Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-8095 March 31, 1915
F.C. FISHER, plaintiff,
vs.
YNGCO STEMSHIP COMPNY, !.S. STNLEY, a" c#$%& Co''(c#or o) C*"#o+" o) #h(
Ph$'$,,$%( I"'a%-", IGNCIO .ILLMOR, a" ##or%(/-G(%(ra' o) #h( Ph$'$,,$%( I"'a%-", a%-
0.H. 1ISHOP, a" ,ro"(c*#$%& a##or%(/ o) #h( c$#/ o) Ma%$'a, respondents.
Haussermann, Cohn and Fisher for plaintiff.
Office of the Solicitor-General Harvey for respondents.
CRSON, J.2
The real question involved in these proceedings is hether the refusal of the oners and officers of
a stea! vessel, dul" licensed to engage in the coastise trade of the Philippine #slands and
engaged in that trade as a co!!on carrier, to accept for carriage $d"na!ite, poder or other
e%plosives$ fro! an" and all shippers ho !a" offer such e%plosives for carriage can be held to be a
laful act ithout regard to an" question as to the conditions under hich such e%plosives are
offered to carriage, or as to the suitableness of the vessel for the transportation of such e%plosives,
or as to the possibilit" that the refusal to accept such articles of co!!erce in a particular case !a"
have the effect of sub&ecting an" person or localit" or the traffic in such e%plosives to an undue,
unreasonable or unnecessar" pre&udice or discri!ination.
'u!!ari(ed briefl", the co!plaint alleges that plaintiff is a stoc)holder in the *angco 'tea!ship
Co!pan", the oner of a large nu!ber of stea! vessels, dul" licensed to engage in the coastise
trade of the Philippine #slands+ that on or about ,une -., -/-0, the directors of the co!pan" adopted
a resolution hich as thereafter ratified and affir!ed b" the shareholders of the co!pan",
$e%pressl" declaring and providing that the classes of !erchandise to be carried b" the co!pan" in
its business as a co!!on carrier do not include d"na!ite, poder or other e%plosives, and
e%pressl" prohibiting the officers, agents and servants of the co!pan" fro! offering to carr",
accepting for carriage said d"na!ite, poder or other e%plosives+$ that thereafter the respondent
Acting Collector of Custo!s de!anded and required of the co!pan" the acceptance and carriage of
such e%plosives+ that he has refused and suspended the issuance of the necessar" clearance
docu!ents of the vessels of the co!pan" unless and until the co!pan" consents to accept such
e%plosives for carriage+ that plaintiff is advised and believes that should the co!pan" decline to
accept such e%plosives for carriage, the respondent Attorne"12eneral of the Philippine #slands and
the respondent prosecuting attorne" of the cit" of Manila intend to institute proceedings under the
penal provisions of sections 3, 4, and 5 of Act No. /6 of the Philippine Co!!ission against the
co!pan", its !anagers, agents and servants, to enforce the require!ents of the Acting Collector of
Custo!s as to the acceptance of such e%plosives for carriage+ that notithstanding the de!ands of
the plaintiff stoc)holder, the !anager, agents and servants of the co!pan" decline and refuse to
cease the carriage of such e%plosives, on the ground that b" reason of the severit" of the penalties
ith hich the" are threatened upon failure to carr" such e%plosives, the" cannot sub&ect the!selves
to $the ruinous consequences hich ould inevitabl" result$ fro! failure on their part to obe" the
de!ands and require!ents of the Acting Collector of Custo!s as to the acceptance for carriage of
e%plosives+ that plaintiff believes that the Acting Collector of Custo!s erroneousl" construes the
provisions of Act No. /6 in holding that the" require the co!pan" to accept such e%plosives for
carriage notithstanding the above !entioned resolution of the directors and stoc)holders of the
co!pan", and that if the Act does in fact require the co!pan" to carr" such e%plosives it is to that
e%tent unconstitutional and void+ that notithstanding this belief of co!plainant as to the true
!eaning of the Act, the questions involved cannot be raised b" the refusal of the co!pan" or its
agents to co!pl" ith the de!ands of the Acting Collector of Custo!s, ithout the ris) of irreparable
loss and da!age resulting fro! his refusal to facilitate the docu!entation of the co!pan"7s vessels,
and ithout assu!ing the co!pan" to test the questions involved b" refusing to accept such
e%plosives for carriage.
The pra"er of the co!plaint is as follos8
9herefore "our petitioner pra"s to this honorable court as follos8
:irst. That to the due hearing of the above entitled action be issued a rit of prohibition
perpetuall" restraining the respondent *angco 'tea!ship Co!pan", its appraisers, agents,
servants or other representatives fro! accepting to carr" and fro! carr"ing, in stea!ers of
said co!pan" d"na!ite, poder or other e%plosive substance, in accordance ith the
resolution of the board of directors and of the shareholders of said co!pan".
'econd. That a rit of prohibition be issued perpetuall" en&oining the respondent ,.'.
'tanle" as Acting Collector of Custo!s of the Philippine #slands, his successors, deputies,
servants or other representatives, fro! obligating the said *angco 'tea!ship Co!pan", b"
an" !eans hatever, to carr" d"na!ite, poder or other e%plosive substance.
Third. That a rit of prohibition be issued perpetuall" en&oining the respondent #gnacio
;illa!or as Attorne"12eneral of the Philippine #slands, and 9.<. Bishop as prosecuting
attorne" of the cit" of Manila, their deputies representatives or e!plo"ees, fro! accusing the
said *angco 'tea!ship Co!pan", its officers, agents or servants, of the violation of Act No.
/6 b" reason of the failure or o!ission of the said co!pan" to accept for carriage out to
carr" d"na!ite poder or other e%plosive.
:ourth. That the petitioner be granted such other re!ed" as !a" be !eet and proper.
To this co!plaint the respondents de!urred, and e are of opinion that the de!urrer !ust be
sustained, on the ground that the co!plaint does not set forth facts sufficient to constitute a cause of
action.
#t ill readil" be seen that plaintiff see)s in these proceedings to en&oin the stea!ship co!pan" fro!
accepting for carriage on an" of its vessels, d"na!ite, poder or other e%plosives, under an"
conditions hatsoever+ to prohibit the Collector of Custo!s and the prosecuting officers of the
govern!ent fro! all atte!pts to co!pel the co!pan" to accept such e%plosives for carriage on an"
of its vessels under an" conditions hatsoever+ and to prohibit these officials fro! an" atte!pt to
invo)e the penal provisions of Act No. /6, in an" case of a refusal b" the co!pan" or its officers so
to do+ and this ithout regard to the conditions as to safet" and so forth under hich such e%plosives
are offered for carriage, and ithout regard also to an" question as to the suitableness for the
transportation of such e%plosives of the particular vessel upon hich the shipper offers the! for
carriage+ and further ithout regard to an" question as to hether such conduct on the part of the
stea!ship co!pan" and its officers involves in an" instance an undue, unnecessar" or
unreasonable discri!ination to the pre&udice of an" person, localit" or particular )ind of traffic.
There are no allegations in the co!plaint that for so!e special and sufficient reasons all or indeed
an" of the co!pan"7s vessels are unsuitable for the business of transporting e%plosives+ or that
shippers have declined or ill in future decline to co!pl" ith such reasonable regulations and to
ta)e such reasonable precautions as !a" be necessar" and proper to secure the safet" of the
vessels of the co!pan" in transporting such e%plosives. #ndeed the contention of petitioner is that a
co!!on carrier in the Philippine #slands !a" decline to accept for carriage an" ship!ent of
!erchandise of a class hich it e%pressl" or i!pliedl" declines to accept fro! all shippers ali)e,
because as he contends $the dut" of a co!!on carrier to carr" for all ho offer arises fro! the
public profession he has !ade, and li!ited b" it.$
#n support of this contention counsel cites for a nu!ber of English and A!erican authorities,
discussing and appl"ing the doctrine of the co!!on la ith reference to co!!on carriers. But it is
unnecessar" no to decide hether, in the absence of statute, the principles on hich the A!erican
and English cases ere decided ould be applicable in this &urisdiction. The duties and liabilities of
co!!on carriers in this &urisdiction are defined and full" set forth in Act No. /6 of the Philippine
Co!!ission, and until and unless that statute be declared invalid or unconstitutional, e are bound
b" its provisions.
'ections 0, = and 3 of the Act are as follos8
'EC. 0. #t shall be unlaful for an" co!!on carrier engaged in the transportation of
passengers or propert" as above set forth to !a)e or give an" unnecessar" or unreasonable
preference or advantage to an" particular person, co!pan", fir!, corporation or localit", or
an" particular )ind of traffic in an" respect hatsoever, or to sub&ect an" particular person,
co!pan", fir!, corporation or localit", or an" particular )ind of traffic, to undue or
unreasonable pre&udice or discri!ination hatsoever, and such un&ust preference or
discri!ination is also hereb" prohibited and declared to be unlaful.
'EC. =. No co!!on carrier engaged in the carriage of passengers or propert" as aforesaid
shall, under an" pretense hatsoever, fail or refuse to receive for carriage, and as pro!ptl"
as it is able to do so ithout discri!ination, to carr" an" person or propert" offering for
carriage, and in the order in hich such persons or propert" are offered for carriage, nor
shall an" such co!!on carrier enter into an" arrange!ent, contract or agree!ent ith an"
other person or corporation hereb" the latter is given an e%clusive or preferential or
!onopoli(e the carriage an" class or )ind of propert" to the e%clusion or partial e%clusion of
an" other person or persons, and the entering into an" such arrange!ent, contract or
agree!ent, under an" for! or pretense hatsoever, is hereb" prohibited and declared to be
unlaful.
'EC. 3. An" illful violation of the provisions of this Act b" an" co!!on carrier engaged in
the transportation of passengers or propert" as hereinbefore set forth is hereb" declared to
be punishable b" a fine not e%ceeding five thousand dollars !one" of the >nited 'tates, or
b" i!prison!ent not e%ceeding to "ears, or both, ithin the discretion of the court.
The validit" of this Act has been questioned on various grounds, and it is vigorousl" contended that
in so far as it i!poses an" obligation on a co!!on carrier to accept for carriage !erchandise of a
class hich he !a)es no public profession to carr", or hich he has e%pressl" or i!pliedl"
announced his intention to decline to accept for carriage fro! all shippers ali)e, it is ultra vires,
unconstitutional and void.
9e !a" dis!iss ithout e%tended discussion an" argu!ent or contention as to the invalidit" of the
statute based on alleged absurdities inherent in its provisions or on alleged unreasonable or
i!possible require!ents hich !a" be read into it b" a strained construction of its ter!s.
9e agree ith counsel for petitioner that the provision of the Act hich prescribes that, $No co!!on
carrier ... shall, under an" pretense hatsoever, fail or refuse to receive for carriage ... to carr" an"
person or propert" offering for carriage,$ is not to be construed in its literal sense and ithout regard
to the conte%t, so as to i!pose an i!perative dut" on all co!!on carriers to accept for carriage, and
to carr" all and an" )ind of freight hich !a" be offered for carriage ithout regard to the facilities
hich the" !a" have at their disposal. The legislator could not have intended and did not intend to
prescribe that a co!!on carrier running passenger auto!obiles for hire !ust transport coal in his
!achines+ nor that the oner of a tan) stea!er, e%pressl" constructed in s!all atertight
co!part!ents for the carriage of crude oil !ust accept co!!on carrier !ust accept and carr"
contraband articles, such as opiu!, !orphine, cocaine, or the li)e, the !ere possession of hich is
declared to be a cri!inal offense+ nor that co!!on carriers !ust accept eggs offered for
transportation in paper parcels or an" !erchandise hatever do defectivel" pac)ed as to entail upon
the co!pan" unreasonable and unnecessar" care or ris)s.
Read in connection ith its conte%t this, as ell as all the other !andator" and prohibitor" provisions
of the statute, as clearl" intended !erel" to forbid failures or refusals to receive persons or
propert" for carriage involving an" $unnecessar" or unreasonable preference or advantage to an"
particular person, co!pan", fir!, corporation, or localit", or an" particular )ind of traffic in an"
respect hatsoever,$ or hich ould $sub&ect an" particular person, co!pan", fir!, corporation or
localit", or an" particular )ind of traffic to an" undue or unreasonable pre&udice or discri!ination
hatsoever.$
The question, then, of construing and appl"ing the statute, in cases of alleged violations of its
provisions, ala"s involves a consideration as to hether the acts co!plained of had the effect of
!a)ing or giving an $unreasonable or unnecessar" preference or advantage$ to an" person, localit"
or particular )ind of traffic, or of sub&ecting an" person, localit", or particular )ind of traffic to an"
undue or unreasonable pre&udice or discri!ination. #t is ver" clear therefore that the language of the
statute itself refutes an" contention as to its invalidit" based on the alleged unreasonableness of its
!andator" or prohibitor" provisions.
'o also e !a" dis!iss ithout !uch discussion the contentions as to the invalidit" of the statute,
hich are based on the alleged e%cessive severit" of the penalties prescribed for violation of its
provisions. >pon general principles it is peculiarl" and e%clusivel" ithin the province of the legislator
to prescribe the pains and penalties hich !a" be i!posed upon persons convicted of violations of
the las in force ithin his territorial &urisdiction. 9ith the e%ercise of his discretion in this regard
here it is alleged that e%cessive fines or cruel and unusual punish!ents have been prescribed, and
even in such cases the courts ill not presu!e to interfere in the absence of the clearest and !ost
convincing argu!ent and proof in support of such contentions. ?9ee!s vs. >nited 'tates, 0-@ >.'.,
=3/+ >.'. vs. Pico, -6 Phil. Rep., =65.A 9e need hardl" add that there is no ground upon hich to
rest a contention that the penalties prescribed in the statute under consideration are either e%cessive
or cruel and unusual, in the sense in hich these ter!s are used in the organic legislation in force in
the Philippine #slands.
But it is contended that on account of the penalties prescribed the statute should be held invalid
upon the principles announced in Ex parte *oung ?0./ >.'., -0=, -3@, -36A+ Cotting vs. 2oddard
?-6= >.'., @/, -.0A+ Mercantile Trust Co. vs. Te%as Co. ?4- :ed., 40/A+ Bouisville R". vs. McCord
?-.= :ed., 0-5A+ Cons. 2as Co. vs.Ma"er ?3-5 :ed., -4.A. 9e are satisfied hoever that the
reasoning of those cases is not applicable to the statute under consideration. The principles
announced in those decisions are fairl" indicated in the folloing citations found in petitioner7s brief8
But hen the legislature, in an effort to prevent an" inquir" of the validit" of a particular statute, so
burdens an" challenge thereof in the courts that the part" affected is necessaril" constrained to
sub!it rather than ta)e the chances of the penalties i!posed, then it beco!es a serious question
hether the part" is not deprived of the equal protection of the las. ?Cotting vs. 2oddard, -6= >. '.,
@/, -.0.A
#t !a" therefore be said that hen the penalties for disobedience are b" fines so enor!ous
and i!prison!ent so severe as to inti!idate the co!pan" and its officers fro! resorting to
the courts to test the validit" of the legislation, the result is the sa!e as if the la in ter!s
prohibited the co!pan" fro! see)ing &udicial construction of las hich deepl" affect its
rights.
#t is urged that there is no principle upon hich to base the clai! that a person is entitled to
disobe" a statute at least once, for the purpose of testing its validit", ithout sub&ecting
hi!self to the penalties for disobedience provided b" the statute in case it is valid. This is not
an accurate state!ent of the case. Crdinaril" a la creating offenses in the nature of
!isde!eanors or felonies relates to a sub&ect over hich the &urisdiction of the legislature is
co!plete in an" event. #n the case, hoever, of the establish!ent of certain rates ithout
an" hearing, the validit" of such rates necessaril" depends upon hether the" are high
enough to per!it at least so!e return upon the invest!ent ?ho !uch it is not no
necessar" to stateA, and an inquir" as to that fact is a proper sub&ect of &udicial investigation.
#f it turns out that the rates are too lo for that purpose, then the" are illegal. No, to i!pose
upon a part" interested the burden of obtaining a &udicial decision of such a question ?no
prior hearing having been givenA onl" upon the condition that, if unsuccessful, he !ust suffer
i!prison!ent and pa" fines, as provided in these acts, is, in effect, to close up all
approaches to the courts, and thus prevent an" hearing upon the question hether the rates
as provided b" the acts are not too lo, and therefore invalid. The distinction is obvious
beteen a case here the validit" of the act depends upon the e%istence of a fact hich can
be deter!ined onl" after investigation of a ver" co!plicated and technical character, and the
ordinar" case of a statute upon a sub&ect requiring no such investigation, and over hich the
&urisdiction of the legislature is co!plete in an" event.
9e hold, therefore, that the provisions of the acts relating to the enforce!ent of the rates,
either for freight or passengers, b" i!posing such enor!ous fines and possible
i!prison!ent as a result of an unsuccessful effort to test the validit" of the las the!selves,
are unconstitutional on their face, ithout regard to the question of the insufficienc" of those
rates. ?Ex parte *oung, 0./ >.'., -0= -3@, -36.A
An e%a!ination of the general provisions of our statute, of the circu!stances under hich it as
enacted, the !ischief hich it sought to re!ed" and of the nature of the penalties prescribed for
violations of its ter!s convinces us that, unli)e the statutes under consideration in the above cited
cases, its enact!ent involved no atte!pt to prevent co!!on carriers $fro! resorting to the courts to
test the validit" of the legislation+$ no $effort to prevent an" inquir"$ as to its validit". #t i!poses no
arbitrar" obligation upon the co!pan" to do or to refrain fro! doing an"thing. #t !a)es no atte!pt to
co!pel such carriers to do business at a fi%ed or arbitraril" designated rate, at the ris) of separate
cri!inal prosecutions for ever" de!and of a higher or a different rate. #ts penalties can be i!posed
onl" upon proof of $unreasonable,$ $unnecessar"$ and $un&ust$ discri!inations, and range fro! a
!a%i!u! hich is certainl" not e%cessive for illful, deliberate and contu!acious violations of its
provisions b" a great and poerful corporation, to a !ini!u! hich !a" be a !erel" no!inal fine.
9ith so ide a range of discretion for a contention on the part of an" co!!on carrier that it or its
officers are $inti!idated fro! resorting to the courts to test the validit"$ of the provisions of the
statute prohibiting such $unreasonable,$ $unnecessar"$ and $un&ust$ discri!inations, or to test in an"
particular case hether a given course of conduct does in fact involve such discri!ination. 9e ill
presu!e, for the purpose of declaring the statute invalid, that there is so real a danger that the
Courts of :irst #nstance and this court on appeal ill abuse the discretion thus conferred upon us, as
to inti!idate an" co!!on carrier, acting in good faith, fro! resorting to the courts to test the validit"
of the statute. Begislative enact!ents, penali(ing unreasonable discri!inations, unreasonable
restraints of trade, and unreasonable conduct in various for!s of hu!an activit" are so fa!iliar and
have been so frequentl" sustained in the courts, as to render e%tended discussion unnecessar" to
refute an" contention as to the invalidit" of the statute under consideration, !erel" it i!poses upon
the carrier the obligation of adopting one of various courses of conduct open to it, at the ris) of
incurring a prescribed penalt" in the event that the course of conduct actuall" adopted b" it should
be held to have involved an unreasonable, unnecessar" or un&ust discri!ination. Appl"ing the test
announced in Ex parte *oung, supra, it ill be seen that the validit" of the Act does not depend upon
$the e%istence of a fact hich can be deter!ined onl" after investigation of a ver" co!plicated and
technical character,$ and that $the &urisdiction of the legislature$ over the sub&ect ith hich the
statute deals $is co!plete in an" event.$ There can be no real question as to the plenar" poer of
the legislature to prohibit and to penali(e the !a)ing of undue, unreasonable and un&ust
discri!inations b" co!!on carriers to the pre&udice of an" person, localit" or particular )ind of traffic.
?See Munn vs. #llinois, /3 >.'., --=, and other cases hereinafter cited in support of this proposition.A
Counsel for petitioner contends also that the statute, if construed so as to den" the right of the
stea!ship co!pan" to elect at ill hether or not it ill engage in a particular business, such as that
of carr"ing e%plosives, is unconstitutional $because it is a confiscation of propert", a ta)ing of the
carrier7s propert" ithout due process of la,$ and because it deprives hi! of his libert" b"
co!pelling hi! to engage in business against his ill. The argu!ent continues as follos8
To require of a carrier, as a condition to his continuing in said business, that he !ust carr"
an"thing and ever" thing is to render useless the facilities he !a" have for the carriage of
certain lines of freight. #t ould be al!ost as co!plete a confiscation of such facilities as if
the sa!e ere destro"ed. Their value as a !eans of livelihood ould be utterl" ta)en aa".
The la is a prohibition to hi! to continue in business+ the alternative is to get out or to go
into so!e other business D the sa!e alternative as as offered in the case of the Chicago
E N.9. R". vs. Fe" ?=4 :ed. Rep., 655, 66.A, and hich as there co!!ented on as follos8
$9hatever of force there !a" be in such argu!ents, as applied to !ere personal
propert" capable of re!oval and use elsehere, or in other business, it is holl"
ithout force as against railroad corporations, so large a proportion of hose
invest!ent is in the soil and fi%tures appertaining thereto, hich cannot be re!oved.
:or a govern!ent, hether that govern!ent be a single sovereign or one of the
!a&orit", to sa" to an individual ho has invested his !eans in so laudable an
enterprise as the construction of a railroad, one hich tends so !uch to the ealth
and prosperit" of the co!!unit", that, if he finds that the rates i!posed ill cause
hi! to do business at a loss, he !a" quit business, and abandon that road, is the
ver" iron" of despotis!. Apples of 'odo! ere fruit of &o" in co!parison. Reading,
as # do, in the prea!ble of the :ederal Constitution, that it as ordained to $establish
&ustice,$ # can never believe that it is ithin the propert" of an individual invested in
and used for a purpose in hich even the Argus e"es of the police poer can see
nothing in&urious to public !orals, public health, or the general elfare. # read also in
the first section of the bill of rights of this state that $all !en are b" nature free and
equal, and have certain inalienable rights, a!ong hich are those of en&o"ing and
defending life and libert", acquiring, possessing, and protecting propert", and
pursuing and obtaining safet" and happiness+$ and # )no that, hile that re!ains as
the supre!e la of the state, no legislature can directl" or indirectl" la" its ithering
or destro"ing hand on a single dollar invested in the legiti!ate business of
transportation.$ ?Chicago E N.9. R". vs. Fe", =4 :ed. Rep., 655, 66..A
#t is !anifest, hoever, that this contention is directed against a construction of the statute, hich, as
e have said, is not arranted b" its ter!s. As e have alread" indicated, the statute does not
$require of a carrier, as a condition to his continuing in said business, that he !ust carr" an"thing
and ever"thing,$ and thereb" $render useless the facilities he !a" have for the carriage of certain
lines of freight.$ #t !erel" forbids failures or refusals to receive persons or propert" for carriage hich
have the effect of giving an $unreasonable or unnecessar" preference or advantage$ to an" person,
localit" or particular )ind of traffic, or of sub&ecting an" person, localit" or particular )ind of traffic to
an" undue or unreasonable pre&udice or discri!ination.
Counsel e%pressl" ad!its that the statute, $as a prohibition against discri!ination is a fair,
reasonable and valid e%ercise of govern!ent,$ and that $it is necessar" and proper that such
discri!ination be prohibited and prevented,$ but he contends that $on the other hand there is no
reasonable arrant nor valid e%cuse for depriving a person of his libert" b" requiring hi! to engage
in business against his ill. #f he has a rolling boat, unsuitable and unprofitable for passenger trade,
he !a" devote it to lu!ber carr"ing. To prohibit hi! fro! using it unless it is fitted out ith doctors
and steards and stateroo!s to carr" passengers ould be an invalid confiscation of this propert". A
carrier !a" li!it his business to the branches thereof that suit his convenience. #f his agon be old,
or the route dangerous, he !a" avoid liabilit" for loss of passengers7 lives and li!bs b" carr"ing
freight onl". #f his vehicles require e%pensive pneu!atic tires, unsuitable for freight transportation, ha
!a" nevertheless carr" passengers. The onl" li!itation upon his action that it is co!petent for the
governing authorit" to i!pose is to require hi! to treat all ali)e. <is li!itations !ust appl" to all, and
the" !ust be established li!itations. <e cannot refuse to carr" a case of red jusi on the ground that
he has carried for others onl" jusi that he as green, or blue, or blac). But he can refuse to carr"
red jusi, if he has publicl" professed such a li!itation upon his business and held hi!self out as
unilling to carr" the sa!e for an"one.$
To this it is sufficient anser to sa" that there is nothing in the statute hich ould deprive an"
person of his libert" $b" requiring hi! to engage in business against his ill.$ The prohibitions of the
statute against undue, unnecessar" or unreasonable regulations hich the legislator has seen fit to
prescribe for the conduct of the business in hich the carrier is engaged of his on free ill and
accord. #n so far as the self1i!posed li!itations b" the carrier upon the business conducted b" hi!,
in the various e%a!ples given b" counsel, do not involve an unreasonable or unnecessar"
discri!ination the statute ould not control his action in an" ise hatever. #t operates onl" in cases
involving such unreasonable or unnecessar" preferences or discri!inations. Thus in the h"pothetical
case suggested b" the petitioner, a carrier engaged in the carriage of green, blue or blac) jusi, and
dul" equipped therefor ould !anifestl" be guilt" of $giving an unnecessar" and unreasonable
preference to a particular )ind of traffic$ and of sub&ecting to $an undue and reasonable pre&udice a
particular )ind of traffic,$ should he decline to carr" red jusi, to the pre&udice of a particular shipper or
of those engaged in the !anufacture of that )ind of jusi, basing his refusal on the ground of $!ere
hi! or caprice$ or of !ere personal convenience. 'o a public carrier of passengers ould not be
per!itted under this statute to absolve hi!self fro! liabilit" for a refusal to carr" a China!an, a
'paniard, an A!erican, a :ilipino, or a mestio b" proof that fro! $!ere hi! or caprice or personal
scruple,$ or to suit his on convenience, or in the hope of increasing his business and thus !a)ing
larger profits, he had publicl" announced his intention not to carr" one or other of these classes of
passengers.
The nature of the business of a co!!on carrier as a public e!plo"!ent is such that it is clearl"
ithin the poer of the state to i!pose such &ust and reasonable regulations thereon in the interest
of the public as the legislator !a" dee! proper. Cf course such regulations !ust not have the effect
of depriving an oner of his propert" ithout due process of la, nor of confiscating or appropriating
private propert" ithout &ust co!pensation, nor of li!iting or prescribing irrevocabl" vested rights or
privileges lafull" acquired under a charter or franchise. But aside fro! such constitutional
li!itations, the deter!ination of the nature and e%tent of the regulations hich should be prescribed
rests in the hands of the legislator.
Co!!on carriers e%ercise a sort of public office, and have duties to perfor! in hich the public is
interested. Their business is, therefore, affected ith a public interest, and is sub&ect of public
regulation. ?Ne ,erse" 'tea! Nav. Co. vs. Merchants Ban), 5 <o., =33, =60+ Munn vs. #llinois, /3
>.'., --=, -=..A #ndeed, this right of regulation is so far be"ond question that it is ell settled that the
poer of the state to e%ercise legislative control over railroad co!panies and other carriers $in all
respects necessar" to protect the public against danger, in&ustice and oppression$ !a" be e%ercised
through boards of co!!issioners. ?Ne *or) etc. R. Co. vs. Bristol, -4- >.'., 445, 4@-+ Connecticut
etc. R. Co. vs. 9oodruff, -4= >.'., 56/.A
Regulations li!iting of passengers the nu!ber of passengers that !a" be carried in a particular
vehicle or stea! vessel, or forbidding the loading of a vessel be"ond a certain point, or prescribing
the nu!ber and qualifications of the personnel in the e!plo" of a co!!on carrier, or forbidding
un&ust discri!ination as to rates, all tend to li!it and restrict his libert" and to control to so!e degree
the free e%ercise of his discretion in the conduct of his business. But since the 2ranger cases ere
decided b" the 'upre!e Court of the >nited 'tates no one questions the poer of the legislator to
prescribe such reasonable regulations upon propert" clothed ith a public interest as he !a" dee!
e%pedient or necessar" to protect the public against danger, in&ustice or oppression.
?Munn vs.#llinois, /3 >.'., --=, -=.+ Chicago etc. R. Co. vs. Cutts, /3 >.'., -44+ Budd vs. Ne *or),
-3= >.'., 4-@+ Cottingvs. 2oddard, -6= >.'., @/.A The right to enter the public e!plo"!ent as a
co!!on carrier and to offer one7s services to the public for hire does not carr" ith it the right to
conduct that business as one pleases, ithout regard to the interest of the public and free fro! such
reasonable and &ust regulations as !a" be prescribed for the protection of the public fro! the
rec)less or careless indifference of the carrier as to the public elfare and for the prevention of
un&ust and unreasonable discri!ination of an" )ind hatsoever in the perfor!ance of the carrier7s
duties as a servant of the public.
Business of certain )inds, including the business of a co!!on carrier, holds such a peculiar relation
to the public interest that there is superinduced upon it the right of public regulation. ?Budd vs. Ne
*or), -3= >.'., 4-@, 4==.A 9hen private propert" is $affected ith a public interest it ceases to
be juris privati onl".$ Propert" beco!es clothed ith a public interest hen used in a !anner to
!a)e it of public consequence and affect the co!!unit" at large. $9hen, therefore, one devotes his
propert" to a use in hich the public has an interest, he, in effect, grants to the public an interest in
that use, and !ust sub!it to be controlled b" the public for the co!!on good, to the e%tent of the
interest he has thus created. <e !a" ithdra his grant b" discontinuing the use, but so long as he
!aintains the use he !ust sub!it to control.$ ?Munn vs. #llinois, /3 >.'., --=+ 2eorgia R. E B)g.
Co. vs. '!ith, -06 >.'., -@3+ Budd vs. Ne *or), -3= >.'., 4-@+ Bouisville etc. R". Co. vs. Gentuc)",
-5- >.'., 5@@, 5/4.A
Cf course this poer to regulate is not a poer to destro", and li!itation is not the equivalent of
confiscation. >nder pretense of regulating fares and freight the state can not require a railroad
corporation to carr" persons or propert" ithout reard. Nor can it do that hich in la a!ounts to a
ta)ing of private propert" for public use ithout &ust co!pensation, or ithout due process of la.
?Chicago etc. R. Co. vs. Minnesota, -=3 >.'., 3-6+ Minneapolis Eastern R. Co. vs. Minnesota, -=3
>.'., 35@.A But the &udiciar" ought not to interfere ith regulations established and palpabl"
unreasonable as to !a)e their enforce!ent equivalent to the ta)ing of propert" for public use
ithout such co!pensation as under all the circu!stances is &ust both to the oner and to the
public, that is, &udicial interference should never occur unless the case presents, clearl" and be"ond
all doubt, such a flagrant attac) upon the rights of propert" under the guise of regulations as to
co!pel the court to sa" that the regulation in question ill have the effect to den" &ust co!pensation
for private propert" ta)en for the public use. ?Chicago etc. R. Co. vs. 9ell!an, -3= >.'., ==/+
'!"th vs. A!es, -5/ >.'., 355, 403+ <enderson Bridge Co. vs.<enderson Cit", -@= >.'., 4/0, 5-3.A
>nder the co!!on la of England it as earl" recogni(ed that co!!on carriers oe to the public
the dut" of carr"ing indifferentl" for all ho !a" e!plo" the!, and in the order in hich application is
!ade, and ithout discri!ination as to ter!s. True, the" ere alloed to restrict their business so as
to e%clude particular classes of goods, but as to the )inds of propert" hich the carrier as in the
habit of carr"ing in the prosecution of his business he as bound to serve all custo!ers ali)e
?'tate vs. Cincinnati etc. R. Co., 3@ Chio 't., -=., -=3, -=6+ Bouisville etc. R". Co. vs. Hue(on Cit"
Coal Co., -= G". B. Rep., 6=0A+ and it is to be observed in passing that these co!!on la rules are
the!selves regulations controlling, li!iting and prescribing the conditions under hich co!!on
carriers ere per!itted to conduct their business. ?Munn vs. #llinois, /3 >. '., --=, -==.A
#t as found, in the course of ti!e, that the correction of abuses hich had gron up ith the
enor!ousl" increasing business of co!!on carriers necessitated the adoption of statutor"
regulations controlling the business of co!!on carriers, and i!posing severe and drastic penalties
for violations of their ter!s. #n England, the Raila" Clauses Consolidation Act as enacted in -634,
the Raila" and Canal Traffic Act in -643, and since the passage of those Acts !uch additional
legislation has been adopted tending to li!it and control the conduct of their business b" co!!on
carriers. #n the >nited 'tates, the business of co!!on carriers has been sub&ected to a great variet"
of statutor" regulations. A!ong others Congress enacted $The #nterstate Co!!erce Act$ ?-66@A and
its a!end!ents, and the El)ins Act as a!ended ?-/.5A+ and !ost if not all of the 'tates of the >nion
have adopted si!ilar legislation regulating the business of co!!on carriers ithin their respective
&urisdictions. >nending litigation has arisen under these statutes and their a!end!ents, but nohere
has the right of the state to prescribe &ust and reasonable regulations controlling and li!iting the
conduct of the business of co!!on carriers in the public interest and for the general elfare been
successfull" challenged, though of course there has been ide divergence of opinion as to the
reasonableness, the validit" and legalit" of !an" of the regulations actuall" adopted.
The poer of the Philippine legislator to prohibit and to penali(e all and an" unnecessar" or
unreasonable discri!inations b" co!!on carriers !a" be !aintained upon the sa!e reasoning
hich &ustified the enact!ent b" the Parlia!ent of England and the Congress of the >nited 'tates of
the above !entioned statutes prohibiting and penali(ing the granting of certain preferences and
discri!inations in those countries. As e have said before, e find nothing confiscator" or
unreasonable in the conditions i!posed in the Philippine statute upon the business of co!!on
carriers. Correctl" construed the" do not force hi! to engage in an" business his ill or to !a)e use
of his facilities in a !anner or for a purpose for hich the" are not reasonabl" adapted. #t is onl"
hen he offers his facilities as a co!!on carrier to the public for hire, that the statute steps in and
prescribes that he !ust treat all ali)e, that he !a" not pic) and choose hich custo!er he ill serve,
and, specificall", that he shall not !a)e an" undue or unreasonable preferences or discri!inations
hatsoever to the pre&udice not onl" of an" person or localit" but also of an" particular )ind of traffic.
The legislator having enacted a regulation prohibiting co!!on carriers fro! giving unnecessar" or
unreasonable preferences or advantages to an" particular )ind of traffic or sub&ecting an" particular
)ind of traffic to an" undue or unreasonable pre&udice or discri!ination hatsoever, it is clear that
hatever !a" have been the rule at the co!!on la, co!!on carriers in this &urisdiction cannot
lafull" decline to accept a particular class of goods for carriage, to the pre&udice of the traffic in
those goods, unless it appears that for so!e sufficient reason the discri!ination against the traffic in
such goods is reasonable and necessar". Mere hi! or pre&udice ill not suffice. The grounds for
the discri!ination !ust be substantial ones, such as ill &ustif" the courts in holding the
discri!ination to have been reasonable and necessar" under all circu!stances of the case.
The pra"er of the petition in the case at bar cannot be granted unless e hold that the refusal of the
defendant stea!ship co!pan" to accept for carriage on an" of its vessels $d"na!ite, gunpoder or
other e%plosives$ ould in no instance involve a violation of the provisions of this statute. There can
be little doubt, hoever, that cases !a" and ill arise herein the refusal of a vessel $engaged in
the coastise trade of the Philippine #slands as a co!!on carrier$ to accept such e%plosives for
carriage ould sub&ect so!e person, co!pan", fir! or corporation, or localit", or particular )ind of
traffic to a certain pre&udice or discri!ination. #ndeed it cannot be doubted that the refusal of a
$stea!ship co!pan", the oner of a large nu!ber of vessels$ engaged in that trade to receive for
carriage an" such e%plosives on an" of its vessels ould sub&ect the traffic in such e%plosives to a
!anifest pre&udice and discri!ination. The onl" question to be deter!ined therefore is hether such
pre&udice or discri!ination !ight in an" case prove to be undue, unnecessar" or unreasonable.
This of course is, in each case, a question of fact, and e are of the opinion that the facts alleged in
the co!plaint are not sufficient to sustain a finding in favor of the contentions of the petitioner. #t is
not alleged in the co!plaint that $d"na!ite, gunpoder and other e%plosives$ can in no event be
transported ith reasonable safet" on board stea! vessels engaged in the business of co!!on
carriers. #t is not alleged that all, or indeed an" of the defendant stea!ship co!pan"7s vessels are
unsuited for the carriage of such e%plosives. #t is not alleged that the nature of the business in hich
the stea!ship co!pan" is engaged is such as to preclude a finding that a refusal to accept such
e%plosives on an" of its vessels ould sub&ect the traffic in such e%plosives to an undue and
unreasonable pre&udice and discri!ination.
Plaintiff7s contention in this regard is as follos8
#n the present case, the respondent co!pan" has e%pressl" and publicl" renounced the
carriage of e%plosives, and e%pressl" e%cluded the sa!e ter!s fro! the business it
conducts. This in itself ere sufficient, even though such e%clusion of e%plosives ere based
on no other ground than the !ere hi!, caprice or personal scruple of the carrier. #t is
unnecessar", hoever, to indulge in acade!ic discussion of a !oot question, for the
decision not a carr" e%plosives rests on substantial grounds hich are self1evident.
9e thin) hoever that the anser to the question hether such a refusal to carr" e%plosives
involves an unnecessar" or unreasonable preference or advantage to an" person, localit" or
particular )ind of traffic or sub&ects an" person, localit" or particular to traffic to an undue or
unreasonable pre&udice and discri!ination is b" no !eans $self1evident,$ and that it is a question of
fact to be deter!ined b" the particular circu!stances of each case.
The ords $d"na!ite, poder or other e%plosives$ are broad enough to include !atches, and other
articles of li)e nature, and !a" fairl" be held to include also )erosene oil, gasoline and si!ilar
products of a highl" infla!!able and e%plosive character. Man" of these articles of !erchandise are
in the nature of necessities in an" countr" open to !odern progress and advance!ent. 9e are not
full" advised as to the !ethods of transportation b" hich the" are !ade co!!erciall" available
throughout the orld, but certain it is that d"na!ite, gunpoder, !atches, )erosene oil and gasoline
are transported on !an" vessels sailing the high seas. #ndeed it is a !atter of co!!on )noledge
that co!!on carriers throughout the orld transport enor!ous quantities of these e%plosives, on
both land and sea, and there can be little doubt that a general refusal of the co!!on carriers in an"
countr" to accept such e%plosives for carriage ould involve !an" persons, fir!s and enterprises in
utter ruin, and ould disastrousl" affect the interests of the public and the general elfare of the
co!!unit".
#t ould be going to far to sa" that a refusal b" a stea! vessel engaged in the business of
transporting general !erchandise as a co!!on carrier to accept for carriage a ship!ent of
!atches, solel" on the ground of the dangers incident to the e%plosive qualit" of this class of
!erchandise, ould not sub&ect the traffic in !atches to an unnecessar", undue or unreasonable
pre&udice and discri!ination ithout proof that for so!e special reason the particular vessel is not
fitted to carr" articles of that nature. There !a" be and doubtless are so!e vessels engaged in
business as co!!on carriers of !erchandise, hich for lac) of suitable dec) space or storage
roo!s !ight be &ustified in declining to carr" )erosene oil, gasoline, and si!ilar products, even hen
offered for carriage securel" pac)ed in cases+ and fe vessels are equipped to transport those
products in bul). But in an" case of a refusal to carr" such products hich ould sub&ect an" person,
localit" or the traffic in such products ould be necessar" to hear evidence before !a)ing an
affir!ative finding that such pre&udice or discri!ination as or as not unnecessar", undue or
unreasonable. The !a)ing of such a finding ould involve a consideration of the suitabilit" of the
vessel for the transportation of such products + the reasonable possibilit" of danger or disaster
resulting fro! their transportation in the for! and under the conditions in hich the" are offered for
carriage+ the general nature of the business done b" the carrier and, in a ord, all the attendant
circu!stances hich !ight affect the question of the reasonable necessit" for the refusal b" the
carrier to underta)e the transportation of this class of !erchandise.
But it is contended that hatever the rule !a" be as to other e%plosives, the e%ceptional poer and
violence of d"na!ite and gunpoder in e%plosion ill ala"s furnish the oner of a vessel ith a
reasonable e%cuse for his failure or refusal to accept the! for carriage or to carr" the! on board his
boat. 9e thin) hoever that even as to d"na!ite and gunpoder e ould not be &ustified in !a)ing
such a holding unaided b" evidence sustaining the proposition that these articles can never be
carried ith reasonable safet" on an" vessel engaged in the business of a co!!on carrier. #t is said
that d"na!ite is so erratic an uncontrollable in its action that it is i!possible to assert that it can be
handled ith safet" in an" given case. Cn the other hand it is contended that hile this !a" be true
of so!e )inds of d"na!ite, it is a fact that d"na!ite can be and is !anufactured so as to eli!inate
an" real danger fro! e%plosion during transportation. These are of course questions of fact upon
hich e are not qualified to pass &udg!ent ithout the assistance of e%pert itnesses ho have
!ade special studies as to the che!ical co!position and reactions of the different )inds of
d"na!ite, or attained a thorough )noledge of its properties as a result of ide e%perience in its
!anufacture and transportation.
As e construe the Philippine statute, the !ere fact that violent and destructive e%plosions can be
obtained b" the use of d"na!ite under certain conditions ould not be sufficient in itself to &ustif" the
refusal of a vessel, dul" licensed as a co!!on carrier of !erchandise, to accept it for carriage, if it
can be proven that in the condition in hich it is offered for carriage there is no real danger to the
carrier, nor reasonable ground to fear that his vessel or those on board his vessel ill be e%posed to
unnecessar" and unreasonable ris) in transporting it, having in !ind the nature of his business as a
co!!on carrier engaged in the coastise trade in the Philippine #slands, and his dut" as a servant
of the public engaged in a public e!plo"!ent. 'o also, if b" the e%ercise of due diligence and the
ta)ing of unreasonable precautions the danger of e%plosions can be practicall" eli!inated, the
carrier ould not be &ustified in sub&ecting the traffic in this co!!odit" to pre&udice or discri!ination
b" proof that there ould be a possibilit" of danger fro! e%plosion hen no such precautions are
ta)en.
The traffic in d"na!ite, gunpoder and other e%plosives is vitall" essential to the !aterial and
general elfare of the people of these #slands. #f d"na!ite, gunpoder and other e%plosives are to
continue in general use throughout the Philippines, the" !ust be transported b" ater fro! port to
port in the various islands hich !a)e up the Archipelago. 9e are satisfied therefore that the refusal
b" a particular vessel, engaged as a co!!on carrier of !erchandise in the coastise trade of the
Philippine #slands, to accept an" or all of these e%plosives for carriage ould constitute a violation of
the prohibitions against discri!inations penali(ed under the statute, unless it can be shon b"
affir!ative evidence that there is so real and substantial a danger of disaster necessaril" involved in
the carriage of an" or all of these articles of !erchandise as to render such refusal a due or a
necessar" or a reasonable e%ercise of prudence and discretion on the part of the shiponer.
The co!plaint in the case at bar lac)ing the necessar" allegations under this ruling, the de!urrer
!ust be sustained on the ground that the facts alleged do not constitute a cause of action.
A nu!ber of interesting questions of procedure are raised and discussed in the briefs of counsel. As
to all of these questions e e%pressl" reserve our opinion, believing as e do that in sustaining the
de!urrer on the grounds indicated in this opinion e are able to dispose of the real issue involved in
the proceedings ithout entering upon the discussion of the nice questions hich it !ight have been
necessar" to pass upon had it appeared that the facts alleged in the co!plaint constitute a cause of
action.
9e thin), hoever, that e should not finall" dispose of the case ithout indicating that since the
institution of these proceedings the enact!ent of Acts No. 0=.@ and No. 0=50 ?creating a Board of
Public >tilit" Co!!issioners and for other purposesA !a" have !ateriall" !odified the right to
institute and !aintain such proceedings in this &urisdiction. But the de!urrer having been for!alll"
sub!itted for &udg!ent before the enact!ent of these statutes, counsel have not been heard in this
connection. 9e therefore refrain fro! an" co!!ent upon an" questions hich !ight be raised as to
hether or not there !a" be another adequate and appropriate re!ed" for the alleged rong set
forth in the co!plaint. Cur disposition of the question raised b" the de!urrer renders that
unnecessar" at this ti!e, though it !a" not be i!proper to observe that a careful e%a!ination of
those acts confir!s us in the holding upon hich e base our ruling on this de!urrer, that is to sa"
$That hatever !a" have been the rule at the co!!on la, co!!on carriers in this &urisdiction
cannot lafull" decline to accept a particular class of goods for carriage, to the pre&udice of the traffic
in those goods, unless it appears that for so!e sufficient reason the discri!ination against the traffic
in such goods is reasonable and necessar". Mere pre&udice or hi! ill not suffice. The grounds of
the discri!ination !ust be substantial ones, such as ill &ustif" the courts in holding the
discri!ination to have been reasonable and necessar" under all the circu!stances of the case.$
>nless an a!ended co!plaint be filed in the !eanti!e, let &udg!ent be entered ten da"s hereafter
sustaining the de!urrer and dis!issing the co!plaint ith costs against the co!plainant, and tent"
da"s thereafter let the record be filed in the archives of original actions in this court. 'o ordered.
!rellano, C."., and #rent, "., concur.
#orres and "ohnson, ""., concur in the result.