Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6583

February 16, 1912

RAMON FABIE, ET AL., plaintiffs-appellees,

vs.
THE CITY OF MANILA, defendant-appellant.
Acting Attorney-General Harvey for appellant.
Sanz & Opisso for appellees.
CARSON, J.:
Ordinance No. 124 of the city of Manila, enacted September 21, 1909, is an amendment of section 107 of the Revised
Ordinances of the city of Manila, enacted June 13, 1908 relating to the issuance of permits for the erection of buildings.
Section 107 so amended reads as follows:
SEC. 107. Issuance of permits. When the application plans, and specifications conform to the requirements of
this title and of title eleven hereof, the engineer shall issue a permit for the erection of the building and shall
approve such plans and specifications in writing: Provided, That the building shall about or face upon a public
street or alley or on a private street or alley which has been officially approved. One copy of all approved plans
and specifications shall be returned to the owner or his agent and one copy shall be retained by the engineer.
The appellees are the owners in common of a large tract of land which forms a part of the estate known as theHacienda
de Santa Ana de Sapa and which is inclosed between Calle Herran of the District of Paco and an estero known as Tripa
de Gallina, and lying within the corporate limits of the city of Manila.
On the 26th day of November, 1909, the plaintiffs and appellees sought to obtain from the city of Manila a building permit
authorizing the construction of a small nipa house upon the property in question. It was claimed that the purpose of the
building was to serve as a guard house in which watchmen might be stationed in order to prevent the carrying away
of zacate from the premises. The permit was denied by the city authorities on the ground that the site of the proposed
building did not conform to the requirements of section 107 of the Revised Ordinances of the city of Manila, as amended
by Ordinance No. 124, which provides: "That the building shall abut or face upon a public street or alley or on a private
street or alley which has been officially approved." It is the contention of the appellees herein that this provision is
unconstitutional and in violation of the fundamental rights of the property owners of the city of Manila as guaranteed by the
established laws of these Islands and by the Constitution of the United States, in that it constitutes an invasion of their
property rights without due process of law. The lower court found in favor of appellees and declared the ordinance null and
void, at least to the extent of the above-cited provision. From this judgment this appeal has been duly perfected. The only
question submitted for the adjudication on this appeal is the constitutionality of the ordinance, and to this question alone
was direct our attention in this opinion.
The appellant, the city of Manila, is a duly organized municipal corporation having full power and authority to enact lawful
ordinances for the protection and security of the lives, health and property of its citizens. Counsel for appellant insists that
the ordinance in question is a valid exercise of the police power of the city, in that its sold purpose and aim is to effect
these ends by affording better sanitary regulations as well as increased facilities for protection to property from loss by
fire.
It is undoubtedly on of the fundamental duties of the city of Manila to make all reasonable regulations looking to the
preservation and security of the general health of the community, and the protection of life and property from loss or
destruction by fire. All such regulations have their sanction in what is termed the police power. Much difficulty has been
experienced by the courts and text writers in the attempt to define the police power of the state, and to set forth its precise
limitations. In fact it has been said to be, from its very nature incapable of any exact definition or limitation. Mr. Thompson
in his exhaustive treatise on Corporations summarizes as follows the conclusions of the leading adjudicated cases and
authorities touching this subject. He says:
Its business is to regulate and protect the security of social order, the life and health of the citizen, the comfort of
an existence in thickly populated communities, the enjoyment of private and social life, and the beneficial use of
property.
And again the same author says:
However courts may differ as to the extent and boundaries of this power, and however difficult it may be of precise
definition, there is a general agreement that it extends to the protection of the lives, health and property of the
citizens, and to the preservation of good order and the public morals. In the absence of any constitutional
prohibition, a legislature may lawfully prevent all things hurtful to the comfort, safety, and welfare of society though

the prohibition invades the right of liberty or property of an individual. (Thompson on Corporations, 2d ed., vol. 1,
sec. 421.)
In the case of U. S. vs. Toribio (15 Phil. Rep., 92) we had occasion to discuss at length the police powers of the State, and
in the opinion in that case will be found a number of quotations from textbook and judicial authority, developing and
exemplifying the principles on which the exercise of the police powers of the State have been recognized and applied. But
for the purpose of this opinion the foregoing citations from Thompson's treatise on Corporations sets forth the doctrine
quite satisfactorily, and relying on the reasoning of the opinion in the case of U. S. vs. Toribio (15 Phil. Rep., 92), it is not
necessary to enter at this time into an extended discussion of the principles on which the doctrine rest.
In accord with the rule laid down in the case of Lawton vs. Steele (152 U. S., 132-134), quoted at some length in the
opinion in the case of U. S. vs. Toribio, to justify the State in the exercise of it police powers on 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 interest,
arbitrary interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.
In other words, is determination as to what is a proper exercise of its police powers is not conclusive, but is
subject to the supervision of the court.
It is very clear that the ordinance, if it be held to be reasonable, prescribes a rule in the interest of the public of the city of
Manila generally, as distinguished from the interest of individuals or of a particular class. In determining its validity,
therefore, the only questions which need be considered, are whether its provisions are or are not reasonably necessary
for the accomplishment of its purposes, and whether they are or are not unduly oppressive upon individuals.
The purpose and object of the ordinance is avowedly and manifestly to protect and secure the health, lives and property
of the citizens of Manila against the ravages of fire and disease. The provision that denies permits for the construction of
buildings within the city limits unless they "abut or face upon a public street or alley or on a private street or alley which
has been officially approved," is in our opinion reasonably necessary to secure the end in view.
In the first place it prevents the huddling and crowding of buildings in irregular masses on single or adjoining tracts of land,
and secures an air space on at least one side of each new residence or other building constructed in the city. The menace
to the health and safety of the residents of Manila resulting from the crowding of nipa shakes, and even more substantial
buildings upon small tracts of land is a matter of common knowledge; and in a community, exposed as this city is to
destructive conflagrations and epidemic diseases, a legislative measures which tends to prevent the repitition of such
unfortunate conditions should not be judicially declared to be unreasonable, in the absence of the most compelling
reasons.
In the second place, the provisions of the ordinance in question manifestly promote the safety and security of the citizens
of Manila and of their property against fire and disease, especially epidemic disease, by securing the easy and unimpeded
approach to all new buildings: First, of fire engines, and other apparatus for fighting fire; second, of ambulances, refuse
wagons, and apparatus used by the sanitary department in caring for the sanitation of the city; third, of fire and health
inspectors generally; of employees of the fire department and others engaged in fighting fire; and of employees of the
Bureau of Health engaged in their duty as guardians of the sanitary conditions and general health of the city.
There can be no question as to the intent an purpose of the provision of the ordinance under discussion. It is manifestly
intended to subserve the public health and safety of the citizens of Manila generally and was not conceived in favor of any
class or of particular individuals. Those charged with the public welfare and safety of the city deemed the enactment of the
ordinance necessary to secure these purposes, and it cannot be doubted that if its enactment was reasonably necessary
to that end it was and is a due and proper exercise of the police power. We are of opinion that the enforcement of its
provisions cannot fail to redound to the public good, and that it should be sustained on the principle that "the welfare of the
people is the highest law" (salus populi suprema est lex). Indeed having in mind the controlling public necessity which
demands the adoption of proper measures to secure the ends sought to be attained by the enactment of this provisions of
the ordinances; and the large discretion necessarily vested in the legislative authority to determine not only what the
interests of the public require, but what measures are necessary for the protection of such interest; we are satisfied that
we would not be justified in an attempt to restrict or control the exercise of that discretion even if the "reasonable
necessity" for its exercise in the particular form actually adopted were much less apparent than it is in this case.
That the ordinance is not "unduly oppressive upon individuals" becomes very clear when the nature and extent of the
limitations imposed by its provisions upon the use of private property are considered with relation to the public interests,
the public health and safety, which the ordinance seeks to secure. Discussing this question in his opinion to the Municipal
Board relative to the validity and constitutionality of this ordinance, the Attorney-General well said: "Under the ordinance
before us rights in private property are not arbitrary regulated. No person desiring to erect a building is prohibited from
doing so. He can, if necessary, lay out a private street or the city can extend the public street system. The property may
thus be substantially increased in value rather than the reverse, In brief, the owner's right to the enjoyment of his property

is only interfered with in so far as it is necessary to protect the rights of others."

To this we may add the following citation from the opinion in the case of Commonwelth vs. Alger (7 Cush., 53, 84) which
to our minds well states the principle in this regard on which the validity of the of the ordinance in question must be
sustained:
We think it is a 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 it shall not be 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 restraints and regulations established by law, as the legislature,
under the governing and controlling power vested in them by the constitution, may think necessary and expedient.
We conclude that the proviso of the ordinance in question directing: "That the building shall abut or face upon a public
street or alley which has been officially approved," is valid, and that the judgment of the lower court should be reversed,
without special condemnation of costs. So ordered.
Torres, Johnson, Moreland and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10255

August 6, 1915

THE UNITED STATES, plaintiff-appellant,

vs.
SILVESTRE POMPEYA, defendant-appellee.
Office of the Solicitor-General Corpus for appellant.
Lawrence, Ross and Block for appellee.
JOHNSON, J.:
On the 1st day of June, 1914, the acting prosecuting attorney of the Province of Iloilo presented the following complaint in
the Court of First Instance of said province: "The undersigned fiscal charges Silvestre Pompeya with violation of the
municipal ordinance of Iloilo, on the subject of patrol duty, Executive Order No. 1, series of 1914, based on section
40 (m) of the Municipal Code, in the following manner:
"That on or about March 20 of the current year, 1914, in the jurisdiction of the municipality of Iloilo, Province of Iloilo,
Philippine Islands, the said accused did willfully, illegally, and criminally and without justifiable motive fail to render service
on patrol duty; an act performed in violation of the law.
"That for this violation the said accused was sentenced by the justice of the peace of Iloilo to a fine of P2 and payment of
the costs of the trial, from which judgment said accused appealed to the Court of First Instance.".
Upon said complaint the defendant was duly arraigned .Upon arraignment he presented the following demurrer: "The
defendant, through his undersigned attorneys, demurs to the complaint filed in this case on the ground that the acts
charged therein do not constitute a crime.".
In support of said demurrer, the defendant presented the following argument: "The municipal ordinance alleged to be
violated is unconstitutional because it is repugnant to the Organic Act of the Philippines, which guarantees the liberty of
the citizens.".
Upon issues thus presented, the Honorable J. s .Powell, judge, on he 22nd day of August, 1914, after hearing the
arguments of the respective parties, sustained said demurrer and ordered the dismissal of said complaint and the
cancellation of the bond theretofore given, with costs de oficio.
From the order sustaining the demurrer of the lower court, the prosecuting attorney appealed to this court.
It appears from the demurrer that the defendant claims that the facts stated in the complaint are not sufficient to constitute
a cause of action. In his argument in support of said demurrer it appears that the real basis of said demurrer was the fact
that the ordinance upon which said complaint was based was unconstitutional, for the reason that it was contrary to the
provisions of the Philippine Bill which guarantees liberty to the citizens of the Philippine Islands.
In this court the only question argued by the Attorney-General is whether or not the ordinance upon which said complaint
was based (paragraph "m" of section 40 of the Municipal Code) which was adopted in accordance with the provisions of

Act No. 1309 is constitutional. Section 40 of Act No. 82 (the Municipal Code) relates to the power of municipal councils.
Act No. 1309 amends said section (section 40, paragraph "m") which reads as follows: "(m) With the approval of the
provincial governor, when a province or municipality is infested with ladrones or outlaws (the municipal council is
empowered):
"1. To authorize the municipal president to require able-bodied male residents of the municipality, between the ages of
eighteen and fifty years, to assist, for a period not exceeding five days in any one month, in apprehending ladrones,
robbers, and other lawbreakers and suspicious characters, and to act as patrols for the protection of the municipality, not
exceeding one day in each week. The failure, refusal, or neglect of any such able-bodied man to render promptly the
service thus required shall be punishable by a fine not exceeding one hundred pesos or by imprisonment for not more
than three months, or by both such fine and imprisonment, in the discretion of the court: Provided, That nothing herein
contained shall authorize the municipal president to require such service of officers or men of the Army of Navy of the
United States, civil employees of the United States Government, officers and employees of the Insular Government, or the
officers or servants of companies or individuals engaged in the business of common carriers on sea or land, or priests,
ministers of the gospel, physicians, practicantes, druggists or practicantes de farmacia, actually engaged in business, or
lawyers when actually engaged in court proceedings.".
Said Act No. 1309 contains some other provisions which are not important in the consideration of the present case.
The question which we have to consider is whether or not the facts stated in the complaint are sufficient to show (a) a
cause of action under the said law; and (b) whether or not said law is in violation of the provisions of the Philippine Bill in
depriving citizens of their rights therein guaranteed.
We deem it advisable to consider the second question first.
It becomes important to ascertain the real purpose of said Act (No. 1309) in order to know whether it covers a subject
upon which the United States Philippine Commission could legislate. A reading of said Act discloses (1) that it is an
amendment of the general law (Act No. 82) for the organization of municipal government; (2) that it is amendment of
section 40 of said Act No. 82, by adding thereto paragraph "m;" (3) that said section 40 enumerates some of the powers
conferred upon the municipal council; (4) that said amendment confers upon the council additional powers. The
amendment empowers the municipal council, by ordinance, to authorize the president: (a) To require able-bodied male
residents of the municipality, between the ages of 18 and 55 [50], to assist, for a period not exceeding five days in any
month, in apprehending ladrones, robbers, and other lawbreakers and suspicious characters, and to act as patrols for the
protection of the municipality, not exceeding one day each week; (b) To require each householder to report certain facts,
enumerated in said amendment.
The specific purpose of said amendment is to require each able-bodied male resident of the municipality, between the
ages of 18 and 55 [50], as well as each householder when so required by the president, to assist in the maintenance of
peace and good order in the community, by apprehending ladrones, etc., as well as by giving information of the existence
of such persons in the locality. The amendment contains a punishment for those who may be called upon for such service,
and who refuse to render the same.
Is there anything in the law, organic or otherwise, in force in the Philippine Islands, which prohibits the central
Government, or any governmental entity connected therewith, from adopting or enacting rules and regulations for the
maintenance of peace and good government? May not the people be called upon, when necessary, to assist, in any
reasonable way, to rid the state and each community thereof, of disturbing elements? Do not individuals whose rights are
protected by the Government, owe some duty to such, in protecting it against lawbreakers, and the disturbers of the quiet
and peace? Are the sacred rights of the individual violated when he is called upon to render assistance for the protection
of his protector, the Government, whether it be the local or general government? Does the protection of the individual, the
home, and the family, in civilized communities, under established government, depend solely and alone upon the
individual? Does not the individual owe something to his neighbor, in return for the protection which the law afford him
against encroachment upon his rights, by those who might be inclined so to do? To answer these questions in the
negative would, we believe, admit that the individual, in organized governments, in civilized society, where men are
governed by law, does not enjoy the protection afforded to the individual by men in their primitive relations.
If tradition may be relied upon, the primitive man, living in his tribal relations before the days of constitutions and states,
enjoyed the security and assurance of assistance from his fellows when his quiet and peace were violated
by malhechores. Even under the feudal system, a system of land holdings by the Teutonic nations of Europe in the
eleventh, twelfth, and thirteenth centuries, the feudal lord exercised the right to call upon all his vassals of a certain age to
assist in the protection of their individual and collective rights. (Book 2, Cooley's Blackstone's Commentaries, 44; 3 Kent's
Commentaries, 487; Hall, Middle Ages; Maine, Ancient Law; Guizot, history of Civilization; Stubbs' Constitutional History
of England; Chisholm vs. Georgia, 2 Dall .(U. S.), 419; DePeyster vs.Michael, 6 N. Y., 467.) Each vassal was obliged to
render individual assistance in return for the protection afforded by all.
The feudal system was carried in to Britain by William the Conqueror in the year 1085 with all of is ancient customs and
usages.

we find in the days of the "hundreds," which meant a division of the state occupied by one hundred free men, the
individual was liable to render service for the protection of all. (Book 3, Cooley's Blackstone's Commentaries, 160, 245,
293, 411.) In these "hundreds" the individual "hundredor," in case of the commission of a crime within the county or by one
of the "hundredors," as against another "hundred," was obliged to join the "hue and cry" (hutesium et clamor) in the
pursuit of the felon. This purely customary ancient obligation was later made obligatory by statute. (Book 4, Cooley's
Blackstone's Commentaries, 294; 3 Edward I., Chapter 9; 4 Edward I., Chapter 2; 13 Edward I., Chapters 1 and 4.).
Later the statute provided and directed: "That from thenceforth every county shall be so well kept, that, immediately upon
robberies and feloniously committed, fresh suit shall be made from town (pueblo) to town, and from county to county; and
that "hue and cry" shall be raised upon the felons, and they keep the town (pueblo) shall follow with "hue and cry," with all
the town (pueblo), and the towns (pueblos) near; and so "hue and cry" shall be made from town (pueblo) to town, until
they be taken and delivered to the sheriff.".
Said statue further provided that in case the "hundred" failed to join the "hue and cry" that it should be liable for the
damages done by the malhechores. Later, by statue (27th Elizabeth, chapter 13) it was provided that no "hue and cry"
would be sufficient unless it was made with both horsemen and footmen. The "hue and cry" might be raised by a justice of
the peace, or by any peace officer, or by any private person who knew of the commission of the crime.
This ancient obligation of the individual to assist in the protection of the peace and good order of his community is still
recognized in all well-organized governments in the "posse comitatus" (power of the county, poder del condado). (Book 1
Cooley's Blackstone's Commentaries, 343; Book 4, 122.) Under this power, those persons in the state, county, or town
who were charged with the maintenance of peace and good order were bound, ex oficio, to pursue and to take all persons
who had violated the law. For that purpose they might command all the male inhabitants of a certain age to assist them.
This power is called "posse comitatus" (power of the county). This was a right well recognized at common law. Act No.
1309 is a statutory recognition of such common-law right. Said Act attempts simply to designate the cases and the method
when and by which the people of the town (pueblo) may be called upon to render assistance for the protection of the
public and the preservation of peace and order. It is an exercise of the police power of the state. Is there anything in the
organic or statutory law prohibiting the United States Philippine Commission from adopting the provisions contained in
said Act No. 1309?
While the statement has its exceptions, we believe, generally speaking, that the United States Commission, and now the
Philippine Legislature, may legislate and adopt laws upon all subjects not expressly prohibited by the Organic Law (Act of
congress of July 1, 1902) or expressly reserved to Congress. Congress did not attempt to say to the Philippine Legislature
what laws it might adopt. Congress contended itself by expressly indicating what laws the Legislature should not adopt,
with the requirement that all laws adopted should be reported to it, and with the implied reservation of the right to nullify
such laws as might not meet with its approval.
Considering the Organic Act (Act of Congress of July 1, 1902) as the real constitution of the United States Government in
the Philippine Islands, and its inhibitions upon the power of the Legislature, we believe an analogy may be drawn relating
to the difference between the Constitution of the United States and the constitution of the different States, with reference
to what laws may be adopted by the different States. While the statement needs much explanation, the general rule is that
Congress has authority to legislate only upon the questions expressly stated in the Constitution of the United States, while
the state legislature may legislate upon all questions, not expressly conferred upon Congress, nor prohibited in its
constitution. In other words, an examination of the Constitution of the United States discloses the subject matter upon
which Congress may legislate, while examination of the constitutions of the different States must be made for the purpose
of ascertaining upon what subjects the state legislature can not legislate. Stating the rule in another way the
Constitution of the United States permits Congress to legislate upon the following subjects; the constitutions of the States
prohibit the state legislature from legislating upon the following subjects. Generally, then, the legislature of a State any
adopt laws upon any question not expressly delegated to Congress by the Constitution of the United States or prohibited
by the constitution of the particular State.
We think that is the rule which should be applied to the Philippine Legislature. The Philippine Legislature has power to
legislate upon all subjects affecting the people of the Philippine Islands which has not been delegated to Congress or
expressly prohibited by said Organic Act. (Gaspar vs. Molina, 5 Phil. Rep., 197; U.S., vs. Bull, 15 Phil. Rep., 7.)
The right or power conferred upon the municipalities by Act No. 1309 falls within the police power of the state
(U.S .vs. Ling Su Fan, 10 Phil. Rep., 104.) Police power of the state has been variously defined. It has been defined as
the power of the government, inherent in every sovereign, and cannot be limited; (License Cases, 5 How. (U.S.), 483).
The power vested in the legislature to make such laws as they shall judge to be for the good of the state and its subjects.
(Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 85). The power to govern men and things, extending to the protection of
the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state.
(Thorpe vs. Rutland, etc., Co., 27 Vt., 140, 149.) The authority to establish such rules and regulations for the conduct of all
persons as may be conducive to the public interest. (People vs. Budd., 117 N.Y., 1, 14; U.S., vs. Ling Su Fan, supra.)
Blackstone, in his valuable commentaries on the common laws, defines police power as "the defenses, regulations, and
domestic order of the country, whereby the inhabitants of a state, like members of a well-governed family, are bound to

conform their general behaviour to the rules of propriety, good neighborhood, and good manners, and to be decent,
industrious, and inoffensive in their respective stations." (4 Blackstone's Co., 162.)
The police power of the state may be said to embrace the whole system of internal regulation, by which the state seeks
not only to preserve public order and to prevent offenses against the state, but also to establish, for the intercourse of
citizen with citizen, those rules of good manners and good neighborhood, which are calculated to prevent a conflict of
rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent, with a like
enjoyment of the rights of others. The police power of the state includes not only the public health and safety, but also the
public welfare, protection against impositions, and generally the public's best best interest. It so extensive and all
pervading, that the courts refuse to lay down a general rule defining it, but decide each specific case on its merits.
(Harding vs. People, 32 L.R.A., 445.)
The police power of the state has been exercised in controlling and regulating private business, even to the extent of the
destruction of the property of private persons, when the use of such property became a nuisance to the public health and
convenience. (Slaughter House Cases, 16 Wal (U.S.), 36 Minnesota vs. Barber, 136 U.S., 313; Powell vs. Pennsylvania,
127 U.S., 678; Walling vs. People, 166 U.S., 446; U.S. vs. Ling Su Fan, 10 Phil. Rep., 104.)
We are of the opinion, and so hold, that the power exercised under the provisions of Act No. 1309 falls within the police
power of the state and that the state was fully authorized and justified in conferring the same upon the municipalities of
the Philippine Islands and that, therefore, the provisions of said Act are constitutional and not in violation nor in derogation
of the rights of the persons affected thereby.
With reference to the first question presented by the appeal, relating to the sufficiency of the complaint, it will be noted that
Act No. 1309 authorized the municipal governments to establish ordinances requiring (a) all able bodied male residents,
between the the ages of 18 and 55 [50], and (b) all householders, under certain conditions, to do certain things.
It will also be noted that the law authorizing the president of the municipality to call upon persons, imposes certain
conditions as prerequisites: (1) The person called upon to render such services must be an able-bodied male resident of
the municipality; (2) he must be between the ages of 18 and 55 [50], and (3) certain conditions must exist requiring the
services of such persons.
It will not contended that a nonresident of the municipality would be liable for his refusal to obey the call of the president;
neither can it be logically contended that one under the age of 18 or over the age of 55 [50] would incur the penalty of the
law by his refusal to obey the command of the president. Moreover, the persons liable for the service mentioned in the law
cannot be called upon at the mere whim or caprice of the president. There must be some just and reasonable ground, at
least sufficient in the mind of a reasonable man, before the president can call upon the the persons for the service
mentioned in the law. The law does not apply to all persons. The law does not apply to every condition. The law applies to
special persons and special conditions.
A complaint based upon such a law, in order to be free from objection under a demurrer, must show that the person
charged belongs to the class of persons to which the law is applicable. For example, under the Opium Law, certain
persons are punishable criminally for having opium in their possession. All possessors of opium are not liable under the
law. A complaint, therefore, charging a person with the possession of opium, without alleging that he did not belong to the
class which are permitted to possess it, would be objectionable under a demurrer, because all persons are not liable. The
complaint must show that the one charged wit the possession of the opium was not one of the persons who might legally
possess opium. Suppose, for another example, that there was a law providing that all persons who performed manual
labor on Sunday should be punished, with a provision that if such labor should be performed out of necessity, the person
performing it would not be liable. In such a case, in the complaint, in order to show a good cause of action , it would be
necessary to allege that the labor was not performed under necessity. In other words, the complaint, in order to be free
from objection raised by a demurrer, must show that the person accused of the crime, in the absence of proof, is
punishable under the law. One who performed labor under necessity would not be liable. The complaints, in the foregoing
examples, in the absence of an allegation which showed that the party accused did not belong to the exempted class,
would not be good. In the absence of such negations, the courts would be unable to impose the penalty of the law,
because, perchance, the defendant might belong to the exempt class. The complaint, in a criminal case, must state every
fact necessary to make out an offense. (U.S. vs. Cook, 17 Wall. (U.S.), 168.) The complaint must show, on its face that, if
the facts alleged are true, an offense has been committed. It must state explicitly and directly every fact and circumstance
necessary to constitute an offense. If the statute exempts certain persons, or classes of persons, from liability, then the
complaint should show that the person charged does not belong to that class.
Even admitting all of the facts in the complaint in the present case, the court would be unable to impose the punishment
provided for by law, because it does not show (a) that the defendant was a male citizen of the municipality; (b) that he was
an able-bodied citizen; (c) that he was not under 18 years of age nor over 55 [50]; nor (d) that conditions existed which
justified the president of the municipality in calling upon him for the services mentioned in the law.
For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, with costs. So ordered.
Arellano, C.J., Torres, Carson, Trent, and Araullo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13678

November 12, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PRUDENCIO SALAVERIA, defendant-appellant.
Jose R. Varela for appellant.
Office of the Solicitor-General Paredes for appellee.
MALCOLM, J.:
The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which, among other things,
prohibited the playing of panguingue on days not Sundays or legal holidays, and penalized the violation thereof by
a casero [housekeeper] by a fine of not less than P10 nor more than P200, and by jugadores [gamblers] by a fine of not
less than P5 nor more than P200. The justice of the peace of Orion, when this ordinance went into effect, was Prudencio
Salaveria, now the defendant and appellant. Notwithstanding his official station, on the evening of March 8, 1917, not a
Sunday or legal holiday, seven persons including the justice of the peace an his wife were surprised by the police while
indulging in a game of panguingue in the house of the justice of the peace. The chief of police took possession of the
cards, the counters (sigayes), a tray, an P2.07 in money, used in the game.
These are facts fully proven by the evince and by the admissions of the accused. Convicted in the justice of the peace
court of Orion, and again in the Court of First Instance of Bataan, Salaveria appeals to this court, making five assignments
of error. The three assignments, of a technical nature, are without merit, and a fourth, relating to the evidence, is not
sustained by the proof. The remaining assignment of error, questioning the validity of the ordinance under which the
accused was convicted, requires serious consideration and final resolution. This ordinance in part reads:
RESOLUTION NO. 28
xxx

xxx

xxx

Whereas, this Council is vested with certain powers by sections 2184 and 2185 of the Administrative Code;
Whereas, it is the moral duty of this body to safeguard the tranquillity and stability of the Government and to foster
the welfare and prosperity of each an all of the inhabitants of this municipality; therefore,
Be it resolved to enact, as it hereby is enacted, the following ordinance:
Ordinance No. 3
xxx

xxx

xxx

Third. The games known as "Panguingue" "Manilla," "Jung-kiang," "Paris-Paris," "Poker," "Tute," "Burro," and
"Treinta-y-uno" shall be allowed only on Sundays an official holidays.
xxx

xxx

xxx

The following penalties shall be imposed upon those who play the above games on days other than Sundays and
official holidays:
For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiary imprisonment in case of
insolvency at the rate of one peso a day.
For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary imprisonment in case of insolvency
at the rate of one peso a day.
The Philippine Legislature has granted to municipalities legislative powers of a dual character, one class mandatory an the
other discretionary. Of the first class is the provision of the Administrative Code which makes it the duty of the municipal
council, conformably with law, "to prohibit and penalize . . . gambling." (Sec. 2188 [i], Adm. Code of 1916; sec. 2242 [ i],
Adm. Code of 1917.) This is a more restricted power than that found in the original Municipal Code which authorized a
municipal council to "provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort."
(Act No. 82, sec. 39 [u].) The present municipal law, since making use of the word "gambling," must be construed with
reference to the Insular Law, Act No. 1757, relating to the same subject. Act No. 1757 in section 1 defines "gambling" as
"the paying of any game for money or any representative of value or valuable consideration or thing, the result of which

game depends wholly or chiefly upon chance or hazard, or the use of any mechanical inventions or contrivance to
determine by chance the loser or winner of money or of any representative of value or of any valuable consideration or
thing." In the United States vs. Hilario ([1913], 24 Phil., 392), the Supreme Court went into the subject of the meaning of
"gambling" in this jurisdiction, and found that it includes those games the result of which depend wholly or chiefly upon
chance or hazard, and excludes those games the result of which depend wholly or chiefly upon skill, with the result that
sections 621 to 625 of the Revise Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917) were
found to prohibit only games of chance or hazard.
The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days, without describing it. Further,
although this court has considered the method by which many other games are played, it has never as yet authoritatively
decided whether panguingue was a game of skill or hazard. Nor was any evidence on this point introduced in the present
case. However, a reading of the decision of the trial court and of official opinions of two Attorneys-General, of which we
can take judicial cognizance, warrants the deduction that panguingue is not a game of chance or hazard and is not
prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25, 1904; October 10, 1905; and
September 7, 1911; also Berriz, Diccionario de la Administracion, p. 35.) If, therefore, we were to restrict our investigation
to those portions of the Administrative Code which authorize a municipal council to prohibit and penalize gambling, there
would exist grave doubt, to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan.
There remains for consideration a different approach to the question.
While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader signification, gambling
relates to play by certain rules at cards, dice, or other contrivance, so that one shall be the loser an the other the winner.
(20 Cyc., 878; Bouvier's Law Dictionary; People vs. Todd [1889], 51 Hun [N. Y.], 446 451; 4 N. Y. Supp., 25.) As one
example the Charter of the town of Ruston, State of Louisiana, authorized it "to restrain, prohibit, an suppress . . . games
and gambling houses and rooms . . ., and to provide for the punishment of the persons engaged in the same." Under this
power the town passed an ordinance prohibiting "all games of chance, lottery, banking games, raffling, and all other
species of gambling," indicating that there were other species of gambling in addition to games of chance. (See Town of
Ruston vs. Perkins [1905], 114 La., 851.) The common law notion of gambling, which only made it an indictable offense
when the play was attended by such circumstances as would in themselves amount to a riot or a nuisance or to an actual
breach of the peace, has given way to statutes and ordinances designed to restrain, suppress, or control gambling.
Authority for the State or a municipality to take action to control gambling in this larger sense can be found in an analysis
of what is calle the police power.
Any attempt to define the police power with circumstantial precision would savor of pedantry. The United States Supreme
Court tritely describes it as "the most essential of all powers, at times the most insistent, an always one of least limitable of
the powers of government." (District of Columbia vs. Brooks [1909], 214 U.S., 138.) The police power is based on the
maxim "salus populi est suprema lex" the welfare of the people is the first law. The United States Supreme Court has
said that it extends "to the protection of the lives, health and property of the citizens, and to the preservation of good order
and the public morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S., 25; Barbier vs. Connolly [1885], 113 U.S., 27.) The
Supreme Court of these Islands has said that it extends "the police power of the state includes not only the public health
safety, but also the public welfare, protection against impositions, and generally the public's best interest."
(U.S. vs. Pompeya [1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive scope to the police
power that the older cases. The public welfare is rightfully made the basis of construction.
Not only does the State effectuate its purposes through the exercise of the police power but the municipality does also.
Like the State, the police power of a municipal corporation extends to all matters affecting the peace, order,
health, morals, convenience, comfort, and safety of its citizens the security of social order the best and highest
interests of the municipality. (Case vs. Board of Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered
decisions have tended to broaden the scope of action of the municipality in dealing with police offenses. Within the
general police powers of a municipal corporation is the suppression of gambling. Ordinances aimed in a reasonable way
at the accomplishment of this purpose are undoubtedly valid. (See U.S. vs. Pacis [1915], 31 Phil., 524; 39 L. R. A., 523,
Note; Cooley's Constitutional Limitations, 6th edition, pp. 138, 226, 742; Greenville vs. Kemmis [1900], 58 S. C., 427
[holding that under the general welfare clause a city may pass an ordinance prohibiting gambling in any private house].)
The Philippine Legislature, as before intimated, delegated to municipalities certain legislative powers are named
specifically. But in addition, and preceding both the specific powers of a mandatory and discretionary character, is the
general power of a municipal council to enact ordinances and make regulations. It is this grant that the preamble of the
ordinance of Orion assigns as authority for its enactment. Said section 2184 of the Administrative Code of 1916 (sec.
2238, Adm. Code of 1917) reads:
The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers an duties conferred upon it by law an suchas shall seem
necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace,
good order, comfort, and convenience of the municipality and the inhabitants thereof,and for the protection of
property therein.

This section, known as the general welfare clause, delegates in statutory form the police power to a municipality. As above
stated, this clause has been given wide application by municipal authorities and has in its relation to the particular
circumstances of the case been liberally construed by the courts. Such, it is well to recall, is the progressive view of
Philippine jurisprudence.
The general welfare clause has two branches. One branch attaches itself to the main trunk of municipal authority, and
relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. With this class we are not here directly concerned. The second branch of the
clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such
ordinances "as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein."
It is a general rule that ordinances passed by virtue of the implied power found in the general powers and purposes of the
corporation, and not inconsistent with the laws or policy of the State. The ordinance of the municipality of Orion does not
seem in itself to be pernicious, or unreasonable or discriminatory. Its purposes evidently are to improve the morals and
stimulate the industry of the people. A person is to be compelled to refrain from private acts injurious both to himself an his
neighbors. These objects, to be attained by limiting the pastime to definite days, do not infringe any law of the general
government.
The constitutional provision that no person shall be deprived of liberty without due process of law is not violated by this
ordinance. Liberty of action by the individual is not unduly circumscribed; that is, it is not unduly circumscribed if we have
in mind the correct notion of this "the greatest of all rights." That gravest of sociological questions How far, consistently
with freedom, may the liberties of the individual member of society be subordinated to the will of the Government? has
been debated for centuries, in vain, if we can not now discount the time worn objection to any and all interference with
private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts [1905], 197 U. S., 11;
State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless are the governmental restrictions on the citizen.
The presumption is all favor of validity. The inhabitants of a municipality are in themselves miniature states. 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 an with all the facts and circumstances which surround the
subject, and necessities of their particular municipality and with all the facts and circumstances which surround the
subject, and necessitate 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. Who is in a better position to say whether the playing
of panguingue is deleterious to social order and the public interest in a certain municipality the municipal council, or the
courts? The answer is self-evident. 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. (See U.S. vs. Joson [1913], 26 Phil., 1.)
President McKinley's Instructions to the Commission still remain undisturbed by subsequent Acts of Congress dealing with
Philippine affairs and yet constitute a portion of our constitutional law, as to the inviolable rule that "municipal governments
. . . shall be afforded the opportunity to manage their own affairs to the fullest extent of which they are capable." Again the
same organic law says, "In the distribution of powers among the governments organized by the Commission, the
presumption is always to be in favor of the smaller subdivision, so that all the powers which can properly be exercised by
the municipal government shall be vested in that government . . . ." Let us never forget these principles so highly
protective of local self-government.
The judiciary can very well take notice of the fact that municipalities are accustomed to enacting ordinances aimed at the
regulation of gambling. The executive authorities an the Attorney-General have usually upheld the validity of such
ordinances, especially those intended to restrict the playing of panguingue. (Opinions of the Attorney-General, supra;
Opinion of the Executive Secretary, July 6, 1909; Indorsement of the Governor-General, July 21, 1904.) This general
municipal practice, indicative of a social cancer to be eradicated, should not be discouraged by strict judicial construction.
More important still, the courts cannot but realize that gambling, in its larger sense as well as in its restricted sense, is an
act beyond the pale of good morals, which, for the welfare of the Filipino people, should be exterminated. The suppression
of the evil does not interfere with any of the inherent rights of citizenship. The pernicious practice is rightfully regarded as
the offspring of idleness and the prolific parent of vice and immorality, demoralizing in its association and tendencies,
detrimental to the best interests of society, and encouraging wastefulness, thriftlessness, and a belief that a livelihood may
be earned by other means than honest industry. To be condemned in itself, it has the further effect of causing poverty,
dishonesty, fraud, and deceit. Many a man has neglected his business and mortgaged his integrity to follow the fickle
Goddess of the cards. Many a woman has wasted her hours and squandered her substance at the gambling board while
home and children were forgotten. It is highly proper that this pastime should be subject to the control of restraints
imposed by the ordinances of local governments peculiarly afflicted by the evil. (See In re Voss [1903], 11 N. D., 540; Ex
parte Tuttle [1891], 91, Cal., 589; Greenwood vs. State [1873], 6 Baxt., 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.)
For the suppression of such an evil, coordinate and harmonious action must concur between the three departments of
Government. A law or ordinance enacted by the legislative body must exist. Such an ordinance is before us. Vigorous

executive enforcement must take place to make the law or ordinance a reality. Such activity by the police has brought this
case to the courts. And finally the Judiciary, having full respect for the legislative action of the municipal council and for the
prosecution by the executive officials, must, by judicial construction, equally as progressive and constructive, give effect to
the action of the other two powers. Wherefore, althoughpanguingue is not entirely a game of chance, since it is a proper
subject for regulation by municipal authorities acting under their delegated police power, whose laudable intention is to
improve the public morals and promote the prosperity of their people, their action should be upheld by the courts.
Ordinance No. 3 of Orion, Bataan, is found to be valid.
The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has scorned it. His example
to the people of Orion has been pernicious in its influence. If gambling is to be suppressed, not only the weak and
ignorant must be punished, but those with full knowledge of the law and the consequences of violation. We would
accordingly suggest to Courts of First Instance that in all cases arising under the Gambling Law or ordinances, except for
unusual circumstances, a prison sentence should be imposed, if permitted by the law or ordinance. We further suggest
that, where the defendant has been found guilty and is a man of station, he be given the maximum penalty.lawphil.net
Applying the foregoing in this instance, it results that the defendant and appellant must be found guilty of a violation of
ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance therewith, shall be sentenced to the maximum
penalty of the payment of a fine of P200, or to subsidiary imprisonment in case of insolvency, with the costs of all three
instances against him. So ordered.
Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.

Separate Opinions
JOHNSON, J., concurring:
I concur upon the ground that the ordinance in question is fully authorized under the "general welfare" provisions of the
Municipal Code.
STREET, J., concurring:
I agree in the conclusion that the ordinance passed by the municipality of Orion prohibiting the playing of panguingue on
secular days is valid and am of the opinion that the authority to pass such an ordinance is to be found exclusively in
section 2184 of the Administrative Code (1916), which gives a general authority for the enactment of ordinances which
seem proper to improve the morals and good order of the community. As the game of panguingue is admittedly not a
game of chance or hazard played for money, it is not within the prohibitions of Act No. 1757; an I think the case should be
determined without reference to the legislation against gambling and without reference t the circumstance that under
subsection (i) of section 2188 of the same Code the Legislature has made it mandatory upon municipal councils to
prohibit and penalize gambling.
The legislature has clearly authorized the municipal council to use its discretion as to the measures which it esteems
desirable to promote morals an good order; and I know of no rule of law which would justify any court in overruling that
discretion in such a matter as is now before us. Certainly I would be sorry to see this court adopt a paternalistic attitude of
captious criticism and correction tending to embarrass the free exercise of the legislative discretion vested by law in the
municipal councils. Those bodies are undoubtedly destined to make mistakes in the exercise of the powers conferred on
them, but there is no better school than that of experience in which their members may discover what is most likely to
promote the welfare of the community and the interests of their constituents.
As already suggested, I think that the Gambling Law (Act No. 1757) and the provisions of the Municipal Code relative to
the suppression of gambling, strictly speaking, have nothing to do with the case; and the circumstance that those
measures are upon the statute book cannot serve in the slightest degree to limit the powers of a municipal council in
legislating upon a matter not implicated with gambling. From the preamble to the ordinance it may be seen that the council
had in view the promotion of the general well-being and the advancement of prosperity in the community; and the
ordinance was doubtless intended to discourage the playing of games which involve a frivolous and idle waste of time,
rather than directly to suppress gambling. But even if the council had suppose that the games which it proposed to
regulate are calculated to foment the gambling instinct and should be suppressed for that reason, the ordinance in
question could not possibly have been rendered invalid by that fact.
FISHER, J., dissenting:

The importance of suppressing gambling, properly emphasized in the majority opinion, cannot warrant a conviction where
gambling is not involved. The zeal to remedy an evil should not induce the graver evil of obliterating legal landmarks.
Gambling is the playing, for money or its equivalent, of any game of which the result depends "wholly or chiefly upon
chance or hazard, . . . ." (Act No. 1757).
The defendant herein is accused of playing panguingue, which is avowedly not a game of chance or hazard within this
definition. It is not alleged in the information that the playing was for money or any other thing of value. The fact that some
money was found on the table when the accused was arrested is immaterial in this case. The ordinance under which the
conviction was had does not make playing the prohibited games for money an ingredient of the offense, and the decision
of the majority proceeds upon the theory that the result would have been the same had no money been staked upon the
game.
To play a game of skill without risking anything upon the outcome is not gambling, and the prohibition of harmless
amusements cannot be justified by the authority to prohibit gambling.
In recognition of the fact that the ordinance upon which is based this prosecution goes beyond the terms of the statutory
authority, it is sought to find power to pass the same under the general welfare clause (section 2238, Administrative Code
of 1917). But the ordinance which imposes a fine and imprisonment upon a man and wife who play a game of cards
together as mere pastime, in their own home, without risking a cent upon the outcome, is beyond the protection of such
general provision for two reasons. In the first place, it is unreasonably subversive of the liberty of the citizen an
unnecessary. In the second place, the Legislature of the Islands has spoken in well defined terms on the subject of
gambling, and its pronouncement on the subject fills the field and precludes the possibility of stretching the authority
delegated to municipalities into the right to repeal, modify, or supplement existing legislation.
The subject of gambling has merited the attention of our Legislature and Act No. 1757 very clearly defines the intention
and will of that body in the premises. Its limitation of the prohibition is its refusal to prohibit games of skill and games in
which no value is at stake, and is the exact equivalent of a pronouncement that non-gambling pastimes shall not be
prohibited.
When the legislature authorized municipalities to "penalize . . . . gambling" it was aiming at the vice of risking money upon
the hazard of a game of chance. The Legislature has not prohibited the playing of card games in itself an innocent
pastime but the playing for money of games of hazard. When it delegated like power to municipalities it had a like
object in view and not other.
Equally untenable, to my mind, is the attempt to justify the statute under the "general welfare" clause. The prohibition by
ordinance of the playing of certain card games as an amusement, without stake or wager, cannot be said to promote the
health, safety, morals, peace, good order, comfort or convenience of the inhabitants of a municipality. The majority opinion
contends that the purpose of the enactment was to "improve the morals and stimulate the industry of the people."
Unfortunately for that theory it appears that the ordinance expressly permits these "immoral" diversions on Sundays and
official holidays. I am unable to see how one's morals are to be improved by permitting him to play panguingue,
poker or burro all day Sunday, and then sending him to jail for engaging in the same amusement Monday evening. So far
as the "stimulation of . . . industry" is concerned, that argument might have had some weight if the prohibition of these
amusements had been limited to working hours. But such is not the case. The inhabitants of Orion may play poker
without a wager to their heart's content on Sunday, but to do it Saturday evening, after the work of the week is over, is
prohibited their morals are to be "improved" and their industry "stimulated" until midnight. After that they may yield to
their depraved instincts until midnight of Sunday, without let or hindrance. I submit that it is obvious that the ordinance in
question wasintended to prevent gambling, but is not warranted by the delegated authority of municipal councils over this
subject, because it is so drawn as to include harmless amusements not within the legislative definition of gambling. By
limiting the definition and prohibition of gambling to the playing for money of games of hazard, the Legislature by
implication permitted the playing of all other games not within the prohibition. Is the "general welfare" clause of grant of
power to municipal corporation to be so construed as to make the express delegation of power redundant and useless? If
under the general welfare clause the playing of whist or chess in one's own house, not for money, but merely for
amusement, may be prohibited under the general welfare clause, certainly the power "to penalize and prohibit . . .
gambling" must have been included in that clause. If so, the special grant relating to gambling is merely redundant.
I submit that when a special power to enact ordinances is granted to a municipal council upon a particular subject, the
power as to that matter is to be measured by the express grant, without enlargement by the interpretation of the general
"welfare clause." The express grant of power to regulate public dance halls (section 2243 [k], Administrative Code of
1917) is not be expanded under the general "welfare clause" so as to authorize the prohibition and penalizing of dancing
in private houses. The express grant of power to establish and maintain streets cannot be expanded, under the general
welfare clause, this court has held, so as to authorize an ordinance to compel citizen to clean the streets.
(U.S. vs. Gaspay, 33 Phil. Rep., 96.)
I think the law on this subject is correctly expressed in Judge Dillon's authoritative work on Municipal Corporations as
follows:

When there are both special and general provisions, the power to pass by-laws under the special or express grant
can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter or
incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power
conferred by the special provisions in relation to their various subject matters, but gives authority to pass by-laws,
reasonable in their character, upon all other matters within the scope of their municipal authority, and not
repugnant to the Constitution and general laws of the State.
But if we disregard entirely the delegated power relating to the prohibition of gambling and consider the matter from the
standpoint of the general welfare clause alone, it seems equally clear to me that the ordinance in question is void as being
contrary to the public legislative policy, as established by the Philippine Legislature. In Dillon on Municipal Corporations
(fifth edition, paragraph 601) it is said:
. . . A municipal corporation . . . cannot, in virtue of its incidental power to pass-by-laws, or under any general grant
of that authority, adopt by-laws which infringe the spirit or are repugnant to the policy of the State as declared in its
general legislation. This principle is well exemplified by a case in Ohio (Marietta vs.Fearing, 4 Ohio, 427) in which
incorporated towns were, by statute, prohibited from subjecting stray animals owned by persons not residents of
such town to their corporation ordinances. It was held that an ordinance operating, not on the animals but on the
non-resident owner, in the shape of a penalty, violated the spirit of the statute, and was void. So, in a later case in
the same State, it was shown that the general policy of the State was to allow animals to run at large; and it was
ruled that a municipal corporation with power to pass "all by-laws deemed necessary for the well-regulation,
health, cleanliness & c.," of the borough, and with power to "abate nuisances," had no authority to pass a by-law
restraining cattle from running at large, such a by-law being in contravention of the general law of the State.
(Collins vs. Hatch, 18 Ohio, 523.)
The public legislative policy is to permit the playing of card games as an amusement, without wagers upon the outcome.
That is shown by the language of Act No. 1757, which, by limiting the prohibition of gambling to games of chance or
hazard played for money, by implication permits the playing of games not prohibited, and by the fact that the Tariff Act in
force (section 3) by prohibiting the importation of marked cards impliedly authorizes the importation of others.
Panguingue playing may be so harmful to the people of this country that the playing of it at any time, at any place, with or
without the wagering of money, should be prohibited. If that is so the Legislature should prohibit it. Some people regard
dancing and billiards as equally harmful. If such people happen to control a given municipal council we may see
respectable citizens in jail for the offense of dancing in their own homes, for playing casino or billiards, or ping-pong, or for
engaging in any other amusement which, while not prohibited by any general law, may be prohibited in any municipality
under this omnibus general welfare clause.

PhilippineLaw.info Jurisprudence 1960 September

PhilippineLaw.info Jurisprudence Phil. Rep. Vol. 109

G.R. No. L-15305, City of Manila v. Pallungna, 109 Phil. 698

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
September 30, 1960
G.R. No. L-15305
THE CITY OF MANILA, plaintiff-appellant,
vs.
ARCADIO PALLUNGNA, defendant-appellee.
City Fiscal H. Concepcion, Jr. and Astt. City Fiscal A.H. Cusi for appellant.

Ansberto Paredes for appellee.

BAUTISTA ANGELO, J.:
The City of Manila brought this action before the court of first instance of said city against Arcadio Pallugna to recover the
amount of P2,923.75 being the difference between what the latter should pay for the operation of seven (7) pinball
machines under Ordinance No. 3628 and what he actually paid under Ordinance No. 3347.
Defendant interposed the defense that Ordinance No. 3628 on which plaintiff bases its claim is invalid for having been
enacted in excess of the power conferred by law upon it and, as a counterclaim, he claims the amount of P745.75 as
attorney's fee and expenses of litigation.
The parties submitted a stipulation of facts from which the following may be deduced: that defendant was granted license
to operate seven pinball machines during the effectivity of Ordinance No. 3628; that said pinball machines are of the
flipper type and defendant had operated them from 1956 to April 24, 1957, having paid for their operation a license fee of
P12.50 a quarter for each machine, or a total of P437.50; that on April 24, 1957, when defendant was notified of the
increase in the license fees under Ordinance No. 3628 he retired from business and ceased operating his pinball
machines; that on September 6, 1957, defendant was formally advised by the city treasurer to pay a deficiency tax,
including surcharge under said ordinance, in the amount of P1,983.75 for the operation of said seven pinball machines;
and that on September 12, 1957, defendant requested the city treasurer to desist from collecting the aforesaid deficiency
tax due to the pendency of a civil case pending in the same court, but the request was unheeded and the present action
was brought.
The trial court, on February 23, 1959, rendered decision holding Ordinance No. 3628 null and void following its ruling in
some previous cases wherein it held that said ordnance being a tax measure adopted for the purpose of arising revenue
is beyond the power of the City of Manila to enact. Accordingly, it dismissed the complaint without costs.
The City of Manila is now appealing from said decision assigning as main error the finding of the trial court that Ordinance
No. 3628 is invalid for being a tax measure which cannot be enacted by said city.
In Uy Ha vs. The City Mayor, et al., 108 Phil., 400; 58 Off. Gaz., (37) 5997, this Court held:
Since Ordinance No. 3628 seeks to regulate and license the operation of "pinball machines" within the City of Manila upon
payment of an annual license of P300.00 for each "pinball machines," the same is ultra vires, it being an exercise of
power not granted by law to the intervenor. As already stated, those devices are prohibited by law and as such are not
subject to regulation. The attempt, therefore, on the part of the intervenor to collect the sum of P4,620.00 as unpaid
license fees under said ordinance cannot be entertained.
It, therefore, appears that Ordinance No. 3628 is ultra vires, not because it is a tax measure, but because it was enacted
beyond the power granted by law to the City of Manila. Hence, any attempt to collect any license fee under said ordinance
is illegal.

WHEREFORE, the decision appealed from is affirmed, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, Paredes, and Dizon, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 110103 August 4, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUPERTO SAN GABRIEL "UPENG" or "JOJO", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Efren B. Tienzo for accused-appellant.
MELO, J.:
When Rolando Rodela sipped his coffee at around 6:30 in the evening of July 27, 1989, little did he know that it was his
last cup before the next crack of dawn.
He sat on the chair facing the table near the open door savoring the taste of the hot beverage while his mother prepared
supper in the kitchen approximately one meter from where her son was when the assailant passed by Rolando's sister at
the terrace fronting the house, barged his way in, and repeatedly stabbed Rolando Rodela who sustained three wounds.
This mayhem was perpetrated despite the presence of the victim's mother, Maria Areglo Rodela, and Teresita Rodela, the
victim's sister, amidst the lighted flourescent lamp which enabled the terrified witnesses to identify the culprit who
thereafter fled from the locus criminis. The neighbors who responded to the calls for help brought the body of the victim to
the Valenzuela District Hospital in Bulacan, to no avail.
Rosemarie Rodela, the widow of Rolando Rodela, was at home feeding their child when she was informed by one of her
cousins that her husband had been stabbed. She was accompanied by her brother to the hospital where she saw the
lifeless body of her husband whose intestines were protruding due to the sharp bladed instrument used by the culprit who
also managed to pierce other vital organs. The medico-legal officer attributed the victim's death to massive hemorrhage
on account of the severed cartage artery and large intestines.
It turned out that the alleged felon was Ruperto San Gabriel, a close friend of the victim and a first cousin of the victim's
wife, who was apprehended by a police officer and the victim's brother while at the Provincial Hospital of Calapan,
Mindoro where the suspect was recuperating after having been involved in a hacking incident. From Calapan, Mindoro,
they proceeded to the Provincial Jail of Bulacan were the accused was detained for the murder of Rolando Rodela (p.
2, Rollo).
Following arraignment and the reception of the People's inculpatory evidence, accused-appellant persisted in his plea of
innocence premised on alibi. He could not have possibly executed the misdeed levelled against him, he claimed, because
he had transferred residence from Bulacan to Mindoro in 1971 until his arrest in July of 1989, apart from the fact that he
was the overseer of his mother's fishpond in Mindoro and that moreover, during the night in question, he and his brotherin-law were fishing in the pond. This claim of exculpatory circumstances was amplified on the witness stand by accusedappellant's brother-in-law.
These protestations did not find merit the trial court's eyes, and thus verdict against accused-appellant was pronounced
on April 12, 1993, in this manner:
WHEREFORE, the Court finds the accused Ruperto San Gabriel guilty beyond reasonable doubt of the
crime of murder and the court hereby sentenced (sic) him to suffer the penalty of Reclusion Perpetua.
To indemnify the heirs of the victim P100,000.00.
To pay the heirs P50,000.00 moral damage and P15,000.00 actual damage. With Costs.

SO ORDERED.
(p. 19, Rollo; p. 157, Record.)
which conclusion was drawn from the following analysis of the trial judge, although expressed a bit ungramatically:
The evidence on record, shows the accused Ruperto San Gabriel is well known to the wife of the victim
Rosemarie Dumalay Rodela because they are first cousins. The accused is also known to the witness
Teresita Rodela because they were childhood mates at Liputan, Meycauayan, Bulacan. The accused is
also known to Maria Areglo Rodela the mother of the victim, hence no doubt the witnesses Teresita
Rodela and Maria Areglo Rodela could not have made a mistake in identifying and pointing to the accused
as the assailant of the victim Rolando Rodela on the night of July 27, 1989 inside Maria Rodela's house at
Liputan, Meycauayan, Bulacan while the deceased was drinking his coffee.
That on the night of the incident the house of Maria Rodela was bright because their flourescent light was
on that is why she was able to witness the incident from her place at the kitchen which was around four
meters away likewise Teresita Rodela was also able to witness the incident from her place at the terrace
which is only five meters away from the assailant.
That the attack by the accused upon the victim was so sudden that the latter did not have the opportunity
to defend himself resulting to his death. The sudden attack constitutes treachery that qualified the offense
to murder.
In the light of the foregoing, the defense of Alibi of the accused cannot prevail over the positive
identification made by the witnesses pointing to the accused as the killer of the deceased Rolando
Rodela. Besides the accused has not shown any motive for the witnesses to accused him of such serious
crime, he even admitted in court that he does not know of any reason why the witnesses accused him of
having killed the deceased Rolando Rodela.
(pp. 18-19, Rollo; pp. 155-156, Record.)
In the appeal at bench, accused-appellant sums up his arguments into the major proposition of whether the court a
quo properly condemned him for the slaying of Rolando Rodela considering that his and his brother-in-law's exculpatory
narration in open court are more credible than the testimonial evidence of the People's witnesses (p. 31, Rollo).
The appeal is bereft of merit.
It is accused-appellant's perception that his defense of alibi had been sufficiently established via his open court
declarations, as confirmed by his brother-in-law, that on July 27, 1989 they were both fishing at a 7-hectare fishpond in
Naujan, Oriental Mindoro which locality is hundreds of kilometers from Bulacan where the victim was killed on said date.
But this question of whether the exculpatory statements uttered by the defense are worthy of belief is premised on the
assessment made by the court of origin relative to their propensity to tell the truth or to concoct a tale which evaluation, it
cannot be gainsaid, is naturally respected by the reviewing authority inasmuch as the trial judge was in a better position to
resolve the query, having heard and observed the demeanor of the witnesses (People vs. Ocampo, 206 SCRA 223
[1992]). Verily, the task of assigning values to declarations at the witness stand is best and most competently performed or
carried out by a trial judge who, unlike appellate magistrates, can weigh such testimony in the light of the defendants
deportment, and the conclusions of trial courts in this respect, command great weight and respect (People vs.
Magallanes, et. al., 65 O.G. 10216; 2 Regalado, Remedial Law Compendium, 1989 Sixth Revised ed., p. 554).
At the opposite end of the weighing scale is the positive identification of accused-appellant as the person responsible for
the assault as recollected by the victim's mother:
Testimony of Maria Areglo
Q. Will you step by step tell this Court what was that unusual incident?
A. At that particular time and date, the door of our house was opened then and all of a
sudden, the accused Ruperto San Gabriel entered our house while my son was seated
and drinking coffee.
Q. Thereafter what else happened if there was anything else happened?
A. By the time he entered our house, he was carrying then a deadly weapon and he kept
on stabbing and stabbing my son.
Q. Who is your son who was stabbed repeatedly by the accused Ruperto San Gabriel?
A. Rolando Rodela, sir.
Q. The same Rolando Rodela who is the husband of your daughter-in-law Rosemarie
Rodela?

A. Yes, sir.
Q. How far were you from the kitchen where you were at that time when accused Ruperto
San Gabriel repeatedly stabbed your son?
A. From the witness stand up to that chair. (. . . [B]y agreement of the prosecution and
defense is approximately one meter).
Q. Can you tell what was the relative position of your son Rolando Rodela in relation to
the accused when he was being repeatedly stabbed by him?
A. He was facing the table seated and drinking coffee.
(pp. 6-7, tsn, December 16, 1992 Emphasis supplied)
(pp. 6-7, tsn, December 16, 1991.)
which categorical declarations were re-inforced by the victim's sister, thusly:
Q. Miss Rodela, do you know the accused in this case Ruperto San Gabriel, alias Jojo
and alias Upeng?
A. Yes, sir.
Q. Why do you know him?
A. He is from our place, sir.
Q. Where is your place?
A. Liputan, Meycauayan, Bulacan, sir.
Q. If this Ruperto San Gabriel is now inside the courtroom, would you be able to identify
him?
A. Yes, sir.
Q. Will you please point to him?
A. WITNESS POINTING TO A PERSON IN THE COURTROOM WHO STOOD UP AND
GAVE HIS NAME AS RUPERTO SAN GABRIEL.
Q. Now, prior to July 27, 1989, for how long have you known the accused Ruperto San
Gabriel?
A. For a long time, sir.
Q. For how may years, Madam Witness?
A. He is my childhood mate, sir.
Q. In Liputan, Meycauayan, Bulacan?
A. Yes, sir.
xxx xxx xxx
Q. Then in the same place you have just mentioned and on that date at about 6:30 p.m. in
the evening, do you recall of any unusual incident that took place?
A. When Ruperto San Gabriel arrived and suddenly entered our house, he immediately
stabbed my brother, sir.
(pp. 4-6, tsn, November 4, 1991; Emphasis supplied)
The foregoing testimony placing accused-appellant at the scene of the crime brings to mind the oft-repeated legal
aphorism that the defense of alibi is subordinate in substance to the positive identification made by the People's
witnesses (People vs. Vergara, 221 SCRA 611 [1993]).
Lastly, accused-appellant argues that he had no axe to grind against the victim, a close friend and a cousin-in-law. Again,
it
must
be
stressed
that
ill-motive is never an essential element of a crime and is thus legally inconsequential in the case at bench in view of the
affirmative, nay, categorical declarations and assertions made by the People's witnesses towards accused-appellant's
accountability for the felony which was accomplished with alevosia (People vs. Tareo, 58 Phil. 255; 1, Reyes, Revised
Penal Code, Eleventh ed., 1977, p. 65).

Nonetheless, the indemnity awarded to the heirs of Rolando Rodela to the tune of P100,000.00 should be reduced to
P50,000.00 concordant with current jurisprudential doctrine (People vs. Magaluna, 205 SCRA 266 [1992]).
WHEREFORE, the decision appealed from is hereby modified only as to the civil indemnity as indicated above, and
affirmed in all other respects.
SO ORDERED.
Feliciano, Bidin, Romero and Vitug, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46455

October 31, 1939

EUSEBIO PELINO, plaintiff-appellee,

vs.
JOSE ICHON, ET AL., defendants.
JOSE ICHON, appellant.
P. Salazar and F. Montejo for appellant.
Mateo Canonoy for appellee.
AVANCEA, C.J.:
The plaintiff is operating a cockpit in the municipality of Tanauan, under a license issued in accordance with municipal
ordinance No. 20 of 1935 authorizing the establishment of a single cockpit in the municipality.
On March 15, 1938, the municipal council of Tanauan approved another ordinance No. 8 authorizing as many cockpits as
are applied for. The Municipal President vetoed this ordinance . The municipal council, however, composed of six
councilors, kept Ordinance No. 8 in being over the veto of the president by a two-thirds vote of its members.
The defendant, in turn, obtained a license, pursuant to this ordinance No. 8, to operate another cockpit in the same
municipality.
On June 8, 1938, the plaintiff Eusebio Pelio brought this action against the municipal council of Tanauan, asking that
municipal ordinance No. 8 be declared null and void and that the defendant Ichon be ordered to pay him, by way of
damages, the amount of P2,000.
Upon petition of the plaintiff, the court, on April 9th of the same year, issued a writ of preliminary injunction against the
defendants, which writ was lifted by the filing of a bond put up by the defendant Ichon.
The court declared ordinance No. 8 null and void, revived the writ of injunction issued against the defendants and ordered
the defendant Inchon to pay the plaintiff the sum of P2,000 by way of damages. The defendants appealed form this
decision.
The only ground of the appealed decision is annulling ordinance No. 8 is that the same is contrary to the spirit of section
2338 of the Revised Administrative Code and is beyond the powers granted to the municipal council by section 2243 of
the same code.
The portion of ordinance No. 8 which led the court to declare it null and void is that one authorizing as many cockpits in
the municipality as there are applicants therefor. However, the municipal council acted within its powers in enacting this
ordinance. It is granted discretion by law to regulate or prohibit cockpits (section 2243 of the Revised Administrative
Code). While, according to this, the municipal council may absolutely prohibit cockpits, nevertheless, when it does not so
prohibit, they are deemed to be authorized subject to its regulation. This power to regulate includes the power to fix its
number, inasmuch as the law neither fixes it nor limits it to one.
The court sentenced the defendant to pay the plaintiff P2,000 by way of damages on the theory that the plaintiff suffered
damages because of the establishment of defendant's cockpit. It is clearly seen from the facts set out that no cause of
action exists against the defendant. he operated his cockpit pursuant to a license issued under ordinance No. 8, in the
enactment of which he had absolutely nothing to do.lwphi1.nt
The appealed judgment is reversed,, ordinance No. 8 of the municipality of Tanauan, Leyte, is declared valid, and the
defendant, is absolved from the sentence to pay damages without special pronouncement as to the costs. So ordered.
Villa-Real, Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO
CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance
No. 4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it
"unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be
reversed, there being a failure of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel
and Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and
general manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his
capacity as such "charged with the general power and duty to enforce ordinances of the City of Manila and to give the
necessary orders for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner
non-stock corporation is dedicated to the promotion and protection of the interest of its eighteen (18) members "operating
hotels and motels, characterized as legitimate businesses duly licensed by both national and city authorities, regularly
paying taxes, employing and giving livelihood to not less than 2,500 person and representing an investment of more than
P3 million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as
Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being
beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground
that in the revised charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the
challenged ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would
impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that the provision in the
same section which would require the owner, manager, keeper or duly authorized representative of a hotel, motel, or
lodging house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any
person or persons without his filling up the prescribed form in a lobby open to public view at all times and in his presence,
wherein the surname, given name and middle name, the date of birth, the address, the occupation, the sex, the
nationality, the length of stay and the number of companions in the room, if any, with the name, relationship, age and sex
would be specified, with data furnished as to his residence certificate as well as his passport number, if any, coupled with
a certification that a person signing such form has personally filled it up and affixed his signature in the presence of such
owner, manager, keeper or duly authorized representative, with such registration forms and records kept and bound
together, it also being provided that the premises and facilities of such hotels, motels and lodging houses would be open
for inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives is unconstitutional
and void again on due process grounds, not only for being arbitrary, unreasonable or oppressive but also for being vague,
indefinite and uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty against selfincrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or,
restaurant and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive,
a conclusion which applies to the portion of the ordinance requiring second class motels to have a dining room; that the
provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such
hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and making it
unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or
portion thereof more than twice every 24 hours, runs counter to the due process guaranty for lack of certainty and for its
unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for in Section 4 of the
challenged ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the offended
party, in effect causing the destruction of the business and loss of its investments, there is once again a transgression of
the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and

void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor
to refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent
Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the
provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After
setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears a reasonable
relation, to a proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that only the
guests or customers not before the court could complain of the alleged invasion of the right to privacy and the guaranty
against self incrimination, with the assertion that the issuance of the preliminary injunction ex parte was contrary to law,
respondent Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964,
which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are duly
organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner
Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a
resident of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of
Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give the
necessary orders for the faithful execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and
Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was
approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the
absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the
compilation of the ordinances of the City of Manila besides inserting therein three new sections. This ordinance is
similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated
February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed
ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105
hotels and motels (including herein petitioners) operating in the City of Manila.1wph1.t
Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the
validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party
who assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise
refuted point by point the arguments advanced by petitioners against its validity. Then barely two weeks later, on February
4, 1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition, with citations of
what they considered to be applicable American authorities and praying for a judgment declaring the challenged
ordinance "null and void and unenforceable" and making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged
constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a
question of law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for
decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision
passed upon the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly
right and proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and came
to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore,
null and void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to restrain
him from enforcing the ordinance in question." Hence this appeal.
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 x x x . 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 necessitate 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 x x x . 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.2
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.,3where 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 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 resumption 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.
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,4extending as it does "to all the great public needs."5 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 genera
welfare.6 Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that
is hurt full to the comfort, safety, and welfare of society.7
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 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 licensed 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.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy
and classifying a pimp or procurer as a vagrant;8 provide a license tax for and regulating the maintenance or operation of
public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days
other than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any person from
keeping, conducting or maintaining an opium joint or visiting a place where opium is smoked or otherwise used,15 all of
which are intended to protect public morals.
On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power,
which, it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace,
good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and
other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the life,
liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as
either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable
constitutional guaranty may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due
process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the
governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid.
What then is the standard of due process which must exist both as a procedural and a substantive requisite to free the
challenged ordinance, or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred
by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment of the
sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever
branch "in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political
thought."18 It is not a narrow or "technical conception with fixed content unrelated to time, place and

circumstances,"19 decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles
of our society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking
body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that
what should be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the
face of an admitted deterioration of the state of public morals. To be more specific, the Municipal Board of the City of
Manila felt the need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case
must be found in the records, and, as has been set forth, none is even attempted here to attach to an ordinance of such
character the taint of nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance
even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such
features as the increased fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain
particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for hotels
and motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee
and second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license
fees could be classified into those imposed for regulating occupations or regular enterprises, for the regulation or
restriction of non-useful occupations or enterprises and for revenue purposes only.22 As was explained more in detail in
the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the police power and the right to
exact a fee may be implied from the power to license and regulate, but in fixing amount of the license fees the municipal
corporations are allowed a much wider discretion in this class of cases than in the former, and aside from applying the
well-known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as
a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons
who might otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of
the amount of this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have
frequently been upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been
declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the
American Supreme Court that taxation may be made to implement the state's police power. Only the other day, this Court
had occasion to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so levied is for
public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for
revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining the
amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power
measure.26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of
significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them of
their lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it appears that
plaintiffs are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain
conditions is permitted x x x . 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 cannot 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 these occupations subject to the disadvantages which may result from the legal exercise of that
power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner,
manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to
lease or rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command
of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or
illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted. How could it
then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an
undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be unaware that every
regulation of conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be absolute. Thus:
"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 x x x The liberty of the citizen 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."28
A similar observation was made by Justice Laurel: "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. Persons 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 x x x To this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail
over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because
then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be established the resultant equilibrium, which means peace
and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to
contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. 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.31 What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the
person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty
curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider.32 How justify then
the allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of
vagueness or uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the
alleged grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however,
point to the requirement that a guest should give the name, relationship, age and sex of the companion or companions as
indefinite and uncertain in view of the necessity for determining whether the companion or companions referred to are
those arriving with the customer or guest at the time of the registry or entering the room With him at about the same time
or coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt as to whether the
maintenance of a restaurant in a motel is dependent upon the discretion of its owners or operators; another proviso which
from their standpoint would require a guess as to whether the "full rate of payment" to be charged for every such lease
thereof means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the ordinance
void on its face for alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v. General
Construction Co.33 toAdderley v. Florida,34 the principle has been consistently upheld that what makes a statute
susceptible to such a charge is an enactment either forbidding or requiring the doing of an act that men of common
intelligence must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A citation
from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws with
what they omit but there is no canon against using common sense in construing laws as saying what they obviously
mean."35
That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and
determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it.
Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a
reversal of the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.
Footnotes
1The eighteen members are Waldorf Hotel, Hotel Monte Carlo, Golden Gate Motel, Miami Hotel, Palm Spring
Hotel, Flamingo Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel, Paradise Hotel, Mayfair Hotel, Siesta
Court, Sun Valley Hotel, Springfield Hotel, New Palace Hotel, Hotel del Mar Longbeach Hotel and Ritz Motel.
2U.S. V. Salaveria (1918), 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of
municipal ordinance as announced in the leading Salaveria decision in Eboa v. Daet, (1950) 85 Phil. 369.
3282 US 251, 328, January 5, 1931.
4Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163. Also: "To Frankfurter the police power, true to its
etymology is the power to shape policy. It defies legal definition; as a response to the dynamic aspects of society,
it cannot be reduced to a constitutional formula. The law must be sensitive to life; in resolving cases, it must not
fall back upon sterile claims; its judgments are not derived from an abstract duel between liberty and the police
power. Instead, in a world of trusts and unions and large-scale industry, it must meet the challenge of drastic
social change. For him as for Holmes, 'society is more than bargain and business' and the jurist's art rises to no
higher peak than in vindicating interests not represented by the items in a balance-sheet. In a progressive society,
new interests emerge, new attitudes appeal, social consciousness quickens. In the face of the unknown one
cannot choose with certainty. Nor as yet, has the whole of truth been brought up from its bottomless well and how
fragile in scientific proof is the ultimate validity of any particular economic adjustment. Social development is a
process of trial and error; in the making of policy the fullest possible opportunity must be given for the play of the

human mind. If Congress or legislature does not regulate, laissez faire not the individual must be the
regulator. (Hamilton, Preview of a Justice (1939) 48 Yale Law Journal, 819).
5Noble state Bank v. Haskell, 219 U.S. 412.
6U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.
7Rubi v. Provincial Board, (1918) 39 Phil. 660.
8U.S. vs. Giner Cruz, (1918) 38 Phil. 677.
9U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v. Belderol, L-15719, May 31, 1961; Lapera v.
Vicente, L-18102, June 30, 1962.
10U.S. v. Pacis, (1915) 31 Phil. 524.
11U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson, (1913) 26 Phil. 1; People vs. Chan Hong, (1938) 65
Phil. 625.
12U.S. v. Tamparong, (1915) 31 Phil. 321.
13U.S. v. Salaveria, (1918) 39 Phil. 102.
14Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v. City of Manila, L-17252, May 31, 1961.
15U.S. v. Ten Yu, (1912) 24 Phil. 1.
16There is no occasion to consider even cursorily the alleged invasion of the right of privacy or the prohibition
against self-incrimination. Petitioners obviously are not the proper parties to do so. Nor may such an incurable
defect be remedied by an accommodating intervenor "who has always taken advantage of as he exclusively relies
on, the facilities, services and accommodations offered by petitioner-motels. A general merchant, doing business
not only in Baguio City but in the City of Manila, has no legitimate cause for complaint. At least, not according to
the case as it has been developed.
17Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938) pp. 32- 33.
18Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.
19Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.
20Bartkus v. Illinois, (1959) 359 U.S. 121.
21Pearson v. McGraw, (1939) 308 U.S. 313.
22Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.
23Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of Chicago, 120 Ill. 627; 12 N.E., 227; United States
Distilling Co. v. City of Chicago, 112 Ill. 19: Drew County v. Bennet, 43 Ark. 364; Merced County v. Fleming, Ill Cal.
46; 43 Pac. 392; Williams v. City Council of West Point, 68 Ga. 816; Cheny v. Shellbyville, 19 Ind. 84; Wiley y.
Owens, 39 Ind. 429; Sweet v. City of Wabash, 41 Ind. 7; Jones v. Grady, 25 La. Ann. 586; Goldsmith v. City of
New Orleans, 31 La. Ann. 646; People ex rel., Cramer v. Medberry, 39 N.Y.S. 207; 17 Misc. Rep., 8 ; McGuigan v.
Town of Belmont, 89 Wis. 637; 62 N.W., 421; Ex parte Burnett 30 Ala. 461; Craig v. Burnett 32 Ala., 728, and
Muhlenbrinck v. Long Branch Commissioner, 42 N.J.L. 364; 36 Am. Rep., 518. At pp. 829-830.
2498 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. v. Butler,
297 US 1, 80 L. Ed 477; M'Culloch v. Maryland, 4 Wheat 316, 4 L. Ed 579. The Lutz decision was followed in
Republic v. Bacolod Murcia Milling, L-19824, July 9, 1966.
25Ormoc Sugar Co. v. Municipal Board of Ormoc City, L-24322, July 21, 1967.
26Physical Therapy Organization v. Municipal Board, (1957) 101 Phil. 1142.
27Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654, citing City of New Orleans v. Stafford, 27 L. Ann.
417.
28Rubi v. Provincial Board, (1919) 39 Phil. 660, at 706, citing Hall v. Geiger-Jones (1916), 242 U.S. 539; HardieTynes Manufacturing Co. vs. Cruz (1914), 189 Ala. 66.
29Calalang v. Williams (1940), 70 Phil. 726, at 733-734.
3046 Phil. 440 (1924). The Philippines was then under American sovereignty, American Supreme Court decisions
having thus an obligatory effect. No alternative was left to this Court except to follow the then controlling decision
in Adkins v. Children's Hospital (1924), 261 U.S. 525, which subsequently was overruled in West Coast Hotel v.
Parrish (1937), 300 U.S. 379.

31Antamok Goldfields Mining Co. v. Court (1940), 70 Phil. 340, at 360, quoting a concurring opinion of Justice
Laurel in Ang Tibay v. Court, G.R. No. 46496.
32Cf. "In weighing arguments of the parties it is important to distinguish between the due process clause of the
Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in
which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment because
it also collides with the principles of the First, is much more definite than the test when only the Fourteen is
involved. Much of the vagueness of the due process clause disappears when the specific prohibition of the First
become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the
due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational
basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may well be infringed on
such slender grounds. They are susceptible of restriction only to prevent an immediate danger to interests which
the state may lawfully protect." (West Virginia State Bd. of Edu v. Barnette, (1942), 319 U.S. 624, at 639).
33269 U.S. 385 (1926).
3417 L. ed. 2d 149, Nov. 14, 1966.
35Roschen v. Ward (1929), 279 U. S. 337,339.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-42571-72 July 25, 1983
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT, ROSALIA
FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE
CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO
GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES
SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO MENDOZA as the
Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal corporation, Bocaue, Bulacan,
represented by respondents, 1 can, prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a
lawful occupation, such clubs employing hostesses. It is contended that the ordinance assailed as invalid is tainted with
nullity, the municipality being devoid of power to prohibit a lawful business, occupation or calling, petitioners at the same
time alleging that their rights to due process and equal protection of the laws were violated as the licenses previously
given to them was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall be known and
may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2. Definitions of Terms (a)
'Night Club' shall include any place or establishment selling to the public food or drinks where customers are allowed to
dance. (b) 'Cabaret' or 'Dance Hall' shall include any place or establishment where dancing is permitted to the public and
where professional hostesses or hospitality girls and professional dancers are employed. (c) 'Professional hostesses' or
'hospitality girls' shall include any woman employed by any of the establishments herein defined to entertain guests and
customers at their table or to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of
the establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by the persons
she dances with. (e) 'Operator' shall include the owner, manager, administrator or any person who operates and is
responsible for the operation of any night club, cabaret or dance hall. Section 3. Prohibition in the Issuance and
Renewal of Licenses, Permits. Being the principal cause in the decadence of morality and because of their other
adverse effects on this community as explained above, no operator of night clubs, cabarets or dance halls shall
henceforth be issued permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be
issued to any professional hostess, hospitality girls and professional dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said establishments

shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and Licenses. The licenses and
permits issued to operators of night clubs, cabarets or dance halls which are now in operation including permits issued to
professional hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the thirty-day
period given them as provided in Section 8 hereof and thenceforth, the operation of these establishments within the
jurisdiction of the municipality shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions
of this Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or
both at the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty provided herein. Section 6. Separability Clause.
If, for any reason, any section or provision of this Ordinance is held unconstitutional or invalid, no other section or
provision hereof shall be affected thereby. Section 7. Repealing Clause. All ordinance, resolutions, circulars,
memoranda or parts thereof that are inconsistent with the provisions of this Ordinance are hereby repealed. Section 8.
Effectivity. This Ordinance shall take effect immediately upon its approval; provided, however, that operators of night
clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and professional
dancers are given a period of thirty days from the approval hereof within which to wind up their businesses and comply
with the provisions of this Ordinance." 4
On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of First Instance of
Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the law, as the license
previously given to petitioners was in effect withdrawn without judicial hearing. 3. That under Presidential Decree No. 189,
as amended, by Presidential Decree No. 259, the power to license and regulate tourist-oriented businesses including
night clubs, has been transferred to the Department of Tourism." 6 The cases were assigned to respondent Judge, now
Associate Justice Paras of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The
answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by law not only to
regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section 2243 of the RAC,
CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not violative of petitioners' right to due
process and the equal protection of the law, since property rights are subordinate to public interests. 3. That Presidential
Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit night
clubs." 7 There was the admission of the following facts as having been established: "l. That petitioners Vicente de la
Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner
Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner
Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3. That the night
clubs are well-lighted and have no partitions, the tables being near each other; 4. That the petitioners owners/operators of
these clubs do not allow the hospitality girls therein to engage in immoral acts and to go out with customers; 5. That these
hospitality girls are made to go through periodic medical check-ups and not one of them is suffering from any venereal
disease and that those who fail to submit to a medical check-up or those who are found to be infected with venereal
disease are not allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns of
Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84
and dismissing the cases. Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set forth in the
opening paragraph thus: "Those who lust cannot last. This in essence is why the Municipality of Bocaue, Province of
Bulacan, stigmatized as it has been by innuendos of sexual titillation and fearful of what the awesome future holds for it,
had no alternative except to order thru its legislative machinery, and even at the risk of partial economic dislocation, the
closure of its night clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the current legal and social revolution, hereby [upholds] in the
name of police power the validity and constitutionality of Ordinance No. 84, Series of 1975, of the Municipal Council of
Bocaue, Bulacan. The restraining orders heretofore issued in these two cases are therefore hereby rifted, effective the
first day of February, 1976, the purpose of the grace period being to enable the petitioners herein to apply to the proper
appellate tribunals for any contemplated redress." 9 This Court is, however, unable to agree with such a conclusion and
for reasons herein set forth, holds that reliance on the police power is insufficient to justify the enactment of the assailed
ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General power of council to enact
ordinances and make regulations. - The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law
and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein." 10 It is practically a reproduction of the former Section 39 of Municipal Code. 11 An
ordinance enacted by virtue thereof, according to Justice Moreland, speaking for the Court in the leading case of United
States v. Abendan 12 "is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of the
Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in

derogation of common right. Where the power to legislate upon a given subject, and the mode of its exercise and the
details of such legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of the
power, or it will be pronounced invalid." 13 In another leading case, United States v. Salaveria, 14 the ponentethis time
being Justice Malcolm, where the present Administrative Code provision was applied, it was stated by this Court: "The
general welfare clause has two branches: One branch attaches itself to the main trunk of municipal authority, and relates
to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. With this class we are not here directly concerned. The second branch of the
clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such
ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein.' It is a general rule that ordinances passed by virtue of the implied power found in the
general welfare clause must be reasonable, consonant with the general powersand purposes of the corporation, and not
inconsistent with the laws or policy of the State." 15If night clubs were merely then regulated and not prohibited, certainly
the assailed ordinance would pass the test of validity. In the two leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and purposes of municipal corporations, as well as consistency with
the laws or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could
qualify under the term reasonable. The objective of fostering public morals, a worthy and desirable end can be attained by
a measure that does not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth.
The purpose sought to be achieved could have been attained by reasonable restrictions rather than by an absolute
prohibition. The admonition in Salaveria should be heeded: "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." 16 It is clear that in
the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the
case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and
salaries to be earned by those therein employed.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally enacted on June 20,
1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO REGULATE
THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR
RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city
board or council of each chartered city shall have the power to regulate by ordinance the establishment, maintenance and
operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and
other similar places of amusement within its territorial jurisdiction: ... " 19 Then on May 21, 1954, the first section was
amended to include not merely "the power to regulate, but likewise "Prohibit ... " 20 The title, however, remained the
same. It is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the above portion of
the Act were considered, a municipal council may go as far as to prohibit the operation of night clubs. If that were all, then
the appealed decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It was
not changed one whit. The exact wording was followed. The power granted remains that of regulation, not prohibition.
There is thus support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution mandates: "Every
bill shall embrace only one subject which shall be expressed in the title thereof. "21 Since there is no dispute as the title
limits the power to regulating, not prohibiting, it would result in the statute being invalid if, as was done by the Municipality
of Bocaue, the operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power
"to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of the Administrative
Code, such competence extending to all "the great public needs, 23 to quote from Holmes, and to interdict any calling,
occupation, or enterprise. In accordance with the well-settled principle of constitutional construction that between two
possible interpretations by one of which it will be free from constitutional infirmity and by the other tainted by such grave
defect, the former is to be preferred. A construction that would save rather than one that would affix the seal of doom
certainly commends itself. We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-enacted Local
Government Code. 25 The general welfare clause, a reiteration of the Administrative Code provision, is set forth in the first
paragraph of Section 149 defining the powers and duties of the sangguniang bayan. It read as follows: "(a) 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; ..." 26 There are in addition provisions that may have a
bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr) Regulate cafes, restaurants, beerhouses, hotels, motels, inns, pension houses and lodging houses, except travel agencies, tourist guides, tourist
transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the
licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on the
taxing or regulatory powers of the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths
or massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses and
other forms of entertainment; ..." 27 It is clear that municipal corporations cannot prohibit the operation of night clubs.

They may be regulated, but not prevented from carrying on their business. It would be, therefore, an exercise in futility if
the decision under review were sustained. All that petitioners would have to do is to apply once more for licenses to
operate night clubs. A refusal to grant licenses, because no such businesses could legally open, would be subject to
judicial correction. That is to comply with the legislative will to allow the operation and continued existence of night clubs
subject to appropriate regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary
result of an affirmance, would amount to no more than a temporary termination of their business. During such time, their
employees would undergo a period of deprivation. Certainly, if such an undesirable outcome can be avoided, it should be.
The law should not be susceptible to the reproach that it displays less than sympathetic concern for the plight of those
who, under a mistaken appreciation of a municipal power, were thus left without employment. Such a deplorable
consequence is to be avoided. If it were not thus, then the element of arbitrariness enters the picture. That is to pay less,
very much less, than full deference to the due process clause with its mandate of fairness and reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand sustaining police power
legislation to promote public morals. The commitment to such an Ideal forbids such a backward step. Legislation of that
character is deserving of the fullest sympathy from the judiciary. Accordingly, the judiciary has not been hesitant to lend
the weight of its support to measures that can be characterized as falling within that aspect of the police power. Reference
is made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 There is
a misapprehension as to what was decided by this Court. That was a regulatory measure. Necessarily, there was no valid
objection on due process or equal protection grounds. It did not prohibit motels. It merely regulated the mode in which it
may conduct business in order precisely to put an end to practices which could encourage vice and immorality. This is an
entirely different case. What was involved is a measure not embraced within the regulatory power but an exercise of an
assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators
Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear that there is no
need to satisfy such a requirement if a statute were void on its face. That it certainly is if the power to enact such
ordinance is at the most dubious and under the present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976 reversed, set
aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is declared void and unconstitutional.
The temporary restraining order issued by this Court is hereby made permanent. No costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez, Jr., JJ., concur.
Makasiar, J, reserves his right to file a dissent.
De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.
Footnotes
1 Municipal Mayor Matias Ramirez and Municipal Vice-Mayor Mario Mendoza.
2 Petition, 7. The other question raised was the jurisdiction of a municipal council to prohibit the operation
of nightclubs, it being alleged that the power of regulating tourist-oriented businesses being granted to the
then Department, now Ministry, of Tourism.
3 Ordinance No. 84, Series of 1975.
4 Ibid.
5 Vicente de la Cruz, et al. v. Matias Ramirez, et al., and Teresita Calot, et al. v. The Municipal Mayor,
docketed as Civil Cases Nos. 4755-M and 4756-M, respectively. On November 21, 1975, the petition in
one of the above cases was amended to raise the further issue of lack of authority of respondent
Municipal Officials to pass the ordinance in question, since the power to license, supervise and regulate
night clubs has been transferred to the Department of Tourism by virtue of Presidential Decree No. 189,
as amended.
6 Petition, 7.
7 Ibid, 8.
8 Ibid, 8-9.
9 Decision, Annex A to Petition 1.
10 Section 2238, Revised Administrative Code of the Philippines (1917).
11 Act No. 82 (1901).
12 24 Phil. 165 (1913). Abendan is followed in United States v. Tamparong, 31 Phil. 321 (1915); United
States v. Gaspay, 33 Phil. 96 (1915) and Sarmiento v. Balderol, 112 Phil. 394 (1961).

13 Ibid, 168. Cf. United States v. Ten Yu, 24 Phil. 1 (1912); Case v. Board of Health, 24 Phil. 250 (1913).
14 39 Phil. 102 (1918).
15 Ibid, 109-110.
16 Ibid, 111. In Salaveria though the ordinance penalizing the playing of panguingue on days not Sundays
or legal holidays was declared as valid.
17 It was amended by Republic Act No. 979 and Republic Act No. 1224.
18 Title of Republic Act No. 938 as amended.
19 Republic Act No. 938, Section 1.
20 Republic Act No. 979, Section 1.
21 Article VIII, Section 19, par. 1 of the Constitution.
22 Section 2238.
23 Otis v. Parker, 187 US 606 (1902).
24 Cf. Nuez v. Sandiganbayan, G.R. Nos. 50581-50617, January 30, 1982, 111 SCRA 433. Separate
opinion of Justice Makasiar. De la Llana v. Alba, G.R. No. 57883, March 12,1982,112 SCRA 294.
25 Batas Pambansa Blg. 337 (1983). Under Section 234 of the Code it took effect one month after its
publication in the Official Gazette. It was published in the issue of February 14,1983.
26 Ibid, Section 149 (1) (a).
27 Ibid, Section 149 (1) (rr, ss and tt ).
28 L-24693, 20 SCRA 849, July 31, 1967.

CITY OF MANILA VS. LAGUIO

~ VBDIAZ
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in his
capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of Manila, et.al vs. HON.
PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION
G.R. No. 118127, April 12, 2005
FACTS: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of
operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court in Malate which was licensed as a
motel although duly accredited with the DOT as a hotel. On 28 June 1993, MTDC filed a Petition for Declaratory Relief
with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7 with the lower court impleading as
defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the
City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among
its prohibited establishments, be declared invalid and unconstitutional.
Enacted by the City Council and approved by petitioner City Mayor, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN
FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.
Judge Laguio rendered the assailed Decision (in favour of respondent).
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower
court in its ruling:
(1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive
exercise of police power;
(2) It erred in holding that the questioned Ordinance contravenes P.D. 499 which allows operators of all kinds of
commercial establishments, except those specified therein; and

(3) It erred in declaring the Ordinance void and unconstitutional.

ISSUE: WON the ordinance is unconstitutional.
HELD: The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra
vires and therefore null and void.
The tests of a valid ordinance are well established. A long line of decisions 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 must be passed 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.
The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting
as agent of Congress. This delegated police power is found in Section 16 of the LGC, known as the general welfare
clause.
The inquiry in this Petition is concerned with the validity of the exercise of such delegated power.
A. The Ordinance contravenes
the Constitution
The enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to
general laws.
The police power granted to LGUs must always be exercised with utmost observance of the rights of the people to due
process and equal protection of the law. Due process requires the intrinsic validity of the law in interfering with the rights of
the person to his life, liberty and property.
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from
the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished
from those of a particular class, require an interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.60 It must be evident that
no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation
must exist between the purposes of the police 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.
Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights a violation of the due process clause.
The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the
community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City
Councils police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive.
The worthy aim of fostering public morals and the eradication of the communitys social ills can be achieved through
means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition.
The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no
reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of the community; it will not in itself
eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.
The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community.
While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot
be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption.

If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses
or permits; it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose
increased license fees. In other words, there are other means to reasonably accomplish the desired end.
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental
interference itself, infringes on the constitutional guarantees of a persons fundamental right to liberty and property.
Modality employed is
unlawful taking
It is an ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes
beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and
violative of the private property rights of individuals.
There are two different types of taking that can be identified. A possessory taking occurs when the government
confiscates or physically occupies property. A regulatory taking occurs when the governments regulation leaves no
reasonable economically viable use of the property.
What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no
reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. When
the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking.
The Ordinance gives the owners and operators of the prohibited establishments three (3) months from its approval
within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said
businesses to other kinds of business allowable within the area. The directive to wind up business operations amounts
to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner
converts his establishment to accommodate an allowed business, the structure which housed the previous business will
be left empty and gathering dust. It is apparent that the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed
businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in
Section 4 of the Ordinance is also equivalent to a taking of private property.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid
exercise of police power, which limits a wholesome property to a use which can not reasonably be made of it constitutes
the taking of such property without just compensation. Private property which is not noxious nor intended for noxious
purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of
justice as we know them. The police powers of local government units which have always received broad and liberal
interpretation cannot be stretched to cover this particular taking.
Further, The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments.
Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications
whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be
tested, are unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement
could be secured. Similarly, the Ordinance does not specify the standards to ascertain which establishments tend to
disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community.
The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers
in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process
clause. These lawful establishments may be regulated, but not prevented from carrying on their business.
B. The Ordinance violates Equal

Protection Clause
In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or
other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and
other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging
houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly
treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions
bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but
not outside of this area. A noxious establishment does not become any less noxious if located outside the area.
The standard where women are used as tools for entertainment is also discriminatory as prostitution one of the hinted
ills the Ordinance aims to banishis not a profession exclusive to women. Both men and women have an equal
propensity to engage in prostitution. Thus, the discrimination is invalid.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code (Sec 458) as the latter merely empowers local government units to
regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
With respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation
and maintenance of such establishments.
It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety
of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels
are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its
summary abatement without judicial intervention.
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly
argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The
decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open
storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral
establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the
powers of the council to enact but the same must not be in conflict with or repugnant to the general law.
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is
constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is not
sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
Petition Denied.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

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 Decision 3in 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. 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.
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
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.24First, 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.27The
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 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. 40ErmitaMalate 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.
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.51Footnote 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."52Consequently, 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.60Strict 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,62judicial 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]
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.
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.
6 Id. at 45-46.
7 Id. at 70-77.
8 Id. at 47.
9Id.
10Id.
11Id. at 48.
12Id. at 81.
13Id. at 82-83.
14Id. at 84-99.
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.
24 Id. at 43-59.
25 Id. at 4-40.
26 Allen v. Wright, 468 U.S. 737 (1984).
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.
30 468 U.S. 737 (1984).
31Supra note 29.
32 499 U.S. 400 (1991).
33 Id. at p 410-411.
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.
35 381 U.S. 479(1965).
36 Id. at 481.
37429 U.S. 190 (1976).
38Id. at 194.
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, 268267.
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).
44 U.S. v. Rodriguez, 38 Phil. 759.
45 People v. Chan, 65 Phil. 611 (1938).
46 Javier v. Earnshaw, 64 Phil. 626 (1937).
47 Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).
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).
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).
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.
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).
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, 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.
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).
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.
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:
. . . 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.

G.R. No. L-38429 June 30, 1988

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch 11, and the CITY OF
BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.
GANCAYCO, J.:
At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the
Municipal Board of the City of Butuan on April 21, 1969, the title and text of which are reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION
ENGAGED IN THE BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER
PUBLIC EXHIBITIONS, GAMES, CONTESTS OR OTHER PERFORMANCES TO REQUIRE CHILDREN
BETWEEN SEVEN (7) AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS
INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session assembled, that:
SECTION 1It shall be unlawful for any person, group of persons, entity, or corporation engaged in the
business of selling admission tickets to any movie or other public exhibitions, games, contests, or other
performances to require children between seven (7) and twelve (12) years of age to pay full payment for
admission tickets intended for adults but should charge only one-half of the value of the said tickets.
SECTION 2Any person violating the provisions of this Ordinance shall upon conviction be punished by
a fine of not less than TWO HUNDRED PESOS (P200.00) but not more than SIX HUNDRED PESOS
(P600.00) or an imprisonment of not less than TWO (2) MONTHS or not more than SIX (6) MONTHS or
both such firm and imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed upon the Manager, Agent or
Representative of such firm or corporation.
SECTION 3This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and Dalisay Theaters, the
Crown Theater, and the Diamond Theater, respectively. Aggrieved by the effect of Ordinance No. 640, they filed a
complaint before the Court of First Instance of Agusan del Norte and Butuan City docketed as Special Civil Case No. 237
on June 30, 1969 praying, inter alia, that the subject ordinance be declared unconstitutional and, therefore, void and
unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court a quo enjoining
the respondent City of Butuan and its officials from enforcing Ordinance No. 640. 3 On July 29, 1969, respondents filed
their answer sustaining the validity of the ordinance. 4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the respondent court rendered its
decision, 6 the dispositive part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the respondents and
against the petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: Provided, however, that the
fine for a single offense shall not exceed TWO HUNDRED PESOS, as prescribed in the aforequoted
Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in a resolution of the
said court dated November 10, 1973. 9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra vires and an invalid
exercise of police power.
Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to enact as provided for in
Section 15(n) of Republic Act No. 523, the Charter of the City of Butuan, which states:

Sec. 15. 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
(n) To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical
performances, cinematographs, public exhibitions and all other performances and places of
amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by invoking the general
welfare clause embodied in Section 15 (nn) of the cited law, which provides:
(nn) 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 may be necessary to carry into
effect and discharge the powers and duties conferred by this Act, and to fix the penalties for the violation
of the ordinances, which shall not exceed a two hundred peso fine or six months imprisonment, or both
such fine and imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of license fees for theaters,
theatrical performances, cinematographs, public exhibitions and other places of amusement has been expressly granted
to the City of Butuan under its charter. But the question which needs to be resolved is this: does this power to regulate
include the authority to interfere in the fixing of prices of admission to these places of exhibition and amusement whether
under its general grant of power or under the general welfare clause as invoked by the City?
This is the first time this Court is confronted with the question of direct interference by the local government with the
operation of theaters, cinematographs and the like to the extent of fixing the prices of admission to these places. Previous
decisions of this Court involved the power to impose license fees upon businesses of this nature as a corollary to the
power of the local government to regulate them. Ordinances which required moviehouses or theaters to increase the price
of their admission tickets supposedly to cover the license fees have been held to be invalid for these impositions were
considered as not merely license fees but taxes for purposes of revenue and not regulation which the cities have no
power to exact, 10 unless expressly granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was interpreted to include the power to
control, to govern and to restrain, it would seem that under its power to regulate places of exhibitions and amusement, the
Municipal Board of the City of Butuan could make proper police regulations as to the mode in which the business shall be
exercised.
While in a New York case, 13 an ordinance which regulates the business of selling admission tickets to public exhibitions or
performances by virtue of the power of cities under the General City Law "to maintain order, enforce the laws, protect
property and preserve and care for the safety, health, comfort and general welfare of the inhabitants of the city and visitors
thereto; and for any of said purposes, to regulate and license occupations" was considered not to be within the scope of
any duty or power implied in the charter. It was held therein that the power of regulation of public exhibitions and places of
amusement within the city granted by the charter does not carry with it any authority to interfere with the price of
admission to such places or the resale of tickets or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters, cinematographs and other places of public exhibition
are subject to regulation by the municipal council in the exercise of delegated police power by the local
government. 14 Thus, in People v. Chan, 15 an ordinance of the City of Manila prohibiting first run cinematographs from
selling tickets beyond their seating capacity was upheld as constitutional for being a valid exercise of police power. Still in
another case, 16 the validity of an ordinance of the City of Bacolod prohibiting admission of two or more persons in
moviehouses and other amusement places with the use of only one ticket was sustained as a valid regulatory police
measure not only in the interest of preventing fraud in so far as municipal taxes are concerned but also in accordance with
public health, public safety, and the general welfare.
The City of Butuan, apparently realizing that it has no authority to enact the ordinance in question under its power to
regulate embodied in Section 15(n), now invokes the police power as delegated to it under the general welfare clause to
justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest of the public generally requires an
interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. 17 The legislature may not, under the guise of protecting the public
interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful
occupations. In other words, the determination as to what is a proper exercise of its police power is not final or conclusive,
but is subject to the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for being oppressive,
unfair, unjust, confiscatory, and an undue restraint of trade, and violative of the right of persons to enter into contracts,
considering that the theater owners are bound under a contract with the film owners for just admission prices for general
admission, balcony and lodge.

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially police power, Inasmuch as the same
generally entails a curtailment of the liberty, the rights and/or the property of persons, which are protected
and even guaranteed by the Constitution, the exercise of police power is necessarily subject to a
qualification, limitation or restriction demanded by the regard, the respect and the obedience due to the
prescriptions of the fundamental law, particularly those forming part of the Constitution of Liberty,
otherwise known as the Bill of Rights the police power measure must be reasonable. In other words,
individual rights may be adversely affected by the exercise of police power to the extent only and only
to the extent--that may be fairly required by the legitimate demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the ordinance in question was passed shows
that a certain Councilor Calo, the proponent of the measure, had taken into account the complaints of parents that for
them to pay the full price of admission for their children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance does not spell out its raison d'etre in all probability the
respondents were impelled by the awareness that children are entitled to share in the joys of their elders, but that
considering that, apart from size, children between the ages of seven and twelve cannot fully grasp the nuance of movies
or other public exhibitions, games, contests or other performances, the admission prices with respect to them ought to be
reduced. 19a
We must bear in mind that there must be public necessity which demands the adoption of proper measures to secure the
ends sought to be attained by the enactment of the ordinance, and the large discretion is necessarily vested in the
legislative authority to determine not only what the interests of the public require, but what measures are necessary for the
protection of such interests. 20 The methods or means used to protect the public health, morals, safety or welfare, must
have some relation to the end in view, for under the guise of the police power, personal rights and those pertaining to
private property will not be permitted to be arbitralily invaded by the legislative department. 21
We agree with petitioners that the ordinance is not justified by any necessity for the public interest. The police power
legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes
and means. 22 The evident purpose of the ordinance is to help ease the burden of cost on the part of parents who have to
shell out the same amount of money for the admission of their children, as they would for themselves, A reduction in the
price of admission would mean corresponding savings for the parents; however, the petitioners are the ones made to bear
the cost of these savings. The ordinance does not only make the petitioners suffer the loss of earnings but it likewise
penalizes them for failure to comply with it. Furthermore, as petitioners point out, there will be difficulty in its
implementation because as already experienced by petitioners since the effectivity of the ordinance, children over 12
years of age tried to pass off their age as below 12 years in order to avail of the benefit of the ordinance. The ordinance
does not provide a safeguard against this undesirable practice and as such, the respondent City of Butuan now suggests
that birth certificates be exhibited by movie house patrons to prove the age of children. This is, however, not at all
practicable. We can see that the ordinance is clearly unreasonable if not unduly oppressive upon the business of
petitioners. Moreover, there is no discernible relation between the ordinance and the promotion of public health, safety,
morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious practice of movie operators
and other public exhibitions promoters or the like of demanding equal price for their admission tickets along with the
adults. This practice is allegedly repugnant and unconscionable to the interest of the City in the furtherance of the
prosperity, peace, good order, comfort, convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and adults. The petitioners are merely conducting
their legitimate businesses. The object of every business entrepreneur is to make a profit out of his venture. There is
nothing immoral or injurious in charging the same price for both children and adults. In fact, no person is under
compulsion to purchase a ticket. It is a totally voluntary act on the part of the purchaser if he buys a ticket to such
performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen the economic burden of
parents whose minor children are lured by the attractive nuisance being maintained by the petitioners. Respondent further
alleges that by charging the full price, the children are being exploited by movie house operators. We fail to see how the
children are exploited if they pay the full price of admission. They are treated with the same quality of entertainment as the
adults. The supposition of the trial court that because of their age children cannot fully grasp the nuances of such
entertainment as adults do fails to convince Us that the reduction in admission ticket price is justifiable. In fact, by the very
claim of respondent that movies and the like are attractive nuisances, it is difficult to comprehend why the municipal board
passed the subject ordinance. How can the municipal authorities consider the movies an attractive nuisance and yet
encourage parents and children to patronize them by lowering the price of admission for children? Perhaps, there is some
,truth to the argument of petitioners that Ordinance No. 640 is detrimental to the public good and the general welfare of
society for it encourages children of tender age to frequent the movies, rather than attend to their studies in school or be
in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater operators will be discouraged from

exhibiting wholesome movies for general patronage, much less children's pictures if only to avoid compliance with the
ordinance and still earn profits for themselves. For after all, these movie house and theater operators cannot be
compelled to exhibit any particular kind of film except those films which may be dictated by public demand and those
which are restricted by censorship laws. So instead of children being able to share in the joys of their elders as envisioned
by the trial court, there will be a dearth of wholesome and educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state courts of the United States which
upheld the right of the proprietor of a theater to fix the price of an admission ticket as against the right of the state to
interfere in this regard and which We consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of the theater or it
may be evidence of a contract whereby, for a valuable consideration, the purchaser has acquired the right to enter the
theater and observe the performance on condition that he behaves properly. 23 Such ticket, therefore, represents a right,
Positive or conditional, as the case may be, according to the terms of the original contract of sale. This right is clearly a
right of property. The ticket which represents that right is also, necessarily, a species of property. As such, the owner
thereof, in the absence of any condition to the contrary in the contract by which he obtained it, has the clear right to
dispose of it, to sell it to whom he pleases and at such price as he can obtain. 24 So that an act prohibiting the sale of
tickets to theaters or other places of amusement at more than the regular price was held invalid as conflicting with the
state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
The defendants were conducting a private business, which, even if clothed with a public interest, was
without a franchise to accommodate the public, and they had the right to control it, the same as the
proprietors of any other business, subject to such obligations as were placed upon them by statute. Unlike
a carrier of passengers, for instance, with a franchise from the state, and hence under obligation to
transport anyone who applies and to continue the business year in and year out, the proprietors of a
theater can open and close their place at will, and no one can make a lawful complaint. They can charge
what they choose for admission to their theater. They can limit the number admitted. They can refuse to
sell tickets and collect the price of admission at the door. They can preserve order and enforce quiet while
the performance is going on. They can make it a part of the contract and condition of admission, by giving
due notice and printing the condition in the ticket that no one shall be admitted under 21 years of age, or
that men only or women only shall be admitted, or that a woman cannot enter unless she is accompanied
by a male escort, and the like. The proprietors, in the control of their business, may regulate the terms of
admission in any reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or
make the contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet
upon the condition, and the purchaser impliedly promises to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs. Banton, 27 the United States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a public utility; and quite as certainly, its
activities are not such that their enjoyment can be regarded under any conditions from the point of view of
an emergency.
The interest of the public in theaters and other places of entertainment may be more nearly, and with
better reason, assimilated to the like interest in provision stores and markets and in the rental of houses
and apartments for residence purposes; although in importance it fails below such an interest in the
proportion that food and shelter are of more moment than amusement or instruction. As we have shown
there is no legislative power to fix the prices of provisions or clothing, or the rental charges for houses and
apartments, in the absence of some controlling emergency; and we are unable to perceive any
dissimilarities of such quality or degree as to justify a different rule in respect of amusements and
entertainment ...
We are in consonance with the foregoing observations and conclusions of American courts. In this jurisdiction, legislation
had been passed controlling the prices of goods commodities and drugs during periods of emergency, 28limiting the net
profits of public utility 29 as well as regulating rentals of residential apartments for a limited period, 30 as a matter of national
policy in the interest of public health and safety, economic security and the general welfare of the people. And these laws
cannot be impugned as unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense could these
businesses be considered public utilities. The State has not found it appropriate as a national policy to interfere with the
admission prices to these performances. This does not mean however, that theaters and exhibitions are not affected with
public interest even to a certain degree. Motion pictures have been considered important both as a medium for the
communication of Ideas and expression of the artistic impulse. Their effects on the perceptions by our people of issues
and public officials or public figures as well as the prevailing cultural traits are considerable. 31People of all ages flock to
movie houses, games and other public exhibitions for recreation and relaxation. The government realizing their
importance has seen it fit to enact censorship laws to regulate the movie industry. 32 Their aesthetic entertainment and
even educational values cannot be underestimated. Even police measures regulating the operation of these businesses
have been upheld in order to safeguard public health and safety.

Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the same must be
resolved in the negative. While it is true that a business may be regulated, it is equally true that such regulation must be
within the bounds of reason, that is, the regulatory ordinance must be reasonable, and its provisions cannot be oppressive
amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may
not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. 33 A police
measure for the regulation of the conduct, control and operation of a business should not encroach upon the legitimate
and lawful exercise by the citizens of their property rights. 34 The right of the owner to fix a price at which his property shall
be sold or used is an inherent attribute of the property itself and, as such, within the protection of the due process
clause."" Hence, the proprietors of a theater have a right to manage their property in their own way, to fix what prices of
admission they think most for their own advantage, and that any person who did not approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in favor of the validity of the ordinance. This maybe the
rule but it has already been held that although the presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the
face of the ordinance itself or is established by proper evidence. 37 The exercise of police power by the local government is
valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy
or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. 38
Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We could assume that, on its
face, the interference was reasonable, from the foregoing considerations, it has been fully shown that it is an unwarranted
and unlawful curtailment of the property and personal rights of citizens. For being unreasonable and an undue restraint of
trade, it cannot, under the guise of exercising police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED and SET ASIDE and a
new judgment is hereby rendered declaring Ordinance No. 640 unconstitutional and, therefore, null and void. This
decision is immediately executory.
SO ORDERED.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Grio-Aquino, JJ., concur.

Separate Opinions
GUTIERREZ, JR., J., Separate opinion
The issue before the Court is a simple one. Does Butuan City have the power to compel theatre owners to charge only
half fares for children below twelve even as they charge all other moviegoers full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping justification of property rights, I believe,
however, that we should do so on a more limited ground directly bearing on the issue.
I find no rational basis for classifying children as a distinct group insofar as paying for admission into a moviehouse is
concerned. There is absolutely no pretense that the municipal ordinance is intended to protect children, enhance their
morals, promote their health, safeguard their safety, improve their education, or otherwise promote the general welfare. In
fact, the effect of the ordinance may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they may neglect their studies or use money
intended for food or school supplies to enter moviehouses. Movie owners who are compelled to accept half prices for a
newly increased group of young patrons will be tempted to allow them to enter moviehouses indiscriminately, including
those where scenes of violence, crime, or even sex are portrayed. Addiction of the young to movie going is definitely
injurious to their health.
The avowed purpose of the ordinance--to ease the burden of costs for parents who have to shell out the same amount of
money for the admission of their children as they would for themselves is not covered by police power. If the city cannot
compel refreshment parlors to charge half-prices for hamburgers, soft drinks, pizzas, or cakes consumed by children by
what authority can it impose the obligation of similarly easing parents' burdens upon the owners of moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise of protecting the public interest, arbitrarily
interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. The imposition
enacted by the municipal board of Butuan City has not been justified by its proponents as a restriction necessary for
public health or public welfare. No reasonable relationship has been shown between a valid purpose and the proper
means to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound a laissez faire approach insofar as their
businesses are concerned. Movie houses may not be public utilities but as places of entertainment affected with a certain
degree of public interest, they are subject to reasonable regulation. That regulation is stronger and more restrictive than
that of regular or ordinary businesses.
The following citation for instance, is pure obiter insofar as half-prices for minors are concerned:

... [T]he proprietors of a theater can open and close their place at will, and no one can make lawful
complaint. They can charge what they choose for admission to their theater. They can limit the number
admitted. They can refuse to sell tickets and collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on. They can make it a part of the contract and a
condition of admission, by giving due notice and printing the condition in the ticket that no one shall be
admitted under 21 years of age, or that men only or women only shall be admitted, or that a woman
cannot enter unless she is accompanied by a male escort, and the like. The proprietors, in the control of
their business, may regulate the terms of admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the contract. If the terms are satisfactory, and the
contract is made, the minds of the parties meet upon the condition, and the purchaser impliedly promises
to perform it. (Collister v. Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St. Rep.
740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not before us or warn municipal governments
beforehand to avoid enacting certain regulations when nobody knows exactly what circumstances may call for those
regulations.
For instance,
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of
the theater or it may be evidence of a contract whereby, for a valuable consideration, the purchaser has
acquired the right to enter the theater and observe the performance on condition that he behaves properly
(Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore, represents a right, positive
or conditional, as the case may be, according to the terms of the original contract of sale. This right is
clearly a right of property. The ticket which represents that right is also, necessarily, a species of property.
As such, the owner thereof, in the absence of any condition to the contrary y in the contract by which he
obtained it, has the clear right to dispose of it, to sell it to whom he pleases and at such price as he can
obtain Ibids, citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A. [N.S], 183, 117 Am. St. Rep. 11
5, 9 Ann. Ca. 747; Also People v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep. 321, 83
N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with
even by the exercise of police power. (Ogden City v. Leo, 54 Utah 556, 182 P. 530) A police measure for
the regulation of the conduct, control and operation of a business should not encroach upon the legitimate
and lawful exercise by the citizens of their property rights (Pampanga Bus Co., Inc. v. Municipality of
Tarlac, 3 SCRA 816). The right of the owner to fix a price at which his property shall be sold or used is an
inherent attribute of the property itself and, as such, within the protection of the due process clause
(Tyson and Bro.--United Theater Ticket Officers, Inc. v. Banton, supra). Hence the proprietors of a theater
have a right to manage their property in their own way, to fix what prices of admission they think most for
their own advantage, and that ally person who did not approve could stay away (Ibid, citing v. Clifford v.
Brandon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore municipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is invalid, it does not necessarily follow that
all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
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. v. Gomez Jesus, 31 Phil. 218; U.S. v. 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 1 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 secondhand films; and the third class
comprehends all those which are not included in the first and second classes.
xxx xxx xxx
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. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seating capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60 SCRA 274):
When it is further remembered that insofar as movie houses and other places of amusement are
concerned. (According to Section 17[1] of the City Charter of Bacolod, Commonwealth Act No. 326
119381: 'To regulate and fix the amount of the fees for the following: ... theatres, theatrical performances,
cinematographs, public exhibitions, circuses and all other performances and places of amusements ....")
the least doubt cannot be entertained as to the validity of a measure prohibiting a proprietor, lessee or
operator of an amusement place to admit two or more persons with only one admission ticket, not only in
the interest of preventing fraud insofar as municipal taxes are concerned but also in accordance with
public health, public safety and the general welfare. (Cf. People v. Chan, 65 Phil. 611 [1938]). An
American Supreme Court decision, Western Turf Association v. Greenberg, (204 US 359 [1907] the
opinion being penned by Justice Harlan is equally illuminating: 'The statute is only a regulation of places
of public entertainment and amusement upon terms of equal and exact justice to everyone holding a
ticket of admission, and who is not, at the time, under the influence of liquor, or boisterous in conduct, or
of lewd and immoral character. .... Such a regulation, in itself just, is likewise promotive of peace and
good order among those who attend places of public entertainment and amusement. It is neither an
arbitrary exertion of the state's inherent or governmental power, nor a violation of any right secured by the
constitution of the United States. (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police power. The invocation is improper. The
definitions of police power, including its exercise based on the general welfare clause, are emphasized to show that the
respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations. For a municipal corporation to
exercise police power, there must be a legislative grant which necessarily also sets the limits for the
exercise of the power.
In the Philippines, the grant of authority to the municipality to exercise police power is embodied in
Section 2238 of the Revised Administrative Code, otherwise known as the General Welfare Clause.
Chartered cities are granted similar authority in their respective charters
The general welfare clause has two branches. The first authorizes the municipal council to enact such
ordinances and make such regulations not repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal council by law. The second branch
authorizes the municipality to enact such ordinances as may be necessary and proper for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and inhabitants thereof, and for the protection of property therein. (U.S. v. Salaveria 39 Phil.
103).
This Court has generally been liberal in sustaining municipal action based on the general welfare clause. In the case
before us, however, there appears to be no basis for sustaining the ordinance even on a generous interpretation of the
general welfare clause.

Separate Opinions
GUTIERREZ, JR., J., Separate opinion
The issue before the Court is a simple one. Does Butuan City have the power to compel theatre owners to charge only
half fares for children below twelve even as they charge all other moviegoers full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping justification of property rights, I believe,
however, that we should do so on a more limited ground directly bearing on the issue.
I find no rational basis for classifying children as a distinct group insofar as paying for admission into a moviehouse is
concerned. There is absolutely no pretense that the municipal ordinance is intended to protect children, enhance their
morals, promote their health, safeguard their safety, improve their education, or otherwise promote the general welfare. In
fact, the effect of the ordinance may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they may neglect their studies or use money
intended for food or school supplies to enter moviehouses. Movie owners who are compelled to accept half prices for a
newly increased group of young patrons will be tempted to allow them to enter moviehouses indiscriminately, including
those where scenes of violence, crime, or even sex are portrayed. Addiction of the young to movie going is definitely

injurious to their health.

The avowed purpose of the ordinance--to ease the burden of costs for parents who have to shell out the same amount of
money for the admission of their children as they would for themselves is not covered by police power. If the city cannot
compel refreshment parlors to charge half-prices for hamburgers, soft drinks, pizzas, or cakes consumed by children by
what authority can it impose the obligation of similarly easing parents' burdens upon the owners of moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise of protecting the public interest, arbitrarily
interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. The imposition
enacted by the municipal board of Butuan City has not been justified by its proponents as a restriction necessary for
public health or public welfare. No reasonable relationship has been shown between a valid purpose and the proper
means to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound a laissez faire approach insofar as their
businesses are concerned. Movie houses may not be public utilities but as places of entertainment affected with a certain
degree of public interest, they are subject to reasonable regulation. That regulation is stronger and more restrictive than
that of regular or ordinary businesses.
The following citation for instance, is pure obiter insofar as half-prices for minors are concerned:
... [T]he proprietors of a theater can open and close their place at will, and no one can make lawful
complaint. They can charge what they choose for admission to their theater. They can limit the number
admitted. They can refuse to sell tickets and collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on. They can make it a part of the contract and a
condition of admission, by giving due notice and printing the condition in the ticket that no one shall be
admitted under 21 years of age, or that men only or women only shall be admitted, or that a woman
cannot enter unless she is accompanied by a male escort, and the like. The proprietors, in the control of
their business, may regulate the terms of admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the contract. If the terms are satisfactory, and the
contract is made, the minds of the parties meet upon the condition, and the purchaser impliedly promises
to perform it. (Collister v. Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St. Rep.
740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not before us or warn municipal governments
beforehand to avoid enacting certain regulations when nobody knows exactly what circumstances may call for those
regulations.
For instance,
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of
the theater or it may be evidence of a contract whereby, for a valuable consideration, the purchaser has
acquired the right to enter the theater and observe the performance on condition that he behaves properly
(Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore, represents a right, positive
or conditional, as the case may be, according to the terms of the original contract of sale. This right is
clearly a right of property. The ticket which represents that right is also, necessarily, a species of property.
As such, the owner thereof, in the absence of any condition to the contrary y in the contract by which he
obtained it, has the clear right to dispose of it, to sell it to whom he pleases and at such price as he can
obtain Ibids, citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A. [N.S], 183, 117 Am. St. Rep. 11
5, 9 Ann. Ca. 747; Also People v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep. 321, 83
N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with
even by the exercise of police power. (Ogden City v. Leo, 54 Utah 556, 182 P. 530) A police measure for
the regulation of the conduct, control and operation of a business should not encroach upon the legitimate
and lawful exercise by the citizens of their property rights (Pampanga Bus Co., Inc. v. Municipality of
Tarlac, 3 SCRA 816). The right of the owner to fix a price at which his property shall be sold or used is an
inherent attribute of the property itself and, as such, within the protection of the due process clause
(Tyson and Bro.--United Theater Ticket Officers, Inc. v. Banton, supra). Hence the proprietors of a theater
have a right to manage their property in their own way, to fix what prices of admission they think most for
their own advantage, and that ally person who did not approve could stay away (Ibid, citing v. Clifford v.
Brandon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore municipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is invalid, it does not necessarily follow that
all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):

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. v. Gomez Jesus, 31 Phil. 218; U.S. v. 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 1 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 secondhand films; and the third class
comprehends all those which are not included in the first and second classes.
xxx xxx xxx
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. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seating capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60 SCRA 274):
When it is further remembered that insofar as movie houses and other places of amusement are
concerned. (According to Section 17[1] of the City Charter of Bacolod, Commonwealth Act No. 326
119381: 'To regulate and fix the amount of the fees for the following: ... theatres, theatrical performances,
cinematographs, public exhibitions, circuses and all other performances and places of amusements ....")
the least doubt cannot be entertained as to the validity of a measure prohibiting a proprietor, lessee or
operator of an amusement place to admit two or more persons with only one admission ticket, not only in
the interest of preventing fraud insofar as municipal taxes are concerned but also in accordance with
public health, public safety and the general welfare. (Cf. People v. Chan, 65 Phil. 611 [1938]). An
American Supreme Court decision, Western Turf Association v. Greenberg, (204 US 359 [1907] the
opinion being penned by Justice Harlan is equally illuminating: 'The statute is only a regulation of places
of public entertainment and amusement upon terms of equal and exact justice to everyone holding a
ticket of admission, and who is not, at the time, under the influence of liquor, or boisterous in conduct, or
of lewd and immoral character. .... Such a regulation, in itself just, is likewise promotive of peace and
good order among those who attend places of public entertainment and amusement. It is neither an
arbitrary exertion of the state's inherent or governmental power, nor a violation of any right secured by the
constitution of the United States. (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police power. The invocation is improper. The
definitions of police power, including its exercise based on the general welfare clause, are emphasized to show that the
respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations. For a municipal corporation to
exercise police power, there must be a legislative grant which necessarily also sets the limits for the
exercise of the power.
In the Philippines, the grant of authority to the municipality to exercise police power is embodied in
Section 2238 of the Revised Administrative Code, otherwise known as the General Welfare Clause.
Chartered cities are granted similar authority in their respective charters
The general welfare clause has two branches. The first authorizes the municipal council to enact such
ordinances and make such regulations not repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal council by law. The second branch
authorizes the municipality to enact such ordinances as may be necessary and proper for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and inhabitants thereof, and for the protection of property therein. (U.S. v. Salaveria 39 Phil.
103).
This Court has generally been liberal in sustaining municipal action based on the general welfare clause. In the case
before us, however, there appears to be no basis for sustaining the ordinance even on a generous interpretation of the
general welfare clause.
Footnotes

1 Pages 1-8, Record on Appeal.

2 Pages 11-17, supra.
3 Pages 17-18, supra.
4 Pages 21-23, supra.
5 Pages 25-26, supra.
6 Pages 18-28, Rollo.
7 Penned by Judge Vicente B. Echaves, Jr.
8 Pages 35-41, Record on Appeal.
9 Pages 47-49, supra.
10 Lacson v. Bacolod City, 4 SCRA 1001; Arong v. Raffinan, 98 Phil. 422, citing City of Baguio v. Jose de
la Rosa, et al., G.R. No. L-8268-70.
11 Eastern Theatrical Company, Inc. v. Victor Antonio et al., 46 O.G. (supp.) 30, cited in Along v.
Raffinan, supra.
12 41 Phil. 103. See also Samson v. Mayor of Bacolod City, 60 SCRA 267.
13 In re Gilchrist, 181 N.Y.S. 245, 110 Misc. Rep. 362.
14 Sec. 2238 of the Revised Administrative Code of 1917, as amended, now found in Sec. 149(a) and
Sec. 177(a) of the Local Government Code. The general welfare clause has been similarly set forth in
various city charters.
15 65 Phil, 611.
16 Samson v. Mayor of Bacolod City, supra.
17 U.S. v. Toribio 15 Phil. 85; Fable v. City of Manila, 21 Phil. 486; Kwong Sing v. City of Manila, supra.
18 Fable v. City of Manila, supra.
19 24 SCRA 856.
19a Page 25, Rollo.
20 Fabie v. City of Manila, supra.
21 Kirtley v. State, 84 N.E. 2d. 712.
22 Ichong v. Hernandez, 101 Phil. 11 51.
23 Law of the Stage, Screen and Radio by Marchetti, 1939 ed., page 268.
24 Ibid, citing Ex-parte Quarg, 84 Pac. 766, 149 Cal. 79, 80, 5 L.R.A. (N.S.) 183, 117 Am. St. Rep. 115, 9
Ann. Ca 747; Also, People v. Steele, 231 Ill. 340, 344,14 L.R.A. (N.S.) 361, 121 Am. St. Rep. 321, 83 N.E.
236.
25 Ex-Parte Quarg, supra.
26 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. (N.S.) 1188, 11 Am. St.
Rep. 740, An Cas. 344.
27 273 U.S. 418-456.
28 People v. Chuchi, Phil. 977; People v. Dela Cruz, 92 Phil. 906.
29 Alalayan v. National Power Corporation, 24 SCRA 172.
30 B.P. Blg. 877. See also Homeowners' Association of the Philippines, Inc. v. Municipal Board of
Manila, supra.
31 Gonzales v. Kalaw-Katigbak, 137 SCRA 717.
32 P.D. No. 1986, amending R.A. 3060.
33 Ogden City v. Leo, 54 Utah 556,182 P. 530.
34 Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3 SCRA 816.
35 Tyson and Bro.--United Theater Ticket Officers Inc. v. Banton, supra.
36 Ibid, citing Clifford v. Brandon, 2 Campb 358, 368.
37 Dela Cruz v. Paras, 123 SCRA 569; U.S. v. Salaveria,, 39 Phil. 102.
38 De la Cruz v. Paras, 123 SCRA 569; U.S. Salaveria, 39 Phil. 102.

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING
CORPORATION,respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic
organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups
and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest,
describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its
operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation,
Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino
there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it
enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING
EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE
USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled
that:
Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial
jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation
of casino within the city limits.
Sec. 2. That it shall be a violation of existing business permit by any persons, partnership or
corporation to use its business establishment or portion thereof, or allow the use thereof by others for
casino operation and other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business permit as defined in the preceding
section shall suffer the following penalties, to wit:
a) Suspension of the business permit for sixty (60) days for the first
offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months for the second
offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and imprisonment of
One (1) year, for the third and subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR
VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution
No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its
policy against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of
Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to
be used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991
(Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local
Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity
inimical to public morals and general welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect social and moral welfare of the community;

NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation
undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of
P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of
general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and
supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances
invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was denied on July
13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court. 3 They
aver that the respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the
power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the
City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1)
(v) of R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore
invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes
of the instrumentality concerned and inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May
14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including
casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and
Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to
the national economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of
Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated
in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare
Clause now embodied in Section 16 as follows:
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.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and
in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and impose
appropriate penalties for habitual drunkenness in public places,
vagrancy, mendicancy, prostitution, establishment and maintenance of

houses of ill repute, gamblingand other prohibited games of chance,

fraudulent devices and ways to obtain money or property, drug addiction,
maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the welfare and morals
of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within their territorial limits
in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of
casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general
law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised
over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation
of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to
prohibit them within its territory pursuant to the authority entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25,
and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the
nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the
Local Government Code has recognized the competence of such communities to determine and adopt the measures best
expected to promote the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress
gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant allforms of gambling
without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise, it would have expressly excluded
from the scope of their power casinos and other forms of gambling authorized by special law, as it could have easily done.
The fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling
within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The
Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them.
More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do
not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the
doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal
interpretation in favor of the local government units. Section 5 of the Code specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules
shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in
case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower
local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted
in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local
government units in accelerating economic development and upgrading the quality of life for the people in
the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and
several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State
policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case
of U.S. v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry
the immorality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument")
in creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the
Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical
to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for
that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of
gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which

this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of
conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom,
morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and
executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever
way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately
judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 337593 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down
by law and not by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must
conform to the following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to
prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes
games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in
claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section
is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or
given the same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is
associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling
which, like the other prohibited games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts
of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve
more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein
insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City.
The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D.
1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the
Local Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has
been, not really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a
casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government
Code is permissible because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modifiedpro
tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the
Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not
only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458
of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no
choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling.
Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be
prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this
situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able
to exercise its powers as a prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the
provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the
Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will
disclose the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda
and issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a
(3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No.
144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended;

Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos.
381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of
Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended,
and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable
showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of
later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this
intention must be given effect; but there must always be a sufficient revelation of this intention, and it has
become an unbending rule of statutory construction that the intention to repeal a former law will not be
imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the
question arises bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out,
PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board
of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes,
and R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues are tapped by these two
statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact
been improved as it were to make the entity more responsive to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive
confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect
as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the
Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible.
This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within their
territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the
Code, to make both the Code and such laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by
law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The
petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between
these two forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory,
the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery
as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and
R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the
ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character
and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance
despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments
are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them
by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from
which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the
legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a
wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not
prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned.
They are, so to phrase it, the mere tenants at will of the legislature. 11
This basic relationship between the national legislature and the local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we
here confirm that Congress retains control of the local government units although in significantly reduced degree now than

under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes
the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on
the local government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large, however,
the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of their constituents and their
apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the
view that "the hope of large or easy gain, obtained without special effort, turns the head of the workman" 13 and that
"habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of
gambling must be stamped out. The laws against gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the
power of the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and
impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes the
Constitution as the touchstone of all official acts. We do not find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea
within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local
Government Code, which empowers the local government units to prevent or suppress only those forms of gambling
prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified
by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact
Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting
the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public
policy announced therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED,
with costs against the petitioners. It is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.

Separate Opinions
PADILLA, J., concurring:
I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general
authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire
activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of
government, namely, the legislative and the executive that should decide on what government should do
in the entire area of gambling, and assume full responsibility to the people for such policy." (Emphasis
supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I
wish to reiterate my view that gambling in any form runs counter to the government's own efforts to re-establish and
resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and
disadvantages of setting up more gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling
casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral
character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the
means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any
less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling.
In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and reevaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear
that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the
prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring:

While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of
Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of
prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for
declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of
jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged
ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public
respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature
of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of
the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No.
1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy
of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or
compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by
tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our
decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]).
In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as well as
prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this
Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable
in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with
the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was
restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to
be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of
the court to which application therefor will be directed. There is after all a hierarchy of courts. That
hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals.
A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only
when there are special and important reasons therefor, clearly and specifically set out in the petition. This
is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time
and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the
Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its
appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of
dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's
corresponding jurisdiction, would have had to be filed with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a propensity on the part of petitioner,
and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to
disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite
the fact that the same is available in the lower courts in the exercise of their original or concurrent
jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only
because of the imposition upon the previous time of this Court but also because of the inevitable and
resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or
referred to the lower court as the proper forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this
Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling circumstances justify availment of a remedy within and calling
for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business
Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises
or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295

entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling
Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE
and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for
the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October
1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by
Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and
pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads:
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.
The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the
above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's
general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in
contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be
reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons,
strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the
general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned
corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will
upon them in an arbitrary, if not despotic, manner.

# Separate Opinions

PADILLA, J., concurring:

I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general
authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire
activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of
government, namely, the legislative and the executive that should decide on what government should do
in the entire area of gambling, and assume full responsibility to the people for such policy. (emphasis
supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I
wish to reiterate my view that gambling in any form runs counter to the government's own efforts to re-establish and
resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and
disadvantages of setting up more gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling
casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral
character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the
means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any
less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling.
In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and re-

evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear
that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the
prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of
Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of
prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for
declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of
jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged
ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public
respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature
of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of
the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No.
1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy
of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or
compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by
tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our
decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]).
In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as well as
prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this
Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable
in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with
the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was
restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to
be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of
the court to which application therefor will be directed. There is after all a hierarchy of courts. That
hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals.
A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only
when there are special and important reasons therefor, clearly and specifically set out in the petition. This
is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time
and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the
Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its
appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of
dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's
corresponding jurisdiction, would have had to be filed with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a propensity on the part of petitioner,
and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to
disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite
the fact that the same is available in the lower courts in the exercise of their original or concurrent
jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only
because of the imposition upon the previous time of this Court but also because of the inevitable and
resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or
referred to the lower court as the proper forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this
Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling circumstances justify availment of a remedy within and calling
for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business

Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises
or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295
entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling
Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE
and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for
the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October
1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by
Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and
pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads:
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.
The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the
above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's
general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in
contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the
constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be
reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons,
strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the
general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned
corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will
upon them in an arbitrary, if not despotic, manner.
#Footnotes

1 Rollo, pp. 64-94.

2 Ibid., pp. 53-62.
3 Pryce was dropped as private respondent in the resolution of the Court dated June 13, 1994.
4 197 SCRA 53.
5 Sec. 458, [2(vi-xv)]; [3(ii-vii)]; [4(i-ix)], Local Government Code, 1991.
6 Where the law does not distinguish, neither ought we to distinguish.
7 39 Phil. 102.
8 Garcia v. Executive Secretary, 204 SCRA 516, quoting Cooley, Constitutional Limitations, 8th ed., 379380.
9 Tatel v. Municipality of Virac, 207 SCRA 157; Solicitor General v. Metropolitan Manila Authority, 204
SCRA 837; De la Cruz v. Paras, 123 SCRA 569; U.S. v. Abandan, 24 Phil. 165.
10 44 Phil. 138.
11 Clinton v. Ceder Rapids, etc. Railroad Co., 24 Iowa 455.
12 Art. X, Sec. 5, Constitution.
13 Planiol, Droit Civil, Vol. 2, No. 2210.
14 Ibid.
15 77 Phil. 88.
March 23, 1916
G.R. No. 11119

JUANA RIVERA, petitioner,

vs.
RICHARD CAMPBELL, judge of the Court of First Instance of the city of Manila,respondent.
Vicente Santia for petitioner.
Prosecuting Attorneys Paredes and De Joya for respondent.
JOHNSON, J.:
The petition in the present case was presented for the purpose of obtaining the writ of certiorari. The record shows that
the petitioner had been convicted of a violation of subsection (f) of section 4 of Ordinance No. 149, first by the municipal
court of the city of Manila and again by the Court of First Instance of the city of Manila. She alleged in each court that the
same was without jurisdiction to try her for the crime committed. She admitted that she had committed the acts charged in
the complaint, but denied that the courts of the city of Manila had jurisdiction to try her for the same. Each of said courts
overruled her objection to the jurisdiction, each found her guilty of the crime charged, and each sentenced her to pay a
fine.
Upon the presentation of the petition in this court the respondent was ordered to appear and show cause why the writ
should not issue. In response to said order a demurrer was presented.
The facts upon which the present proceeding are based seem to be as follows: That the said Juana Rivera was charged
with having willfully and unlawfully washed garments, articles of clothing, and fabrics in the waters of that part of the
Mariquina River lying between the Santolan pumping station and the Boso-Boso dam, in the Province of Rizal, a place
then occupied by duly authorized representatives and employees of the city of Manila, on or about May 11th, 1915, in
violation of subsection (f) of section 4 of Ordinance No. 149 of the city of Manila, in relation with the provisions of sections
6 and 7 of the same Ordinance.
Upon said complaint the municipal court found the plaintiff guilty. She appealed to the Court of First Instance where she
was again found guilty of a violation of said Ordinance.
The simple question presented in the present case is whether or not the courts of the city of Manila have jurisdiction over
the crime committed by the petitioner at the place it was committed.
Said section 4 of paragraph (f) of said Ordinance provides as follows:
SECTION 4. The following regulations shall be observed upon all lands occupied by any duly authorized representative,
officer, or employee of the city of Manila:
xxx
xxx
xxx
(f) Bathing in water courses. All persons are prohibited from bathing in the river and water courses. The washing of
garments, articles of clothing, and fabrics in the waters of any river or water course is prohibited.
Said section of said Ordinance was adopted by the municipal board of the city of Manila in pursuance of the power
conferred upon it by authority of the provisions of paragraphs (w) and (cc) of section 17 of Act No. 183, and paragraph (i)
of section 3 of Act No. 1150 of the Philippine Commission.
Section 17 and paragraph (w) and (cc) provide:
SEC. 17 . . . . In addition to the foregoing the board (municipal) shall have the following general powers:
xxx
xxx
xxx
(w) To maintain waterworks for the purpose of supplying water to the inhabitants of the city (of Manila), to purify the source
of supply, and regulate the control and use of the water, and to fix and collect rents therefor; to regulate the construction,
repair, and use of hydrants, pumps, cisterns, and reservoirs, and to prevent the waste of water.
xxx
xxx
xxx
(cc) To extend and enforce all its ordinances over all waters within the city, . . . and for the purpose of protecting and
insuring the purity of the water supply of the city, to extend and enforce ordinances to that end over all territory within
the drainage area of such water supply, or within one hundred meters of any reservoir, conduit, canal, aqueduct, or
pumping station used in connection with the city water service.
The municipal board was further authorized to protect the purity of the water supply of the city of Manila, by Act No. 1150
of the Philippine Commission. Section 3 of said Act provides:
SEC. 3 (Act No. 1150.) The ordinances drafted by the Board of Health may provide for:
xxx
xxx
xxx
(i) Protection from infection of all public and private water supplies and sources, and prohibition of the use of water of
dangerous character of domestic purposes. Ordinances enacted for the purpose of protecting the purity of the water
supply of Manila shall apply to and be enforced over all territory within the drainage area of such water supply or within
one hundred meters of any reservoir, conduit, canal, aqueduct, or pumping station used in connection with the city water
service."
It is admitted that during the dry season, the city of Manila was obliged to use, in addition to the natural water supply from
Boso-Boso dam, the water from Mariquina River; that the water was taken out of the Mariquina Rivera by means of a
pumping station located some distance below Boso-Boso dam, and that the petitioner was found washing her clothing

between the said pumping station and Boso-Boso dam. It is clear, therefore, that she was guilty of interfering with the
purity of the water which was supplied to the city of Manila by said pumping station.
With reference to the jurisdiction of the courts of the city of Manila over said territory, it may be noted that section 6 of said
Ordinance No. 149, expressly confers upon the municipal court of the city of Manila power to try any violation of any of its
provisions. Section 7 of said ordinance provides the penalty for its violation.
When the question of the jurisdiction of the Court of First Instance of the city of Manila was presented to the lower court,
Judge Campbell, the respondent herein, in a very well-reasoned opinion, reached the conclusion that the court had
jurisdiction over the petitioner and the offense committed, and sentenced her to pay a fine of P50 and costs, and in case
of insolvency to suffer subsidiary imprisonment. In the course of his opinion, Judge Campbell said:
It is beyond question that by washing garments, articles of clothing, and fabrics in the Mariquina River, as shown above,
the defendant committed a violation of paragraph (f) of section 4 of Ordinance No. 149 of the city of Manila, in connection
with sections 6 and 7 thereof. The Santolan pumping station is a part of the public water supply of the city of Manila which
is used in supplying the inhabitants of the city with water taken from that part of the Mariquina River during the dry reason,
in the waters of which the defendant washed articles of clothing. According to American authorities, the true meaning of
the phrase public water supply is as follows:
'Public was supply is not limited to water supply owned and controlled by a municipal corporation, but should be construed
as meaning a supply of water for public and domestic use, furnished or to be furnished from waterworks.' (State vs.
Township etc., 52 N. J. Law, 496; 19 Atl. Rep., 975.)
The provisions of Ordinance No. 149 of the city of Manila and the Acts of the Philippine Commission upon which it is
based would be meaningless and almost absurd if made applicable only to the Santolan pumping station and not to that
part of the Mariquina River immediately above it and from which the said pumping station draws water for the use of the
inhabitants of the city of Manila during the dry season, considering that the policy and purpose of said ordinance is the
protection of the public health in the said city.
According to American decisions on the construction of statutes: `Every statute must be construed with reference to the
object intended to be accomplished by it. In order to ascertain this object it is proper to consider the occasion and
necessity of its enactment, . . . . and the statute should be given that construction which is best calculated to advance its
object, by suppressing the mischief and securing the benefits intended.' (36 Cyc., 1110, 1111.)
That the Court of First Instance of the city of Manila has jurisdiction to try the offense under consideration, although
committed in the Province of Rizal, by virtue of the provisions of said ordinance (149), based upon paragraphs (w) and
(cc), of section 17 of Act No. 183, and paragraph (i) f section 3 of Act No. 1150 of the Philippine Commission can not be
disputed, if we simply take into consideration the following rule, which has been pronounced on many occasions, in
relation to the same question, by many courts:
'The corporation boundaries usually mark the limit for the exercise of the police power by the municipality; but in many
instances because essential to the statutory performance of police functions, and especially for the preservation of the
public health, the municipality is granted police power beyond its boundaries. Thus it has been held that the grant of
power to acquire territory for water supply beyond the limits of the municipality is within the competency of the legislature,
and that the municipality may exercise police power in the protection of the territory thus acquired to insure cleanliness,
and prevent any business and conduct likely to corrupt the fountain of water supply for the city.' (28 Cyc., 703, 704.)
After a consideration of the facts and the law applicable thereto and the general power conferred upon the city of Manila,
we are fully persuaded that the municipal court of the city of Manila, as well as the Court of First Instance of the city of
Manila, has jurisdiction to hear and determine the question presented by the complaint originally presented against the
petitioner. Therefore the petition for the writ of certiorari is hereby denied, with costs. So ordered.
Torres, Moreland, Trent, and Araullo, JJ., concur.

G.R. No. L-12172

August 29, 1958
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J.:
Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-appellants Juan F. Fajardo
and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, for
having constructed without a permit from the municipal mayor a building that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of the
municipality of Baao, Camarines Sur, the municipal council passed the ordinance in question providing as follows:
SECTION 1. Any person or persons who will construct or repair a building should, before constructing or repairing,
obtain a written permit from the Municipal Mayor.
SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00 for each repair permit
issued.
SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall make the violation liable to
pay a fine of not less than P25 nor more than P50 or imprisonment of not less than 12 days nor more than 24
days or both, at the discretion of the court. If said building destroys the view of the Public Plaza or occupies any
public property, it shall be removed at the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs., P. 3)
Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law, appellant Babilonia, filed
a written request with the incumbent municipal mayor for a permit to construct a building adjacent to their gasoline station
on a parcel of land registered in Fajardo's name, located along the national highway and separated from the public plaza
by a creek (Exh. D). On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954, defendants reiterated their
request for a building permit (Exh. 3), but again the request was turned down by the mayor. Whereupon, appellants
proceeded with the construction of the building without a permit, because they needed a place of residence very badly,
their former house having been destroyed by a typhoon and hitherto they had been living on leased property.
On February 26, 1954, appellants were charged before and convicted by the justice of the peace court of Baao,
Camarines Sur, for violation of the ordinance in question. Defendants appealed to the Court of First Instance, which
affirmed the conviction, and sentenced appellants to pay a fine of P35 each and the costs, as well as to demolish the
building in question because it destroys the view of the public plaza of Baao, in that "it hinders the view of travelers from
the National Highway to the said public plaza." From this decision, the accused appealed to the Court of Appeals, but the
latter forwarded the records to us because the appeal attacks the constitutionality of the ordinance in question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is that under it the mayor has absolute discretion to issue or
deny a permit. The ordinance fails to state any policy, or to set up any standard to guide or limit the mayor's action. No
purpose to be attained by requiring the permit is expressed; no conditions for its grant or refusal are enumerated. It is not
merely a case of deficient standards; standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary
and unrestricted power to grant or deny the issuance of building permits, and it is a settled rule that such an undefined
and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid (People vs. Vera, 65 Phil., 56;
Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d) 392)
The ordinance in question in no way controls or guides the discretion vested thereby in the respondents. It
prescribes no uniform rule upon which the special permission of the city is to be granted. Thus the city is clothed
with the uncontrolled power to capriciously grant the privilege to some and deny it others; to refuse the application
of one landowner or lessee and to grant that of another, when for all material purposes, the two applying for
precisely the same privileges under the same circumstances. The danger of such an ordinance is that it makes
possible arbitrary discriminations and abuses in its execution, depending upon no conditions or qualifications
whatever, other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to
be tested. Fundamental rights under our government do not depend for their existence upon such a slender and
uncertain thread. Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which
may be exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should have
established a rule by which its impartial enforcement could be secured. All of the authorities cited above sustain
this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587, 28 Am. St. Rep. 180:
"It seems from the foregoing authorities to be well established that municipal ordinances placing restrictions upon
lawful conduct or the lawful use of property must, in order to be valid, specify the rules and conditions to be

observed in such conduct or business; and must admit of the exercise of the privilege of all citizens alike who will
comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of
any arbitrary discrimination by the municipal authorities between citizens who will so comply. (Schloss Poster Adv.
Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp. 394-395).
It is contended, on the other hand, that the mayor can refuse a permit solely in case that the proposed building "destroys
the view of the public plaza or occupies any public property" (as stated in its section 3); and in fact, the refusal of the
Mayor of Baao to issue a building permit to the appellant was predicated on the ground that the proposed building would
"destroy the view of the public plaza" by preventing its being seen from the public highway. Even thus interpreted, the
ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their
own property; hence, it oversteps the bounds of police power, and amounts to a taking of appellants property without just
compensation. We do not overlook that the modern tendency is to regard the beautification of neighborhoods as
conducive to the comfort and happiness of residents. But while property may be regulated in the interest of the general
welfare, and in its pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil.
580), the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property
and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. As the case now
stands, every structure that may be erected on appellants' land, regardless of its own beauty, stands condemned under
the ordinance in question, because it would interfere with the view of the public plaza from the highway. The appellants
would, in effect, be constrained to let their land remain idle and unused for the obvious purpose for which it is best suited,
being urban in character. To legally achieve that result, the municipality must give appellants just compensation and an
opportunity to be heard.
An ordinance which permanently so restricts the use of property that it can not be used for any reasonable
purpose goes, it is plain, beyond regulation and must be recognized as a taking of the property. The only
substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner
subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden. (Arverne
Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).
A regulation which substantially deprives an owner of all beneficial use of his property is confiscation and is a
deprivation within the meaning of the 14th Amendment. (Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs.
Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So. 114).
Zoning which admittedly limits property to a use which can not reasonably be made of it cannot be said to set
aside such property to a use but constitutes the taking of such property without just compensation. Use of
property is an element of ownership therein. Regardless of the opinion of zealots that property may properly, by
zoning, be utterly destroyed without compensation, such principle finds no support in the genius of our
government nor in the principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be
of public benefit that property remain open and unused, then certainly the public, and not the private individuals,
should bear the cost of reasonable compensation for such property under the rules of law governing the
condemnation of private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185 N.E. 827)
(Emphasis supplied.)
The validity of the ordinance in question was justified by the court below under section 2243, par. (c), of the Revised
Administrative Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary character. The municipal council shall have authority to
exercise the following discretionary powers:
xxx
xxx
xxx
(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be constructed or repaired
within them, and issue permits for the creation or repair thereof, charging a fee which shall be determined by the
municipal council and which shall not be less than two pesos for each building permit and one peso for each
repair permit issued. The fees collected under the provisions of this subsection shall accrue to the municipal
school fund.
Under the provisions of the section above quoted, however, the power of the municipal council to require the issuance of
building permits rests upon its first establishing fire limits in populous parts of the town and prescribing the kinds of
buildings that may be constructed or repaired within them. As there is absolutely no showing in this case that the
municipal council had either established fire limits within the municipality or set standards for the kind or kinds of buildings
to be constructed or repaired within them before it passed the ordinance in question, it is clear that said ordinance was not
conceived and promulgated under the express authority of sec. 2243 (c) aforequoted.
We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines
Sur, was beyond the authority of said municipality to enact, and is therefore null and void. Hence, the conviction of herein
appellants is reversed, and said accused are acquitted, with costs de oficio. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and Felix, JJ.,concur.

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.
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 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. (Hannewinklevs. 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 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, . . . ."
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:
xxx
xxx
xxx
2. In all civil actions which involve the ... legality of any tax, impost, or assessment, . . . .
xxx
xxx
xxx
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 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 all-inclusive 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 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."
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 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) "oleo-margarine" 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 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 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 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 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.