by any court having jurisdiction and, if found in favor of the plaintiff on the merits, the court should certify that the same was wrongfully paid and ought to be refunded and the Comptroller should thereupon issue his warrant therefor, which should be paid in preference to other claim on the Treasury." But great stress is laid upon the fact that the plaintiffs in the case under consideration are unable to pay the taxes assessed against them and that if the law is enforced, they will be

compelled to suspend business. This point may be best answered by quoting from the case of Youngblood vs. Sexton (32 Mich., 406), wherein Judge Cooley, speaking for the court, said: "But if this consideration is sufficient to justify the transfer of a controversy from a court of law to a court of equity, then every controversy where money is demanded may be made the subject of equitable cognizance. To enforce against a dealer a promissory note may in some cases as effectually break up his business as to collect from him a tax of equal amount. This is not what is known to the law as irreparable injury. The courts have never recognized the consequences of the mere enforcement of a money demand as falling within that category." Certain specified sections of Act No. 2339 were amended by Act No. 2432, enacted December 23, 1914, effective January 1, 1915, by imposing increased and additional taxes. Act No. 2432 was amended, were ratified by the Congress of the United States on March 4, 1915. The opposition manifested against the taxes imposed by Acts Nos. 2339 and 2432 is a matter of local history. A great many business men thought the taxes thus imposed were too high. If the collection of the new taxes on signs, signboards, and billboards may be restrained, we see no well-founded reason why injunctions cannot be granted restraining the collection of all or at least a number of the other increased taxes. The fact that this may be done, shows the wisdom of the Legislature in denying the use of the writ of injunction to restrain the collection of any tax imposed by the Acts. When this was done, an equitable remedy was made available to all dissatisfied taxpayers. The question now arises whether, the case being one of which the court below had no jurisdiction, this court, on appeal, shall proceed to express an opinion upon the validity of provisions of subsection (b) of section 100 of Act No. 2339, imposing the taxes complained of. As a general rule, an opinion on the merits of a controversy ought to be declined when the court is powerless to give the relief demanded. But it is claimed that this case is, in many particulars, exceptional. It is true that it has been argued on the merits, and there is no reason for any suggestion or suspicion that it is not a bona fide controversy. The legal points involved in the merits have been presented with force, clearness, and great ability by the learned counsel of both sides. If the law assailed were still in force, we would feel that an opinion on its validity would be justifiable, but, as the amendment became effective on January 1, 1915, we think it advisable to proceed no further with this branch of the case. The next question arises in connection with the supplementary complaint, the object of which is to enjoin the Collector of Internal Revenue from removing certain billboards, the property of the plaintiffs located upon private lands in the Province of Rizal. The plaintiffs allege that the billboards here in question "in no sense constitute a nuisance and are not deleterious to the health, morals, or general welfare of the community, or of any persons." The defendant denies these allegations in his answer and claims that after due investigation made upon the complaints of the British and German Consuls, he "decided that the billboard complained of was and still is offensive to the sight, and is otherwise a nuisance." The plaintiffs proved by Mr. Churchill that the "billboards were quite a distance from the road and that they were strongly built, not dangerous to the safety of the people, and contained no advertising matter which is filthy, indecent, or deleterious to the morals of the community." The defendant presented no testimony upon this point. In the agreed statement of facts submitted by the parties, the plaintiffs "admit that the billboards mentioned were and still are offensive to the sight." The pertinent provisions of subsection (b) of section 100 of Act No. 2339 read: "If after due investigation the Collector of Internal Revenue shall decide that any sign, signboard, or billboard displayed or exposed to public view is offensive to the sight or is otherwise a nuisance, he may by summary order direct the removal of such sign, signboard, or billboard, and if same is not 70

removed within ten days after he has issued such order he my himself cause its removal, and the sign, signboard, or billboard shall thereupon be forfeited to the Government, and the owner thereof charged with the expenses of the removal so effected. When the sign, signboard, or billboard ordered to be removed as herein provided shall not comply with the provisions of the general regulations of the Collector of Internal Revenue, no rebate or refund shall be allowed for any portion of a year for which the tax may have been paid. Otherwise, the Collector of Internal Revenue may in his discretion make a proportionate refund of the tax for the portion of the year remaining for which the taxes were paid. An appeal may be had from the order of the Collector of Internal Revenue to the Secretary of Finance and Justice whose decision thereon shall be final." The Attorney-General, on behalf of the defendant, says: "The question which the case presents under this head for determination, resolves itself into this inquiry: Is the suppression of advertising signs displayed or exposed to public view, which are admittedly offensive to the sight, conducive to the public interest?" And cunsel for the plaintiffs states the question thus: "We contend that that portion of section 100 of Act No. 2339, empowering the Collector of Internal Revenue to remove billboards as nuisances, if objectionable to the sight, is unconstitutional, as constituting a deprivation of property without due process of law." From the position taken by counsel for both sides, it is clear that our inquiry is limited to the question whether the enactment assailed by the plaintiffs was a legitimate exercise of the police power of the Government; for all property is held subject to that power. As a consequence of the foregoing, all discussion and authorities cited, which go to the power of the state to authorize administrative officers to find, as a fact, that legitimate trades, callings, and businesses are, under certain circumstances, statutory nuisances, and whether the procedure prescribed for this purpose is due process of law, are foreign to the issue here presented. There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. But where the Act is reasonably within a proper consideration of and care for the public health, safety, or comfort, it should not be disturbed by the courts. The courts cannot substitute their own views for what is proper in the premises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the United States Supreme Court states the rule thus: "If no state of circumstances could exist to justify such statute, then we may declare this one void because in excess of the legislative power of this state; but if it could, we must presume it did. Of the propriety of legislative interference, within the scope of the legislative power, a legislature is the exclusive judge." This rule very fully discussed and declared in Powell vs. Pennsylvania (127 U.S., 678) "oleomargarine" case. (See also Crowley vs. Christensen, 137 U.S., 86, 87; Camfield vs. U.S., 167 U.S., 518.) While the state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interest of the public require, but what measures are necessary for the protection of such interests; yet, its determination in these matters is not final or conclusive, but is subject to the

supervision of the courts. (Lawton vs. Steele, 152 U.S., 133.) Can it be said judicially that signs, signboards, and billboards, which are admittedly offensive to the sight, are not with the category of things which interfere with the public safety, welfare, and comfort, and therefore beyond the reach of the police power of the Philippine Government? The numerous attempts which have been made to limit by definition the scope of the police power are only interesting as illustrating its rapid extension within comparatively recent years to points heretofore deemed entirely within the field of private liberty and property rights. Blackstone's definition of the police power was as follows: "The due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neigborhood, and good manners, to be decent, industrious, and inoffensive in their respective stations." (Commentaries, vol. 4, p. 162.) Chanceller Kent considered the police power the authority of the state "to regulate unwholesome trades, slaughter houses, operations offensive to the senses." Chief Justice Shaw of Massachusetts defined it as follows: "The power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." (Com. vs. Alger, 7 Cush., 53.) In the case of Butchers' Union Slaughter-house, etc. Co. vs. Crescent City Live Stock Landing, etc. Co. (111 U.S., 746), it was suggested that the public health and public morals are matters of legislative concern of which the legislature cannot divest itself. (See State vs. Mountain Timber Co. [1913], 75 Wash., 581, where these definitions are collated.) In Champer vs. Greencastle (138 Ind., 339), it was said: "The police power of the State, so far, has not received a full and complete definition. It may be said, however, to be the right of the State, or state functionary, to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which do not ... violate any of the provisions of the organic law." (Quoted with approval in Hopkins vs. Richmond [Va., 1915], 86 S.E., 139.) In Com. vs. Plymouth Coal Co. ([1911] 232 Pa., 141), it was said: "The police power of the state is difficult of definition, but it has been held by the courts to be the right to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which does not encroach on a like power vested in congress or state legislatures by the federal constitution, or does not violate the provisions of the organic law; and it has been expressly held that the fourteenth amendment to the federal constitution was not designed to interfere with the exercise of that power by the state." In People vs. Brazee ([Mich., 1914], 149 N.W., 1053), it was said: "It [the police power] has for its object the improvement of social and economic conditioned affecting the community at large and collectively with a view to bring about "he greatest good of the greatest number."Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction." In 8 Cyc., 863, it is said: "Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy, in a broad 71

sense, demands, for the benefit of society at large, regulations to guard its morals, safety, health, order or to insure in any respect such economic conditions as an advancing civilization of a high complex character requires." (As quoted with approval in Stettler vs. O'Hara [1914], 69 Ore, 519.) Finally, the Supreme Court of the United States has said in Noble State Bank vs. Haskell (219 U.S. [1911], 575: "It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." This statement, recent as it is, has been quoted with approval by several courts. (Cunningham vs. Northwestern Imp. Co. [1911], 44 Mont., 180; State vs. Mountain Timber Co. [1913], 75 Wash., 581; McDavid vs. Bank of Bay Minette [Ala., 1915], 69 Sou., 452; Hopkins vs. City of Richmond [Va., 1915], 86 S.E., 139; State vs. Philipps [Miss. 1915], 67 Sou., 651.) It was said in Com. vs. Alger (7 Cush., 53, 85), per Shaw, C.J., that: "It is much easier to perceive and realize the existence and sources of this police power than to mark its boundaries, or to prescribe limits to its exercise." In Stone vs. Mississippi (101 U.S., 814), it was said: "Many attempts have been made in this court and elsewhere to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power, than to give an abstract definition of the power itself, which will be in all respects accurate." Other courts have held the same vow of efforts to evolve a satisfactory definition of the police power. Manifestly, definitions which fail to anticipate cases properly within the scope of the police power are deficient. It is necessary, therefore, to confine our discussion to the principle involved and determine whether the cases as they come up are within that principle. The basic idea of civil polity in the United States is that government should interfere with individual effort only to the extent necessary to preserve a healthy social and economic condition of the country. State interference with the use of private property may be exercised in three ways. First, through the power of taxation, second, through the power of eminent domain, and third, through the police power. Buy the first method it is assumed that the individual receives the equivalent of the tax in the form of protection and benefit he receives from the government as such. By the second method he receives the market value of the property taken from him. But under the third method the benefits he derived are only such as may arise from the maintenance of a healthy economic standard of society and is often referred to as damnum absque injuria. (Com. vs. Plymouth Coal Co. 232 Pa., 141; Bemis vs. Guirl Drainage Co., 182 Ind., 36.) There was a time when state interference with the use of private property under the guise of the police power was practically confined to the suppression of common nuisances. At the present day, however, industry is organized along lines which make it possible for large combinations of capital to profit at the expense of the socio-economic progress of the nation by controlling prices and dictating to industrial workers wages and conditions of labor. Not only this but the universal use of mechanical contrivances by producers and common carriers has enormously increased the toll of human life and limb in the production and distribution of consumption goods. To the extent that these businesses affect not only the public health, safety, and morals, but also the general social and economic life of the nation, it has been and will continue to be necessary for the state to interfere by regulation. By so doing, it is true that the enjoyment of private property is interfered with in no small degree and in ways that would have been considered entirely unnecessary in years gone by. The regulation of rates charged by common carriers, for instance, or the limitation of hours of work in industrial establishments

have only a very indirect bearing upon the public health, safety, and morals, but do bear directly upon social and economic conditions. To permit each individual unit of society to feel that his industry will bring a fair return; to see that his work shall be done under conditions that will not either immediately or eventually ruin his health; to prevent the artificial inflation of prices of the things which are necessary for his physical well being are matters which the individual is no longer capable of attending to himself. It is within the province of the police power to render assistance to the people to the extent that may be necessary to safeguard these rights. Hence, laws providing for the regulation of wages and hours of labor of coal miners (Rail & River Coal Co. vs. Taylor, 234 U.S., 224); requiring payment of employees of railroads and other industrial concerns in legal tender and requiring salaries to be paid semimonthly (Erie R.R. Co. vs. Williams, 233 U.S., 685); providing a maximum number of hours of labor for women (Miller vs. Wilson, U.S. Sup. Ct. [Feb. 23, 1915], Adv. Opns., p. 342); prohibiting child labor (Sturges & Burn vs. Beauchamp, 231 U.S., 320); restricting the hours of labor in public laundries (In re Wong Wing, 167 Cal., 109); limiting hours of labor in industrial establishment generally (State vs. Bunting, 71 Ore., 259); Sunday Closing Laws (State vs. Nicholls [Ore., 1915], 151 Pac., 473; People vs. C. Klinck Packing Co. [N.Y., 1915], 108 N. E., 278; Hiller vs. State [Md., 1914], 92 Atl., 842; State vs. Penny, 42 Mont., 118; City of Springfield vs. Richter, 257 Ill., 578, 580; State vs. Hondros [S.C., 1915], 84 S.E., 781); have all been upheld as a valid exercise of the police power. Again, workmen's compensation laws have been quite generally upheld. These statutes discard the common law theory that employers are not liable for industrial accidents and make them responsible for all accidents resulting from trade risks, it being considered that such accidents are a legitimate charge against production and that the employer by controlling the prices of his product may shift the burden to the community. Laws requiring state banks to join in establishing a depositors' guarantee fund have also been upheld by the Federal Supreme Court in Noble State Bank vs. Haskell (219 U. S., 104), and Assaria State Bank vs. Dolley (219 U.S., 121). Offensive noises and smells have been for a long time considered susceptible of suppression in thickly populated districts. Barring livery stables from such locations was approved of in Reinman vs. Little Rock (U.S. Sup. Ct. [Apr. 5, 1915], U.S. Adv. Opns., p. 511). And a municipal ordinance was recently upheld (People vs. Ericsson, 263 Ill., 368), which prohibited the location of garages within two hundred feet of any hospital, church, or school, or in any block used exclusively for residential purposes, unless the consent of the majority of the property owners be obtained. Such statutes as these are usually upheld on the theory of safeguarding the public health. But we apprehend that in point of fact they have little bearing upon the health of the normal person, but a great deal to do with his physical comfort and convenience and not a little to do with his peace of mind. Without entering into the realm of psychology, we think it quite demonstrable that sight is as valuable to a human being as any of his other senses, and that the proper ministration to this sense conduces as much to his contentment as the care bestowed upon the senses of hearing or smell, and probably as much as both together. Objects may be offensive to the eye as well as to the nose or ear. Man's esthetic feelings are constantly being appealed to through his sense of sight. Large investments have been made in theaters and other forms of amusement, in paintings and spectacular displays, the success of which depends in great part upon the appeal made through the sense of sight. Moving picture shows could not possible without the sense of sight. Governments have spent millions on parks and boulevards and other forms of civic beauty, the first aim of which is to appeal to the sense of sight. Why, then, should the Government not interpose to protect from annoyance this most valuable of man's senses as readily as to protect him from offensive noises and smells? The advertising industry is a legitimate one. It is at the same time a cause and an effect of the great industrial age through which the world is now passing. Millions are spent each year in this manner to guide the consumer to the articles which he needs. The sense of sight is the primary 72

essential to advertising success. Billboard advertising, as it is now conducted, is a comparatively recent form of advertising. It is conducted out of doors and along the arteries of travel, and compels attention by the strategic locations of the boards, which obstruct the range of vision at points where travelers are most likely to direct their eyes. Beautiful landscapes are marred or may not be seen at all by the traveler because of the gaudy array of posters announcing a particular kind of breakfast food, or underwear, the coming of a circus, an incomparable soap, nostrums or medicines for the curing of all the ills to which the flesh is heir, etc. It is quite natural for people to protest against this indiscriminate and wholesale use of the landscape by advertisers and the intrusion of tradesmen upon their hours of leisure and relaxation from work. Outdoor life must lose much of its charm and pleasure if this form of advertising is permitted to continue unhampered until it converts the streets and highways into veritable canyons through which the world must travel in going to work or in search of outdoor pleasure. The success of billboard advertising depends not so much upon the use of private property as it does upon the use of the channels of travel used by the general public. Suppose that the owner of private property, who so vigorously objects to the restriction of this form of advertising, should require the advertiser to paste his posters upon the billboards so that they would face the interior of the property instead of the exterior. Billboard advertising would die a natural death if this were done, and its real dependency not upon the unrestricted use of private property but upon the unrestricted use of the public highways is at once apparent. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence, we conceive that the regulation of billboards and their restriction is not so much a regulation of private property as it is a regulation of the use of the streets and other public thoroughfares. We would not be understood as saying that billboard advertising is not a legitimate business any more than we would say that a livery stable or an automobile garage is not. Even a billboard is more sightly than piles of rubbish or an open sewer. But all these businesses are offensive to the senses under certain conditions. It has been urged against ministering to the sense of sight that tastes are so diversified that there is no safe standard of legislation in this direction. We answer in the language of the Supreme Court in Noble State Bank vs. Haskell (219 U.S., 104), and which has already been adopted by several state courts (see supra), that "the prevailing morality or strong and preponderating opinion" demands such legislation. The agitation against the unrestrained development of the billboard business has produced results in nearly all the countries of Europe. (Ency. Britannica, vol. 1, pp. 237-240.) Many drastic ordinances and state laws have been passed in the United States seeking to make the business amenable to regulation. But their regulation in the United states is hampered by what we conceive an unwarranted restriction upon the scope of the police power by the courts. If the police power may be exercised to encourage a healthy social and economic condition in the country, and if the comfort and convenience of the people are included within those subjects, everything which encroaches upon such territory is amenable to the police power. A source of annoyance and irritation to the public does not minister to the comfort and convenience of the public. And we are of the opinion that the prevailing sentiment is manifestly against the erection of billboards which are offensive to the sight. We do not consider that we are in conflict with the decision in Eubank vs. Richmond (226 U.S., 137), where a municipal ordinance establishing a building line to which property owners must conform was held unconstitutional. As we have pointed out, billboard advertising is not so much a use of private property as it is a use of the public thoroughfares. It derives its value to the

power solely because the posters are exposed to the public gaze. It may well be that the state may not require private property owners to conform to a building line, but may prescribe the conditions under which they shall make use of the adjoining streets and highways. Nor is the law in question to be held invalid as denying equal protection of the laws. In Keokee Coke Co. vs. Taylor (234 U.S., 224), it was said: "It is more pressed that the act discriminates unconstitutionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear." But we have not overlooked the fact that we are not in harmony with the highest courts of a number of the states in the American Union upon this point. Those courts being of the opinion that statutes which are prompted and inspired by esthetic considerations merely, having for their sole purpose the promotion and gratification of the esthetic sense, and not the promotion or protection of the public safety, the public peace and good order of society, must be held invalid and contrary to constitutional provisions holding inviolate the rights of private property. Or, in other words, the police power cannot interfere with private property rights for purely esthetic purposes. The courts, taking this view, rest their decisions upon the proposition that the esthetic sense is disassociated entirely from any relation to the public health, morals, comfort, or general welfare and is, therefore, beyond the police power of the state. But we are of the opinion, as above indicated, that unsightly advertisements or signs, signboards, or billboards which are offensive to the sight, are not disassociated from the general welfare of the public. This is not establishing a new principle, but carrying a well recognized principle to further application. (Fruend on Police Power, p. 166.) For the foregoing reasons the judgment appealed from is hereby reversed and the action dismissed upon the merits, with costs. So ordered. Arellano, C.J., Torres, Carson, and Araullo, JJ., concur. DECISION ON THE MOTION FOR A REHEARING, JANUARY 24, 1916. TRENT, J.: Counsel for the plaintiffs call our attention to the case of Ex parte Young (209 U.S., 123); and say that they are of the opinion that this case "is the absolutely determinative of the question of jurisdiction in injunctions of this kind." We did not refer to this case in our former opinion because we were satisfied that the reasoning of the case is not applicable to section 100 (b), 139 and 140 of Act No. 2339. The principles announced in the Young case are stated as follows: "It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights. It is urged that there is no principle upon which to base the claim that a person is entitled to disobey a statute at least once, for the purpose of testing its validity without subjecting himself to the penalties for disobedience provided by the statute in case it is valid. This is not an accurate statement of the case. Ordinarily a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature is 73

complete in any event. In these case, however, of the establishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment (how much it is not now necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the acts depends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the ordinary case of a statute upon a subject requiring no such investigation and over which the jurisdiction of the legislature is complete in any event. An examination of the sections of our Internal Revenue Law and of the circumstances under which and the purposes for which they were enacted, will show that, unlike the statutes under consideration in the above cited case, their enactment involved no attempt on the part of the Legislature to prevent dissatisfied taxpayers "from resorting to the courts to test the validity of the legislation;" no effort to prevent any inquiry as to their validity. While section 139 does prevent the testing of the validity of subsection (b) of section 100 in injunction suits instituted for the purpose of restraining the collection of internal revenue taxes, section 140 provides a complete remedy for that purpose. And furthermore, the validity of subsection (b) does not depend upon "the existence of a fact which can be determined only after investigation of a very complicated and technical character," but the jurisdiction of the Legislature over the subject with which the subsection deals "is complete in any event." The judgment of the court in the Young case rests upon the proposition that the aggrieved parties had no adequate remedy at law. Neither did we overlook the case of General Oil Co. vs. Crain (209 U.S., 211), decided the same day and citing Ex parte Young, supra. In that case the plaintiff was a Tennessee corporation, with its principal place of business in Memphis, Tennessee. It was engaged in the manufacture and sale of coal oil, etc. Its wells and plant were located in Pennsylvania and Ohio. Memphis was not only its place of business, at which place it sold oil to the residents of Tennessee, but also a distributing point to which oils were shipped from Pennsylvania and Ohio and unloaded into various tanks for the purpose of being forwarded to the Arkansas, Louisiana, and Mississippi customers. Notwithstanding the fact that the company separated its oils, which were designated to meet the requirements of the orders from those States, from the oils for sale in Tennessee, the defendant insisted that he had a right, under the Act of the Tennessee Legislature, approved April 21, 1899, to inspect all the oils unlocated in Memphis, whether for sale in that State or not, and charge and collect for such inspection a regular fee of twenty-five cents per barrel. The company, being advised that the defendant had no such right, instituted this action in the inferior States court for the purpose of enjoining the defendant, upon the grounds stated in the bill, from inspecting or attempting to inspect its oils. Upon trial, the preliminary injunction which had been granted at the commencement of the action, was continued in force. Upon appeal, the supreme court of the State of Tennessee decided that the suit was one against the State and reversed the judgment of the Chancellor. In the Supreme Court of the United States, where the case was reviewed upon a writ of error, the contentions of the parties were stated by the court as follows: "It is contended by defendant in error that this court is without jurisdiction because no matter sought to be litigated by plaintiff in error was determined by the Supreme Court of Tennessee. The court simply held, it is paid, that, under the laws of the State, it had no jurisdiction to entertain the suit for any purpose. And it is

insisted "hat this holding involved no Federal question, but only the powers and jurisdiction of the courts of the State of Tennessee, in respect to which the Supreme Court of Tennessee is the final arbiter." Opposing these contentions, plaintiff in error urges that whether a suit is one against a State cannot depend upon the declaration of a statute, but depends upon the essential nature ofthe suit, and that the Supreme Court recognized that the statute "aded nothing to the axiomatic principle that the State, as a sovereign, is not subject to suit save by its own consent."And it is hence insisted that the court by dismissing the bill gave effect to the law which was attacked. It is further insisted that the bill undoubtedly present rights under the Constitution of the United States and conditions which entitle plaintiff in error to an injunction for the protection of such rights, and that a statute of the State which operates to deny such rights, or such relief, `is itself in conflict with the Constitution of the United States." That statute of Tennessee, which the supreme court of that State construed and held to be prohibitory of the suit, was an act passed February 28, 1873, which provides: "That no court in the State of Tennessee has, nor shall hereafter have, any power, jurisdiction, or authority to entertain any suit against the State, or any officer acting by the authority of the State, with a view to reach the State, its treasury, funds or property; and all such suits now pending, or hereafter brought, shall be dismissed as to the State, or such officer, on motion, plea or demurrer of the law officer of the State, or counsel employed by the State." The Supreme Court of the United States, after reviewing many cases, said: "Necessarily, to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers. And the suit at bar illustrates the necessity. If a suit against state officer is precluded in the national courts by the Eleventh Amendment to the Constitution, and may be forbidden by a State to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution; and the Fourteenth Amendment, which is directed at state action, could be nullified as to much of its operation. ... It being then the right of a party to be protected against a law which violates a constitutional right, whether by its terms or the manner of its enforcement, it is manifest that a decision which denies such protection gives effect to the law, and the decision is reviewable by this court." The court then proceeded to consider whether the law of 1899 would, if administered against the oils in question, violate any constitutional right of the plaintiff and after finding and adjudging that the oils were not in movement through the States, that they had reached the destination of their first shipment, and were held there, not in necessary delay at means of transportation but for the business purposes and profit of the company, and resting its judgment upon the taxing power of the State, affirmed the decree of the supreme court of the State of Tennessee. From the foregoing it will be seen that the Supreme Court of Tennessee dismissed the case for want of jurisdiction because the suit was one against the State, which was prohibited by the Tennessee Legislature. The Supreme Court of the United States took jurisdiction of the controversy for the reasons above quoted and sustained the Act of 1899 as a revenue law. The case of Tennessee vs. Sneed (96 U.S., 69), and Shelton vs. Platt (139 U.S., 591), relied upon in our former opinion, were not cited in General Oil Co. vs. Crain, supra, because the questions presented and the statutes under consideration were entirely different. The Act approved 74

March 31, 1873, expressly prohibits the courts from restraining the collection of any tax, leaving the dissatisfied taxpayer to his exclusive remedy payment under protest and suit to recover while the Act approved February 28, 1873, prohibits suits against the State. In upholding the statute which authorizes the removal of signboards or billboards upon the sole ground that they are offensive to the sight, we recognized the fact that we are not in harmony with various state courts in the American Union. We have just examined the decision of the Supreme Court of the State of Illinois in the recent case (October [December], 1914) of Thomas Cusack Co. vs. City of Chicago (267 Ill., 344), wherein the court upheld the validity of a municipal ordinances, which reads as follows: "707. Frontage consents required. It shall be unlawful for any person, firm or corporation to erect or construct any bill-board or sign-board in any block on any public street in which one-half of the buildings on both sides of the street are used exclusively for residence purposes, without first obtaining the consent, in writing, of the owners or duly authorized agents of said owners owning a majority of the frontage of the property, on both sides of the street, in the block in which such bill-board or sign-board is to be erected, constructed or located. Such written consent shall be filed with the commissioner of buildings before a permit shall be issued for the erection, construction or location of such bill-board or sign-board." The evidence which the Illinois court relied upon was the danger of fires, the fact that billboards promote the commission of various immoral and filthy acts by disorderly persons, and the inadequate police protection furnished to residential districts. The last objection has no virtue unless one or the other of the other objections are valid. If the billboard industry does, in fact, promote such municipal evils to noticeable extent, it seems a curious inconsistency that a majority of the property owners on a given block may legalize the business. However, the decision is undoubtedly a considerable advance over the views taken by other high courts in the United States and distinguishes several Illinois decisions. It is an advance because it permits the suppression of billboards where they are undesirable. The ordinance which the court approved will no doubt cause the virtual suppression of the business in the residential districts. Hence, it is recognized that under certain circumstances billboards may be suppressed as an unlawful use of private property. Logically, it would seem that the premise of fact relied upon is not very solid. Objections to the billboard upon police, sanitary, and moral grounds have been, as pointed out by counsel for Churchill and Tait, duly considered by numerous high courts in the United States, and, with one exception, have been rejected as without foundation. The exception is the Supreme Court of Missouri, which advances practically the same line of reasoning as has the Illinois court in this recent case. (St. Louis Gunning Advt. Co. vs. City of St. Louis, 137 S. W., 929.) In fact, the Illinois court, in Haller Sign Works vs. Physical Culture Training School (249 Ill., 436), "distinguished" in the recent case, said: "There is nothing inherently dangerous to the health or safety of the public in structures that are properly erected for advertising purposes." If a billboard is so constructed as to offer no room for objections on sanitary or moral grounds, it would seem that the ordinance above quoted would have to be sustained upon the very grounds which we have advanced in sustaining our own statute. It might be well to note that billboard legislation in the United States is attempting to eradicate a business which has already been firmly established. This business was allowed to expand unchecked until its very extent called attention to its objectionable features. In the Philippine Islands such legislation has almost anticipated the business, which is not yet of such proportions that it can be said to be fairly established. It may be that the courts in the United States have committed themselves to a course of decisions with respect to billboard advertising, the full consequences of which were not perceived for the reason that the development of the business

has been so recent that the objectionable features of it did not present themselves clearly to the courts nor to the people. We, in this country, have the benefit of the experience of the people of the United States and may make our legislation preventive rather than corrective. There are in this country, moreover, on every hand in those districts where Spanish civilization has held sway for so many centuries, examples of architecture now belonging to a past age, and which are attractive not only to the residents of the country but to visitors. If the billboard industry is permitted without constraint or control to hide these historic sites from the passerby, the country will be less attractive to the tourist and the people will suffer a district economic loss. The motion for a rehearing is therefore denied. Arellano, C.J., Torres, and Carson, JJ., concur.

75

CASE 9: G.R. No. 135962

March 27, 2000 METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. BEL-AIR VILLAGE ASSOCIATION, INC., respondent. PUNO, J.: Not infrequently, the government is tempted to take legal shortcuts solve urgent problems of the people. But even when government is armed with the best of intention, we cannot allow it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the illegal attempt of the MMDA to open for public use a private road in a private subdivision. While we hold that the general welfare should be promoted, we stress that it should not be achieved at the expense of the rule of law. Petitioner MMDA is a government agency tasked with the delivery of basic services in Metro Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit corporation whose members are homeowners in Bel-Air Village, a private subdivision in Makati City. Respondent BAVA is the registered owner of Neptune Street, a road inside Bel-Air Village. On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. The notice reads: SUBJECT: NOTICE of the Opening of Neptune Street to Traffic. Dear President Lindo, Please be informed that pursuant to the mandate of the MMDA law or Republic Act No. 7924 which requires the Authority to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons, Neptune Street shall be opened to vehicular traffic effective January 2, 1996. In view whereof, the undersigned requests you to voluntarily open the points of entry and exit on said street. Thank you for your cooperation and whatever assistance that may be extended by your association to the MMDA personnel who will be directing traffic in the area. Finally, we are furnishing you with a copy of the handwritten instruction of the President on the matter. Very truly yours, PROSPERO I. ORETA Chairman 1

On the same day, respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial court issued a temporary restraining order the following day. On January 23, 1996, after due hearing, the trial court denied issuance of a preliminary injunction. 2 Respondent questioned the denial before the Court of Appeals in CA-G.R. SP No. 39549. The appellate court conducted an ocular inspection of Neptune Street 3 and on February 13, 1996, it issued a writ of preliminary injunction enjoining the implementation of the MMDA's proposed action. 4 On January 28, 1997, the appellate court rendered a Decision on the merits of the case finding that the MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. The decision disposed of as follows: WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23, 1995, in Civil Case No. 96-001, is SET ASIDE and the Writ of Preliminary Injunction issued on February 13, 1996 is hereby made permanent. For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario in contempt is denied. 5 No pronouncement as to costs. SO ORDERED. 6 The Motion for Reconsideration of the decision was denied on September 28, 1998. Hence, this recourse. Petitioner MMDA raises the following questions: I HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE STREET TO PUBLIC TRAFFIC PURSUANT TO ITS REGULATORY AND POLICE POWERS? II IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE THE MMDA MAY ORDER THE OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC? III IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM DENYING OR ASSAILING THE AUTHORITY OF THE MMDA TO OPEN THE SUBJECT STREET? 76

IV WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL MEETINGS HELD BETWEEN MMDA AND THE AFFECTED EEL-AIR RESIDENTS AND BAVA OFFICERS? V HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?7 Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a private residential subdivision in the heart of the financial and commercial district of Makati City. It runs parallel to Kalayaan Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates. Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court. 8 From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public. 9 Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. 10 The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. 11 It bears stressing that police power is lodged primarily in the National Legislature. 12 It cannot be exercised by any group or body of individuals not possessing legislative power. 13 The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. 14 Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. 15 A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." 16The Local Government Code of 1991 defines a local government unit as a "body politic and corporate." 17 one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. 18 Local government units are the provinces, cities, municipalities and barangays. 19 They are also the territorial and political subdivisions of the state. 20

Our Congress delegated police power to the local government units in the Local Government Code of 1991. This delegation is found in Section 16 of the same Code, known as the general welfare clause, viz: 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. 21 Local government units exercise police power through their respective legislative bodies. The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is the sangguniang barangay. The Local Government Code of 1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the [province, city municipality] provided under the Code . . . " 22 The same Code gives the sangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon." 23 Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924 24 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. 25 "Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." 26 There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following: (b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the 77

institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;" 27 In the delivery of the seven (7) basic services, the MMDA has the following powers and functions: Sec. 5. Functions and powers of the Metro Manila Development Authority. The MMDA shall: (a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs for the delivery of metro-wide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities; (b) Prepare, coordinate and regulate the implementation of medium-term investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions; (c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices; (d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation; (e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation, including but not limited to, assignment of personnel, by all other government agencies and offices concerned; (f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and (g) Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned. The implementation of the MMDA's plans, programs and projects is undertaken by the local government units, national government agencies, accredited people's organizations, nongovernmental organizations, and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into contracts, memoranda of agreement and other arrangements with these bodies for the delivery of the required services Metro Manila. 28

The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila ViceMayors' League and the president of the Metro Manila Councilors' League. 29 The Council is headed by Chairman who is appointed by the President and vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro Manila Council approves metrowide plans, programs and projects, and issues the necessary rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and promulgate the rules and regulations for the delivery of basic services, collection of service and regulatory fees, fines and penalties. These functions are particularly enumerated as follows: Sec. 6. Functions of the Metro Manila Council. (a) The Council shall be the policy-making body of the MMDA; (b) It shall approve metro-wide plans, programs and projects and issue rules and regulations deemed necessary by the MMDA to carry out the purposes of this Act; (c) It may increase the rate of allowances and per diems of the members of the Council to be effective during the term of the succeeding Council. It shall fix the compensation of the officers and personnel of the MMDA, and approve the annual budget thereof for submission to the Department of Budget and Management (DBM); (d) It shall promulgate rules and regulations and set policies and standards for metro-wide application governing the delivery of basic services, prescribe and collect service and regulatory fees, and impose and collect fines and penalties. Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under the service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, "development authority." 30 It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan

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area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz: Sec. 2. Creation of the Metropolitan Manila Development Authority. . . . . The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters. 31 Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate Court 32 where we upheld a zoning ordinance issued by the Metro Manila Commission (MMC), the predecessor of the MMDA, as an exercise of police power. The first Sangalang decision was on the merits of the petition, 33 while the second decision denied reconsideration of the first case and in addition discussed the case of Yabut v. Court of Appeals. 34 Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and three residents of Bel-Air Village against other residents of the Village and the Ayala Corporation, formerly the Makati Development Corporation, as the developer of the subdivision. The petitioners sought to enforce certain restrictive easements in the deeds of sale over their respective lots in the subdivision. These were the prohibition on the setting up of commercial and advertising signs on the lots, and the condition that the lots be used only for residential purposes. Petitioners alleged that respondents, who were residents along Jupiter Street of the subdivision, converted their residences into commercial establishments in violation of the "deed restrictions," and that respondent Ayala Corporation ushered in the full commercialization" of Jupiter Street by tearing down the perimeter wall that separated the commercial from the residential section of the village. 35 The petitions were dismissed based on Ordinance No. 81 of the Municipal Council of Makati and Ordinance No. 81-01 of the Metro Manila Commission (MMC). Municipal Ordinance No. 81 classified Bel-Air Village as a Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street. The Municipal Ordinance was adopted by the MMC under the Comprehensive Zoning Ordinance for the National Capital Region and promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated therein as bounded by Jupiter Street and the block adjacent thereto was classified as a High Intensity Commercial Zone. 36 We ruled that since both Ordinances recognized Jupiter Street as the boundary between Bel-Air Village and the commercial district, Jupiter Street was not for the exclusive benefit of Bel-Air residents. We also held that the perimeter wall on said street was constructed not to separate the residential from the commercial blocks but simply for security reasons, hence, in tearing down said wall, Ayala Corporation did not violate the "deed restrictions" in the deeds of sale. We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate exercise of police power. 37 The power of the MMC and the Makati Municipal Council to enact zoning ordinances for the general welfare prevailed over the "deed restrictions". In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street was warranted by the demands of the common good in terms of "traffic decongestion and public convenience." Jupiter was opened by the Municipal Mayor to alleviate traffic congestion along the public streets adjacent to the Village. 38 The same reason was given for the opening to public vehicular traffic of Orbit Street, a road inside the same village. The destruction of the gate

in Orbit Street was also made under the police power of the municipal government. The gate, like the perimeter wall along Jupiter, was a public nuisance because it hindered and impaired the use of property, hence, its summary abatement by the mayor was proper and legal. 39 Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of Bulacan. 40 Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning; and this coordination, "especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the flames of rebellion and discontent [were] part of reform measures under Martial Law essential to the safety and security of the State." 41 Metropolitan Manila was established as a "public corporation" with the following powers: Sec. 1. Creation of the Metropolitan Manila. There is hereby created a public corporation, to be known as the Metropolitan Manila, vested with powers and attributes of a corporation including the power to make contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer and dispose of property and such other powers as are necessary to carry out its purposes. The Corporation shall be administered by a Commission created under this Decree. 42 The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) vested with the following powers: Sec. 4. Powers and Functions of the Commission. The Commission shall have the following powers and functions: 1. To act as a central government to establish and administer programs and provide services common to the area;

79

2. To levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness. Existing tax measures should, however, continue to be operative until otherwise modified or repealed by the Commission; 3. To charge and collect fees for the use of public service facilities;

appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. P.D. No. 824 further provided:

4. To appropriate money for the operation of the metropolitan government and review appropriations for the city and municipal units within its jurisdiction with authority to disapprove the same if found to be not in accordance with the established policies of the Commission, without prejudice to any contractual obligation of the local government units involved existing at the time of approval of this Decree; 5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within Metropolitan Manila; 6. To enact or approve ordinances, resolutions and to fix penalties for any violation thereof which shall not exceed a fine of P10,000.00 or imprisonment of six years or both such fine and imprisonment for a single offense; 7. To perform general administrative, executive and policy-making functions; 8. To establish a fire control operation center, which shall direct the fire services of the city and municipal governments in the metropolitan area; 9. To establish a garbage disposal operation center, which shall direct garbage collection and disposal in the metropolitan area; 10. To establish and operate a transport and traffic center, which shall direct traffic activities; 11. To coordinate and monitor governmental and private activities pertaining to essential services such as transportation, flood control and drainage, water supply and sewerage, social, health and environmental services, housing, park development, and others; 12. To insure and monitor the undertaking of a comprehensive social, economic and physical planning and development of the area; 13. To study the feasibility of increasing barangay participation in the affairs of their respective local governments and to propose to the President of the Philippines definite programs and policies for implementation; 14. To submit within thirty (30) days after the close of each fiscal year an annual report to the President of the Philippines and to submit a periodic report whenever deemed necessary; and 15. To perform such other tasks as may be assigned or directed by the President of the Philippines. The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review

Sec. 9. Until otherwise provided, the governments of the four cities and thirteen municipalities in the Metropolitan Manila shall continue to exist in their present form except as may be inconsistent with this Decree. The members of the existing city and municipal councils in Metropolitan Manila shall, upon promulgation of this Decree, and until December 31, 1975, become members of the Sangguniang Bayan which is hereby created for every city and municipality of Metropolitan Manila. In addition, the Sangguniang Bayan shall be composed of as many barangay captains as may be determined and chosen by the Commission, and such number of representatives from other sectors of the society as may be appointed by the President upon recommendation of the Commission. xxx xxx xxx

The Sangguniang Bayan may recommend to the Commission ordinances, resolutions or such measures as it may adopt; Provided, that no such ordinance, resolution or measure shall become effective, until after its approval by the Commission; and Provided further, that the power to impose taxes and other levies, the power to appropriate money and the power to pass ordinances or resolutions with penal sanctions shall be vested exclusively in the Commission. The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided: Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. 80

The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao. 43 Section 11 of the same Article X thus provided: Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. Constitution itself expressly provides that Congress may, by law, create "special metropolitan political subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies. 44 Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority, viz: Sec. 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area. 45 In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA. 46 It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila." 47 The MMA's governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power. 48 Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMA's jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly." 49 When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the

House of Representatives by the Committee on Local Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the local government units in the National Capital Region (NCR), with former Chairmen of the MMC and MMA, 50 and career officials of said agencies. When the bill was first taken up by the Committee on Local Governments, the following debate took place: THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been debated a long time ago, you know. It's a special . . . we can create a special metropolitan political subdivision. Actually, there are only six (6) political subdivisions provided for in the Constitution: barangay, municipality, city, province, and we have the Autonomous Region of Mindanao and we have the Cordillera. So we have 6. Now. . . . . HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous Region, that is also specifically mandated by the Constitution. THE CHAIRMAN: That's correct. But it is considered to be a political subdivision. What is the meaning of a political subdivision? Meaning to say, that it has its own government, it has its own political personality, it has the power to tax, and all governmental powers: police power and everything. All right. Authority is different; because it does not have its own government. It is only a council, it is an organization of political subdivision, powers, "no, which is not imbued with any political power. If you go over Section 6, where the powers and functions of the Metro Manila Development Authority, it is purely coordinative. And it provides here that the council is policy-making. All right. Under the Constitution is a Metropolitan Authority with coordinative power. Meaning to say, it coordinates all of the different basic services which have to be delivered to the constituency. All right. There is now a problem. Each local government unit is given its respective . . . as a political subdivision. Kalookan has its powers, as provided for and protected and guaranteed by the Constitution. All right, the exercise. However, in the exercise of that power, it might be deleterious and disadvantageous to other local government units. So, we are forming an authority where all of these will be members and then set up a policy in order that the basic services can be effectively coordinated. All right. Of course, we cannot deny that the MMDA has to survive. We have to provide some funds, resources. But it does not possess any political power. We do not elect the Governor. We do not have the power to tax. As a matter of fact, I was trying to intimate to the author that it must have the power to sue and be sued because it coordinates. All right. It coordinates practically all these basic services so that the flow and the distribution of the basic services will be continuous. Like traffic, we cannot deny that. It's before our eyes. Sewerage, flood control, water system, peace and order, we cannot deny these. It's right on our face. We have to look for a solution. What would be the right solution? All right, we envision that there should be a coordinating agency and it is called an authority. All right, if you do not want to call it an authority, it's alright. We may call it a council or maybe a management agency. xxx xxx x x x 51

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Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill's presentation to Congress. Thus: THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this was already approved before, but it was reconsidered in view of the proposals, set-up, to make the MMDA stronger. Okay, so if there is no objection to paragraph "f". . . And then next is paragraph "b," under Section 6. "It shall approve metro-wide plans, programs and projects and issue ordinances or resolutions deemed necessary by the MMDA to carry out the purposes of this Act." Do you have the powers? Does the MMDA... because that takes the form of a local government unit, a political subdivision. HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it has the policies, it's very clear that those policies must be followed. Otherwise, what's the use of empowering it to come out with policies. Now, the policies may be in the form of a resolution or it may be in the form of a ordinance. The term "ordinance" in this case really gives it more teeth, your honor. Otherwise, we are going to see a situation where you have the power to adopt the policy but you cannot really make it stick as in the case now, and I think here is Chairman Bunye. I think he will agree that that is the case now. You've got the power to set a policy, the body wants to follow your policy, then we say let's call it an ordinance and see if they will not follow it. THE CHAIRMAN: That's very nice. I like that. However, there is a constitutional impediment.1wphi1 You are making this MMDA a political subdivision. The creation of the MMDA would be subject to a plebiscite. That is what I'm trying to avoid. I've been trying to avoid this kind of predicament. Under the Constitution it states: if it is a political subdivision, once it is created it has to be subject to a plebiscite. I'm trying to make this as administrative. That's why we place the Chairman as a cabinet rank. HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is . . . . . THE CHAIRMAN: In setting up ordinances, it is a political exercise, Believe me. HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and regulations. That would be . . . it shall also be enforced. HON. BELMONTE: Okay, I will . . . . HON. LOPEZ: And you can also say that violation of such rule, you impose a sanction. But you know, ordinance has a different legal connotation. HON. BELMONTE: All right, I defer to that opinion, your Honor. THE CHAIRMAN: So instead of ordinances, say rules and regulations.

HON. BELMONTE: Rules, regulations and resolutions. 52 The draft of H. B. No. 14170/11116 was presented by the Committee to the House of Representatives. The explanatory note to the bill stated that the proposed MMDA is a "development authority" which is a "national agency, not a political government unit." 53 The explanatory note was adopted as the sponsorship speech of the Committee on Local Governments. No interpellations or debates were made on the floor and no amendments introduced. The bill was approved on second reading on the same day it was presented. 54 When the bill was forwarded to the Senate, several amendments were made.1wphi1 These amendments, however, did not affect the nature of the MMDA as originally conceived in the House of Representatives. 55 It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected." 56 R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, 57 whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues as they are unnecessary. We stress that this decision does not make light of the MMDA's noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our people's productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law.1wphi1.nt IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 39549 are affirmed. SO ORDERED.

HON. BELMONTE: Or resolutions. Actually, they are actually considering resolutions now. Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur. THE CHAIRMAN: Rules and resolutions.

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Footnotes 1 Annex "D" to the CA petition, Court of Appeals (CA) Rollo, p. 27. 2 Annex "J" to Petition, Rollo, pp. 76-78.

23 Sec. 391 (a), Book III, Local Government Code of 1991. 24 Entitled "An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds Therefor and for Other Purposes." 25 Sec. 1, R.A. 7924.

3 Minutes of the Ocular Inspection, Court of Appeals Rollo, pp. 193-194. 26 Sec. 3, par. 1, R.A. 7924. 4 CA Rollo, p. 332. 27 Sec. 3 (b), supra; emphasis supplied. 5 Roberto L. del Rosario is a resident of Neptune Street who allegedly spearheaded a campaign to open Neptune Street to the public Motion to Cite in Contempt, CA Rollo, pp. 412-415. 6 CA decision, p. 10, Rollo, p. 61. 7 Petition, p. 15, Rollo, p. 24. 8 168 SCRA 634 (1988). 9 Petition, p. 24, Rollo, p. 33. 10 United States v. Pompeya, 31 Phil, 245, 253-254 [1915]; Churchill v. Rafferty, 32 Phil. 580, 603 [1915]; People v. Pomar, 46 Phil. 440, 447 [1924]. 11 Bernas, The 1987 Constitution of the Philippines, A Commentary, pp. 95-98 [1996]. 33 168 SCRA 634 [1988]. 12 Cruz, Constitutional Law, p. 44 [1995]. 34 176 SCRA 719 [1989]. 13 Id., see also 16 C.J.S., Constitutional Law, Sec. 177 [1956 ed.]. 35 168 SCRA 634, 654-655. 14 Cruz, supra, at 44; Binay v. Domingo, 201 SCRA 508, 513-514 [1991]. 36 Id. at 643. 15 Magtajas v. Pryce Properties, 234 SCRA 255, 272 [1994]. 37 Id. at 730. 16 Bernas, supra, at 959, citing UP Law Center Revision Project, Part II, 712 [1970] citing Sady, "Improvement of Local Government Administration for Development Purpose," Journal of Local Administration Overseas 135 [July 1962]. 17 Sec. 15, Book I, Local Government Code of 1991. 40 Sec. 2, P.D. 824. 18 Id. 41 Whereas Clauses, P.D. 824. 19 Titles I, II, III, IV, Book III, Local Government Code of 1991. 42 Sec. 1, P.D. 824; emphasis supplied. 20 Sec. 1, Article X, 1987 Constitution. 21 Sec. 16, Book I, Local Government Code of 1991; also cited in Magtajas v. Pryce Properties Corp., Inc. supra, at 264-265. 22 Sec. 468 (a), 458 (a), and 447 (a), Book III, Local Government Code of 1991. 45 Sec. 8, Article XVIII, 1987 Constitution. 83 43 Speech of then Constitutional Commissioner Blas Ople, see Bernas, The Intent of the 1986 Constitution Writers, pp. 706-707 [ 1995]. 44 Sec. 11, Article X, 1987 Constitution. 38 Id. at 723. 39 Like the perimeter wall along Jupiter StreetId. at 734. 28 Sec. 9, paragraph 5, supra. 29 Sec. 4, supra, Non-voting members of the Council are the heads of Department of Transportation and Communications (DOTC), Department of Public Works and Highways (DPWH), Department of Tourism (DOT), Department of Budget and Management (DBM), Housing and Urban Development Coordinating Committee (HUDCC), and the National Police (PNP) or their duly authorized representatives. 30 Sec. 1, R.A. 7924. 31 Sec. 2, supra. 32 Op cit.

46 Sec. 3, E.O. 392. 47 Sec. 1, supra. 48 Sec. 2, supra. 49 Sec. 6, supra. 50 Chairmen Ismael Mathay, Jr. and Ignacio Bunye. 51 Deliberations of the Committee on Local Government, House of Representatives, Congress of the Philippines, November 10, 1993, pp. 46-48. 52 Deliberations of the Committee on Local Governments, House of Representatives, Congress of the Philippines, November 9, 1994, pp. 68-70. 53 Explanatory Note to H. B. 11116, p. 3. 54 H.B. 14170/11116, Sponsorship and Debates, December 20, 1994. 55 Complete H.B. 14170/11116 with R. A. 7924; see Senate Amendments, February 21, 1995. 56 Sec. 10, Article X of the 1987 Constitution reads: Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. 57 Sec. 7 (g), R.A. 7924.

CASE 10: G.R. No. L-43634

August 24, 1937 FRANCISCO JAVIER and ROMAN OZAETA, plaintiff-appellants, vs. TOMAS EARNSHAW, Mayor of the City of Manila, defendant-appellee. Gibbs, McDonough and Ozaeta and Claro M. Recto for appellants. City Fiscals Felix and Diaz for appellee. IMPERIAL, J.: The plaintiff commenced this action in the Court of First Instance of Manila to restrain the defendant from cancelling the permit or license issued by him for the installation and operation of a gasoline pump and underground tank at the corner of Kansas Avenue and Tennessee Street. They appealed from the judgment dismissing their complaint, without costs. The plaintiff, being the owners of a parcel of land situated at the corner of Kansas Avenue and Tennessee Street, Manila, entered into a contract with the Asiatic Petroleum Co., (P. I.) Ltd., whereby latter would provide them with a pump, underground tank and gasoline on the land in question, for the exclusive use of the motor vehicles of the Makabayan Taxicab Co., Inc., operated by the plaintiff, and would obtain the necessary license from the defendant mayor. On April 25, 1934, the plaintiffs addressed to the mayor a letter, copy of which is Exhibit A-1, stating the contract entered into between them and the Asiatic Petroleum Co., (P.I.) Ltd., and applying for the granting of a license to said company to install in their lot situated at the corner of Kansas Avenue and Tennessee Street a gasoline pump and an underground tank for the exclusive use of the motor vehicles of the Makabayan Taxicab Co., Inc., owned by them. On the following day, the Asiatic Petroleum Co., (P. I.), Ltd., addressed another communication to the mayor, copy of which is Exhibit A, applying for a permit to install in said premises of the plaintiffs a gasoline pump and an underground tank for the exclusive use of the motor vehicles of the Makabayan Taxicab Co., Inc., The application was endorsed to the chief of police, the chief of the Fire Department and the city engineer, and the mayor, after obtaining favorable endorsements, granted the permit. On May 8, 1934, the mayor and the Asiatic Petroleum Co., (P. I.), Ltd., entered into a contract in writing, copy of which is Exhibit D, by virtue of which the city of Manila granted to said company permission to install a gasoline pump and an underground tank in the premises of the plaintiffs, for the exclusive use of the motor vehicles of the Makabayan Taxicab Co., Inc. One of the conditions imposed in the contract is that the permit was nontransferable and that it was revocable at the expiration of 30 days from notice to the concessionaire. The pump and the tank were installed and the plaintiffs used them for some time to provide gasoline exclusively for the motor vehicles of the Makabayan Taxicab Co., Inc. Sometime later, however, as the plaintiffs had succeeded in having the office of the city treasurer insert the word "sells" (Which should read "sales") in the receipt issued by it for payment of the license tax, they began to sell gasoline to the public, thereby giving rise to protests from the operators of the Socony Gasoline Station situated at the corner of Taft Avenue and Herran Street. The complaint was investigated and not only was it proven but the plaintiffs themselves also admitted that they were really selling gasoline to the public. As a consequence of the result of the investigation, the mayor, on June 9, 1934, sent a letter to the Asiatic Petroleum Co. (P. I.), Ltd., copy of which is exhibit F, requiring it to show cause within five 84

days why the license issued to it should not be cancelled for violation of the condition not to sell gasoline to the public. The requirement was endorsed to the plaintiffs who gave their explanations in their letter of June 11, 1934, copy of which is Exhibit G. The explanation given by the plaintiffs not having been satisfactory, and they having admitted the violation of the condition by acknowledging that they have been selling gasoline to the public, the mayor, on July 16, 1934, sent another letter to the plaintiffs advising them that after 15 days from the receipt of said letter by them, he would order the cancellation of the permit, which he in fact decided to do, and the permit was cancelled. The plaintiffs subsequently filed the petition for a writ of preliminary injunction against the defendant, with the result already stated at the beginning of this decision. The court, upon the bond filed by the plaintiffs, issued the writ of preliminary injunction applied for, which continues to be in force by reason of this appeal. I. In their first assignment of error, the plaintiffs contend that the court erred in avoiding the main issue raised by them relative to their assertion that ordinance No. 1985 of the City of Manila, and particularly paragraph 3 of section 1 thereof is invalid. This assignment of error is without merit because it appears from the appealed decision page 19 of the bill of exceptions, that the court directly resolved the alleged unconstitutionality and nullity of the entire ordinance and declared it to be valid, it not being true, as the plaintiffs claim, that the sale of gasoline is prohibited thereby but merely regulated by the imposition of certain conditions. It will likewise be seen from that part of said decision that the court declared the ordinance to be valid because the City of Manila promulgated it in the exercise of its police power and in conformity with the power vested in it by paragraph (u), (m) and (ee) of section 2444 of the Revised Administrative Code. II. In their second assignment of error, the plaintiffs contend that paragraph 3 of section 1 of ordinance No. 1985 of the City of Manila is unconstitutional for the following reasons: (a) because in prohibiting the installation of gasoline stations within a distance of 500 meters from another, it violates paragraph (m) of section 2444 of the Revised Administrative Code, as amended by Act No. 3669, which merely empowers the municipal board of the City of Manila to fix the location of, tax, fix the license fee for and regulate the business of the storage and sale of gasoline; (b) because the purpose and effect of said ordinance is to prevent free competition in the sale of gasoline, and therefore it is detrimental to the public interest and contrary to the policy laid down by the Philippine Legislature in Act No. 3247; (c) because to prohibit the sale of gasoline in a safe and suitable place within the distance of 500 meters from an existing gasoline station constitutes in effect an unreasonable restraint of trade; (d) because said ordinance deprives the people living within the radius of 500 meters from two gasoline stations of equal opportunity and equal right to engage in the legitimate business of the sale of gasoline; (e) because said ordinance deprives the plaintiffs and other persons similarly situated of the full use and enjoyment of their own property, and ( f ) because said ordinance is arbitrary, unreasonable and discriminatory. The ordinance in question fully reads as follows: [ORDINANCE NO. 1985]

SECTION 1. The following rules and regulations are hereby prescribed in connection with the granting of permits for the installation of gasoline pumps and gasoline stations in the City of Manila: (1) That all existing curb pumps an gasoline stations will be permitted to say in their present locations, the city reserving the right to revoke any permit, (a) when deemed advisable; (b) in case of change of ownership; and (c) in case of violation of the rules and regulations embodied herein; (2) That hereafter no curb pumps will be permitted to be installed at the corner of any street in the city; (3) That no gasoline station will be permitted to be installed within a distance of five hundred meters from any existing gasoline station; and (4) That no gasoline pumps or station will hereafter be permitted to be installed on the following streets: Taft Avenue, Muelle del Banco Nacional Dasmarias, Mendiola, A. Mabini, Dewey Boulevard, Herran, Isaac Peral, Canonigo, Tejeron, Juan Luna, Rizal Avenue, Santa Mesa, Espaa, Legarda, G. Tuazon, Buenavista and P. Sanchez, but gasoline pumps will be permitted to be installed for private use on such streets, the location of same to be not less than five meters from the curb street line. SEC. 2. This Ordinance shall take effect on its approval. "By carefully reading the ordinance, it will be seen that the purpose thereof, as its title indicates, is to prescribe rules for the granting of permits for the installation of gasoline pumps and gasoline stations in the City of Manila. It is not that the ordinance, as a whole prohibits the sale of gasoline in the city. The ordinance classified gasoline pumps into those installed for private use and those installed denominated by its gasoline station. While paragraph 3 of section 1 employs the verb "permit" which is the opposite of the verb "prohibit", it confines itself to providing a rule for the installation of gasoline stations within the City of Manila and merely prescribes that such situations shall not be installed within the distance of 500 meters from each other. Under this provision any inhabitant of the city may gasoline stations as he wishes provided he keeps the prescribe distance. Paragraph 4 prohibits the installment of gasoline station on the streets enumerated therein but permit the installation of pumps for private use, not intended for the sale of gasoline to the public. The power of the municipal board of the City of Manila to enact ordinance No. 1985 is derived from the provision of section 2444, paragraph (m), of the Revised Administrative Code, as amended by Act No. 3669, the pertinent part of which reads as follows: SEC. 2444. General powers and duties of the Board. Except as otherwise provided by law, and subject to the conditions and limitations thereof, the Municipal Board shall have the following legislative powers: xxx xxx xxx

AN ORDINANCE PRESCRIBING THE RULES AND REGULATIONS IN CONNECTION WITH THE GRANTING OF PERMITS FOR THE INSTALLATION OF GASOLINE PUMPS AND GASOLINE STATIONS IN THE CITY OF MANILA AND FOR OTHER PURPOSES. Be it ordained by the Municipal Board of the City of Manila, that:

"(m) To tax, fix the license fee and regulate the business of . . . the storage and sale of . . . gasoline;" said power emanates from the police power of the Philippine Legislature delegated to the board.

85

The police power extends to the prevention and abatement of nuisances. The legislature, within the limitations hereinafter noted, may prescribe what shall constitute a nuisance. It may change the common law as to nuisances and hence it may make thing nuisance which were not so at common law, or nuisances per se, although by so doing it affect the use or value of property; and similarly within its constitutional limitations the legislative may make thing lawful which were nuisances at common law, although by so doing it affect the value or use of property. The legislature may declare place, where acts forbidden by law are committed, to be nuisance. It may prescribe the method for the abatement of nuisances, as, for instance, for summary abatement. Also it may confer jurisdiction on court of equity to abate nuisances. (46 C. J., sec. 14, pp. 651, 652; Northwestern Laundry vs. Des Moines, 239 U. S., 486; U. S. vs. Reisenweber, 288 Feb., 520; Pompano Horse Club, Inc. vs. State, III S., 801; Pittsburg, etc., R. Co. vs. Brown, 33 Am., Rep., 73, Fevoid vs. Webster Country, 210 N. W., 139.) The keeping or storage of gasoline may constitute a nuisance, either private or public. Whether or not it becomes a nuisance depends upon the location, the quality, and other surrounding circumstances. While it would not necessarily depend upon the degree of care used in the storage, the manner in which the tanks are constructed and operated may be considered. (46 C. J., p. 710; Whittemore vs. Baxter Laundry Oil Assoc., 211 S. W., 335.) It is a well recognized function of the police power to promote the public safety by regulating dangerous occupation, restraining dangerous practices, and prohibiting dangerous structures. (12 C. J., sec. 426, p. 916; Lawton vs. Steele, 152 U. S., 133; Barbier vs. Connolly, 113 U. S., 27; Patterson vs. Kentucky, 97 U. S., 501; Boston Beer Co. vs. Massacchusetts, 97 U. S., 25; Hannibal, etc., R. Co. vs. Husensen, 95 U. S., 465; Electric Impr. Co. vs. San Francisco, 45 Fed., 593 State vs. Kansas City, etc., R. Co., 32 Fed., 722.) The storing handing, and use of inflammable and explosive substances, being attended with danger, may be regulated under the police power. Thus the explosion of fireworks may be prohibited; and it is within the police power of a municipality, when it is deemed necessary for public safety, to prohibit the blasting of rocks with gunpowder within the city limits without the written consent of the board of aldermen. (12 C. J., p. 917; Union Oil Co. vs. Portland, 198 Fed., 441; Tannenbaum vs. Rehn, 44S., 532; Standard Oil Co., vs. Danville, 64 N. E., 1110; Standard Oil Co. vs. Com, 82 S. W., 1020; Peo. vs. Lichtman. 65 N. E., 854; New York City Fire Dept. vs. Gilmour, 44 N. E., 177; Foote vs. New York Fire Dept., 5 Hill [N. Y.], 99.) Cities and towns have power, under the general welfare provisions of statutes and charters, to enact reasonable ordinances relating to the selling and distribution oil, gasoline, an other petroleum product, within their boundaries, defining where and how filling station may be constructed and operated and regulating the use of right ways across sidewalks to such stations; and a vested right cannot be asserted against the proper exercise of such police power. (42 C. J., sec. 1213, p. 1305; McIntosh vs. Johnson, 105 N. E., 414; Gulf Refining Co., vs. McKernan, 102 S. E., 505; Herring vs. Stannus, 275 S. W., 321; Sander vs. Blythville, 262 S. W., 23; State vs. Fleming, 225 Pac., 647.) An ordinance forbidding the granting of a permit or license for such a station in any location where, by reason of traffic condition or fire hazards, it would imperil the public safety, or authorizing the denial of the same if such station is found to be against the public interest, is a proper exercise of the police power, and is not invalid as denying the equal of the police power, and is not invalid as denying the equal protection of the law or leaving the granting or refusal of the permit to the arbitrary will of the municipal official with the issuance thereof. (42 C. J., p. 1306; State vs. Fleming, supra.)

According to the above-cited authorities it is evidence that the municipal board of the City of Manila had the power to enact ordinance No. 1985 by virtue of the police power delegated to it by the Legislature, and consequently, said ordinance is valid and binding. The plaintiffs claim that the mayor of Manila had no power either to enforce the ordinance in question or to cancel the permit granted by him to the Asiatic Petroleum Co., (P. I.), Ltd. Their contention, however is in conflict with the provisions of section 2434 (b), paragraphs (a) and (m) of the revised Administrative Code, as amended, which expressly confer upon him said powers. Said legal provisions read as follows: SEC. 2434 (b). General duties and power of the Mayor. The general duties and power of the mayor shall be; (a) To comply with and enforce and given the necessary orders for the faithful enforcement and execution of the laws and ordinances in effect within the jurisdiction of the city. xxx xxx xxx

(m) To grant and refuse municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which were granted, or if acts prohibited by law or municipal ordinance are being committed under the protection of such license or in the premises in which the business for which the same have been reason of general interest. It will be remembered that the permit was granted with the express condition that the gasoline to be facilitated by the pump and the tank would be for the exclusive use of the motor vehicles of Makabayan Taxicab Co., Inc., and that it would not be sold to the public because the place where the pump and the tank were installed was within the prohibited zone of 500 meter from the Shell Gasoline Station, the nearest gasoline station. Inasmuch as said condition was openly violated and the City of Manila having reserved the right to revoke the permit for violation of any of the condition imposed, it is clear that the mayor, in compliance with his duties had the power to cancel the permit. The ordinance in question does not prevent reasonable and free competition in the sale of gasoline and therefore, is not in conflict with the purposes of Act No. 3247. Under it, everybody may engage in the sale of gasoline and may install gasoline stations provided the same are established outside the prohibited distance of 500 meters. Neither does it constitute an unreasonable and arbitrary restrain of trade because it does not absolutely prohibit the sale of gasoline by means of appropriate pumps and stations within the City of Manila. What it prohibits is the installation of pumps and stations for the sale of gasoline to the public within the distance of 500 meters from other, and this constitutes a reasonable regulation (U. S. vs. Ling Su Fan, 10 Phil., 104; 278 U. S., 302; 54 Law. ed., 1049). But granting that it has such effect, the measure is valid and legal because it is reasonable, tend to protect the public and is based upon the police power vested in the municipal board of the City of Manila. "On the ground of preventing or abating nuisances, the state or municipality may, in the exercise of the police power, prohibit or regulate the transaction of business in such places or manner as constitutes a nuisance which is not in its real nature a nuisance. The power of the state, however, to regulate occupations and business is not based exclusively on its authority to prevent and abate nuisances. A business or occupation is not exempt from regulation by the mere fact that it is lawful, or that its exercise or conduct does not constitute a nuisance per se. It 86

is within the province of the police power to regulate all profession, trades, occupation, and business enterprise that are of a quasi public nature, or that may, if exercised or conducted without restriction, prove injurious to the public health, safety, or morals, or to the general welfare. The doctrine is well established that to the extent that property or business is devoted to the public use or is affected with a public interest, it is subject to regulation under the police power." (12 C. J., sec. 431, pp. 922; Yick Wo vs. Hopkins, 118 U. S. 356; Stockton Laundry Case, 26 Fed., 611; Ex parte Hadacheck, 165 Cal., 416; Ex parte Lacey, 180 Cal., 326; Houston, etc., R. Co., vs. Dallas, 84 S. W., 648; Terr vs. Denver , etc., R., Co., 203 U. S., 38; Munn vs. Illinois, 94 U. S., 113; Union Oil Co., vs. Portland, 198 Fed., 441; Arkansas vs. Kansas, etc., Coal., 96 Fed., 353; Humes vs. Ft. Smith, 93 Fed., 857; Louisville, etc., R. Co., vs. Tennessee R. Commn., 19 Fed., 679; New Orleans Water-Works Co. vs. Tammany Water-Works Co., 14 Feb., 194.) The municipal board of the City of Manila, in the exercise of the police power, may reasonably regulate professions and business enterprises within its territorial limits when the public health, safety and welfare so demand. The ordinance in question is of this nature and, therefore, is not illegal. "The conduct of particular kinds of business which may injuriously affect the health, safety, comfort, or morals of the people of the community may be forbidden within certain territorial limits; and a state may prohibit the sale of any goods near a place in which a religious society is holding an outdoor meeting, or may forbid traffic of a harmful nature near institutions of learning asylums, prisons, soldiers' homes state capitol grounds, and kindred place." (12 C. J., sec. 1076, p. 1275, p 1275; Hadacheck vs. Sebastian, 239 U. S., 394; Ex parte Quong Wo, 161 Cal., 220.) Likewise, the municipal board of the City of Manila, by virtue of the police power may reasonably regulate the use of private property whenever such measure is required by the public health and safety, and the welfare of its inhabitants (Fabie vs. City of Manila, 21 Phil., 486; Kwong Sings vs. City of Manila, 41 Phil., 103; Manigault vs. Ward, 123 Fed., 707; Ex parte Yun Quong, 114 Pac., 835; Sierra Country vs. Flanigan, 87 Pac., 913; Plunas County vs. Wheeler, 87 Pac., 909). The ordinance under consideration prohibits the installation of gasoline stations within the distance of 500 meters from each other not only to prevent ruinous competition among merchants engaged in this kind of business but also to protect the public from any harm or danger that may be occassioned by said inflammable substance. Lastly, the ordinance is not arbitrary, unreasonable or discriminatory because, as already stated, it was enacted by the City of Manila in the exercise of the police power delegated to it by the Legislature, it tends to protect the inhabitants thereof from the dangers and injuries that may arise from the inflammable substance, and the measure is general and applicable to all persons in the same situation as the plaintiffs. III. After measurements had been made, it was found out that the distance from the station operated by the plaintiffs to the Shell Gasoline Station, on Taft Avenue, is only 440.26 meters, such measurement having been made along the streets and not in a straight line, and that the distance from the same station of the Socony Service Station situated at the corner of Taft Avenue and Herran Street is 501.16 meters, such distance having been measured along the streets and not in a straight line. Upon this result, the plaintiffs maintain in their third assignment of error that, granting paragraph 3 of section 1 of the ordinance in question to be valid, their gasoline station does not violate the provisions thereof. The contention is untenable because it is evident that the Shell Gasoline Station on Taft Avenue is within the prohibited distance. It is of no avail to argue that the latter station also belongs to the Asiatic Petroleum Co. (P. I.), Ltd., because, as already stated, the purpose of the ordinance is not solely to prevent ruinous competition among merchants, but also, and more principally, to protect the public

health, safety and welfare. Furthermore, it is not true that there can be no ruinous competition between the two neighboring stations because, although they belong to one and the same owner, the fact is that they are operated and managed by different persons or entities who, independently of the Asiatic Petroleum Co. (P. I.), Ltd., work for the purpose of obtaining profits for themselves. IV. The plaintiffs allege that Title 10 of the Revised Ordinances, which deals with the sale of gasoline within the City of Manila, does not require the holding of a license for said kind of business. They likewise invoke the testimony of Tomas Corpus, an employee of the office of the city treasurer, who testified that in practice said office requires no license to sell gasoline and on this theory they base their fourth assignment of error. To obtain a permit or license to sell gasoline is one thing, and to pay the fees corresponding to said license is another. According to section 2434 (b), paragraph (m), of the Revised Administrative Code, as amended, the issuance of a permit or license to sell gasoline rests with the mayor while the collection of the fees for the license so issued devolves upon the city treasurer. For this reason, the fact that plaintiffs, though error, succeeded in having the word "storage" crossed out and the word "sells", which should correctly read "sales", substituted in lieu thereof in the receipt of payment by the employee Corpus, is of no importance or value. Said employee had no authority to issue a license. His entire duty consisted in collecting the fees fixed by the ordinances. That the plaintiffs themselves recognized the authority of the mayor to issue licenses and to revoke them for just causes is shown by the fact that they applied to him, through the Asiatic Petroleum Co. (P. I.), Ltd., to secure said license and to avoid the revocation thereof. V. The court held that the plaintiffs were not the ones called upon to bring the action instituted by them because they were not the concessionaires, but the Asiatic Petroleum Co. (P. I.), Ltd., in whose favor the license was issued. The fifth assignment of error of the plaintiffs is directed against this ruling. Without entering upon lengthy considerations, which this court deems unnecessary, it is hereby held that the assignment of error is well taken. This court holds that the plaintiffs may maintain this action because they are a necessary and interested party to the case, being the direct beneficiaries of the license issued in favor of the Asiatic Petroleum Co. (P. I.), Ltd. VI. The sixth and last assignment of error requires no further discussion. It is a corollary of the former ones and is decided by inference. For all the foregoing considerations, and upon the ground above-stated, the appealed judgment is affirmed, and the writ of preliminary injunction issued by the court is set aside, with the costs of this instance to the plaintiffs-appellants. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ., concur.

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CASE 11: G.R. No. 89572

December 21, 1989 DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL MEASUREMENT, petitioners, vs. ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, respondents. Ramon M. Guevara for private respondent.

competence and preparation for a medical education. Justice Florentino P. Feliciano declared for a unanimous Court: Perhaps the only issue that needs some consideration is whether there is some reasonable relation between the prescribing of passing the NMAT as a condition for admission to medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. This question is perhaps most usefully approached by recalling that the regulation of the pratice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation and administrative regulations requiring those who wish to practice medicine first to take and pass medical board examinations have long ago been recognized as valid exercises of governmental power. Similarly, the establishment of minimum medical educational requirements-i.e., the completion of prescribed courses in a recognized medical school-for admission to the medical profession, has also been sustained as a legitimate exercise of the regulatory authority of the state. What we have before us in the instant case is closely related: the regulation of access to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting, among other things, of limiting admission to those who exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The need to maintain, and the difficulties of maintaining, high standards in our professional schools in general, and medical schools in particular, in the current state of our social and economic development, are widely known. We believe that the government is entitled to prescribe an admission test like the NMAT as a means of achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of medical education in the country." Given the widespread use today of such admission tests in, for instance, medical schools in the United States of America (the Medical College Admission Test [MCAT] and quite probably, in other countries with far more developed educational resources than our own, and taking into account the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma. However, the respondent judge agreed with the petitioner that the said case was not applicable. Her reason was that it upheld only the requirement for the admission test and said nothing about the so-called "three-flunk rule." We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed with more reliability, by the three-flunk rule. The latter cannot be regarded any less valid than the former in the regulation of the medical profession. There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are 88

CRUZ, J.: The issue before us is mediocrity. The question is whether a person who has thrice failed the National Medical Admission Test (NMAT) is entitled to take it again. The petitioner contends he may not, under its rule thath) A student shall be allowed only three (3) chances to take the NMAT. After three (3) successive failures, a student shall not be allowed to take the NMAT for the fourth time. The private respondent insists he can, on constitutional grounds. But first the facts. The private respondent is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it as many times. 1 When he applied to take it again, the petitioner rejected his application on the basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro Manila, to compel his admission to the test. In his original petition for mandamus, he first invoked his constitutional rights to academic freedom and quality education. By agreement of the parties, the private respondent was allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his petition. 2 In an amended petition filed with leave of court, he squarely challenged the constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds raised were due process and equal protection. After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner had been deprived of his right to pursue a medical education through an arbitrary exercise of the police power. 3 We cannot sustain the respondent judge. Her decision must be reversed. In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to medical schools only to those who have initially proved their

reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. 5 In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method. The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may unwarily entrust their lives and health. The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common good while also giving the individual a sense of satisfaction. A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others. The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that "every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. 6 The private respondent must yield to the challenged rule and give way to those better prepared. Where even those who have qualified may still not be accommodated in our already crowded medical schools, there is all the more reason to bar those who, like him, have been tested and found wanting. The contention that the challenged rule violates the equal protection clause is not well-taken. A law does not have to operate with equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution. There can be no question that a substantial distinction exists between medical students and other students who are not subjected to the NMAT and the three-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers which, for this reason, do not require more vigilant regulation. The accountant, for example, while belonging to an equally respectable profession, does not hold the same delicate responsibility as that of the physician and so need not be similarly treated. There would be unequal protection if some applicants who have passed the tests are admitted and others who have also qualified are denied entrance. In other words, what the equal protection requires is equality among equals.

The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of the Constitution: one must show that he is entitled to it because of his preparation and promise. The private respondent has failed the NMAT five times. 7 While his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love. No depreciation is intended or made against the private respondent. It is stressed that a person who does not qualify in the NMAT is not an absolute incompetent unfit for any work or occupation. The only inference is that he is a probably better, not for the medical profession, but for another calling that has not excited his interest. In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed and may even be outstanding. It is for the appropriate calling that he is entitled to quality education for the full harnessing of his potentials and the sharpening of his latent talents toward what may even be a brilliant future. We cannot have a society of square pegs in round holes, of dentists who should never have left the farm and engineers who should have studied banking and teachers who could be better as merchants. It is time indeed that the State took decisive steps to regulate and enrich our system of education by directing the student to the course for which he is best suited as determined by initial tests and evaluations. Otherwise, we may be "swamped with mediocrity," in the words of Justice Holmes, not because we are lacking in intelligence but because we are a nation of misfits. WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January 13, 1989, is REVERSED, with costs against the private respondent. It is so ordered. Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Footnotes 1 A check with the Department of Education showed that the private respondent had actually taken and flunked four tests already and was applying to take a fifth examination. 2 He also failed this fifth test. 2 3 Rollo, pp. 26-34. 152 SCRA 730.

4 US vs. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Ynot v. Intermediate Appellate Court, 148 SCRA 659. 5 6 Article XIV, Section 5(3). Footnote Nos. 1 & 2.

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CASE 12: G.R. No. L-45435

June 17, 1938 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. REMIGIO B. CHAN, defendant-appelle. Office of the Solicitor-General Tuason for appellant. Jose Ma. Tuason for appellee. CONCEPCION, J.: The legal question involved in this appeal is whether a municipal ordinance which prohibits the sale by first run cinematographs of tickets in excess of their seating capacity, is discriminatory and, therefore, unconstitutional. The accused Remigio B. Chan, as manager of the Capitol Theatre, a first class cinematograph located on the Escolta, Manila, was charged and sentenced in the municipal court to pay a fine for having sold to the public tickets in excess of seating capacity of said cinematograph. From this judgment, he appealed to the Court of First Instance of Manila and by virtue of a demurrer therein interposed, the information was dismissed on the ground that said ordinance is unconstitutional and void for being discriminatory. The fiscal appealed. In the demurrer interposed by counsel for the accused, it is alleged that the discrimination in the ordinance is very obvious inasmuch as there is no reasonable or natural basis for the imposition of a burden on first run theatres and the exemption therefrom of those which are not thus classified. It seems that this reasoning of the defense refutes itself. If it is admitted that the restriction on the sale of tickets is imposed on first run cinematographs only and that those cinematographs which are not so classified are exempted therefrom, then there can be no discrimination. In the first place, it must be noted that there can be no doubt that the City of Manila exercises police power by delegation and that in the exercise of that power, it is authorized to enact ordinances for the regulation of the operation of theatres and cinematographs (sec. 2444 [m] and [ee] of the Revised Administrative Code; U.S. vs. Gomez Jesus, 31 Phil., 218; U.S. vs. Pompeya, 31 Phil., 245). On April 17, 1935 Ordinance No. 2347 was approved. In section 1 it provides that all first run theatres or cinematographs should register their seating capacity with the City Treasurer, and in section 2 it prohibits the sale of tickets in said theatres or cinematographs in excess of their registered seating capacity. Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on July 22, 1933, was in force, section 1 of which divides cinematographs into three different classes; first, second and third. The first class includes those located on certain and specified streets like Rosario, Escolta, etc., which exhibit films for the first time; those belonging to the second class are those which, not being located on said streets, also exhibit films for the first time, and those which,

being located on said streets, regularly show films for the second time or which have the exclusive right to show second-hand films; and the third class comprehends all those which are not included in the first and second classes. To the foregoing must be added, and this is of common knowledge, that the films which are shown for the first time attract a large attendance, and the theatre or cinematograph, whether it is first or second class, presenting shows for the first time, would be suffocatingly overcrowded if the number of tickets were not limited. This is the reason for the prohibition of the sale of tickets in excess of the seating capacity. The prohibition applies with equal force wherever the same reason exists, that is, to first and second class theatres which show films for the first time. Class legislation discriminating against some and favoring others is prohibited. But classification on a reasonable basis, and to made arbitrarily or capriciously, is permitted. The trues governing classification are briefly as follows: The classification must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Malcolm, Philippine Constitutional law, 2d ed., page 343.) (Emphasis ours.) A case similar to that now before us is that of People vs. Gabriel (43 Phil., 641), in which this court said: Section 749 of the Revised Ordinances of the City of Manila, as amended by Ordinances of the City of Manila, as amended by Ordinance No. 938, which is intended to prohibit a crier or the use of a bell or other means of attracting bidders by noise or show within certain hours and on certain streets in the city, is a valid excercise of the police power, is not discriminatory or class legislation, and is not unconstitutional. We have the other case of Rubi vs. Provincial Board of Mindoro (39 Phil., 660) in which the Manguianes had been ordered to live in a reservation made to that end and been ordered to live in a reservation made to that end and for purposes of cultivation under certain plans. The Manguianes are a Non-Christian tribe with a very low culture. An application for habeas corpus was made on behalf of Rubi and other Manguianes of the province, alleging that by virtue of the resolution of the provincial board of Mindoro creating the reservation, they had been illegally deprived of their liberty. This court held that the resolution of the provincial board of Mindoro was neither discriminatory nor class legislation, and stated among other things: . . . one cannot hold that the liberty of the citizen is unduly interfered with when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the laws, there exists a law; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. (Id., page 718.) In view of all the foregoing, the appealed order is hereby reversed and it is ordered that this case be remanded to the Court of First Instance of Manila for further proceedings. Without costs. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Laurel, JJ., concur.

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(c) Sections 4 and 7, Phase 3 of Administrative Order No. 62, Series of 1989 dated March 9, 1989, of the respondent Secretary of Health, which read as follows:

CASE 13: G.R. No. 88265

December 21, 1989 SANTIAGO A. DEL ROSARIO, GEORGE G. GACULA, EDGARDO G. SANTOS, ALBANO S. SIBAL, ALBERTO C. REYES, NONITO P. ARROYO, EMMANUEL F. TERENCIO, DOMINGO S. DE LEON, MODESTO O. LLAMAS, FARIDA U. ALONTO, ZENAIDA A. FLOIRENDO, ISABEL A. MEJIA, LUZ P. MABANAG, RAMON H. RABAGO, JR., SAMUEL D. TROCIO and OSCAR M. BRION, petitioners, vs. HON. ALFREDO R. BENGZON, in his capacity as Secretary of the Department of Health, respondent. Facundo T. Bautista for petitioners.

Section 4. Violative Erroneous, and Impossible Prescriptions. 4.1. 4.1.1 Violative Prescriptions: Where the generic name is not written;

4.1.2 Where the generic name is not legible and a brand name which is legible is written; 4.1.3 Where the brand name is indicated and instructions added, such as the phase 'No Substitution' which tend to obstruct, hinder or prevent proper generic dispensing. 4.2 What to do with Violative Prescriptions.

GRIO-AQUINO, J.: This is a class suit filed by officers of the Philippine Medical Association, the national organization of medical doctors in the Philippines, on behalf of their professional brethren who are of kindred persuasion, wherein this Court is asked to declare as unconstitutional, hence, null and void, some provisions of the Generics Act of 1988 (Rep. Act No. 6675), and of the implementing Administrative Order No. 62 issued pursuant thereto, specifically: (a) Section 6, Pars. (a) and (b) of the Generics Act which provide:

Violative prescriptions shall not be filled. They shall be kept and reported by the pharmacist of the drug outlet or any other interested party to the nearest DOH Officer for appropriate action. The pharmacist shall advise the prescriber of the problem and/or instruct the customer to get the proper prescription. 4.3 Erroneous Prescriptions: 4.3.1 When the brand name precedes the generic name. 4.3.2 Where the generic name is the one in parenthesis. 4.3.3 Where the brand name in (sic) not in parenthesis. 4.3.4 4.4 Where more than one drug product is prescribed in one prescription form. What to do with erroneous prescriptions.

a) All government health agencies and their personnel as well as other government agencies shall use generic terminology or generic names in all transactions related to purchasing, prescribing, dispensing and administering of drugs and medicines. b) All medical, dental and veterinary practitioners, including private practitioners, shall write prescriptions using the generic name. The brand name may be included if so desired. (p. 6, Rollo.) (b) Section 12, Pars. (b), (c) and (d) of the same law which provide:

Erroneous prescriptions shall be filled. Such prescriptions shall also be kept and reported by the pharmacist of the drug outlet or any other interested party to the nearest DOH Office for appropriate action. xxx xxx xxx

b) For the second conviction, the penalty of file in the amount of not less than two thousand pesos (P2,000.00) but not exceeding five thousand pesos (P5,000.00) at the discretion of the court. c) For the third conviction, the penalty of fine in the amount of not less than five thousand pesos (P5,000.00) but not exceeding ten thousand pesos (P10,000.00) and suspension of his license to practice his profession for thirty (30) days at the discretion of the court. d) For the fourth and subsequent convictions, the penalty of fine of not less than ten thousand pesos (P10,000.00) and suspension of his license to practice his profession for one year or longer at the discretion of the court. (pp. 6-7, Rollo.) and

Section 7. Timetable of Implementation. In order to give all affected parties adequate time for learning and adjustment, the implementation of these Rules and Regulations shall be in three phases, as follows: Phase 1 Phase 2 xxx Phase 3 Education Drive ... Monitoring of Compliance xxx xxx

Implementation. 91

Beginning September 1, 1989 the DOH and the other relevant agencies of government shall monitor compliance with these Rules and Regulations and all violations shall be subject to the appropriate sanctions and penalties provided for under these Rules and Regulations and the Generics Act of 1988. (pp. 7-9, Rollo.) On March 15, 1989, the full text of Republic Act No. 6675 was published in two newspapers of general circulation in the Philippines. The law took effect on March 30, 1989, fifteen (15) days after its publication, as provided in Section 15 thereof. Section 7, Phase 3 of Administrative Order No. 62 was amended by Administrative Order No. 76 dated August 28, 1989 by postponing to January 1, 1990 the effectivity of the sanctions and penalties for violations of the law, provided in Sections 6 and 12 of the Generics Act and Sections 4 and 7 of the Administrative Order. The petitioners allege that "as of this date, there is no breach or violation yet" of the law (p. 9, Rollo), which took effect on March 30, 1989. However, as the penal provisions will only take effect on January 1, 1990, it would have been more accurate to state that "as of this date, no breaches or violations of the law have been punished yet" (p. 9, Rollo). The petition is captioned as an action for declaratory relief, over which this Court does not exercise jurisdiction. Nevertheless, in view of the public interest involved, we decided to treat it as a petition for prohibition instead. The petitioner's main argument against paragraphs (a) and (b), Section 6 of the law, is the alleged unequal treatment of government physicians, dentists, and veterinarians, on one hand, and those in private practice on the other hand, in the manner of prescribing generic drugs, for, while the former are allegedly required to use only generic terminology in their prescriptions, the latter may write the brand name of the drug in parenthesis below the generic name. The favored treatment of private doctors, dentists and veterinarians under the law is allegedly a specie of invalid class legislation. There is no merit in that argument for it proceeds from a misreading and misinterpretation of the letter and intent of paragraphs (a) and (b), Section 6 of the Generics Act. Indeed, as explained by the public respondent: ... while paragraph (a) enumerates the government transactions ('Purchasing, prescribing, dispensing and administering of drugs and medicines') where the sole use of generic terminology has been required, the 'prescription' of drugs is further governed by paragraph (b). And the use of the word 'all' in the latter provision emphasizes the absence of any distinction between government and private physicians. In other words, in prescribing drugs, physicians, whether in government service or in private practice, are both governed by exactly the same rules, and thus, are both authorized to include the brand name in their respective prescriptions. (p. 44, Rollo.) Furthermore, it may be observed that while paragraph (a) refers to "all government health agencies, and their personnel as well as other government agencies" (not necessarily physicians, dentists and veterinarians), paragraph (b) refers to "all medical, dental and veterinary practitioners, including private practitioners."

Petitioners concede that the requirement for doctors, dentists, and veterinarians to use the generic terminology in writing their prescriptions, followed by the brand name in parenthesis, is "well and good" (p. 12, Rollo). However, they complain that under paragraph (d) of the law which reads: (d) Drug outlets, including drugstores, hospital and non-hospital pharmacies and nontraditional outlets such as supermarkets and stores, shall inform any buyer about any and all other drug products having the same generic name, together with their corresponding prices so that the buyer may adequately exercise his option. Within one (1) year after approval of this Act, the drug outlets referred to herein, shall post in conspicuous places in their establishments, a list of drug products with the same generic name and their corresponding prices. (Annex A, p. 23, Rollo.) the salesgirl at the drugstore counter is authorized to "substitute the prescribed medicine with another medicine belonging to the same generic group." Since doctors are not allowed to instruct the druggist not to substitute the prescription, or to "Dispense only as Prescribed" (per Sec. 4, Adm. Order No. 62), the petitioners argue that "the act of prescribing the correct medicine for the patient becomes the act of the salesgirl at the drugstore counter, no longer the act of the physician, dentist, or veterinarian" (p. 12, Rollo). Here again, the petitioners have distorted the clear provisions of the law and the implementing administrative order. For it is plain to see that neither paragraph (d) of Section 6 of the Generics Act, nor Section 4 of Administrative Order No. 62, gives the salesgirl and/or druggist the discretion to substitute the doctor's prescription. On the contrary, Section 4, par. 4.1, of Administrative Order No. 62 directs the pharmacist not to fill "violative prescriptions" (where the generic name is not written, or illegibly written, and the prescription of a brand name is accompanied by the doctor's instruction not to substitute it), as well as "impossible prescriptions" (par. 4.5). Even a doctor's "erroneous" prescriptions "shall be filled," not substituted (par. 4.3, Adm. Order No. 62). And, Sections 3 and 5 of Adm. Order No. 63 enjoin the drug outlets not (to) favor or suggest" or "impose" a particular brand or product on the customer. The administrative older provides: In order to ensure the informed choice and use of drugs by the patient/ buyer, the drug outlet is required to: 3.1.1 Inform the patient/buyer of all available drug products generically equivalent to the one prescribed with their corresponding prices. In so doing, the drug outlet shall not favor or suggest any particular product so that the patient/buyer may fully and adequately exercise his option to choose (Sec. 3, Adm. Order No. 63 s. 1989). xxx xxx xxx

The following acts or omissions are considered violations of these rules and regulations: 5.1 Imposing a particular brand or product on the buyer. ... (pp. 46-47, Rollo.)

The salesgirl at the drugstore counter, merely informs the customer, but does not determine (for she is incompetent to do so) all the other drug products or brands that have the same generic name, and their corresponding prices. That information she may obtain from the list of drug products determined by the Bureau of Food and Drugs to have the same generic name, or 92

which are the chemical, biological, and therapeutic equivalent of the generic drug. All drugstores or drug outlets are required by the law to post such list in a conspicuous place in their premises for the information of the customers, for the choice of whether to buy the expensive brand name drug, or the less expensive generic, should be exercised by the customer alone. The purpose of the Generics Act is to carry out the policy of the State: To promote, encourage and require the use of generic terminology in the importation, manufacture, distribution, marketing, advertising and promotion, prescription and dispensing of drugs; To ensure the adequate supply of drugs with generic names at the lowest possible cost and endeavor to make them available for free to indigent patients; To encourage the extensive use of drugs with generic names through a rational system of procurement and distribution; To emphasize the scientific basis for the use of drugs, in order that health professionals may become more aware and cognizant of their therapeutic effectiveness; and To promote drug safety by minimizing duplication in medications and/or use of drugs with potentially adverse drug interactions. (pp. 3839, Rollo.) or, as stated by the public respondent, "to promote and require the use of generic drug products that are therapeutically equivalent to their brand-name counter-parts" (p. 39, Rollo) for "the therapeutic effect of a drug does not depend on its 'brand' but on the 'active ingredients' which it contains." The medicine that cures is the "active ingredient" of the drug, and not the brand name by which it has been baptized by the manufacturer. The public respondent points out that the institution of generics in the Philippines will compel physicians to prescribe drugs based on their therapeutic or "active ingredient," instead of their well-known brand names. Multiple medications which may produce potentially adverse, even lethal, chemical reactions in the patient will thereby be avoided. Patients with limited means will be able to buy generic drugs that cost less but possess the same active ingredients, dosage form, and strength as brand names, many of which are priced beyond the reach of the common tao because the high costs of advertising, packaging, royalties, and other inputs of production determine their pricing for the market. The Court has been unable to find any constitutional infirmity in the Generics Act. It, on the contrary, implements the constitutional mandate for the State "to protect and promote the right to health of the people" and "to make essential goods, health and other social services available to all the people at affordable cost" (Section 15, Art. II and Section 11, Art. XIII, 1987 Constitution). The prohibition against the use by doctors of "no substitution" and/or words of similar import in their prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right to choose between the brand name and its generic equivalent since his doctor is allowed to write both the generic and the brand name in his prescription form. If a doctor is allowed to prescribe a brand-name drug with "no substitution," the patient's option to buy a lower-priced, but equally effective, generic equivalent would thereby be curtailed. The law aims

to benefit the impoverished (and often sickly) majority of the population in a still developing country like ours, not the affluent and generally healthy minority. There is no merit in the petitioners' theory that the Generics Act impairs the obligation of contract between a physician and his patient, for no contract ever results from a consultation between patient and physician. A doctor may take in or refuse a patient, just as the patient may take or refuse the doctor's advice or prescription. As aptly observed by the public respondent, no doctor has ever filed an action for breach of contract against a patient who refused to take prescribed medication, undergo surgery, or follow a recommended course treatment by his doctor ( p. 53, Rollo). In any event, no private contract between doctor and patient may be allowed to override the power of the State to enact laws that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community. This power can neither be abdicated nor bargained away. All contractual and property rights are held subject to its fair exercise (Anglo-Fil Trading Corporation vs. Lazaro, 124 SCRA 495.) Petitioners have also assailed Section 12, paragraphs b, c and d, of the Generics Act prescribing graduated penalties (ranging from a reprimand to a fine of not less that P10,000 and the suspension of the physician's license to practice his profession for one [1]) year or longer, at the discretion of the court) for violations of its provisions. Petitioners' allegation that these penalties violate the constitutional guarantee against excessive fines and cruel and degrading punishment, has no merit. Penal sanctions are indispensable if the law is to be obeyed. They are the "teeth" of the law. Without them, the law would be toothless, not worth the paper it is printed on, for physicians, dentists and veterinarians may freely ignore its prescriptions and prohibitions. The penalty of suspension or cancellation of the physician's license is neither cruel, inhuman, or degrading. It is no different from the penalty of suspension or disbarment that this Court inflicts on lawyers and judges who misbehave or violate the laws and the Codes of Professional and Judicial Conduct. We hold that the Generics Act and the implementing administrative orders of the Secretary of Health are constitutional. In light of its beneficial provisions, we cannot heed the petitioners' plea to kill it aborning, i.e., before it has had a chance to prove its value to our people as envisioned by its makers. WHEREFORE, the petition is dismissed for lack of merit. Costs against the petitioners. SO ORDERED. Fernan, C.J., Narvasa, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Melencio-Herrera, J., concurs in the result.

Separate Opinions

93

Gutierrez, Jr., J., concurring: I concur in the result only because of the failure to overcome the presumption of constitutionality and not because the respondent's arguments are valid.

CASE 14: G.R. No. L-24693

October 23, 1967 ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR, INC. and GO HIU, petitioners-appellees, vs. THE HONORABLE, CITY MAYOR OF MANILA, respondent-appellant. VICTOR ALABANZA, intervenor-appellee. J. M. Aruego, A. Tenchavez and L. U. Go for petitioners-appellees. Panganiban, Abad and Associates for respondent-appellant. RESOLUTION FERNANDO, J.: A Motion for the reconsideration of our decision of July 31, 1967 was filed by petitioners, followed by a Motion for new trial. As the Motion for reconsideration is clearly without merit, there is no occasion for this sought-for new trial. Consequently, both motions are denied. (1) No merit in the Motion for reconsideration.

Separate Opinions Gutierrez, Jr., J., concurring: I concur in the result only because of the failure to overcome the presumption of constitutionality and not because the respondent's arguments are valid.

In the decision of this Court of July 31, 1967, sought to be reconsidered, its basis was categorically set forth in the following language: As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental character ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional adjudication, in both procedural and substantive aspects. Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity. . . . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitates action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people. . .. The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co., where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to 94

declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." No such factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set aside. The O'Gorman principle1 fails to meet the approval of counsel of petitioners. They would restrain unduly and unjustifiably its operation. In the language of the motion for reconsideration: "The U. S. Supreme Court was not laying down as a general rule in constitutional cases that there must be a factual foundation of record to offset the presumption of constitutionality of any and every law." To paraphrase Justice Brandeis, this interpretation is without support in authority or reason and rests upon a misconception. It is to betray an almost total lack of awareness of the import and significance of the O'Gorman doctrine in American constitutional law. Authorities on the subject of proven competence and knowledge flatly reject such a view. Dodd,2 Dowling,3 Freund Sutherland, De Wolfe Howe, and Brown,4 and Kauper5 in their standard casebooks quote the same excerpt from O'Gorman v. Hartford Fire Ins. Co. appearing in the opinion of this Court. Dodd entertained no doubt: "The accepted view is that stated by Mr. Justice Brandeis in the O'Gorman case."6 Frankfurter and Landis were equally explicit in their appreciation of what the O'Gorman dictum means. "As doctrine, there is nothing new in the avowal of a need for concreteness in passing judgment upon the legislative judgment. But perhaps last term marks a more sedulous attention to its observance. Certainly the procedure followed by the Court in O'Gorman & Young v. Hartford Fire Ins. Co., if regularly observed, will affect not a little the fate of legislation. If insisted upon, it will compel the bar to argue questions of legislative validity in the perspective of the circumstances which gave rise to a particular statute."7 The late Professor Hamilton of the Yale Law School, one of the most distinguished constitutionalists, would have been appalled by the unorthodoxy of the view of counsel of petitioners. For him, the O'Gorman opinion was a manifestation of the jurist's art at its best: If the jurists have the feelings of other men, Monday, the fifth of January nineteen hundred and thirty one, must have been a day of consequence in the life of Mr. Justice Brandeis. On that day he handed down the judgment of the United States Supreme Court in the O'Gorman case. The cause was a simple suit in contract: the result depended upon the validity of a New Jersey statute regulating the commissions to be paid by insurance companies to their agents for securing business. The more general question was the tolerance to be accorded to legislative price-fixing under the Fourteenth Amendment. And, as the fortunes of litigation broke, the issue came to be the intellectual procedure by which the constitutionality of the acts which make up the public control of business are to be determined. Upon that day the views of Brandeis became "the opinion of the court," and a new chapter in judicial history began to be written. xxx xxx xxx

interest that the state may regulate the rates," and concludes with a declaration of the test for validity. As "underlying questions of fact may condition the constitutionality of legislation of this character," it follows that "the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." It did not appear "upon the face of the statute, or from any facts of which the court must take judicial notice" that in New Jersey "evils did not exist," for which the statute was "an appropriate remedy." Accordingly the court was compelled to declare the statute valid; in fact it was left with no alternative. Yet the simple lines of a short opinion present a superb example of the jurist's art. . . .8 This is not to discount the possibility of a situation where the nullity of a statute, executive order, or ordinance may not be readily apparent but the threat to constitutional rights, especially those involving the freedom of the mind, present and ominous. That in such an event there should not be a rigid insistence on the requirement that evidence be presented does not argue against the force of the above excerpts on the weight to be accorded the O'Gorman doctrine in this case. The prop here failing, is there anything else in the Motion for reconsideration that calls for a modification of the decision of this Court? The answer must be in the negative. It ought not to have escaped petitioners that the opinion of the Court after noting the lack of factual foundation to offset the presumption of constitutionality went on to discuss the due process aspects to make clear that on its face, the Ordinance cannot be considered void. Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does "to all the great public needs." It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the general welfare. Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society." There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the then Councilor Herminio Astorga included as annex to the stipulation of facts speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila, traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the license fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. 95

In form "the opinion of the court" is a very simple and unpretentious document. It begins with a statement of the issue and a history of the case, continues with a brief summary of the reasons for the statute and a statement that "the business of insurance is so affected with a public

There is nothing in the Motion for reconsideration that in any wise affects adversely or impairs the force of the above conclusion. The task of proving that the challenged Ordinance is void on its face is one attended with difficulty. Nonetheless, with the persistence worthy of a better cause, petitioners would cite as fatal infirmity the alleged invasion of the rights against unreasonable search and seizure, to liberty, and to property. As the unchallenged rule, to paraphrase Laurel, is that unless a person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance,9 he has no standing, the invocation of petitioners as motel operators of their alleged right to being free from unreasonable search and seizure need not be taken seriously. Nor does their claim of the alleged infringement of their liberty deserve any further thought, its implausibility being selfevident, except perhaps as to the liberty to contract, which is part and parcel of their right to the property. Unfortunately for them, in this jurisdiction the liberty to contract, except in the Pomar10 case as noted in the decision, has never stood in the way of the enactment of police power measures when called for by circumstances such as undoubtedly exist in this case. The same is true in the United States, where such a concept has definitely fallen from its previously high state under the impact of the Nebbia,11 West Coast Hotel Co.12 and Olson decisions.13 That leaves only the alleged grievance that there was an unconstitutional invasion of property rights. It goes without saying that petitioners themselves cannot ignore that one could, consistently with the fundamental law, be deprived of his property as long as due process is observed. The decision makes clear that such indeed was the case as far as this Ordinance was concerned. To that aspect, a considerable portion of the opinion was devoted, citing a number of applicable decisions of this Court, all tending to demonstrate that there was no due process infraction. The Motion for reconsideration is conspicuously barren of any attempt to show that under our previous decisions referred to, the challenged Ordinance could be successfully assailed. It would follow then that this reiteration of an argument, previously shown to be far from persuasive, is deserving of a similar fate. That is all there is to the Motion for reconsideration. That and what Justice Cardozo aptly referred to as reference to "grotesque or fanciful situations," which if they would arise could then be appropriately dealt with. As the famed jurist aptly noted: "That they are conceivable though improbable ought not to govern our construction."14 That is not the way then to impugn the validity of an ordinance. Neither could it be rightfully looked upon as laying a foundation for setting aside a decision. The Motion for reconsideration, to repeat, is palpably lacking in merit. (1) No occasion for new trial.

such argument is clearly unfounded. If the legislative power of the Municipal Board of the City of Manila were not limited to its boundaries, if it could apply to the suburban area, then perhaps plausibility could be imparted to such a claim. Since, as is undeniable, the challenged Ordinance applies to all the motels in Manila, an assertion that there is denial of equal protection would, to put it at its mildest, be extremely far-fetched. Nor does the invocation of the laissez faire concept as bar against the enactment of regulatory measures, which undoubtedly would result in the diminution of income and the loss of business, occasion any misgiving as to the conformity of the decision arrived at by this Court with controlling constitutional law principles. Did not petitioners take note of the view announced by Justice Laurel quoted in the decision to the effect that the policy "of laissez faire has to some extent given way to the assumption by the government of the right of intervention even in contractual relations affected with public interest." The decision likewise cited this jurist, speaking for the Court in Calalang v. Williams:15 "Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Perhaps and property may be subjected to all kinds of restraints and burdens, in order to secure, the general comfort, health, and prosperity of the state. . . . To this fundamental aim of our Government the rights of the individual are subordinated." That was in 1940. Then in 1955, came Co Kiam v. City of Manila,16 where Justice Reyes, A., for a unanimous Court categorically declared: "And surely, the mere fact that some individuals in the community may be deprived of their present business or a particular mode of earning a living can not prevent the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in those occupations subject to the disadvantages which may result from the legal exercise of that power. (City of New Orleans v. Stafford, 27 L. Ann. 417)." Nor does the reference by new counsel to American state court decisions call for a different conclusion. The United States Supreme Court in the leading case of West Virginia State Board of Education v. Barnette,17 decided in 1943, was equally explicit, saying "the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." Two names of great repute, Freund and Learned Hand, were cited by petitioners. Neither if properly understood, could help their cause at all. According to Freund: "In short, when freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect, when property is imperiled, it is the lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause."18 The illustrious Learned Hand writing on Chief Justice Stone's concept of the judicial function had occasion to note the "discredited attitude" of what he referred to "as the old apostles of the institution of property. . . ."19 What then is left? Clearly nothing to call for the reconsideration of our decision of July 31, 1967. Nor is there the least justification for a new trial and reception of evidence. WHEREFORE, the Motion for reconsideration of petitioners of September 16, 1967 and supplemental Motion for new trial of September 25, 1967, are denied. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.

Subsequently, a supplemental Motion for new trial dated September 25, 1967, was filed the same day. As earlier pointed out, with the Motion for reconsideration having been shown to be devoid of merit, the supplemental Motion for new trial should likewise be denied. In the main, what was so unsuccessfully put forth by counsel for petitioners was adhered to. Additional counsel would bring in new points, namely, the alleged denial of equal protection and the repugnancy to "the laissez faire principle underlying our economic system, as it would substantially reduce return on the investment." Neither suffices to justify any modification of the decision, much less its reconsideration. A new trial would therefore be an exercise in futility. The alleged denial of equal protection was predicated on the greater advantages that the motels in the suburbs of Manila would enjoy as against those within the city limits. On its face,

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14 Gaines v. City of New York (1915) 109 N. E. 594, 596. Footnotes 15 70 Phil. 726, 733. 1 Justice Brandeis in Pacific States Box v. White (1935) 296 US 176, 185, further elaborated on the above doctrine: "The order here in question deals with a subject clearly within the scope of the police power. See Turner v. Maryland, 107 US 38, 27 L. ed. 370, 2 S. Ct. 44. When such legislative action "is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary." Borden's Farm Products Co. v. Baldwin, 293 US 194, 209, 79 L. ed. 281, 288, 55 S. Ct. 187. The burden is not sustained by making allegations which are merely the general conclusions of law or fact. See Public Service Commission v. Great Northern Utilities Co., 289 US 130, 136, 137, 77 L. ed. 1080, 1085, 1086, 53 S. Ct. 546. Facts relied upon to rebut the presumption of constitutionality must be specifically set forth. See Aetna Ins. Co. v. Hyde, 275 US 440, 72 L. ed. 357, 48 S. Ct. 174; O'Gorman & Young v. Hartford F. Ins. Co., 282 US 251, 75 L. ed. 324, 51 S. Ct. 130, 72 A.L.R. 1163; Hegeman Farms Corp. v. Baldwin, 293 US 163, 79 L. ed. 259, 55 S. Ct." Outside of the Pacific States Box case, the O'Gorman decision has been cited with approval in Osborn v. Ozlin (1940) 310 US 53; Carolene Products Co. v. United States (1944) 323 US 18; California Auto Asso. v. Maloney (1951) 341 US 105; and Seagram and Sons v. Hostetter (1966) 16 L. ed. 336. Referring to the O'Gorman doctrine, it has been said: "The propriety of such a change in the method of approach to constitutional questions, even though it may involve overruling previously decided cases, has been recognized since the days of Taney." (Comment, 42 Yale Law Journal 1258 [1933].) 2 Dodd, Cases on Constitutional Law (1949) 4th ed., p. 86. 3 Dowling, Cases on Constitutional Law (1950) 4th ed., p. 769. 4 Freund Sutherland, De Wolfe Howe, and Brown, Constitutional Law: Cases and Other Problems (1954), p. 122. 5 Kauper, Constitutional Law: Cases and Materials (1960) p. 62. 6 Dodd, op. cit., p. 87. 7 Frankfurter and Landis, The Business of the Supreme Court at October Term 1930. (1931) 45 Harv. Law Rev., 271, 325. 8 Hamilton, The Jurist's Art (1931), 31 Col. Law Rev. 1073-1075. 9 People v. Vera (1937) 65 Phil. 56, 89. 10 46 Phil. 440 (1924). 11 291 US 502 (1934). 12 300 US 379 (1937). 13 313 US 1305 (1942). 16 96 Phil. 649, 654. 17 319 US 624. 18 Freund, On Understanding the Supreme Court (1950) p. 11 19 46 Columbia Law Rev. 698 (1945).

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SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila.

CASE 15: G.R. No. 122846

January 20, 2009 WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners, vs. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent. DECISION Tinga, J.: With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality. In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition. This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance). I. The facts are as follows: On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The Ordinance is reproduced in full, hereunder: SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular. SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning. SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled. SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed. SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval. Enacted by the city Council of Manila at its regular session today, November 10, 1992. Approved by His Honor, the Mayor on December 3, 1992. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components of the Anito Group of Companies which owns and operates several hotels and motels in Metro Manila.9 On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to withdraw as plaintiff.11 On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14 98

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional. During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and void. Accordingly, the preliminary injunction heretofor issued is hereby made permanent. SO ORDERED.17 The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-province ban on the transport of carabaos and carabeef. The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition for certiorari and referred the petition to the Court of Appeals.21 Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power: [To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports.22 The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter, thus: "to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business. The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by law. TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed Ordinance is an invalid exercise of police power. II. We must address the threshold issue of petitioners standing. Petitioners allege that as owners of establishments offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal protection rights. Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of government. The requirement of standing is a core component of the judicial system derived directly from the Constitution.27 The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.30 Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.31 For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to 99

the third party's ability to protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be construed as a hindrance for customers to bring suit.34 American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme Court held that physicians had standing to challenge a reproductive health statute that would penalize them as accessories as well as to plead the constitutional protections available to their patients. The Court held that: "The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them."36 An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The United States High Court explained that the vendors had standing "by acting as advocates of the rights of third parties who seek access to their market or function."38 Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth. We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a "wash-rate" time frame. III. To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila.40 Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens. The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.41 The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism. Even as we design the precedents that establish the framework for analysis of due process or equal protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third political branch of government. We derive our respect and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching constitutional questions of the day. 100

B. The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.49 Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing. If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.50 The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application. C. The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a "discrete and insular" minority or infringement of a "fundamental right."52 Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered.59 Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.61 The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate travel.64 If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people reflexively exercise any day without the impairing awareness of their constitutional consequence that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big Brother presence as they interact with each other, their society and nature, in a manner innately understood by them as inherent, without doing harm or injury to others. D. The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus: Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[65] In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[66]

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The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted] It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments "have gained notoriety as venue of prostitution, adultery and fornications in Manila since they provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes and thrill-seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes: The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.70 We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.72 Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected.73 However, this is not in any way meant to take it away from the vastness of State police power whose exercise enjoys the presumption of validity.74 Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition. The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to Manila. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. IV.

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We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However well--intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to protect.77 The notion that the promotion of public morality is a function of the State is as old as Aristotle.78 The advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different interests.79 To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented. Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office, and because they are entrusted by the people to uphold the law.81 Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality. WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs. SO ORDERED. DANTE O. TINGA Associate Justice

WE CONCUR: REYNATO S. PUNO Chief Justice LEONARDO A. QUISUMBING Associate Justice CONSUELO YNARES-SANTIAGO Associate Justice (On Official Leave) ANTONIO T. CARPIO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice RENATO C. CORONA Associate Justice CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice MINITA V. CHICO-NAZARIO Associate Justice ANTONIO EDUARDO B. NACHUR Associate Justice TERESITA LEONARDO DE CASTRO Associate Justice (On Sick Leave) ARTURO D. BRION Associate Justice (On Official Leave) DIOSDADO M. PERALTA Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes 1 G.R. 118127, 12 April 2005, 455 SCRA 308. 2 See rollo, pp. 4-41. 3Id. at 42-59. Penned by Associate Justice Jaime M. Lantin, concurred in by Associate Justices Ricardo P. Galvez (later, Solicitor-General) and Antonio P. Solano. 4 Id. at 46. 5 Id. at 62-69. 103

30 468 U.S. 737 (1984). 6 Id. at 45-46. 31Supra note 29. 7 Id. at 70-77. 32 499 U.S. 400 (1991). 8 Id. at 47. 33 Id. at p 410-411. 9Id. 10Id. 11Id. at 48. 35 381 U.S. 479(1965). 12Id. at 81. 36 Id. at 481. 13Id. at 82-83. 37429 U.S. 190 (1976). 14Id. at 84-99. 38Id. at 194. 15 Id. at 104-105. 16 Id. at 49. 17 Id. at 52. 18Id. at 120. 19 No. L-74457, 20 March 1987, 148 SCRA 659. 20 Rollo, pp. 129-145. 21 Id. at 158. 22 Id. at 53. 23 Id. 44 U.S. v. Rodriguez, 38 Phil. 759. 24 Id. at 43-59. 45 People v. Chan, 65 Phil. 611 (1938). 25 Id. at 4-40. 46 Javier v. Earnshaw, 64 Phil. 626 (1937). 26 Allen v. Wright, 468 U.S. 737 (1984). 47 Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931). 27 Const., Art. VIII , Sec. 5, Sanlakas v. Executive Secretary Reyes, 466 Phil. 482 (2004). 28Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). 29See Domingo v. Carague, G.R. No. 161065, 15 April 2005, 456 SCRA 450. See also Macasiano v. National Housing Authority, G.R. No. 107921, 1 July 1993, 224 SCRA 236. 48 See U.S. v. Ling Su Fan, 10 Phil. 104 (1908); Insular Government v. Ling Su Fan, 15 Phil. 58 (1910). 49 Lopez v. Director of Lands, 47 Phil. 23, 32 (1924). 50 See City of Manila v. Hon. Laguio, Jr., supra note 1 at 330 citing CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523 (2002). 104 42 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 127 Phil. 306 (1967). 43 JMM Promotion and Management Inc. v. Court of Appeals, 329 Phil. 87, 94 (1996) citing Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919). 39 Chavez v. Comelec, G.R. No. 162777, 31 August 2004, 437 SCRA 415; Adiong v. Comelec, G.R. No. 103956, 31 March 1992, 207 SCRA 712. 40127 Phil. 306 (1967). 41 City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 268-267. 34 See Kelsey McCowan Heilman, The Rights of Others: Protection and Advocacy Organizations Associational Standing to Sue, 157 U. Pa. L. Rev. 237, for a general discussion on advocacy groups.

51 304 U.S. 144 (1938). 52 Id, at 152. 53 Craig v. Boren, 429 U.S. 190 (1976). 54 Clark v. Jeter, 486 U.S. 456 (1988). 55 429 U.S. 190 (1976). 56 404 U.S. 71 (1971).

A.M. No. P-02-1564, 23 November 2004) Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception. Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedom it is the most comprehensive of rights and the right most valued by civilized men." City of Manila v. Hon. Laguio, Jr. supra note 1 at 337-338. 70 City of Manila v. Laguio, Jr., supra note 1 at 338-339.

57 Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 487 Phil. 531 (2004); Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and 79777, July 14, 1989, 175 SCRA 343; In Ermita-Malate, supra note 1 at 324, the Court in fact noted: "if the liberty involved were freedom of the mind or the person, the standard for the validity of government acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider." 58 Central Bank Employees Association v. Bangko Sentral ng Pilipinas, supra note 57. 59Id.

71 Metro Manila Development Authority v. Viron Transportation Co., G.R. Nos. 170656 and 170657, 15 August 2007, 530 SCRA 341. 72 U.S. v. Toribio, 15 Phil. 85 (1910). 73 130 Phil. 415 (1968). 74 Carlos Superdrug v. DSWD, G.R. No. 166494, June 29, 2007, Alalayan v. National Power Corporation, 24 Phil. 172 (1968); U.S. v. Salaveria, 39 Phil. 102 (1918). 75 Philippine Press Institute v. Comelec, 314 Phil. 131 (1995).

60 Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, 19 November 2001, 369 SCRA 394. 61Id. 62 Bush v. Gore, 531 U.S. 98 (2000). 63 Boddie v. Connecticut, 401 U.S. 371 (1971). 64 Shapiro v. Thompson, 394 U.S. 618 (1969). It has been opined by Chemerinsky that the use of the equal protection clause was to avoid the use of substantive due process since the latter fell into disfavor in the United States. See Erwin Chemerinsky, Constitutional Law, Principles and Policies (2nd ed. 2002). 65 Morfe v. Mutuc, 130 Phil. 415 (1968).

76 Supra note 1. 77 City of Manila v. Hon. Laguio, Jr., supra note 1; De La Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490 (1983); Ermita-Malate Hotel and Motel Operations Association, Inc. v. City Mayor of Manila, supra note 42. 78 "The end of the state is not mere life; it is, rather, a good quality of life." Therefore any state "which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness. Otherwise, a political association sinks into a mere alliance" The law "should be a rule of life such as will make the members of a [state] good and just." Otherwise it "becomes a mere covenant or (in the phrase of the Sophist Lycophron) a guarantor of mens rights against one another." Politics II.9.6-8.1280 31-1280bii; cited in Hamburger, M., Morals and Law: The Growth of Aristotles Legal Theory (1951 ed.), p. 178. 79 Greenwalt, K., Conflicts of Law and Morality (1989 ed.), at 38.

66Id. at 440. 67 City of Manila v. Laguio, Jr., supra note 1 at 336-337. 68 Rollo, p. 258. 69 "Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motel's premises be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. (See Concerned Employee v. Glenda Espiritu Mayor, 80 Steven G., Render Unto Caesar that which is Caesars, and unto God that which is Gods, 31 Harv. J.L. & Pub. Pol'y 495. He cites the example of the failed Twentieth (?) Amendment to the U.S. Constitution, which prohibited the sale and consumption of liquor, where it was clear that the State cannot justly and successfully regulate consumption of alcohol, when huge portions of the population engage in its consumption. See also Posner, Richard H., The Problematics of Moral And Legal Theory, The Belknap Press of Harvard University Press (2002). He writes:

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. . . Holmes warned long ago of the pitfalls of misunderstanding law by taking its moral vocabulary too seriously. A big part of legal education consists of showing students how to skirt those pitfalls. The law uses moral terms in part because of its origin, in part to be impressive, in part to speak a language that the laity, to whom the commands of the law are addressed, is more likely to understand and in part, because there is a considerable overlap between law and morality. The overlap, however, is too limited to justify trying to align these two systems of social control (the sort of project that Islamic nations such as Iran, Pakistan, and Afghanistan have been engaged in of late). It is not a scandal when the law to pronounce it out of phase with current moral feeling. If often is, and for good practical reasons (in particular, the law is a flywheel, limiting the effects of wide swings in public opinion). When people make that criticismas many do of the laws, still found on the statute books of many states, punishing homosexual relationswhat they mean is that the law neither is supported by public opinion nor serves any temporal purpose, even that of stability, that it is merely a vestige, an empty symbol. 81 See Burton, S., Judging in Good Faith, (1992 ed.), at 218.

106